R v Lees
[2004] VSC 187
•27 May 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 225 of 2004
| THE QUEEN |
| v |
| KEITH LEES |
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JUDGE: | Williams J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24-25 November 2003, 27–28 November 2003, 1-2 December 2003, 4-5 December 2003, 8-12 December 2003, 15-22 December 2003. | |
DATE OF SENTENCE: | 27 May 2004 | |
CASE MAY BE CITED AS: | R v Lees | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 187 | |
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CRIMINAL LAW – Sentence – Murder – Offender boarder at victim’s home – Victim disappeared – Victim last seen by offender – Cause of death not established – Aggravating circumstance – Disposal of body in remote bushland – Post-offence conduct demonstrating lack of remorse and unlikelihood of reform – Not guilty plea – First offence – Imprisonment for 20 years - Non-parole period of 16 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R. Gibson | Solicitor for Public Prosecutions |
| For the Accused | Mr J. Desmond | McNamaras, Barristers & Solicitors |
HER HONOUR:
Keith Lees, you have been found guilty by a jury of murdering Barry Waters at a place unknown on or about 6 April 2001.
You were born on 2 December 1952 and you are 51 years old.
Background
You and your son, Gregory Lees, then aged about 14, boarded with Mr Waters at the time of the murder at 95 Golf Road, South Oakleigh. You had been looking for somewhere to live with your son and had met Mr Waters through the Eastleigh Community Church which you both attended. You had been living at Golf Road since the beginning of December 2000.
Mr Waters’ wife, Mrs Julie Waters, and their two young daughters had lived there with him until September 2000 when she had left with the children. Mr Waters had a close and supportive family. It was thought by various family members that Mr Waters suffered from an obsessive compulsive disorder (OCD) a symptom of which was his hoarding of the many objects which filled his back yard and were starting to make their way into the back rooms of his home.
In physical terms, Mr Waters was larger than you were. At the time of his death he worked as a self employed gardener. He tended to be volatile and this had caused him some difficulties in his personal life and in his past employment.
Mr Waters had been devastated by the separation from his wife and wished to be reunited with his family. At first Mrs Waters had kept her address secret from him, but soon disclosed it and was visiting her husband at Golf Road to enable him to see his children. After the separation Mr Waters had started attending a self help group for sufferers of OCD and was visiting a psychiatrist who was treating him for an adjustment disorder relating to his distress at the breakdown of his marriage. Mrs Julie Waters and his parents were also involved in this treatment.
You and Mrs Waters had got to know each other when she was visiting Mr Waters with her daughters. She had become attracted to you and you had encouraged her affections.
You had also gained the confidence of Mr Waters. Indeed it was the opinion of his mother, Mrs Lavina Waters, that he respected your views. However some minor disputation had occurred in relation to your respective contributions towards the household expenses and he had complained about it to his parents. Using an assumed name, you had complained to the local council about the accumulated materials cluttering his property. You also complained about his behaviour to others on occasion.
Whilst encouraging Mr Waters to believe that his marriage was over and urging him not to contact his wife in case she should take out an intervention order against him, at the same time you encouraged Mrs Waters to take out such an intervention order against her husband. With your assistance she had obtained an interim order on 26 March 2001 and the full hearing of her application was scheduled to take place on 9 April, the Monday following his murder. Your relationship with her intensified after the interim order was made.
In the meantime, you raised concerns about how Mr Waters might behave at the Magistrates’ Court hearing on 9 April, telling Pastor Coates of the Eastleigh Community Church of your worry that he might try to copy the behaviour of a man the subject of an episode of the television show, “Blue Heelers”, who had attended a family law court hearing with explosives attached to his body.
On Friday 6 April you had made an arrangement to collect Mr Waters from the city, after he had attended the Caravan and Camping Show at the Exhibition Buildings. I am satisfied that you met some time that night or early the next morning and that you drove him somewhere in your motor vehicle. There was no evidence of him being sighted by anyone else after approximately 7.30 p.m. on 6 April 2001 when his city bound train reached Spencer Street station.
The offence
Some time after your meeting, you murdered Mr Waters and left his body in the bush at Reefton in Victoria where its remains, apart from those of his head, were discovered by an employee of Melbourne Water some 11 months later on 6 March 2002.
Two spent .22 calibre cartridges and a number of live .22 calibre bullets which I am satisfied were capable of being fired by a .22 calibre rifle previously owned by you were found close to the remains. Tragically for his family, Mr Waters' head has not been recovered. Forensic experts were unable to say how it had been removed. In its absence and as a result of the decomposition of the body generally, experts were unable to establish the cause of Mr Waters' death.
