R v Hewitt
[2004] VSC 487
•2 December 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1420 of 2004
| THE QUEEN |
| v |
| ROBERT ISLES HEWITT |
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JUDGE: | KELLAM J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 21 June and 29 November 2004 | |
DATE OF SENTENCE: | 2 December 2004 | |
CASE MAY BE CITED AS: | R v Hewitt | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 487 | |
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CRIMINAL LAW – Murder – Plea of guilty – Murder of elderly mother by loving son in bizarre circumstances – Remorse – Co-operation with authorities – Early acceptance of guilt – Sentence of 13 years with non-parole period of 10 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J. Leckie, S.C. | Solicitor to the Office of Public Prosecutions |
| For the Accused | Ms C. Randazzo, S.C. | Victoria Legal Aid |
HIS HONOUR:
You, Robert Isles Hewitt, have pleaded guilty before me to the murder of your mother, Ivy Jean Hewitt at Hampton on 27 April 2003. The maximum penalty for the crime of murder is life imprisonment.
This crime arises out of an incident which occurred in the late afternoon of 27 April 2003 when after your mother had chastised you for being intoxicated, you attempted to throttle her with a tie and then jumped upon her head. Your mother at the time was 87 years of age. You were 53 years of age, having been born on 3 July 1950.
Throughout your life you had lived with your mother at the home at which she met her death in Hampton. Your mother and your father were devout Baptists. She and her husband conducted a strict household which included abstinence from alcohol. You had two siblings, Alan, born in 1942 and Lindsay, born a year or so before you. Your brother Lindsay had difficulty with the strict regime in your home and left school and your home during his teenage years. You were close to Lindsay and were affected by his departure from home. Subsequently, your older brother Alan married and moved to East Hawthorn. You continued to live at home with your parents.
Your brother Lindsay resolved his estrangement with your family in 1974 but unfortunately soon thereafter suffered injuries in a motorcar accident which led to him being in a coma. Subsequently he died after a life support machine was turned off. This death had a significant effect upon you. You were educated at Sandringham State School and then at Highett High School to Year 11, although you passed only two subjects in your final year. Soon thereafter you secured clerical work with the Post Master General in the City and then, between 1973 and 1974, you were employed as a postal officer at the post office at Hampton. In 1974 you secured employment as a tram conductor and in 1975 you became a tram driver which work you continued until 1980. However, you found that work stressful and returned to work as a tram conductor until you were offered a financial package when conductors were deemed redundant in 1996. You were unable to obtain employment upon being retrenched in 1996 although in August 2000 you obtained a carer’s pension in relation to the care given by you to your mother. Your father died in 1998 as a result of complications following surgery and thereafter you took on the responsibility of caring for your mother. The evidence before me is to the effect that you were a careful and loving carer of your mother. Indeed, the relationship between you and your mother was described in evidence before me as “a loving relationship”.
However, over the years it would appear that some acrimony arose in the relationship from time to time about your consumption of alcohol. You told police that you had not consumed alcohol before 1971 but thereafter you had approximately four cans per day.
Although it would appear that throughout your adult life you were somewhat socially isolated from others and thus never moved from the family home, you had a keen interest in football and regularly attended the local Sandringham Football Club games on weekends. Your other major interest appears to be in walking your dog, which you were known to do at least three times daily, during which times you endeared yourself to many of the local residents of Sandringham by whom you were both well-known and liked.
On the morning of Sunday 27 April 2003 you attended to your usual morning duties which included getting breakfast for your mother and walking your dog. At about 10.00 a.m. you left your home and made your way towards the local shopping centre in Hampton. At about 10.l5 a.m. you purchased six cans of beer from a bottleshop and then walked to the Sandringham Football Ground. You watched the local football until the end of the seniors game. During the game you, by your own admission, consumed a further 10 pot sized glasses of beer which were purchased by you from the club bar. You left the football ground about 5.00 p.m. and walked home. On arriving home you sat in the loungeroom with your mother whereupon she proceeded to berate you about your consumption of alcohol. You told police that she asked you why “you made a fool of yourself” by the consumption of alcohol. You then went to your room and whilst putting away your football bag you “snapped”, to use the word described by you to police as to your state of mind. You decided to kill the deceased and took a neck tie from your cupboard and went into the kitchen where she was standing at the sink. You walked up to her and put the tie around her neck and attempted to strangle her. Still alive, the deceased fell to the floor whereupon you stomped on her upper body and neck with your feet a number of times. Dr David Ranson, the pathologist who conducted the autopsy into the death of your mother, found evidence of multiple injuries to the body including injuries to the neck, the head and the chest. These injuries were associated with a considerable quantity of haemorrhage in the vicinity of the damaged structures. Dr Ranson concluded that your mother died from the head, neck and chest injuries resulting from the force imposed by your stamping on her upper body and neck.
