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[2005] VSC 187
Supreme Court of Victoria
2005-07-12
Hollingworth, J
Original judgment source is linked above.
Criminal law - sentencing - unlawful and dangerous act manslaughter - offender stabbed partner - offender and victim both alcoholics and under influence of alcohol at time of offence - plea of guilty - sentence of seven years with non-parole period of four years and six months - Sentencing Act 1991.
1 Susan Marjorie Coldbeck, you have pleaded guilty to the manslaughter of William John Sheringham. It is now my responsibility to impose sentence upon you for that offence.
2 The circumstances surrounding the commission of the offence were helpfully set out in a summary provided by the prosecutor, Ms Carlin. The summary has been accepted by your counsel, Mr Hartnett, as accurately representing the central features of the evidence. It broadly reflects the depositional material with which I have been provided.
3 There is one contentious factual matter, which I will consider later. That relates to the circumstances in which the ulna bone in your left forearm was fractured.
4 On Thursday, 30 October 2003, you stabbed and killed your boyfriend, William Sheringham. Mr Sheringham was 50 years old. He was unemployed and living with you in your room at an accommodation facility in Sunshine. Mr Sheringham had never been married and did not have any children.
5 Mr Sheringham had an alcohol problem which had been ongoing since his early 20s. He had an extensive criminal history which included prior convictions for alcohol and violence-related offences. He had served lengthy periods of time in jail.
6 You were born in 1956. At the time of your offending, you were also unemployed. You killed Mr Sheringham on your 47th birthday. The offence occurred in the room you shared with him.
7 You had moved into the Sunshine accommodation in October 2002. The building is owned by the Department of Human Services and is managed by a government- funded community organisation which provides housing and support to people living on a low income.
8 After meeting Mr Sheringham in early 2003, you developed a relationship with him. He moved in to live with you in your small, single room in March 2003.
9 Other residents noted that you both drank alcohol on a daily basis and were regularly heard having verbal arguments in your room. During these arguments, both of you were heard to yell loudly. These arguments sometimes went on for hours.
10 At various times in the past you had complained to family and friends that when Mr Sheringham was drunk he became abusive, had tried to strangle you, had pushed you and broken your toe. There is no evidence that you ever sought medical assistance as a result of any such assault.
11 About eight months before Mr Sheringham's death, on the morning of 8 March 2003, the police were called to a domestic dispute between you and Mr Sheringham in your room. You both appeared to be under the influence of alcohol. Mr Sheringham told police that you had both been drinking since the morning of 7 March and throughout the following night. You alleged that Mr Sheringham had pushed you up against a wall. The police interviewed Mr Sheringham and he admitted pushing you with one hand, but said he did so only after you had assaulted him. No injuries were observed on you and you declined medical assistance. No charges were laid against Mr Sheringham in relation to this incident.
12 Your sister, Judith, gave evidence in support of your plea. She said you had told her that Mr Sheringham had tried to strangle you in early June 2003, and that you had shown her bruising on your neck and arms.
13 A witness who regularly stayed with her boyfriend at the same premises told police that you often complained to her about Mr Sheringham's violence, and told her that he would pick you up and throw you against the wall. She said that she had only seen an injury to you on one occasion. You showed her a bruise on your upper arm, but did not tell her how you got it.
14 Approximately one week before Mr Sheringham's death, you told one of the other residents at the premises that you were scared living there on your own and were glad to have Mr Sheringham around to protect you and make you feel safe.
15 At some stage during the evening of 29 October 2003, you went to the room of one of the male residents. You asked if he had some marijuana that you could buy. He did not have enough to sell, but shared a couple of cones with you. Mr Sheringham came looking for you and to see whether you had bought any marijuana. When you informed Mr Sheringham that there wasn't enough to make a purchase, he asked you for the $10, so that he could buy some alcohol. You gave him the money. Mr Sheringham then told you that if you weren't back in your room when he returned you could "piss off". You left the other resident's room and returned to your room.
16 On the following day, your birthday, you and Mr Sheringham awoke at 3.00 pm. You told police that your blood alcohol concentration would have been over 0.05, but that you did not have that much to drink. You also said that you may have taken one valium that morning. At the time you were either on, or withdrawing from, methadone - the evidence is unclear. You said that Mr Sheringham had planned to take you out for dinner to celebrate your birthday, but that you told him you did not want to go.
