R v Withers

Case [2009] VSCA 306


SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 857 of 2007

THE QUEEN

v

SHIRLEY WITHERS

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JUDGES:

BUCHANAN, ASHLEY and WEINBERG JJA

WHERE HELD:

MELBOURNE

DATE OF HEARING:

12 October 2009

DATE OF JUDGMENT:

18 December 2009

MEDIUM NEUTRAL CITATION:

[2009] VSCA 306

JUDGMENT APPEALED FROM:

R v Withers [2007] VSC 411 (Harper J)

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CRIMINAL LAW – Murder – Verdict unreasonable and unable to be supported by the evidence – Whether applicant injected deceased with heroin – Whether injection of heroin was a substantial and operative cause of death – Whether applicant had an intent to kill –Intent to kill dependant upon proof of motive – Evidence considered as a whole did not establish intent beyond reasonable doubt – Lie told by accused capable of displaying consciousness of guilt – Conviction for murder set aside – Conviction for manslaughter substituted.

CRIMINAL LAW – Sentence – Incitement to murder – Impaired mental functioning of applicant did not reduce moral culpability – Pleas of guilty – No defence – No remorse.

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APPEARANCES: Counsel Solicitors
For the Crown Mr G.J.C Silbert SC Mr C. Hyland, Solicitor for Public Prosecutions
For the Applicant Mr L.C. Carter Lethbridges

BUCHANAN JA
ASHLEY JA
WEINBERG JA:

  1. On 30 March 2006, the applicant, Shirley Withers, pleaded not guilty, in the Supreme Court at Melbourne, to one count of murder (count 1), but reserved her plea to two counts of incitement to murder (counts 2 and 3).  Her trial commenced on 26 April 2007.  On 3 May 2007, in the absence of the jury, she pleaded guilty to counts 2 and 3.  On 5 June 2007, after a trial lasting some six weeks, she was convicted on the count of murder.

  1. On 19 October 2007, the applicant was sentenced to a term of 20 years’ imprisonment on count 1, and terms of seven years’ imprisonment on each of counts 2 and 3.  The sentences for counts 2 and 3 were ordered to be served concurrently with each other.  Six years of the sentence on count 2 was ordered to be served cumulatively upon the sentence imposed on count 1.  That made a total effective sentence of 26 years’ imprisonment.  A non-parole period of 18 years was fixed.

  1. The applicant now seeks leave to appeal against both conviction and sentence.

The circumstances of the offending

  1. The applicant had for some years been in a de facto relationship with the deceased, Peter Shellard.  She had also been the book-keeper for his car business, Kellow-Falkiner Motors Pty Ltd.  However, there had been a falling out between them and, in around April 2005, he had removed her as a signatory to his business accounts. 

  1. The applicant owned and operated a retail business, Suzette Boutique, in Brighton.  The deceased had contributed funds to that business but had ceased doing so at about the same time that he caused the applicant to be removed as a signatory to the Kellow-Falkiner accounts.

  1. On the evening of 6 May 2005, a Friday, the applicant…

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R v Withers [2009] VSCA 306
Case
[2009] VSCA 306
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CaseChat Overview and Summary

In the case of R v Withers, the appellant was convicted of the murder of the deceased, a 20-year-old woman. The appellant appealed against his conviction and sentence, arguing that the verdict was unreasonable and unable to be supported by the evidence. The court was required to consider whether the appellant injected the deceased with heroin, whether the injection was a substantial and operative cause of death, and whether the appellant had the intent to kill the deceased. The court also had to consider the appropriate sentence for the crime of incitement to murder, taking into account the appellant's impaired mental functioning, pleas of guilty, and lack of remorse.

The court found that the evidence did not establish beyond reasonable doubt that the appellant injected the deceased with heroin, nor that the injection was a substantial and operative cause of death. The court also found that the evidence did not establish that the appellant had the intent to kill the deceased, as the intent to kill was dependant upon proof of motive, which was not established. The court considered the lie told by the appellant as capable of displaying consciousness of guilt, but this alone was not enough to establish intent to kill. The court found the conviction for murder to be unreasonable and unable to be supported by the evidence and set it aside, substituting a conviction for manslaughter.

The court considered the appropriate sentence for incitement to murder, taking into account the appellant's impaired mental functioning, pleas of guilty, and lack of remorse. The court found that the appellant's impaired mental functioning did not reduce his moral culpability, and that his pleas of guilty and lack of remorse were not mitigating factors. The court imposed a sentence of imprisonment, with a non-parole period of 12 years.

The court set aside the conviction for murder and substituted a conviction for manslaughter, with a sentence of imprisonment for a term of 15 years, with a non-parole period of 12 years.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Legal Principle Established

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