R v Horton

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

Friday 24 September 1999 70046/96 REGINA v ANNE YVONNE HORTON SENTENCE

1 HIS HONOUR: The prisoner, Anne Yvonne Horton, upon arraignment before Mr Justice Barr on 19 March 1999 on an indictment charging her with murder, pleaded guilty to the manslaughter of Michael O'Hara Fitzgerald at Sandy Beach on 18 December 1995. The Crown accepted the prisoner's plea in satisfaction of the indictment and a conviction was then recorded. The prisoner came before this Court at Lismore on 17 August 1999 when evidence on sentence was received. On the following day submissions on sentence were made and the prisoner is now before this Court for sentencing. 2 The prisoner earlier stood trial in the Supreme Court at Coffs Harbour in November 1997 charged with the murder of the deceased. The prisoner was convicted of murder on 24 November 1997 but a subsequent appeal to the Court of Criminal Appeal was successful. The prisoner's conviction was quashed and a new trial was ordered on 20 December 1998: R v Horton (1998) 45 NSWLR 426. There then followed the plea of guilty to manslaughter in the circumstances I have outlined. 3 No oral evidence was presented before me. The Crown tendered:

(i) the summing up by Newman J at the earlier trial;

(ii) the transcript of evidence taken at that trial;

(iii) the transcript of evidence taken on the earlier proceedings on sentence;

(iv) the statement of Det. Senior Constable Wellings of 6 March 1999 relating to his investigations into the death of the deceased, together with the photographs of the deceased, the knife used, various items of clothing and the scene of the crime. 4 Mr Bruce, who appeared for the prisoner, tendered certain extracts of the evidence at the earlier trial, which duplicate in part the Crown's tender earlier identified, but which marshal in a convenient form those passages of the earlier evidence of the witness Cheryl Douglas upon which Mr Bruce wished to focus in his submissions. Mr Bruce also tendered certain certificates and references on behalf of the prisoner. 5 The crime was committed at premises at 14 Wattle Place, Sandy Beach. The deceased sustained a stab wound to the left side of the chest puncturing the heart. I will consider the nature of this injury more closely later. This wound was inflicted by the prisoner using a knife, and the deceased died in hospital some three hours later after attempts to save his life had proved unsuccessful. 6 The prisoner had known the deceased for many years, having been introduced to him by the deceased's father. The prisoner used to meet the deceased's father, the deceased and others on a regular basis to drink together at the Burton Hotel at Glebe. For some two months before the date of the death of the deceased, the deceased, the prisoner and Cheryl Douglas lived together at the premises in Wattle Place, Sandy Beach. Those premises were originally leased by the deceased and the prisoner and it was later that Cheryl Douglas came to join them there. Cheryl Douglas and the prisoner had a sexual relationship which began in 1993 and which was, it would seem, a stormy one. 7 On 18 December 1995 a great deal of alcohol was consumed by the members of the household I have described. The evidence satisfies me that the prisoner was a chronic alcoholic and on the day in question she started drinking in the morning with several glasses of wine and water. The prisoner later consumed a number of schooners at a tavern, more schooners at a bowling club, then some bottled beer back at the house. During the afternoon the prisoner had a number of stubbies of beer, followed by several glasses of wine before drinking a further quantity of beer at Wattle Place. At 7.00 am on the morning of 19 December 1995 a blood test was taken and that produced a blood alcohol reading of .133 grams per 100 millilitres of blood. Varying estimates were given as to what the reading would have been if taken at 9.00 pm on 18 December when the deceased was stabbed, but the estimates ranged from .153 to .399, a very high concentration on any view of the matter. 8 In the course of 18 December the prisoner was hostile towards Ms Douglas and considered herself aggrieved by the lack of support Ms Douglas had given her following the death of the prisoner's mother on 16 December 1995. The prisoner was upset that Ms Douglas was not sleeping with her. There was, during the afternoon, a confrontation when the prisoner pushed Ms Douglas against a glass door. Then shortly before the deceased was stabbed, there was a further confrontation when the prisoner entered the toilet where Ms Douglas then was and accused her of being "a dog". This was prompted by the discovery that Ms Douglas had informed the police about the prisoner driving a motor vehicle whilst affected by alcohol earlier that day. 9 After Ms Douglas left the toilet she returned to the living area which the photos and the sketch disclose as being an open plan area with the dining area and kitchen adjacent and towards the rear of the house and the lounge room at the front of the house. 10 I have heard no oral evidence and I have been dependent upon the transcript of the evidence given at the trial in 1997 to ascertain the facts. Ms Douglas gave evidence at that trial and so too did the prisoner. The prisoner gave evidence that she had no memory of holding the knife at all that night and that indeed she had no memory of the relevant events. I observe that when interviewed by police the following morning, the prisoner claimed to have seen Ms Douglas stab the deceased. 11 I accept in the main the account given by Ms Douglas in her evidence as to what happened. I do not find that the prisoner's evidence assists me in determining the circumstances in which the crime was committed. 12 Summarising the evidence of Ms Douglas, this witness said that she walked down the hallway from the toilet and saw the prisoner standing near a chair at the end of the dining table. At that time the prisoner had the knife in her hand and when the witness approached the prisoner held the knife up towards the face of Ms Douglas and touched it, mainly on the left side. Ms Douglas' response was to say: "if you are going to do it, make a good job of it." Ms Douglas then moved away. 13 While that confrontation occurred the deceased had been sitting at the table shown in photos 2 and 4 in Exhibit D, but within a short period of Ms Douglas moving away from the prisoner as she held the knife, the deceased stood up and crossed to the sink in the kitchen. Before he stood up the deceased said, and it would appear that this remark was addressed to the prisoner after she had said she was going to kill Ms Douglas: "Just wake up to your fucking self". He crossed to the sink where he made a further comment to the effect that he "had had enough of this shit." Then, according to Ms Douglas, the deceased who had passed between the two women to go to the sink started to move back towards the table, drawing closer to the prisoner as he did so. Ms Douglas said that she saw the prisoner lean her hand out with the knife and put the knife to the chest of the deceased with the arm bent at the elbow. Subsequently Ms Douglas observed the deceased holding his chest with both his hands. I find that by then he had sustained the fatal knife wound and that that wound was inflicted by the prisoner. 14 The knife was a folding clasp knife with a black finger grip handle and a blade measuring 9.5 cm. It is depicted in photographs forming part of Exhibit D. According to the prisoner she normally kept the knife in her handbag for protection. 15 It follows from the prisoner's plea that the prisoner acknowledges that the act which caused the death of the deceased was an unlawful and dangerous one. Mr Bruce submitted that I should find that such act was the continued holding of the knife by the prisoner in circumstances in which the deceased inadvertently encountered it. That submission calls for close analysis of the evidence. 16 I refer firstly in closer detail to what Ms Douglas said in her evidence: "Q. And when he got there, what did he do, what did he say?

