R v Cavanough

Supreme Court of NSW|2007-06-07|Before: Whealy J, Street CJ, Bell J, Giles JA

HEARING DATE(S) : 2/4/07, 03/04/07, 04/04/07; 05/04/05, 10/04/07, 11/04/07, 12/04/07, 13/04/07, 16/04/07, 17/04/07, 18/04/07, 19/04/07

DECISION : Sentenced to a term of imprisonment comprising a non-parole period of 5 years and a balance of term of 3 years nd 2 months. The sentence is to commence on 10 February 2007 and the non-parole period is to expire on 9 February 2012. That date is the date on which the offender will be eligible to be released on parole. The balance of the term will expire on 9 April 2015. I make the following recommendations: 1. While in custody, the offender is to receive appropriate counselling and treatment including psychiatric counselling, treatment and anger management counselling. 2. I further recommend, that upon release pursuant to any parole order, the Probation & Parole Service consider, as part of any supervision program relating to the offender, that she be required to accept the direction of the Probation & Parole Service in relation to receiving continued psychological counselling including that relating to anger management. Further, that she be directed and counselled as to her use of alcohol and illicit drugs during any period of parole. 3. I recommend that the prison authorities consider, after classification, that the offender be kept at Grafton Gaol. The purpose of this is to allow the offender reasonable access to her mother and to her infant child. I direct that a copy of my remarks on sentence be forwarded to the Corrective Services Department and to the Probation & Parole Service to be kept with, and part of, files held by each of the Departments in relation to the offender.

LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999

Hill (1981) 3 A Crim R 397 at 402 per Street CJ McDonald (NSWCCA 12 December 1995) Previtera (1997) 94 A Crim R 76 CASES CITED : Bollan (1998) 99 A Crim R 510 Williams v Regina [2006] NSWCCA 33 Regina v Bryan Steven Johnson [2003] NSWCCA 129 at (4) per Bell J with whom Giles JA and Carruthers AJA agreed Regina v Oinonen (1999) NSWCCA 310 Regina v Pennisi [2001] NSWCCA 326

PARTIES : Regina v Sandra Dorothy Cavanough

COUNSEL : Mr C. McPherson - Crown Mr C. Bruce - Offender

SOLICITORS : Office of the DPP - Crown Susan Oliver Lawyers - Offender

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

1 HIS HONOUR: On the 2nd day of April 2007, Sandra Cavanough ("the offender") was indicted before me on a charge that, on 22 January 2006, she did murder Stuart Day ("the deceased"). The deceased died from a stab wound administered to him while he and the offender were at the Wooli Caravan Park. 2 On the 18th day of April 2007, the jury, at the conclusion of the offender's trial, found her Not Guilty of the offence of murder but Guilty of Manslaughter. Manslaughter carries a maximum penalty of 25 years imprisonment. 3 It is necessary for me to make findings of fact in relation to the circumstances of the offence. This in turn will require me to make a number of detailed findings about the background and subjective circumstances of the offender herself. 4 By way of introduction, I should add that, at trial, the offender gave evidence that she did not intend to kill or cause really serious physical injury to the deceased when she inflicted the stab wound. It was the defence case that the offender intended no more than to cut the deceased's arm to show him "that she was not mucking about". Secondly, the offender's case left open the possibility that she had lost control of herself due to the conduct of the deceased in all of the circumstances leading up to the stabbing. In other words, an issue was raised as to whether the Crown had eliminated provocation beyond reasonable doubt. Finally, the defence raised the issue of substantial impairment of mind. At the commencement of the trial, the offender had pleaded guilty to manslaughter but not guilty to the offence of murder. The Crown, however, did not accept this plea to the alternative charge.

