R v Creamer [2011] VSC 196

3 Defensive homicide arises when the jury are either satisfied that you were acting in self-defence or entertained a reasonable doubt about the matter. In addition, the jury must be satisfied beyond reasonable doubt that such a belief that you held about self-defence was not based on reasonable grounds. It is an important feature of this case that through your counsel you accepted that if murderous intent could be shown, then it was inevitable that you would be convicted of defensive homicide. It should be noted it was only when the matter came on for trial on 3 November 2010 that it emerged you accepted that you had killed your husband, although the prosecutor may have been informed of the change of approach shortly prior to that.

4 Although you did offer to plead guilty to defensive homicide, it was not unreasonable for the prosecutor to proceed to trial on the material as it then stood. However, it is recognised that you must receive credit for the way in which the trial was conducted.

5 The circumstances of your husband's death can be outlined briefly. You returned home from Melbourne to Moe on Saturday 2 February 2008. You had spent Friday night in Melbourne with your lover. You arrived home at South Street, Moe at about lunch time on that Saturday. What happened after that comes largely from the versions that you gave to the police, the psychologist and psychiatrist who examined you, and from your evidence that you gave here in the trial.

6 All the events leading to your husband's death turn on the nature of the relationship between you and him, which was largely, if not entirely, dysfunctional. You had married in South Africa at the end of 1997. Your husband had previously been married to Lynn Creamer, and they had two sons, Dale and Lyle. You had known David Creamer since you were about 15 and started a relationship when you were in your 30s. You lived together for some time in Pietermaritzburg. In early 2000, your husband migrated to New Zealand and you followed about eight months later. At that time, you lived together in Tauranga. You worked in two jobs over the next 18 months as a cleaner in a motel and in a job in Auckland, which meant you were away from home between Monday and Friday. You continued the Auckland job until early 2007.

7 Your husband had been employed as a mechanical engineer and from about 2004 he had started taking contract work in Australia. In April 2006, he moved to Australia, leaving you behind in New Zealand. It is clear on the evidence that during your time in New Zealand you each engaged in extra-marital affairs. Whatever opinion you had of your husband's affairs, he encouraged you in your affair or affairs. Your husband had commenced an affair before you came to New Zealand. You were in a significant relationship with a man called CNR and you came with him to Australia on a number of occasions. You actually photographed him without any clothes on and your husband used that photograph to criticise you to his family, who lived in Sydney. Your husband had been in a relationship in New Zealand which continued until he moved permanently to Australia. Insofar as it can be ascertained, it appears that your husband accepted your relationships with other men and he probably encouraged it. You have reported that during this period, you had a problem with alcohol, particularly at weekends, but the evidence about that issue is not at all clear. You have frequently asserted that your husband wanted you to take part in group sex which you did not want to do. There is material on your joint computer which supports the attempts made by your husband and at one stage your reluctant consent to engage in such activities although they never took place. The evidence is that no such activity actually took place as you found various means of avoiding it.

8 You followed your husband to Melbourne at his request. You gave up a good job in New Zealand and even though your marriage could only be described as dysfunctional at that stage, you decided to take the chance of somehow making it work. You came to Australia in May 2007. There was evidence in the trial that your husband had asked you to join him. Your husband had been involved in several relationships after he came to Australia, but in particular a relationship with Marion Trewarn.

9 When you came to Australia, you held out some hope for your marriage. Your family quickly became aware that the long term view of your marriage was at best pessimistic. After you shifted to the Latrobe Valley, your husband was making frequent trips to Melbourne for the weekend and it was in that context that you placed an advertisement in a local paper and met up with CS, with whom you commenced a sexual relationship in about September 2007 which continued until your husband's death.

10 Your relationship with your husband continued to be a very difficult one, but you stayed with him. In December 2007, you both went to South Africa to attend your son's wedding. Your husband also wanted to renew his relationship with his former wife, Lynn, and his two sons. He stayed in South Africa for several weeks after you returned to Australia and did reunite with his family to the extent that he spoke of remarrying his former wife and returning to South Africa. He may have also spoken about the possibility of bringing his family to Australia. He was, in any event, looking for other employment to improve his financial position at the time of his death.

11 When you came back from South Africa, you moved into the house in Moe. You were, by then, occupying separate bedrooms, but you have told others that your sexual relationship continued and you have described your husband as punching you and forcing you to have sex with him because after you commenced your relationship with CS, you had become withdrawn.

