R v Denney [2000] VSC 323

Supreme Court of Victoria|2000-08-04|Before: COLDREY, J.

Barbara Muir Denney, having been presented for trial for the murder of your husband John Walker Denney at Hamlyn Heights, between 1 August and 30 September 1985, the jury found you guilty of manslaughter. It is now my responsibility to sentence you for that offence.

The effect of the jury verdict was that whilst the Crown had proved that you fired the two fatal shots into the head of John Denney, with the intention of killing him, the Crown had failed to exclude beyond reasonable doubt that you acted under the influence of provocation. You detailed the provocative conduct of your husband to investigating police and also in your evidence before this court. The jury verdict may be regarded as consistent with a substantial acceptance of your account.

You are presently 61 years of age, having been born in 1939 in Dundee, Scotland. The youngest of six children, you were born into a house where drunken violence was perpetrated by your father upon your mother. You were educated to Year 9 level and left school at 15, to commence working as a sewing machinist. At about the age of 17, one of your brothers freshly returned from World War Two, subjected you to sexual abuse. His assaults fell short of actual sexual intercourse, although that was his object.

When you were 20, you married a man named Tom Downey and one child, Stephen, was born from this marriage. Although you loved Tom, you also saw this alliance was an opportunity to escape your brother's persistent and unwelcome advances. It turned out that Mr Downey was unable to prevent your brother coming to your house. Subsequently, at age 24, when employed at Langton's wood factory, you met John Denney. He was regarded as a strong man and people were wary of provoking his anger. Part of your attraction to him was his capacity to stand up to your brother.

You left your first husband Tom and eventually married Mr Denney. It was soon apparent to you that your husband was a jealous man. Prior to your marriage, he wished to be told of your previous relationships, on the basis that the past would then be forgotten. However, thereafter the topic was always raised by him in the course of arguments.

According to your evidence, John Denney treated your first son Stephen harshly. One example was the devising of exercises to strengthen Stephen's back and spine, which were additional to those prescribed for him by his doctor. If Stephen failed to perform the exercises properly, your husband would strike him. At one stage when Stephen was temporarily returned to his father Tom, and when you were pregnant with your daughter Barbara, you attempted to leave your husband. He assaulted you and told you that he would never let you go and said that if you left him, he would kill you.

This was a theme he returned to frequently in the ensuing years. He also told you that you had never seen him in a real temper and that when he was in a "red rage" he did not know what he was doing. You had hoped that when John Denney had a child of his own, the persecution of Stephen would cease. However the birth of Barbara did not alleviate the problem. It was not until Stephen was older and bigger that his relationship with your husband improved.

I should add that your son Stephen supported parts of your account. For example, he confirmed that his step-father would hit him if he failed to do his exercises properly. He said that you became distressed when he was struck by his father in front of you. Whilst he also said that he got on all right with his father, this is not inconsistent with their relationship in later years. On the other hand, the situation may be as outlined by Mr Ian Joblin, the clinical psychologist who gave evidence on your behalf. But to some extent, you projected the fact of your own abuse onto your husband's relationship with the children.

In your account to both the police and to the jury, you spoke of frequent assaults by your husband to parts of your body including arms and legs in areas where the bruises were not readily visible. Any refusal by you to meet John Denney's sexual demands would be met by the response, "who are you keeping yourself for, you must be meeting someone else". Eventually your state of mind was that you should have sex with him, both to please him and so that he would not pick on the children. He demanded sex with you during your periods and immediately after the birth of your children.

You came to Australia in 1977. It was a place where John Denney effectively knew nobody and you hoped for a new beginning for the children and a release from his jealously. For you, however, the situation did not improve. For two years you lived with one of your two sisters who resided in Geelong, your husband would not permit you to go out, even to visit your other sister, whom he did not like. You could not make friends, let alone invite them into the home.

Your husband's jealously manifested itself in his refusal to allow you to wear make-up or perfume. You told the investigating police that you became fat so that other men would not look at you. The arguments in which you were often told you were useless occurred behind closed doors, as did the assaults. Your two sons, Stephen and John, deposed to hearing arguments, although none of your children observed any violence. Each of your children agreed that you were a reserved person who became distressed when your husband struck any of them, even when that involved legitimate chastisement.

Evidence from some of your husband's work mates indicated that he had a temper, although the frustration of the work environment at Dunlop Pulsar Batteries left all of them irascible. One revealing piece of evidence from a work colleague, Mr Elwyn Davies, was of a vicious reaction from John Denney when it was suggested that he may need your permission to stay longer at a work meeting. This was accompanied by a derogatory remark about you.