The circumstances of the offence 5 The offender comes from a sad and difficult background. She is an Aboriginal woman who was born on 26 October 1984. She is now 22 years of age. Shortly after her birth, her father, who was an alcoholic, left her mother. She has only seen her father twice in the last 22 years, once when she was 11 and a second time when she was about 16. Other than that, she has had no contact or relationship with her father whatsoever. 6 The offender's mother took up with another man, Kevin Anderson, and he stayed with her for sometime. The offender was about 11 when this relationship ended. This however, was not a good relationship and it was, on occasions, a violent one. On a number of occasions, Mr Anderson bashed the offender's mother. This happened particularly when both of them had been drinking heavily and were intoxicated. The offender's mother was for many years an alcoholic but was forced to abstain from alcohol when the offender was about 11 years old. This happened as a consequence of the offender's mother developing serious liver problems. Shortly after this, the offender's mother suffered a stroke. It appears from an early age until her mother stopped drinking, there was a very poor relationship between the offender and her mother. There was no love between them during this period and her mother treated the offender badly. The overall picture painted was a most unfavourable one of life at the Box Ridge Mission at Coraki. The offender's mother drank heavily, especially on paydays, and more often than not was "real drunk". The main problems, systemic to mission life, were alcohol, drugs and domestic violence. All these were a regular problem at Coraki. They were the unfortunate backdrop to her childhood and teenage years. 7 The offender herself went to school but did not get beyond Year 8. She left school when she was about 13 and, apart from one brief attempt to do a course at TAFE, she received no further education. Her intellectual functioning level is borderline. She has been on a disability pension since she was 18. 8 The offender herself began to smoke cannabis and drink alcohol at about the age of 12. Between the age of 13 and 16 she lived on the streets from time to time, moving back home on occasions. To use her expression, she "just hung around the streets for a while", increasing the use of both cannabis and alcohol as she grew older. She never considered that cannabis was a problem for her although it is clear, from an objective point of view; she was drinking and smoking very considerable quantities of both alcohol and drugs. In company, she would drink two cartons of beer and a bottle of spirits on a daily basis. By the time she was 17, she smoked five or six bongs a day. 9 One incident that clearly had an impact on the offender related to a period of time when she was regularly sexually abused by the male Aboriginal partner of one of her aunties. This commenced at about the time she was 13 and happened on about five occasions. The nature of the sexual abuse was that the man would feel various intimate parts of the offender's body. On a later occasion, the offender found that an Aboriginal male relative was standing over her touching her, and that her pants had been taken down. This unpleasant activity occurred at the time the offender was 15. 10 The offender met the deceased when she was about 16. She met him in Lismore at the Richmond Hotel. Although they knew one another for a year or two, she said they did not form a relationship until she was 18. The offender's experiences with the Aboriginal friend of her auntie and the other male gave her fears about making contact with Aboriginal males. On occasions, she would panic when she was around Aboriginal men and become nervous and frightened. Psychiatrists later were able to agree that these anxiety symptoms were part and parcel of a Post-Traumatic Stress Syndrome brought about by a re-experience of the sexual abuse she had sustained between the age of 13 and 16. These symptoms did not intrude on her relationship with the deceased. 11 At first, it seems the offender's relationship with the deceased was a good one. The offender wanted to have a home where she could feel safe. It appears that this was a very important matter to her. She hoped and anticipated that the deceased would provide her with a home. However, somewhat unusually, it appears that the deceased preferred living in the bush. For example, they lived together as a couple for a time at the Mullumbimby Hotel. A little later however, they lived around in coastal bush areas. For a time, they lived on the beach in the sand dunes at Lennox Head. Later they lived in a bush area near the Service Station on the main road leading from Lennox Head to the coast road to Byron Bay. They lived in this way for months at a time. When the deceased went to work the offender would remain in a tent until his return. It seems alcohol and cannabis were a daily feature of the relationship. 