The offender pleaded guilty in the Local Court that on 13 August 2018 at Penshurst he did murder Dawn Butterworth. He now comes before me to be sentenced.
The maximum penalty for murder is life imprisonment. There is a standard non-parole period of 20 years' imprisonment. Those matters are taken into account as guideposts in the sentencing exercise. The Crown says that it does not submit that the circumstances of the present killing warrant a sentence of life imprisonment. I agree that the circumstances of the killing do not warrant the imposition of a life sentence.
[2]
Background
The offender at the time of the killing was aged 62 years, having been born in 1956. The deceased was his de facto partner of about 30 years. She was then aged 67 having been born in 1951. They lived in a rental unit in Penshurst. They had no children together. The deceased had two adult daughters from a previous relationship with whom she had little or no contact. The tenancy of the unit, where they had lived for the previous five years, was in the offender's name only.
The offender worked as a bartender at Kareela Golf Club from 14 October 2011 until his employment was terminated on 12 March 2018. It appears that the offender allegedly provided drinks for the kitchen staff which were not paid for.
The deceased had been on the aged pension since she turned 65 and prior to that time she was on the disability pension for some years. She suffered serious long-standing health problems, including chronic obstructive pulmonary disease (COPD), commonly known as emphysema, depression and anxiety. In April 2018 she was diagnosed with End Stage COPD. She had been referred to palliative care and placed on Ordine (morphine) for pain relief and Lorazepam for anxiety. The offender was her primary carer.
A home care nurse visited her at the unit about once a fortnight.
Prior to her admissions to hospital in May and June 2018, the offender and the deceased regularly attended their local RSL club where they would socialise with others, play bingo, drink, smoke and gamble on poker machines. After the offender lost his job they experienced some financial difficulties. They had fallen behind in rental payments on the unit where they lived. On 4 July 2018 the property manager served a termination notice on the offender which stipulated that payment of the arrears was to be made by 24 July 2018 or, if no such payment was made in full, the unit should be vacated. Additionally, an application was lodged by the property manager on behalf of the landlord in the NSW Civil and Administrative Tribunal, and the matter was listed for hearing on 13 August 2018.
In mid-July, the offender spoke with the property manager. He asked for a new lease for the unit with the deceased being included on the lease. The property manager said that she would not entertain a new lease because of the unpaid and overdue rent owing under the existing lease.
On 10 August 2018 the deceased spoke with her nurse, Danielle Ferraro, on the telephone and told her how upset and stressed she was because she had been trying to fill out paperwork to apply for new housing. Ms Ferraro said that she would come by the house later that day to help the deceased fill out the forms. Ms Ferraro arrived at the unit at about 1.20pm. The deceased was extremely distressed and was crying. The offender was present. Ms Ferraro tried to calm the deceased down by explaining that she would assist in having the housing forms completed and sent. She said that she would be back on the following Monday morning with the forms completed for the deceased to sign.
[3]
The events of 13 August 2018
The offender woke at about 6:30am on 13 August. He had a cup of tea, sat down to watch the television and made a shopping list. This was his daily routine. The deceased woke at about 8:30am. She came and sat in an armchair in the lounge room.
At about 9:00am the offender made the deceased a cup of tea. The offender told the police that he was about to go out shopping when he then picked up a knife from the kitchen, walked to where the deceased was sitting in the armchair and, from behind her, stabbed her once in the back right side of her neck.
The deceased attempted to stand up but then fell to the floor. She was lying face up and said to the offender, "What are you doing, what are you doing, what have I done?" The offender then stabbed the deceased again on the upper right-hand side of her chest. The deceased began to struggle and, as she did, the offender held her down by the shoulders until she stopped moving.
A neighbour who lived in unit 11 on the floor above the unit where the offender and the deceased lived, was awakened by what he described as "deep and harsh" screams of a female calling "Help me, help me" sometime between 7:00am and 9:30am. He believed them to be coming from the offender's unit and to be the screams of the deceased. The screams continued for about two minutes before stopping. He heard no other noise and went back to sleep.
