R v Whyte
[2004] VSCA 5
•13 February 2004
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 114 of 2002
| THE QUEEN |
| v. |
| LORRAINE ALICE WHYTE |
---
JUDGES: | WINNEKE, P., BONGIORNO and O'BRYAN, A.JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATES OF HEARING: | 2 and 3 February 2004 | |
DATE OF JUDGMENT: | 13 February 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSCA 5 | |
---
Criminal law – Murder – Wife poisoning husband by arsenic – Appellant aged 52 years at time of sentence – Sentence of 22 years with minimum of 18 years not “manifestly excessive” – Appellant administering poison over a period of two years with increasing dosages of poison – Appellant confessing crime after 16 years; and then “recanting confession” – Contesting committal and pleading “not guilty” at trial – Relevance of “remorse” and “delay” to mitigation of sentence – Whether sentence “crushing” – Relevance of the infliction of “torture” to the fixing of appropriate sentence discussed – Appeal dismissed.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. D. J. Ross, Q.C. | K. Robertson, Solicitor for Public Prosecutions |
For the Applicant | Mr. C. C. Boyce | Victoria Legal Aid |
WINNEKE, P.:
On 13 January 1984 Leonard John Moss (“the deceased”) died in the Austin Hospital from the effects of arsenical poisoning. The deceased had become increasingly incapacitated over a period of many months prior to his death, to the point where he was “wheel-chair bound”. He had been married to the appellant for some 18 years before his death. They had three children; Tracey, Colleen and Timothy. Notwithstanding repeated visits to the Bendigo Hospital in the area where the family lived, there had been no definitive diagnosis of arsenical poisoning until shortly before the death. However, the deceased had had symptoms consistent with the administration of arsenic for several years. It was accepted that, in the last 18 months of his life, the deceased was in excruciating pain.
Shortly after the death of the deceased, the appellant, who was then aged approximately 35 years, began a romantic liaison with Robert Whyte, who had been a workmate of the deceased in Bendigo. The appellant married Whyte in 1986. There was evidence before the Court which suggested that the appellant and Whyte were romantically attached not long after the death of the deceased.
Following the death, investigations were made by the Homicide Squad resulting in the appellant being charged with murder in July 1986. An Inquest was conducted; but the Coroner concluded that there was insufficient evidence to commit the appellant for trial. The Homicide Squad detectives had interviewed the appellant following the death of the deceased. The appellant had made a lengthy statement in which she denied involvement, and proclaimed her love for the deceased, pointing to the care which she had taken of him during his debilitating illness.
Following the discharge of the appellant by the Coroner, the killing of the deceased remained unsolved until the year 2000 when the eldest daughter, Tracey, contacted the former head of the Homicide investigating team, and told him that the appellant had apparently confessed to her other daughter Colleen. Colleen confirmed that on 31 March 2000 the appellant had told her that she had “accidentally poisoned” the deceased. On the following Sunday, 2 April 2000, there was a further conversation in which the appellant was said to have confessed to Colleen and her partner that she had killed the deceased. She had also explained that the deceased had been violent towards her and had “drunk his pay away”. She was further alleged to have said that she had killed the deceased for his superannuation pay-out from work. Thereafter, the appellant was alleged to have confessed to others, including her then husband Robert Whyte. Shortly after making these alleged confessions, the appellant took an overdose of tablets and was herself admitted to hospital. It appears that she refused treatment and was admitted to the psychiatric ward of the hospital. During her stay, she confessed her crime to one of the medical staff. The Director of Psychiatric Services at the Bendigo Health Care group interviewed her whilst she was in the hospital; and formed the view that her overdosing was probably due to a combination of factors – financial problems and over-work. There was, in his view, no evidence of a psychotic illness or, indeed, any frank psychiatric illness.
Investigations also revealed that some of the deceased’s co-workers had become ill after eating lunches which the appellant had prepared for the deceased, but which he was unable to eat and had offered to his co-workers.
