REGINA v. BURKE [2000] NSWSC 356

1 HIS HONOUR: On 1 February 2000, Roslyn Kay Burke pleaded guilty to an indictment charging her with the murder of Barry Simmons on 7 October 1997 at Menindee. She stands convicted on that plea. 2 The plea was accepted by the Crown in the special and peculiar circumstances of this case as entered solely on the basis that at the time of the act causing death the offender had an intent to cause grievous bodily harm but that the Crown was unable to discharge the necessary onus to show an intention to kill or a foresight of that consequence in the offender at the time of the doing of that act. 3 It was accepted by the Crown that at the time of the doing of that act, the offender was subject to a degree of intoxication and that the circumstances overall of the case were such that, although one of the necessary intentional states for the commission of the crime of murder was made out, and accepted by the offender's plea, nonetheless, the crime should not be regarded as culpable as a killing involving an intent to kill even where that killing had occurred in circumstances where the intent was formed, as it would appear it did here, on the spur of the moment and during the heat of an argument. 4 Nonetheless, the offence to which the offender has pleaded guilty is the offence of murder, not the offence of manslaughter. In that sense, the offence is more serious in criminality. Its particular culpability, however, as will be seen from the facts to which I will turn and the peculiar circumstances of the prisoner, is not unlike the culpability which attaches to serious manslaughters occurring in circumstances of intoxication and domestic violence. 5 The offender had come forward for trial on this charge of murder at Broken Hill before Grove, J. and a jury on 12 July 1999. At that trial she had pleaded not guilty to murder but guilty to manslaughter. 6 At all times she has, by her plea on that occasion and before me, accepted the fact of the killing. The only matter in issue has been her intentional state. That matter is one to which a deal of the evidence presented before me on the plea relates. 7 On the occasion of her trial in Broken Hill, her plea of guilty to manslaughter was not accepted by the Crown. The trial proceeded for some 12 days terminating when events occurred requiring his Honour to discharge the jury. Those events are in no way the fault of the offender. 8 Although the present plea to the charge of murder was entered on 1 February 2000, nonetheless, it appears accepted that the offender is to have the benefit of her acceptance and recognition from indeed only moments after the killing that she had performed the fatal act. This is not a matter in which the Crown submits that the offender should be deprived of such benefits as would ordinarily flow to her under s.439 of the Crimes Act 1900. It is submitted on her behalf that she should be entitled to the benefits of an early plea insofar as that plea is a recognition of the commission of the offence, or at least the factual elements of the offence and the expression of contrition. I accept that she should be entitled to those benefits. 9 In the circumstances of her psychological and intellectual conditions, to which I will refer in due course, I do not regard it as inappropriate that, having recognized the facts of the killing, the issue of her mental state was left to be ventilated at the trial, although now recognized as appropriate to a finding of guilt of the more serious offence. Consequently, I do not consider that the fact that there was a 12 day trial should deprive her entirely of the pragmatic benefit to be associated with a plea which has the effect of saving the community costs. 10 Following the entry of the plea, the proceedings before me were by consent adjourned to permit the preparation of submissions and the compiling of written evidence. In addition, oral evidence was called by video link from Broken Hill. 11 I have received from the Crown the material by way of submissions and evidence contained in a volume marked Exhibit A; and from the defence material by way of submissions and evidence contained in a volume marked Exhibit 1. That material has included additional certificate material relating to courses completed by the offender in gaol and additional report material tendered today and admitted into evidence. The oral evidence to which I have referred was that of Clarence James Mitchell, the offender's brother, supplementing his affidavit and in particular concerning her prior circumstances, her family, her upbringing and the circumstances of her children. 12 The offender is an Aboriginal woman born on 18 July 1970 and is the mother of four children. She is a person who, as will be seen from the material to which I will turn when I come to examine the subjective circumstances, has had a deprived and abused life in remote locations and in circumstances such that she had developed a condition of alcoholism and intellectual impairment. In the circumstances of social deprivation and personal abuse she has experienced, it is not surprising that she had turned to the lifestyle in which she was involved at the time of the commission of this offence. 