Adam Beniamini(Appellant) v Jason William Craig

• Jurisdiction: Australian Capital Territory
• Court: Court of Appeal of ACT
• Judge: Elkaim,Mossop,Wigney JJ
• Judgment Date: 28 July 2017
• Docket Number: File Number(s): ACTCA 36 of 2016
• Date: 28 July 2017

[2017] ACTCA 30

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL

Before:

Elkaim, Mossop & Wigney JJ

File Number(s): ACTCA 36 of 2016

The Queen

(Appellant)

and

Jeffrey David Lee

(Respondent)

Representation:

Counsel

Mr J White SC (Appellant)

Mr K Archer (Respondent)

Cases Cited:

Apps v R [2006] NSWCCA 290

Balthazaar v The Queen [2012] ACTCA 26

Barbaro v The Queen ; Zirilli v The Queen [2014] HCA 2; 253 CLR 58

Bui v Director of Public Prosecutions (Cth) [2012] HCA 1 ; 244 CLR 638

Dinsdale v The Queen [2000] HCA 54 ; 202 CLR 321

Frahm v The Queen [2014] NSWCCA 10

Hili v The Queen [2010] HCA 45 ; 242 CLR 520

House v The King [1936] HCA 40 ; 55 CLR 499

Markarian v The Queen [2005] HCA 25 ; 228 CLR 357

Melham v The Queen [2011] NSWCCA 121

R v Abbott [2007] VSCA 32 ; 170 A Crim R 306

R v Duffy & Ors [2014] ACTCA 53 ; 297 FLR 359

R v Hillsley [2006] NSWCCA 312 ; 164 A Crim R 252

R v JJ [2014] ACTCA 23 ; 242 A Crim R 363

R v Massey (Unreported, Supreme Court of the Australian Capital Territory, Gray J, 28 July 2011)

R v McPartland & Polkinghorne [2014] SASCFC 84 ; 120 SASR 69

R v Pham [2015] HCA 39 ; 256 CLR 550

R v TL [2017] ACTCA 18

R v TW [2011] ACTCA 25 ; 6 ACTLR 18

Wong v The Queen [2001] HCA 64 ; 207 CLR 584

Legislation Cited:

Crimes Act 1900 (ACT), s 12

Crimes (Sentencing) Act 2005 (ACT), s 33

Criminal Code 2002 (ACT), s 308

APPEAL — CRIMINAL LAW — Crown appeal against sentence — murder — theft — whether sentencing Judge made specific error — whether sentences manifestly inadequate — appeal dismissed.

Decision:

The appeal is dismissed.

THE COURT:

1 On 10 March 2015, the respondent, Jeffrey David Lee, attempted to enter a house in Canberra co-habited by his mother, Maureen Therese Lee, and her de facto partner, Neal Keith Wilkinson. The respondent had an altercation with Mr Wilkinson at the front door of the house, during which he repeatedly punched Mr Wilkinson. Mr Wilkinson sustained fatal injuries during or as a result of the altercation. The respondent initially left the property, but later returned and stole approximately $53,000 belonging to his mother and Mr Wilkinson (the deceased).

2 On 12 May 2016, the respondent pleaded guilty to one count of murder contrary to s 12 of the Crimes Act 1900 (ACT) and one count of theft contrary to s 308 of the Criminal Code 2002 (ACT).

3 The respondent was sentenced by Murrell CJ on 18 August 2016. Her Honour sentenced the respondent to a total head sentence of imprisonment for 13 years and six months, with a non-parole period of 7 years.

4 The appellant appealed the sentence, on the grounds that the sentences imposed were manifestly inadequate, and that the sentencing judge made a specific error in exercising her sentencing discretion.

5 For the reasons that follow, the appeal should be dismissed.

Factual background

6 The respondent's parents divorced in 1981. In about 1984, the respondent's mother Ms Lee commenced a relationship with the deceased. In 1986 the pair co-purchased a property in Wanniassa in the ACT.

7 The respondent's mother suffered from a number of medical conditions which left her home-bound. The deceased came to act as her primary carer and, aside from some brief excursions, he spent the majority of his time at home caring for her. As part of this care, the deceased took charge of monitoring the couple's finances.

8 The respondent's mother and the deceased contributed to shared savings, which they kept in cash inside a pillowcase hidden under Ms Lee's bed. As at 10 March 2015, the cash totalled approximately $53,000.

9 Prior to the murder, the respondent had borrowed money from his mother on a number of occasions. The last such loan was in August 2014, when the respondent borrowed $1,000. The deceased was apparently not happy that Ms Lee continued to loan the respondent money, nor that she told the respondent where their savings were kept. He took to changing the hiding place.

