R v Russell

Supreme Court of NSW|2006-07-11|Before: Newman AJ, Mathews J, McInerney J, Hunt J, Newman J, Bruce J

DECISION : The prisoner is sentenced to a non-parole period of three years commencing 18 March 2005 and expiring on 17 March 2008 when the prisoner may be released on parole. I fix a parole period of three years commencing on 18 March 2008 and expiring on 17 March 2011.

CATCHWORDS : Sentencing - manslaughter - provocation - offender pleading guilty to manslaughter - domestic violence - relationship between offender and de facto characterised by violence and abuse - offender stabbed de facto following a confrontation

LEGISLATION CITED : Crimes Act 1900 Crime (Sentencing Procedure) Act 1999

Bollen v Regina (1998) 99 A Crim R 510 R v Bogunovich (1985) 16 A Crim R 456 R v Judith Ann Spencer, Mathews J, unreported, 18 December 1992 R v Kennedy [2000] NSWSC 109 R v King [1998] NSWSC 289 R v McIntyre, McInerney J, unreported, 15 March 1996 R v Melrose [2001] NSWSC 847 CASES CITED : R v Previtera (1997) 94 A Crim R 76 R v Roberts, Hunt J, unreported, 31 August 1989 R v Stokes & Difford (1990) 51 A Crim R 25 R v Woolsey, Newman J, unreported, 19 August 1993 Runjanjic and Kontinnen (1991) A Crim R 362 The Queen v Simon, Bruce J, unreported, 21 July 1995 The Queen v Varagnolo, McInerney J, unreported, 21 March 1996 The Queen v Yeoman [2003] NSWSC 194

COUNSEL : A Robertson - Crown L Brasch - Accused

SOLICITORS : S Kavanagh - Crown Bryan Gorman & Co - Accused

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

SENTENCE 1 HIS HONOUR: Cherie Russell is to be sentenced today for the manslaughter of Jeffrey Cook at Stanhope Gardens on 18 May 2005. 2 The prisoner was indicted on a charge of murder, however, the Crown accepted her plea of manslaughter in full satisfaction of the indictment. 3 The basis of the Crown accepting the prisoner's plea was the Crown accepted that it could not negate that the prisoner had been provoked within the ambit of that concept as contained in s 23 of the Crimes Act 1900. On the other hand, it is contended on behalf of the prisoner that it should not find that this is so, but that the deceased died as a result of the prisoner's unlawful and dangerous act. I shall return to this issue later in these remarks. Section 24 of the Crimes Act stipulates a maximum sentence of twenty-five years for the crime of manslaughter.

4 It is my task to find the objective facts of the matter, however, in this case my task has been alleviated by counsel agreeing to a statement of facts which has been tendered. As may be seen that statement of agreed facts, it goes beyond the objective facts relating to the act of the prisoner which lead to the death of the deceased going as it does into the background of the relationship between the prisoner and the deceased. The agreed statement of facts is as follows:-

5 The offender Cherie Russell, born 21 March 1956, has pleaded guilty to the manslaughter of her de facto husband Jeffrey Cook on 18 March 2005 at Stanhope Gardens. The factual context is that the offender and the deceased were in a domestic relationship characterized by alcohol abuse and violence, such violence occurring mostly when the deceased was inebriated. Just before 7pm on 18 March 2005 the deceased and the offender were at home drinking. They had an argument during which the deceased swore at and struck the offender. She stabbed him once with a kitchen knife. The knife entered the left side of his chest below his armpit, puncturing his lung and ultimately lacerating the left ventricle. He died from massive blood loss.

6 The background to this matter is that the offender and the deceased had been in a relationship for about 18 months. They lived together for much of that time. From time to time they would separate, the last occasion being after they had lived together at a caravan park in Windsor in February 2005. From early March 2005 the offender had been living at 36 Sentry Drive, Stanhope Gardens. She was sharing this leased premises with two other men, Graham McNamee and Tom Connor. On 15 March 2005 the deceased moved into the house.

7 On 18 March 2005 the offender and the deceased were together at the house. Graham McNamee was there from 3.30pm until he left the house at about 6.05pm. Whilst Mr McNamee was there the offender and the deceased were amiable towards each other.