13 The deceased and the offender had, prior to 7 October 1997, been living in a de facto relationship for some months. They had used the deceased's motor vehicle, a Toyota station wagon, which had been acquired only a short while prior, as joint sleeping and living accommodation and for the storage of personal belongings. 14 On 7 October 1997, they had been residing in a vacant modest house in Menindee with the permission of the person who was to take up residence in that house. The offender informed that person that she had hidden six cans of Victoria Bitter beer so that she could have a beer later. Subsequently, that person saw the offender with a can of beer at the premises and saw her in the company of the deceased at which time they were behaving affectionately together in the kitchen of the premises. 15 Later that evening, the deceased was drinking with a friend, having informed the owner of the local hotel that he would return to that hotel later. The offender was seen at about that time to be drunk, "charged up", having had "a few drinks". She was enquiring for the deceased. She went to the hotel and was observed to seem annoyed at his absence saying, "I wish he would hurry up". Earlier, there had been a telephone conversation in which the offender had enquired of the deceased's friend if she could speak to the deceased, but the deceased, who was present with his friend at that time, did not want to talk to her. 16 The offender continued to make enquiries for the deceased, saying at one stage, "I heard something about 'Snake' and if I find out it is true I'm going to stab the old cunt". She refused to say what it was she meant. Later, when speaking to another person while apparently drunk, she said, "He's probably got another woman. I will kick him in the prick" and other similar things. 17 Later, she appeared to be quite happy and referred to the deceased and herself getting married in a few months time. She continued to try to find the deceased, eventually playing poker machines and leaving the hotel some time after 9.30 pm. She was able to use a telephone directory and telephones without apparent difficulty at about that time. 18 Some time after her departure from the hotel, at a time when she was "pretty drunk" and her conversations apparently disturbed, she referred to the smashing of a window at the house she occupied whilst she was in the toilet and that persons (unnamed) had apparently objected to her association with the deceased. 19 She was driven back to the home after leaving the hotel and in that journey said that she had heard something about the deceased that night and if she found out it was true she was going to go off her head and if she did so the whole town would know about it. 20 On arrival at the home, a glass panel in the door was found to be broken. The station wagon of the deceased was seen to be parked in the backyard and she was, while she was approaching the station wagon, apparently in a good mood and seeking to talk to the deceased who may possibly have been at that stage in the car. 21 It is the Crown's contention that shortly afterwards the offender re-entered the house, removed a knife from a knife holder in the kitchen, approached the station wagon, opened the front passenger seat and stabbed the deceased once in the chest as he was seated in the driver's seat drinking a can of Victoria Bitter beer. The accounts the offender later gave to the police of what happened do not accord with this scenario. There is no direct evidence of that scenario. The deceased was found dead in the car stabbed in the heart in circumstances that are at least strongly suggestive of his having died without moving following the stabbing, as in the opinion of Dr. Bradhurst, who gave evidence at the prior trial and who provided a statement which is in evidence before me. 22 Shortly after the offender had been left at the premises she was seen crying in a public telephone box and the emergency services were rung by a neighbour. The police were contacted. 23 On arrival of the police at the telephone box, it was found to be empty, but the offender was heard yelling out several times, "No cunt believes me, I didn't do it". But when first spoken to by the police when she was seated on a nearby footpath and asked if she was all right, she said, "I stabbed him, right, I stabbed him, right. You cunts always blame me". She then ran off and was eventually found nearby. When spoken to at that point she denied having a knife, although the fact of her having a knife was obvious to the police since she had it held in her left hand. She was restrained until she dropped the knife and upon recovery the knife appeared to have blood on the blade. She was arrested and an attempt was made to place her in a police van. Whilst the knife was being locked up in the police van, she ran off but was apprehended after a short chase. 24 She then directed the police officer to the house and then told the officer that the man she had stabbed was not there, subsequently leading the officer to a number of different locations within Menindee apparently seeking to show to him where the stabbed man was to be found. 