12 The offender and the deceased were the parents of a child born in February 2005. Although they had lived in the bush before Clive's birth, they moved back, after the birth, to the Box Ridge Mission where the three of them lived together for a time with the offender's mother. The offender fell pregnant a second time. This circumstance was to cause a serious rift in the relationship between the offender and the deceased. She wanted to have the second child but the deceased insisted that she have an abortion. The pregnancy was terminated in about September 2005. After this, the relationship deteriorated. The offender developed a considerable degree of anger towards the deceased blaming him for the decision to determine the pregnancy. The relationship however, did not come to an end altogether, although the deceased moved out of the Mission and ceased living there on a fulltime basis. There were occasions, for example, when they spent the night together after this period of partial breakdown of the relationship. It appears the deceased smoked cannabis regularly and drank a fair amount of alcohol. The deceased however, was unhappy with the offender and they had frequent arguments about the extent to which she was abusing alcohol and drugs. The deceased had a good relationship with his son Clive but his relationship with the offender continued to sour. 13 The offender gave evidence that the termination of the pregnancy had a significant effect upon her. It was not part of her family and Aboriginal culture to terminate a pregnancy. It was against their religion and she wanted to have the baby. In fact, she had not told her mother about the abortion at the time. Her mother only found out about the termination of the pregnancy when the court proceedings were instituted. She still has not discussed this issue with her mother because she feels sad, hurt and sick when she thinks about the circumstances of it. 14 Not only did the relationship between the offender and the deceased continue to deteriorate, there were episodes of violence between them. Indeed, this had been so prior to September 2005. This was particularly the case in relation to bouts of anger experienced by the offender, especially when she was drinking with the deceased. She made admissions for the purposes of the trial that she had hit the deceased with a cricket bat; she had hit him with a heavy object on the head; and she had swung a golf club at him, although not hitting him. No doubt there were other instances as well. The violence was not all on one side. But it appears from a consideration of the whole of the evidence that the physical acts of violence were, more often than not, perpetrated by the offender upon the deceased, rather than the other way around. There was one incident when she said the deceased had given her a bleeding nose. But, as I say, in general terms it appears that the physical acts of violence were more often than not sustained by the deceased, rather than by the offender. 15 One particular strain between the couple, one which affected their relationship severely, was the fact that, as time went by, the deceased, no doubt in part motivated by his observations of the way in which the offender was abusing herself with alcohol and drugs, threatened to get DOCS to take Clive away from her. This threat had a significant impact on her, particularly in the light of the fact that she had terminated the pregnancy involving her second child. 16 On Wednesday 18 January 2006, the offender went to the deceased's parent's home at Wollongbar and stayed there until the Friday. She owed the deceased's father $50.00 and wanted to give him this money back. She also wanted to give the grandparents an opportunity to spend some time with Clive. The deceased came to the house during this period and there was an argument or two between the couple. The offender told the deceased that she was going down to Sydney for the weekend and that she was taking the child with her. The deceased was not happy about this. The suggestion caused disagreements between them. As it happened, they went together to Byron Bay on the morning of 20 January. They wanted to see whether there might be any accommodation that would be suitable for them there. This visit did not result in any firm decision being reached. The deceased suggested to the offender that they go down to the Wooli Caravan Park for the weekend. His parents had a permanent caravan at the park. They had been there on other occasions. 17 The offender did not want to go to the caravan park for the weekend and said that she would prefer to go back to the Mission. There was a party on there. The offender thought she would like to go with friends to the Coraki Bowling Club. Also, she felt uncomfortable at the caravan park. After they had left Byron Bay, they stopped at the Wollongbar Tavern and purchased a 6-pack of Bourbon and Coke and drove through to Coraki. The offender had asked the deceased to go down to the ATM at Wollongbar and get some money for her from her bank account. This had happened while they had been at his parents place earlier in the day. The deceased took her Bankcard and brought the money back and gave it to her. As I have said, after buying alcohol at Wollongbar, they drove to Coraki. The offender commenced drinking the alcohol and by the time they arrived at Coraki, she had drunk five of the six cans of Bourbon and Coke. At Coraki, she purchased a further six cans of the same alcohol and they then drove on to the Mission. The deceased told the offender that he did not think it was safe for her to keep the cash she had obtained earlier in the day in her bag. He persuaded her to give it to him for safekeeping. He said he did not trust the people out at the Mission. 18 Once they had reached the Mission, they had more alcohol and smoked a few bongs of cannabis together. Once again, the deceased tried to persuade her to come to the Wooli Caravan Park. This led to a further argument in the presence of the offender's mother and sister. In the event, the offender, although she was not happy to go to Wooli, ultimately agreed to do so and the couple set off with the baby to go to the Caravan Park. They stopped at Woodburn and bought two bottles of Cougar and a six-pack of Jim Beam. At one stage in the journey, they stopped and smoked more cannabis. They continued to drink alcohol during the journey. Eventually they arrived at the Caravan Park and set themselves up for the evening in the van. The deceased went up to the local club at Wooli to get some Chinese food for them to have for dinner. The offender kept drinking and she followed the deceased up to the club, taking the baby with her. She said she thought he was going to play the poker machines and that he might use her money to do so. She said she was stressed out in the caravan park. She was concerned that she could not get her money from the deceased and that he might use it. She felt uneasy in the caravan park because she was the only Aboriginal person there. By now, she wanted to leave. She decided that she would get her money from the deceased and try and hire a taxi to go back to South Grafton where she had relatives. She had little money on her, however, and this was the main reason that she went up to the club to confront the deceased. 