After the police had become aware of the events which had occurred in April 2000, and had spoken to the daughters of the deceased and the appellant, an arrangement was made to fit a listening device to the daughter Colleen, for the purpose of seeing whether Colleen could entice her mother to repeat the confessions which she was alleged to have made in April. An arrangement was made between Colleen and the appellant for a meeting in December 2000 at the Botanical Gardens in Malmsbury. The recording containing the conversation which ensued between Colleen and her mother was handed to a member of the Homicide Squad on the day of the meeting and was later produced as an exhibit at the trial. The conversation was also reduced to transcript form and the jury had both the recording and the transcript thereof. This Court has only had access to the transcript. It suffices to say that no confessions were made by the appellant to Colleen. On the contrary – and despite the best endeavours of Colleen to provoke such a confession – the appellant appears to have denied that she had killed the deceased.
The appellant was arrested and charged with murder on 17 January 2001. The police endeavoured to conduct a record of interview with her, but she refused to make any comments. Thereafter, there was a contested committal proceeding and, in April 2002, the trial proceeded before a judge and jury in Melbourne. The appellant pleaded not guilty and was represented by counsel. The trial continued for some two weeks during the course of which the appellant’s daughters were called to give evidence and were cross-examined. Although the appellant gave and called no evidence, the case made on her behalf through cross-examination and addresses by counsel was that the death of the deceased was due to accidental poisoning and not at the hands of the appellant; and that the so-called confessions alleged to have been made by the appellant were either not made; or if they were made, were not in the form suggested by the witnesses or, alternatively, were the product of a disordered mind. The evidence led by the prosecution from expert witnesses suggested that the deceased was receiving increased doses of arsenic from October 1983 to January 1984. Chemical testing and analysis at the end of November 1983 showed that the deceased had an arsenic level of 247 parts per million. Dangerous toxicity, so the evidence demonstrated, occurs when the level exceeds 10 parts per million.
The jury convicted the appellant of the murder of the deceased on 19 April 2002. A plea was made on her behalf on 3 May 2002, following which the judge sentenced the appellant to a term of imprisonment of 22 years; and fixed a minimum term of 18 years imprisonment before the appellant would become eligible for parole. At the time of sentence, the appellant was approximately 52 years of age; it being some 18 years after the murder had occurred.
Judge’s reasons for sentence
The appellant has not appealed against her conviction; but on 7 February 2003 she was granted leave to appeal against her sentence by a judge of this Court. Before turning to the grounds of that appeal, it is desirable to say something about his Honour’s reasons for imposing the sentence which he did.
His Honour found that the deceased was a good worker and respected by his workmates, but who nevertheless drank to excess at times. His Honour did not accept the statements which had been made by the appellant to the effect that her deceased husband had been violent towards her, such suggestions being at odds with the evidence of her daughters. Although his Honour was not prepared to conclude that the appellant had been poisoning the deceased from 1978, when the symptoms first occurred, he was satisfied that she was administering poison to him from 1982 when the deceased was suffering regular patterns of illness. His Honour said:
“I am satisfied beyond reasonable doubt that you were poisoning him with arsenic from about August 1982. You were feeding him regular doses of arsenic which were playing havoc with his state of health.”
In support of that finding, his Honour referred to the evidence of the deceased’s condition when he was forced to leave work in May 1983 and was admitted to the Bendigo Hospital. His Honour said:
“… He was speaking strangely, slurring his words, and his right eye was rolling in his head. His tongue was hanging out and he was blue in the face.”
His Honour noted that the medical profession had not been up to the task of appreciating the cause of the deceased’s symptoms until late in the piece. This had allowed the appellant to continue the poisoning; a process which his Honour described as “torturing him to death”. Rather than lovingly caring for her husband, as the appellant was then pretending, she was, in a calculated fashion, killing him, thus leading his Honour to state:
“Your wickedness knew no bounds.”
