R v Ward [2010] NSWSC 304 | Case summary

REMARKS ON SENTENCE 1 HIS HONOUR: The offender was convicted by a jury of murder arising from an incident during which she intentionally drove a motor vehicle at the deceased, Eli Westlake. At the commencement of the trial the offender pleaded guilty to manslaughter, but the Crown rejected the plea. From defence counsel's opening to the jury, it seems that the plea was based upon an acceptance by the offender that she acted with gross criminal negligence in the control of her vehicle resulting in the deceased's death. 2 The facts can be stated briefly. There was some dispute as to the incidents leading up to the killing, but a CCTV camera operating on premises next to where the killing took place captured the driving of the vehicle immediately before, and at the time of, the killing. Much of the evidence at the trial related to the background to these events and need not be given in any detail. 3 The deceased, his brother Joel and a number of other young persons had gathered at Joel's home principally to record music by a band in which a number of them played. After the recording session concluded they consumed alcohol and eventually decided to walk the short distance from the premises to a local tavern. CCTV footage shows that at about 3.00am the group walked past the place where the main incidents leading to the death of the deceased later occurred. The deceased is easily distinguishable from the others because he is the only person wearing a white top. The group went to the tavern where they drank alcohol, talked and played pool. They left at closing time, about 4.00am. 4 In the meantime the offender had left her premises with a companion to purchase cigarettes at a convenience store on the corner of Christie Street and the Pacific Highway at St Leonards. This store is directly opposite the tavern on the other side of the Pacific Highway where the group of young persons had been drinking. The offender had been consuming alcohol since the afternoon and had also smoked cannabis. She took the keys of the vehicle owned by the person, with whom she was residing at the time, without his knowledge. She was unlicensed to drive and was very much under the influence of alcohol. 5 She drove the vehicle down the Pacific Highway and eventually entered Christie Street at the corner where the convenience store was situated. In the meantime the deceased's group had left the tavern. They crossed the Pacific Highway and entered Christie Street. As they passed the store, the deceased decided he wanted something to eat. He, his brother and a third member of the group became separated from the rest while a packet of, what has been referred to as, "cheese balls" was purchased. By this time the rest of the group had gone down Christie Lane that ran from Christie Street not far from the convenience store to Lithgow Street. There they waited for the other three to join them. 6 Just how the three, who had stopped at the store, and the offender's vehicle came into contact was never made clear. It seems obvious to me that at some stage, as the three young men entered Christie Lane, the offender turned into the lane from Christie Street. She had travelled past the parking available outside the store and turned into the lane. She was going the wrong way in what was a one-way street. At about this time something occurred that caused the three young men to react to the offender's driving. Whether she sounded her horn, or startled them or simply because she was driving the wrong way in the lane, the deceased reacted by throwing the cheese balls into the air onto the front of the vehicle. He made some sarcastic remark wishing the occupants "happy anniversary" or something similar. 7 There was abuse thrown between the three young men and the occupants of the vehicle causing the passenger to get out of the vehicle to confront them. However, he decided discretion was the better part of valour as Joel was a very heavily built young man whereas the passenger was slight. There is a dispute as to what then occurred. I believe that as the passenger tried to re-enter the vehicle, there was a tug of war between one or more of the young men and the passenger resulting in the passenger's shirt and jumper being pulled off him. It was not a serious incident and the passenger regained the safety of the vehicle and retained his clothing. 8 At about this time the offender exited the motor vehicle. She was in a highly aggressive and abusive state. I have no doubt that she confronted Joel, remonstrated with him and commenced to physically attack him. At least one of the three was trying to placate the offender indicating that it was only cheese balls that had been thrown onto the vehicle. An observer, Mr Coyle, believed that the deceased was wiping the vehicle with his top in an endeavour to convince the offender that no harm had been done. I find that the offender struck at Joel and at one stage tried to kick him. I believe Joel retaliated and as a result the offender was either pushed or fended off so that she fell to the ground at least once. 9 Shortly after this incident the three men turned and left the vehicle walking down the lane to Lithgow Street where the rest of the group were waiting. Joel, with some premonition of danger, ran up Lithgow Street having warned the others to be careful of the vehicle. At the end of the lane the offender could have driven to the right up to the Pacific Highway which could be easily seen about 50 metres away. However she chose to turn left into that part of Lithgow Street where the group were walking on the pavement. This was an area where a number of commercial premises backed onto the street. There were a number of very large driveways. 