R v Whyte
[2002] VSC 146
•3 May 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT BENDIGO
CRIMINAL DIVISION
No. 1410 of 2001
| THE QUEEN |
| v |
| LORRAINE ALICE WHYTE |
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JUDGE: | Gillard J | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 3 May 2002 | |
DATE OF SENTENCE: | 3 May 2002 | |
CASE MAY BE CITED AS: | R v Whyte | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 146 | |
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Criminal Law – Sentence
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B. Morgan-Payler QC | Office of Public Prosecutions |
| For the Accused | Mr D. Brustman | Victoria Legal Aid |
HIS HONOUR:
Lorraine Alice Whyte, the jury has found you guilty of the murder of your first husband, Leonard John Moss ("the deceased"), who died on 13 January 1984. It now falls on me to sentence you.
My task is to determine the facts consistent with the jury's verdict and applying the principles of law concerning sentencing, I determine in the exercise of my discretion what is a proportionate and appropriate sentence in the circumstances.
In relation to the sentencing process, I note the observations of the Court of Appeal in R v Storey (1998) 1 VR 359 at 366, where four members of the Court said:
"Sentencing is not a mechanical process, it requires the exercise of a discretion. There is no single right answer which can be determined by the application of principle. Different minds will attribute different weight to various facts in arriving at the 'instinctive synthesis' which takes into account the various purposes for which sentences are imposed: just punishment, deterrence, rehabilitation, denunciation, protection of the community, and which pays due regard to the principles of totality, parity, parsimony and the like."
At the outset, it is necessary for me to determine the facts consistent with the verdict of the jury. It is a trite proposition that the verdict establishes that the jury were satisfied of each of the elements constituting the crime of murder beyond reasonable doubt. You did not give any evidence at the trial, nor was any evidence called on your behalf. Your counsel relied upon the out of court statements made by you which were adduced into evidence as part of the Crown case, hence the Crown case was not expressly contradicted by any direct evidence. The effect of the statements made by you to members of the police force and others was that you did not poison your late husband. You made other statements which did implicate you in the death of your first husband.
The verdict establishes that the jury found you killed the deceased, who died from arsenic poisoning. You caused his death by acts which were conscious, voluntary and deliberate, and were done either with the intention to kill or with the intention to cause the deceased really serious injury. The verdict establishes those basic facts but there were facts before the Court which are particularly relevant to the question of sentence and which are not necessarily established by the verdict. They are matters of premeditation, planning, opportunity, motive, and aggravating and mitigating circumstances - see R v Prokopiec (1982) 7 A Crim R 116 at 119.
The Judge's sentencing task was stated by the Full Court in R v Harris (1961) VR 236. Lowe J said at p.236:
"The responsibility of awarding punishment once a jury have convicted a prisoner lies solely upon the Judge. He has to form his own view of the facts and to decide how serious the crime is that has been committed and how severely or how leniently he should deal with the offender. The learned Judge, in forming his view of the facts, must not of course form a view which conflicts with the verdict of the jury, but so long as he keeps within those limits it is for him, and him alone, to form his judgment of the facts. He has presided at the trial and he has seen the witnesses and has seen how the trial has progressed and he can form his own judgment of the seriousness or other character of the offence".
See also R v Webb (1971) VR 147 at 152-3 and R v Hill (1979) VR 311 at 312.
In carrying out the task, the trial judge is not bound to take the most lenient view of the facts which would support the verdict. See R v Harris, supra, at p.237, and R v Hill, supra, at p.312.
As the judge presiding at your trial, I have had the opportunity of considering the evidence and forming an opinion as to the credibility of witnesses and my own view of the facts.
Although the majority of the witnesses were cross-examined by your counsel, save for Ms Nancy Arthur, there was no real suggestion that any witness was not doing his or her best to tell the truth. Most of the events occurred in the period 1978 to 1986 and hence, there were issues of recollection and memory.
Your counsel did not elicit evidence in support of your case and by and large, there was no real dispute in respect to most of the evidence. It was put to the witness, Nancy Arthur, that she had fabricated her evidence. It was asserted that you did not know her. I do not accept the attack upon her. In my opinion, she was truthful, doing her best to remember events which occurred some 30 years ago. Her evidence was to the effect that she knew you as a neighbour for some years and that each of you visited each other's house often. I accept that her evidence was substantially correct. I am reinforced in that view by the fact that you did not give any evidence to contradict what she said.
