R v Lee
[2016] ACTSC 233
•18 August 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Lee |
Citation: | [2016] ACTSC 233 |
Hearing Date: | 17 August 2016 |
DecisionDate: | 18 August 2016 |
Before: | Murrell CJ |
Decision: | Convicted and sentenced to two years and 6 months’ imprisonment for the theft and 12 years’ imprisonment for the murder. Seven-year non-parole period. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – murder – theft – guilty pleas |
Legislation Cited: | Crimes Act 1900 (ACT) s 12 Criminal Code 2002 (ACT) s 308, Dictionary |
Cases Cited: | Massey v The Queen [2013] ACTCA 5 R v Massey (Unreported, Supreme Court of the Australian Capital Territory, Gray J, 28 July 2011) |
Parties: | The Queen (Crown) Jeffrey David Lee (Offender) |
Representation: | Counsel Mr S Drumgold (Crown) Mr K Archer (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number(s): | SCC 226 of 2015 |
MURRELL CJ:
The proceedings
The offender is to be sentenced for the offences that, on 10 March 2015 at Canberra, he murdered his stepfather Neal Keith Wilkinson (the deceased) and stole approximately $53,000 from his mother, Maureen Therese Lee, and the deceased.
Murder is an offence against s 12 of the Crimes Act 1900 (ACT) (Crimes Act). It carries a maximum penalty of life imprisonment.
Theft is an offence against s 308 of the Criminal Code 2002 (ACT) (Criminal Code). It carries a maximum penalty of 10 years’ imprisonment.
The offender has been in custody since 11 March 2015.
In October 2015, the offender was committed for trial to the Supreme Court. The matter came before the Registrar on a number of occasions. In late April 2016, pleas of guilty were foreshadowed. The pleas were entered on 12 May 2016.
Despite their relatively late entry, the pleas had significant utilitarian value, particularly the plea of guilty to the murder charge. The plea to the murder charge spared the expense of a long trial and the associated trauma to witnesses. From the outset, there was no dispute that the offender was the perpetrator; the offender admitted as much to the arresting police. The contentious question was the causal relationship between the offender’s conduct and the deceased’s death. The prosecution did not serve the autopsy report until after the offender had been committed for trial. Thereafter, the offender needed to obtain expert advice before pleading guilty.
I will allow a discount of 15% for the plea of guilty to the theft charge and 20% for the plea of guilty to the murder charge.
Background facts
In 1981, the offender’s mother, Ms Lee, and the offender’s father were divorced. In about 1984, Ms Lee commenced a relationship with the deceased. In 1986, they jointly purchased a house at Wanniassa (the residence).
In recent years, Ms Lee’s health had deteriorated. For several years prior to 2015, she was confined to the residence. She was heavily dependent upon the deceased to provide her with care. The deceased undertook all domestic duties and administered the couple’s finances, as well as medicating and providing personal care to Ms Lee. As a result, the deceased was largely housebound. Generally, he left the house only to attend appointments and collect shopping.
The couple kept their savings in a pillowcase that was hidden in the house. In March 2015, there was approximately $53,000 in the pillowcase.
The offender lived an itinerant lifestyle. In 2014, he spent some time living at the residence. In March 2015, he was living in a motor park at Fyshwick.
From time to time, the offender borrowed money from his mother. In August 2014, he borrowed $1,000. The deceased did not approve of the loans. Nor did he approve of the fact that Ms Lee had told the offender about where the couple’s savings were kept.
The offences
At about 9:00 am on 10 March 2015, the deceased woke Ms Lee for the purpose of administering medication. Ms Lee had slept poorly on the previous night and, after taking her medication, she went back to sleep. This was the last time that Ms Lee saw the deceased alive.
At about 10:30 am, the offender arrived at the residence in his vehicle. The deceased opened the front door. There was a dispute in the entry foyer. The offender lost his temper and punched the deceased’s right cheek several times. When he struck the deceased, the offender intended to cause serious harm to the deceased. The deceased fell to the floor.
The blows caused fractures; part of the deceased’s right cheek became dislodged. The blows resulted in the deceased’s death, but the mechanism by which they did so is uncertain. The deceased was 61 years old.
The offender left the residence in his vehicle and drove to a nearby shopping centre. He parked his vehicle in a car park. He walked back to the residence, a distance of about 350 m, arriving about an hour after he had left.
Between about 12:00 pm and 2:00 pm, Ms Lee awoke to find the offender sitting on the side of her bed. Ms Lee asked the offender to make several requests of the deceased (to bring her a cup of tea, to grill a hot cross bun, to adjust the air conditioner), but the offender fulfilled these requests himself. At one stage, the offender was holding a flavoured beer. Later, he obtained a bottle of Bundaberg Rum from the kitchen. He then went into the ensuite bathroom and began to vomit into the sink basin.
When the offender returned to the bedroom, he told Ms Lee “Neal’s dead, I killed him. Where are the razors, I want to kill myself”. He also said, “I lost my temper and punched him, but he was still breathing”. The offender was agitated and upset.
