(3) The jury were not satisfied beyond reasonable doubt that the act of the prisoner had been done with the intent required for murder but were satisfied that the act was unlawful and dangerous.
4 It is convenient to refer to these three types of manslaughter as provocation manslaughter, substantial impairment manslaughter and unlawful and dangerous act manslaughter.
5 Important principles governing the sentencing of persons who have been found guilty by a jury of a criminal offence were laid down by the five judge bench of the Court of Criminal Appeal in R v Isaacs (1998) 90 A Crim R 587. In Isaacs the Court of Criminal Appeal said:-
(1) The power and responsibility of determining the sentence to be inflicted upon the offender rests with the judge and not the jury.
(2) Subject to certain constraints it is the duty of the judge to determine the facts relevant to sentencing.
(3) The primary constraint is that the view of the facts adopted by the trial judge for the purpose of sentencing must be consistent with the verdict of the jury.
(4) A second constraint is that findings of fact made against an offender by the sentencing judge must be arrived at beyond reasonable doubt.
(5) There is no general requirement that a sentencing judge must sentence the offender upon the basis of a view of the facts consistent with the verdict, which is most favourable to the offender.
6 The Court of Criminal Appeal said that the above principles apply equally to sentencing for manslaughter as to sentencing for any other offence.
7 In accordance with the opinion expressed by the Court in Isaacs that, other than in exceptional cases, trial judges should refrain from asking the jury the basis of a verdict of manslaughter returned by the jury, I did not ask the jury what was the basis of their verdict of manslaughter. At the trial I was not asked by the Crown Prosecutor or by counsel for the prisoner to ask the jury what was the basis of their verdict of manslaughter.
8 In accordance with the general principles of sentencing stated earlier in their judgment the Court of Criminal Appeal in Isaacs held that, where in a trial the jury have returned a verdict of guilty of manslaughter the sentencing judge's task is not to determine the basis upon which the jury found the prisoner guilty of manslaughter but to find for himself or herself the facts material to sentencing, consistently with the jury's verdict of manslaughter and bearing in mind that the prisoner is to be given the benefit of any reasonable doubt.
9 Guided by the principles I have stated or referred to, I will proceed to find the facts of the offence of manslaughter of which the prisoner has been found guilty.
10 There were a large number of witnesses at the trial, who included:-
(1) The police who were at the Bateman's Bay police station on 30 June 1999 or who took part in the investigation into the death of Mr Vandersee.
(2) The prisoner's two adult daughters by a previous marriage, Kerry Ford and Samantha Ellis.
(3) The mother of the deceased, Mrs Vandersee.
(4) Mr Peter Hollands who had been a friend of both the deceased and the prisoner but who had only seen them at infrequent intervals.
(5) Persons who had known the prisoner and the deceased, while they lived in Tasmania before moving to Tilba.
(6) Persons who had seen the prisoner and the deceased in Tilba.
(7) A forensic pathologist Dr Bradhurst who performed the post mortem examination of the body of the deceased.
(8) Two forensic psychiatrists Dr Clark, who gave evidence for the prisoner, and Dr Skinner, who gave evidence for the Crown.
11 However, the principal witness to the course of her life, her relationship with the deceased and the events leading up to the killing and the killing itself, was, necessarily, the prisoner herself.
12 After she had gone to the Bateman's Bay police station on 30 June 1999 the prisoner was interviewed by police in a long electronically recorded interview. An audio-video recording of this interview was admitted into evidence at the trial and was viewed and listened to by the jury and myself. In this interview conducted just a few hours after the killing, the prisoner spoke freely, giving many long narrative answers. I am satisfied that I should accept the answers given by the prisoner in the interview on 30 June 1999 as being accurate.
13 The prisoner gave evidence at the trial, which was held more than twelve months after the killing. It is unsurprising that at the trial she gave evidence of some matters which were not referred to in her answers in the interview on 30 June 1999. However, to the extent of any inconsistency between the answers she gave in the interview and the evidence she gave at the trial, I prefer the account given in the answers in the interview.
14 Because both provocation and substantial impairment were raised at the trial and because it was submitted that much of the prisoner's previous life was relevant to either provocation or substantial impairment or both, it is necessary in my finding of the facts to cover the whole of the prisoner's life.
15 The prisoner was born in Australia on 18 August 1951, so that she was forty seven years old as at 30 June 1999 and she is now forty nine years old.