By July 1983, the deceased had difficulty in walking and in holding things. By the end of that month he could only walk with a frame; and by August he needed a wheel chair. He had numbness in his extremities and, although in August 1983, testing had been carried out at the Austin Hospital and showed significant levels of arsenic and lead in the body, those results apparently never caught up with his medical file until very shortly before his death. This “carelessness”, as his Honour called it, played into the hands of the appellant who was able to continue her activities unchecked. The judge further found that the scientific evidence established that the appellant was “increasing the dosage” from approximately October 1983 in a determined attempt to kill the deceased.
His Honour described the crime in the following manner:
“Your conduct over a period of about 15 months ensured the progressive destruction of the father of your children in the most excruciating, distressing circumstances … . Your level of criminality is high, the offence of murder is serious and, in this case, made more so by your pre-meditation, your conduct over a prolonged period, your heartlessness, your lack of concern for your children’s well-being and your determination to kill your husband in the most painful way. You, truly, tortured him to death.”
His Honour accepted the evidence which was before him to the effect that, shortly after the death, the appellant had adopted a completely different lifestyle – dyeing her hair blond, wearing short dresses and bringing into the open her friendship with her deceased husband’s workmate, Robbie Whyte, to whom the appellant has now been married for many years. His Honour referred to the confessions which were said to have commenced in the year 2000 and which, as he noted, were partly attributed to a misplaced belief on the part of the appellant that she could not be charged with the murder after a lapse of 15 years. His Honour also attributed those confessions to “a conscience” which was troubling her. Those confessions, his Honour noted, had had a “devastating effect” on the younger daughter, Colleen. His Honour was satisfied that the appellant had confessed to others at or about the same time; but had then “decided to clam up and continue the lie of the previous 16 years”. It was that attitude, his Honour said, which has “continued … until today”. His Honour said that he found little evidence of remorse (my emphasis). However, although he regarded “financial return” as one of the motives, he did not regard it as the main one. Rather, his Honour said, there was a deep level of hatred, the cause of which had never been adequately explained.
Counsel, on the plea, had put before his Honour a report from Dr. Ruth Vine, a consultant psychiatrist, which report had been sought by the appellant’s solicitors after conviction but prior to sentence. His Honour concluded that several of the statements which had been made to Dr. Vine by the appellant were self-serving and contrary to the evidence; particularly the assertion that she did not become emotionally involved with Bob Whyte for “several months” after the death of the deceased. His Honour regarded the appellant as a person who was “selective” in her recall and was prepared to lie if it suited her interests. There was no evidence, he found, suggesting that the deceased was violent towards her; and she had not suggested as much to the police officers in her record of interview. Furthermore, he noted that, although the daughters had described their father, in evidence, as a “caring loving father and a good family man” it had never been put to them that he was violent to their mother. Yet that had been her description of him to Dr. Vine, a description taken up by counsel on the plea. His Honour was not prepared to accept that description, although he was prepared to accept that the deceased was at times “authoritarian”, that he drank often and was, occasionally, verbally abusive towards the appellant.
In his concluding sentencing remarks, his Honour carefully considered the provisions of the Sentencing Act relevant to his task, and the matters which he should weigh in the balance in fixing an appropriate sentence. He said that he regarded the crime as a serious example of its type; and that it was aggravated by the pre-meditation, the time over which the deceased was poisoned, the degree of his suffering and the devastation caused to the children. It was a crime, his Honour said, “at the highest level of criminal culpability”. He said that, although there was some remorse shown (my emphasis), it was of little weight because, having confessed in 2000, she thereafter continued to maintain her lie within weeks.