8 At some point during the afternoon the deceased and the offender had started drinking alcohol. By 6.45pm both the deceased and the offender were well affected by alcohol. The deceased had a post mortem blood alcohol reading of .146. He had a post mortem urine analysis of .174.

9 After Mr McNamee left the offender and the deceased prepared for dinner. There was a plate of dim sims near the stovetop, and a cutting board and knife near the stovetop.

10 At 6.21pm, the offender telephoned her daughter, Julie Russell, who was in Brisbane where she lived with her daughter Kayleigh. Phone records indicate that this call lasted 25 minutes. The phone has an extension cord long enough to allow the offender to carry it into the kitchen area and place it on the kitchen bench. The offender spoke first to her grandchild, Kayleigh. Kayleigh then gave the phone to Julie Russell.

11 The offender told Julie Russell that she and the deceased were getting married and asked whether her grandchildren could be flower girls. Julie Russell agreed.

12 They spoke about the offender's upcoming birthday and what gift she would like. As Julie Russell did not have the offender's new address, she put down the phone to get a pen to write it down. Kayleigh picked up Julie's phone and spoke to the deceased. Julie Russell returned to the phone and also spoke briefly to the deceased. At Julie Russell's request, the deceased put the offender back on the phone.

13 The offender, who has difficulty spelling, asked the deceased to give the address to Julie Russell. The deceased took the phone, and after giving her the address, handed the phone back to Julie Russell.

14 The offender and Julie Russell then continued their conversation. Julie Russell noticed that the offender began to sound strange. Julie Russell could hear the deceased in the background. He said, "Why is she on the phone? She is nothing but a slut". He then said, "Get off the phone." The offender replied, "Please don't say that. Every mother and child fight, but they are still my children".

15 The deceased continued to yell at the offender. The offender said to the deceased, "I don't get to talk to my children much and you do this?"

16 Julie Russell asked the offender, "Are you okay?" The offender replied, "Yes", but was crying. Julie Russell could hear the offender crying and said, "Are you sure?, What is wrong?". The offender replied, "Don't worry he is like this every time he drinks". Julie Russell said, "Mum, just leave him". The offender said, "I tried, but he won't go". She then said, "I think he is coming". Julie Russell said "Mum, do you want me to get off the phone?" and the offender replied, "No, he will be okay".

17 Almost immediately, the deceased said to the offender, "You better not be talking to that slut again, fuck her off". The offender said, "Stop it, I will be out in a minute". The deceased then said, "Get off now!" The offender replied, "Get out". In response, the deceased said, "Get off the fucking phone now!"

18 Julie Russell then said, "I better let you go I don't want you two to fight". The offender said to her daughter, "I am okay", but Julie Russell could hear the deceased continuing to scream and shout at the offender. Julie Russell said, "Mum, you better go, I will talk to you later".

19 At this point the deceased approached the offender and struck her whilst she was still on the phone. After her arrest two police officers noticed a cut/red mark on the nose and right side of the offender's face. Other police, and Dr Sharp (who examined the offender that morning) did not make any note of such marks. The offender dropped the phone but Julie Russell heard the offender was screaming, "Please don't Jeff, no more". Julie Russell then hung up the phone and immediately tried to call her brother Jason Russell, who lives in Sydney.

20 The deceased took a knife and flashed it in the face of the offender and said "I'll kill you stone dead". At some stage the deceased put the knife down.

21 The offender took a knife from nearby. The deceased screamed at the offender, "stab me you bitch, you have not got the balls." The deceased continued to yell and scream. He shouted; "go on, do it, stab me."

22 The offender stabbed the deceased once, on the left hand side of his chest towards his back. She held the knife such that the flat part of the blade was towards the front of the deceased's body and the sharp side of the blade was towards the back of his body. The knife entered the deceased's body almost horizontally between his 5th and 6th rib. It lacerated his left lung and extended into the pericardium and the left ventricle. This caused massive internal bleeding, and ultimately death. As the offender withdrew the knife it nicked the 6th rib. As the knife penetrated into a cavity the pathologist could not measure the exact distance, but estimated a distance of about 13 centimetres. The length of the cut measured 2.3 centimetres on the deceased's skin.

23 Two neighbours could hear the argument. One of them, Stacey Hooimeyer from 38 Sentry drive, heard a groaning noise whilst she was in her kitchen preparing dinner shortly after 6.50pm.