16 The prisoner's parents separated when she was very young and her mother went to live in Northern Ireland. The prisoner lived in Northern Ireland between the ages of four and twenty one. While living in Northern Ireland she was exposed to the troubles in that province. During her childhood she was often neglected by her mother.
17 In about 1972 the prisoner married her first husband, Ian Ellis, who was a British army officer serving in Northern Ireland. Soon after the marriage the prisoner and her first husband came to Australia. There were two children of this marriage, both girls, Kerry born in 1974 and Samantha born in 1975.
18 The prisoner's first husband began acting violently and the violence continued until the prisoner and her first husband separated in 1979. During the marriage the prisoner's first husband was violent to both the prisoner and the two children. He "picked on" Kerry because she had cerebral palsy and walked with a limp. On one occasion he committed a particularly violent assault on Samantha.
19 The prisoner left her first husband three times. The last time she left, the separation was permanent. On this occasion the prisoner, before leaving, made arrangements for her and the two children to be picked up by a friend, for her to obtain accommodation and for her to obtain employment.
20 The prisoner first met the deceased in 1980. Her first impression of the deceased was that he was very different from her first husband. He was not cruel; he was gentle. The prisoner moved in with the deceased just before Christmas 1980 and they were married on 31 July 1982.
21 The prisoner and the deceased moved to a house on the South Coast of New South Wales. The deceased's parents came to live with them in the same house and the household became very tense. The deceased started drinking heavily, apparently under the influence of his father, and the deceased became verbally abusive to the prisoner.
22 In March 1985 the deceased, the prisoner and her two children moved to Tasmania. The prisoner became manager of a diagnostic department at a hospital in Launceston. The deceased worked in his occupation as a signwriter.
23 The prisoner and the deceased bought a house in Labrina, a tiny village some distance outside Launceston.
24 On three occasions spread over a number of years the deceased cut the clothes the prisoner was wearing with a pair of scissors. On the last occasion he cut her underwear off her.
25 On occasions the deceased came up behind the prisoner and smacked her across the back of the legs or the buttocks with a ruler or a wooden spoon or pinched her skin with his finger and thumb. The deceased would sometimes punch the prisoner in the stomach or on the arm. They were not hard punches but the deceased would sneer at the prisoner when he punched her.
26 The deceased had sexual intercourse with the prisoner at times when she was unwilling. She stopped attempting to say "No" because she could not be bothered fighting him anymore. On occasions the deceased twisted her nipples.
27 In 1988 when Kerry was fourteen and Samantha was thirteen the two girls went to New Zealand to have a holiday with their natural father. The holiday was supposed to be for only two weeks. On the day they were due back the girls telephoned from New Zealand and told the prisoner that they did not love her and that they would not be coming back to Australia. The deceased commented to the prisoner "It serves them right. I don't want them back anyway".
28 Kerry returned from New Zealand after some months. When she returned she looked "glum" and "pathetic". The deceased said that he did not want Kerry back. Kerry lived in the household for about another couple of years. During this period the deceased and Kerry antagonised each other. Eventually Kerry moved out in about 1993. Kerry went to England, formed a relationship, married and had two children and she returned to Australia with her two children in 1998. The prisoner went to England in 1996 for five weeks to be present when Kerry had her first child.
29 Samantha stayed in New Zealand for about fifteen months. The prisoner received a telephone call from the New Zealand Child Welfare Department informing her that Samantha's father had assaulted her and deserted her, that Samantha was the prisoner's responsibility and the prisoner should arrange to have Samantha brought back to Tasmania.
30 Samantha returned to the household of the prisoner and the deceased in Tasmania. The deceased did not want her back. After Samantha returned, there were constant arguments between Samantha and the deceased. Samantha left the home when she was fifteen. After leaving home she lived with a neighbour and was then looked after by the Child Welfare Department.
31 Just before Samantha left home the deceased presented Samantha with a document prepared by him which was described at the trial as "a contract". This document was in the following terms:-
"I Samantha (do/do not) wish to be a loving part of the Vandersee household and family
(If the answer is (DO) then sign 'A')
(If the answer is (DO NOT) sign 'B')
(A) I promise to do what I am told to do, when I am told, and not lie. I promise to include both Mum and Dad in any decisions that have to do with my welfare friends or outings.
I promise to not see or ring up any boy without the permission of both Mum & Dad.
Sign ……………………………………….
