R v Syme

[2015] NSWSC 1609

Supreme Court

New South Wales

Medium Neutral Citation:	R v Syme [2015] NSWSC 1609
Hearing dates:	27 October 2015
Decision date:	29 October 2015
Jurisdiction:	Common Law
Before:	Adams J
Decision:	The offender, Angela Syme, is sentenced to a term of imprisonment of 21 years to commence on 20 April 2014 and expiring on 19 April 2035 with a non-parole period of 12 years. The offender is first eligible for parole on 19 April 2026.
Catchwords:	CRIMINAL LAW – sentence – murder – guilty plea – agreed with co-offender to inflict grievous bodily harm
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(5AA), 25C(1), 44
Category:	Sentence
Parties:	Regina Angela Syme
Representation:	Counsel: L Carr (Crown) P D Young SC (Offender)   Solicitors: Solicitor for Public Prosecutions (Crown) Blair Criminal Lawyers (Offender)
File Number(s):	2014/118824

Judgment

Introduction

1. On 16 April 2014 Mr Rodney Willis, aged 76, was murdered by the husband of the offender who hit his head with shocking force, using first a tyre lever and, when that did not inflict sufficient injury, with a heavy pipe shortly after. The post mortem examination revealed skull fractures in the right parietal, left temporal and base of Mr Willis’ skull together with very significant brain damage and associated lacerations. He was in his own home and taken unawares by the attack. He plainly suffered extreme pain before unconsciousness supervened, probably at an early point. This calculated, cruel murder was committed in an attempt to delay the detection by Mr Willis of a theft by his killer and his wife, the present offender, of almost all the money in his bank account. The judge who sentenced her husband accepted that the initial attack was undertaken with the intention of inflicting grievous bodily harm but the second attack was intended to kill. On 5 December 2014 the co-offender pleaded guilty to the offence of murder. The starting point for his sentence (reduced for reasons which are presently irrelevant) was 38 years imprisonment.

2. When first arraigned upon an indictment charging her with Mr Willis’ murder on 3 July 2015, the offender pleaded not guilty and a trial date of 26 October 2015 was fixed. On 3 September 2015 she was rearraigned and then entered a plea of guilty. The essential basis of this plea is that the offender had agreed with the co-offender that he was to inflict grievous bodily harm on Mr Willis but had neither contemplated his death nor agreed to it.

Facts

3. Tendered on the sentence proceedings was a statement of agreed facts from which the following narrative is largely taken. As at the date of his death Mr Willis, as I have mentioned, was 76 years of age residing in The Rock (a small town about 30km south west of Wagga Wagga) in a granny flat at the rear of a house occupied by his maternal nephew, Mr Owen, and the offender, the co-offender and their two young daughters. The offenders discovered that Mr Willis had something over $30,000 in his bank account and agreed to steal $30,000 from him by the co-offender writing out a cheque for that sum payable to himself, of course unbeknownst to Mr Willis. On 15 April 2014 the co-offender deposited the cheque into his bank account. On the morning of the next day, Mr Willis discovered that the money was missing when he withdrew a small amount from an ATM. He spoke to a number of people in town about the missing money and went home at around 10am to contact his bank. (Following his death paperwork relating to the missing funds was found on Mr Willis’ dining table and it is apparent that he intended to telephone his bank about the issue.) Although it is not clear how, the offender discovered shortly after 10am that Mr Willis had found out about the missing money and she told the co-offender. As the agreed facts state –

“The offender and co-offender discussed the situation and they jointly decided to delay and/or prevent Mr Willis alerting the authorities by inflicting upon him at least really serious bodily harm. It was contemplated by the offender that the co-offender would use a weapon.”

4. The co-offender then went to the main door of the granny flat, which was open. Mr Willis was just inside. The co-offender, who had taken a tyre iron with him, hit Mr Willis several times on the head but, thinking that this did not sufficiently disable him, returned to the house, turned up the sound on the television, took a heavy pipe from the yard, returned to the flat and renewed his attack. In his apparently candid account to police about what had happened (except that it omitted all mention of the offender), he said that Mr Willis was still alive after he used the pipe, so he thought about getting “something bigger … [which] might like do it quicker but I couldn’t … do it, I couldn’t do it”. He returned to the house and left him to die.