I am not satisfied as to the circumstances of his death. I am however satisfied that the two spent bullets found near the remains were discharged from your missing .22 calibre rifle. I am also satisfied that you used that rifle in connection with the murder.
Your behaviour after the offence- lack of remorse
Your conduct since the offence demonstrated neither remorse nor any likelihood of reform entitling you to any mitigation of sentence. I make it clear that I will not impose any additional penalty as a result of your lack of remorse.
You gave various accounts to Mr Waters' concerned family and friends and to police in relation to his disappearance and your alleged failed attempts to find him that night. You maintained that he had left your car unexpectedly in St Kilda, saying words to the effect that he was looking for some kind of sexual encounter. You stated that you had driven around for some hours searching for him, before returning home to find his car and other items, including bedding, missing. You told police of your view that he had fled in order to avoid the intervention order hearing on Monday 9 April and of your concern that he might try to emulate the behaviour of the man the subject of the “Blue Heelers” episode.
Two days after Mr Waters’ disappearance, you started buying petrol and other items at various locations using a Visa card and a FlyBuys card in the name of his daughter, Vanessa, both of which he normally kept in his wallet. I am satisfied that this was designed to give the impression that he was still alive and to conceal your involvement in his death.
Meanwhile, callously, you continued your relationship with Mr Waters’ widow, Mrs Julie Waters. You invited her and her daughters to enjoy a short driving holiday with you during the Easter break on the following weekend. During this trip your relationship with Mrs Waters first became a sexual one and her attachment to you grew stronger.
When you were advised by police of the existence of surveillance video-tapes at a store at which you had used the Visa card, you fled from Melbourne. You replaced your vehicle’s number plates with a false set and moved into a camping ground at Buronga, having concealed a number of firearms in the bush outside Broken Hill.
You made contact with Mrs Julie Waters and arranged to meet her on Anzac Day, 25 April 2001. Police taped your conversation and you were arrested that evening at a motel where you were staying under an assumed name. You maintained that you had nothing to do with Mr Waters' disappearance when interviewed by police. You were subsequently released.
Police installed a tracking device in your motor vehicle during an inspection undertaken with your permission in Mildura after your release. The device revealed that on 7 May 2001, shortly after your release and one month after Mr Waters’ disappearance, you drove your vehicle and stopped it at a point approximately 100 metres from the place at which his remains were discovered the following year, on 6 March 2002. Police subsequently searched the dense bush within the vicinity of the point at which your vehicle had stopped, but did not locate Mr Waters' body at that time. His remains were not found until a Melbourne Water officer checking for signs of illegal hunting and other activity in the area on 6 March 2002 noticed them.
You have maintained your innocence throughout, as you are entitled to do.
Your Personal circumstances
Counsel making the plea referred the Court to the report of Mr Ian Joblin, a forensic psychologist, dated 21 February 2004 for details of your personal circumstances.
Mr Joblin interviewed and assessed you on 18 February 2004 at the request of your solicitors. He recorded that you were brought up in Gippsland. You are uncertain as to which of your mother's two husbands, Mr Harris and Mr Lees, was your father. You were known by the name of Keith Harris before adopting the surname Lees. You have seven siblings or step-siblings and told Mr Joblin that you have no contact with any of them, although you had, in the past, been close to one sister.
You left school without completing Form 2 studies and reported difficulties reading and writing. However Mr Joblin noted that you had apparently read the brief (presumably relating to your trial). Your home-life was characterised by your parents' heavy drinking, conflict and aggression. You reported having few friends.
You have been twice married and divorced and have five children from your two relationships. You have been involved in relationships with a number of other female partners and had separated from your most recent partner shortly before moving into Mr Waters' home as a boarder in December 2000. You told Mr Joblin that you were a "born again Christian".
You worked in unskilled jobs before starting to drive local buses in Gippsland. You spent two years in the army in the early 1970s and reported that you were discharged as schizophrenic. However counsel making the plea on your behalf tendered no other material relating to this diagnosis and stated that no reliance was placed upon it.
Mr Joblin assessed you as "a somewhat unremarkable man psychologically" and not particularly complicated or sophisticated. He did not consider your intelligence to be limited. He concluded :
"Overall I found this man to be a man of limited psychological fortitude in that he seems to have almost a psychological dependency on others. He reported an abhorrence of being on his own. I do not indicate however, that the dependency factors amount to a diagnosis of a personality disorder. Indeed, in my opinion Mr Lees does not fulfil any criteria for any clinical psychological abnormality."