10 The offender drove along Lithgow Street and suddenly turned left into one of the driveways at the very moment that the deceased was walking across the driveway. She either struck him or came very close to him and he avoided the vehicle at the last moment. This can be seen on the CCTV footage. The vehicle then reversed and the deceased can be seen walking near the passenger side of the car, clearly remonstrating with the occupants. He is then pulled away by one of the group, Stuart Taylor. 11 The deceased and Taylor then waited behind one of the two industrial bins that were on the kerbside. The offender's vehicle remained in the middle of Lithgow Street. Although the vehicle is out of the range of the CCTV, the headlights can be seen. The vehicle appears to straighten but remains where it is in Lithgow Street. 12 One of the group had been lying on the grass verge on the other side of the driveway waiting for the others. He was warned by another of the group to get up because someone was trying to kill them. He got to his feet. The deceased can be seen on the CCTV footage leaving from behind the bins and crossing the driveway. He walked onto the verge close to the building at the far end of the driveway. Suddenly the headlights of the offender's vehicle appear to go into high beam. The vehicle drove diagonally from the street mounting the curb. It hit a glancing blow to the young man who had been lying on the grass. It then made contact with the deceased who was struck by the front of the vehicle and carried forward. The vehicle continued until it careered down a flight of stairs to a gym at the corner of the building taking the deceased with it and crushing him beneath the vehicle at the foot of the stairs. 13 The offender tried to put the vehicle into reverse but it did not move. The passenger exited the vehicle taking the keys with him and fled the scene. Joel returned down Lithgow Street to the scene of the accident. He was joined by some of the group at the front of the vehicle and they tried to lift it off the deceased. By this time the offender had alighted and went to the front of the vehicle where she tried to help. Joel accused her of having killed his brother and she was told to leave. The offender was in a highly emotional condition on the roadway when a nurse from nearby premises arrived to offer support. 14 At this time a call was made to emergency services. A short time later an ambulance arrived and then the police. The offender was in a very distressed state and concerned that she may have killed the deceased. She eventually made two recorded interviews. In both she was distressed but gave an account that the jury must have rejected. That account was in effect that, as a result of the incident in the lane, she was terrified and wanted to escape the group. She said that turning into Lithgow Street she saw more of the group and panicked. She tried to do a thee-point turn to get away. She said that the passenger pulled the wheel and that because of her boots she hit the accelerator and was unable to stop the vehicle. 15 As I have indicated, this account was the basis of her plea of guilty to manslaughter but the jury obviously and properly rejected it. I believe that there was more to the incident in the laneway than Joel and the other man who was present were prepared to concede and that there was some aggression at least to the passenger. But thereafter the aggressor was the offender. I do not believe that she was set upon in the way she described. She was by and large the cause of any injuries she suffered. She was not provoked but was incensed by the fact that she had been humiliated as she saw it and had decided to retaliate. 16 In this regard the most highly relevant statement she made in her interviews was what she said about the effect of alcohol upon her. She told police that sometimes she could not handle it. When asked by the police about what happens when she could not handle it, she replied:

Although she then denied getting aggressive, I believe her answer was an accurate description of her reaction to alcohol on the night of the killing. 17 It should be made clear that in no way was any member of the deceased's group, including the deceased's brother, responsible for his death. The incident in the lane was a relatively trivial one no doubt arising because all the parties were intoxicated. It was when the offender alighted from the vehicle that the incident increased in its seriousness because of her uncontrolled fury. Her aggression continued from the lane into the vehicle, and she told her passenger that she was "sick of them". When she turned left into Lithgow Street she clearly wanted to teach the young men a lesson. I have no doubt she chose the deceased to vent her anger upon, probably because he could be identified by the white top and because his brother was no longer in the immediate vicinity. The passenger sensed what was happening. He warned her against doing anything that was likely to damage the motor vehicle. 18 I am prepared to find that when she first drove into the driveway she was acting only to scare the deceased. There is no doubt that she achieved that result. But this did not mollify her. Rather I think that the deceased's reaction by remonstrating with the occupants of the vehicle further angered her. I have no doubt that she waited in the street until the deceased would venture out of hiding. He did so but seeking the protection of the wall at the end of the driveway. As soon as he crossed on to the verge, the deceased saw him, put the lights into high beam and drove straight at him. 19 I do not believe she intended to kill him but the jury were right to conclude that she at least intended to seriously injure him. If she only intended to scare him, there was no reason to drive at him the second time as she had already given him a fright. In the circumstance where a vehicle is being used as a weapon against a person who is incapable of defending himself or taking evasive action, there is little difference between an intention to kill and an intention to inflict grievous bodily harm. There was a real likelihood that whatever injury resulted was going to be serious. 20 The offender has a criminal record from 1989 mainly for traffic matters. However she was convicted of malicious wounding in the Local Court in 2001 and received a suspended sentence of 12 months. That offence occurred on 14 October 2000. The offender who was intoxicated had an argument with her then husband over family matters. Her husband was lying face down on the lounge when the offender stabbed him twice with a kitchen knife. She was immediately remorseful for what she had done and called an ambulance. 21 In 2002 she was fined in June for contravening a domestic violence order taken out by her husband and fined again in December for assaulting him. In 2003 she received a suspended sentence for entering a dwelling with intent to assault the victim who was lying on her bed in her home. The offence occurred in October 2002. The offender, having looked through an open window and seen the victim, climbed through the window and started punching the victim asking for the return of her money. She was also charged with assaulting the victim causing her actual bodily harm. She breached the bond in respect of both those offences as she was called up and ordered to serve the suspended sentence by way of periodic detention. The breach appears to have been another assault upon her husband in February 2003. 22 The offender has a bad driving record including a low range PCA in 1989 and then a number of charges of being an unlicensed driver. In 2004 she was fined for driving while suspended and driving with mid range PCA. She was both unlicensed and in the high range of PCA at the time of the killing. 23 Evidence was given as to the offender's history of psychiatric treatment before the jury in respect of the issue of substantial impairment. There is no doubt that she suffers from a mental disturbance, probably a bipolar disorder that was first diagnosed in 2009. The issue in the trial was whether that disorder was relevant at the time of the killing. A major difficulty with the defence was that the offender was highly intoxicated at the time and the jury had to disregard the evidence of intoxication when considering whether that defence had been made out. Despite the views of Dr Roberts I do not believe that she suffered from any brain injury. Nothing found in the neuropsychological examination conducted by Dr Pullman contributed to the events of this night. 24 Simply because the jury rejected the defence of substantial impairment, it does not follow that I cannot or should not take into account any mental condition that may have contributed to the commission of the offence. However, I am satisfied by the evidence of Dr Allnutt that the offender's mental disorder had nothing to do with the offending. She was not suffering from mania at the time. She simply is very aggressive when under the influence of alcohol. She was aware that whenever she is under the influence of alcohol she is likely to act in an impulsive, aggressive manner to people or things that irritate her. 25 The offender was born on 5 January 1971 and is aged 39. She has a son aged 14 who resides with her former husband in Coffs Harbour. She is visited in custody by her mother and occasionally her son. Psychiatric problems became first evident in her school years and she commenced using alcohol and cannabis in her teens. She left school at 15 having been a difficult student. She was first diagnosed with having ADHD at the age of 20. She was prescribed medication that she did not take. She binged on alcohol and used cannabis. At age 21 she started using heroin. She was diagnosed with depression at this time and the depression increased after she was sexually assaulted at the age of 30. She is generally depressed although at times she was suffering from a change of mood in which she would find her mind racing and become talkative and irritable. She suffers from substance abuse disorder in relation to alcohol and drugs. She has had various forms of work throughout her life, including modelling, but found that her drug taking interfered with steady employment. She had last worked four weeks before the offence. 