5. Mr Owen had gone out earlier and returned at approximately 11am. He and the two offenders smoked cannabis together for about 20 minutes. Sometime before 11.30am Mr Owen went to the granny flat and, hearing Mr Willis whimpering through the bedroom window, looked inside and saw his uncle lying on the floor with blood on his head. He thought he had fallen over and went inside. Mr Willis was lying on his back on the bedroom floor gasping for breath. Mr Owen returned to the house and told the offender what he had seen. They then told the co-offender, who was in the shower at the time. Mr Owen then contacted “000” on his way back to the flat. Though he attempted to assist his uncle, he was unable to follow the directions of the “000” operator. He found a neighbour who applied CPR until an ambulance and police arrived at about 11.50am. However, Mr Willis did not respond and CPR ceased, death being pronounced at 12.17pm. I should say, in fairness, that it is certain that there was nothing either Mr Owen or the neighbour could have done to save Mr Willis’ life. Neither the offender nor the co-offender attempted to assist Mr Willis.

6. Sometime before police arrived, the co-offender made arrangements with his sister to travel to Melbourne by train, which they caught at 2.15pm. Whilst in Melbourne, he admitted to friends that he had committed the murder and one of them contacted the authorities to tell them of these admissions. In the meantime, at about 3.17pm, the offender told police that the co-offender had not been in the premises and stated that she did not know how to contact him, also stating that she had no idea what had happened to Mr Willis. On 18 April 2014 the offender travelled with friends to Melbourne to collect the co-offender, en route making admissions as to what she knew about what had happened to Mr Willis. The offenders then left Melbourne and returned to The Rock, where they both made further admissions to friends about their involvement in the crime, including the offender admitting that she had washed the bloodstained clothes that the co-offender had been wearing at the time of the attack.

7. Both offenders were arrested on 20 April 2014 but declined to answer any questions. However, on 30 April 2014 the co-offender, then in custody, was interviewed as a volunteer, and made the admissions about killing Mr Willis to which I have already referred.

8. It is clear that Mr Willis was assaulted to prevent him from stopping payment on the forged cheque and exposing the offenders' theft. It is admitted by the offender, in effect, that this would be achieved by attacking him and inflicting grievous bodily injury. Mr Young SC, counsel for the offender, contended that the offender intended no more than that Mr Willis was to be rendered unconscious. I do not accept this submission. Firstly, there is no evidence that supports it. Secondly, it is inconsistent with the plea. It is obvious that unconsciousness may be brought about in a number of ways and by force of varying degrees. The mere causing of unconsciousness by the use of force would not, or may not, amount to the infliction of grievous bodily harm and an intention merely to cause unconsciousness would be insufficient to establish the intentional element of the crime of murder which requires an intention to cause grievous bodily harm. There is nothing in the agreed statement of facts that discloses the degree of injury the offender thought might result from the intended attack, let alone that suggests that she discussed the issue with her co-offender. In the end, Mr Young in effect submitted that I should act on the basis that the mode of causing unconsciousness was understood by the offender as involving the infliction of grievous bodily harm. In light of the admissions implicit in her plea and this explicit concession, I was prepared to allow the plea to stand. In the result, there is no further material on the offender’s intention except that she agreed the co-offender was to use a weapon to inflict very serious injury that would delay or prevent Mr Willis from contacting “the authorities”, which must mean the bank or the police. If this were to be effected, considerable injury must have been contemplated: momentary disablement would not have sufficed. This is to give the offender the benefit of the doubt that prevention, as distinct from delay, was not in mind, since this would have implied a fatal attack. Given the basis of the plea, as accepted by the Crown, such a conclusion is not open. I should mention also that the evidence does not permit the conclusion beyond reasonable doubt that the offender was aware that the co-offender attacked Mr Willis a second time.

9. There are cases in which grievous bodily harm might well be inflicted without a significant risk of fatal consequences and such cases will usually be less culpable than those where a fatal consequence is likely. In this case, there is no evidence of the offender's understanding as to the extent of force to be used except that it would be grievous bodily harm (caused by violent use of a weapon) sufficient to significantly delay any attempt by Mr Willis to frustrate the fraud and the offender must be sentenced on the basis that she did not contemplate the possibility that Mr Willis might be killed. It seems to me that, in fact, the offender was indifferent to the extent of injury to be inflicted, providing it served the purpose, a decision that she left to her co-offender. In the result, her moral culpability, though less than it would have been if it were possible to conclude that the offender had actually contemplated that her co-offender might inflict on Mr Willis the most serious injuries short of lethal, is very grave, especially having regard to the consequence that Mr Willis died as a result.

