By Paul Gregoire and Ugur Nedim
Rebecca Payne made a second batch of biscuits on 1 September 2020, after acquiring a new recipe from a friend a few days prior, except this time, she laced the icing on one of the biscuits with several crushed temazepam pills she’d been prescribed for insomnia and fed it to her husband, Noel.
The man in his late 60s was then found slumped at his computer, and as Rebecca couldn’t find a pulse, she considered him dead. The woman then wrapped her husband’s body in a blanket, placed it in an unused freezer and sealed it with straps.
Rebecca married Noel in 2006, and they had two children. However, she ended up fleeing their remote northwestern Victorian home twice, in 2008 and in 2012, due to domestic violence. And during the second separation another woman, Alice, moved in and started a domestic relationship with Noel.
By 2020, Alice, who was 36 years younger than Noel had been living with him and Rebecca, who was 27 years his junior, since 2012, and both women had long been subjected to physical assaults, sexual assaults, coercive control and emotional abuse.
On the day following Noel’s death, the two women and the children went shopping for iPhones, while on 4 September, Rebecca asked her neighbour if she could leave a broken freezer with rotting meat in it in her backyard, as someone was going to collect it.
However, the neighbour’s son got suspicious and took a look inside the freezer.
Sentenced to murder
Payne initially pleaded guilty to the offence of manslaughter. However, following a 15-day trial, the jury found her guilty of murder on 15 March 2023.
The lesser offence of manslaughter involves an accused unintentionally causing the death of another. Section 5 of the Crimes Act 1958 (VIC) provides that manslaughter is punishable by 25 years prison time in that state.
In Victoria, murder is not defined in legislation, but it is a common law offence, which means the elements making up the crime have been shaped by court rulings over time.
To prove murder, the prosecution must show that the accused caused death, and that they did so in a conscious, voluntary and deliberate manner. The accused must further have had the intent to kill or cause serious injury, whilst having no justification to commit such as act, like self-defence.
Punishment for murder is set out in section 3 of the Crimes Act, with life imprisonment being the maximum penalty. However, under section 3(2)(b), the offence also carries a standard sentence of 25 years, which rises to 30 years if the victim is an emergency worker or custodial officer.
Enacted in February 2013, the standard sentencing scheme provides standard sentences for 13 serious offences to act as a guidepost for sentencing judges. The standard term represents the penalty for a crime committed in circumstances that represent the middle range of seriousness.
Victorian Supreme Court Justice Rita Incerti sentenced Payne to 16 years gaol time, with non-parole set at 10 years on 1 June 2023.
The non-parole period amounts to 60 percent of the head sentence, which is required when a term of less than 20 years is imposed in respect of a standard sentence offence.
Grounds against conviction
Payne appealed her conviction and sentence to the Victorian Court of Appeal on 25 October this year. And the convicted murderer put several grounds of appeal to Justices Stephen McLeish, Stephen Kaye and Terry Forrest.
In terms of her conviction, the first ground involved the admissibility of the evidence given by Alice, who has an intellectual disability. Payne’s criminal defence lawyer argued this in regard to the evidence provided in her original interview as well as during the trial, which ultimately represented three different versions of events.
However, their Honours did not consider this made out, as Justice Incerti was found to have provided directions to the jury in regard to Alice’s cognitive impairment and how her evidence should be considered in light of this.
The second ground regarding conviction related to the prosecutor’s closing address, in which he’d appeared to imply that Alice may have been involvement in the killing, and he also gave reasons as to why he thought Alice might have been “guessing” during her provision of evidence.
Further assertions made by the prosecution that were scrutinised on appeal had a focus on a toxicologist’s remark on how may pills might have been used, despite there being no scientific basis for such an assertion, as well as speculation on the possibility of positional asphyxia having occurred.
In response to the second ground, their Honours emphasised that “a prosecutor must act with scrupulous fairness in the presentation of a… case, and a failure to do so may result in a substantial miscarriage of justice”. But, in the case at hand, the prosecutor had not prejudiced the court in this way.
Appeal against sentence
The final ground of appeal was in regard to Payne’s imposed sentence and non-parole period being manifestly excessive, which was based on the points that “due to sustained and chronic family violence justified leniency and mercy in” sentencing was warranted.
The evidence that Payne perpetrated her crime “in the context of considerable emotional, sexual and physical abuse and that she was entitled to be distressed, overwhelmed and angry” was ample. Yet, it was also found this did not provide her with entitlement to kill her husband.
The sentencing judge described the offence as “unique”, as Payne was a victim of family violence at the hands of the person she’d killed, however she had not acted in self-defence. And ultimately, Judge Incerti found the “offending fell at the lower range of objective seriousness for… murder.”
The appeals court justices found that despite a standard sentence applying to murder, a sentencing judge is still required to perform their “instinctive synthesis” of all the evidence before them and to impose the correct term of punishment.
However, in this case, their Honours found, the sentence was manifestly excessive, and the appeal was upheld.
An appropriate sentence for the circumstances
On resentencing Payne, Victorian Justices McLeish, Kaye and Forrest set out that she was 41 years old at the time of the offending and she’d been experiencing upwards of 10 years of “intolerable and seemingly escalating emotional and physical torment at the hands of the deceased”.
Further, this means that Payne had lost her thirties to years of abuse, while she will lose her forties to prison, and this is as her children remain living in the community.
So, in light of these “exceptional circumstances”, “a proper exercise of mercy” was necessary in order to reflect reduced culpability in sentencing.
And on 20 November this year, the three-justice panel of the Victorian Court of Appeal resentenced Payne to 12 years prison time, with non-parole set at 7 years. And their Honours added that they regarded the case as “wholly exceptional”.
