R v Heyes & Wilson

[2003] VSC 427

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1437 of 2003

THE QUEEN

v

MARK ANDREW HEYES &
HEATHCLIFF JONATHAN WILSON

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JUDGE:	Teague J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 August - 19 September, 23 October 2003
DATE OF SENTENCE:	7 November 2003
CASE MAY BE CITED AS:	R v Heyes & Wilson
MEDIUM NEUTRAL CITATION:	[2003] VSC 427

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Criminal Law - Sentencing - Murder - Deceased bashed with mallet handle in miscalculated rescue mission - Short-term intention to cause really serious injury - 15 years prison - 10 year non-parole period

Criminal Law - Sentencing - Manslaughter - Deceased stabbed in miscalculated rescue mission - Unlawful and dangerous act - 6 years prison - 3 years non-parole period

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms M. Williams	Office of Public Prosecutions
For the Accused Heyes	Mr P. Morrissey	Simon English & Ass
For the Accused Wilson	Mr W. Toohey	C&H Lawyers

HIS HONOUR:

1. Mark Heyes and Heathcliff Wilson, the jury has found that, as to the death of Raymonde Thomas at Ferntree Gully on 25 June 2002, you Mark Heyes are guilty of murder, and you Heathcliff Wilson are guilty of manslaughter.

1. Although the two of you are not related, the killing of the deceased occurred within a family setting. Sheryl Thomas is the mother of Heathcliff Wilson, born in 1972, of the deceased, born in 1976, and of Rebeccah Thomas, born in 1982. You, Heathcliff Wilson are a half-brother of the deceased and of Rebeccah.  You, Mark Heyes are, and have been for more than two years, the fiancée of Rebeccah Thomas.  In 1976, Sheryl Thomas was married to Arnold Thomas, the father of  the deceased and of Rebeccah.  That marriage was to last until 1996, when Sheryl and Arnold Thomas separated.

1. The deceased was hard for his parents to manage, particularly as a teenager.  He came to use and abuse alcohol and illegal drugs.  There was a further troubling dimension to his misbehaviour.  He was nearly 6 years older than his sister, Rebeccah.  Over a period of about 2 years, when Rebeccah were between the ages of 8 and 10, the deceased raped her on a number of occasions.  Because of his threats to her, his sexual abuse of her was not then known to other family members.  At about  the time the rapes ended, you Heathcliff Wilson were expelled from the family home.  You moved interstate, remaining away from Melbourne and your parents until June 2002.

1. After Sheryl and Arnold Thomas separated in 1996, Sheryl and Rebeccah Thomas moved into a house at 2 Ferntree Court, Ferntree Gully. As caring mothers are prone do, Sheryl Thomas invited her son, the deceased to move in with her and Rebeccah, and he did.  That was a mistake.  His behaviour towards his mother and sister was offensive to put it mildly.  His behaviour worsened as time passed.  After an incident of particular violence directed at Sheryl Thomas, 3 or so years ago, Rebeccah Thomas moved out of 2 Ferntree Court.  She lived for some months in New Zealand.  During the violent incident that sparked the move, Sheryl Thomas came to learn of the deceased’s earlier rapes of Rebeccah.  Over the ensuing period, the deceased’s abuse of drugs and alcohol worsened.  So too did his attitude to his mother.  Threats and intimidation by the deceased were standard.  At times there were minor assaults.  For reasons that included her fear of what the deceased would do to her, Sheryl felt that she could not seek police assistance.

1. After Rebeccah Thomas returned from New Zealand, she met Mark Heyes.  In time, they came to live together at 1429 Ferntree Gully Road, Scoresby.  Sheryl Thomas continued to live with the deceased at 2 Ferntree Court.  She elected to put up with his threats and his intimidation. The deceased at times exhibited signs of mental illness. His instability resulted in the house at 2 Ferntree Court being trashed.  Sheryl Thomas was a form of captive in her own home. She loved the deceased, but was frightened of him.  He would not seek medical attention.  She was not prepared to seek help from the police.  She was reluctant to talk about the problems her son posed for her.  From time to time, Sheryl told Rebeccah Thomas and you, Mark Heyes, about the conduct of the deceased towards her.  She felt fearful and helpless.  You came to understand those feelings and to share them.

1. In early June 2002, Sheryl Thomas arranged to pay for you, Heathcliff Wilson, whom she had not seen for nine or more years, to come to Melbourne.  You stayed at 1429 Ferntree Gully Road.  There, discussions took place about the deceased, and about his physical and mental abuse of Sheryl. Those discussions involved, at different times, each of Sheryl Thomas, Rebeccah Thomas, and the two of you.