His Honour accepted that the appellant had been a devoted wife to Mr. Whyte for many years and that, apart from this crime, she was a person of otherwise good character. However, he did not regard the “delay” in bringing the appellant to justice as a significant mitigating factor, because it had been caused by the appellant’s own conduct (my emphasis). There were, nevertheless, related factors of mitigation which the judge was satisfied should be taken into account. A significant one of these was the fact that the appellant had suffered punishment as a consequence of her actions progressively weighing upon her conscience to the point where, by the year 2000, she was suffering from depression and distress. This had been compounded, his Honour believed, by her realization that the death of the deceased had destroyed her family life; causing the loss of society with her children. This “stress and upset”, in his Honour’s view, represented punishment in themselves; one which would continue. The children, his Honour said, were now “firmly united” against the appellant; and that this “punishment” had already been suffered by her for at least two years before the trial and would continue into the future. His Honour also took account of the appellant’s age and the fact that the term of imprisonment which he regarded as necessary to impose “will cover much of the last years of your life”. His Honour said:
“These factors must be viewed in the light of the very serious nature of the crime. I take those matters into account in determining the appropriate sentence proportionate to the gravity of the crime.”
His Honour also said that he would take into account the fact that the appellant had confessed to Colleen, and had thus started the chain of events leading to the arrest. That was a matter, his Honour said, that he would “take into account in your favour”.
It was, nevertheless, his Honour’s view that the appellant’s culpability was “at the highest end of the range”. In determining what his Honour regarded as an appropriate and proportionate sentence, he said that it was necessary to impose a sentence which manifested “a denunciation of your type of conduct” and one which would deter others from pursuing a similar course of conduct. However, he said, there was no need to reflect specific deterrence in the penalty, accepting that her prospects of rehabilitation were good. His Honour concluded by saying:
“There has never been an open season on spouses and partners and there never will be. This court must send a clear message to those who wish to rid themselves of a troublesome partner. … Invariably, the crime is committed with pre-meditation, as indeed was the case here.”
Having pronounced the penalty of 22 years with a minimum of 18 years, his Honour declared, pursuant to the relevant provisions of the Sentencing Act, that the appellant had already served a period of 485 days pursuant to the sentence.
Grounds of Appeal
Mr. Boyce, who represented the appellant on the appeal (although he was not counsel at the trial), argued three grounds in the following order:
(a)That his Honour had erred in his findings that the appellant was not remorseful;
(b)That the judge had erred in finding that in the circumstances, delay was of little significance for sentencing purposes;
(c)That the sentence imposed was manifestly excessive.
Remorse
Mr. Boyce submitted that his Honour was in error in concluding that there was “little or no remorse”. His Honour’s reasons for so concluding were evident from his recitation of the evidence and the facts. Although, as he said, he was prepared to give credit to the appellant for the fact that her confessions in the early part of the year 2000 had ultimately led to her arrest and conviction, he did not regard that such “remorse” as he found could figure large in the sentencing process because she had maintained her denials over a period of 16 years up until the year 2000 and, having made confessions early in that year, had then “clammed up” and “maintained the lie”. Even then, as his Honour noted, the confessions were accompanied by protestations of self-justification and other lies and the maintenance of innocence throughout the trial.
As I understood the argument, Mr. Boyce submitted that, properly appreciated, the material before him did not support his Honour’s conclusion. Mr. Boyce put before this Court substantial extracts from the evidence given upon the trial, including the transcript of the conversation between the appellant and Colleen at the Malmsbury Gardens on 20 December 2000; and substantial portions of the evidence given by the witnesses including the daughters Tracey and Colleen. Mr. Boyce contended that a proper appreciation of this material should have led his Honour to the conclusion that in the year 2000, when the appellant made her confessions, she was truly remorseful for what she had done. She had demonstrated her desire to “unburden herself” in April 2000 when she had taken an overdose of pills and had thereafter confessed to hospital staff. He put that even in December 2000, when Colleen was seeking to get further concessions without success, it was apparent that she was still exhibiting guilt; in itself a reflection of remorse. Furthermore, so Mr. Boyce submitted, her conduct thereafter, including her refusal to comment in the interview with police and standing mute at her trial, was doing no more than putting the prosecution to proof of the offence. This was, so it was submitted, consistent with her remorse which had for some time been demonstrated by the applicant for her crime.