17 At approximately 4.00 pm you were heard yelling in your room. Nobody heard Mr Sheringham yelling at you. You continued yelling until around 7.30 pm, when you were heard yelling "Get out! Get out!" Smashing and breaking sounds were heard coming from the room. Around 8 pm the door to your room slammed and Mr Sheringham was seen outside the room. Mr Sheringham walked down the main stairs, along the bottom corridor of the building, and collapsed outside somebody's room. Residents eventually called for an ambulance. Mr Sheringham was dead by the time that ambulance officers attended and found him with a stab wound to his chest.
18 Police were then called and came to your room. You refused to open the door and told them to go away. They opened the door and found that the internal security chain was locked. You slammed the door closed again and continued yelling at the police to leave. They forced the door open again. You were pushing on the other side. The police smashed the security chain and forced entry into the room.
19 You were standing just inside the door, holding a knife in your left hand. You disobeyed demands to put the knife down, so the police used capsicum spray to subdue you. You covered yourself up with bedding and continued to hold the knife, so the police dog was sent in. The dog took hold of your arm, around where the left forearm meets the wrist, and you then let go of the knife and rolled onto your side. You were asked by police to show them your hands, but did not do so. The dog was further employed to stop you from moving and to make you show your hands. You were then arrested, your hands were placed behind your back in handcuffs and you were taken downstairs to the entrance to the flats. There you were treated for the effects of the capsicum spray as well as minor injuries caused to your lower right leg and waist area by the police dog.
20 Before and after being cautioned, you repeatedly said to the arresting police officers words to the following effect: "This is his fault, he set me up, he forced me to do this, he forced me to stab him."
21 An examination of your room found some signs of a disturbance including an upturned coffee table, a broken ashtray and broken glass. A bloodstained steak knife was located. Other kitchen knives were located on the floor next to the bed and on the floor next to the toilet.
22 After your arrest you were taken to Sunshine Police Station. Before the formal interview, you said that when Mr Sheringham drank he was "abusive and changes from someone nice to horrible". You said that you wanted to stab Mr Sheringham and "just wanted to kill him." Shortly after that you expressed surprise when told that Mr Sheringham was dead and said "He's been suicidal for ages."
23 You were first interviewed late on the evening of 30 October 2003. Mr Hartnett, your counsel, submitted that given your state at the time, it is unlikely that the first record of interview would have been admissible at trial. I think there is much force in that submission. I therefore include the following details from your first record of interview only by way of background. You said that you and Mr Sheringham had had an argument and pushed each other. At one stage you said you had thrown a small serrated knife at him, but then said that you had stabbed him with it. On other occasions you kept repeating that you did not kill him. You also said that if Mr Sheringham had a knife wound, he would have "done it himself" and had been very depressed.
24 You were then taken to the Homicide Squad offices. There you were assessed by a forensic medical officer who suspected that you had fractured your left forearm and recommended you be taken to hospital. You were taken to the Alfred Hospital that night and were found to have a fractured ulna. I will return later to the evidence concerning the cause of that fracture.
25 At 1.35 am on the morning of 31 October 2003, a blood sample was taken from you. This was subsequently analysed and found to have a blood alcohol concentration of 0.168g/100mls and a metabolite of cannabis. This was more than five hours after the incident.
26 You were interviewed on the afternoon of the 31st, commencing at 1.36 pm. You said that you and Mr Sheringham were having an argument and he had accused you of sleeping around. You said you had consumed "a few" drinks and Mr Sheringham was "pretty pissed". You said you remembered seeing blood on the floor, but remembered nothing else until the police dog was biting you on the leg.
27 You said you did not know what had happened, that Mr Sheringham must have grabbed you and broken your wrist and you must have stabbed him. You did not remember Mr Sheringham grabbing your arm, but did not know how else it could have been broken. You said that when Mr Sheringham had more than a certain amount of alcohol, he got very violent and aggressive and in the past he had tried to smother and strangle you. However, you also said you did not think he had been violent with you on the day of his death, but did not really know.