After the deceased stopped moving, the offender removed his own clothing. The clothing was covered in blood. He placed it in the washing machine but did not start it. He dressed in other clothes again and then cut his right wrist with a knife, causing a superficial laceration only. He then consumed about half a bottle (approximately 100ml) of the deceased's liquid morphine, and lay on his bed.
Ms Ferraro arrived at the unit to see the deceased at about 10:50am. She knocked and entered - the unit door was never locked. She noticed the deceased lying on the floor and attended to her, thinking she had had a fall. She soon realised, given the amount of blood around the body, that it was not a fall. There was a pillow placed over and covering the deceased's face when Ms Ferraro found her.
Ms Ferraro checked the deceased for signs of life but those checks revealed that the deceased was dead. She telephoned triple 0 from her mobile phone and requested that police and ambulance attend. She walked to the bedroom and noticed the offender lying on the bed. He did not appear to be conscious. She noticed the bottle of Ordine with the lid off on the bedside table, and saw that he had a three centimetre cut across his right wrist.
Ms Ferraro noted that the offender had a pulse and was breathing but she was unable to rouse him. As she left the bedroom she looked back and noticed that his arm moved. She left the unit and waited for Emergency Services outside.
When the police arrived, one of the police officers was able to rouse the offender. The police officer noted that the cut on the offender's right wrist was bleeding slowly. The offender told police that he had taken some of the deceased's morphine. When he was asked what happened to the deceased the offender responded, "I, I … that's what, stabbed her, and I just stabbed her".
This conversation was recorded by the police at the scene. During that short interview the offender nominated some issues of financial stress, and he directed police to a knife in the kitchen which he used to stab the deceased. He went on to describe the way he stabbed the deceased and how she responded.
The offender was taken by ambulance to St George Hospital under police guard. He told the police he did not have any mental health history but he had been stressed recently, having lost his job in March and having been told that he was going to be evicted from the unit. He said he had not argued with the deceased that morning. He had been angered by his football team losing on Saturday night but thought that he was calmer by Sunday 12 August 2018.
The offender was unable to explain what happened on the morning of 13 August 2018. Everything was as usual and then he snapped. He said he remembered the whole thing and did not black out. He said he then intended to kill himself to cope with what he had done.
At St George Hospital, the offender was reviewed by the mental health team, and by the Psychiatric Registrar. The offender was confirmed not to have been mentally ill or disordered under the meaning of the Mental Health Act 2007 (NSW).
An autopsy was conducted on the deceased on 15 August 2018 by the Forensic Pathologist Dr Lorraine Du Toit-Prinsloo. The report prepared for the coroner revealed that the cause of the deceased's death was stab wounds to the neck. There were five sharp force injuries including two stab wounds and three incised wounds to the neck and chest. One stab wound was on the right side of the neck. Subtle signs that could indicate asphyxia at post mortem were noted, with bruises seen on the arms capable of supporting a possible struggle. Dr Du Toit-Prinsloo was of the view that the possibility that smothering contributed to the death can be considered.
[4]
The offender's explanation
The offender engaged in an ERISP which lasted a little over an hour on the evening of 13 August 2018. He admitted to having stabbed the deceased and when asked what his intention was he said, "Obviously to kill her, but I don't know why." He was asked a number of times what had led to the stabbing and why he had done it. His answers included:
• Don't know why. Don't even know why I did it, just, I don't even know what possessed me to pick the knife up and go up to her and stab her in the first place.
• I was holding her down, just trying to stop her struggling, I don't know why.
• I don't know what was going through my mind. I don't know, I think, at the end of the day, I'm just blank, it, the brain just stopped, stopped, well, trying to think of things, just things, I don't know what, time or what, my brain just, think, don't think about what you're doing. I don't know. Like, coz I've got no idea. I, I still don't know why now why, why I, why I did it.
He was asked if he tried to smother her with the pillow and he said "maybe" but he said he had no idea how the pillow got on her face.