In a conversation with your daughter Barbara Jordan, which was recorded by way of a listening device, Barbara noted your husband's jealously and her perception that you were very unhappy. You confirmed your unhappiness and the fact that your husband would not permit you any freedom of movement.

In front of your family and in public social settings, you endeavoured to play the dutiful wife and John Denney played the devoted husband. However, the real situation was one of marital conflict, which you endeavoured to keep hidden from your children. It is highly likely that your reserved demeanour reflected a developing depression.

It should not be concluded from what I say that John Denney lacked any redeeming features. The evidence before the court is of a hard worker, a man who generally got on well with his work mates and a father who related well to his children. Indeed, somewhat paradoxically, you told the investigating police that you loved John, but you did not like the things that he did. However, whilst it is impossible to actively determine the precise level of physical and mental abuse that you suffered, I am satisfied that such abuse did occur, that it was sustained and that it was psychologically demoralising.

One of the constant topics of argument was that of family finances. Initially John Denney had given you his pay packet, to pay the family bills and to spend the balance on the children. But subsequently in what may be characterised as a demonstration of his power and control, he put you on a budget, requiring you to detail all items of household expenditure. Despite this exercise, he could not be convinced that the money he supplied to you was insufficient to cover the inevitable increase in prices. You met that shortfall by obtaining loans from such companies as Avco and AGC. Ultimately you had acquired debts of about $5000.

You believed that the revelation of this fact to your husband would make him extremely angry and this was a confrontation that you dreaded. You told the jury that in the days prior to the fatal afternoon, John Denney had expressed the wish to go shooting with a work mate from Dunlop Batteries. In an endeavour to appease his anticipated anger, you borrowed a rifle from a Garry Howie, who was a friend of your husband, with whom he had previously been shooting. Mr Howie also provided some ammunition for the weapon.

At the time of the shooting, only two of your sons, John and Bobby, were still living at home. However, they were absent from the house in Vines Road, Hamlyn Heights on the afternoon that you decided to inform John Denney of your debts. You gave an account of an angry confrontation in the lounge-room, in which your husband struck you a couple of times and you fell onto a chair. You mentioned borrowing the gun from Mr Howie, at which point you said that your husband "lost it". The problem was not the mere borrowing of the firearm, but the fact that you had gone to Garry Howie and asked for it.

You told the jury that your husband called you "a stupid bitch" and said that he always knew you were worthless and threatened to kill you. He also said, "you're only good for one thing" and pushed you into the bedroom and while seething with anger, he violently raped you. There were various descriptions you gave of your reaction to his behaviour. You felt fearful, degraded, humiliated and angry.

In addition, the incidents of your years of marriage filled your mind. The intensity of your husband's anger was such that you were terrified that he would kill or seriously harm you. It was during this period of emotional turmoil and when your husband had fallen asleep after the sexual assault, that you took the gun from where you had stored it in the laundry, and shot him twice in the head.

Although you told the jury you fired the second shot to put your husband out of his pain, implicit in their verdict is the finding that, as a reasonable possibility, that shot was also fired while you were under the influence of provocation. Later that day you informed each of your children that their father had left home after an argument. On the evening of the shooting, you and the boys slept on the couch and it was not until the next day that you were able to remove John Denney's body, wrapped in a purple bedspread, from the matrimonial bedroom.

You drove the body in the family van to an area of bushland within Steiglitz Historic Park, where you left it covered with foliage. The body remained there until it was discovered by bushwalkers in April 1988. The initial lie you told about your husband's disappearance was embroidered within days, when you informed your children that John Denney had phoned from Ballarat. Later again you told your daughter that you had spoken to man from Darwin, who was inquiring about the family on behalf of your husband.

Your explanation for the initial falsehood was because you did not know how your children would react to you having shot their father and whether they would understand your actions and remain with you. The lie about Ballarat was to bolster the children's belief in your husband's departure and make it easier for them to accept it. The Darwin story was designed to assist your daughter to cope with the loss of her father.

You persisted with your false account when interviewed by police in May 1994 and initially in August 1998. At this later stage, you briefly embellished that account by suggesting that a Richard Kevic, a man you associated with for a few months, could have been responsible for your husband's death. However, you soon realised that such a proposition was untenable, since you had not even met him until after your husband's disappearance.

In the years that followed John Denney's death, you had to live with what you had done and the litany of lies that you continued to tell to hide it and the fear of the effect that the discovery would have upon your family. Added to this psychological burden was the death by drowning of your youngest son Bobby in 1986, when he was only 11 years old. You told the jury that you believed God had taken him as a punishment for what you had done.