12 You have denied that you knew that your husband intended to recommence a relationship with Lynn Creamer, but I am satisfied on the whole of the evidence that you did know. I say that because it seems that the communication between David and Lynn Creamer was such that you must have been aware of his intentions. It is not determinative of the issue, but he had told others that he had informed you.

13 I proceed on the basis that as far as you were concerned, there had been many threats to your relationship in the past, but somehow the relationship had continued, although in the largely unsatisfactory manner I have described.

14 I am satisfied that you regarded your position as extremely unsatisfactory and the future of your relationship with David Creamer as bleak, and you resented strongly any attempt to engage you in group sex.

15 They were the circumstances which faced you when you returned home on Saturday 2 February 2008. You have said that when you returned home on that Saturday, you found your husband at home, you did not expect to find him there because he was usually away on the weekends. You have claimed that he "repeatedly questioned, harassed and intimidated [you] about why [you] had not returned home on Friday evening".[1]

16 You then described a series of events which involved you forming the belief that he was trying to arrange for you to have sex with other men in his presence. You say that you saw him talking to two men at the house when you returned from shopping. When you were interviewed by the police, you denied any involvement in your husband's death, but you did describe in detail your husband's wish that you become involved in group sex and the distress which you felt about it. You did not, however, say anything about seeing the two men on the Saturday and I do not accept that part of your version of the events. That is one of a number of examples of material which you have added to your description of events which I am not prepared to act on. I will deal with the other matters later.

17 You said that after you had a dispute with your husband about sexual matters, including him accusing you of having had sex with his brother, you dozed off to sleep. You were awoken when your husband started hitting you with a stick. You did have some linear bruising consistent with such an attack. You said that you were struck in the genital area at that time and some days later reported such an injury to a general practitioner. You did not report it to the doctor who examined you at the Moe Police Station. Although the fact that injuries existed, some of which seem consistent with having been struck and others which appear to have resulted from a struggle, I am unable to conclude when the injuries occurred, except to say that the injuries to your back are more than likely to have occurred in the struggle which led to your husband's death.

18 You say that later your husband left the house. You assumed the next morning he had brought people back to the house because you saw wine glasses in the loungeroom. Not much turns on that and I make no finding about it.

19 You described the events of Sunday with your husband at first being apologetic for what he had done to you on Saturday, but then being very offensive to you by asking you to smell his semen stained sheets which he placed on your head. Your husband then went to his room.

20 You later went to the room, where you saw the stick which you say he used to hit you. You have described the stick as a knobkerrie which is a South African weapon in the form of a stick with a knob on the end of it. It is a form of club. The two weapons which you used in the attack on your husband have never been found. The Crown has doubted the question of whether it might have been a knobkerrie. I find it unnecessary to make any finding about it. It is likely to have been a knobkerrie as to have being any other similar instrument.

21 You say that he spoke to you and believed he was going to attack you, and you grabbed the stick and "started hitting him". You say that as you were striking him, he was abusing you, using the strongest possible language. You said that after you had hit him in the bedroom, you ran outside the house and he caught you and dragged you back inside where he grabbed a knife from the kitchen. You say that the two of you then struggled on the bed and your husband was smacking you on the face and the knife was on the bedside table. You said he was extremely angry and he tried to put his penis in your mouth and urinated on you. You said you somehow struck him in the genitals and you managed to push him onto the floor, and you think that must have been when you stabbed him. You said to the jury that he said he was going to finish you off. You had never said that before and, if it was said, it was not relied upon as being a foundation for a complete acquittal. I am not prepared to find that it was said.

22 You said that after you stabbed your husband, you ran across the road to dispose of the stick in the school. You said that you realised that you did not have the knife and as you went to return to the house, your husband came out of the house and called for you to come back.

23 You say that when you returned to the house, you heard the shower going. You collected the knife and disposed of it. You later returned to the house and washed your clothes, which you secreted in a cupboard. On the following morning, you found your husband dead and sought the assistance of neighbours. When interviewed by the police, you made no admissions as to causing your husband's death, but as I have already observed, you did tell the police something of the unsatisfactory nature of your relationship, and that appeared to be truthful.