(B) I do not wish to be part of the Vandersee family. Therefore I do not expect any love or financial support from the family and will revert to being known as Samantha Ellis.
Sign ………………………………………."
32 The deceased read Samantha's diary, which had been left at the house, and the deceased prepared a letter for Samantha, which was in the following terms:-
"DEAR MISGUIDED SAM ELLIS,
According to your 'Secret Diary' I am an asshole & I was just being mean to you and was using Shane as an excuse.
If you had only done as you were told to do I wouldn't have been 'mean' to you.
Your ringing Shane was only part of my disappointment in your actions and attitude.
It was a culmination of lies, deceit, disobedience and unbecoming behaviour for a 14 year old.
Your mother and I were crushed when we found out about your smoking, drinking and your sexual activities.
But I suppose this would mean nothing to you.
This, now is all water under the bridge as you have decided to start a new life of your own which I hope will bring you all the health, wealth and happiness you wish upon yourself. Not what you deserve.
Please change your name on everything as Samantha VanDerSee doesn't exist any more!
Your Ex Dad,
Bruce VanDerSee".
33 The prisoner told the deceased that the letter was disgusting but the deceased laughed at her.
34 After the two girls left the household there were "ups" and "downs" in the relationship between the prisoner and the deceased. There were "ups" when the deceased was in a good mood and there were "downs" when the deceased had been drinking or was in a bad mood. The deceased remarked how peaceful it was without the prisoner's daughters. Both daughters did make visits to the house and the visits were actually civil and quite pleasant.
35 The prisoner had a hearing deficit. The deceased was aware of this deficit and would either mumble or shout at her.
36 The prisoner had been making teddy bears for some time, selling some of them. The prisoner and the deceased agreed to leave Tasmania and go to Tilba on the South Coast of New South Wales. The prisoner felt burnt out in her job and hated the cold in Tasmania. The deceased was sick of his occupation of signwriting.
37 The prisoner and the deceased moved to Tilba. In Tilba they rented shop premises and rented premises in which to live. They set up a business selling teddy bears. The teddy bear shop was never a financial success.
38 Kerry with her two young daughters lived in Tilba from October 1998 to January 1999. Kerry had borrowed money from the prisoner and the deceased to pay for the airfares of herself and her two children from England. The deceased did not want Kerry and her children to come to live with the prisoner and himself. Kerry and her two daughters lived in the same house as the prisoner and the deceased for only two and a half weeks. The deceased adored Kerry's older child, Bethany. The deceased complained about the younger child crying at night.
39 The deceased was angry with Kerry for not making Bethany, who had cerebral palsy, walk and criticized Kerry as a mother. Kerry moved out into a flat in Tilba. The deceased constantly wanted to know what Kerry was doing about making Bethany walk. He believed that he could make Bethany walk, when Kerry could not.
40 The deceased prepared a document whereby Kerry would promise to make Bethany walk and it was provided that, if Bethany could not walk within a certain period of time, that would show that Kerry was a pathetic mother.
41 The deceased gave the prisoner the document to give to Kerry on Kerry's departure from Tilba to Western Australia. However the prisoner threw the document into a garbage bin and did not give it to Kerry.
42 After the departure of Kerry in January 1999, relations between the prisoner and the deceased were tense. The deceased's conduct, consisting of verbal abuse, commenting on the prisoner's appearance, smacking and punching the prisoner, twisting her nipples and having sexual intercourse without her consent, continued.
43 The prisoner attended at the teddy bear shop each day. The deceased stayed at home, making teddy bears or operating his computer. The prisoner was worried about how they would survive financially. The deceased said words to the effect that that was her problem.
44 The deceased would follow the prisoner around the house, he would not let the prisoner go anywhere by herself, even to the toilet. The prisoner neglected the house and her own personal appearance.
45 The deceased would go days at a time, without changing his clothes and without washing. In Tasmania the prisoner had made the deceased shower every day. "In Tilba after four or five days he was just putrid and I would say 'get in the shower'". The deceased would say "Oh stop nagging me".
46 On the weekend of 19 and 20 June the deceased was away from Tilba, leaving the prisoner at Tilba.
47 On 20 June the prisoner logged into the internet on the deceased's computer. She made a number of visits to the Cornell University Poisonous Plants home page and she made notes of information from this website on two pieces of paper, which became exhibits at the trial.