10. It is generally, though not invariably, the case that the commission of murder when the intention is to inflict grievous bodily harm is significantly less culpable than where the intention is to kill. These matters are inherently incommensurable but I accept the submission of Mr Young SC, with which the Crown prosecutor agreed, that in this case the offender’s culpability is significantly less than it would have been had she contemplated the possibility that Mr Willis would be killed. Moreover, I should also sentence on the basis that her culpability is less than that of her co-offender because he inflicted the injuries on Mr Willis and she was not present at the time.

Subjective circumstances

11. The offender has a minor and inconsequential criminal record.

12. A report by Anna Robilliard, forensic psychologist, was tendered without objection. It contains an extensive account of the offender's background and psychological situation. Although it is true that the offender did not give evidence and, accordingly, did not verify the history contained in the report, I am satisfied that it is appropriate to act on the basis that she told Ms Robilliard the truth. This is especially so given that the Crown prosecutor did not submit otherwise.

13. The offender, now just short of her 27th birthday, was adopted from an orphanage in Romania when aged something over two years by an Australian couple and has little knowledge of her biological parents. She was brought to Australia about a year later and lived with her adoptive parents at their home just outside metropolitan Sydney. Her relationship with her parents, especially her mother, was troubled and she was estranged from them from time to time. At the age of 17 she moved out of home following a contretemp with her mother and came and went on several occasions, last living with her parents in 2014. Although she attended school until year 10, she was overtly rebellious and frequently truanted. After school she worked at a supermarket on a checkout, staying over a year but then resigned, obtained work at a nursing home and undertook TAFE training, achieving Certificates III and IV as an Assistant in Nursing. She had a number of unsuccessful relationships. She last had paid employment at age 21 when she was a business manager for a company that sold vacuum cleaners. She said she worked hard and used amphetamines in order to work longer hours. (She continued to use drugs, including amphetamines, up to the date of her arrest.) It was at this time that she met her husband, the co-offender, and resigned when she was pregnant with their first child, although she returned and worked into the early months of her second pregnancy. The relationship with the co-offender was unstable from the outset and never improved although it did not involve physical abuse. They have two young children, now being cared for by her parents and brother. The offenders have now agreed to a divorce.

14. It appears that the offender has been using drugs including “speed” and “ice” from about the age of 19. She reported to Ms Robilliard that, when the offence took place, she and the co-offender “were off our heads on ice”. She said that the offence “would never have happened if I was in my right mind”. By virtue of s 21A(5AA) of Crimes (Sentencing Procedure) Act 1999 (NSW) this cannot be taken into account as mitigation. Nevertheless, it might at least partially explain how she came to commit the offence. Whilst not mitigatory, I accept that the scheme, so far as both offenders were concerned, indicated a degree of impulsive irrationality to which their having been affected by drugs may well have contributed. This is relevant to prospects of rehabilitation and provides some support for the information, to which I briefly refer below, from her close relatives that the offence was out of character.

15. Psychometric testing demonstrated that the offender was within the below average to average intelligence range with particular strength in the verbal domain. Her ability to care for herself and adequately maintain self-sufficiency in the community appeared to be appropriate and there was no indication of cognitive impairment or intellectual disability. However, testing showed marked dysfunctional personality disorders associated with instability and unpredictability of mood and behaviour with lack of foresight and a capacity for antisocial impulsive acting out. She also had symptoms of PTSD (from several traumatic incidents in her childhood), elevated anxiety and reactive depression. There was persuasive evidence of remorse. I do not regard the offender’s psychological condition as justifying significant mitigation, although it might explain to some degree the ill-judged impulsivity of the offence. It is not otherwise connected with its commission and Mr Young SC did not submit otherwise.

16. As mentioned, tendered in the proceedings were letters from the offender’s close relatives: her father, cousin, aunt and another relative by marriage, all of whom of course have known her since childhood. They strongly feel, based on their knowledge and experience of her over the years, that her commission of this offence was completely at odds with the person they knew. At the same time, as Ms Robilliard’s report shows, the offender has some deep seated psychological problems of which her family appear to have been unaware but which, perhaps exacerbated by drug abuse, have had a significant and harmful effect on the woman they thought they knew.

17. Although the psychological problems to which I have adverted suggest that the offender’s rehabilitation will not be easy, the offence took place in a particular context when she was in a relationship with a person from whom she is now separated and is unlikely to be renewed. I accept that she is genuinely contrite. She is still relatively young and the lengthy term of imprisonment, together with the rehabilitation programs which she will very likely undertake, hold out a very real prospect that, on her release, she will be able to avoid reoffending. Avoidance of drug use will be of considerable importance. The close and continuing support of her family will be an important factor in this respect.