19 It is clear that the offender was affected by alcohol by this time, although she had developed a considerable tolerance to it over the years. The evidence shows that there were a number of angry outbursts by her at the club where the offender demanded the deceased give her money back to her. It does not appear that he became violent or angry in any way. But he ignored the continued requests that were made to hand over the money. At the club, she rang her mother and asked her to come over and pick her up. But her mother said that she could not do that at the time. She told the offender, that if she were prepared to wait, the family would come and get her the following day. This did not suit the offender and she once again followed the deceased when he left the club, screaming angrily to him to give her money back to her. As before, the deceased appeared to ignore these frequent angry requests and simply went back to the caravan in the park. She followed him, pleading for her money, but he appeared to brush her requests aside. 20 The confrontation between the two people continued for some time in and near the caravan. Many people in the Caravan Park gave evidence about hearing the commotion, which was considerable. The gist of it was essentially the offender's continued demands that she be given her money and the apparent lack of reaction by the deceased to these angry requests. In addition, the offender gave evidence that, during the disputation, the deceased repeatedly said that he was going have DOCS take the child from her. The fatal stabbing occurred in the annexe to the caravan. The offender had been standing a little way back from the door to the caravan itself, apparently attempting to make sure the deceased could not leave. Earlier, in the kitchen, she had picked the knife up from the kitchen drawer. She went outside and made it clear to the deceased that she was not going to let him pass easily. She continued to demand her money. The deceased responded by repeating that he would have DOCS take the child from her. The deceased said, pointing to the knife, "What do you intend doing with that?" She said that she had the knife there to let him know "I wasn't mucking around". This confrontation and disputation continued for about 20 minutes in the annexe area. It did not resolve. It appears the offender threatened to stab him if he did not hand the money over but he would not, and did not, comply. The offender said, "I just clicked". She then swung the knife at him. As I have indicated earlier, the offender's evidence was that she only intended to cut him on the arm with the knife. The demonstration of the way in which she held and moved the knife was not inconsistent with this. The deceased was stabbed, however, in the upper left back area. According to the medical evidence, the nature of the stabbing was such that it was almost inevitable that the deceased would die very rapidly. 21 Dr Lyons, the forensic specialist, was by no means sure he could say with any certainty precisely how the wound was inflicted. He thought it would depend on the position of the two people and whether they were moving at the time. He did not rule out the possibility that the wound may have been inflicted in the circumstances described by the offender. The wound was at an angle. It ran from back to front, left to right and going slightly upwards. The blow would have been administered, he thought, with a moderate degree of force. Tragically for the deceased, the blade did not strike any hard surfaces but passed between his ribs cutting into the lung and partially transecting the pulmonary artery and the major airway. 22 The deceased called out, "You've stabbed me" and then staggered off towards another caravan in the park where he eventually collapsed to the ground. The offender continued to scream out and demand her money. She saw blood on the knife and took it back inside and cleaned it. She picked up the baby and went looking for the deceased. It appears that she did not realise that he was seriously wounded and she continued to scream out for her money as she looked for him in the caravan park. Ultimately she came across a group of people gathered around the deceased who, by this stage, was lying on the ground. She demanded her money once again and kicked the deceased while he was lying there. At that stage two men took hold of her. They moved her and the baby over to the amenities area where she was restrained. She did not believe that the deceased was dying although the reality of the situation became apparent to her during the next 40 minutes. She also kicked one of the men who had taken hold of her and remained very angry. At one stage, she was heard to say that she would stab the deceased again if he did not give her money to her. 23 The police arrived shortly afterwards. The offender was arrested and later charged with murder. As I have said, the offender was found Not Guilty of murder but Guilty of manslaughter, a less serious offence.

