DPP v Sherna [2009] VSC 526

"We lived together as de facto husband and wife. We had no children, we've had no family or friends. We didn't go out to restaurants, we had never had a holiday and not many people can understand or believe that. ... We actually slept in separate bedrooms for between ten and 15 years. I can't remember the exact amount of time. And the last time we had sex was three years ago. We never kissed open mouthed. It would just be a peck on the cheek. ... We argued like all couples do, except other couples can go and talk to someone, a friend, family, et cetera, but because we had no friends or family that we could confide in, it just built up - built up years of abuse. Her favourite term was 'low-life'. Used to call me low-life. ...

Susie was a mouth - really mouthy, none of the neighbours liked us at all. None of the neighbours would talk to us because she was always mouthing off at them and when we got - Susie never ever had a licence. She never ever got it in her life. So I used to have to go and do all the shopping and everything and drive her around wherever she wanted to go and, of course, by doing all the driving, I couldn't do the work at home because we didn't have any family friends. ... So for me, it was a - just every day was a pressure cooker day. A pressure cooker."

3 In evidence given by you at trial, you described your relationship with the deceased in greater detail. You painted a picture of the deceased as an aggressive, difficult and controlling person who completely dominated you - describing (amongst other things) incidents where she came at you with a knife (grazing you along the shirt and actually cutting you along the chest on one occasion), an incident where you said that the deceased "became very out of control and violent as well and tore my shirt", extreme limitations that the deceased put on your social life, requiring you to sleep on a camp bed for many years, requiring you to change your name, limiting your use of the toilet at home, limiting your access to money, an incident when she threw full beer cans at your head, limits she imposed on your contact with your family, abusing you and making various threats.

4 Whatever view one might take of Ms Wild and her relationship with you, she was a person who was obviously loved, and is now deeply missed, by her mother. In the sentence I am about to impose, I have had regard to the admissible parts of the Victim Impact Statement made by Ms Wild's mother. Specifically, I have had regard to the impact of your offence, which is described in the Victim Impact Statement in the following terms:

"It is very difficult coming to terms with Sue's sudden death, and I would say the emotional trauma and ongoing anxiety is probably the worst aspect.

I live in daily fear and dread that something terrible may happen to any one of my surviving children.

As a result of these anxious feelings, I am having trouble sleeping and feel over-tired and stressed all the time."

5 On Friday 1 February 2008, you left work at approximately 5.30pm and returned home to Tarneit. You spent the evening with the deceased, where you consumed six to eight beers and she consumed a number of glasses of red wine.

6 During the evening, it would appear that the deceased argued with you over a mobile telephone bill, she having previously questioned you over a number of calls you had made. At approximately 9.58pm, the deceased telephoned her mother in Tasmania and spoke to her for approximately 1¾ hours.

7 Close to midnight, you were rocking your Jack Russell cross Maltese Terrier, Hubble, to sleep as was your standard practice each night. Whilst you were rocking Hubble, the deceased (to use your words to the police) "came storming in yelling and screaming" and upsetting the dog. You were upset by this. You were in the laundry. The deceased went back to the kitchen. You followed the deceased from the laundry into the kitchen, but first you grabbed the cord out of your dressing gown. In your interview to the police, you said:

"I then lost my temper. I lost my temper and I strangled her with the dressing gown cord until she could no longer breathe."

"I was real angry. What happened was I had left the laundry, my dressing gown hangs on the door, I grabbed the cord off the dressing gown - - - I was just so angry I just - because I was drunk - that's, I grabbed the cord to kill her. I was so angry."

9 In your interview with the police you were asked whether the deceased said anything to you as you came towards her and you said that she said: "Tony, no. Don't do it" and that you just ignored this.

10 When asked about your intent at the time you had the cord around the deceased's neck, you told the police: "I just wanted to kill her".

11 In your evidence at trial, you admitted that when you got the dressing gown cord, it was to kill the deceased. However, you said that when you came into the kitchen area, you stopped on the other side of the kitchen bench from the deceased. After stopping, you calmed yourself down and you no longer had any intention to kill. You gave evidence that while standing at the kitchen bench, you made a conscious effort to control your anger and you calmed down.

12 You gave evidence that the deceased then taunted you about the mobile telephone bill, about which she had previously argued with you about - saying that you would never find it. You then described (and I use your words):

"And at that inexplicable moment I had a surge of emotion. It's impossible to explain. And I lost all rationality. - - - I didn't decide anything. There was nothing in my head. ... It was a complete surge of emotion. I had no rationality about it. The next thing I knew she was dead."