1. On the evening of Monday 24 June 2002, Sheryl Thomas had dinner at 1429 Ferntree Gully Road.  She then took a taxi home to 2 Ferntree Court.  There, she encountered the deceased in a bad mood.  He treated her contemptuously as usual.  As usual, she minimised her contact with him, by going promptly to her bedroom.  From her bedroom, she telephoned Rebeccah.  Whispering, even though her bedroom door was closed, she spoke in unfavourable terms about the deceased.  Rebeccah was troubled about what her mother said and how it was said.  She became concerned as to her mother’s welfare.  She voiced her concerns to each of you two.  Understandably, you also became concerned.  You, Heathcliff Wilson were adversely affected by the consumption of excessive alcohol and drugs.  All three wanted to provide appropriate help.  Given the events of the past, the police were not seen as an appropriate option.  Rebeccah tried to telephone her mother to seek an assurance that she was alright.  She was unable to get through to speak to her mother.  That increased the concerns of Rebeccah as to her mother’s welfare, and particularly as to the potential ill-treatment of her mother by the deceased.  The two of  you decided to go to 2 Ferntree Court to rescue Sheryl Thomas.  You took with you a mattock handle and a knife.  An attempt to recruit a third man to go with you was made, but was not successful.

1. Around 2 a.m., on Tuesday 25 June 2002, the two of you arrived at 2 Ferntree Court.  The deceased opened the door. Within a short time, the deceased had had inflicted on him injuries that were to prove fatal.  You, Heathcliff Wilson inflicted injuries to the deceased with your small knife.  You, Mark Heyes inflicted injuries to the deceased with your mattock handle.  There were many blows struck.  The deceased was left not dead, but close to death.  He had sustained multiple stab wounds from the small knife, and multiple blunt trauma injuries from the mattock handle.  In drawing their inferences, including as to the then state of mind of each of you, the jury would have been mindful of the nature and extent of the injuries and of the blood stains.  The mattock handle was used to considerable effect on the deceased.  It was also, through an ill-directed blow, responsible for causing to you Heathcliff Wilson, a broken arm and a sore back.

1. Sheryl Thomas was rescued.  She went with the two of you from 2 Ferntree Court to 1429 Ferntree Gully Road.  The three of you made the journey in the car of Mark Heyes.  The mattock handle with blood on it was in the boot.  It was taken from the boot.  It was hidden under the house by you, Heathcliff Wilson, with the assistance of Rebeccah Thomas.

1. At the house, there was talk as to how to handle the finding of the body of the deceased, and as to what was to be told to the police.  You, Heathcliff Wilson insisted that you wanted no mention of you to be made in anything that was said to the police.  That insistence created a particularly difficult situation for the other three.  They chose to acquiesce.  That was a difficult choice.  It was to have far-reaching implications.  The choice having been made, a measure of agreement was arrived at, as to what was to be said and done.  The finding of the body was to be effected by Sheryl Thomas getting a taxi to 2 Ferntree Court between 7.30 and 8 a.m. that morning.  She agreed to play the role of being surprised at finding the body.  The police were then to be told certain lies.  In short, Heathcliff Wilson was not to be referred to at all, and each of the other three was to provide an alibi for the other.  It was agreed that the police were to be told that Sheryl had spent most of the night at 1429 Ferntree Gully Road, after having been taken there from 2 Ferntree Court around 10 p.m..  Apart from discussions as to how to deal with the police, there was the matter of a broken arm that required attention. That meant a visit to the Maroondah Hospital in the early hours of the morning by the two of you.

1. Just before 8 a.m., as arranged, Sheryl took the taxi from 1429 Ferntree Gully Road to 2 Ferntree Court.  The apparently surprise finding of the body of the deceased was the spur for a call to the police.  Later in the morning, a statement was prepared with the police by each of Sheryl and Rebeccah Thomas.  There was relative consistency in the misleading information provided.  It was along the lines earlier agreed.  Shortly before 11 a.m., the police spoke to you, Mark Heyes.  You gave an account to the police that included the lies that had earlier been agreed.  You made no mention of Heathcliff Wilson. You added some embellishments of your own as to where you had been at other times during the night.  You made no mention of having been at 2 Ferntree Court.  The police obtained your consent to their making an inspection of your car.  In the boot of the car were traces of blood from the mattock handle.  You, Mark Heyes were understandably seen to have lied to the police, and you were arrested.  Sheryl and Rebeccah Thomas were further interviewed.  Both then accepted that there had been parts of the earlier statements that were incorrect.  Incorrect is a euphemism for calculated to mislead.  You, Mark Heyes were then formally interviewed by the police.  You provided a second account.  The second account differed markedly from the first account. In the second account, you acknowledged that you had gone to 2 Ferntree Court.  You spoke of Heathcliff Wilson being with you but doing little. You spoke of a number of matters that were consistent with your having struck the deceased with a mattock handle in defence of yourself.  You made no reference to the use of a knife.

1. It was many hours later when you, Heathcliff Wilson were arrested and interviewed.  You gave an account to the police that was generally consistent with the crime scene evidence.  You admitted having stabbed the deceased.  You said that you had done so after having consumed much in the way of alcohol and drugs.  You spoke in terms consistent with your having acted in defence of yourself.  You spoke of Mark Heyes being with you but doing little.