28 On 31 October 2003, a post mortem examination was performed on Mr Sheringham. The cause of death was established as a single stab wound to the chest. The wound track length was approximately 60 to 70 mm and the width of the wound was 18mm. The pathologist, Dr Woodford, assessed the degree of force as severe, on a scale of mild, moderate, severe and extreme. The circumstances surrounding the infliction of the fatal wound are unclear. Dr Woodford noted that the force used could be considered consistent with a sudden movement by Mr Sheringham bringing your bodies together, provided you were holding the knife in a reasonably rigid fashion. Alternatively, the force could be a result of your actions alone. There were no typical offensive or defensive injuries. The forensic evidence is therefore ambiguous. Mr Sheringham had a blood alcohol concentration of 0.22g/100ml and a small amount of diazepam in his blood.
29 Following the interview, you were charged with murder. At a contested committal hearing in September 2004, you were committed for trial and pleaded not guilty to the charge of murder. You offered to plead guilty to manslaughter in early March 2005. By accepting a plea to manslaughter, the Crown accepts that you did not have the requisite intent to commit murder. The Crown case is that you committed unlawful and dangerous act manslaughter.
30 The circumstances surrounding the commission of the offence are not very clear. Both of you were seriously inebriated.
31 I turn to consider how your left arm came to be fractured. Your counsel argued that I should conclude that it was more probable than not that it was fractured by Mr Sheringham in the course of assaulting you. The prosecutor argued that the most likely cause was either the police dog grabbing your left forearm to make you drop the knife, or the police handcuffing you and removing you from the building. Unfortunately, you have no memory as to how this occurred. There is some medical evidence, but it is inconclusive.
32 Dr Igor Jakubowicz saw you in the early hours of the 31st, for the purpose of assessing your fitness to be interviewed. He noted that the injury to your left forearm was "caused by a significant twisting force applied to the forearm" and that the bruising suggested that the forearm had been forcefully grabbed. Dr Jakubowicz said that in his opinion the injury was not caused by a dog.
33 After seeing Dr Jakubowicz, you were taken to the emergency section at The Alfred hospital. After your discharge from The Alfred, you were then admitted to St Vincent's Hospital.
34 Dr Annette Holian of The Alfred reported on 12 December 2003 that the left forearm fracture was "consistent with direct blow to arm raised in self defence". This is not the same as Dr Jakubowicz's opinion that the injury was caused by a twisting or grabbing motion. Dr Holian had not seen you herself, rather she prepared a report based on her review of the hospital's medical files.
35 Various notes were produced from the files of The Alfred and St Vincent's hospitals. Unfortunately, the authors of those notes were not identified, and they appear to be different doctors and nurses. There are several different handwritings. They record a number of things, including "assault/direct blow to arm", "allegedly struck by fist this evening. Put arm up to defend herself", "assault by ? means" and "involved in domestic dispute last night. Struck L forearm." I do not know whether those notes reflect what you or the police told the medical staff, or whether they involve unidentified assumptions or conclusions by them.
36 The absence of canine incisor wounds and scratches and bites on your left arm - in comparison with your right leg and waist areas, which showed teeth marks and abrasions - tends to support the conclusion that your forearm was not fractured as a result of the actions of the police dog in grabbing your left arm.
37 On the other hand, the fact that you were holding the knife in your left hand when the police arrived (notwithstanding being right-handed) is consistent with your arm being uninjured at that stage.
38 The medical evidence does not allow me to conclude to the necessary standard[1] that your left ulna was fractured during the fatal confrontation with Mr Sheringham, and not in the process of being handcuffed and removed from the premises by the police.
39 In formulating the sentence to be imposed upon you, the law requires me to balance the factors which are in your favour against the nature and gravity of your offence, your culpability and responsibility for the offence and current sentencing practices. The Sentencing Act 1991 obliges me to identify and address your character, the prospects of your rehabilitation and other such factors as may bear upon the mitigation of penalty. At the same time I am bound to impose a sentence that expresses the community's denunciation of the type of conduct in which you engaged and which provides deterrence against a repeat offence by you and against similar offences by others.[2] The interests of victims and their families, and the consequences to them of the criminal conduct, are further matters of particular importance in the sentencing process.[3]
40 The maximum sentence for the offence of manslaughter is 20 years imprisonment. The circumstances which may give rise to a conviction for manslaughter are, however, so various and the range of degrees of culpability so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases.[4] It is therefore necessary to have regard to the particular circumstances of the offence and the factors personal to you in determining the appropriate sentence.