It is also noted that a neighbour, Mrs Murray, who knew you well and described herself as your friend, gave evidence that she observed you and Miss Arthur in each other's company, opposite your house.
In reaching my view of the facts, I also take into account that you did not give evidence. The case against you was mainly circumstantial and you were the one person who could answer the question on oath, "did you administer poison to your first husband?" You chose the dock instead of the witness box and accordingly, I am entitled to more readily draw inferences against you, which are established by the evidence and are consistent with the finding of guilt.
In reaching my conclusion as to the facts consistent with the verdict of the jury, I accept that matters which are adverse to your interests and which are not inherent in the verdict, must be established beyond reasonable doubt.
On the other hand, if there are circumstances which I can take into account in your favour, it is enough if those circumstances are proven on the balance of probabilities. See R v Storey, supra, and R v Olbrich (1999) 199 CLR 270.
That is not to say that every fact has to be established to that degree, but any facts which establish a relevant issue in the sentencing process, which is adverse to your interests, must be proven beyond reasonable doubt, if not inherent in the verdict.
The principles I have just set out have recently been reaffirmed by the High Court in R v Cheung (2002) 76 ALJR 133.
Turning to the facts, you were married to the deceased in 1966 and there were three children of the union. They were Tracey, born on 16 August 1966; Colleen, born on 26 January 1968; and Timothy, born on 22 December 1970. You were born on 19 December 1948 and were 35 years of age when your husband died. He was 38 years of age at his death.
I accept the evidence of Ms Arthur that in the early 1970s, you told her that the way to get rid of a violent husband was to sprinkle Ratsack in his tea over a period of time. You told her that he would not know if he was drunk, which evidently he was, often. You gave her this advice on a number of occasions. It shows an awareness of the use of poison to get rid of an unwanted partner.
You also told her, when you complained about your husband and she suggested you should leave, that you would not give up your house. You were then aged in your early 20s.
Your husband was, on the evidence, a good worker, employed as a slaughterman at Mayfair Hams, well respected by his fellow workers, friendly and sociable and was fond of a beer. It appears he drank most days of the week and from time to time, got drunk. He had a circle of friends who would drop in at home to see him. He was a keen gardener, growing vegetables and fruit trees. He was careful with poisons.
Your daughters portray him as a good father, a good family man and a loving husband. You were portrayed as a home person with few friends, whose one interest was ten pin bowling. You were also described as a good and supportive mother.
Yet the facts suggest a darker side to the marriage. The fact that you poisoned him from about late 1982 to 11 January 1984 suggests a deep hatred of him and a desire to punish and destroy him. At times, you have suggested to others that he was occasionally violent towards you and that you were unhappy that he spent money on beer and smokes, when money was tight. You complained that there was never enough money in the house.
During the course of the marriage, you did work as a domestic and home help.
Despite the suggestion of violence on occasions, no witness, other than your sister, gave evidence of any suggested violence and that evidence was confined to you displaying some bruises in the early 1970s. You told your sister that you had had an accident.
There is some evidence that you had a scar on your head, but the cause of it is in doubt. You told your children it was the result of an accident, but later, after the death of the deceased, you suggested he caused it. I do not accept your later statement.
Your daughters, in evidence, did not support your suggestion of violence. In the light of the evidence, I am not prepared to find that he was physically violent towards you, but I will say a bit more about this, when I consider what you have told Dr Vine and what your counsel has submitted to me today.
In November 1978, your husband experienced his first serious illness. He became very ill and was admitted to the Bendigo Hospital. His symptoms were fever, lethargy, ill-health, joint problems, sore muscles, diarrhoea, vomiting and tender abdomen. He was very ill for many days. It was thought that he had gastroenteritis. His symptoms were consistent with arsenic poisoning but the symptoms could have been due to something else. The circumstances are indeed highly suspicious, but I am not prepared to find beyond reasonable doubt that you were poisoning him as early as 1978.
History tells us that in the 19th and early 20th centuries, arsenic was used as a poison to kill people. Its advantage was that it was hard to detect. Evidently, it was a common method of killing unwanted persons until chemical methods of detection were developed. Poisoning may result from a single large dose, and this is known as acute poisoning, or from repeated small doses over a period of time, and this is known as chronic poisoning.
