R v Cadman

Supreme Court of NSW|2019-05-29|Before: Button J

Introduction

On 26 March 2019 in the Supreme Court sitting at Newcastle, Robert Brian Cadman (the offender) was arraigned on an indictment before a jury panel and me. It contained a single count, alleging that, on 3 December 2016 at Toronto, he had murdered Yvonne Beryl Parkes (to whom I shall usually refer in these remarks as "the deceased").
The offender pleaded that he was not guilty of murder, but guilty of the lesser form of homicide, manslaughter. The Crown did not accept that plea, with the result that a jury was empanelled, and a trial confined to that issue proceeded over the next two weeks or so.
More particularly, it was made clear by learned defence counsel from the earliest stage of the trial that the offender did not dispute that all of the elements of murder could be proven beyond reasonable doubt, but he relied upon the affirmative partial defence of substantial impairment in support of a manslaughter verdict.
On 9 April 2019, the jury returned a verdict of guilty of murder. Evidence and submissions on sentence were received by me on 29 May 2019, and it falls to me to sentence the offender today.

Fundamentals of approach

In accordance with well-established sentencing principles, I have approached my task on the basis that all findings of fact to be made by me must be consistent with the verdict of the jury. Within that framework, aggravating features alleged by the Crown need to be proven beyond reasonable doubt; in contrast, matters in mitigation need only be proven by the offender on the balance of probabilities. Some matters, perhaps, will remain unclear.

Objective features

The tragic facts of what the offender objectively did in committing the offence of murder can be shortly stated.
On the evening of Saturday 3 December 2016, he and the deceased, a woman aged 67 years, had been in a relationship for 8 years or so. They were living together in a modest apartment in Toronto, a township some distance to the south of Newcastle.
Some time between 8 and 9pm, the offender was in the lounge room of the home watching television. The deceased was in the bathroom in the process of dyeing her hair, and was at that moment using the toilet. In short, to all appearances, it was an unremarkable weekend evening at home, during which an older couple was relaxing and attending to domestic chores.
The offender got up from where he sat, walked to the kitchen, and armed himself with a large knife. For reasons that I shall explain shortly, his actions were spontaneous and unplanned. He entered the bathroom and repeatedly stabbed the deceased where she sat. She was, of course, utterly taken by surprise, and completely defenceless. In all, he stabbed her five times, once to the abdomen and four times to the chest. One of the wounds deeply penetrated her heart, and thereby caused her death. Although her final ordeal was thankfully not an extended one, it was surely terrifying and excruciatingly painful. It also occurred in her own home, where she was entitled to feel safe, and indeed in a part of the home where one is entitled to extra privacy.
Although defence counsel submitted (for reasons that I shall explain shortly) that I could not be satisfied beyond reasonable doubt that an intention to kill was held by the offender at the time of the stabbing, I think that the number, the location, and the depth of the wounds compel that finding. Having said that, the point is soundly made by defence counsel that it was an intention formed in extraordinary psychological circumstances, which I shall shortly detail.
After that, the offender took the rudimentary steps of closing the blinds of the apartment and locking it, in some sort of effort to hide what he had done. He left the flat on foot, and ran into the mother of a neighbour, to whom he correctly identified himself in conversation. After that, he drove off in his own car, at first driving normally but after a short time doing so erratically, and ended up colliding with a tree. Whether that was an accident or a deliberate attempt at self-harm or suicide is not clear to me. When bystanders attended the scene of the collision, he immediately confessed that he has killed his wife, and has been in custody ever since.

Objective gravity

It is incumbent upon me to make an assessment of the gravity of what the offender has done, leaving aside for the moment the question of how and why he came to do it; in saying that, that sort of division of factors admits of no bright lines, especially in a case such as this.
Of course, every murder is an offence of the utmost gravity, featuring as it does the criminal taking of human life in the most serious circumstances known to law. Nevertheless, the criminal law calls upon me to make some assessment of where this murder fits into the spectrum of all murders generally, not least so that I can sensibly take into account the maximum penalty and the standard non-parole period pronounced by Parliament.
As I have said, this murder must be taken to have featured nothing less than an intention to kill. It was effected by way of a patently dangerous and deadly weapon. It was committed against a defenceless woman in her own home in a setting of particular vulnerability. Although not premeditated and spontaneous, it was the result of no provocation whatsoever. As I remarked during the proceedings on sentence, on one analysis it can simply be seen as a horrific act of domestic violence.
By any measure, this murder must be assessed as a very grave example of the criminal taking of the life of a fellow human being.

Subjective features

The explanation for the extraordinary events of that evening is to be found in the subjective features of this matter pertaining to the offender, to which I now turn.

