R v Stenhouse [2006] VSC 147

1 Joanne Margaret Stenhouse, the jury has found you guilty of the manslaughter of Anne Maher and it is now for me to sentence you.

The facts

2 You first met the deceased some 16 years before her death and for the next five or six years you lived together as lovers. Then for the following 10 years you lived as friends, mostly apart, although from time to time in shared accommodation for short periods. Your relationship when you were lovers and when you were friends was volatile. You argued with each other on most occasions that you were together. As some of the witnesses put it, it was a love/hate relationship in which you and the deceased appeared incapable of living peacefully together but incapable of living for long without each other.

3 The deceased was a heavy drinker; some would say an alcoholic. So were you, although perhaps not quite to the same extent. Both of you were always in employment in responsible supervisory positions and worked hard and both of you took care to ensure that your drinking did not interfere with your work. But on Friday nights, weekends and holidays you were both in the habit of drinking to excess and when you did you argued. A number of witnesses gave evidence of having witnessed some of the more unsavoury aspects of those arguments.

4 According to that evidence, the deceased was a big, lovable and hard working woman who was an assiduous house keeper, passionate cook and enthusiastic hostess, ready to help those in need. But she also had a loud and powerful voice and on occasion she could use it to hurt people; particularly when she was drunk. Sometimes, she used it to hurt you by insulting you in loud, profane terms in the presence of others. Occasionally, she abused persons to whom she thought you to have some sort of romantic attraction or with whom you shared a friendship. She was also in the habit of castigating you over trivial things, like housework and tidiness and punctuality and your associations with other people, perhaps thereby seeking to dominate or control the relationship between you, and on some such occasions she addressed you in terms such as "low life" and "dog" and "bitch" and "scum ".

5 By all accounts you were of quieter disposition, and frequently reacted to her conduct with tears and dismay. On occasion, however, you could fight back with words, perhaps giving as good as you got, until the conflict came to an end. It is said that you and the deceased would frequently make up within 24 hours of such a conflict and thereafter life would go on again reasonably harmoniously. But sooner or later the cycle would repeat itself as it had before and then it would go on again.

6 During 2004 you took a lease of a house in Whitelaw Street, Reservoir, and you invited the deceased to come and share it with you. At the time you believed that the deceased was still in love with you and, as you put it in evidence, she wanted to get you back. Seemingly, you were not averse to the attention. On the other hand you knew from past experience that the deceased could sometimes be very loud and unpleasant, and you were wary of repetition of that sort of conduct, and at least one of your friends advised you that in her view such an arrangement was likely to end in tears. Accordingly, before the deceased moved in with you, you sought and she gave an undertaking that she would not misbehave as she had in the past and that she would conduct herself in a manner that ensured that life remained reasonably pleasant.

7 You moved into the house in or about June 2004 and the deceased moved in with you some four to six weeks later. But almost from the outset there were tensions and soon there were large-scale emotional problems. At a bibulous Grand Final Day party in September 2004, to which both you and the deceased invited a number of friends, the deceased so behaved as to make you contemplate suicide and to ask her to leave the house. After promising that she would mend her ways, you allowed her to stay but it was not long before tensions surfaced once more. The deceased was jealous of your relationship with your friend, Chris Russell, whom she called "the thing", and jealous of your relationship with your old friend, Brian Hodgson, with whom you and she would sometimes go to stay. There were as well tensions between the deceased and your mother which came to a head at Christmas 2004 and constant arguments about which you and the deceased each complained to mutual friends. By early 2005 you were most unhappy with the way things were going, and you again asked the deceased to leave, and by about March 2005 she too was so unhappy with the way things had worked out that she agreed that she would go the week after Easter.