Symptoms of acute poisoning include nausea, vomiting, burning of mouth and throat and severe abdominal pains. Circulation collapse quickly occurs, followed by death. On the other hand, persons who are exposed over a period time usually demonstrate effects of, destruction of red blood cells, damage to kidneys, gradual loss of strength, diarrhoea, pigmentation and skin rash, nervous manifestations marked by the paralysis of limbs, confusion, degeneration of fatty tissue, anaemia, and the development of streaks across the fingernails, known as Mees' lines.
In the year 1982, the deceased was suffering from regular patterns of illness. He complained to his workmates and suffered bouts of illness whilst at work. Arsenic is odourless, tasteless and does not dissolve in fluids. It is apparent from the evidence that you were poisoning your husband over an extensive period of time. You placed arsenic in his lunches on occasions. Sometimes he would complain to his workmates about the taste of his lunches and often, would be very critical and throw the lunch away. Two of his workmates, bachelors who were only too happy to have a home cooked meal, ate his lunches and suffered extreme illness lasting for weeks. Their symptoms were similar to the symptoms suffered by your late husband and with hindsight, they were clearly symptoms of arsenic poisoning.
I am satisfied beyond reasonable doubt that by 1982, you were systematically and regularly poisoning your husband with arsenic. Consistent with the views of the experts, he was building up some resistance, which explains his ability to keep going. The same could not be said of his workmates who, having been poisoned, were violently ill for weeks, and in the case of one person, took eight months to recover.
In September 1982, the deceased was again violently ill and consulted a general practitioner thirteen times between 6 September 1982 and 4 November 1982. A large number of tests were taken but the cause was still a mystery. It was thought that he may have had leptosperosis, which is a viral disease which can be caused by exposure to pigs' urine. Your husband and his workmates were slaughtering pigs at Mayfair Hams. The symptoms turned out to be classic symptoms of arsenic poisoning. He was very sweaty, especially at night, confused, suffering malaise, cramping stomach, fever, headaches, muscle soreness, sore throat, rash and cough. Taking into account the later events, 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.
His illness and symptoms continued in 1983 and he gradually got worse. He would go to work, suffer a relapse, rest, return to work, and then again suffer an illness. This went on for some five to six months. By May 1983, he was so ill he could not work. He ceased work and never returned. His work record to that date was good, save for the mystery illness which he suffered in September 1982. He was highly thought of at the works. He had been elected a union representative by his workmates. This demonstrated the respect that was held of him by his 50 workmates.
By May 1983, he was so ill that life became a living hell, getting worse and worse each day. In that month, he was admitted to Bendigo Hospital for two weeks. He was speaking strangely, slurring words, and his right eye was rolling in his head. His tongue was hanging out and he was blue in the face. That is a description that you gave to the police, as to how he was in May 1983. You said he was so bad, he was too weak to hold a knife.
The doctors were mystified, but you knew; you were torturing him to death. He had all the symptoms of arsenic poisoning. That was not appreciated by the medical profession. Despite the excruciating effect the poison was having on his body, you continued to administer it. He improved a little while he was in hospital in May, but on his discharge, he became worse. You were continuing your nefarious practices.
Some time during the year 1983, you took your daughter, Colleen, then aged 14 years, to the Bendigo Library to acquire books on poisons. You told Colleen that you were anxious to find out what was wrong with her father and to see whether you could do something that the doctors could not do, namely, find a cure. In my view, the real reason was because you wanted to know more about poisons and their effects. What amount of arsenic is required to gradually kill a person, or kill a person with one dose, is something the average person would have no knowledge of. Instead of seeking to help your husband, what you were seeking was information as to what quantity was needed to kill him. Your wickedness knew no bounds.
He again relapsed and on 20 June 1983, he was admitted to the Austin Hospital. He was suffering from anaemia. It was thought that he may have had glandular fever. He had problems with his peripheral nerves. He was developing problems with sensation in his fingers and feet. His bone marrow was not working properly. The doctors could not find any infection. They could not find any evidence of malignancy or tumour. He had episodes of confusion and delusions. These features were consistent with arsenic poisoning.
The hospital investigated, looking for causes, but could not find one. It was all very confusing to the medical profession. Whilst there, there was some improvement and his rash disappeared. He was discharged eleven days later. It was not surprising that he was showing some improvement because his body was not being bombarded with arsenic. But he was back again in hospital on 7 July 1983 and he stayed there for six weeks. More intensive investigations were carried out but without determining the cause.