The basis of the jury's verdict 24 Manslaughter was left before the jury on three possible bases. The first was that the Crown had failed to prove beyond reasonable doubt that the offender intended to cause really serious physical injury to the deceased when she inflicted the stab wound. The second was the assertion that the Crown had failed to eliminate provocation. The third was the defence raised on behalf of the offender that she was substantially impaired at the time of the commission of the offence. 25 In my view, the facts establish that manslaughter should be found on the first of these three alternatives. It is on the basis that the offence is one of manslaughter by an unlawful and dangerous act that I propose to sentence the offender. I shall briefly state my reasons. 26 The offender herself gave a version in the witness box that she intended only to cut the deceased's arm with the knife. This version of events was the one she gave to both Dr Delaforce and Professor Greenberg when each took a history from her for the purposes of preparing psychiatric reports for the trial. I accept the offender's evidence as being truthful in this regard. I do not consider that the offender is, in general terms, a deceitful or manipulative person. 27 Secondly, the comments the offender made after the stabbing, together with her behaviour, make it abundantly clear that she had no idea that she had seriously injured the deceased. Indeed, she was heard to immediately threaten to stab him again if he did not give her, the money. More importantly, she went looking for him in the park and, when she found him, she clearly spoke and acted as if he had only been injured in a relatively minor way. All this behaviour is highly relevant to her state of mind and, indeed, to the action of the stabbing itself. 28 Thirdly, Dr Lyon's evidence about the nature of the wound and the circumstances in which it may have been inflicted is consistent with the offender's version of events and with the actions she demonstrated to the jury in the witness box when she showed how the stabbing occurred. I accept that, at the moment she swung the knife towards the deceased, he may have turned slightly. This accounts for the fact that the blade entered his back rather than his arm. As Mr Bruce pointed out in his submissions to the jury, the difference between where the offender intended the knife to go and the point where it actually struck the deceased was only a matter of inches. 29 Fourthly, I do not consider that the offender had lost her self-control as a result of provocative conduct on the part of the deceased. There is no doubt that she was very angry and she was to a degree affected by the alcohol and drugs she had taken that day. There is also no doubt that the deceased's refusal to hand over the money and his threats to have DOCS remove her child from her inflamed her anger, annoyance and hatred. The deceased, as was mentioned during argument, may have been quite well intentioned in refusing to hand over the money. But from her perspective, his behaviour was no doubt generally provocative. I am satisfied, however, that the offender knew what she was doing. As the Crown submitted to the jury, she threatened to stab the deceased with the knife if he would not give her money back. This, in fact, is exactly what she did, albeit after a prolonged period of disputation between them on the subject. The sad fact is that the knife did not cut the deceased's arm, as she intended, but went into his back and occasioned him fatal injuries. 30 Finally, I am not satisfied that the offender's capacity to control herself and to know right from wrong were substantially impaired by her disorder of mind. There is no doubt she was suffering from a depressive disorder and this condition would have been exacerbated by the alcohol and drugs she had taken. But as Professor Greenberg said, there is really no evidence to suggest that her capacities were impaired in any substantial way by her depression, whatever label might be put upon it in terms of its scope and extent. I would add that while I accept that the offender has from time to time exhibited and manifested symptoms of a Post-traumatic Stress disorder related to her sexual abuse as a teenager, I do not consider that any of these symptoms were present or operative at the time the deceased was stabbed. 31 Both the provocative effect of the actions of the deceased and the offender's mildly depressed state of mind may, however, be taken into account in a general way in assessing the objective seriousness of the offence for which she is to be punished. I turn now to consider the level of objective seriousness involved in the offence.