8 One week before Easter, on Friday 18 March 2005, you and the deceased argued over the untidy way in which the dog's toys were spread out over the sitting room floor. Both of you had been drinking heavily. The deceased affected to throw the toys away into the rubbish bin and you physically restrained her from doing that by grabbing her forcefully by the biceps. That led to an emotional conflict which so troubled you that you telephoned the deceased's son, Kristien Maher, and said to him that he should not hate you but that you were going to stab his mother or kill his mother. At the time he did not take you seriously, but he was sufficiently concerned that you should even say such a thing that he offered in turn to you and to his mother to come and collect you and take you away from the house for the night. In the event, both of you refused.

9 It seems that emotions calmed down significantly by the next morning. After you finished work at or about lunch time on Saturday 19 March 2005 you met the deceased at an hotel and spent some time there with her drinking. But things went awry again later that day after the deceased returned home affected by alcohol with two men whom she had met at the hotel. You complained to her in private that she should not have brought them home and she agreed and sent them away. But you and she were apparently so distressed by what had passed between you that she spent the remainder of the weekend with her daughter and made arrangements to spend the Easter weekend with her also, which she did. You made arrangements to spend the Easter weekend with your friend Brian Hodgson but at the last minute you withdrew from that arrangement and decided to remain at home

10 When the deceased returned to the house on Easter Sunday afternoon she was surprised and apparently disconcerted to find that you had not spent the weekend away as you had planned. It seems that she suspected you of having spent the time with Chris Russell and she was jealous of that association. She telephoned Brian Hodgson and ascertained that you had given him a false excuse for breaking your arrangement with him and, when you returned to the house later that day with Chris Russell, the deceased berated you for having lied to Hodgson and over a range of other perceived shortcomings including what she alleged was the inadequacy of the way in which you had cleaned the kitchen floor and for the fact that you had been responsible for bringing about the relationship between her son and his fiancée.

11 Chris Russell left to go home at about 3.50 pm and by that time the argument had subsided. But it flared again and it continued at least sporadically for the next couple of hours. The deceased had been drinking solidly since shortly after midday at the rate of about two cans of beer per hour, and you had been drinking with Chris Russell and later and had consumed about eight cans of beer. During the course of the drunken debate, some question arose as to when the deceased was finally to move out of the house. As I have mentioned, she had already agreed that she would move out the week following Easter. But as if to assert your ascendancy, you emphasised that she should be gone by then as planned. She answered in turn that she would move out when she wanted to move out. When you then demanded to know why the change in plan, she responded that she was going to make your life hell.

12 As you later told police, at that point you snapped. You felt as though the deceased was taunting you and you wanted to shut her up. You were very angry, not just because of what she said then but also because of the events of the last few weeks. And so, in that state of mind, you picked up a carving knife from the knife block in the kitchen where you were and stabbed her once in the chest with an overarm motion.

13 The blade struck her chest at a point close to her sternum and penetrated some 12 cm through her clothing, skin, underlying tissue and muscle, and between the ribs. It partially incised the top of the fourth rib, adjacent to the breastbone and then penetrated the pericardium, which is the sack in which the heart sits, and through the pericardium into the right ventricle and right atrium of the heart. The right ventricle and the right atrium of the heart are the low pressure chambers of the heart. As a result, the deceased died of a condition known as cardiac tamponade, which means that blood from the right side of the heart flowed into the pericardium creating pressure around the heart and preventing the heart from functioning as a pump. Death was not instantaneous but followed within a few minutes.

14 As soon as you struck the blow, you regretted what you had done. You struggled, albeit ineffectually, to revive the deceased before calling Chris Russell for help. She came almost immediately and contacted the ambulance service and she attempted to undertake CPR in accordance with their advice given over the telephone. But it was to no avail. The deceased was dead by the time that ambulance officers and the police arrived and you were distraught.

15 Police took you to the Preston police station where you admitted that you had stabbed the deceased and that you had done so because you were angry and wanted to shut her up. But you denied that you intended to kill her or inflict really serious injury. You said that you did not want her dead.