The offender said that he tried to commit suicide:
…cause of what I've done to Dawn … It's I, it's just not right. I've killed her. I can't live… Once I'd stabbed Dawn, I thought, oh God. I said I've, she's gone. I can't. I can't stay alive while she's dead, when she's dead.
He denied that there had been any violence within the relationship and said he had never hit her at any stage. He denied ever previously having any thoughts about stabbing the deceased.
In his evidence at the sentence hearing he said that he and the deceased had been happy together. He said he lost his job in March 2018, and his mother died in April 2018. He said the deceased was getting progressively worse, and he thought she had only a few years left to live. In the few months before her death she wasn't coping with going out of the unit because the stairs were too much of a struggle.
He was asked by his counsel if he had any idea why he killed the deceased and he said:
No, I can't - I can't think why, don't know.
He said that the deceased had never said that she did not want to live anymore. Although the offender said that the financial situation he and the deceased were in was causing him stress, he was trying to deal with it, and it was not consuming him. He did not relate those financial stresses to the killing. He denied that there were relationship stresses with the deceased. There was no evidence to suggest that it was a mercy killing.
[5]
Objective seriousness
The offender submitted that the objective seriousness of the offence was just above the low-range of objective seriousness for the offence of murder. Counsel for the offender accepted that the offender intended to kill the deceased. The Crown submitted that the objective seriousness was below the mid-range.
Both counsel agreed that there were three aggravating factors. First, a knife was used. Secondly, the offence was committed in the deceased's home. Thirdly, the deceased was vulnerable and was not in a position where she could have defended herself at least by reason of her medical condition.
This is an unusual case. There is no motive for the offending and the offender appears, genuinely, to be unable to give an explanation for the offending. Many cases involving domestic killings occur following the discovery of infidelity, after periods of abuse, or in the context of an argument or shortly thereafter. In those cases provocation, not amounting to a partial defence, is often a consideration in the sentencing exercise. The provocation or other explanation for the offending is something that the offender needs to establish.
In the present case, with no explanation or reason for the offending given, I cannot regard the present offending as in a less serious category than a murder where other explanatory matters have preceded it: e.g. R v Do (No 4) [2015] NSWSC 512; R v Rogers (No 9) [2019] NSWSC 1622.
I accept that the offending was not part of a planned or organised criminal activity and that it initially occurred spontaneously. However, it involved five sharp force injuries, and the holding down of the deceased as she struggled and pleaded. I find beyond reasonable doubt that the offender intended to kill the deceased. In my opinion, the objective seriousness is just below the mid-range.
[6]
Subjective factors
The offender was born in April 1956 and is now aged 63 years. At the date of the offence he was aged 62 years. He grew up in Bexley. He attended Sydney Technical High School. He left halfway through Year 11. He subsequently worked for the Department of Main Roads and then the Roads and Transit Authority (as those entities were then known) for some 23 years in a clerical capacity, eventually accepting redundancy in 1995.
He was then out of work for almost three years. He subsequently studied hospitality at TAFE. He obtained a Certificate II qualification and gained employment at Bankstown Sports Club in 1999 where he worked for some ten and a half years.
He was then unemployed for about 12 months until 2010 when he commenced work at the bar at Kareela Golf Club. It was from that employment that he was terminated in March 2018.
Dr Furst, who examined him in early 2019, noted that there was no psychiatric history. Although in his late teens and twenties the offender often drank to excess, Dr Furst said he did not appear to be dependent on alcohol. His drinking reduced until he stopped drinking altogether in March 2018 after losing his job.
He and the deceased started playing the poker machines from 1998 and that "got out of hand", as he told Dr Furst. His gambling was excessive between 2013 and 2016, which added to their financial difficulties.
The offender denied to Dr Furst any major conflicts with the deceased and denied any domestic violence in the relationship.
Dr Furst considered that the offender had probably been highly stressed at times over the preceding 12 months, including when he lost his job in March 2018 and when his mother died in April 2018. He fell into financial difficulties and the deceased's poor health was a further stressor. Dr Furst thought that these matters were the most salient factors behind the offender's ultimate decision to kill the deceased and then himself.