Objective Criminality 32 It is necessary to come to a conclusion in relation to the objective seriousness and the degree of culpability involved in the commission of the offence of manslaughter in the circumstances I have outlined. 33 Manslaughter is a particularly serious crime since it involves the taking of a human life. One of the primary objectives of the criminal justice system is the protection of human life (Hill (1981) 3 A Crim R 397 at 402 per Street CJ; McDonald (NSWCCA 12 December 1995). In the latter case the Court of Criminal Appeal said: - "In a case such as the present, it is important to bear in mind the denunciatory role of sentencing. Manslaughter involves the felonious taking of a human life. This may involve a wide variety of circumstances, calling for a wide variety of penal consequences. Even so, unlawful homicide whatever form it takes has always been recognised by law as a most serious crime (see R v Hill ). The protection of human life and personal safety is a primary object of the system of criminal justice. The value which the community places upon human life is reflected in its expectation of that system." 34 In Hill, Street CJ said: - "In a case such as the present, where there is material justifying a degree of understanding and of sympathy towards the appellant, the task of sentencing is particularly difficult. It is necessary to evaluate the demands of the criminal justice system, the expectations of the community at large, the subjective circumstances of the person coming forward for criminal judgment, and the interests of society in protecting itself and its members from criminal activity as, in the present case, the taking of a life." 35 It is against the background of those principles that I turn to consider the matters set out in s 21A of the Crimes (Sentencing Procedure) Act 1999. It is also necessary to have regard to the overall purposes of sentencing as set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. 36 There is an obvious aggravating factor at play here, namely the use of a knife. The offender has some previous minor convictions but they have no part to play in this sentencing procedure. 37 There are however, a number of mitigating factors. These are of some importance in relation to the impact they have on an assessment of the overall level of criminal culpability involved in the present matter as well as playing a part in the ultimate sentencing process. First, it is clear that the stabbing of the deceased was not, in any real sense, part of a planned criminal activity. It was a spur of the moment event. It occurred in the context of what was essentially a domestic dispute. Secondly, it is clear that the offender was provoked in a general sense by the deceased's actions. Thirdly, the offender was suffering from a degree of depression and anxiety at the time. I do not consider that the presence of drugs and alcohol ought to be regarded as either an aggravating or mitigating factor in the present matter. These substances had a role to play in the tragic stabbing of the deceased but overall they played only a minor part in the circumstances. Thirdly, I consider that the offender is, by reason of her age and circumstances, not disentitled from having some genuine prospects of rehabilitation. By this I mean that, with suitable treatment, the offender may come to realise that alcohol and drugs are a dangerous influence on the behavioural aspects of her life and it is possible she may learn to control herself in relation to their abuse. In the same way, the offender appears to suffer from an excess of anger when she is affected by drugs and alcohol. Once again, suitable treatment for anger management may have a role to play. Fourthly, the offender did demonstrate some degree of remorse for the killing of the deceased when she asked the police to convey the fact that she was sorry to his parents. This happened shortly after the killing. In addition, the offender has always been ready to plead guilty to manslaughter in relation to the death of the deceased. This was conveyed by her counsel to the Crown Prosecutor on a number of occasions before the trial. She pleaded guilty to manslaughter at the commencement of the trial but this plea was not accepted by the Crown. In addition, she made admissions during the trial, which facilitated the course of the trial and, through her counsel, invited the Crown to read a considerable number of statements rather than call witnesses during the trial. All these matters may be suggestive, quite properly, of a degree of remorse demonstrated by the offender, as well as an intention to facilitate the administration of the course of justice. 38 Generally speaking, the offender has a compelling subjective case. Her background, upbringing and life experiences are all matters evoking considerable sympathy for her position. As Professor Greenberg said at page 9 of Exhibit "C": - "I am of the view that Ms Cavanough is a young 22 year-old Aboriginal woman who comes from a deprived and traumatic family background where she was physically, and sexually abused. She appears to have significant personality difficulties, especially with anger and also with a chronic history of alcohol and cannabis abuse since the age of 12 years old. She probably has a chronic underlying dysthymic disorder and some posttraumatic stress disorder symptoms from her early childhood experiences. I am of the view that at the time period surrounding the alleged offence, her mental state was impaired to a degree but she was not substantially affected by alcohol, cannabis and all the other factors mentioned above. The issue of her intoxication, abusive childhood, and depression would be relevant mitigating factors at the appropriate time during her sentencing hearing." 39 Finally, it is necessary to mention once again that the offender has a two year-old son, Clive who is presently being looked after by the offender's mother. In moving evidence, the offender's mother gave testimony that she is prepared to give access on a generous basis to the paternal grandparents whenever it is reasonably requested. I accept that this generous attitude is also shared by the offender. 40 The end result of this analysis is that the subject offence must, in my view, be regarded as a reasonably serious example of the crime of manslaughter. This is so notwithstanding that the offender did not intend to kill or cause really serious physical injury to the deceased. The employment of a knife during a domestic dispute is not only a matter that calls, generally speaking, for some significant aspects of both general and personal deterrence. It also reflects and illuminates the objective seriousness of the crime of manslaughter. This level of objective seriousness, however, needs to be tempered in the present matter by reason of the mitigating factors and generally favourable subjective case to which I have made extensive reference.