Nature and gravity of the crime

16 Although you were arraigned on a count of having murdered the deceased, the jury returned a verdict of not guilty of murder but guilty of manslaughter. Theoretically, that could mean either that the jury were not satisfied that you had the intent to kill or inflict really serious injury, in which case your crime would be one of manslaughter by unlawful and dangerous act[1] or, alternatively, that the jury were satisfied that you had the intention at least of inflicting really serious injury but that they were unable to exclude beyond reasonable doubt the possibility that you acted under provocation.[2] Practically speaking, however, I have no doubt that the jury's approach was the latter. You admit that you stabbed the deceased in the chest with a carving knife in order to "shut her up". Consequently, I reject the argument advanced at trial that you did not advert to the consequences of your actions before you struck. I am satisfied beyond reasonable doubt that at the instant you plunged the knife into the deceased you intended at least to inflict really serious injury. Accordingly, I sentence you on the basis that you are guilty of manslaughter by reason of provocation.

17 The assessment of the gravity of your crime must then take account of the provocation to which you may have been subject. Upon the evidence adduced at trial, however, such provocation as there may have been was no more than strident allegations as to your inadequacy as a house keeper, and as to having lied to Brian Hodgson and as to having acted inappropriately in fostering a relationship between the deceased's son and his fiancee. As it appears to me, that was no worse than, and probably not as bad as, many of the insults that had been hurled around on other occasions over more than a decade; hardly the sort of thing that was likely to cause you so much to lose self control as to form the intent to inflict really serious injury and to give effect to that intention. The insults were banal, even if profane and offensive, and the level of threat was minimal.

18 I do not overlook that there was also the deceased's assertion that she would stay as long as she chose and make your life hell in the meantime. But, as you told police, you knew that the deceased was going, and therefore, as I find, you knew that the threat was idle. Other things being equal, it is difficult to see why you should have been so enraged or otherwise so lose self control as to stab the deceased.

Culpability

19 One possibility suggested during the trial was that you were were very angry that the deceased should dare assert supremacy in relation to your home, which from all accounts was something that you held particularly dear, and another was that you had for so long put up with the deceased's abuse and harrassment that a point was bound to come where you could take no more. The insults delivered during the course of Easter Sunday afternoon were, it was said, the straw which in all the circumstances broke the camel's back and sent you over the edge into a frenzy of rage and passion.

20 That may be so. I dare say that you were angry that the deceased should dictate to you when and if she would leave your house and threaten you as to how she would treat you in the meantime. I think that I can also understand how frustration with the decased could build up over a long period of time and then lead suddenly to a reaction entirely out of character. Even so, it remains difficult to conceive that an ordinary person of ordinary powers of self control could react to such low level provocation by plunging a carving knife into the heart of their long-time friend. At one level, at least, you bear a high degree of responsibilty for what occurred.

21 On the other hand, there is evidence to which I shall come that you were suffering from a personality disorder exacerbated by your long standing alcohol dependence. It meant that at times you could be destabalised by significant underlying anxiety and depression and so act when stressed in an impulsive manner. In the result, your psychological condition was such that your powers of self control were not up to the standard expected of the hypothetical ordinary peron of ordinary powers of self control. And while your condition could not be described as one of psychiatric illness,[3] I consider that it does bear upon your moral culpability in committing the offence[4] and mitigates the penalty to be imposed.

Maximum sentence

22 The maximum penalty for the offence of manslaughter is twenty years' imprisonment, and manslaughter the result of provocation is generally regarded as more serious than other forms of manslaughter. In effect it is an alternative to murder which, because it is based in murderous intent, is an especially grave offence.[5] The nature of the offence of manslaughter is such that sentences may vary widely depending on the facts of a case. But under current sentencing practices the majority of cases of manslaughter by provocation fall in the upper half of the sentencing range.

23 This case is something of an exception. Despite such provocation as there may have been, it is a serious case of intentional homicide and therefore warrants substantial punishment. Accordingly, the court is bound to impose a sentence which reflects society's denunciation of your conduct as well as providing a measure of retribution commensurate with the seriousness of your wrong.[6] Apart from other considerations, the effects of the offence upon the deceased's family are profound, as is demonstated by the contents of their victim impact statements, and anything less than a substantial head sentence and non-parole period would be inadequate to reflect the gravity of their loss. But, as against that, in my judgment, the role which your condition may have played in the commission of the offence lessens the need for general deterrence against similar offending and, as I have said, therefore, mitigates the penalty to be imposed.