41 The Crown's acceptance of your plea of guilty to manslaughter ended any suggestion of intention to kill or to inflict really serious physical injury. Your plea accepts that you committed an unlawful and dangerous act in circumstances where a reasonable person would have realised that he or she was exposing the other to the risk of serious injury. When considering the nature and gravity of the offence for which you are being sentenced, I take into account the uncertain nature of the dispute which led to Mr Sheringham's death and the circumstances surrounding that death generally. Your actions are somewhere towards, but not at, the lower end of the scale of gravity.
42 However, the taking of a human life remains a most serious offence. The courts not only have a duty by imposing appropriate sentences to uphold the sanctity of human life, but must also try to deter others who, by resorting to violence as a way of solving a problem, may cause loss of life.
43 I accept that the killing of Mr Sheringham was spontaneous and without any premeditation. You were both heavily intoxicated at the time. As is often the case in situations where participants are affected by alcohol, the cause of the dispute remains obscure and precisely what took place cannot be determined. Your room was in a disturbed state. You had been yelling at Mr Sheringham and in a distressed emotional state for some hours prior to his death. I am unable to make any finding as to the circumstances under which the argument began, or who initiated any physical confrontation.
44 Having regard to your plea, you have accepted that self defence and provocation are not defences available to you.
45 Conscious as I am that domestic violence often occurs behind closed doors without witnesses, I note that no one, either at the plea or committal, was able to give evidence that they ever saw Mr Sheringham physically abuse you. It is clear that you were both verbally abusive towards each other, especially when under the influence of alcohol. There is no evidence that you lived in fear of Mr Sheringham. Your counsel conceded that there was no evidence of serious domestic violence. Your dysfunctional relationship with Mr Sheringham therefore provides a context for your actions. It does not justify nor condone them. On the whole, the fact that on the evening of Mr Sheringham's death, you were in a situation fertile with the prospect of verbal and perhaps mild physical violence, has some, albeit slight, mitigatory impact.
46 You suffer from mood instability and at the time of Mr Sheringham's death were an alcoholic. Your conduct and your level of culpability must be viewed in that context. However, you were not suffering from a serious mental disorder or severe intellectual handicap of the type considered in some of the cases to which your counsel took me.[5]
47 A psychological report submitted on your behalf, together with the evidence of your sister and your mother, indicate that you have had a tumultuous life, interspersed with quite lengthy periods of stable and purposeful living. You have an extensive medical history, a large part of which relates to drug and alcohol abuse and suicide attempts.
48 I had cause during the hearing of your plea to order a pre-sentence report from Dr Douglas Bell, a psychiatrist who treated you at Thomas Embling Hospital over a period of two months shortly after your arrest and has seen you more recently, in order to gain more detailed insights into your condition and prospects for rehabilitation.
49 You grew up in Camberwell and started your schooling at Surrey Hills Primary School. You transferred to Methodist Ladies College in Grade 3. You appear to have grown up in a loving and supportive family.
50 However, at the age of eight, you were the victim of a sexual assault committed by your uncle. During your teenage years, you suffered from the debilitating eating disorder, anorexia nervosa. You became very sick and saw a psychologist for about two-and-a-half years. To your credit, you recovered and were appointed a prefect at school, obtained good HSC results and then a place in courses at Melbourne University.
51 Upon finding that Arts was not to your liking, you undertook part of a nursing qualification at the Royal Children's Hospital before returning to Melbourne University. Whilst studying, you worked as a waitress. It was through this job that you were introduced to drugs, specifically, cannabis and magic mushrooms. You soon graduated to heroin and speed. You moved to Queensland with your then boyfriend, who was a heroin dealer. Whilst in Queensland, you suffered the horrific ordeal of being gang-raped.
