R v Epshtein
[2011] VSC 8
•5 April 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 0151of 2011
| THE QUEEN |
| v |
| NATASHA EPSHTEIN |
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JUDGE: | KING J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 January 2011 | |
DATE OF SENTENCE: | 5 April 2011 | |
CASE MAY BE CITED AS: | R v Epshtein | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 8 | |
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Plea of guilty to Murder – Frenzied attack – “Verdins” mental and physical ill-health – Young offender – Drug addiction – Early plea.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R Elston S.C. | Office of Public Prosecution |
| For the Accused | Mr T Wraight | Lethbridges |
HER HONOUR:
Natasha Epshtein you have pleaded guilty to the murder of Peter James Lethlean, also known as Peter James Len. That murder occurred on Thursday 30 July 2009. At the time of his death he was residing at Unit 4, 61 Robe Street, St Kilda. You were living with your parents in Ash Grove, Caulfield South.
At the time of the offending you were 21 years of age, having been born in Melbourne on 3 February 1988. You are now 23 years of age. You have two prior appearances before the courts. The first being at the Magistrates Court at Moorabbin on 8 April 2008 where you were dealt with for two counts of theft and released on a CBO for 12 months with a 180 hours of unpaid community work and you were to attend educational and other programs and undergo assessment and treatment for alcohol, drug addiction and submit to medical psychological, psychiatric assessment and treatment. You were breached in respect of your failure to comply with the community based order on 16 February 2009 at the Magistrates’ Court at Melbourne. At that time you also faced the re‑sentencing on the two counts of theft for which you were sentenced to pay an aggregate fine of $200. You had a further six charges on that date, being three charges of burglary, two of theft and one charge of attempting to commit an indictable offence. You were convicted and sentenced to be released on a community based order for 12 months with a special condition that you undergo assessment and treatment for alcohol, drug addiction or submit to medical psychological and psychiatric assessment and treatment as directed. Clearly there was little opportunity for any treatment to have an impact upon you prior to your commission of this offence.
There was a committal proceeding conducted in respect of this matter in which four witnesses were called. You entered a guilty plea in this court on 8 November 2010. The Crown accept that your plea of guilty was entered at an early stage, as does the court.
The circumstances of the offending in this matter are that the deceased man, Peter James Lethlean, was known to you as a person who supplied you with amounts of ecstasy pills, ice and speed. He sold these from his home address and had been selling them to you for some years. In June of 2009 when the deceased was living in Toorak Road, South Yarra, you were observed to have an altercation with him. You attended at his apartment at approximately 2am, came into the apartment, where there were two other friends of his present, and started yelling about being ripped off and wanting drugs. The deceased man told you that he didn’t have any, and wasn’t going to provide anything else for you until you had paid him what you owed him, and had returned items that you had taken from him. You, apparently, then grabbed hold of the deceased and raised a fist as if to hit him, he fell back on the couch and you attempted to punch him to the head and also to the stomach area. The two friends of the deceased pulled you off and pushed you out the front door. You then commenced banging on the door and did not leave until you were told that if you didn’t go the police would be called. The deceased man complained, at a later stage, to one of the friends present, that you had been badgering, pushing and harassing him, that you kept coming to his door creating a scene and eventually leaving, only after he told you he would not provide you with anything.
On 25 July a friend of the deceased visited him at his new address in Robe Street, St Kilda. He informed her during that visit that you had rung requesting him to obtain five grams of speed. He said that he had told you he wouldn’t supply it, as you already owed him money.
On Thursday 30 July 2009 the deceased had dinner with friends and, during that dinner, a call was received and he was heard to say, “I told you I would be home by 9.30pm. I’m out having dinner with friends”. The friends dropped the deceased at his home, leaving him there at approximately 9 o’clock. You had made two telephone calls to the deceased; one on the telephone of a man by the name of Dale Lyon-Jones and one on the phone of Peter Black. This occurred at the Balaclava Hotel on Carlisle Street, St Kilda. It is unknown what you said during the second call. Peter Black was a person that you met playing pool at the hotel and not someone you knew previously. He agreed to give you a lift home, as you were unable to ride your motorbike at that time. Mr Black observed you go to your motorbike and remove something from beneath the seat. You then got into the front passenger seat of his Jeep and he commenced to drive you towards Caulfield. However, you asked Mr Black to drive you around the corner to your drug dealer’s house, as he had your money. You stated that you had been waiting for him to score drugs for you and that he had been stuffing you around, and that you wanted to go and get your money back. Mr Black was directed to a laneway, which was close to the deceased’s home. He pulled up in the laneway and remained in the Jeep.