24 The neighbour over the rear fence heard a female voice repeatedly yelling "get out from here" and a male voice replying although the neighbour could not make out the words. Later the neighbour heard someone saying "help, help".

25 The deceased remained in the dining area long enough to deposit three or four drops of blood near the kitchen bench and about ten drops of blood near a dining room lounge. The offender deposited the knife in the sink and rinsed it. There were also three drops of blood deposited on the ground on the other side of the kitchen bench near the kitchen sink.

26 Shortly after being stabbed the deceased made his way out of the house. The offender followed him out a short time later. By this time Stacey had made her way out to the front of her house. She was investigating the noise which she had heard immediately beforehand in her kitchen.

27 Stacey exited her front door to find the deceased and the offender sitting on Stacey's property in front of her garbage bins. The deceased started crawling towards Tracey, saying "can you help me". He crawled onto Stacey's driveway, in a space between her garage door and her father's car which was parked in the driveway.

28 Also outside at this point was Stacey's father, Timothy. He was trying to sell the family car and three people had arrived together to look at the car.

29 The deceased looked intoxicated, and the offender confirmed this, saying that she needed to get him home. The deceased said to the offender "Fuck off you stupid bitch" and he pulled up his shirt which by now was wet with blood. Stacey did not see any injury but noticed a wet patch on the shirt. As the shirt was black Stacey did not think the wet patch was blood.

30 The deceased continued crawling towards Stacey, saying "I am hurt". The offender said "No he is just drunk. I have to get him home and into bed". Stacey could smell liquor on the deceased's breath. She was worried about upsetting the potential purchasers of the car and she told the offender to take the deceased away. The offender repeated that the deceased was drunk and that she needed to get him home. The deceased said "I need help" and collapsed onto his stomach. He rolled down the hill of the driveway, towards the wheels of the visitors' car. As he was rolling he pulled up his shirt, exposing a small area of blood on his stomach. Despite the presence of blood on the deceased's fingers and on an abrasion on his nose, Stacey still thought that he was not seriously injured.

31 The deceased was now near the visitors' car. He was thrashing about. When he struck the car Stacey's father, Timothy, told him to stop. The deceased stopped and the offender approached him, saying that he had to get home. The deceased said "Fuck off, fuck off".

32 Stacey said to the offender, "If you don't get him off my property I'll call the police" and the offender said "Oh shit". She tried to lift the deceased, but he thrashed around. The offender asked for help but Stacey returned inside and rang 000. The time at this point was 7.08pm. As Stacey was still not aware of the seriousness of the injuries, she complained about a drunk person being in her driveway and refusing to leave. The emergency operator said that he would refer the matter to the police.

33 Stacey returned outside. The offender was trying to lift up the deceased, who was groaning. Stacey told the offender that the police were coming. Stacey returned inside after the offender asked for a glass of water.

34 After another ten minutes Stacey went outside again. By this time the deceased's shirt had been removed and the offender had taken it into her house. At about 7.38pm the offender used the landline to ring her daughter Julie's mobile phone, speaking for about 2.5 minutes.

35 Stacey noticed the stab wound, and that the deceased was still breathing. At this point the offender returned and again asked for help moving the deceased. Stacey said that the police were coming and complained about the drinking. The offender apologised.

36 At this point Stacey and her father noticed a small pool of blood near the deceased's head. When they asked the offender about the blood she said that they should call an ambulance. The offender went back into her house but returned shortly afterwards, asking Stacey if she could talk to the ambulance operator. Stacey went into number 36 and spoke to the ambulance operator. The time at this point was 7.58pm. At 8.02pm the offender used the landline to ring her daughter Julie's mobile phone, speaking for about a minute.

37 Shortly afterwards Tom Connor arrived and shortly after that the ambulance arrived. The ambulance officer was unable to locate a pulse. Tom Connor went inside and spoke to the offender who was asking if the deceased was alright. Tom Connor asked her what happened and she said "He said that he was going to stab himself". She was crying as she said this.

38 The ambulance officers indicated that the deceased had been stabbed. Shortly after that the offender's son, Jason Russell, arrived. He asked where his mother was and Stacey took him inside number 36. Stacey said to the offender "What happened to him they said he's been stabbed" and the offender replied, "well I didn't do it". The offender tried to sit down but she fell off her seat and started to cry. When Stacey returned outside the ambulance officer asked her to call the police and she did so.