25 Whilst in the police van, she called out, "Follow Poochie, he will take you to Daddy". Apparently, these remarks were made referring to a small dog which was beside the van. 26 Some time later the deceased's body was found, and when the offender was interviewed at the police station she said, "I stabbed Barry tonight with a knife". Later, she said, "I didn't mean to stab him, sweetie. We were talking, okay, up at a friend's place. I didn't mean to do it.". 27 When further interviewed at the station, she described her relationship with the deceased as a good de facto relationship with no arguments and contended that whilst she and the deceased were having a bit of a blue, he started "pissing her off" so she went to the kitchen and obtained a knife, walked up and stabbed him while he was sitting up in a chair in the kitchen; that she ran to the phone and telephoned the police on two occasions and that the deceased, when she returned on the second occasion, had left the kitchen. She said she could not remember what she had done with the knife, but sometimes when she has too much "grog" in her system she blanks out and does not remember. She later said she could remember stabbing the deceased once on the left side of his chest, but did not mean to kill him. She just had a little jab and that was it. She said she just wanted to play a joke, but she went too far. She said that she had not meant to hurt or kill him. 28 When it was put to her that the deceased had been stabbed in the car, she insisted the stabbing had occurred while he was in the kitchen. 29 A reading of the evidence at the former trial and of the committal statements included in Exhibit A persuades me that the offender's account of having stabbed the deceased in the kitchen is factually unreliable. As I have said, the evidence, and particularly that of Dr. Bradhurst, points strongly to the offender having stabbed the deceased in the car. But, considering the offender's intoxicated and emotional condition, and particularly having regard to her psychological and intellectual conditions to which I will later refer, I do not conclude that she was necessarily lying, having regard to her perspective of events, and particularly because I conclude that, although the deceased was stabbed in the car, it is not possible to conclude that there was not an initial dispute, which commenced in the kitchen and which had not terminated as the parties moved from that location to the location of the car. Indeed, it seems to me that whatever it was that triggered the dispute and wherever that trigger occurred, the stabbing, wherever it occurred, while it was accompanied by the admitted intent to cause grievous bodily harm, and the obtaining of a knife were both in the context of the prisoner's belief that she was engaged in some form of dispute or alcohol induced emotional outburst with or against the deceased. 30 There was evidence that the offender may, at an earlier stage of the evening, have contemplated some violence to the deceased, as I have said, but in the light of her intoxication, emotional condition, psychological and intellectual conditions and her obvious mood swings, I am unable to conclude that there was any real premeditation. I accept that her actions and utterances subsequent to the stabbing displayed a considerable degree of irrationality. I am unable to conclude that there was any substantial degree of rationality prior to, or at the time of, the action of stabbing. I conclude that at that time the offender was drunk, although the degree of intoxication was not such as to have precluded the necessary intent sufficient to establish the offence to which she has pleaded and that she was seriously emotionally disturbed at that time. 31 Thus, I conclude the evidence does not enable me to find that the killing occurred otherwise than on the spur of the moment during the heat of some dispute, real or imagined on her part, and that, although the intent existed, it was not an intent which had been formed prior to the killing to any great extent or with any real consideration. 32 The offender does have a prior record, but that is a record substantially for street offences, malicious damage, assault police and other local court matters extending back some 10 years prior to this offence. For these offences she has received penalties of fines, community service orders and recognizances. 33 Her personal circumstances are tragic. There was admitted by consent a document setting out her personal history supported by substantial other material. 34 She had been removed from her mother's care at the age of about four and placed at the Home of Compassion at Broken Hill. She had grown up without regular involvement with her immediate or extended family. Prior to that removal she had been admitted to hospital on a number of occasions suffering from gastroenteritis. When the Home closed down when she was about 13, she went to live with her older brother and at about that time commenced to develop alcohol abuse. She finished school at Year 9 and had her first child at the age of 17 years. 