Following the attack upon your mother you telephoned a relative of your mother’s, Mavis Hewitt, and asked her not to make her regular Monday visit as your mother, you said, was not feeling well. You then left the home and drove to the Sandbelt Hotel in Moorabbin, arriving at about 5.50 p.m. You played gaming machines there and consumed three pots of beer. At about 9.00 p.m. you came under the notice of venue security who were concerned about you appearing distressed. Your poker machine was cashed in and you were paid your credits and escorted from the venue. You then travelled by taxi to the Royal Oak Hotel, arriving there at 10.54 p.m. You again played gaming machines until 3.54 a.m. the following morning. You then returned to the Sandbelt Hotel. However, you were refused entry and you thus returned home.
Your mother still lay dead on the kitchen floor. In the days following, relatives made numerous attempts to telephone your mother without response. On several occasions when contact was made with you, you told them that the deceased was sick with a cold and a sore throat.
At 12.05 p.m. on Sunday 4 May 2003 you walked into the Sandringham Police Station and confessed to killing your mother. The Homicide Squad was subsequently notified after police discovered your mother’s body still lying on the kitchen floor of your Hampton home. During your record of interview with police you made full and frank admissions to strangling, and then stomping your mother to death. The only explanation offered by you is that you “just snapped”. You also made further admissions in relation to attending at various gaming venues during the week after your mother’s death and spending your mother’s money, the amount of which was found subsequently to be $19,920.
The death of your mother in circumstances whereby she relied upon you to care for her is a most serious offence.
However, notwithstanding the seriousness of your offence there are a number of important matters of mitigation. The first of those matters is that you have pleaded guilty. It is a significant matter to plead guilty to the crime of murder and you are entitled as a matter of law to a substantial and transparent discount on the sentence which I would otherwise impose by reason of such plea of guilty. Your plea has saved the community the inconvenience, expense and the trouble of a trial. More significantly, no doubt, is the fact that your family and others who knew your mother and cared for her have been saved the trauma and the unhappiness of a protracted trial. Notwithstanding the fact that your plea was entered only on the date that you first came before me, I accept, and Mr Leckie S.C., the Senior Crown prosecutor who appeared on behalf of the Director of Public Prosecutions concedes, that the late plea is not reflective of any matter which might be held against you. I accept that you made a full, frank and indeed remorseful confession to police upon your attendance at the Sandringham Police Station on 4 May 2003. Your record of interview contains a statement by you that you are “guilty” of the offence. I accept that those advising you, very properly, did not permit you to enter a plea of guilty until they had investigated fully the question of whether a defence of mental impairment might be open to you. There were obvious bizarre aspects to the murder of your mother. I observe that the committal hearing in this matter was conducted principally in relation to the issue of mental impairment. Accordingly, I accept that it was always your intention to accept criminal responsibility for the death of your mother, and I accept furthermore that at all material times you were co‑operative with police and provided them with all assistance that was required by them.
Evidence has been led before me on your behalf. I heard evidence from your elder brother, Alan Ross Hewitt. He said that the attack upon your mother was totally out of character. He gave evidence that in your younger years you had had a bright and bubbly personality but that as you grew older you became more isolated. He confirmed that after the death of your father in 1998 you took over the care of your mother whose mobility was poor and who had lost the sight of one eye. He would attend regularly upon your home and observed your interaction with your mother. He said that your good care of her was observed by him and that a number of relatives and friends had observed your regard for her safety. You would move furniture out of her way, position her walking frame so as to enable her to get up safely and assist her in and out of a car. You did all the domestic work and shopping for her and took her to appointments. He and other friends and relatives regarded it as “a blessing” that you were present and living with your mother. Indeed he gave evidence that you and your mother were so dependent upon each other that relatives had discussed concerns as to how you would cope in the event that she pre‑deceased you. He gave evidence that he had never had any concerns about your mother’s safety; indeed quite the contrary. He gave evidence that in latter years you handled your mother’s finances and that until her death you did so scrupulously.