48 On these pieces of paper she recorded, inter alia, the symptoms produced in human beings by the ingestion of a number of poisonous plants, including poinsettia, fulmicort, wisteria, lantana and laburnum. For example, under the heading "lantana" she wrote:-
"Ataxia, laboured breath, cyanosis, death, diarrhoea, lethargy, liver congestion, pupil dilation, pinpoint pupils, unconsciousness, vomiting, weakness"
49 The prisoner claimed in her evidence that she had obtained the information about poisonous plants, because she was contemplating suicide and denied that she had any other purpose in mind. According to Dr Skinner's evidence, which I accept, Dr Skinner asked the prisoner on 20 July 2000 "why did you look at poisonous plants on the internet?" and the prisoner replied "no definite intention, perhaps for Bruce or harm myself". I find that on 20 June 1999 the prisoner did contemplate suicide but the possibility of administering a poisonous plant to the deceased had crossed her mind.
50 On the weekend before the killing the prisoner and the deceased went to Sydney for a teddy bear show. On the Thursday before the weekend the deceased's mother came to Tilba to look after the shop in their absence. In the presence of his mother the deceased demonstrated a physical affection for the prisoner, which he did not show at other times and which the prisoner resented.
51 The prisoner thought that they did not have enough money to make the trip to Sydney but the deceased insisted on going. In Sydney the prisoner and the deceased entered their bears in the teddy bear making competition. On the Friday afternoon the prisoner proposed that they go out to the Gap, because she had not been there before. They went to the Gap and walked around.
52 On the Friday night the prisoner and the deceased went to the presentation ceremony for the winners in the teddy bear making competition. Neither the prisoner nor the deceased won. The prisoner did not care about not winning. The deceased who was "not a good loser" was upset.
53 On the Saturday the deceased was "just shitty about everything" and "just snide comments referring to my weight, my ugliness and my oldness".
54 On the Sunday they had very little money left. The prisoner made enquiries and discovered that there was a service station which would accept payment by cheque for petrol. The prisoner proposed that they go to Manly and take a walk along the beach. However, at Circular Quay they discovered that if they paid for return ferry fares to Manly, they would have just $4 left. The prisoner proposed that, instead of going to Manly, they take a walk around the Rocks and they went for a walk around the Rocks. There were "great long silences" from the deceased.
55 The prisoner and the deceased set off for home. The prisoner had taken the phone number of the service station which would accept a cheque but had omitted to write down the address of the service station. The deceased called her "a dickhead" for not writing down the address. They had difficulty finding the service station. The prisoner telephoned the service station and obtained directions how to get there and eventually they arrived at the service station.
56 On the way home the prisoner developed a bad headache. The deceased said "You can't have a headache" and turned the radio up.
57 When they arrived at their home in Tilba the deceased told his mother, in the presence of the prisoner, what a wonderful time he and the prisoner had had in Sydney. On the Monday the deceased's mother left.
58 On Monday 28 June 1999 the prisoner went to the teddy bear shop, where she remained several hours.
59 In the evening of 28 June she conducted a teddy bear making class at the shop. She had been conducting such classes, with some interruptions, since September 1998. The class on 28 June started at about 7 pm and lasted for about two and half hours. To a person who attended the class the prisoner appeared tired. The prisoner failed to notice that a member of the class had sewn a leg on a teddy bear back to front, which was something she would ordinarily have noticed.
60 On Tuesday 29 June the prisoner went to the shop at 10 o'clock and remained in the shop until lunch time. At lunch time on 29 June she had a conversation with the deceased, who demanded to know why she had been using the computer on 20 June.
61 On 28 and 29 June Kerry, who was in Western Australia, telephoned the prisoner. The prisoner told Kerry on the telephone that she and the deceased had had a dreadful weekend in Sydney, that the deceased was furious that he had not won a prize in the teddy bear making competition and that the deceased claimed that everything that had gone wrong on the weekend had been her fault. Kerry asked her mother whether she loved the deceased and the prisoner replied that she did not. Kerry asked why the prisoner did not leave the deceased and the prisoner said that she could not. Kerry asked the prisoner to come to Perth for a holiday. When the prisoner said that she had no money, Kerry said that she and Samantha would send the prisoner money. The prisoner said "I can't bring these problems to you".
62 On the evening of 29 June the prisoner went home from the shop. She told the deceased that Kerry had asked her to go to Perth for a holiday. The deceased said to the prisoner "What did you say to her on the phone? Were you rude to her? She owes us all this money". Some of the money Kerry had borrowed to pay for the airfares was still outstanding. The deceased demanded to know when Kerry would repay the money and whether Kerry was making Bethany walk.