Background

At the time of the offence, the offender was aged a little over 51 years. He had never been convicted of a crime of violence or dishonesty in his life; indeed, the only offences of which he has been convicted are a number of drink driving offences over 30 years ago.
He had been brought up in what appears to me to have been a solid family, and as a young man had done an apprenticeship at the smash repair business of his father. Many years ago, the offender endured, and recovered from, a serious blood disease, and it affected him psychologically as well as physically. After that time, he lived on a disability pension, no doubt in modest circumstances, but had contributed to the community by way of refereeing junior soccer. I believe that, up until 3 December 2016, people thought of the offender as a gentle, unassuming, unsophisticated person.
The offender and the deceased had met in about 2007, and the uncontradicted evidence is that theirs was a happy relationship. There was no sign of trouble between the two of them, let alone violence, and indeed on the evening in question a neighbour within the block of flats, who was able to hear something of the fatal assault, did not hear any argument, or even raised voices, in the minutes preceding it.

Alcohol withdrawal

In all of those circumstances, one is entitled to ask: how on earth did this tragedy happen?
The answer is that the offender had struggled with a serious problem with alcohol for many years. So had the deceased, but by the time of her death she had beaten it and put it behind her, and I emphasise that her own previous difficulties with that substance had nothing to do with this offence.
On the evening of Thursday 1 December 2016, the offender had decided to stop drinking abruptly, seemingly without telling anyone of his decision, and seemingly without putting in place a plan to get medical help as necessary.
The result of that was that, once he stopped drinking, changes to his brain, which had occurred over many years when he was drinking heavily, caused him to enter a phase of alcohol withdrawal syndrome that became very acute. Indeed, by the morning of Monday 5 December, he was manifestly suffering from delirium tremens (the DTs), and was so ill that a nurse insisted that he be taken to a hospital, not a gaol, even though he had very recently been charged with murder.
Working backwards in the chronology, at 4am or so on the Sunday, when interviewed by police, he had become largely incoherent. (Having viewed the video of that interview, and having reflected carefully on what the offender had to say and how he said it, I respectfully do not accept that he was malingering in any way at that stage.) Indeed, on the mid-morning of the Saturday, that is, some hours before the offence, he had attended the Emergency Department of a hospital with members of his family. That was ostensibly because problems with his eyes led him to fear that his blood disease may have returned, but in truth I consider that at that stage his mind was becoming disturbed, to a degree, by withdrawal from alcohol.
As for the state of his mind at the time of the murder itself, of course I do not presume for a moment to impugn the verdict of the jury, our time-honoured and constitutionally-mandated tribunal of fact with regard to serious criminal matters, nor its finding that the mental state of the offender at the time of the commission of the offence was not so substantially impaired as to call for a verdict of manslaughter. And it is true to say that, up until that time, he had been reasonably calm, coherent, and able to interact with other persons sociably and more or less normally.
Nevertheless, at the time that this sudden, irrational, motiveless, unprovoked murder of the utmost brutality was committed by a mature man of no previous violence, including against the deceased, in my opinion one is compelled to the conclusion that sudden withdrawal from alcohol had affected his mind to a significant degree.
In other words, this is not an example of a person committing an offence of great violence as a result of intoxication by alcohol or prohibited drugs. To the contrary, it is the exact opposite: the foolish, indeed disastrous, decision of the offender suddenly to abstain from the substance on which he had been dependent for many years caused him to suffer a significant disturbance to his mind, with the result that he acted completely out of character, and inflicted fatal violence upon a person whom he loved.
That unexpected, unintended alteration in his mental state does not detract for a moment from the simple objective gravity of what the offender has done. But it does mean that any sentence that I impose should, indeed legally must, reflect that reduction in his moral culpability, along with a reduced (but by no means eliminated) emphasis on general and personal deterrence.

Remorse

Bound up with the mental state of the offender that evening is the fact that even now, over two years later, he has no understanding of why he did what he did. So much is clear from all that he has said to two psychiatrists, and what he told me two days ago on oath in the witness box, evidence that I accept.
It is also clear that he bitterly regrets what he has done, and, whilst it remains a mystery to him, he appreciates its enormity. I say that not only because from the moment he was found at the car accident he confessed that he had taken a life; because he offered to plead guilty to the lesser form of homicide at an early stage; because no doubt the plea of not guilty to murder was appropriately informed to a degree by legal advice and psychiatric opinion; because the offender emphasised his bitter regret to psychiatrists; and because he gave evidence of it on sentence. I say it also because, as I remarked in the proceedings on sentence, I had noted during the trial that he spent much of the proceedings quietly crying in the dock.