18. I accept that the offender loves her children, who are still very young, and that an additional heavy price she will pay for the commission of this offence, for which lengthy incarceration is inevitable, is that she will be unable to be a mother to them as they grow into young adults, with a consequential substantial risk that their relationship might be broken beyond repair. This is an additional hardship which results from her imprisonment and should be taken into account. (I note, however, that it is somewhat difficult to accept that she was able to provide appropriate care for her children whilst abusing drugs to the level which she disclosed to Ms Robilliard.)

Victim impact statements

19. Victim impact statements have been received from Mrs Christine Willis, Mr Willis’ sister in law. Ms Holly Marsden and Ms Meaghan Owen, two of his nieces. The latter read her statement to the Court. These statements are moving testimony to the terrible grief and pain that members of Mr Willis’ family suffered as a result of his shocking death. He was clearly a gentle and decent man whose quiet contribution to the lives of his family and loved ones had a profound effect upon them, and the loss of which has given rise to great suffering.

20. I note that the use and purpose of these statements is governed by the Crimes (Sentencing Procedure) Act 1999. I have taken them into account in accordance with the principles repeatedly stated by the Court of Criminal Appeal. Of course, Mr Willis' death came at the cost not only of individuals whose lives he had touched but also the community of which he was a part.

Consideration

21. The offender had agreed to the commission of a terrible crime, which would have been very grave, even if Mr Willis had not died as a result. Although she did not intend that he would be killed and did not contemplate this possibility, the law applies criminal culpability to this consequence. A life has been taken and the administration of criminal justice requires due acknowledgment of this in the measure of punishment.

22. The maximum term of imprisonment for the crime of murder is life imprisonment, with an applicable standard non-parole period of 20 years. It is clear that this is not a case falling in the worst category of the crime and a sentence of life imprisonment is not appropriate. There was no intention to kill, nor did the offender commit the violence and, although she agreed to the infliction of grievous bodily harm, there is no evidence from which I could conclude that she instigated the offence. The offence was impulsive. Other matters of relevance to the assessment of objective seriousness are: Mr Willis was vulnerable by virtue of his age; the offence was committed in his home; it involved the use of weapons; the motive was greed and an attempt to escape justice; the degree of violence contemplated by the offender was very substantial and, although this is an inherent element of the offence, much more than minimally satisfied it.

23. Whilst an assessment of the objective seriousness of an offence is an necessary part of the sentencing process, the notion is essentially incommensurable, especially for an offence of one of such inherent seriousness as murder. I consider that the offence here is not to be regarded as falling into the more serious class. I think that the case falls just below the middle of the range. This, of course, yields no particular outcome either rationally or in point of principle, since the ultimate sentence must necessarily be an instinctive synthesis of all the relevant factors, objective and subjective. I bear in mind, as well as the maximum sentence, that the standard non-parole period is a marker for cases falling into the mid-range of objective seriousness and is relevant even for those cases outside that range.

21. I have already dealt with the subjective features which require consideration.

22. Although not provided as soon as practicable, the offender pleaded at a stage well before the trial. I consider a 15 per cent utilitarian discount is appropriate. It was submitted by Mr Young SC that the scale of the offender’s psychological problems, for which she has received no professional assistance, justifies the need for long term supervision to support her ability to cope in the community and reinforce her rehabilitation and that the period on parole derived from the application of s 44 of the Crimes (Sentencing Procedure) Act 1999 would or might be insufficient. To the matters mentioned by Mr Young, I would add the consideration that the likelihood of the offender’s being able to re-establish a positive relationship with her children will be enhanced by an earlier release. I have concluded that there are special circumstances in the offender’s case that justify a variation of the statutory calculus and have given effect to this conclusion in the sentence which is imposed. It is true that supervision is unlikely to exceed three years, but the remaining period on parole will be a deterrent to the commission of further offences. The sentence must commence when the offender was taken into custody, namely 20 April 2014.

Sentence

26. The starting point for the overall sentence is 25 years imprisonment, to which should be applied the 15 per cent utilitarian discount to which I have referred, resulting in a term of 21 years (rounded down). I impose a non-parole period of 12 years commencing on 20 April 2014 and expiring on 19 April 2026. The balance of term of 9 years commences on 20 April 2026 and expires on 19 April 2035.

27. Pursuant to s 25C(1) of the Crimes (High Risk Offenders) Act 2006, I advise you of the existence of the Act and the fact that it applies to you and to this offence.

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Decision last updated: 02 November 2015