In July, he described increased numbness to knees, difficulty walking and holding things. There was numbness in his hands. It was thought that there may be some problem with his nerves. By 20 July 1983, he could only walk with a frame. He had decreased power in his hands and feet and had foot drop. He was dragging his toes. He was in a very disabled state. By August, he required a wheelchair. He was discharged home on 17 August.
It was at this stage that somebody in the medical profession or involved in the administration at the Austin Hospital, badly let him down. A test was taken during August 1983 which showed significant levels of arsenic and lead in his body. However, the test results never caught up with his file until January 1984, by which time it was too late. This gross carelessness played into your hands; you were able to continue your callous, heartless activities, unchecked and undetected.
By this time, he was very ill, an invalid who relied upon you for everything. His health gradually deteriorated. He used a walking frame and then eventually, he could not walk at all. The effect upon his emotional state must have been enormous and for those watching him getting worse, a very distressing scene. The effect upon your three children, then aged 17, 15 and 13, must have been devastating, to see their father, a man who I have no doubt was physically active, strong-willed and determined and a good father, becoming a totally disabled man, weak, and in excruciating pain. This must have had an enormous effect upon the emotional well-being of your children.
Despite this distressing situation, you continued to give him arsenic. The evidence establishes that you were increasing the portions of arsenic from about mid-October 1983. There is no doubt at that stage that you were determined to eventually kill him.
A hair removed from the deceased's head after death, was subjected to scanning, electronic microscopy, which is neutron activation analysis. It is done using a nuclear reactor and is a very sensitive analytical tool.
Mr Goulding, a retired analytical chemist, carried out tests in 1984 on the hair sample. The analysis showed that the deceased, during the last two weeks of his life, that is, in January 1984, had received a dose of arsenic to a level of 189 parts per million. In the last two weeks of December 1983, he received a dose of 169 parts per million. In the first two weeks of December, a dose of 131 parts per million and the last two weeks of November, a very large dose of 247 parts per million.
Mr Goulding was able to show the readings prior to that over a period of time and they demonstrated an increase in the size of the doses from about mid-October 1983. In addition, there was evidence of the Mees' lines being observed on the deceased's fingernails in September 1983, which demonstrated, according to Professor Drummer, another expert, that over the three month period prior to September 1983, the deceased was receiving on a regular basis, substantial doses of arsenic.
In order to appreciate the quantity of arsenic in his body, the level of arsenic naturally occurring in the average human being is somewhere in the vicinity of four parts per million, with a top of about ten. Anything above that is potentially dangerous.
In the last four months of his life, the deceased was a complete invalid, incapable of doing anything for himself. He could not walk. You described the situation as follows, in an interview conducted by the police:
"He was unable to walk and was wheelchair bound. He could move his hands, but he had no feeling in them. He would go out into the garden and lay on a mattress."
During this time, your whole energies were devoted to looking after him. You were required to do everything for him. This included washing, feeding, shaving him and combing his hair. During this time, he never walked by himself. He had to use a wheelchair, walking frame and crutches. Eventually, he could not walk at all.
You were caring for him on a full-time basis. You were nursing him, but you were not nursing him to health, you were nursing him to certain death. You were making sure that he died.
It is hard to think of a more callous, heartless, wicked person. Your husband was suffering excruciating pain, he was getting weaker and weaker, nobody knew why, yet you continued to feed him large doses of arsenic. As I have said, the effect upon your children must have been devastating, yet you persevered. You had no compassion, you were heartless. You were hell-bent on finally killing him. You gave him a number of massive doses of arsenic in the last months of his life.
You did succeed in killing him. He died on 13 January 1984. On his last admission to the Austin Hospital, he was still vomiting, had stomach pains, was confused, disoriented, hallucinating, could not walk and was suffering from skin problems. It was at that time that the August test results of the year before caught up with his file, and there was a realisation that he was suffering from chronic arsenic poisoning.
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. As I have said, your wickedness knew no bounds. Your level of criminality is high.
The offence of murder is serious and in this case, made more so by your premeditation, 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.
Soon after his death, you adopted a completely different lifestyle. You dyed your hair, wore revealing clothes and brought out into the open a friendship with Bobby Whyte, whom you later married.
You were charged with the offence of murder in 1986 and were extremely fortunate to be discharged after a Coronial inquest in that year. Two of your children, thereafter, had very little to do with you. Your daughter, Colleen, no doubt having her suspicions, stuck by you, not wanting to think that you killed her father.