Ms Lee told the offender that she wanted to ring the police or a friend. The offender said that she was not to ring anybody. He disconnected her bedside telephone, saying “[j]ust give me 15 minutes and then ring the police”.
Before leaving the house, the offender located the pillowcase in which approximately $53,000 cash was kept. He took it when he left the house.
Once she was satisfied that the offender had left the house, Ms Lee struggled from her bedroom and saw the deceased lying face down in the entry foyer. She began to call out. She attracted the attention of a neighbour, who called the police.
When the police arrived at 7:00 pm, the deceased was exhibiting no signs of life. Paramedics attended. Ms Lee was extremely distressed. She was transported to the Canberra Hospital.
Meanwhile, the offender met NC at NC’s house. The offender told NC that he had killed his stepfather and taken money. He showed NC the money. He and NC counted the money. The following day, NC reported the encounter to the police.
At 2:50 pm on 11 March 2015, the offender was arrested. The offender was in possession of a syringe, cannabis, three silver rings that contained the deceased’s DNA profile and cash. The offender became emotional. As he was being conveyed to the Watch House he volunteered to police that:
(a)“I went there with the intention of forcing my way in. I was mad that I didn’t get in”. Inferentially, the offender was conveying that he had attended the residence to see his mother and, because the deceased appeared to be impeding his access, the offender became angry.
(b)“It got out of hand quickly”.
(c)“It’s actually a relief to be caught. I just ran and ran after it happened, I didn’t know what to do”.
At the Watch House, the offender told police that he had consumed “ice” (methylamphetamine) and heroin over the previous two days. When he was shown photographs of the residence, the deceased and the pillowcase of money, the offender became distressed.
Police executed a search warrant at NC’s address. They located the pillowcase underneath the house. It contained $44,300.
There was significant forensic evidence linking the offender to the offence. A DNA profile consistent with that of the offender was found on clothing worn by the deceased. The offender’s thumbprint was impressed in blood next to the body of the deceased. A DNA profile consistent with that of the deceased was located on various items inside the offender’s vehicle, including a shirt that the offender had been wearing prior to his arrival at the residence on 10 March 2015. A DNA profile consistent with that of the deceased was located on the shoes worn by the offender at the time of his arrest and on an elastic band attached to a bundle of notes retrieved from the pillowcase.
Victim impact
It is not surprising that the Court received no victim impact statement. Undoubtedly, the emotional impact of the offences on Ms Lee would have been profound. In addition to losing her life partner, with the loss of the deceased she must have lost the capacity to live with relative independence.
Objective seriousness
Murder
A person commits murder if they “cause” a death with the intention to cause death, with reckless indifference to the probability of causing death, or with the intention of causing serious harm. Generally speaking, an intention to cause death is more culpable than reckless indifference to the probability of doing so and reckless indifference to the probability of causing death is more serious than an intention to cause serious harm. Of course, the objective seriousness of any offence, including murder, depends upon the particular circumstances and an offence involving an intention to cause serious harm may be more objectively serious than one involving an intention to cause death.
The plea of guilty to the murder charge was entered on the basis that the offender “caused the death” of the deceased by inflicting several blows to the right cheek area which, by a mechanism that was uncertain, had the natural consequence that the deceased died.
The prosecution case was that, when the offender struck the deceased, he did so with the intention of causing “serious harm”. “Serious harm” is harm that “endangers, or is likely to endanger, human life” or “is, or is likely to be, significant and longstanding”: Dictionary to the Criminal Code. This definition sits uncomfortably with the three types of mens rea within s 12 of the Crimes Act. As an intention to cause harm that endangers or is likely to endanger human life generally amounts to reckless indifference to the probability of causing death, the plea should be taken to be an acceptance that the offender intended to cause harm that “is, or is likely to be, significant and longstanding.”
The offence of murder is the most serious in the criminal calendar. However, the subject offence of murder was objectively less serious than most murders. One consideration that tends to make the offence more serious is that it occurred in the deceased’s own home. On the other hand, the physical assault was not premeditated; the offender went to the residence to see his mother and became angry only when he perceived that the deceased was impeding access to his mother. An unanticipated argument quickly escalated to a serious assault. There was no murder weapon such as a knife or firearm. The incident involved several blows rather than a relentless attack. The autopsy report noted that, “[a]s the head injuries are less severe than typical fatal head injuries, there may have been another contributing factor.” The accused intended to cause serious harm; he did not intend to cause death and was not recklessly indifferent to that prospect.
Theft
The offence of theft is of very substantial objective seriousness. It was callous in the extreme. The offender returned to the scene of the murder, presumably stepped over the body of the deceased when he entered the premises, told his mother that he had murdered her life partner and then proceeded to remove the savings of his mother and her partner. It involved an element of breach of trust; the offender’s mother had disclosed to the offender that the couple kept their savings at the residence. A substantial sum was stolen. When he took the pillowcase containing money, the offender did not know how much money was in the pillowcase, but he did know that it was a substantial sum. Fortunately, most of the cash was recovered.