24 Your version of the killing does not much accord with the known facts. On the known facts, you struck your husband with a weapon on a number of occasions at different places both inside and outside the house. At some stage, your husband was outside the front of the house while bleeding. That is also true of the rear of the house, where it can be said that he was struck by you. If he managed to get the "knobkerrie", as you have described it, from you, it was only for a very short period of time, and I am satisfied that he was at least dazed and in a substantially weakened state after the first blow or blows.

25 I regard you as an unsophisticated witness. I am satisfied that you said a number of things which you thought would help your case and this was one of them.

26 Professor Cordner, the pathologist who gave evidence in the trial, said:

"The body was that of a middle aged man with little in the way of natural disease to cause or contribute to death. There was no alcohol present. And there was no drugs present in quantities sufficient to cause or contribute to death. The deceased had sustained numerous blunt injuries to the head. And while there was some external manifestations of these the extensive nature and severity of the deep or internal scalp injuries belies the number and severity of the external injuries. In other words, the external injuries, abrasions and lacerations, modest lacerations, are small in number and severity compared to the crushing and haemorrhage evident in the deeper layers of the whole scalp. A similar appearance of the hands suggests that these must have been used to try and cushion the blows to the head. No fractures were obvious to the skull or hands. There's a single stab wound in the upper abdomen which has penetrated the stomach and liver causing substantial internal haemorrhage. On a scale of mild, moderate and severe force such a wound would have required approximately a moderate amount of force with a sharp, pointed, sharp edged knife. One litre of blood was measured as being present free in the peritoneal cavity. There were no defensive type incised wounds present. These are wounds to the hands and arms which often occur during attempts by victims to grab the offending instrument or ward off the blows. In assaults with a knife these are usually incised type wounds. As I said before, the injuries to the arms and hands are the result of blunt impact not the knife. The abrasion and pinpoint haemorrhage described in the front of the chest in wound 11 brought to mind the possibility of having been caused by the tip of the knife."

27 When Professor Cordner was asked as to the instant effects of the injuries, he commented that,

"It would not necessarily be the case that that there is rapid, you know, that is, instantaneous collapse following the stab wound to the abdomen, so purposeful activity would have been possible for a period after this. I would have thought that within a couple of minutes he'd be feeling, at least, a couple of minutes, he'd be feeling faint and not really feeling like moving. So following injuries to the scalp there may or may not have been periods of altered consciousness, but could well have been able to walk."

28 On the whole of that evidence, I conclude that he was disabled at the time when he was stabbed.

29 It follows that it was most unlikely that David Creamer was able to leave the house after he had been stabbed, and it is impossible for him to have been in the shower in the circumstances described by you. The injuries described by Professor Cordner demonstrate that David Creamer was struck a number of blows to the head in what can only be described as a very severe beating, demonstrating that you were out of control. I doubt you actually remember all of the details of what occurred.

30 The objective circumstances of this case make it a serious example of defensive homicide, although I accept your actions were not premeditated.

31 That leads me to consider the question of domestic violence. The jury must have accepted sufficient of the evidence about domestic violence to have entertained the doubt about the question of self-defence. How much of the evidence they might have accepted is problematical. They are likely to have accepted your evidence that you were reluctant to engage in group sex and they might easily have found what you said to the police in the record of interview about that as convincing.

32 What weight they might have given to the general issue of violence in the marriage is much harder to assess. I regard it as unlikely that they would have acted on the evidence about the rape in New Zealand because you raised it in the trial for the first time. In particular, you did not mention it to Mr Cummins or Dr Vine when you well knew the reason for those examinations. In addition, you have said you were in two minds about whether or not to leave New Zealand, and yet you did so, even though you say you had been raped.

33 I accept, however, that once you reached Australia, you were in a very difficult position and you were more dependent upon David Creamer in a general way.

34 The jury, in coming to their verdict, were entitled to have regard to the fact that you were placed in a very difficult situation by the relationship your husband engaged in. His relatively long-term relationship with Marion Trewarn and his stated ambition to resume his relationship with his first wife are all part of the material which would come under the heading of domestic violence.

35 The jury were entitled to entertain a doubt about whether the prosecution had proved beyond reasonable doubt that you did not believe that it was necessary to do what you did to defend yourself from death or serious injury. You accepted in the way the trial was conducted that such belief as you held was not based upon reasonable grounds.