26 In the period prior to the offending she had been binge drinking, smoking cannabis, and using valium over the prescribed dose. She had recently visited her son, which she found stressful and she was trying to secure a place for her and him to live together. She had not suffered from anxiety or panic attacks the week before and was generally hopeful and happy about resolving the situation with her son. 27 While in custody she had been prescribed various medications to stabilise her emotions. She had found Seroquel helpful and has been taking it at the prescribed dose. She had been recently diagnosed with bipolar disorder. As I have indicated I am not satisfied that her culpability was reduced because of her mental disorder. Whether it has any other relevance I will discuss later. 28 This was not an impulsive offence. But it was not long in the planning and was a result of her instantaneous angry reaction to the incident in the laneway. But she could have changed her mind when she reached the end of the laneway and brought this incident to an end by turning onto the Pacific Highway in the direction of where she was staying. The passenger warned her against doing anything rash when she turned left into Lithgow Street. After the first incident when she drove at the deceased she had time to reflect upon her conduct and could have continued up Lithgow Street and again brought the incident to an end. She was never in any danger from the group when she was in Lithgow Street. 29 I accept that she was immediately remorseful. That is why she tried to help lift the vehicle. It was one of those acts, probably like the stabbing of her husband, that was immediately regretted after it had occurred. She probably lied to the police because she could not admit to herself what she had done as much as wishing to escape punishment. 30 Because the offence carries a standard non-parole period it is necessary to undertake the stepped approach that has been set out by the Court of Criminal Appeal. First I have to determine where in the range of murders this particular offence lies. This is a task that must sound callous to the deceased's family who would be entitled to believe that it is in the worst category because it involved the deceased and was such an over-reaction to what was a trivial incident. It must have been unbearable for the deceased's brother to be unable to help him. A number of the group who gave evidence at the trial are clearly traumatised, as of course are the deceased's parents and his brother. 31 But there are different categories of murder. For example a killing by a professional hit man must be towards the top of the scale. In order to determine where this offence lays in the range one must look at its objective seriousness. The law is, that in determining this issue, a judge cannot look at the consequences of the killing upon those who are affected by it. The law protects all human life and it is as serious to kill a homeless person as it is to kill a famous heart surgeon. Here the life taken was a young man of considerable talent, much loved by family and friends and his family is inconsolable in their loss. But that cannot be factored into the assessment of punishment. It is a crime against the community in general. The law cannot seek to place a value on a particular life and attempt to impose retribution commensurate with that value. However, the very moving victim impacts statements should bring home to the offender the grief she has brought to others in the community by her senseless act of anger. 32 The typical case of murder coming before this Court is probably lower than mid-range. These tend to be domestic killings usually in the heat of the moment and often fuelled by alcohol. This offence seems to me to be more serious than that. Very few murders are planned although they may occur in the course of planned activity. Those where the killing is planned would almost inevitably be well above mid-range. This was not planned in any long-term sense but it was not an instantaneous reaction to the events in the lane. 33 There are aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 that impact upon the objective seriousness of the offence. There was a use of a weapon and one of a particularly dangerous kind when used as the offender used it. Although the offence was committed without regard for public safety in that there were other persons in the vicinity of the driving, it seems to me that this aggravating factor is subsumed by the fact that this offence involved a grave risk of death to another person. The offender struck another young man with the motor vehicle as she drove it in the direction of the deceased. He was fortunate not to be killed or more seriously injured. It does not matter that the offender may not have been aware of that person or of the risk she was causing to him. Although the Crown submitted that the deceased was vulnerable, this is not the type of vulnerability with which the section is concerned. 