Personal circumstances

24 Mr Tim Watson-Munro, consultant forensic psychologist, has provided the court with two reports concerning your personal circumstances and psychological condition. In the first of them he states that you were born in Melbourne in 1962 and are therefore now aged 43 years. Your father and mother divorced but both are still alive. Your father is 68 years of age and is employed as a mechanic and your mother, who is 66 years of age and previously worked in sales, is now retired. You had one sister, who died of cancer some 12 years ago, and you have one brother, a company director with whom you remain in contact and who is supportive of you and gave evidence on your behalf.

25 You were educated at the Cheltenham North Primary School and later at the Cheltenham High School which you left at the age of 15 years some way through Year 11. After leaving school you obtained a position in a jewellery store in Brighton and after a brief time there you were appointed to the position of store manager and remained in it for the next couple of years. You went from there to Hunt's Leather Goods in Bentleigh, where you stayed for about a year, and then into your own sandwich run business for a number of years. Since then you have undertaken factory work in the fashion industry which has included positions with a boxer short company for about five years and in a plastics factory for about five months and for the last nine or so years before the death of the deceased, as a supervisor at W.A. McNeill Pty Ltd, a long established manchester company in Collingwood.

26 As a young woman you suppressed your homosexuality and at the age of 16 years you were engaged to a man a number of years older than you. You remained in that relationship for about four years, in effect in denial of your sexual orientation and perhaps in response to your family's and what you perceived to be society's expectations.

27 A couple of years later you met the deceased through another woman and your relationship with the deceased developed rapidly. To begin with you found the deceased full of strength and always able to speak for you and that was attractive to you. But as time progressed you became resentful of the deceased's domination of the relationship. You began to feel that she would always leap in and thus deprive you of your identity. That led in turn to arguments which in turn were fuelled by the heavy drinking in which both of you engaged.

28 You began drinking alcohol at the age of 17 years and, although you started out as a social drinker, by the age of 21 years your drinking had become far more regular and intense. You tended to drink each night after work and you were twice convicted of drink driving, on the second occasion in 1994 with a blood alcohol concentration reading of 0.214%. During that period of heavy drinking you experienced alcoholic blackouts which have not been a feature of latter years but, right up to the time of the deceased's death, drinking remained a problem and you typically consumed four beers each lunch hour and between 8 and 10 cans of beer each night. Yet despite your addiction to alcohol, you maintained a prodigious work ethic over the years. Mr Watson-Munro has interpreted that as an indication of strong resourcefulness in terms of capacity to maintain employment notwithstanding the intensity of problems.

29 Upon examination by Mr Watson-Munro you were found to be reasonably well oriented in time, place and person with no indications of psychosis, but subjective in your outlook. According to Mr Watson-Munro, your subjectivity is an aspect of your functioning which would tend to be aggravated under the influence of alcohol. At such times, your capacity critically to evaluate problem situations free from emotional bias would be compromised. Therefore, although you are possessed of a reasonable balance between restraint and spontaneity, it is apparent that you can be destabalised by significant underlying anxiety and depression and, when that occurs, you may act in a stressful and impulsive manner.

30 Mr Watson-Munro suggests that your poor self-concept and a condition known as "learned helplessness" may have combined to preclude you from extricating yourself from people who were in a position of dominance and power over you. In the end, he says, it may be that which led to your offending. Either way, however, he is of the view that you require ongoing psychological attention as a matter of urgency, including psychotherapy and social skills training as an adjunct to medication.

Guilty plea and remorse

31 It counts in your favour that you co-operated fully with the police and offered to plead guilty to manslaughter virtually at the first opportunity. You are entitled on that basis to a significant discount on sentence.