For my own part, I can see no error in his Honour’s approach to the question of remorse. In the first place it should be recognized that his Honour was the person in the best position to determine whether the appellant was being truly remorseful; something which, in this case, had to be carefully distinguished from “self pity”. His Honour had heard all the evidence given at trial, the arguments made by counsel in defence of the appellant, and the strong cross-examination which was made by counsel of the witnesses. This was not, in my view, simply a case of “putting the prosecution to its proof”; this was a case where defence counsel, through address and cross-examination, was contending that the appellant was innocent of the crime alleged against her and, in the course of making those contentions, strongly cross-examined the witnesses – including the daughters of the appellant. Remorse, or contrition for conduct, can be a factor which can be taken into account in mitigation of a sentence; but in the long run the person who is best qualified to find its presence or absence must be the trial judge whose findings in this respect, in the absence of glaring error, will rarely be interfered with by an appellate court. It has been said, in my opinion properly, that it is rare to find convincing evidence of genuine remorse[1]. Indeed, remorse is an elusive concept which is not to be confused with such emotions as self-pity[2].
[1]R. v. Kevich, Court of Criminal Appeal (Vic.), Unreported, 25 November 1977.
[2]cf. R. v. Sellen (1991) 57 A.Crim.R. 294.
It is true, as Mr. Boyce pointed out, that the mere fact that an accused person puts the prosecution to its proof is not necessarily an indication of lack of repentance[3]; but it is conduct which is more readily susceptible to the finding of lack of, or depreciation in, remorse than full acceptance of guilt. That is why the Sentencing Act 1991, s.5(2C) empowers the Court to have regard to the conduct of an offender “on or in connection with the trial as an indication of remorse or lack of remorse on his or her part”. His Honour was aware of the various factors bearing on the issue of remorse, or the lack of it. For my own part, I can see no error in his conclusion that the appellant was entitled to have taken into account the fact that she had made, in April 2000, a confession of her part in the crime, which ultimately led to her arrest[4]; but he was also entitled to conclude that her subsequent conduct indicated a determination “to maintain the lie”. As I have said, I cannot accept Mr. Boyce’s contention that the attitude of the appellant in the conversation with her daughter in December 2000; and her attitude at the committal proceedings and at trial should have been regarded by his Honour as conduct consistent with a continuation of a remorseful attitude. Her conduct was far more consistent, in my view, with his Honour’s conclusion that her “pricked conscience” had brought her to a short lived point of repentance, followed by a renewed resolution to “tough it out”. She was given credit, in the sentencing process, for the consequences of the “point of repentance”; and she was given credit for the fact that she would have to live with the consequences of what she had done for the rest of her life. It was those factors which became relevant to the sentencing process and not the remorse which is now claimed. She was quite content to put her daughters through the ordeal of the trial; to the point where their evidence was strongly challenged by counsel on her behalf[5].
[3]cf. R. v. Gray [1977] V.R. 225 at p.231.
[4]cf. R. v. Ellis (1986) 6 N.S.W.L.R. 603.
[5]cf. R. v. R.N.D. [2002] VSCA 192 at [23]-[24] per Eames, J.A.
For the reasons given, I would reject this ground of appeal.
Delay
This was a ground which the appellant had initially indicated would not be argued. However, shortly before the hearing of the appeal, Mr. Boyce advanced a supplementary outline of argument in support of the ground initially taken that his Honour was in error in not giving proper weight to the element of delay. Mr. Boyce argued that his Honour was wrong to conclude that little account could be taken of the delay in the circumstances of this case where, in effect, it had been “self-inflicted” by the appellant. Even though the delay in the prosecution of the appellant, so Mr. Boyce conceded, could not be blamed on the prosecution, he nevertheless submitted that the impact on the appellant of being placed in prison so many years after the events occurred was a matter of significance to which his Honour should have given appropriate weight in the sentencing process. He submitted that the appellant had been charged with the murder of the deceased fairly shortly after his death; and that it was clear on the evidence that from the point of her discharge at committal until the date of her confession in 2000, the appellant had lived with a great deal of uncertainty as to her future, believing that she was under surveillance at all times.
