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Supreme Court 24 March 2006

R v Lee Thomas VERSLYUS

[2006] NSWSC 188

HomicideDomestic & family violence
MURDER STANDARD NON PAROLE PERIOD

Citation: R v Lee Thomas VERSLUYS [2006] NSWSC 188
Court: Supreme Court of New South Wales
Date: 24 March 2006
Judge(s): Newman AJ

Background

The prisoner was convicted by jury on 1 December 2005 of the murder of his de facto partner, with whom he had lived for approximately six years. On 27 July 2004, the deceased was found not breathing at a boarding house in Redfern, where the couple had been living for about a week.

The relationship had a documented history of violence. In June 2004, the deceased had been hospitalised following a serious assault. Her mother also gave evidence that the prisoner had threatened to kill the deceased if she was unfaithful again. A fellow resident at the boarding house gave evidence that the prisoner had expressed intentions to strangle the deceased in the days before her death, and that the prisoner had come to his door on the morning of 27 July 2004 saying he had strangled her.

At sentencing, the prisoner's counsel raised a number of mitigating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999, including matters relating to the prisoner's psychological difficulties and rehabilitation needs.

  • What facts could be established beyond reasonable doubt as the objective circumstances of the offence
  • Whether this offence fell within the mid-range of objective gravity for murder
  • Whether the statutory standard non-parole period of 20 years under the Crimes (Sentencing Procedure) Act 1999 should be applied, or whether mitigating factors justified a departure
  • Whether a victim impact statement could be taken into account in passing sentence

Decision

Newman AJ found the relevant objective facts to the criminal standard of proof. The court accepted the evidence of the deceased's mother in full, including her account of prior violence and the prisoner's explicit threat to kill the deceased. In relation to the evidence of the fellow resident, the court found a conflict between his original police statement and his oral testimony on one specific point: the court could not find beyond reasonable doubt that the prisoner had used a particular expression when confessing to the killing. The court was careful to note this did not mean the witness was disbelieved, only that the conflict precluded satisfaction to the requisite standard.

Applying the principles from R v Way (2004) 60 NSWLR 168, Newman AJ considered the standard non-parole period provisions. The court found the objective features of the offence, including the prior violence, the explicit prior threats, and the circumstances of the killing, so significantly outweighed the mitigating factors raised by defence counsel that this was a case in which the standard non-parole period of 20 years should be applied without departure.

On the victim impact statement, the court expressed clear sympathy for the deceased's family but noted that the law does not permit a victim impact statement to be taken into account when passing sentence, following the approach in R v Previtera and Bollen v Regina.

Orders Made

  • Non-parole period of 20 years, commencing 27 July 2004 and expiring 26 July 2024
  • Additional term of 6 years and 8 months, commencing 27 July 2024, fixed in accordance with s 44 of the Crimes (Sentencing Procedure) Act 1999

Key Takeaways

  • The Supreme Court applied the statutory standard non-parole period of 20 years for murder without departure, finding the objective gravity of the offence outweighed the mitigating factors raised under s 21A of the Crimes (Sentencing Procedure) Act 1999.
  • Where a conflict exists between a witness's prior statement to police and their oral evidence, the sentencing court may decline to make a finding adverse to the accused on that particular point without making a general finding of untruthfulness against the witness.
  • Under s 28(4)(b) of the Crimes (Sentencing Procedure) Act 1999, a victim impact statement cannot be taken into account when passing sentence, consistent with R v Previtera and Bollen v Regina.
  • Following R v Way, the standard non-parole period operates as a reference point, benchmark, and guidepost even where a court ultimately departs from it; there is no automatic requirement to fix it simply because an offence falls within the mid-range of objective gravity.
  • A history of prior violence within the relationship, combined with prior express threats to kill, formed part of the objective circumstances weighed in assessing the gravity of the offence for sentencing purposes.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), including ss 21A, 28, 44

Cases:
- R v Way (2004) 60 NSWLR 168
- R v GJ Davies [2004] NSWCCA 319
- R v Holten [2004] NSWCCA 214
- R v Pellew [2004] NSWCCA 434
- Cameron v R (2002) 187 ALR 65
- R v Previtera (1997) 94 ACR 76
- Bollen v Regina (1998) 99 ACR 510