Victim impact statement 41 Before addressing the term of the sentence to be imposed, it is necessary for me to say that I have received in Lismore a Victim Impact Statement from Joy Jeanette Day dated 19 April 2007 (Exhibit "B"). Mrs Day in fact read this statement to the Court. This morning tendered by consent, were further statements from family members The exhibit expressed not only the sadness and grief of Mrs Day herself but also that of other members of the family. As might be expected, the exhibit confirms that the death of the deceased has had a very significant and distressing effect on all members of his family. They are deeply shocked and depressed by the tragic circumstances of the loss of Stuart Day. The mother's statement is an eloquent reminder to the Court and to the community how a relatively trivial domestic dispute can bring about a situation of calamity and loss for the deceased and his family. At the same time, the same situation can bring ruin and despair for the offender and her family, as it has done here. I would like, on behalf of the Court, to extend to the Day family and to each and every member of that family, my deep sympathy for the sad situation in which they find themselves. The Court hopes that Mrs Day and her family may find that it has been of some assistance to express themselves through the Victim Impact Statement. As I indicated during argument with counsel, however, I am bound to say that I do not consider that it is appropriate to have regard to the statements in the determination of the sentence to be imposed (see s 28(4)(b) of the Crimes (Sentencing Procedure) Act 1999; Previtera (1997) 94 A Crim R 76; Bollan (1998) 99 A Crim R 510). Of course, the material was not tendered by the Crown on the basis that it ought to impact on the sentence to be imposed. It would, indeed, be contrary to the principles expressed in the decisions to which I have referred to use it in that way.