In addition Mr Alan Hewitt gave evidence that he believed that in recent times leading up to the death of your mother you had acted strangely. He observed that you were less talkative than usual, and you were observed to be talking to yourself. You were observed to remove a T-shirt uncharacteristically in the presence of others in the kitchen of your home. You appeared to be more “nervy” and “twitchy” than in the past and in the months leading up to your mother’s death you were observed to be lower in mood. On another occasion you were observed to be talking incessantly. He regarded this behaviour as also being uncharacteristic of you. It is both to your brother’s credit and to your credit that notwithstanding the circumstances in which he lost his mother he has been prepared to support you.
Mr Bernard Healey, clinical psychologist, gave evidence before me. Mr Healey saw you on 7 June 2004 for purposes of a psychological assessment. He obtained a detailed history about the circumstances of the crime and about your background. He conducted intellectual testing which revealed that you had “slightly below average capacity” with a full scale IQ of 88. It is notable that your verbal IQ was found to be 101, whereas your performance IQ was found to be 74. The discrepancy in relation to your capacity for undertaking non-verbal tasks upon testing raised in the mind of Mr Healey the question of whether you suffered from higher level cerebral impairment. He observed that in the course of the examination there appeared to occur involuntary movement of your head, particularly when you tried to concentrate. I might add that I have viewed the video tape of the record of interview carefully. The involuntary twitching of your head, shaky hand movements and excessive perspiration described by Mr Healey can be viewed to have affected you in the course of that interview. Similar peculiar behaviour was noted by serving staff at the Sandbelt Hotel. I did not observe similar head shaking to any such degree upon you as you sat in the dock on the day of your plea, but I accept the evidence that these matters were of concern to Mr Healey and thus he considered it appropriate to refer you to undergo neurological review.
Your plea was adjourned from 21 June 2004 to enable such a review to take place, the consequences of which I will return to consider below.
Mr Healey was unable to demonstrate upon personality testing any major psychological or emotional disturbance. He considered that whilst you experienced distress and guilt over your conduct there is obviously a measure of denial in your functioning. He considered that there was some “blandness” in your demeanour that would be consistent with “emerging higher level cerebral impairment”.
Reports from consultant psychiatrist Dr Walton were placed before me. Dr Walton examined you at Port Phillip Prison on 30 September 2003. He was unable to make any diagnosis of mental illness nor personality disorder. He considered that you made statements indicative of appropriate remorse although you are not “an especially emotionally expressive man”. Dr Walton was asked in April of 2004 to consider the transcript of the committal proceedings and a statement prepared by your brother, Mr Alan Ross Hewitt. Dr Walton noted that your brother had observed some degree of nervousness and mood swings in the months leading up to the death of your mother. He observed that your brother had observed a significant change in demeanour and that you were overheard talking to yourself on an occasion. Dr Walton did not consider that these observations would lead to a clear psychiatric diagnosis. He said, “If Mr Hewitt’s behaviour had actually exceeded normal limits then it would seem that it progressed no further than fairly mild cyclothymia, which can be described as a very mild variant of bipolar mood disorder, however, there is simply nothing to suggest that this condition would have been of sufficient severity to give rise to considerations surrounding legal mental impairment”. He said further, “Having made the comments above, it is correct to state that this remains a disquieting case, especially in relation to Mr Hewitt’s behaviour in the aftermath of the killing, but I am simply unable to state that that, along with the other information to hand, leads to any psychiatric diagnosis.”
As stated above, arrangements were made for you to be subjected to neurological examination by an eminent neurologist, Dr Richard Stark. Dr Stark examined you at Port Phillip Prison on 27 August 2004.
The explanation that you gave him was that your mother would regularly “have a go” at you for drinking and that on the day in question you had had a lot to drink and “lost it”. You had never struck her or in any way responded in a similar manner. You had never been involved in fights and had never broken anything in temper. Dr Stark likewise agreed that the discrepancy obtained upon testing between a verbal IQ of 101 and a performance IQ of 74 raised the question of whether there was structural brain abnormality.