35 She formed a relationship in 1988 which extended for some years during which time she was viciously and regularly abused physically and sexually by her partner. She had a second child when she was 19 and in 1990 was the victim of an attempted rape. 36 She had required, as a result of the relationship with her partner, hospitalization on a number of occasions, including hospitalization for being bashed with an iron bar, being indecently assaulted and being stabbed in the arm. 37 She had two more children. Her children were, however, removed from her by the Department of Community Services and placed with the family of her partner. It transpired, however, regrettably, that the children informed the Department that the partner had been sexually interfering with, at least, the girls. At that time the offender ended her relationship with the partner and her cousin died. That death, occurring when it did and in the context of the other matters then occurring, affected her profoundly. 38 She reacted to the abuse, the removal of her children, the termination of her relationship and that death by developing acute depression manifested in particular by binge alcohol drinking, living in the streets and sleeping in parks and abandoned buildings. She attempted suicide. She had, during this time, removed herself from her local community to the eastern seaboard. 39 After the attempts of suicide, she returned to the Broken Hill area, was the subject of further violence and pursued a lifestyle characterized by abandoned drinking and regular minor criminal misconduct resulting, in particular, in the later offences in the criminal record to which I have referred. She was on numerous occasions transported to hospital by ambulance, after having been assaulted including with a bottle, affected by what may have been petrol or glue sniffing and as a consequence of being found being incoherent or unconscious in the streets. 40 She was treated within the Corrective Services system for delirium tremens, and her drinking history documented in about 1996. 41 It was in mid-July that she formed a relationship with the deceased, but even during that relationship she had presented to the Menindee Health Service with violence indicating her lifestyle was unchanged. 42 That recitation, taken from the personal circumstances of the prisoner set out in the submissions in the material provided by the defence, is not only supported by the references set out in that document to the primary data material also provided, but also by the medical and expert reports that have also been admitted into evidence. 43 It is not surprising that it has been submitted to me, and I accept, that the prisoner's personal history reveals a history of unrelenting tribulation and harshness which is most difficult for most people to comprehend. She is a person who has existed in socially deprived circumstances, as was submitted, consigned to a lifestyle of poverty, deprivation and entrenched alcohol abuse in an atmosphere where she is the subject of violence and conditioned to violence as a social response. 44 It is not necessary to go so far as to exemplify her life as a direct result of the problems faced by members of the Aboriginal community in the remoter locations of Australia, nor does the evidence on this plea deal with the more general phenomenon of deprivation and dispossession suffered by the Aboriginal community, but it is enough, and the evidence persuades me, that the conditions personal to her of alcoholism, emotional disturbance and intellectual impairment and the deprived lifestyle in which she has been involved are such as to set a context for conditioning her to react in the way in which she did under whatever the emotional stimulus she suffered that night. 45 The evidence with which I was provided in relation to her personal circumstances includes a number of reports. The report of Dr. Robert McMurdo, psychiatrist, concludes that the prisoner had been the subject of alcohol dependency and abuse over several years and refers to alcoholic amnesia episodes and the impulsive stabbing of the deceased whilst the offender was in a state of alcoholic disinhibition. 46 The report of Julie Hendie, clinical and consulting neuropsychologist, established that the offender was a person of limited intellectual abilities with an IQ within the lower limit of the borderline of the intellectually impaired range. Her IQ falls within a band that has its lower limit in the upper end of the mentally retarded level and its upper limit in the middle of the borderline range. 47 Although there were no specific features which would suggest brain damage, the general consistency and results are supportive of the views that those figures represent the offender's natural abilities. However, she has sustained a number of insults to the head and has spent the past 15 years abusing alcohol and therefore Miss Hendie concludes that she is someone whose natural levels of functioning would have been in the lower normal to upper borderline range but that because of her life and tragic circumstances has suffered that downgrading of abilities. Miss Hendie would not expect that were the prisoner to abandon alcohol, there would be an improvement. 