In late March 2000, you decided to confess. You were suffering under the misapprehension that you could not be prosecuted after 15 years. How wrong you were. I have no doubt that by this time, your conscience was troubling you. You confessed to Colleen on 1 April 2000. It had a devastating effect upon her. You confessed to a number of other persons over the next few days and then you decided to clam up and continue the lie of the previous 16 years. You have continued that lie until today.
There is very little evidence of any remorse. Despite your confessions, you pleaded not guilty.
Turning to your motives for committing this abominable crime, I am satisfied that the financial return was one, but I do not believe it was the main one. According to the evidence, you received approximately $14,000 in 1987 for superannuation and to you, in 1983, this represented, no doubt, a large sum and a temptation.
You may have also gained other benefits, such as an interest in the matrimonial home, but there is no evidence of that. However, there was evidence that in the early 1970s, you expressed the view that you would not leave your husband and thereby give up your house.
Your liaison with Bobby Whyte blossomed very soon after the death and in my opinion, the seeds of it were sown during the latter part of 1983. I do not believe there was any relationship between you and him in 1982, but in the latter months of 1983, the thought of a relationship was something that spurred you on to commit the final acts. Whether there was any other thing that drove you to commit the crime over a period of 15 months remains a mystery. Your heartlessness and your determination to punish your husband, eventually killing him, shows a deep level of hatred for him. What caused this hatred has not been adequately explained to this Court.
You were seen by a psychiatrist, Dr Ruth Vine, last weekend and her report has been tendered in evidence. She was not called as a witness. Dr Vine is an experienced consultant psychiatrist in the field of the criminal law. She sets out in her report information gained from you. The doctor reported that some of the information that you provided to her was inconsistent with that provided in a summary of offence which she had been given, that you frequently expressed difficulty in recalling the events surrounding your first husband's illness and death and what is more, you asserted that you had no understanding of his illness. In addition, you stated that you had no recollection of taking an overdose yourself in April 2000 and your subsequent psychiatric treatment. Nor do you have any recollection of confessing to your daughter, Colleen, and others, that you had administered the poison to your first husband.
Dr Vine asked you about your developing relationship with your present husband, Mr Bob Whyte. You informed her that he was a co-worker with your first husband; that he did jobs around the house; and that you had no other contact with him during the lifetime of your husband and "did not develop a friendship."
Dr Vine went on to report you saying as follows - "Mrs Whyte stated that following John's death, she would frequently visit his grave. During that time, Bob would often pass by. She stated that some five to six months after John's death, Bob asked her and the children to go out fishing with him. She stated it was not for several months that they became emotionally involved and she did not marry him until 1988."
I do not accept that version. It is contrary to the sworn evidence given at trial and the inferences that were open on the evidence given at trial.
In my opinion, the evidence showed that the friendship was well established within two months of the death. Mr Whyte was by that time visiting nearly every night. You and he regularly disappeared for hours in his van.
Dr Vine, in expressing an opinion, commented that it was difficult to comment on the intention behind the poisoning "given Mrs Whyte's lack of recall and sketchy nature of the information available to me." She concluded as follows: "Most unfortunately my capacity to assess Mrs Whyte is limited by the lack of corroborative information."
What you told Dr Vine is not evidence given on oath and has to be assessed like any other evidence given out of court by a person who has a motive to distort the truth and seeks to put a version which minimises fault. You have been extremely selective in providing information to Dr Vine, having little to no memory of events which would implicate you in the death, but having a memory of events which tend to blacken the character of the deceased.
Mr Brustman, in his submissions today, referred to a number of incidents which amplified some of the matters told to Dr Vine and added some. These were assertions from the Bar table. Mr Brustman did not call you as a witness. The information given to Dr Vine and the assertions made by your counsel are not sworn evidence. You were interviewed by the police on a number of occasions. In one long interview, you were asked many searching questions. Despite the intensity of the questioning, you maintained the lie that you did not kill your husband. You are a person who will lie if it suits you. Given the facts just mentioned, you fall into the category of a person whose word should not be accepted unless it is corroborated by some other reliable evidence. The force of this observation is reinforced by the fact that you have not given any evidence on oath.