You attended at 61 Robe Street, St Kilda. Neighbours were disturbed by screams. A neighbour, by the name of Yuan Zhang, heard a male asking what are you doing and then the screams continued. He looked through a peephole in his door and saw two people outside. He described both as male, one being bald, 40 years of age and wearing a black jacket with blue jeans. This was a description of you, at that time, as you had adopted a skinhead-type hairstyle. The second male, who was the deceased, he described as approximately 25 years of age.
Mr Zhang believed you were holding a hammer, because he saw that the object had, from his observations, a wooden handle, and you held it like a hammer. You were seen to hit the deceased man with the object raised above your head and hitting the deceased about the head and shoulders. After being hit for some time, the deceased began to slowly slide down the door towards the floor. He tried to push you away, you continued to hit him, and he continued to scream.
Mr Zhang left the front door and rang triple 000. At a similar time another neighbour, Richard McLennan, heard banging and short sharp screams of help. He left his flat, started down to the main entrance, where he heard a female voice saying, “You’ll be alright”. That voice came from the stairwell beneath him and, after that, he heard the entry door close. He saw bloody footprints on the landing of the ground floor and saw the deceased lying on his back, with blood all over his T‑shirt and around him, on the floor. He returned to his flat and rang triple 000 and after receiving instructions attempted to assist the deceased.
The police arrived at 9.55 and paramedics at 10.01, but the deceased died at the scene.
You returned to Mr Black’s Jeep. He said you had been gone between five or 10 minutes. He described you as agitated and you indicated that you’d sorted out your issue with your dealer. You directed him to drive and showed him your hand, with blood on it, and you said that you hit “him” a few times and he kept screaming and yelling for help, so you kept hitting him. When Mr Black asked if an ambulance was needed, you said, “No, he’ll be fine.”
You went back to Mr Black’s premises and showed him, when you arrived, the blood on your clothes. You then borrowed a pair of pants and used his washing machine to clean your jeans. Whilst you were at Mr Black’s home, you also attempted to steal some of his belongings, including two knives. Mr Black actually noted your name and address on your healthcare card at that time. Sometime later, he drove you back to the Balaclava Hotel; when he did, he noticed blood on the car door and, whilst driving there, there was a news report on the radio, which referred to an assault in St Kilda. You requested him, “If anyone asks can you say you drove me home”. Mr Black, in fact, dropped you one block from the Balaclava Hotel.
You were arrested on 1 August 2009 and taken to the St Kilda Road Police Station. After the ordinary formalities, you were interviewed and you gave a number of false replies and versions of what occurred that evening. Including that you had not seen the deceased in some six months, didn’t have his telephone number, didn’t owe him any money, had never been to his home in St Kilda, hadn’t been at the Balaclava Hotel on 31 July, hadn’t been to Mr Black’s unit, and that on the night of the 30th said you were at home, having taken copious amounts of pills, and that you were with your sister.
The police executed a search warrant at your parent’s home in Ash Grove, Caulfield South where they located a pair of shoes and a jacket with apparent blood staining. The items were consistent with the clothing that you were wearing, as shown in the CCTV footage from the Balaclava Hotel. The mobile phone records also indicated contact between you and the deceased, at the times to which I have earlier referred.
In relation to the death of Mr Lethlean, a post-mortem examination showed that he had been stabbed at least 40 times to the head, torso, upper and lower limbs, the damage was extensive and serious. Two of the incised wounds resulted in damage to the heart, right lung, a haemo-pneumothorax and two of the stab wounds to the head had actually penetrated the brain, which required severe force, and could best be described as a frenzied killing.
You had known Mr Lethlean, over the years, as a person who supplied you with various drugs. You did not appear to have a particularly intense relationship with him and your killing of him is totally inexplicable. His death is inexplicable. Your actions are inexplicable. You have caused, as a result, untold lasting damage to the family who loved him. His mother, father and two brothers, all provided evidence to this court of the impact that the loss of their son and brother, Peter, has had upon their lives. That loss is immeasurable and ongoing. As you are now, clearly, in a much more rational state than you were at the time of this appalling event, I have no doubt, you can recognise the tragedy that you have inflicted upon these people and upon Peter Lethlean himself - as his parents rightly describe it, a life sentence.
The law requires me to take into account their feelings and the impact that this has had upon their lives and I will do so. You would need to be made of stone to not understand and feel their grief, but I wish to make it clear to them and their friends and the friends of Peter, that the sentence I impose, in this case, does not reflect the value of his life. A sentence imposed by a court is a result of the consideration of numerous, varied matters. The court is bound by Parliament to consider many, many things and their grief and suffering, is but one of them. The worth of their son, and brother, is not measured by the number of years that you, Natasha Epshtein, will serve for his murder, but the love and joy that he brought to them in his short life. I wish, for his family and friends, that at some stage in the future, when they think about Peter, they can smile as they remember him, with that love and joy at his life having been lived, rather than the tragic circumstances of how he died. Your crime was, accordingly, an appalling crime that took away from a family a much loved brother, son and friend. As I indicated, there are many factors that must be considered in sentencing, and yours is a most complicated case. There is no doubt that you are a youthful offender, having been 21 years of age at the time of the offence and the law requires me to consider rehabilitation in your case as being a matter of paramount importance.[1] His Honour Batt JA in that case stated:
the authorities establish the following propositions:
(i)Youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises.