39 At about 8.15pm, the first police officer, S/C Darrel Wood, arrived on the scene. He entered 36 Sentry Drive. He asked the offender what happened. The offender said "What happened, where is Jeff. He is my fiancé and my life." Wood said "calm down, what happened?" The offender replied "We were fighting. He went." This officer secured the scene and told everyone to go outside. The offender continually asked where the deceased was, and if he was alright. S/C Darrel Wood formed the view that she was moderately affected by alcohol. Whilst they were outside the offender's son, Jason, in the presence of Wood asked the offender how much she had had to drink and she said "four or five bourbon and cokes". To Wood, at times the offender appeared not aware as to what had occurred.

40 Senior Constable Jones also entered 36 Sentry Drive whilst the offender was present. Jones formed the view that the offender was under the influence of alcohol due to her appearing bewildered, flustered, slurring her speech and the smell of intoxicating liquor when near her. A strong smell of alcohol could also be smelt in the house.

41 Shortly after 8.30pm Detective Sergeant Ross Murphy arrived. He arrested the offender for murder. He accompanied her to the police station in a car driven by Constable Mackay. On the way to the police station the offender asked about the deceased and whether she could see him. The offender said "he went out the front and he said he was going to kill himself". She then said "when can I see him? Is he ok? Murphy said "No he is dead." The offender replied "we were going to get married at my sister's house in Perth." Murphy could also smell intoxicating liquor on the offender's breath.

42 At the police station the offender declined to be interviewed, but said to a Detective Senior Constable Francis "Is Jeff dead, we were going to get married". Detective Senior Constable Francis smelt the presence of alcohol on the breath of the offender but was unable to determine her level of intoxication.

43 The custody manager at Blacktown Police Station, Sergeant Van Dyke, formed the opinion that the offender was intoxicated as her eyes were blood shot and she smelt heavily of intoxicating liquor.

44 The police searched the house. They located in the sink a kitchen knife (with a blade 16 cm long and 3.2 cm wide) and a bread knife, and on a cutting board near the sink a kitchen knife (with a blade 12 cm long and 1.7 cm wide). The knife in the sink appeared to have been rinsed. These knives, and another 21 knives located in the house at a later search, were submitted for analysis. There was no result from the analysis. They also located near the dining area the deceased's blood soaked black shirt containing a cut in the area near the left armpit. The location of the cut does not provide any assistance as to the stance of the deceased at the time of the stabbing. In the offender's room the police located a white top covered in blood. This top matched the description given to the police by Stacey as the top worn earlier by the offender.

45 The crimes scene officer located drops of blood in the dining area and in the kitchen area. Smeared blood was located on the front door handle and frame. The "blood" evidence is consistent with the stabbing having occurred in the dining/kitchen area, the deceased not having lost much blood in the house; and the deceased then leaving the house.

46 Finally, the police located at the side of the house a bag containing clothing and personal documentation of the deceased.

47 At 6.11am on 19 March Dr Sharp examined the offender for the purposes of taking swabs. He noted that she appeared alert and orientated, did not appear intoxicated, psychotic or delusional, and appeared to understand what he was saying.

48 The pathologist confirmed that death was from the single stab wound causing massive internal bleeding. He was unable to say how long it would take to die following the stab. He was also of the view that not a lot of force would have been required to cause the injury. He noted that the deceased was 175 centimetres long and weighed 84 kilograms. The offender's mental state

49 In 2001 the offender was leaving a hotel when she was hit by a car. As a result of this she suffered brain damage. A CT scan showed that she suffered a tiny right fronto-parietal acute subdural haematoma and a right cerebral oedema. A 2002 report indicated that she has an IQ of about 67 (she is in the bottom 1-2% of the population, also described as mildly intellectually handicapped), has poor memory and poor cognitive skills. A 2002 report indicated that she is more easily upset and moved to tears, with quite marked problems in the area of concentration and immediate recall and short term memory.

50 The offender's son, Jason Russell reports that since the accident his mother has been unstable and gone from owning her own house to having nothing. She would not remember things including birthdays or even Jason's age. During conversations she would repeat herself constantly.