48 Dr. John Couter Smartt, psychiatrist, referred to the extent to which abuse of alcohol has affected the prisoner and the tragic circumstances of her prior life. He points out that there must be serious doubt in her circumstances, taking into account the limited intellectual capacity, intoxication and disturbed emotional circumstances, of how fully she would have appreciated what it was she was doing that night when she stabbed the deceased. That material is material which, when taken in conjunction with her subjective circumstances, leads me to consider that the objective circumstances of the offence must be regarded as less serious than one would otherwise expect for a deliberate stabbing performed with intent to cause grievous bodily harm. 49 The circumstances of the case are such that both the Crown and the offender's counsel have referred me to the principles in Regina Fernando (1992) 76 A. Crim. R. 58 at 62-63 and remarks made by other justices of this court in other decisions when coming to sentence persons who have been the subject of lives as appallingly damaged as hers has been. I will apply those principles in respect of the head sentence and the non-parole period I determine. 50 There is no doubt of her contrition, remorse and distress. 51 There is no doubt that in her circumstances a long custodial sentence, particularly in the absence of her children who, however, are brought, in the case of two of them, in particular, immense distances to visit her at Broken Hill, will be more than unusually onerous for her. There is no doubt that she can enjoy some degree of support and assistance from her community and her family were she to be retained in a Corrective Services establishment at Broken Hill and that it is only if she is so detained there that she will have contact with her children, her immediate family and her extended family. 52 Having regard to her Aboriginality and her personal circumstances, I will, particularly having reference to the letter from Mr. Leo Keliher, the Commissioner of Corrective Services of 13 March 2000, recommend that she be placed for the custodial portion of her sentence at Broken Hill. 53 It was submitted on her behalf that some degree of rehabilitation has already occurred, that there is an attempt to manage her alcohol problem. That is amply borne out by the material to which I will later turn, but there should also be a recommendation that, both whilst she remains in custody and during the parole period of her sentence, she be afforded the opportunity to participate in all appropriate rehabilitation programmes and that her release be conditional upon her participation in such programmes as might be available in Broken Hill and I will recommend that such occur. 54 There is now available for her within the Corrective Services system, and as provided by the Far West Area Health Service and the Aboriginal Medical Service, programmes and facilities to seek to attain her rehabilitation and the avoidance of alcohol abuse. All of that material suggests that she is an appropriate candidate for such programmes, that she has in fact, within the gaol system, achieved a remarkable degree of personal rehabilitation and attainment of qualifications, such that one can say she has a strong prospect for rehabilitation. 55 It is, having regard particularly to the evidence of the offender's brother, Mr. Clarence Mitchell, a matter for considerable hope that her circumstances for the future will be so supported by the family and by the programmes that she will not offend again. Mr. Mitchell gave evidence of the local facilities, of the family support and of his willingness to marshal his own and the support of Aboriginal organizations to assist her. He gave evidence of the deep bonds that still existed with the children and which bonds may themselves further be assisted. All of this is material to which I should have regard when I find whether the circumstances are special and also in respect of the overall length of the sentence. 56 In regard to the question of the proportion of non-parole period to head sentence, the Crown concedes that, because of the length of the sentence, the circumstances of her children and family, her prospects of rehabilitation, the necessity for her to have to serve a lengthy sentence, for her prospects of rehabilitation after release from gaol to be a reality requiring the support of her family and for her to see and have contact with her children, there are special circumstances such that her sentence should be comprised of components which would not require the non-parole period to be 75% of the head sentence. 57 To what the Crown had said in this regard should be added the considerations referred to in Fernando (supra) which require regard to be had to the particular aspect of alcohol abuse and violence within aboriginal communities so that the sentence is so crafted as to afford an opportunity for the future to avoid any further involvement on her part in the circumstances which would give rise to violence. The realistic recognition by the court not only of the endemic presence of alcohol within such communities as she might come in contact with but of the effect of alcohol in inducing violence within these communities requires that the court have regard to that matter in the form of sentence which it passes in the hope of avoiding the offender's further resort to violence. 