63 The prisoner was upset and went to the bathroom in the house. The deceased followed her to the bathroom, pulled a chunk of the prisoner's hair and cut it off with a pair of scissors. The deceased said "Now you can't go to Perth". The prisoner was shocked by the deceased's act. The prisoner thought to herself "I can't live like this any more".
64 The prisoner went into the computer room, where the deceased was. The deceased sneered at the prisoner and lifted up his hand in a dismissive way. The prisoner attempted to do some sewing on a teddy bear but was unable to do so. The deceased announced that he was going to bed and went to bed.
65 At about 10.30 pm the prisoner went to bed. After a while she fell asleep. She woke up at about 2 am. She had been waking up at 2 am every morning. In an answer given in the interview on 30 June 1999 she said "Waking up constantly during the night with all the money that we owe".
66 The prisoner gave an account in her evidence at the trial that after waking up she walked outside and looked at the stars, and while she was outside she heard a noise which sounded like someone walking on the floorboards of part of the house, that she thought it was her husband moving around inside the house and that she was terrified because she would be unable to give her husband a reason for being outside the house. She grabbed the axe from the wood pile in the yard because she was frightened of her husband and then went back inside.
67 The prisoner gave a quite different account when she was interviewed by police on 30 June 1999, only a few hours after the killing. She said in part of her answer to Q42 in the interview that, after getting up, she looked at the night sky from within the house. After a digression, she continued:-
"I can't say what thoughts made me think, the moon, the way the moon was shining, because, like, just shining on the axe which is stuck in a piece of wood outside, you know, there's the axe and I thought, mmm, so I went outside, took it out of the piece of wood and went back inside again ……"
68 In this version the prisoner first saw the axe while she was still inside the house and she went outside the house to get the axe. There was no mention in this version of her hearing noises from the house or being frightened of her husband.
69 I accept what the prisoner said in the answer to Q42 in the interview and I do not accept her evidence, to the extent to which it is inconsistent with the answer she gave to the police.
70 After re-entering the house with the axe, the prisoner heard her husband snoring. She became angry, because, if she happened to snore, her husband would kick her until she woke up. The prisoner could see the shape of the deceased in the bed. She hit the deceased on the head a number of times with the blunt end of the axe head. She thought that she had hit him four or five times. Dr Bradhurst, the pathologist, found eight distinct wounds on the deceased's head and I find that there were eight blows. In Dr Bradhurst's opinion, which I accept, a severe degree of force was used. Photographs of the deceased's head showed deep gouges to the head.
71 The prisoner said that she did not know what her thought processes were at the time of striking the deceased with the axe. Immediately afterwards she realized that what she had done was wrong but she could not recall thinking that while she was striking the deceased.
72 The prisoner washed the axe. The prisoner noticed that there were blood stains on a curtain. She washed the curtain, but not, I accept, for the purpose of avoiding responsibility for the crime.
73 The deceased was breathing loudly and the prisoner got a doona from another bedroom and covered the deceased with the doona, so that the prisoner did not hear the breathing.
74 When the deceased stopped breathing, the prisoner got a drink of water and sat on the back step of the house, watching the sun rise.
75 The prisoner changed out of her pyjamas into street clothes, because she needed to go to the shop to put a sign in the window to say that the shop would not be open that day. She went to the shop and put a sign in the window. She left a message in the shop that a customer who had almost completely paid off a layby could have the goods.
76 The prisoner cut the rest of her hair short, showered, packed a bag, took a last walk along the beach and drove to the Bateman's Bay police station. She went to the Bateman's Bay police station, because she did not want to run the risk of meeting anyone she knew at the Narooma police station, which was nearer.
77 She presented herself at the counter of Bateman's Bay police station at 12.15 pm. She told Constable Flood, a female officer at the counter, that she had hit her husband in the head with an axe and that he was dead. Constable Flood gave evidence, which I accept, that the prisoner displayed no emotion, that she spoke freely of what she had done, that she was calm but that she was a little withdrawn.
78 The prisoner was interviewed by police in a recorded interview, which commenced at 1.34 pm and concluded at 2.40 pm. She appeared calm and composed in the video of the interview. She gave long narrative answers to many of the questions she was asked.
79 The following questions and answers occurred in the interview:
Q64: Was there any violence, in, in, in your marriage?