51 The offender's former husband Graham Russell states that since the accident the offender's brain and memory doesn't function properly. The nature of the relationship between the offender and the deceased

52 The evidence relating to the violence of the relationship is as follows:

53 On 24 November 2004 the police attended an address in Blacktown where they took a statement from the offender. She claimed that she had been arguing with the deceased about the fact that he was drinking beer which didn't belong to him, but rather to the person with whom they were staying. She claimed that the deceased grabbed her forearm causing several scratches. She further stated that the deceased had yelled at her and called her a slut and whorebag. The following day she withdrew her statement and the police could not proceed with the matter.

54 On 22 October 2004 the offender complained to the police about the deceased having stolen her handbag, but also claimed that there had been "a number of incidents of domestic violence".

55 On 9 August 2004 the police went to a Central Coast address where the offender complained that the deceased, who was drunk, had called her a slut and whore, had threatened to kill her and had choked her before ramming her head into a cupboard and then kicked her in the anus. The police noticed a small cut on her face and a neighbour heard the altercation. To police the offender appeared scared and emotional. Police noticed that the rear door lock had been kicked out.

56 During a three week period in 2004 the offender and the deceased stayed with a friend of the offender, John Clarke. During this time Clarke saw bruises on the offender and the offender told him that the deceased had hit her.

57 On 5 April 2004 the offender complained to the police that the deceased had assaulted her on 23 March 2004 by hitting her and throwing her against a wall. They saw a 60mm bruise on her upper left arm and lacerations and bruising to her back. This complaint did not ultimately proceed as the deceased denied hitting her and the offender did not complete a statement.

58 On 21 March 2004 Jason Russell visited the offender and noticed that she had swelling and red marks all over her face and body. She told him "Jeff's bashed me up again". Jason Russell, with two male friends, went to the deceased's mother's house where he saw the deceased passed out on the floor. He claims that he kicked the deceased a "couple of times" but he did not wake up so he left. Police statements record a larger number of kicks, leaving the deceased bleeding. Both the offender and the deceased provided the police with statements. The matter was discontinued after the deceased and the offender withdrew their statements.

59 Graham Russell, the deceased's former husband, claimed in his statement that on the last three to four times he saw the offender, she was "black and blue" all over. Little other detail is provided other than that he was of the view that the deceased had been the cause of the injuries. He claims in his statement that the offender said "He didn't mean to do it".

60 Lynne Puerta, the manager of the Windsor Caravan Park says that in February 2005 the offender approached her and showed her three old bruises on her arm and asked her to call the police.

61 Police records contain a number of entries where the police attended on the deceased and the offender being drunk and argumentative.

62 Various members of the deceased's family indicate that the offender and the deceased were always arguing when they were drunk.

63 The deceased's mother and her friend Gloria Hodgekiss report that at some stage in 2004 the deceased told them that he and the offender were involved in an argument during which the offender cut the deceased with a knife. When the deceased was at his mother's house in the days afterwards he showed them a scab on his arm and claimed that the offender had cut him with a knife. The offender denies this. The deceased did not report this incident to the police.

64 Police records indicate that the deceased had a number of convictions for offences of violence. Records show that these matters often arose in circumstances in which the deceased was intoxicated. The convictions include violence against police officers in circumstances that the police have been called to the deceased's home in relation to a domestic dispute.

65 Police records indicate that previous partners of the deceased have made complaints to the police of serious violence by the deceased.

66 Police records indicate that the deceased was classified as a high risk offender of domestic violence incidents and that all domestic violence incidents involving the deceased should be thoroughly investigated. Other matters

67 The police arrested and charged the offender with murder on the evening of 18 March 2005. She has remained in custody on this matter alone since that date.

68 Following committal proceedings and arraignment, the offender's representatives indicated that their client would consider pleading guilty to manslaughter. After receiving, under subpoena, further material from the police relating to issues of violence by the deceased upon the offender, the offender's representatives wrote to the Crown indicating a willingness to plead guilty to manslaughter, outlining some of the facts on which the plea would be made. The Crown indicated that it would accept the plea in full discharge of the indictment for murder.