Once again, I do not think his Honour erred in according to the fact of “delay” little significance. Delay will very frequently be a matter of mitigation, particularly where the accused has used the time involved to rehabilitate himself or herself. For the respondent, Mr. Ross contended that the concept of delay as a mitigating factor cannot figure largely in the sentencing process where the delay is “self-inflicted”; rather it will become a major mitigating factor if the delay was not due to the fault of the accused but rather the fault of the prosecuting authority or the system of the administration of justice[6]. Where, however, the delay cannot be sheeted home to the prosecution or the system, but can be fairly attributed to the accused, such as absconding from bail, fleeing the jurisdiction or otherwise avoiding being brought to justice, delay must necessarily become of less significance, even to the point of giving less credit for rehabilitation established during that period[7]. As the New South Wales Court of Criminal Appeal said in Shore[8]:
“There is a clear distinction on the one hand between cases such as Todd (supra) where delay occurs because of circumstances entirely outside the offender’s control … and, on the other hand, cases such as the present where the only cause of delay was the applicant’s flight to avoid the consequences of his … criminality. To allow leniency because of delay alone would be … to place a premium on absconding and would be entirely contrary to the public interest. The proper course is that adopted by the sentencing judge in Kukunoski …, and approved in this Court, which allows the sentencing judge to recognize the unhappy condition of an accused person living as a fugitive would always fear that his crime might be brought against him, but not to encourage absconding by affording any additional leniency in relation to it.”
[6]cf. R. v. Miceli (1997) 94 A.Crim.R. 327; R. v. Todd (1982) 2 N.S.W.L.R. 517 at 519.
[7]See R. v. Thompson (1987) 37 A.Crim.R. 97 at 100 per Street, C.J.
[8](1992) 66 A.Crim.R. 37 at 47.
Likewise, as in this case, offenders should not be given credit for preventing justice from taking its course by concealing the truth from investigating authorities. Of course persons accused of crime are entitled to maintain their silence, but if they profit as a consequence, it is intolerable to think that the profit is to be compounded by a reduction in the ultimate sentence. Staleness and delay can be significant sentencing factors but, as Angel, J. has pointed out in Braham[9], that will not always be so. In this case the judge gave the applicant the benefit of the reclamation which the appellant had achieved during the intervening years of silence; a silence which she maintained to the ultimate prejudice generated by her own conscience and the loss of family support. Those factors were taken into account by his Honour as factors mitigating the punishment to be otherwise imposed. I can see no error in his Honour’s conclusions in respect of this matter and I would reject this ground of appeal.
[9](1994) 73 A.Crim.R. 353 at 365
Manifest excess
As Mr. Boyce correctly recognized, this ground does not admit of much argument. The submission largely centred around the age of the appellant at the date of sentence. Her age, of course, was the product of the delay between the commission of the crime and the trial; a delay which, for the reasons I have already given, could not be laid at the door of the prosecution or the system of justice administration; but rather due to the silence maintained by the appellant. Nevertheless there are or may be circumstances where the appellate court will interfere with the sentence on the grounds of “manifest excess” if it is satisfied that in the circumstances the sentence is “crushing”. Mr. Boyce contended in this Court that such was the case here where, so he submitted, the appellant will not become eligible for parole until she is approximately 70 years of age and thus deprived of a useful part of her life.
The significance of the length of sentence imposed on the appellant was not lost upon his Honour. He nevertheless took the view that he was bound to impose a sentence of the order which he did, because anything less would, in his view, have been incommensurable with the shocking nature of the murder. Mr. Ross, who appeared for the respondent, submitted – I think with justification – that his Honour was justified in describing the conduct of the appellant in administering the poison over a prolonged period to her ever ailing husband as a wicked and despicable murder amounting to a literal “torture to the death”.