The future

As for the future, his counsel has accepted that this middle-aged man must spend many more years in gaol. There the offender is trying to keep himself busy by working in a laundry and pursuing available education; is medicated for depression, seemingly not particularly effectively; and is no doubt doing his best to keep a low profile, to keep out of gaol politics, and to keep away from younger, hardened criminals. Commensurate with his age, his physical health is not particularly good, and I do not doubt that finding himself incarcerated in middle-age is an unexpected and bitter blow. Still and all, I think that this man will use the years ahead as quietly and constructively as he can.
I also think that his prospects for rehabilitation on eventual release are unusually good, though it is obviously imperative that his long-standing problematic relationship with alcohol - which underpins this tragedy, albeit in an unusual way - is closely monitored, in the interests of community safety.
Relatedly, whilst the parole period will inevitably be lengthy, after reflection I have come to accept the proposition that there should be a finding of special circumstances that extends it, to some degree. That is because it will be an enormous adjustment for the offender when he is released well past his 60th birthday, his psychological state may not be entirely uncomplicated at that time, and I am concerned to ensure that his relationship with alcohol never inflicts harm on any person ever again.
Having said that, I have also taken care to ensure that the mandatory minimum period of incarceration imposed by me adequately reflects the gravity of this act of fatal violence.

Approach to trial

The final aspect of the approach of the offender and his lawyers to this matter that I have taken into account is this. It is quite true that there can be no utilitarian discount for the plea of guilty to manslaughter in the strict sense, the offender having been found guilty of murder at the conclusion of a trial by jury. But as an inevitable function of his admission of homicide minutes after its commission, the trial was tightly focused, and far shorter than if his culpability had been denied entirely. As well as that, as I have said I think that I am entitled to infer that the failure to accept the offence of which he has been found guilty, constituted by the plea of not guilty to murder by this unsophisticated man, was informed largely and appropriately by medical opinion and legal advice. In the circumstances, the sentence that I shall impose takes all of that into account in accordance with statute, without me providing any explicit arithmetical discount with regard to it.

Various matters

I turn briefly now to a number of matters that I should make clear.
First, with the agreement of both counsel, my sentence is backdated to the date upon which the offender came into continuous custody solely referable to this offence; that is, 3 December 2016.
Secondly, I do not propose mechanistically to recite the aggravating and mitigating features of which statute speaks that I have taken into account. I have referred myself to the relevant statute, and these remarks encapsulate all of them.
Thirdly, I am required to inform the offender publicly that, in light of the offence of which he will shortly be convicted, it is possible that he will remain in gaol even after the expiry of his entire head sentence, if it is then established that his rehabilitation has been inadequate and he presents a danger to the community.
Fourthly, I appreciate that the sentence that I shall shortly impose may be thought to be an unusual one in light of the established intention to kill; the abhorrence that the community feels for fatal domestic violence; and the need for a trial to establish the guilt of the offender of an offence that he did not admit. I am aware of that possible characterisation of my sentence, but nevertheless regard after reflection its quantum as appropriate, in the most unusual circumstances of this case.

Victim impact statements

Much has been said in these remarks about the offence, and the offender who committed it. That is a requirement of the law, so that everybody can understand what underpins the sentence that I shall shortly impose. But I well appreciate that, until now, I have said little about the deceased. And I respectfully think that the point was soundly made in the victim impact statement of the grieving daughter of the deceased that barely a word was said in the trial about the person who was, in truth, the subject of the entire proceedings. No doubt it is appreciated that that was because the central focus of the trial was the mental state of the offender, and I wish to assure the entire community that there was never the slightest disrespect meant by me or anybody else to the memory of Ms Parkes in the way that the trial unfolded.
The two moving victim impact statements kindly provided to me by the daughter and the sister of the deceased show that, as I have said, the deceased experienced her own struggles in life, and I infer that hers was not an easy one. It seems that, at the time of her death, she had achieved a measure of peace, happiness, and stability. All of that was brought to an utterly undeserved end on the evening of 3 December 2016, by way of an act of fatal violence that, indirectly, was caused by the abuse of alcohol. Those who love the deceased have been devastated by what happened, and it seems that her extended family has been torn apart as a result of her untimely death. All of those who are grieving have my condolences on behalf of the Court, along with my hope that the conclusion of the proceedings today will go some way, perhaps, towards alleviating their distress.

Conviction and imposition of sentence

Finally, because the orders imposed on sentence are often a little hard to follow even for lawyers, I think that I should make clear at this stage that the head sentence to which I have come is imprisonment for a period not less than 20 years. In my opinion, anything less than that would not adequately reflect the objective gravity of this senseless loss of human life. 1. Robert Brian Cadman, you are convicted of the offence of murder with regard to the death of Yvonne Beryl Parkes. 2. I sentence you to a non-parole period of imprisonment for 14 years, to commence on 3 December 2016, and to expire on 2 December 2030. That will be followed by a parole period of 6 years, which will expire on 2 December 2036. 3. The first date upon which the offender is eligible for possible release to parole is 2 December 2030.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 May 2019

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