13 However, you agreed that whilst this was now your evidence, you did not want to change the account you gave police that you took two to three minutes to strangle the deceased. Further, in your evidence you recounted how the deceased said "Tony, no, don't do it" and you described the trickle of blood you observed coming from her mouth.

14 After you killed the deceased, it would appear that you went out to a poker machine venue at Werribee Plaza, where you consumed alcohol and played the poker machines for three to four hours. Following this, you attended a brothel, before returning home at approximately 5.00am.

15 The next day, you dragged the deceased's body to her bedroom, where you placed her on top of the bed. On the Monday (4 February), you contacted your workplace and stated you needed the week off as your wife had left you. On that same day, you commenced digging a hole in the rear of your yard to bury the deceased. You purchased a length of rope and two elastic straps to assist you in this process. In the early hours of 5 February 2008, you buried the deceased in the backyard of your home and then planted a number of plants near her body. Ultimately, as a result of things you said to your mother, the police attended your home on the evening of 9 February 2008 to check on the welfare of the deceased. At that time, you told the police that you had strangled the deceased and buried her in the rear yard.

16 At trial, you did not take any issue with the fact that you caused the death of the deceased by strangling her with your dressing gown cord; nor did you take any issue with the proposition that your acts were conscious, voluntary and deliberate. The trial was conducted on your behalf by your counsel submitting that you were guilty of manslaughter, rather than murder. This submission was made on the basis that the prosecution could not prove beyond reasonable doubt that when strangling the deceased, you intended to kill or cause really serious injury.

17 The jury convicted you of manslaughter, and it follows that the jury accepted the proposition that the prosecution failed to establish at the time you killed the deceased that you intended to kill or cause her really serious injury. You are, of course, to be sentenced for manslaughter - and not murder.

18 I accept that the relationship between you and the deceased was one of considerable unhappiness over a prolonged period of years. Further, I accept that the deceased was both controlling and domineering of you and that from time to time this involved significant episodes of unpleasantness on her behalf. Nonetheless, even if everything you said in evidence concerning the deceased and your relationship with her was true, it would not justify or excuse killing her.

19 I do not accept the prosecution case that much of what you said concerning your relationship was fabricated. However, in my view, the account you gave in evidence was an exaggerated one which over-emphasised some of the negative aspects of the relationship. While I accept that it was understandable for you not to mention in your police interview on 10 February 2008 some of the detail and incidents about which you gave evidence in this Court, in my view, your failure to mention these matters to the police demonstrates that it is likely that they did not have as great a significance in your relationship as might have been thought from your description of them in evidence.

20 I accept that you and the deceased had a very abnormal relationship, with each of you being dependent on the other to an extent considerably greater than would be regarded by others as usual or normal. Mr Cummins, a consulting clinical and forensic psychologist, gave evidence that yours was "an extremely symbiotic relationship with each of you being inappropriately dependent on the other". I accept Mr Cummins' evidence in that regard. However, again, it does not provide any justification for placing a cord around the neck of the deceased.

21 There are matters which tell in your favour in the exercise of the sentencing discretion. First, prior to strangling the deceased, you were a man of good character who had not been in trouble with the law. You had successfully held down responsible jobs and shown nothing to suggest that you were other than a law abiding and self-supporting member of the community. In short, your previous good character tells strongly in your favour.

22 Secondly, I accept that you have very good prospects for rehabilitation. Since your arrest for this offence, there has been a renewal of contact with your biological family, and this contact itself is likely to significantly enhance your prospects of rehabilitation.

23 Thirdly, prior to trial (and, indeed, prior to the commencement of an earlier trial of this matter), you offered to plead guilty to manslaughter. This is a matter which must be taken into account in your favour.[1] However, any discount which this attracts cannot be particularly large.[2] Given that there was no dispute that you killed the deceased with a dressing gown cord in the circumstances I have described, it was always most unlikely that you would not be convicted at least of manslaughter.[3]

24 In submissions made on your behalf, it was put that the dysthymic disorder and chronic adjustment disorder about which Mr Cummins gave evidence provided some room for the moderation of general deterrence as a sentencing consideration.[4] Mr Cummins gave evidence that a dysthymic disorder is a specific depressive disorder, one level below a major depressive disorder. I accept that at the time you killed the deceased, you suffered from a dysthymic disorder and a chronic adjustment disorder. However, I do not accept that the seriousness of these conditions warrants more than a limited moderation of deterrence considerations.

25 Your counsel submitted that when running a trial "it is not the opportunity to be standing there expressing loads of remorse". Nevertheless, she said that in the course of this trial and the previous trial, there was evidence from you of obvious remorse. She instanced your mother's statement of how you were crying when she visited you after the killing. Your counsel also referred to your evidence in the first trial when you said:

"We were crying because I was extremely remorseful for what I had done and the other thing is that I was crying because I thought that's the last time I'd ever see mum again because I'd killed and I was talking to her about what suit to get for my funeral and other things associated with that."