Whilst, of course, sentencing judges must be astute to pay due attention to the age of an accused person, they must also be careful to ensure that confidence in the administration of justice is maintained by imposing sentences which reflect the gravity of the crime which is being punished. This is particularly so in a case like the present one where the sentence needed to reflect the basic principal that the sanctity of human life remains paramount[10]. Mercy will sometimes be afforded to offenders of advanced age because it is recognized that each year of the sentence imposed represents a significant proportion of the life left to an aged offender. In R. v.Yates[11], a case where the accused had pleaded guilty to charges of buggery, a majority of the Full Court of five judges (Murphy, J. dissenting) considered that a sentence of 10 years with a minimum of 8 years imposed upon a man of 68 years of age was a “crushing sentence”, in the sense that it connoted “the destruction of any reasonable expectation of useful life after release”. However, as the Court of Criminal Appeal recognized in R. v. Bazley[12] (a case in which a 67 year old ailing man had been convicted of two counts of murder), the Court of Criminal Appeal in this State said that whilst age would always be a relevant sentencing factor, it could never be a justification for an unacceptably inappropriate sentence. The Court approved the statement of Crockett, J. in R. v. Crowley & Garner[13] that:
“… It does not follow that every sentence which justifiably deserves that epithet [i.e. “crushing”] must on that account alone be held to be manifestly excessive. There will, in my view, be cases in which the offender has by his criminal act or acts forfeited his right to any such hope or expectation.”
In such cases, the Court said that it would be inappropriate to approach the selection of a proper minimum term from the point of view that, because of the offender’s age, there was a need to grant some measure of life after release. Such an approach, it was said, would mean that general deterrence and retribution would receive insufficient weight.
[10]cf. D.P.P. v. Whiteside & Dieber [2000] 1 V.R. 331 at 337.
[11][1985] V.R. 41.
[12](1993) 65 A.Crim.R. 154.
[13](1991) 55 A.Crim.R. 201 at 206.
In the light of these principles, I cannot accept that the sentence which the learned trial judge here imposed was manifestly excessive. Most cases of murder by poisoning are reprehensible; and, at least in this State, have been few and far between. But, on any view, this murder was a particularly reprehensible crime involving – as his Honour correctly pointed out – a premeditated administration of a slow killing poison in ever increasing quantities over a period of nearly two years; bringing with it excruciating agony to its victim and ultimately leading – as intended – to his death. The only proper description of the crime was the one attributed to it by his Honour; namely that a woman who was pretending to care for her ailing husband was in fact torturing him to a slow death. Very recently, in the case of Director of Public Prosecutions v. Arkan & Anor.[14], this Court had cause to reflect upon the sentences which are imposed upon those who commit brutal murders involving the infliction of torture. Although the Court dismissed a Director’s appeal against a sentence imposed of 21 years with a minimum of 17 years upon an accused who had inflicted senseless torture upon an old victim before he died, Ormiston, J.A. (at paragraph {25]) said of the sentence that it was one:
“… at the very lowest end of that range, for this kind of killing, motivated essentially by greed but involving the brutal and vicious drawn out torture of the victim.”
His Honour went on to say that such a crime would ordinarily attract a significantly higher sentence. I expressed my agreement with these views stating (at paragraph [2]) that the sentences imposed upon both respondents “were at the lowest end of the range of sentences which the trial judge could reasonably have imposed for a murder of this kind”, and that it was “only the restraints emanating from principles of double jeopardy … which govern Director’s appeals” which had led me to the view that the appeals against the sentences should be dismissed.
[14][2003] VSCA 170.
Like his Honour, I am conscious that a significant part of the appellant’s useful life will be gone by the time she is eligible for parole. However, the nature of her crime compels me to the view that his Honour was entitled to impose a sentence of the order which he did without it being labelled as “crushing”. In my opinion, the sentence was proportionate to the nature of the crime committed and is not manifestly excessive. I would accordingly reject this ground and with it the appeal against sentence.
BONGIORNO, A.J.A.:
I have read the judgment of the President. I agree with it and I have nothing to add.
O’BRYAN, A.J.A.:
I have read the draft reasons for judgment written by the President and agree that the application should be dismissed for the reasons given by his Honour.
42