Accordingly an MRI scan was arranged by Mr Stark to be undertaken at St Vincent’s Hospital. The MRI did not reveal any intracranial pathology. In commenting upon the scan Dr Stark said, “It is possible that this man does have a developmental disorder accounting for his unusual neuropsychological performance and possibly contributing to some of his behavioural patterns. This is however not associated with macroscopic abnormalities visible on imaging of the brain, nor with any physical abnormalities on neurological examination.” Dr Stark went on to say, “There is some information in the neurological literature indicating that perpetrators of apparently motiveless murders do have a higher incidence of subtle abnormalities revealed in neurological, neuroradiological or neuropsychological examinations. Presumably such a situation may contribute to a degree of reduction of impulse control.” However, apart from this possibility, neurological examination of you provides no basis for accepting that you suffer from any neurological condition, which on the probabilities can be said to be related to your conduct in such a manner that it is inappropriate for you to be the subject of the application of the principle of general deterrence.
In terms of specific deterrence, I am satisfied that the death of your mother occurred in the particular circumstances in which you and she were then living. As Mr Leckie said in his submissions before me:
“ … This is a situation where something happened between them, on his description, where she had taken him to task for his drinking and coming home affected by alcohol which for some reason, the accumulation, caused him to boil over and lose his temper. Obviously he has had some amount of alcohol, exactly how much would be hard to determine but I would not disagree that he was affected by alcohol on this occasion, and in that environment he has boiled over, lost his temper, and committed this crime. … It is a matter Your Honour can take account of that it happened in those circumstances and in this domestic situation and … it has been a spur of the moment and a short term attack.”
As conceded by Mr Leckie on behalf of the prosecution the circumstances before me are such that there was no premeditation, but rather a sudden total loss of self‑control by a person whose judgement was affected by the consumption of alcohol. Your conduct in killing a person to whom you had devoted years of your life was inexplicable and totally out of character. Your behaviour as observed by your brother in the weeks leading up to the death of your mother, and your behaviour over the week after her death, can only be described as bizarre and entirely inexplicable taking into account your previous conduct. The evidence before me is that you have been a lonely but inoffensive and likeable man throughout your life with the care of your mother as your primary obligation and your walking of the dog and the Sandringham Football club as your only interests in recent years.
I note furthermore that from the time of your attendance upon police on 4 May 2003, a week after the killing of your mother when you confessed to the murder of your mother you accepted in full, frank and open honesty what had occurred. You volunteered your behaviour to police in full detail. I note also that you did not in any way endeavour to exaggerate the role played by you in the household or to assert that you were unfairly provoked by your mother. The evidence given by your brother, Alan Hewitt, demonstrates that you did play a caring and active role in support of your mother. You were honest with police about the amount of alcohol you had consumed and that is substantially confirmed by the evidence of others. In particular, I observed that in the course of the record of interview you in no way attempted to blame your mother or to suggest that her treatment of you in any way justified any response by you. Indeed, a fair reading of the record of interview suggests that you had to be prompted by police to tell them what it was that she had said which caused you to lose your temper. It is to your credit that you accepted total responsibility for what occurred without endeavouring in any way to shift blame. The record of interview demonstrates clearly your remorse and your acceptance of responsibility. As pointed out above, at the end of the record of interview when you were asked as to whether you wanted to say anything in answer to the charge of murder you said, “I’d say I’m guilty.”
For the above reasons I am satisfied that the issue of specific deterrence is of little if any significance in relation to the task I have of sentencing you. This crime occurred in the context of the particular circumstances and in the environment in which you were then situated. You are not a danger to the public, nor is there any likelihood that you will re-offend after your eventual release from prison.
Nevertheless, and despite the significant mitigatory factors which are apparent in your case, the crime of murder is a serious crime indeed. It is the most serious crime which can be committed and the court must enforce the view of the community that life is sacred. For reasons of general deterrence and in order to manifest the community’s denunciation of your conduct, and to generally impose a just punishment, and even taking into account such mercy to which you are entitled, it is apparent that there is no other alternative, as is readily conceded by your counsel Ms Randazzo S.C. than that you be sentenced to a term of imprisonment.
I sentence you to 13 years’ imprisonment and direct that you not be eligible for parole before you have served a term of 10 years’ imprisonment. Pursuant to s.18(4) of the Sentencing Act I declare that you have served 568 days in pre‑trial detention and I direct that the same be noted in the records of the court.
Remove the prisoner.
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