Submissions
Counsel for the prosecution submitted that the murder should be characterised by the Court as cold-hearted and planned, in the sense that it didn’t arise out of the heat of the moment. He argued that it was motivated by your hatred of Mr Waters, your desire to have a relationship with his wife and the material gain which would follow from such a relationship with Mrs Waters as the surviving proprietor of a house and the beneficiary under a superannuation life policy. Although it would appear probable that you were motivated by the suggested motives involving Mrs Waters, I am not satisfied beyond reasonable doubt as to what motivated you to kill Mr Waters.
I am satisfied that your offence was a serious one and there was no evidence that it was committed in the heat of the moment. In my view, it calls for a sentence providing general as well as specific deterrence.
Your disposal of the body in remote bushland, your subsequent behaviour in attempting to conceal your crime and your relationship with his widow in all the circumstances demonstrated your lack of the remorse which might have attracted some leniency in sentencing.
Mr Gibson for the prosecution submitted that the Court should take into account as an aggravating feature the impact upon his family of the discovery of Mr Waters' remains without his head. He referred to their description of the effects of that fact in their Victim Impact Statements. Whilst I am satisfied that you left Mr Waters’ body in the bush and did not dispose of it by burial or otherwise in such a manner that his remains were protected from their ultimate exposure, I am not satisfied that you severed Mr Waters’ head. It is possible that it was later removed by an animal. However I do regard your callous concealment of the body where it was unlikely to be discovered by the grieving family and where it was susceptible to animal interference to be an aggravating circumstance able to be taken into account in sentencing you in accordance with the authorities.[1]
[1]DPP v England [1999] VSCA 195 at [27] per Brooking JA and the authorities referred to therein
The prosecution also submitted that the Court should take into account the planning of the murder, over days or hours. Counsel appearing on your behalf did not dispute that some degree of planning would have been required so that you were armed with a weapon, if the Court were to take the view that Mr Waters had been shot. Otherwise, he submitted, there was no indication of planning. I am not satisfied beyond reasonable doubt that you killed Mr Waters by shooting him, although I am satisfied that you used the missing gun and that it was fired in the course of the murder. However I am not satisfied that you took the missing .22 calibre rifle and ammunition with you that night as a result of a plan to kill Mr Waters using the gun.
Counsel appearing for you pointed out that you maintained your innocence and did not put any submissions in mitigation. However he did refer to your suffering from mild carpal tunnel syndrome, congenital fusion of the cervical spine and headaches. He told the Court that a CT Scan had revealed no abnormality in relation to the headaches. He said that you treated your carpal tunnel pain with Panadol and took medication in relation to a thyroid condition. He made it clear that you did not submit you were a member of the category of persons for whom it could be said that prison was exceptionally onerous within the meaning of the authorities, referring to R v Tsiaras[2] and R v Anderson[3].
[2][1996] 1 VR 398
[3][1981] VR 155
Further, he tendered references from your sister Ms Wendy Sykes recording her affection for you as well as her belief in your innocence, your sister Ms Wirken and her husband referring to you as a good uncle and trusted family member and your cousin, Ms Christine Ridd, her husband Douglas and daughter Ebony-Bree, all speaking of close relationships with you. Mr Terrance Douglass, a 54 year old blind prisoner whom you have assisted at Port Phillip Prison also recorded his appreciation of your help.
The Court was also told that you have applied to work in the Marlborough Unit at Port Phillip Prison with prisoners suffering from intellectual disabilities. You have been advised by prison authorities that they anticipate that you would obtain a position in that unit at some point when one becomes available.
I have noted that you have no prior convictions and take that into account in your favour.
Victim impact statements
I have read the extremely moving victim impact statements made by Mr Waters' family tendered in the course of the plea. They speak of the devastating effects of his disappearance and death. They do not know the details of his fate and fear the worst in that regard. Their lives have been altered drastically as a result of your actions. Elderly, loving parents have lost a son and his sister and brothers and their families have suffered a terrible blow. Mrs Julie Waters and her daughters have lost a husband and father. Their loss is made all the more difficult to bear by reason of your relationship with Mrs Waters when you knew of his death and its circumstances.
I have had regard to the matters referred to in s 5 of the Sentencing Act 1991. I have taken into account in your favour that this conviction is your first. Nevertheless I consider that your offence is a serious one deserving of denunciation by the Court and calling for general and specific deterrence. You have demonstrated no remorse entitling you to any mitigation in sentence. I am not persuaded that imprisonment will impose any exceptional hardship upon you. In my view there is nothing about your personal circumstances warranting leniency in sentencing.
I have taken into account all that has been said on your behalf.
You are convicted of the murder of Barry Waters and sentenced to a maximum period of imprisonment of 20 years with a non-parole period of 16 years.
I declare under s 18(4) of the Sentencing Act that the period of 812 days already served shall be deemed to have been served under the sentence I am imposing.