A. He was standing at the sink and then he turned around and said that he had enough of the shit.

A. When he first turned around he had his hands in the air.

Q. And now as he walked back towards the table, what about his hands, did he keep those raised or what happened as far they were concerned?

Q. As he walked back towards the table, what did you see happen?

A. As he was getting near the table, Anne was standing there and I was standing behind her, and I see Anne put the knife to his chest.

Q. When you use the expression 'put the knife to his chest', what do you mean by that?

Q. Did you see what happened as far as the knife was concerned?

A. The only thing that I seen was Mick had a hold of his chest, and there was blood coming out of it." 17 Then, later at p 65: "Q. What was the position, can you describe the position of Anne's arm at the time you saw her put the knife to Michael's chest?

HIS HONOUR: This witness indicates arm extended, thumb upper most.

BELL: Q. Did you also indicate that the arm was bent at the elbow?

Q. So the arm was bent at the elbow, the direction of the knife was an upward one, is that so?

Q. And at the time you say you saw Anne put the knife to his chest, that was the position of her arm and the knife as you recall it?

A. Yes." 18 The evidence of Ms Douglas is to be considered with the medical evidence. Whilst I accept that Ms Douglas saw the prisoner hold the knife and put it to the chest of the deceased, I do not accept that the direction of the knife was upwards immediately before it penetrated the body of the deceased. The evidence of Dr Duflou convinces me to the contrary beyond reasonable doubt. 19 The post mortem examination of the body of the deceased was conducted by Dr Bradhurst. He was not available to give evidence at the prisoner's trial but his report was tendered and Dr Duflou was called to give evidence. The doctor described the stab wound inflicted upon the deceased as having gone downwards and backwards. The doctor said that the knife penetrated the skin with the sharp side of the blade facing downwards. The wound penetrated between the third and fourth ribs on the left side of the deceased's body severing cartilage at the fourth rib level. It proceeded to penetrate the pericardium or fibrous sac around the heart. The wound having passed through part of the heart and through the bottom of the pericardium then penetrated the left lobe of the liver. I accept the medical evidence just summarised. 20 Dr Duflou considered, and I accept, that a reasonably significant force would have been required to penetrate the cartilage with the knife the prisoner was holding. The estimated length of the track followed by the stab wound was 130 mm, which was 35 mm longer than the blade of the prisoner's knife. 21 Dr Duflou was asked the following questions as to the significance of the knife wound and gave the following answers: "Q. Now taking that into account [the length of the wound compared with the length of the blade], and taking into account also the evidence related to the severing of the rib structure, in terms of the force that was required to cause that stab wound track to go 130 millimetres, of the two factors, the way in which the rib process was severed and the track of the wound, either of those matters have significance to you in terms of the force required to cause the wound?