Dr Furst said that the offender was probably not suffering from a diagnosable mental disorder that could be considered as an underlying condition within the meaning of s 23A of the Crimes Act 1900 (NSW), notwithstanding the overwhelming circumstances he found himself in.
The offender was also examined by Dr Ilana Hepner, a clinical neuropsychologist on 20 May 2019. She administered a large number of tests which, generally speaking, showed his functioning in various areas to be average or above average. She observed that his history was notable for a number of risk factors for cerebrovascular disease which might have an impact upon brain function.
Dr Hepner said that the deficits detected on testing would be considered consistent with a Mild Neurocognitive Disorder on the basis of likely cerebrovascular disease and/or the long history of heavy alcohol consumption. Dr Hepner said it was more likely than not that the cognitive deficits were present at the time of the offending. She said the extent to which they may have contributed to the offending behaviour was a matter for forensic psychiatric opinion and the Court. There was no psychiatric evidence of any link between the cognitive deficits and the offending. Unaided by such expert opinion, I cannot make such a finding.
[7]
Victim Impact Statement
One of the deceased's daughters, Samantha Butterworth, read a Victim Impact Statement. A statement she made to the police was also tendered. It was clear that the deceased's death has been very difficult for Ms Butterworth, no doubt made worse because of her strained relationship with the deceased. In addition, the deceased's death has been very difficult for Ms Butterworth's daughter who was very close to the deceased. The Court again extends its sympathy to all of the deceased's family.
[8]
Remorse, rehabilitation and re-offending
On the basis of what was said by the offender in the ERISP, what he said to Dr Furst, and his evidence in the witness box, I accept that the offender is extremely remorseful for his actions. I consider that his prospects of rehabilitation are good. Although I consider that the offender is at little risk of re-offending, that must be qualified by the fact that the offender is unable to explain why he committed such a heinous act without any apparent provocation or trigger.
[9]
Deterrence
The lack of any explanation for this crime means that specific deterrence is a relevant consideration. Murder is the most serious of crimes, and both general and specific deterrence and denunciation are almost always important considerations, particularly in a domestic setting: Hiron v R [2007] NSWCCA 336 at [32].
[10]
Mitigating factors
Other mitigating factors not already mentioned when dealing with remorse and rehabilitation are that the offender has no criminal record and is a person of good character. I have already noted that the offence was not planned.
[11]
Discount
The offender pleaded guilty at the earliest opportunity. He also made frank admissions of guilt from the outset. I consider that he is entitled to a 25% discount.
[12]
Sentence
I take into account the offender's age. He has been in custody since his arrest on 13 August 2018. On any basis he will be an old man at the time of his release, and prison will be more onerous as he ages.
The offender puts forward four matters which he says justifies a finding of special circumstances to reduce the statutory ratio. Those matters are his relatively advanced age, his lack of previous experience of the prison system, the risk of institutionalisation especially given that he will be released at an age when he may not be able to care for himself, and that he would benefit from an extended period to reintegrate into the community given his past history especially of alcohol misuse. I have taken into account his age. I consider that there will be sufficient time for him to reintegrate into the community and overcome any potential institutionalisation in the parole period I intend to nominate. I further consider that any finding of special circumstances would reduce the sentence to one which was below an appropriate non-parole period, having regard to the seriousness of the offending.
Alan Lloyd Greentree I convict you of the murder of Dawn Butterworth. I sentence you to a non-parole period of 14 years' imprisonment commencing 13 August 2018 and expiring on 12 August 2032 with a balance of term of 4 years and 9 months expiring 12 May 2037.
Pursuant to the Crimes (Domestic and Personal Violence) Act 2007 (NSW) I direct that the offence for which you have been convicted is to be recorded as a domestic violence offence.
I am obliged to warn you that because you have been convicted of a serious violence offence, the State can make an application before your sentence expires to obtain an order against you under the Crimes (High Risk Offenders) Act 2006 (NSW).
[13]
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Decision last updated: 29 November 2019