34 There was in my opinion no provocation, or, if there were, it was of such a minor nature and so out of proportion to the consequences of the offender's act that it should not mitigate the offence. It explains why the killing occurred but it does not diminish her objective culpability. As I have indicated, it was the offender who was the aggressor once she exited the vehicle. Further she had opportunity to take stock of the situation having been warned by her passenger and after she had driven at the deceased on the first occasion. It is clear that she waited for the deceased to emerge from behind the safety of the bins for another chance to vent her rage and seek retribution. Her mental disorder or any psychological abnormality was not related to the offence so as to diminish her culpability. Nor was the fact that she was under the influence of alcohol. It may explain why she reacted so aggressively but she was aware that she could be aggressive when drunk. 35 The offence is in my opinion in the mid-range of offending. This is despite the fact that I am prepared to sentence her on the basis of an intention to inflict grievous bodily harm rather than an intention to kill. It was an intention to inflict very serious injury and the risk of death was very high. 36 The only matter of mitigation is her remorse. I accept that almost immediately she regretted her actions. Her remorse for the killing is not inconsistent with the fact that she pleaded not guilty to murder. She accepted responsibility for the killing when she pleaded guilty to manslaughter although she tried to minimise her culpability. Her remorse is confirmed by the letter from the chaplain at the prison. There is also considerable evidence of remorse in the psychological notes from the Department of Corrective Services. 37 There is no evidence before me that her mental disorder makes prison more onerous for her. It certainly does not negate or diminish general deterrence to any significant degree. It is clear that all of her offending has been as a result of alcohol abuse yet, despite her involvement with the probation service, she continues to abuse alcohol and drugs rather than take prescribed medication to address her problems. I have no views on her prospects of rehabilitation although if she addresses her reliance upon alcohol and is more amenable to proper medication to treat her mental disorder and to give herself more emotional stability she is unlikely to re-offend. But this will require her to change a pattern of behaviour that has persisted for a number of years. 38 It appears that much of her depression and anxiety that has resulted in her inability to cope is the result of traumatic events in her past. Her mother described her attitude to life to a probation officer in July 2003 as immature and irresponsible and her lifestyle as chaotic. This seems to have continued until the commission of the present offence. She has, however, since coming into custody for this offence been compliant with her medication and sought psychological counselling. She has completed a Getting SMART programme. Her criminal record does not assist her although it is not an aggravating factor. 39 There are no special circumstances requiring that the parole period be greater than would result from an application of the statutory ratio between the non-parole period and the total term. Nor is there any reason to reduce the non-parole period. There will be ample time on parole for her to receive whatever assistance she might require when released from custody. I have departed from the standard non-parole period because of her immediate and continuing remorse for having killed the deceased. 40 The offender is sentenced to a term of imprisonment made up of a non-parole period of 18 years 9 months and a balance of term of 6 years 3 months. The sentence is to commence on 7 June 2008 and the non-parole period expires on 6 March 2027. This is in effect a sentence of imprisonment for 25 years and the offender cannot be considered for release to parole until 6 March 2027. It will then be a matter for the Parole Board to determine whether she can be released safely into the community. 41 After sentence was imposed, it was brought to my attention by the parties that I had failed to deal with two matters under s 166 of the Criminal Procedure Act, they being related matters of drive with middle range PCA and drive whilst unlicensed. These are matters that were taken into account when I assessed the objective seriousness of the offence of murder. There is no purpose in imposing any additional punishment for these offences. In respect of each the offender is convicted under s 10A of the Crimes (Sentencing Procedure) Act 1999 without any punishment. **********

R v Ward

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (11 paragraphs)

Parties

Cited By (4)