I have already remarked on your reserved nature. One aspect of your personality was that you did not wish to make any details of your relationship public. Nonetheless, there are clues to your situation in your interaction with professional carers, albeit that some of your statements were made in the context of your continued deception. Dr Geoffrey Harrison, your GP since March 1985, noted that you were suffering from depressive anxiety and insomnia-type symptoms as early as June 1985.

You were prescribed anti-depressant medication. This was, of course, prior to John Denney's death. Those symptoms continue. Dr Murray Anderson-Hunt, in his role as a psychiatric medical officer at Dax House, Geelong, examined you in September 1991, after you had taken an overdose of sleeping tablets. The doctor records you as having mentioned among other things, your husband's anger outbursts, which he translated into the term "gross temper disorder". He diagnosed you as suffering from moderate depression, which may have been chronic.

In November 1992, after again taking an overdose, you were seen by Patrick Moran, who was then employed at the Corio Community Health Centre as a psychiatric nurse. He found you to be extremely depressed and you were again referred to Dax House. Thereafter, between December 1992 and January 1994, you were treated by Dr Ross King, a clinical psychologist. He described you as being in a chronic low depressive state, as well as having a major depressive disorder, the latter being attributable to the death of your son. He also assessed you as being a chronic suicide risk. Dr King stated that you had told him that your second marriage was very unhappy and that your husband had been physically abusive towards you.

At your trial, expert evidence was given by Dr Lester Walton, a forensic psychiatrist, as well as Mr Ian Joblin. Dr Walton proffered the view that you were suffering from a chronic depressive disorder and that your conduct in the context of your marriage relationship, fell within the spectrum of behaviour labelled "battered woman syndrome". While Mr Joblin agreed with Dr Walton that you are chronically depressed, he was of the view that you did not fit the paradigm for battered woman syndrome.

Nonetheless, he agreed with Dr Walton that abuse over time creates a state of "learned helplessness" and that you were exhibiting it. Both experts pointed to the phenomena whereby victims conceal evidence of abuse so as not to aggravate the perpetrator of it. In Dr Walton's opinion you were not suffering from any psychosis but you have what he described as permanent psychological scarring requiring ongoing psychiatric treatment.

Although you are 61 years of age, if I might say so without giving offence, you have nonetheless aged prematurely. You walk with the aid of a stick, having been involved in a motor accident which shattered your kneecap. You are otherwise in ill health and in receipt of medication for depression, congestive heart failure and hyperthyroidism, a form of thyroid dysfunction.

In my view, the physical and psychological toll of harbouring the secret of your husband's death, has been immense. It has in itself constituted a severe punishment for your actions. That punishment has been augmented by your interpretation of the death of your son Bobby. I accept that you are generally remorseful for what you have done.

You must also be given credit for your offer to plead guilty to manslaughter made a considerable time prior to this trial.

Additionally, you have no prior convictions and the Crown accept that you are entitled to be treated as a person of previous good character. That factor, together with the circumstances surrounding the killing, makes specific deterrence of little relevance. Further, your counsel, Mr Perry, informed me that you are blessed with the support of your children, who not only acknowledge your role as their mother, but also as a grandmother to their children, of which there are currently three.

Of course provocation manslaughter is a serious offence and the court must be seen to uphold the sanctity of human life, moreover the court should endeavour to deter violence as a problem solving technique. There is no right to take the life of a person because their conduct may be regarded as despicable and the court must not appear to condone such action.

However, the sentence to be imposed for the crime of manslaughter necessarily varies widely according to the circumstances of the offence and the antecedence of the offender. As Mr Morgan-Payler fairly conceded on behalf of the Crown, the circumstances of this case are highly unusual. The conduct giving rise to this shooting was humiliating, degrading and violent. The aftermath of that shooting, spanning 15 years, has left you with devastating physical and psychological damage.

In light of the history of these events and the factors to which I have previously adverted, I have concluded that the denunciation of the taking of human life and the reflection of the principle of general deterrence may, in the unique circumstances of this case, be appropriately accommodated by a sentence of imprisonment which is wholly suspended. In all the circumstances, I regard the proper sentence as one of three years.

Mrs Denney, for the reasons that I have outlined, I propose to give you the opportunity to re-establish your life without undergoing any actual imprisonment. The term of imprisonment will be three years, but the whole of that period will be suspended, so that you do not have to spend any time in custody. During that period of time you must not commit any further offence which is punishable by imprisonment or you may be required to serve some or all of the suspended sentence. Do you understand that?

HIS HONOUR: Accordingly, you are sentenced to three years' imprisonment, but I order that the whole of that sentence be suspended for a period of 36 months.

HIS HONOUR: Is there anything further gentlemen?

MR MORGAN-PAYLER: No, Your Honour, thank you.

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