58 It can be seen that in this woman's circumstances are evidenced the social problems which affect others rather than just her. But this sentence, in the context of these circumstances, is one that turns peculiarly upon the most unusual and particular facts and her peculiar circumstances. 59 I am required to sentence the prisoner for murder, not for manslaughter. There are many cases which, although they do not establish any tariff for sentences in such circumstances, for a crime of manslaughter, do give some indications of an appropriate range of sentence. There are few, very few indeed, remotely similar where there has been a plea of guilty to murder. I have to have regard to a fact that a life was taken. I have to have regard to that fact that it was taken in the circumstances in which a weapon was wielded. I must have regard to questions of deterrence and rehabilitation. I can have regard to that question of intoxication and intellectual disabilities in considering the extent to which the mind turned to the action both in looking at the objective circumstances of the crime and when reflecting on those personal circumstances which have turned the prisoner to violence. But having regard to those matters, I am unable to conclude that this is an offence for which the prisoner's punishment should be greatly in excess of that which might have been expected had she been found guilty of the crime of manslaughter. 60 I have reviewed the extensive material provided to me by both the Crown and the defence comparing cases. In particular, my attention was drawn to two decisions of Regina v. Johnson (Ireland, J., unreported 5 August 1999) and Regina v. Gillespie (Sharpe, J., unreported 6 September 1991) by both the Crown and the defence. Johnson (supra) involved a sentence for manslaughter and Gillespie (supra) a sentence for murder. In the latter, a sentence of 11 years, comprising a minimum term of six years and an additional term of five years, was passed in September 1991 on a person who had stabbed the deceased once in circumstances where the offender and the victim had been for many years best friends and where the offender was heavily intoxicated. However, in that case, there was no such material as to the conditioning of the offender to violence, as appears here, establishing the offender's disturbed mind, alcoholism, and deprived circumstances. Further, the Crown concedes that, unlike the offender in that matter, the present offender must benefit when the Fernando (supra) criteria are applied, and because of her plea and contrition. 61 The Crown does submit, however, that the prospects of rehabilitation are such that, although special circumstances should be found, the sentence should not be so structured as to require only half of it to be spent in custody and submits that, notwithstanding the distinctions from the Gillespie (supra) and Johnson (supra) cases, an appropriate sentence should approach a total period of imprisonment of 11 years with a minimum term of six years. The statistics with which I was provided do not indicate for the crime of murder that any sentence with a minimum term lower than five years has, in recent years, been imposed. 62 In the oral submissions both counsel for the defence and the Crown indicated ranges of sentence which appear to centre on five years for the minimum term. Before me, in further argument, each has diverged somewhat from that in their submissions. 63 It is tragic to have to pass sentence on a person offending in these circumstances and to require that the offender remain in custody for a number of years more, but given the fact of the killing, the nature of the crime and the necessary components in sentencing of general and personal deterrence, it is incumbent upon me to pass a sentence which requires that the offender spend a substantial period of time in custody and that the overall sentence recognize that sufficiently. The length of the sentence must also recognise that, although she may be discharged earlier than the expiry of the head sentence, such a discharge be conditional and she may be returned to custody to serve the whole of it. 64 As I have said, I recommend that the sentence, in accordance with the letter from Mr. Keliher, be spent as to the custodial portion, at least, at Broken Hill and I recommend that she be afforded those programmes and that the Parole Board impose a condition upon her release not only to require supervision, but a participation in appropriate programmes to achieve her rehabilitation. 65 I find special circumstances, as I have said, and I am of the view that I should impose a head sentence of nine years imprisonment to date from 7 October 1997. That sentence, having regard to the special circumstances, should be structured with a minimum term of five years imprisonment to date from that day and an additional term thereafter of four years imprisonment. 66 Miss Burke, would you please rise? 67 I sentence you to imprisonment for a term of nine years to date from 7 October 1997. That sentence is to include a non-parole period of four and a half years to date from 7 October 1997.

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