A. I have previously spoken about the significance of passing through a rib bone or any other tissue. The length of a wound track can be used to estimate the - to give an opinion as to the weapon that was used to cause that wound. In some circumstances you can have a shorter wound track and in others you can have a longer wound track. A shorter wound track, which is a lot easier I suppose, is with a knife just isn't inserted to its full length. That is by far the most common cause for that. You can have longer wound tracks than the weapon which was used. And the most common cause for that in my experience is where the weapon has been pushed in with a certain degree of force, thereby compressing the body. So in that way the fact that the weapon blade is shorter than the track of the wound gives a fairly good indication that a considerable amount of force was used. I would like to temper that remark though with some caution, and that is that again it assumes the person was in the anatomical position whereas the person could have been possibly bent over as an example of thereby compressing the distance. And for that matter by the very nature of the way you make the measurement it turns out to be an estimate. And you can in fact have a range of measurements. So it is not an absolute foolproof technique of estimating force by any means. But it gives a reasonable estimate of the amount of force used.

Q. If one adds to the length of the stab track wound, in terms of what you have just told us, if one adds to that the finding that there was a severance of part of the rib process, does that add to your theory at all or detract from it at all?

A. I think the two taken together, give an indication that a significant amount of force was used." 22 I accept that expression of opinion by Dr Duflou. 23 As I read his evidence (in particular the cross examination at T300-301), Dr Duflou did not consider that the post mortem findings were really consistent with the wound having been sustained by the deceased simply walking into the knife. 24 Having considered the evidence of Dr Duflou in conjunction with the evidence of Ms Douglas, I am satisfied beyond reasonable doubt that the deceased sustained his fatal injury when the prisoner stabbed him with her clasp knife causing the injuries described. I bear in mind that the Crown acknowledges by the acceptance of the prisoner's plea of guilty to manslaughter that there was no intent to kill or to cause grievous bodily harm, but I do find that the prisoner did intend to stab the deceased, albeit without the intent required for murder. 25 Expert evidence at the trial concerning the prisoner's state of intoxication was given by Dr Perl and by Prof Starmer. There was some divergence of opinion between the two experts as to the extent to which the prisoner's excessive alcohol consumption would have affected her, but I am satisfied beyond reasonable doubt that the prisoner's judgment and her physical co-ordination must have been impaired to a significant degree when she stabbed the deceased, and this could well explain why the knife penetrated the body of the deceased far more than the prisoner intended. The prisoner's intoxication does not excuse what she did but it has the relevance I have identified and I take it into account as a relevant consideration in assessing the degree of deliberation involved in her crime. 26 I do not find that the crime was premeditated. It is not suggested that the deceased was moving towards the prisoner in a threatening way and I am unable to make a positive finding as to why the prisoner stabbed the deceased. Following as it did so closely upon the deceased's utterances directed at the prisoner, one possible explanation for the prisoner's conduct is that she was unduly upset by what the deceased had said to her. 27 Whatever be the explanation the unlawful use of a knife to inflict injury resulting as it has here in death must be regarded very seriously. The employment of a knife as an instrument of crime is to be abhorred, and the Court of Criminal Appeal has repeatedly stressed this. 28 Objectively I assess the offence as being a very serious one. 29 I now turn to a consideration of the subjective features of this case. 30 The prisoner was born on 24 May 1946. The prisoner has some criminal record. With the exception of an offence for which she was placed on a bond to be of good behaviour for tampering with a witness, and that happened in 1983, the prisoner's convictions are in the scale of things relatively minor. The prisoner has never before experienced a custodial sentence. Her most recent offence was one of offensive behaviour for which the prisoner was placed on a bond to be of good behaviour in October 1992. 31 The prisoner gave evidence in the sentencing proceedings before Newman J in November 1997 and in addition to that evidence a psychiatric assessment was made by Dr Carne in October 1997 and his report dated 3 November 1997 has been placed before me. That report supplements what the prisoner told Newman J about her personal history. 32 I am satisfied that the prisoner had a very unfortunate childhood after her father left her mother. Her mother formed a relationship with a man who was violent. On one occasion the prisoner found her mother attempting suicide by putting her head in the gas oven. The household was a poor one and the prisoner started working as a machine operator at the early age of fifteen. 