10 The respondent lived at the Wanniassa property for a short period in 2014, but otherwise lived a transient lifestyle. At the date of the murder, he was living in Fyshwick.

11 On the date of the murder, the respondent was 45 years old. The deceased was 61 years old.

The offences

12 Murder is an offence contrary to s 12 of the Crimes Act 1900 (ACT). It carries a maximum penalty of life imprisonment.

13 Theft is an offence contrary to s 308 of the Criminal Code 2002 (ACT). It carries a maximum penalty of 10 years' imprisonment.

14 At approximately 10.30am on or about 10 March 2015, the respondent arrived at the Wanniassa property. At the time, the respondent's mother was asleep. The deceased had woken her up at approximately 9.00am to administer her medication, after which Ms Lee went back to sleep.

15 The deceased answered the door when the respondent knocked. There was then an altercation between the two men at the entrance or in the foyer of the property. The respondent lost his temper and punched the deceased's right cheek several times. It was the Crown case, and by his plea the respondent admitted, that when he punched the deceased he intended to cause serious harm. The deceased fell to the floor.

16 While it is tolerably clear that the respondent's punches led to the deceased's death, the precise mechanism of death was not clear. Post-mortem examination revealed that the punches caused multiple fractures, and dislodged the deceased's right cheek.

17 Immediately following the altercation, the respondent returned to his vehicle at the front of the property and drove to a nearby service station, before parking his car at a shopping centre. He then walked back to the Wanniassa property, a distance of approximately 350 metres. This round trip took approximately one hour.

18 Some time later, between about 12.00pm and 2.00pm, Ms Lee awoke to find the respondent sitting at the edge of her bed. She initially thought it was the deceased until the respondent identified himself. The respondent spoke to his mother, and at her request brought her food and drink from the kitchen. In doing so, he gave Ms Lee the impression that the deceased was in the house and knew he was there, or at least did nothing to dispel that impression.

19 Ms Lee then asked the respondent to leave, as she was tired. The respondent left, but returned a short time later, and said words to the effect of ‘things don't look too good, I think I better stay with you.’ The respondent then lay on the bed with his mother and turned on the air conditioner at Ms Lee's request.

20 The respondent then went to fetch a bottle of rum from the kitchen. When he returned, he went into the ensuite of Ms Lee's bedroom and began vomiting and heaving into the basin. He then returned to the bedroom and told his mother ‘Neal's dead, I killed him. Where are the razors, I want to kill myself.’ When his mother asked him what he was talking about, the respondent became agitated and upset and replied ‘I lost my temper and punched him, but he was still breathing.’

21 Ms Lee told the respondent she wanted to call the police, and then a friend. The respondent told his mother she wasn't allowed to ring anyone, and disconnected the phone. He told his mother to give him 15 minutes and then ring the police.

22 The respondent then left his mother's bedroom. He located the pillowcase containing approximately $53,000 cash and left the house, taking the cash with him. Once she was sure the respondent was gone, Ms Lee got up. It was at this time that she discovered the deceased on the floor in the hallway. Her screams attracted the attention of a neighbour, who called the police. The police arrived at approximately 7.00pm. Ms Lee told the police ‘my partner is dead; my son Jeffrey Lee killed him. I saw him lying in the hallway.’ The deceased was confirmed dead by paramedics a short time later, and Ms Lee was taken to hospital for review.

23 After leaving the Wanniassa property, the respondent met up with a friend, identified in the sentencing judge's reasons as NC. At NC's house the respondent told NC that he had killed his stepfather, and the two counted the money in the pillowcase. The following morning, 11 March 2015, NC reported the respondent's whereabouts to the police. At 2.50pm that afternoon, the respondent was arrested by police in the vicinity of NC's house. When police searched the offender's person, they found a syringe, cannabis and cash. They also found three silver rings which were later found to contain the deceased's DNA profile.

24 The respondent was taken by police to the ACT Watch House. On the way, unprompted, the respondent told police officers: ‘I went there with the intention of forcing my way in. I was mad that I didn't get in’; ‘It got out of hand quickly’; ‘I have all these images in my mind about what happened’; and ‘It's actually a relief to be caught. I just ran after it happened, I didn't know what to do.’

25 At the Watch House, the respondent participated in a forensic procedure examination where swabs, hair samples, fingerprints, fingernail scrapings and photographs were taken. The respondent also told police that he had consumed ice and heroin over the past 48 hours.

26 A search warrant was executed at NC's house. The pillowcase of cash was found underneath the house. It contained $44,300.

27 On the morning of 12 March 2015 police interviewed the respondent and showed him photographs of the Wanniassa property, the pillowcase and the deceased. The respondent became distressed and refused to answer any questions.

Procedural history

28 On 12 March 2015, the respondent was...