52 In 1983, you fell pregnant and gave birth to James. You worked very hard to reclaim your life from the pervasive menace of drugs and past abuses. You finished an Arts degree and a nursing degree, became a registered theatre nurse and then worked at the Women's Hospital and Box Hill Hospital. From the evidence of your sister and mother, as well as numerous character references tendered on your behalf, it is clear that until about 1997 you were a devoted and competent mother to James.
53 However your ten hour shifts at the hospital, combined with the stress of raising an adolescent son as a single mother, began to take their toll. Eventually you suffered some sort of nervous breakdown. By 1997 you entered into a downward spiral which ultimately had fatal consequences. You began drinking heavily. You were forced to move out of your unit at Balwyn because you could not nurse anymore. During this period you met another man, with whom you lived for two or three years. You ultimately separated from him due to his return to heroin. You also lived with your sister, Judith, for a period of time.
54 Between 1997 and 2003 you made multiple suicide attempts by slashing your wrists and on two occasions deliberately overdosed on a combination of sleeping tablets and alcohol. At some stage, amidst the maelstrom that was engulfing your life, James realised that you were falling apart and went to live with your parents.
55 After being evicted from your home in Niddrie, you ultimately found yourself living in special accommodation housing. Soon after moving into the Sunshine facility, you complained to the police that you had been dragged into a car and raped.
56 It was against this background that you met Mr Sheringham in early 2003. Your counsel described your relationship as one based on alcohol and social circumstances, rather than love. Unfortunately, despite the increased feelings of safety generated by the presence of Mr Sheringham in your life, only a few weeks before his death you were sexually assaulted by a man in the park.
57 At the time of Mr Sheringham's death you were consuming about two or three litres of wine per day. In Dr Cummins' psychological report, he states that you would have been diagnosed as suffering from alcohol dependence at that time.
58 You received little treatment for your alcohol and substance abuse prior to your incarceration. Sadly, it appears that it is only now that you are beginning to receive the necessary help. Not only are you forced to abstain from alcohol but you have ongoing psychiatric and psychological help. Your sister and mother gave evidence that the improvement has been astonishing. Certainly, the difference between your appearance and presentation on the police video and photos of October 2003, and in court before me, could not be more striking.
59 You are taking the first steps towards rehabilitation. You still have a long way to go. Your sister gave evidence that you are reticent to attend Alcoholics Anonymous meetings because of a fear of possibly coming into contact with similarly afflicted people. The psychiatric evidence establishes that your rehabilitation will require you to attend some form of alcohol and substance abuse counselling. That counselling will also have to focus on providing mechanisms for avoiding the possibility of coming into compromising situations. Not only does your personal health require such counselling, but so does the safety of the community at large. In his report, Dr Bell notes that the Dame Phyllis Frost Centre, where you are currently being held, has an established program of psychological counselling around issues of substance dependence. I hope that you will be able to access this treatment.
60 According to Dr Bell, you are of average intelligence and, despite a history of heavy alcohol abuse, there is little indication of any significant cognitive impairment. He also believes that there is no evidence of any major psychotic illness such as schizophrenia, nor of a severe mood disorder such as major depression.
61 Encouragingly, evidence has also been given on your behalf that since you have been in custody you have demonstrated good prospects of rehabilitation through your own conduct. You are entrusted with ordering the food in your billet and do most of the cooking. You have completed classes in computing, horticulture and creative writing. You have taken up knitting. The pursuit of such activities bodes also well for your rehabilitation.
62 The starting point in the formulation of the penalty to be imposed upon you is that every case of manslaughter involves the felonious taking of a human life.
63 The consequences of your actions are terrible. Mr Sheringham's death has had a significant effect on his family. In her victim impact statement, his sister Carol writes as follows:
"The emotional trauma on my life since my brothers [death] has been and is still horrific and a nightmare. When I go to bed at night I can hear his voice calling me. I still see him as I saw him in the morgue."
"Due to the extreme stress of this horrible act - my hair has fallen out, my health has suffered and I know my family has - my sons find it hard to watch me cry and be so emotional ... I could write so much, but at the end of it all my brother has gone, the brother who gave me away on my wedding day will never be there anymore ... no one will ever know or understand the real effect this act has had on my life, physically, mentally and emotionally. He's just not there anymore and never will be. I will never understand."