33 The prisoner's adult life has not been a happy one either. The prisoner had a child at the age of eighteen and married, at the age of twenty-one, a person who was violent towards her. The family group migrated from England to Australia in 1971, but the prisoner separated from her husband within a few years and then in 1974 was seriously injured in a motor vehicle accident which prevented her from pursuing her employment as a nurse's aid. The prisoner was attracted to alcohol even before that motor vehicle accident and became chronically addicted to it over a period of many years up to the date of the commission of the subject offence. 34 The prisoner in that period of chronic alcoholism formed a de facto relationship with another man who was also violent towards her but by whom she had a son in 1980. 35 Dr Carne diagnosed the prisoner in November 1997 as suffering from a dependent personality disorder. He also concluded that the prisoner was alcohol dependent although at the time of that assessment the prisoner had been in custody for nearly two years and was in remission for that condition. 36 The prisoner has now been in custody continuously since the date of her arrest on 18 December 1995 and I propose to backdate the sentence to the date of arrest. 37 Since being in custody the prisoner has undergone activities directed at her rehabilitation. A number of documents evidence the work the prisoner has done in this regard. She has undertaken activities in pottery and ceramics, a course in horticultural skills, and some leatherwork training, to mention several of the activities undertaken. 38 A letter was tendered from John Wilson who is the father of the deceased. In the letter Mr Wilson refers to his close relationship with the prisoner over some fifteen to sixteen years and says that relationship continues. Mr Wilson has been visiting the prisoner in prison and is in regular communication with her by telephone. He is now seventy-eight years of age. He is ill and he expresses a willingness to have the prisoner live with him and assist him after her release from custody. 39 Whilst the maximum penalty for the crime of manslaughter provided for in the Crimes Act is penal servitude for twenty-five years, there is probably no crime where the range of sentences that have been imposed is as broad as with the crime of manslaughter. I have considered many decisions, both reported and unreported, including those to which Mr Bruce specifically drew my attention, but I have not found this exercise particularly helpful in arriving at an appropriate sentence in the present case. What a study of the cases emphasises is the importance of the consideration of the particular circumstances of each case. See R v Troja (unreported, NSWCCA, 16 July 1991 and the dicta of Kirby P at p 3) and R v Blacklidge (unreported, NSWCCA, 12 December 1995 and the dicta of Gleeson CJ at 4). 40 Accordingly it would not be a useful exercise to review in these reasons the facts and sentences imposed in the many cases I have considered prior to determining what I regard as the appropriate sentence in the present case. 41 What I must do is to impose a sentence that reflects the gravity of the crime, and I must heed, inter alia, considerations of the denunciatory role of sentencing, retribution, and deterrence both general and specific. I must take as a starting point the need to recognise that this crime for which the prisoner is to be punished involved the felonious taking of a human life. In Blacklidge (supra) the Chief Justice said: "…the courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of human life. That is the starting point for a consideration of the appropriate penalty, and a key element in the assessment of the gravity of the objective circumstances of the case." 42 The prisoner must be given credit for her plea upon arraignment last March. Whilst the Crown case against her in respect of the crime to which she has pleaded guilty was a very strong one, nevertheless considerable court time has been saved by the plea and also significant inconvenience to those witnesses who would have had to have been called at the trial. The plea is a factor I take into account, and of course I must take into account all the relevant subjective features of this case. Ultimately however my task, whilst making due allowance for those subjective circumstances, requires that I arrive at a sentence which is appropriate to the prisoner's crime and which pays due regard to its objective gravity (see R v Dodd (1991) 57 A Crim R 349 at 354). 43 Mr Bruce has submitted that there are special circumstances in this case having regard to the prisoner's background and her past chronic alcoholism. The prisoner has not experienced a prison sentence before and the progress towards her rehabilitation thus far made in custody is to be nurtured. The prisoner will require an extended period of supervision upon her release in the interests of her rehabilitation and to assist her so far as possible in avoiding return to alcohol abuse. I am satisfied that there are special circumstances in this case for the purposes of s 5(2) of the Sentencing Act. 44 I have decided the appropriate sentence in this case is a total sentence of eight years penal servitude. Having regard to the special circumstances, I propose to fix a minimum term of five years and an additional term of three years. The sentence is to be backdated to 18 December 1995 when the prisoner was taken into custody. Accordingly I fix a minimum term commencing on 18 December 1995 and to expire on 17 December 2000. I fix an additional term commencing on 18 December 2000 and expiring on 17 December 2003. I specify 18 December 2000 as the first date upon which the prisoner is to be eligible for release on parole. **********

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