36 Although I do not accept all the matters raised about domestic violence in the written submissions made on your behalf, I do accept, as I have already set out, that the relationship was becoming increasingly difficult for you because of the matters set out, and particularly because of your relative isolation.

37 It is very difficult to determine a scale by which to measure family violence, in deciding where on such a scale any particular case should be placed. It was in this case sufficient, as found by the jury, for a jury to have convicted you of defensive homicide and not murder. It follows that they must have regarded domestic violence as real, because they could not, on the facts of this case, have reached this verdict had they not found so. In the absence of any finding as to domestic violence, it was inevitable that you be convicted of murder.

38 I will sentence you on the basis that you had been overwhelmed by the whole of the circumstances as they surrounded you and, in particular, by your concern that you were being forced into a sexual scenario which you did not want.

39 Insofar as the prosecution put a submission to the contrary, I do not accept it. It is very important to bear in mind the very broad definition of "family violence" in the Crimes Act 1958.

40 At the end of the day, not much turns on the jury deliberations, except to say it is likely the jury were not troubled by the expression that "it was necessary to do what she did to defend herself from death or really serious injury". In a very real way, that was the live issue in the trial.

41 You are now 53 years of age. You have no prior convictions and your prospects of rehabilitation are good. You are unlikely to re-offend, particularly in this way.

42 At a relatively early stage in your incarceration you were diagnosed with a major depressive disorder. I am satisfied that that disorder appears to have abated and you were recently diagnosed by Mr Cummins as being moderately depressed. It is fair to say that your depression is largely a result of the situation in which you find yourself. I have taken that into account, together with most of the other matters put on your behalf which were set out in the written submissions given to me on the plea, and I will set them out.

"The accused has no prior convictions and has previously shown herself to be a devoted mother and caring relative to her extended family and neighbours.

She is of mature age with adult children and one grandchild and has not been able to see her son, daughter-in-law and grandchild since the event.

She is likely to find prison more burdensome than other prisoners because of her background and because of her lack of ties to the jurisdiction where she will be imprisoned.

She has an excellent work history, was described by witnesses as hardworking and reliable and was offered employment back in Pacific Brands if she were able to get bail.

While she has psychologically adjusted to her confinement in prison, better than the earlier period of her remand when she was placed on watch, she nevertheless has spent a lengthy period on remand with attended uncertainty attached to such circumstances."

43 The other matters point out that you have taken advantage of your time of incarceration and I have taken that into account.

44 I have already pointed out that I have had regard to the manner in which the trial was conducted, that is, it was conducted on the basis that you were guilty either of manslaughter or defensive homicide. In the circumstances that was a substantial concession and I have given it significant weight in the sentence that I have determined is appropriate in this case.

45 I have received a number of written references from Candice Butka, your daughter, Altn Butka, your son, Melonie Damon, a lifelong acquaintance of yours, Patricia Saker, your sister, Rose Bartleson, your sister, and Rowen Saker, your nephew, on your behalf. They are people who speak well of you and insofar as they are capable, give you their support.

46 I received Victim Impact Statements from Lynn Creamer, the ex-wife of David Creamer, Marion Trewarn, who as I have already mentioned had a reasonably long and significant relationship with David Creamer, Annette Bijaare, David Creamer's sister and Dale Kurt Creamer, David and Lynn Creamer's son, in relation to the deceased. There is no doubt that David Creamer will be greatly missed by those close to him and his death has had significant and important effect upon them.

47 It is a difficult case in which to view the matter, but I am satisfied that you genuinely regret what you have done and that in the sense you are remorseful and of course if you had things back again it would not have happened but that is not where we are. I have been referred to a number of decided cases and I have looked at them. These cases demonstrate the extent to which the sentencing process is so often confined really to its own facts.

48 I have had particular regard to the relative isolation you suffer here, and have imposed a lower than usual non-parole period because of it.

49 I am obliged to have regard to matters of just punishment, denunciation and general deterrence. I am also obliged to have regard to specific deterrence, which I do not regard as being of particular significance in this case. The crime of defensive homicide carries a maximum term of imprisonment of 20 years.

50 Eileen Creamer, I sentence you to be imprisoned for 11 years and I fix a period of seven years before you will be eligible for parole. I declare that you have served 721 days of presentence detention and order that this declaration and its details be entered in the records of the court.

[1] Report of Jeffrey Cummins dated 14 February 2011, p 8.