64 I have also read and taken into account the victim impact statement of Aileen, another of Mr Sheringham's sisters.
65 There are a significant number of mitigating factors in the circumstances before me. First, it counts in your favour that you pleaded guilty to the offence of manslaughter, and I consider that you are entitled to a discount on the sentence to be imposed upon you in recognition of your plea. The community has by your plea been spared the time and cost of a trial. Furthermore, and significantly, the relatives and friends of your victim have been relieved of the trauma of a criminal trial.
66 Secondly, you have reasonable prospects for rehabilitation. Your ability to previously reclaim your life from drugs and alcohol indicates that you have the capacity for rehabilitation. The evidence which has been given by your sister and mother and the reports of Dr Bell and Dr Cummins suggest to me that your chances of complete rehabilitation in the medium term are good. You have had the close and loving support of some members of your family whilst in custody and in court before me. Your mother, health willing, is prepared to offer you a home and look after you upon your eventual release from prison. Beyond the fog of alcoholism, I consider you have ability and prospects for the future.
67 Next, you have no prior convictions. This is a remarkable achievement given your long history of alcoholism and drug abuse.
68 You have expressed remorse for what has happened. However, it is clear from the medical reports that your sense of remorse is complicated by the circumstances of your offending and your mental state at the time of offending.
69 Next, you have had a difficult personal history. You have undergone some particularly traumatic and oppressive experiences and have abused alcohol and drugs.
70 Finally, for the reasons expressed earlier, I consider that the level of your culpability is reduced by the context in which your actions occurred.
71 Unfortunately, the inescapable fact remains that you have violently and unlawfully taken the life of another person.
72 The offence which you committed warrants the community's denunciation, and the need for deterrence is obvious. In all the circumstances before me I see no alternative but to impose a term of imprisonment. In your case, the purpose for which a sentence of imprisonment is imposed principally involves elements of denunciation, deterrence and rehabilitation.
73 Your sentence must reflect the community's view that crimes such as this should be publicly denounced as being outside the range of human behaviour permitted in this society.
74 General deterrence is important in a case such as this. There is a need to deter people from engaging in drunken violence of the kind in which you engaged. Regrettably, alcohol-fuelled violence in our community is all too common. Disputes between intoxicated people whose judgement is impaired by the consumption of alcohol often end up with the death or serious injury of one or other of the participants.
75 With respect to your circumstances personally, I am satisfied that these traumatic events will stay with you for the rest of your life. That will probably be enough to stop you from re-offending. However, you should also be aware that one of the aims of the sentence about to be imposed upon you is to specifically deter you from ever doing so again. You must be aware that a return to alcohol, with the risk that it entails for the community, must be avoided. The potential risk of re-offending and associated risk to the community can in my view be reduced if you are provided with appropriate support and rehabilitation structures whilst in custody and on parole.
76 Dr Bell stressed the importance of support being provided to you, particularly in relation to having psychological assistance and stable supported accommodation, to enable you to establish yourself without alcohol dependence in the community. It appears to me that such support has more prospect of being provided to you and accepted by you if provided during an appropriate period and under the supervision of the Adult Parole Board. For this reason it does appear to me to be appropriate to set a slightly lower minimum term than might otherwise be thought appropriate. This would enable the Adult Parole Board, when it considers whether or not parole should be granted, to implement such a regime of support and supervision for you as it considers necessary.
77 I have had regard to the range of sentences handed down in this court over recent years for the crime of manslaughter, bearing in mind that they can only provide general guidance, as each case must be assessed having regard to the individual circumstances of the offence and the offender involved.
78 Balancing as best I am able the competing considerations laid down in the Sentencing Act, and having regard to the matters I have just discussed, I have concluded that you should be sentenced to a period of imprisonment of seven years. I fix a period of four years and six months as the period you must serve before becoming eligible for parole. I declare that the period to be reckoned as already served under the sentence is 622 days inclusive of today's date and I direct that there be noted in the court's records the fact that the declaration has been made and its details.
R
Coldbeck [2005] VSC 187
(1999) 199 CLR 270