The sentence to be imposed 42 What sentence then should be imposed in this matter? There are two preliminary observations to be made. First, there is the issue of the plea of guilty to the manslaughter charge. As I indicated earlier, this was entered at the commencement of the hearing, although it was well understood between the Crown and the offender's counsel that, for many months prior to the trial the offender was prepared to plead guilty to the alternative charge. There is no dispute between the parties that a discount of some kind should be allowed here, although the Crown suggested that it should not be an overly significant discount. I am aware that there is some controversy in the authorities about the proper approach to be taken where a plea has been discussed between the parties but not formally entered until trial. The issue, which arises, is whether a discount should be allowed at all in circumstances where the ultimate verdict reflects the plea discussed between the parties but not actually entered. (Williams v Regina [2006] NSWCCA 33; Regina v Bryan Steven Johnson [2003] NSWCCA 129 at (44) per Bell J with whom Giles JA and Carruthers AJA agreed; Regina v Oinonen (1999) NSWCCA 310; and Regina v Pennisi [2001] NSWCCA 326). 43 In the present matter, there is no doubt whatsoever that the discussions between the parties and the ultimate plea entered at trial carried a degree of utilitarian value. This was reflected in the admissions made at the outset, the agreed method of reading statements rather than calling witnesses and the substantial saving on time brought about as a result of the sensible co-operation between counsel. In my view a discount of 10% is appropriate in the present matter. It is true, as Mr Bruce fairly conceded, that it may have been more appropriate for his client to have entered her plea at the arraignment stage. This was overlooked at the time but there was clearly no doubt between the parties that the plea was available for acceptance by the Crown, had it chosen to do so at that stage. 44 The second matter to be addressed is the issue of special circumstances. Mr Bruce submitted that I should find special circumstances in this matter. The Crown did not oppose that submission. In my opinion, there are such special circumstances. The offender is to serve a prison sentence for the first time. She is a young woman who has not been before the Courts before in any substantial way. Her time in prison will be onerous due to her Aboriginality and the fact that she will be substantially deprived of the normal loving access a mother would have to her infant child. This situation, I should hasten to add, is not an exceptional one in the present matter and does not require any recognition beyond the role it may play in the finding of special circumstances. I also consider, particularly having regard to her borderline intellectual state, her depression and post-traumatic stress condition that she will need assistance both in the prison system and on returning to the community at the end of her sentence. I will make recommendations as to the treatment she should receive both in prison and upon release. I stress that the offender's prospects of rehabilitation will very much depend upon her own attitude to alcohol and drugs and upon her taking a more mature approach to anger control. 45 I have given full consideration to the strong subjective case of the offender but at the same time it remains necessary to recognise that, although the offender's culpability was by no means at the upper end of the scale, the offence remains nevertheless a serious crime. It is necessary to impose a sentence which, while taking into account the offender's strong subjective case, reflects the gravity of the crime and makes appropriate allowance for considerations of general and personal deterrence. These latter factors loom large in the present matter particularly because of the use of a knife in the resolution of a domestic dispute. 46 I have concluded that, after allowance for a discount for plea, I should impose a sentence of eight years and two months imprisonment. In setting a non-parole period, I take into account the special circumstances, which I have found exist. Although the offender has been in custody in relation to this offence on separate occasions rather than continuously, I propose to make an allowance for the overall times spent in custody relative to this offence. I understand that the Crown does not raise any objection to this course of action. On my calculations, the offender has been in custody for a period of 117 days. I propose to backdate the sentence to take into account the time spent in custody relative to this offence. 47 Sandra Cavanough, I sentence you to a term of imprisonment comprising a non-parole period of five years and a balance of term of three years and two months. This sentence is to commence on 10 February 2007 and the non-parole period is to expire on 9 February 2012. That date is the date on which you will be eligible to be released on parole. The balance of the term will expire on 9 April 2015. 48 I make the following recommendations: -

While in custody, the offender is to receive appropriate counselling and treatment including psychiatric counselling, and anger management counselling.

I further recommend, that upon release pursuant to any parole order, the Probation and Parole Service consider, as part of any supervision program relating to the offender, that she be required to accept the direction of the Probation and Parole Service in relation to receiving continued psychological counselling including that relating to anger management. Further, that she be directed and counselled as to her use of alcohol and illicit drugs during any period of parole.

I recommend that the prison authorities consider, after classification, that the offender be kept at Grafton Gaol. The purpose of this is to allow the offender reasonable access to both her mother and to her infant child. 49 I direct that a copy of my remarks on sentence be forwarded to the Corrective Services Department and to the Probation and Parole Service to be kept with, and part of, files held by each of the Departments in relation to the offender.

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At a glance

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Judgment (18 paragraphs)

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Cases Cited (3)