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11
Court of Criminal Appeal 3 April 2008

VERSLUYS v R

[2008] NSWCCA 76

HomicideDomestic & family violence
CRIMINAL LAW APPEAL AGAINST CONVICTION AND SENTENCE MURDER STRANGULATION OF DE FACTO PARTNER PAROLE PERIOD

Citation: VERSLUYS v R [2008] NSWCCA 76
Court: New South Wales Court of Criminal Appeal
Date: 3 April 2008
Judge(s): McClellan CJ at CL; Simpson J; Price J

Background

The appellant had been in a de facto relationship with the deceased for over six years. At the time of the offence, the couple had been living together at a boarding house in Redfern for approximately six days. The appellant strangled the deceased in the early hours of 27 July 2004, believing she had been unfaithful to him.

The history of the relationship included prior incidents of violence. The deceased had attended hospital in June 2004 following an assault by the appellant involving punching, a knife held to her throat, and an attempt to strangle her. In a telephone conversation shortly before the fatal incident, the appellant had threatened to kill the deceased if she was unfaithful again.

The appellant was convicted of murder in the Supreme Court before Newman AJ and sentenced to a non-parole period of 20 years, with an additional term of six years and eight months. He appealed against both the conviction and the sentence.

  • Whether the murder conviction was unsafe and unsatisfactory, given that the evidence may only have supported a manslaughter verdict
  • Whether the evidence established that the appellant had the requisite intent to kill or cause grievous bodily harm
  • Whether the trial judge's summing up was sufficiently balanced
  • Whether the offence fell within the middle range of objective seriousness for the purposes of the standard non-parole period
  • Whether the trial judge erred in imposing the standard non-parole period of 20 years

Decision

The Court dismissed the conviction appeal. The central issue at trial was intent: the Crown relied on admissions the appellant had made to various witnesses. A fellow boarding house resident gave evidence that the appellant had expressed anger about the deceased's alleged infidelity and had said he "felt like strangling" her. After the death, the appellant himself told the same witness what he had done. While his initial police interview denied the strangulation, a later interview included an admission that he had strangled her.

On the question of intent, the Court found the jury was entitled to look beyond the appellant's own characterisation of his state of mind, that he only wanted to "scare" the deceased, not kill her. The surrounding circumstances, including the significant physical disparity between the appellant (187 cm, 130 kg) and the deceased (160 cm, 54.5 kg), the prior threats, and the sustained nature of the strangulation, supported the jury's finding of murderous intent. The forensic evidence confirmed that neck compression caused death, notwithstanding that the deceased had a combination of drugs in her system at the time.

On sentence, the Court applied the principles from earlier Court of Criminal Appeal authority governing how the standard non-parole period operates. The sentencing judge was required to assess where the offence sat relative to a hypothetical mid-range murder, a task described as not fundamentally different from ordinary sentencing. The Court found that the sentencing judge's conclusion, placing the offence in the middle range of objective seriousness and imposing the standard non-parole period, was within the proper exercise of his discretion. No error was established.

The Court granted leave to appeal against sentence but dismissed both the conviction and sentence appeals.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal against conviction dismissed
  • Appeal against sentence dismissed

Key Takeaways

  • A jury assessing intent for murder is not bound by an offender's own stated account of their state of mind, particularly where surrounding circumstances and admissions point to a different conclusion.
  • The Court of Criminal Appeal confirmed that the standard non-parole period for murder under the Crimes (Sentencing Procedure) Act 1999 operates as a reference point or benchmark, not an automatic outcome, and requires the sentencing court to situate the individual offence relative to a hypothetical mid-range case.
  • Factors bearing on objective seriousness include the actus reus, consequences, aspects of mental state causally connected to the offence, and motivation. Factors personal to the offender but not causally related to the offence do not affect the objective seriousness assessment.
  • Sufficient evidence existed, including prior threats, a history of violence, the physical circumstances of the strangulation, and the appellant's own admissions, to support the jury's verdict of murder rather than manslaughter.
  • No error was established in the sentencing judge's exercise of discretion to impose the standard non-parole period of 20 years, even though another judge might have reached a different conclusion.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 19A (murder, maximum penalty)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 54A, 54B (standard non-parole period for murder), s 21A

Cases:
- Apps v R [2006] NSWCCA 290
- M v The Queen (1994) 181 CLR 487
- MLP v R (2006) 164 A Crim R 93; [2006] NSWCCA 271
- R v Slater (2001) 121 A Crim R 369; [2001] NSWCCA 65
- R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434
- R v GJ Davies [2004] NSWCCA 319