The evidence at trial from your daughters showed your husband as a caring, loving father and a good family man. There was no evidence that he physically abused you. Three victim impacts from your three children, tendered in evidence, support these observations. Not one witness was cross-examined suggesting your husband was a violent man towards you. Not once did you suggest to any member of the police force that your late husband was violent towards you. There was some evidence that he was jealous, there was some evidence that he drank alcohol most days, and that from time to time, he got drunk. Today, your counsel has told the Court that your late husband did physically assault you and that you had a miscarriage as a result. Further, on one occasion, in a jealous rage, he belted you and attempted to hang you. It is alleged that he broke your nose, ribs and belted you with an iron bar on other occasions. According to your counsel, you kept these incidents to yourself, did not consult a doctor and kept them from your children. You also described to Dr Vine an incident when your husband forced unidentified powder from a tin down your throat which made you unwell. When this occurred is not certain. You told Dr Vine that when you were about 17 years of age, after you were married, your husband required you to take part in sexual activities involving a male person who was having sex with your husband. Other than that this occurred in the late 1960s, no other details are given.
You stated that he was frequently drunk. You gave an instance of him shooting an Alsatian in a rage and covering it up from the children, and also, in a fit of rage, throwing a kitten to the dogs, which savaged it. When these incidents occurred is uncertain, but appear to have been early in the marriage. I note that it is somewhat significant that when the family moved into Upper Road in the early 1970s, where you remained until the date of the death of the deceased, according to your counsel, your husband would strike you in a way which would not leave marks. This would no doubt explain the fact that your two daughters' evidence does not support any physical abuse.
I do not accept the attempts through what you told Dr Vine or what has been asserted in this Court to portray your husband as a violent man towards you, and I do not accept that evidence. I do accept that your husband was authoritarian, that he was jealous from time to time, that he would verbally abuse you from time to time and that he drank often. But I note that you told Dr Vine that you never considered leaving him, and you also stated to her that he always had a job and was a reasonable provider for the family. As I have already stated, the facts suggest a darker side to the marriage, but although your late husband may have been a difficult husband to live with, your daughters' evidence portray him as a good father, husband and family man.
Dr Vine's report does not really enlighten the Court as to any other motive for committing the crime. What Dr Vine said was as follows: "It is difficult to comment on the intention behind the presumed poisoning by Mrs Whyte, given Mrs Whyte's lack of recall and the sketchy nature of the information available to me. If the extent of the physical, sexual and verbal abuse which she suffered and which she described at the time of my interview is accurate, then it is understandable at one level that Mrs Whyte sought to likewise cause her husband injury and she sought to do this in a manner which would not bring attention to herself or result in further anger or retribution on his part."
As I have already stated, neither daughter supports the conclusion that your husband was physically abusive to you during the marriage, although I do accept that it is most likely he did dominate you and the family. I accept that from time to time, he was verbally abusive. I do not accept the assertion that your husband was bisexual, but, in any event, none of these facts in any way justify your conduct and really do not explain your deep hatred of him and the motive for bringing his life to an end. In any event, if any of these events occurred, it was very early in the marriage and many, many years before you commenced to poison him.
The principles which guide a court in sentencing are found in the common law and statutes, particularly the Sentencing Act 1991. The sentence for murder is either life or imprisonment for such term as is fixed by the Court. See s.3 of the Crimes Act 1958. The crime of murder is the second most serious crime in the calendar after treason. The object of sentencing is to pass a sentence which the Court regards is the appropriate sentence. The purposes of criminal punishment are various and include protection of society, deterrence of the offender and of others, retribution, denunciation of the conduct and rehabilitation.
The weight to be attached to each factor depends upon the particular circumstances of each case. In the end result, the punishment must fit the crime. In other words, the sentence must be appropriate and proportionate to the gravity of the crime, considered in the light of the objective circumstances. I am bound to consider the matters set out in s.5 of the Sentencing Act 1991.
The Court must consider the nature and gravity of the offence; your degree of criminal culpability and responsibility; deterrence; denunciation of your conduct; any aggravating and mitigating factors; and also any other relevant circumstances.
The issue of remorse is, of course, also relevant.
The legislature views this crime as serious. On any view, the way you committed the offence is very serious. The gravity of the offence is a starting point in the sentencing exercise and the Court is obliged to not only clearly denounce your criminal conduct, but also take into account general deterrence. I have no doubt that specific deterrence plays no part in this sentencing process. There is no risk that you would ever commit this crime again. General deterrence is important.