Subjective considerations
At the time of the offences, the offender was 45 years old. He has no relevant criminal history.
The offender’s early childhood was nurturing and supportive. However, after his parents separated when he was about 13 years old, his relationship with his mother deteriorated. He lived with his mother until, when he was about 16 years old, she asked him to leave. He then lived with his father for about a year before returning to live with his mother. The offender attributes the deterioration in his relationship with his mother to his mother’s mental health problems and alcohol consumption.
By the time that the offender married at 25 years of age, the offender and his mother were estranged. That remained the position until 2012, when sporadic contact resumed. Needless to say, since the offences there has been no contact between the offender and his mother.
The offender has never enjoyed a close relationship with his father. The offender’s father lives interstate and has no contact with the offender.
The offender married in 1994 and divorced in 2005. There are two children of the relationship. For a period after he separated from his wife, the offender was very involved with raising his children. However, the offender’s escalating use of illicit substances and increasingly chaotic lifestyle caused a dramatic deterioration in the relationship between the offender and his children. In recent years, contact has been infrequent and strained.
The offender left school in Year 11. From 1986 to 1999 he worked as a public servant. Between 1999 and 2007 he operated a successful landscaping business. After selling the business, the offender worked in the building industry and in sales and warehouse positions until 2012. Since 2012, he has worked as a casual labourer.
In 2012, the offender sold his home. Over the next two years, the offender’s problematic gambling escalated and most of the proceeds from the sale of his home (about $200,000) were expended on gambling.
After his marriage ended in 2005, the offender developed a significant problem with substance abuse. He became a heavy user of cannabis and methamphetamine. In the 12 months prior to entering custody, he used cannabis and methamphetamine at least two or three times a week. In 2014, the offender attempted to address his substance abuse problem by entering a residential rehabilitation program, but remained on the program for only four weeks. While in custody, he has undertaken the SMART Recovery Program.
In the late 1990s, the offender sought treatment for anxiety, depression and panic attacks, and this problem resolved after about two years. Since his arrest, the offender has again experienced depression and anxiety, as well as sleep disturbance. He is medicated for those conditions.
The period 2014 to early 2015 was the lowest period in the offender’s life. He was marginalised. His marriage had ended, he had lost his family, he was socially isolated and he had no financial security due to gambling. His income from casual labouring was limited. His lifestyle was itinerant. He was a heavy drug user.
From the outset, the offender was remorseful for the murder and has accepted responsibility for the offending behaviour.
The offender’s prospects of rehabilitation are good. He will spend a lengthy period in custody where drug treatment will be available and abstinence from drugs will be supported by the difficulty of obtaining drugs within the prison environment. In the past, the offender has demonstrated the capacity to live a productive and law-abiding lifestyle.
Comparative cases
The Court was referred to a number of decisions of this Court involving sentences for murder. Very few were significantly comparable to the present case.
One matter that was somewhat similar is R v Massey (Unreported, Supreme Court of the Australian Capital Territory, Gray J, 28 July 2011) (for the conviction appeal, see Massey v The Queen [2013] ACTCA 5). In that case, there had been a long-standing history of animosity between the offender and the deceased. As a result, the offender carried a small knife. There was a chance encounter between the offender and the deceased during which the deceased became aggressive towards the offender. The offender produced the knife and stabbed the deceased three times with reckless indifference to the probability of causing death. The offender was 38 years of age. She had an extensive criminal record. She had “relatively favourable prospects of rehabilitation”. The sentencing judge described the offence as “towards the lower end of the crime of murder”. The matter proceeded to trial. The offender was sentenced to 16 years’ imprisonment with a non-parole period of 10 years.
Sentencing purposes
Any offence of murder calls for a lengthy sentence of imprisonment to ensure adequate punishment, to make the offender accountable for their actions and to denounce the offender’s conduct. Most importantly, the sentence must recognise that the victim sustained the most serious possible harm and that those closest to the victim suffered an irretrievable loss.
In this case, the sentence should reflect all these purposes, in the context that the offence was of lower objective seriousness than most offences of murder and the offender’s subjective circumstances call for significant leniency.
The offence of theft was of substantial objective seriousness and calls for a significant sentence.
The offences were related but they are of a different nature and they did not occur at the same time. Consequently, there will be significant accumulation of the sentences.
The non-parole period will reflect the fact that the offender has good prospects of rehabilitation.
Sentence
The offender is convicted of each offence.
For the offence of theft he is sentenced to two years and six months’ imprisonment (reduced from three years imprisonment by 15% for the plea of guilty) from 11 March 2015 to 10 September 2017.
For the offence of murder he is sentenced to 12 years’ imprisonment (reduced from 15 years’ imprisonment by 20% for the plea of guilty) from 11 September 2016 to 10 September 2028.
I fix a non-parole period of seven years from 11 March 2015 to 10 March 2022.
| I certify that the preceding fifty-six [56] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Anneke Bossard Date: 18 August 2016 |
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