69 I turn then to the issue I outlined earlier in these remarks. Namely, did the act of the prisoner which caused the death of the deceased arise as a result of her forming an intention either to kill or cause grievous bodily harm to the deceased as a consequence of her being provoked into committing such an act within the framework of s 23 of the Crimes Act, or did the death of the deceased arise as a consequence of the prisoner committing an unlawful and dangerous act which lead to the death of the deceased. The importance of this issue is that if I were to find that the death of the deceased arose as a consequence of the prisoner committing an unlawful and dangerous act, her criminal culpability for that act is less than it would be if I were to find that she had acted under provocation to commit an act with the intention of either killing or causing grievous bodily harm to the deceased. The Crown prosecutor, while contending for the latter form of unlawful homicide, very properly conceded that the Crown did not contend that when the prisoner stabbed the deceased she did not have the intention to kill him but rather to cause him grievous bodily harm.

70 In determining this issue, I am of course bound by the material contained in the agreed statement of facts. Furthermore, I have applied the criminal standard of proof, namely that the Crown must establish its allegation against the accused beyond reasonable doubt. 71 In determining this issue it is important for me to consider the manner in which the prisoner inflicted the fatal wound upon the deceased. In addition to the agreed statement of facts, a photograph of the deceased was tendered in evidence. That photograph clearly indicates that the stab wound which killed him was situated on the left side of the deceased's chest below his armpit. This photograph is entirely consistent with the material contained in the agreed statement of facts relating to the administration of the knife to the deceased's body by the prisoner. In determining what the prisoner's intention was at the time when she administered the fatal act, I am entitled to infer from the act itself what her intention was. (see Regina v Stokes and Difford (1990) 51 A Crim R 25).

72 The fact that the prisoner stabbed the deceased in the left side of his body leads me to draw the inference that when she did so she intended to cause him grievous bodily harm. I say this because the stabbing of the deceased where she did is not consistent with the prisoner using the knife to frighten the deceased or to prevent him advancing upon her. If the wound had been to the front of his chest I may well have drawn a different inference. Accordingly I find the prisoner, when she stabbed the deceased, did so with the intention of causing grievous bodily harm but, as the Crown concedes, it was done in circumstances where the prisoner had been provoked to do what she did within the ambit of s 23 of the Crimes Act.

73 I turn then to the subjective and mitigating factors relating to the prisoner. 74 The prisoner is now fifty years of age, having been born on 21 March 1956. 75 The history contained in the psychiatric and psychological reports tendered before me indicates that the prisoner has suffered from a life of hardship and privation. She was placed in an orphanage at the age of six years where she remained until she turned fifteen. She had little to do during her time in the orphanage with her mother who apparently was an alcoholic, but saw her father during school holidays. The one happy period of her earlier life seems to have occurred when she left the orphanage at the age of fifteen and went to live with foster parents until she was twenty years of age.

76 At twenty she married for the first time. The histories indicate that her marriage lasted about four years during which time she bore three children. Unfortunately her first husband was a violent man who regularly administered beatings to her. 77 Following her divorce from her first husband, after living with a man for some nine years she ultimately married him. While the exact length of that marriage is difficult to ascertain because of conflict in the histories, it seems that it lasted a considerable period of time. While this marriage was not, as I would understand the histories, one in which she was subjected to the same degree of violence she experienced in her first marriage, violence still accompanied the union. From this marriage a further three children were born.

78 The deceased and the prisoner entered into a domestic relationship some two years before 18 March 2005. Again the relationship was attended by violence. The deceased struck the prisoner on a number of occasions. As the Court has so often observed in the past, the violence which accompanied the relationship itself usually occurred following the consumption of alcohol by the deceased and here, it would seem, the prisoner. As I will avert later in these remarks, the prisoner, on the histories, would seem to have a problem with drinking alcohol.

79 The prisoner has suffered from a hearing impairment for most of her life. Apparently that impairment was related to her suffering from German measles when she was a baby. She has suffered a number of injuries in her lifetime. One was a work accident in August 2000 when she suffered a back injury while lifting boxes in the factory in which she worked. Following that, this injury recovered to the extent where she was able to continue working carrying out light duties.