Additionally, your counsel referred to your evidence in this trial as to the fact that you were in shock and in grief in the seven days after the event.

26 In my view, a consideration of the evidence as a whole discloses significant concern by you for your position and a significant regret for the position in which you have found yourself following the death of the deceased. This is not remorse. Whilst it is possible that you now have some remorse for your actions, I am unable to conclude that that is a significant mitigatory factor in this case. To the extent that in the evidence you gave either at the first trial or this trial, you expressed remorse, I do not accept that evidence.

27 In her plea on your behalf, your counsel submitted that the killing of the deceased was not premeditated. This is correct as demonstrated by the jury's verdict. I accept that you had no intention or thought of killing the deceased before she came into the laundry yelling and screaming and upsetting you and Hubble. However, very shortly after this happened, you formed the intent to kill the deceased and then grabbed your dressing gown cord for the purpose of acting on this intention.

28 You had the weapon in your hand that you used to kill the deceased because you obtained it from your dressing gown for that very purpose. You then proceeded from your bedroom door through into the family room and around to the bench between the kitchen and the dining room, with the intention of killing the deceased. Consistently with the jury's verdict, that intention then dissipated. However, the fact remains that you held the weapon with which you killed the deceased because of your earlier intention to kill her.

29 Further, this is not a case where someone in a fit of anger lashes out and kills with one blow. This, on your own evidence, was a case where you took two to three minutes to strangle the life out of the deceased. It was, on any view, a brutal attack perpetrated by you on a person who was smaller and weaker than you were.

30 Having regard to the jury's verdict, I must sentence you on the basis that the prosecution has failed to establish that when strangling the deceased you intended to kill her or cause her really serious injury. However, the jury's verdict means that it was satisfied that you engaged in an unlawful and dangerous act - namely an assault which a reasonable person in your position would have realised would expose Ms Wild to an appreciable risk of serious injury. Accordingly, this is the basis of the sentence which I am about to impose.

31 Short of murder, the unlawful killing of a human being by the deliberate placing of a cord around that person's neck for some two to three minutes is amongst the most serious of offences against that person. To borrow from the words of Nettle JA in DPP v Phillips,[5] "Regardless of the absence of murderous intent, the possibility of extreme harm and the potential for disaster are so obvious as to render the offence most heinous".

32 With the abolition of the rule of law that provocation reduces the crime of murder to manslaughter,[6] the unlawful killing of a human being by deliberately strangling them falls at the serious end of the range of the crime of manslaughter. Further, as was said by the Court of Appeal in R v AB (No. 2),[7] the maximum sentence provides a guide as to the seriousness with which a particular offence should be viewed: it serves as a directive to the Courts on how to weigh the gravity of such criminal conduct, the maximum penalty itself being prescribed for the worst class of offences in question.

33 As well as the maximum sentence and the matters referred to in s 5(2) of the Sentencing Act, the Court must consider the purposes for which sentences may be imposed, being:

(a) to punish the offender to an extent and in a manner which is just in all the circumstances;

(b) to deter the offender or other persons from committing offences of the same or a similar character;

(c) to establish conditions within which it is considered by the Court that the rehabilitation of the offender may be facilitated;

(d) to manifest the denunciation by the Court of the type of conduct in which the offender engaged; and

(e) to protect the community from the offender.[8]

34 Taking all of the matters to which I have referred into account, and having due regard to the principles of parsimony and proportionality, I sentence you to 14 years' imprisonment for the manslaughter of Susanne Wild and I fix a non-parole period of 10 years.[9] I declare that, pursuant to s 18(4) of the Sentencing Act, you have already served a period of 650 days in custody, and I direct that this fact be noted in the records of the Court.

[1] Cf s 5(2)(e) of the Sentencing Act 1991.

[2] In submissions, both counsel accepted that s 6AAA of the Sentencing Act was not engaged in this case.

[3] Cf DPP v Phillips [2009] VSCA 68 at [29].

[4] Cf R v Verdins [2007] VSCA 102; (2007) 16 VR 269.

[5] [2009] VSCA 68 at [35].

[6] Crimes Act 1958, s 3B.

[7] [2008] VSCA 39; (2008) 18 VR 391 at 403 [40].

[8] Section 5(1) of the Sentencing Act requires these purposes to be considered individually, or if relevant, in combination.

[9] Cf R v Detenamo [2007] VSCA 160 at paragraph [25] and following.