1. At the trial, you, Mark Heyes gave evidence.  You then provided a third account.  The third account differed markedly from the first and second accounts. It was more consistent than the second account with the crime scene evidence and the interview answers of Heathcliff Wilson.  It was an impressive oral presentation. However, it suffered a similar drawback to the thirteenth chime of a clock.  It prompted reflection on the apparently impressive accounts that you had provided before.

1. The jury verdicts are, to me, reasonably readily comprehensible.  Let me say at the start, that I am satisfied that there was no plan to kill the deceased.  I am satisfied that both of you went to 2 Ferntree Court with a plan to rescue Sheryl Thomas.  In a sense, you were both the victims of circumstances created substantially by others.  But you both made particularly bad choices as to how to deal with those circumstances.

1. I repeat that I am satisfied that there was no plan to kill the deceased.  I treat what had been said in the days before 25 June 2002 about hotshots and the like as being in the nature of hollow talk.  Despite first impressions based on the taking of weapons, it was not a plan to kill that lay behind both of you taking weapons to 2 Ferntree Court.  The taking of weapons was understandable given your expectations as to the capacity of the deceased.  The reputation of the deceased was for many worrying things.  They included that he was strong, and volatile and irrational.  The indications are that he was easily capable of handling the two of you if you had gone without weapons for protection.  Nevertheless, by arming yourselves, you were inviting trouble.  You were effectively preparing yourselves to engage in unlawful and dangerous activity.  You chose to take the risk that, if that activity were to cause death, as it did, it would be murder.  It would be murder if one or both, at the crucial time, formed the intention to cause really serious injury. I am satisfied that the jury found that, at the crucial time, you Mark Heyes did, and you Heathcliff Wilson did not, form that intention.

1. You, Heathcliff Wilson had factors operating in your favour that Mark Heyes did not have.  Your weapon was a small knife.  In these particular circumstances a small knife was a low key weapon, although that is not always so.  Further, your mental state was affected by drugs and alcohol.  Thirdly, you were likely to be seen by the jury as being credible in what you told the police.

1. On the other hand, you Mark Heyes had a weapon that might at first glance be thought to be relatively innocuous.  But in the circumstances, it was a formidable weapon.  Regrettably, it was used formidably.  Even more regrettably, it achieved an obviously formidable effect.  Further, the jury would have seen you as having a relatively clear head.  Thirdly, you could only have been seen by the jury as being of questionable credibility.

1. While the killing of the deceased was not a matter of minor seriousness, I treat the murder as being towards the lower end of the seriousness scale.  In so concluding, I take account of many things, including the highly emotion-charged background, the absence of strong motive, the partly-understandable taking of weapons, the indications of a need for self-defence and the excessive use of the weapons.

1. I turn to the personal background of you, Mark Heyes.  You are 29 years of age, having been born in August 1974.  You come from a supportive family.  All the indications are that that support will remain in place.  You have no prior convictions.  You have a good work record.  Through your mother, whose evidence was impressive, there was led material as to certain learning and behavioural problems.  That does help to explain some of your choices, good and bad.  I allow for your expression of regret for the death of the deceased.  I am impressed by the steps taken by you in prison to work towards your rehabilitation, including in the course spoken of by Anne Hooker.  More than many other sentencing judges, I am aware that a large number of prisoners choose to do no programs at all.  Sometimes cynicism as to motive may be appropriate.  It is my assessment that that is not so in your case, and that your prospects of rehabilitation could scarcely be rated higher.

1. I turn to the personal background of you Heathcliff Wilson.  You are 31 years of age, having been born in August 1972.  For reasons partly linked to your racial origins, and partly to the attitude of your parents to how discipline was to be effected, you had an unhappy childhood.  You have some convictions, but they are of minimal relevance.  You have had a substantially continuing problem with the taking of illegal drugs and alcohol for many years.  You have a reasonable work history.  You have suffered at times from depression, which has led to your needing some psychiatric assistance, and anti-depressant medication. You have some support, particularly from an aunt and uncle in Brisbane, who have shown a continuing interest in you.  You are married, but the future of the marriage is somewhat uncertain.

1. You have recently been exposed to adverse publicity.  That publicity is linked to a claimed matching of your DNA with DNA taken from a swab off a gun used in a  notorious unsolved double murder.  Limited material has been put before me as to that matter.  It is enough to warrant my feeling sceptical as to whether there could be any kind of link.  But I accept that, in assessing the sentence to impose on you, I should and I will make an allowance for the adverse effects that the publicity has had, and will continue to have.  More specifically, you have suffered and will continue to suffer the disadvantages of being held in management and protection units.  Amongst other things, that will limit your opportunities to continue with the sensible work on programs that you have been undertaking.  While your prospects of rehabilitation cannot be seen as being as high as those of Mark Heyes, they still appear to be extremely good.

1. I have signed the orders sought and not opposed on the hearing of the plea.  As to you Mark Heyes, I certify for, and direct the recording of, 501 days of pre-sentence detention.  I impose a head sentence of 15 years and fix a non-parole period of 10 years.  As to you Heathcliff Wilson, I certify for, and direct the recording of, 500 days of pre-sentence detention.  I impose a head sentence of 6 years and fix a non-parole period of 3 years.