80 However, on 8 July 2001, she was struck by a motor car while walking. In that accident significantly she suffered a head injury. A neuropsychological examination carried out on 1 November 2001 revealed difficulties with working memory, new learning or aspects of executive functions such as mental flexibility, planning and organisation, behavioural regulation and conceptual thinking. The neuropsychologist reported that these difficulties occurred in the context of a pre-existing intellectual function that was well below average, particularly when verbal skills are taken into account. Mr Taylor, psychologist, carried out a series of psychological tests upon her on 14 May 2002. Mr Taylor's psychological tests revealed that the prisoner had a verbal scale IQ of sixty-nine, that is, in the lower range and better than only two per cent of people of her own age and a performance IQ of seventy-two, again in the borderline range and better than for only three per cent of people of her own age.

81 Dr Peter Morse, psychiatrist, saw her in June 2002 following the motor accident and concluded as follows: "Given the fact that she suffered presumably a coma in the injury and had a significant period of post-traumatic amnesia and is continuing to attend the Brain Injury Unit at Westmead Hospital, I am of the opinion that she suffered definite cognitive impairment secondary to brain damage following the motor vehicle accident. This is affecting her life in a number of areas with diminished ability to concentrate, poor short term memory and would affect many areas of her life including employment, day to day activities, home duties, social activities et cetera. It is ten months since the accident and although it is too early to say there will be no improvement, I consider, given her lack of previous education and skills and other difficulties, that it would be highly unlikely there would be any great improvement in her cognitive functioning though this should be reviewed say towards the end of 2002. The prognosis will be that she will remain in much the same state. It seems unlikely there will be much improvement in physical condition. I believe she will always have cognitive impairments as a result of the second accident. Because of the injury at work, the motor vehicle accident and the resultant effect that this had upon her life, she will be vulnerable to future emotional disturbance with a greater likelihood than if she had not had these accidents. It is likely as her children grow up with the usual problems of adolescence and difficulties with her grandchildren, with her increasing age, with being left more alone, she will be prone to quite marked emotional distress in the future given her lack of ability to adequately deal with future stresses due to her physical, emotional and cognitive state. She apparently had not cognitive impairment after the work injury but now has quite definite cognitive impairment secondary to the brain damage after the motor vehicle accident and this is continuing to affect her life. I have no doubt that the head injury and the aggravation of the physical symptoms and disability caused by the motor vehicle accident will make her more liable to future emotional problems and difficulties for the reasons as outlined above."

82 Dr Bruce Westmore, forensic psychiatrist, who saw her on 17 August 2005 concluded that she suffered from quite severe cognitive problems, stating: "It is likely that her cognitive problems arise from the combination of difficulties. These would include constitutional or genetic factors, the head injury following the motor vehicle accident and her possible acute episodes of heavy alcohol consumption. There is however an extended history of Mrs Russell being exposed to extreme violence from the deceased. As is noted in the body of this report, that violence has been of a verbal, physical and psychological type. The prisoner therefore presents as a woman who has lived, as I have said, a life of privation and hardship. Unfortunately she suffered from a substantial hearing defect all her life and at the same time is a person of low intellectual capacity. It seems that that capacity was inhibited again as a consequence of the head injury suffered in a pedestrian accident in July 2001. Three long-term relationships she had with men were attended by various degrees of violence on the part of her partners, including the deceased. Those relationships, particularly with the first husband and with the deceased, were complicated further as it seems that both she and those two partners over-ingested alcohol during the time they were together."

83 The deceased's sister read a victim impact statement to the Court and also read victim impact statements from the deceased's mother and brother. The Court expresses sympathy to the deceased's family and well understands the pain that the family has suffered as a result of the killing of the deceased. However, the law does not permit the victim impact statements be taken into account when passing sentence. (see s 28(4)(b) of the Crimes (Sentencing Procedure) Act 1989; Regina v Previtera (1997) 94 A Crim R 76; Bollen v Regina (1998) 99 A Crim R 510).