(ii)In the case of a youthful offender rehabilitation is usually far more important that general deterrence. This is because punishment may in fact lead to further offending. Thus, for example, individualised treatment focussing on rehabilitation is to be preferred. (Rehabilitation benefits the community as well as the offender.)
(iii)Youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality. The benchmark for what is serious is justifying adult imprisonment may be quite high in the case of a youthful offender; and, where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified. (This proposition is a particular application of the general principle expressed in s 5(4) of the Sentencing Act.)
[1]R v Mills [1998] 4 VR 235 at 241-2.
Mr Ryan, who appeared for the respondent, informed the court that he did not dispute those propositions as general propositions. In my view that attitude was correct.
The Crown accepts the fact that you are a young offender for the purposes of sentencing but, equally in respect of rehabilitation being the primary motivation of sentencing, that of course must be tempered by the seriousness of the offending with which you have been involved. That is accepted by counsel on your behalf equally.
You are a person to whom both limbs of Verdins[2] have application. That is, that your sentence will weigh more heavily upon you, than it would a person of normal health, as you will continue undoubtedly to require admissions to psychiatric hospitals for depression and for your eating disorders, as well as potentially to non-psychiatric hospitals, for your quite serious suicide and self-harming attempts. You have been treated, since being in custody, on at least two separate occasions at the Thomas Embling Centre. On the last occasion you were there for three months. You have a very difficult mental health diagnosis in that you are suffering from a depressive disorder, a bipolar disorder, personality disorder, anorexia and bulimia as well as very significant addiction to Benzodiazepines. Your offending clearly has a link to your mental health, and you have been treated on and off, both in the community and in the hospital setting, for your addictions and your mental health issues over the years. This bizarre and frenzied attack has no real explanation; you did not steal from this man, either drugs or money, you did nothing other than attack him and then leave, thus making it a quite inexplicable crime.
[2]R v Verdins (2007) 16 VR 269.
I also have to take into account your personal background and, in terms of that, I have been provided with a lengthy chronology commencing with your birth, taking you through your primary school years, your teenage years and up to the current time.
To summarise your past history, you attended Yeshivah-Bethrivkah for kindergarten through to Grade 1. Your parents moved you to Gardenvale Primary School, Grades 2, 3 and 4. From there you went to Shelford Girls Grammar at Grade 5. You were a particularly capable sports girl, but suffered academically. You remained at Shelford Girls Grammar to the end of Year 7 and then transferred to Mount Scopus for Year 8. In Year 9, after having difficulty at Mount Scopus, where you were the subject of some significant bullying, at some point during Year 9 you returned to Shelford – this was in 2002. In 2003 when you were 15 years of age, you started to miss school and clearly, after a short period of time, you were considered disinterested and you ceased attending school.
As I indicated, you had notable athletic skills and were involved in discus, athletics and then basketball and then you stopped being interested in any sport. That disinterest coincided with your commencement of the use of amphetamines and other drugs, at about the age of 16. At the age of 15, you had a termination of an unwanted pregnancy. According to the material provided to Professor Mullin, you had been sexually abused at the age of 7 when you were on holiday in Bali, by one of the carers at the kids club, then again when you were aged 12, and then when you were aged 13, and then again when you were aged 15. The latter three, being a reference to you, being in relationships with older males. I do not have a great deal of material provided in respect of that, but it would certainly appear to be inappropriate relationships, if, as Professor Mullin says, one of the men concerned was aged over 30 and you were 13. Certainly, the result was a termination at the age of 15 and a termination, later again.
At the age of 16 you commenced using amphetamines and other drugs. You tried to complete your education at the Swinburne Senior Secondary College but lasted only one day. You commenced associating with older people and made dramatic image changes to yourself – cutting off all your hair; being out late at night and drinking. Your parents determined to send you to a Kibbutz in Israel and you agreed to go. You left for the Kibbutz in December 2005, but within 10 days you were being non-cooperative and not participating in the Kibbutz life. You were sent to another Kibbutz, where you lasted some three months, but in early May of 2006 your father went to Israel to see his family and to visit you, because you were having problems in the Kibbutz. In June 2006, you told your father, whilst still in Israel, that you were pregnant and that you required an abortion – that occurred. You remained in Israel and returned to a Kibbutz. In late July, you were arrested in Israel, charged with breaking into a pharmacy to steal drugs. Your mother flew to Israel and was present during your bail hearing. In September 2006, you were released on an undertaking that you would go home and commence seeing a psychologist. You returned to Melbourne with your mother and you stayed at home for the rest of the year.