32 It is, I think, also plain that you deeply regret your actions and are truly contrite and remorseful over what you have done. Unlike many cases in which remorse is feigned or only partial, it seems to me that you would do anything you could to turn back the clock and thus bring back the deceased for her own sake rather than yours. Even in your grief and anguish in the immediate aftermath of the offence you repeated several times to police that no matter how much the deceased had provoked you she did not deserve what you did to her. I do not doubt that that was and remains your state of mind. It is consistent with Mr Watson-Munro's observation that you have expressed strong regret for what has happened, which he believes is genuine. It is also borne out in a report from the prison chaplain, The Reverend Lorraine Covington, in which she states that from the outset you accepted responsibility for your act and accepted that you should be in prison and wished that you had died instead of the deceased. As she reports, you have experienced great anguish and feeling for the effects of the deceased's death on the members of her family.

33 I have watched you throughout the trial and all that I have seen is consistent with that being so. Mr Langslow has submitted and I accept that you instructed him to conduct cross-examination in a way which caused minimum emotional trauma to member's of the deceased's family. You also gave evidence on oath which I think was by and large completely frank and open. In the end you could not bring yourself to agree that you you stabbed the deceased with intent to inflict really serious injury. And in my view you did intend really serious injury. But I do not regard your denial as mendacious. It is more a case that you have simply persuaded yourself that you never intended to do so.

Previous character

34 You are without any significant prior convictions and, by all accounts, before the offence you were a person of good character and loyal disposition who worked extremely hard and did her best for those who worked below her. Mr David McNeil of William A. McNeil Pty Ltd gave evidence on your behalf that you were an honest, hard working and highly valued employee. Ms Kelly Lambrinidis and Ms Silvana Luca-Kahdem both gave evidence on the plea confirming evidence given at the trial that you were a fine hard working colleague and a loving individual who was a pleasure to be with. Your brother, Mr David Stenhouse, gave evidence supportive of you as to how you used to care for him. Those witnesses' evidence is backed up by a testimonial supplied by Tony Pino, a supervisor with whom you worked at William A. McNeil Pty Ltd for a period of more than eight years and by the evidence of Ms Lynne Dalton-Scott who spoke of the way in which you went out of your way to care for her emotionally scarred grandson.

35 In the result, I consider that the chances of you committing an offence of this kind again are remote and, despite your alcohol dependence, that your chances of rehabilitation in the long term are very good, provided you are given the right sort of psychological attention. To adopt the Reverend Covington's words, you are still able to contribute positively in the future to society.

Conclusion

36 For the reasons which I have given, I judge this to be a serious case of intentional homicide which warrants substantial punishment. Accordingly, the court is bound to impose a sentence which reflects society's denunciation of your conduct as well as providing a measure of retribution commensurate with the seriousness of your wrong. At the same time, I am bound to bear in mind the mitigatory considerations to which I have referred, including your psychological condition, your plea of guilty, your undoubted contrition and remorse, your relatively good previous character, strong work ethic and your prospects of rehabilitation.[7]

37 Balancing the competing considerations to which I have referred, I have determined to impose on you a sentence of eight years' imprisonment and, in light of the mitigatory considerations to which I have referred, particularly the degree of your remorse and the prospects for your rehabilitation, I have determined to set a shorter than usual non-parole [8] period of five years.

Sentence

38 Joanne Margaret Stenhouse, you are convicted of the offence of manslaughter of Anne Maher.

39 I now sentence you for that offence to a term of imprisonment of eight years and I set a non-parole period of five years beginning this day.

40 I declare that the period to be reckoned as already served under the sentence I have imposed on you is three hundred and eighty three (383) days inclusive of today's date and I direct that there be noted in the Court's records the fact that the declaration has been made and its details.

41 I shall order pursuant to s.464ZFB(1) of the Crimes Act 1958 the retention of the non-intimate samples taken from you pursuant to s. 464Z of that Act.

42 I shall further order pursuant to s.78(1) of the Confiscation Act 1997 the forfeiture to the State of the knife with which the deceased was killed and the blood stained items which will be listed in the schedule to that order.