84 Women who commit the crime of unlawful homicide involving a violent male partner have often been described by courts as suffering from battered woman syndrome. That concept was described in depth by King CJ of South Australia in Regina v Runjanjic and Kontinnen (1991) A Crim R 362 at 366. He stated:- "It emerges from the literature that methodical studies by trained psychologists of situations of domestic violence have revealed typical patterns of behaviour on the part of the male batterer and the female victim, and typical responses on the part of the female victim. It has been revealed, so it appears, that women who have suffered habitual domestic violence are typically affected psychologically to the extent that their reactions and responses differ from those which might be expected by persons who lack the advantage of an acquaintance with the result of those studies. Repeated acts of violence, alternating very often with phases of kindness and loving behaviour, commonly leave the battered woman in a psychological condition described as 'learned helplessness'. She cannot predict or control the occurrence of acute outbreaks of violence and often clings to the hope that the kind and loving phases will become the norm. This is often reinforced by financial dependence, children and feelings of guilty. The battered woman rarely seeks outside help because of fear of further violence. It is not uncommon for such women to experience feelings for their mate which they describe as love. There is often an all pervasive feeling that it is impossible to escape the dominance and violence of the mate. There is a sense of constant fear with a perceived inability to escape the situation."

85 The matter has been raised in this Court in a number of cases. Indeed, prior to King CJ's judgment in Runjanjic and Kontinnen, Maxwell J in Regina v Bogunovich (1985) 16 A Crim R 456 at 460-462 pointed to the mitigating effect of the syndrome which he described as that of domestic violence. Hunt CJ when Chief Justice of the Common Law Division referred to the matter in Regina v Roberts on 31 August 1989. I shall return to certain remarks made by Hunt CJ later in these remarks.

86 In addition, I have been referred very properly to a number of other decisions of this Court involving this concept. They are: R v Kennedy [2000] NSWSC 109, a decision of Barr J; the decision of Studdert J in R v King [1998] NSWSC 289; The Queen v Varagnolo, McInerney J, 21 March 1996; The Queen v Simon, Bruce J, 21 July 1995; The Queen v Yeoman [2003] NSWSC 194; The Queen v Melrose, McClellan J, 31 August 2001; R v Judith Ann Spencer, 18 December 1992, Matthew J; by own decision in R v Woolsey, 19 August 1993; R v McIntyre, McInerney J, 15 March 1996. Women who have been found to fall within this concept following a conviction for manslaughter have had that finding used by the courts as a strong mitigating factor in their favour. The cases I have cited above illustrate this point. This is such a case. 87 In Roberts, however, Hunt CJ added this stricture when he said: "It has been made very clear by the courts that the taking of a human life, even within the context of domestic violence, will not be reviewed with leniency. Not even extreme domestic discord can ever be an excuse for the victim to take the law into her own hands or to extinguish the life of the aggressor." In other words, the concept of battered woman syndrome is a factor to be taken into account by way of mitigation not by way of exculpation.

88 Mr Brasch, on behalf of the prisoner, correctly did not submit this is a case where the Court should impose a non-custodial sentence. He did, however, strongly submit that this was a case where the strong mitigating factor existed. I have, as I have already indicated, taken this into account. I have also taken into account the matters referred to by Mr Brasch in his written submissions of 19 July 2006. Here I have found that the prisoner, when she administered the fatal blow of the knife to the deceased, did so with an intention to cause grievous bodily harm and the fact that provocation was in the ambit of s 23 of the Crimes Act could not be negated gave rise to a proper acceptance by the Crown of a plea of manslaughter.

89 In addition to the matters I have already mentioned, there are a number of other features to which I should refer because I have particularly taken them into account in determining sentence. These include a number of matters referred to by Mr Brasch in his written submission of 19 July. The Crown properly conceded that this was not a crime of premeditation and I agree with that submission. By pleading guilty to the crime of manslaughter, the prisoner has saved the expense and complication of a criminal trial. The prisoner in these circumstances is entitled to a reduction of sentence and that I have done. I have no doubt that the prisoner is remorseful for her actions and again that is a matter that I have taken into account.

90 I am of the view that this is a case where special circumstances exist. The special circumstance I find are that the prisoner, when released, will need supervision in order that her propensity to drink too much alcohol is a matter which the Probation and Parole Service should assist her in overcoming. I understand that she is already receiving counselling within the prison system on this aspect.

91 The sentence will date from the time when the prisoner went into custody, namely 18 March 2005. I make the following sentence order:-

The prisoner is sentenced to a non-parole period of three years commencing on 18 March 2005 and expiring on 17 March 2008 when the prisoner may be released on parole. I fix a parole period of three years commencing on 18 March 2008 and expiring on 17 March 2011.

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