In 2007, when you were 19 years of age, you commenced working as a disability support worker. In approximately mid-2007 you were arrested and charged with two counts of theft of $8,000. That related to the pin and ATM card of one of your disability patients for whom you were caring. You had been taking the card, removing money from the ATM at night and returning the card the next day.
By January of 2008, you were admitted to the Alfred Hospital with a drug overdose. Your parents attempted to assist you and you were accepted into the Buttery Rehabilitation Clinic in Byron Bay in April 2008. You were 20 years of age, at that stage. Your mother physically flew you up there. Some eight days later, you were discharged for failing to adhere to the program. Your drug use, whilst you remained at home during the period of 2008, was heavy. Your community work, as a result of your CBO, was due to commence on 15 July, but it was on that day that you stole, from your home, a television , computer and other items. In September of 2008, you were accepted into the Albert Road Clinic, but on the day you were due to be admitted, the clinic refused to accept you, because you didn’t fit their criteria.
In October/November 2008, you were admitted to the Alfred Hospital for a drug overdose, you were in an induced coma and were there some five days. As time went on, items continued to disappear from your family’s home.
In January of 2009, you entered into the Victorian Addiction Centre Rehabilitation Program in Ivanhoe. You completed the 28 day program, and celebrated your 21st birthday in rehabilitation. In April of 2009 you were admitted to the Alfred Hospital, again, due to a drug overdose.
In May of 2009 your doctor shopping became obvious, even to your family. Large quantities of pills being found in your room and multiple repeat prescriptions from different doctors. In mid-June, you were admitted to the Malvern Hospital for a six week period, in relation to your drug addiction, whilst your family were overseas. On 26 July 2009, you discharged yourself from the Malvern Hospital and returned home and, four days later, you murdered Peter James Lethlean.
You are entitled to have taken into account, and I do, in mitigation as indicated, your plea of guilty and the early stage at which it occurred; your evidence of prior good character, which is demonstrated in a number of references that have been provided to the court, which I have examined and taken into account. Your previous good character, whilst it does have some relevance is of a minor importance in a case such as this. I take into account also in your favour, that you are a young offender, as I’ve indicated, that you have no violent prior history, that you have a strong and supportive family. I also take into account, in relation to this matter, your drug addiction, your mental ill-health and your physical ill-health and apply both limbs of Verdins as I have indicated.
I have been urged to find that you have good prospects of rehabilitation. I am unable to agree that you do in fact have very good prospects of rehabilitation. Your addiction is of such a level, and your problems in relation to your depression, your anorexia and your bulimia, your lack of belief of self-worth of such significance that they are all matters that will not be easily resolved. You are going to have a difficult time in custody, due to the many issues that confront you.
As indicated, the crime that you have committed is also an incredibly violent crime. Professor Mullen has given evidence that violent crime of this nature is rare amongst women and even more rare in women of your age, which draws him to the conclusion that the chances of you behaving, subsequently, in a violent manner are low. I am unsure that I share Professor Mullen’s confidence. Violence by women and young women, is definitely on the increase in our community, this is probably the result of a combination of factors, but certainly one of them is the drug usage that exists. You have been unable, in the past, to escape your very heavy drug addiction and I’m not confident that you will be able to do so, merely through time spent in custody. In all the circumstances, I am of the view that your prospects of rehabilitation are, in fact, moderate at best.
The factors to which I have referred will result in you receiving what some may view as a light penalty, but what is in my view the appropriate penalty. Taking into account all of the significant mitigating factors that exist and balancing them, with the purposes of sentencing and the other factors that must be taken into account, such as general and specific deterrence, which of course must be appropriately mitigated due to a combination of Verdins and your age. As a result of all of these factors, the sentencing decisions in your case has been a difficult and complicated task and a very delicate balancing exercise.
The sentence of this court is that on the one charge of murder you are to be imprisoned for a period of 17 years. I declare that you are to serve a period of 13 years imprisonment before becoming eligible for parole.
I declare pursuant to s 6AAA that the sentence I would have imposed but for your plea of guilty would have been 19 years with a minimum of 16 years.
Declare that subject to s 18(4): 613 (six hundred and thirteen) days has been served in pre-sentence detention in relation to this term and such is to be noted in the records of the court.
Application for retention of forensic sample under s 464ZFb(1) is granted.
Application for a Disposal Order is granted.
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