Three victim impact statements were placed before the Court. None of the facts stated in them were contested. They graphically show the appalling effect your crime has had on the emotional state of your three children, their relationship with each other and the effect upon the family as a whole.
The commission of the crime was aggravated by your premeditation, the time over which you tortured your husband, his suffering and the devastation you caused your family. Your crime is at the highest level of criminal culpability.
The presence or absence of remorse is relevant. You have shown some, but it is of little weight. You confessed in April 2000, but within weeks, continued to lie. You pleaded not guilty. Some observations today suggest some remorse, but, in my view, are of little consequence.
The sentencing process requires the Court not only to take into account matters that may generally be described as aggravating, but also to take into account matters personal to you in any mitigating factors.
You are now aged 53 years. You married Bobby Whyte in 1986 after the inquest finding. It is apparent that you are a devoted couple. You have worked over the years as a domestic.
Your counsel submitted that there were some mitigating factors. He emphasised your reputation over the last 16 years, which was supported by evidence of four witnesses and a number of character statements. I accept their evidence that over that period, you have been a good and caring person. Whilst I take those matters into account, they are concerned with a period post the death of the deceased and must be compared with your appalling conduct and the level of culpability.
He also drew attention to the fact that the crime occurred some 18 years ago. However, that fact is of little significance. The delay has been brought about by your conduct.
Considering what is the appropriate sentence, in addition to what I have said, there are a number of other matters which I will take into account in your favour. The factor which, in my opinion, is relevant and is to be taken into account, is that you have already suffered some punishment. I have no doubt that that punishment will continue well into the future.
Whilst I have little doubt that when the deceased died, you were glad and within months, started out afresh in life, with a new lover, equally, I have no doubt that the death and the consequences to your children progressively weighed heavily on your conscience. By the year 2000, you were thinking of it often and, no doubt, suffered depression and distress as a result. The death destroyed your family life. Your children, Tracey and Tim, have little to do with you, no doubt thinking you had killed their father and not being impressed with your relationship with Bobby Whyte. Your daughter, Colleen, stayed with you and supported you, having suspicions but not wishing to believe them. She was, as a result, alienated from her siblings. They rarely spoke to you and they did not speak to Colleen. I have no doubt that this was a source of concern to you as the years passed by and, no doubt, a source of stress, anxiety and depression.
In April 2000, you cruelly shattered Colleen's beliefs and have caused her considerable emotional upset, as indeed you have also caused considerable upset to Tracey since then.
I accept that all these matters caused you considerable stress and upset and represent a punishment in themselves. The only positive thing to come out of all this is that your children are now united. Not only are they united in the sense of seeing each other and supporting each other, they are also united against you. Whether they will ever forgive you is a question for the future. On any view, your future will not be easy.
I am satisfied that all these matters represent a form of punishment which you have suffered for at least the last two years and will suffer hereafter. You have lost the love and support of your children and contact with them. You will be deprived of any relationship with grandchildren. You will also be deprived of your relationship with your present husband, which is close and loving.
I also note your age and take into account the fact that your period of imprisonment will cover much of the last years of your life. But 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.
Another matter which I take into account is that you confessed to your daughter, Colleen, and this started the chain of events leading to your arrest. This is a matter that I take into account in your favour. But for the confession, the investigation would not have been reopened. This is a relevant matter and I refer to my reasons in R v Makin [2002] VSC 80 and the New South Wales Court of Appeal decision, R v Ellis (1986) 6 NSWLR 603, which I followed.
The punishment must fit the crime and in determining the punishment, I take into account the punishment of losing your family.
Your level of culpability is at the highest end of the range. In May 1999, Justice Cummins in R v Parsons, unreported, delivered on 24 May 1999, sentenced a man who stabbed his ex-defacto wife many times to death outside the Dandenong Family Court to life, with a non-parole period of 25 years. His appeal against sentence was dismissed, R v Parsons (2000) 1 VR 161, and leave to appeal to the High Court was refused.
The decision of Justice Cummins represents a bench mark for the most serious crime committed by a partner in a relationship, that of killing the unwanted partner. Each case depends upon its own circumstances and nothing would be gained by me comparing your case with that case. However, the case does demonstrate the type of sentence that is appropriate in circumstances such as the present.
In fixing the period of imprisonment, I take into account all relevant matters, the seriousness of the offence, your culpability, your previous good character, your personal circumstances, and all matters put to me by your counsel in mitigation. But in determining the appropriate and proportionate sentence, I must not only manifest a denunciation of your type of conduct, but also deter others from pursuing a similar course of conduct. I have no doubt that you do not have to be deterred and your prospects of rehabilitation are good.
Occasionally, a partner in a relationship decides to remove the other partner by killing him or her. History has shown examples of alleged accidental shootings, so-called accidental drownings and the disappearance of spouses. 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. If a person does so, the punishment will be very severe and result in a very long period of imprisonment. Invariably, the crime is committed with premeditation, as indeed was the case here.
After carefully weighing all relevant matters, I convict you on the count in accordance with the verdict of the jury and I sentence you to a period of 22 years' imprisonment.
It is now necessary to consider whether there should be a minimum period of imprisonment.
Under s.11(1)(b) of the Sentencing Act 1991, the Court is bound to fix a period during which the offender is not eligible to be released on parole, unless there are particular circumstances which makes the fixing of such a period inappropriate. In my view, the general rule should apply and I will fix a minimum period. It must be borne in mind that the minimum period is part of the sentence and the Court is concerned, when fixing the minimum period, to determine what is the appropriate period that you should be imprisoned. I refer to the observations made by the Court of Appeal in R v Chan (1994) 76 A Crim R 252 at 255.
The same factors which are taken into account on the head sentence are also relevant and to be weighed carefully in fixing the minimum period. The weight which should be attached to each particular relevant matter depends upon the circumstances. As a general rule, the factors that are favourable to the prisoner are given more weight; that is, mitigatory factors, risk to the community upon release and rehabilitation - see Iddon and Crocker v R (1987) 32 A Crim R 315 at 325‑6 and Bugmy v R (1990) 169 CLR 525 at 530‑32 and 536‑38.
Having weighed the relevant matters carefully, it is my opinion that the minimum period during which you are not eligible to be released on parole is 18 years. Pursuant to s.18(4) of the Sentencing Act 1991, I declare that the period of imprisonment is to be reckoned from 17 January 2000 when you were arrested, and also to take into account the period when you were in custody during 1986. As I have been informed that there is some doubt about the period of your incarceration in 1986, I will not make the declaration today but will do so when the period is calculated. Subject to that, I will make the following orders:
(1)that Lorraine Alice Whyte be convicted of the offence of murder of Leonard John Moss, who died on 13 January 1984, in accordance with the verdict of the jury;
(2)that she be sentenced to a period of 22 years' imprisonment;
(3)that the minimum period during which the prisoner is not eligible to be released on parole is 18 years.
I will make a declaration pursuant to s.18(4) of the Sentencing Act 1991 when the period has been determined.
I have also been asked to make orders in relation to a number of matters. The first is an application pursuant to s.77(1) of the Confiscation Act 1997, and I am satisfied that I should make the order. I understand there is no opposition to the order being made, and I am satisfied that the offence of murder is a forfeiture offence. I am also satisfied that the property which is referred to in the schedule are articles which were used in connection with the commission of the offence.
I order pursuant to s.78(1) of the Confiscation Act 1997, the forfeiture to the State of the property referred to in the schedule, and the property I refer to comprise: one, a small Tupperware container; and two, a small red plastic spoon. I further direct that that property be placed in the custody of the Chief Commissioner of Police and be held by her until 28 days from this date or the conclusion of any appeal proceeding and then be destroyed by her. I make that order. I will sign the order.
I also have before me an application pursuant to s.464ZF(2) of the Crimes Act 1958. Where a court finds a person guilty of a forensic sample offence - and I am satisfied that murder is a forensic sample offence - then an application may be made by a member of the Police Force, in this case, Senior Constable Kira Stewart Olney, for an order that a forensic procedure take place in relation to the prisoner. I have to be satisfied of certain matters. There is no opposition to this application. I make the order taking into account the circumstances of the commission of the offence, and that it was serious. Further, the granting of the order is in the public interest and the order is justified in the circumstances. Accordingly, I am prepared to make an order pursuant to that section.
I order pursuant to s.464ZF(2) of the Crimes Act 1958 that Lorraine Alice Whyte undergo a forensic procedure for the taking of a blood sample in accordance with sub-division 30A of Part 3 of the Crimes Act 1958 until a sample of sufficient standard is obtained for placing on the data base.
I also tell you Mrs Whyte, that if you object to that procedure, reasonable force can be used to require you to give a sample.
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