Regina v Mabbott

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

SENTENCE 1 HIS HONOUR: The offender, Leanne Patricia Mabbott, has pleaded guilty to the manslaughter of David John Mabbott at his home at Toongabbie on 2 October, 2000. The Crown has accepted that plea in discharge of an indictment for murder. 2 The deceased, who was eleven years older than the offender, was her step-brother. They had been in a de facto relationship for about three years, although at the time of the killing they were living apart. Their relationship had been affectionate but it was also turbulent, characterised by violence on both sides. 3 On the night in question the offender and the deceased were at his home, where they had drinks with friends who lived nearby. The friends left in the mid evening, at which time the offender and the deceased appeared to be in good spirits. Some hours later the offender arrived at the friends' home, stained with blood and obviously distressed, saying that she had stabbed the deceased in the neck and had killed him. The friends took her back to the deceased's home where they found him lying in the bedroom. Police were summoned to the scene, and to them the offender repeatedly said that she had stabbed and killed her "bubba", apparently a reference to the deceased. It was later established that the deceased had died as a result of a single stab wound to the neck. 4 In a recorded interview with police the offender was uncommunicative. However, she has since provided a consistent account of what she can recall of the fatal incident to several psychiatrists. It seems that both she and the deceased had had a good deal to drink that day. After their friends had left the deceased retired to bed. The offender cooked a meal and ate it. The deceased emerged from the bedroom and she asked him if he wanted dinner. He seized her and threw her to the floor, calling her a "dog." When she got up he pushed her back down, again calling her a dog. To the psychiatrists, and in evidence before me, she said that she does not remember the stabbing which must then have occurred. Her next recollection is seeing the deceased standing, bleeding and holding his hand to his neck. She called the 000 emergency line and he went to the bedroom, where he collapsed. She went to his aid and wrapped him in a doona before going to their friends' home. 5 The Crown has accepted the plea of guilty to manslaughter on the basis of substantial impairment by abnormality of mind, within the meaning of s 23A of the Crimes Act. It is necessary to sketch the offender's background before turning to the opinion of the psychiatrists about that matter. 6 The offender was thirty five years old at the time of the offence and is now thirty seven. She has a fairly lengthy criminal record, commencing when she was seventeen years old, although all the offences were such as could be dealt with summarily. She has served several short terms of imprisonment. There are a number of entries for assault, although the manner of their disposition suggests that none of them was particularly serious. Otherwise, the record consists mainly of street offences and offences of dishonesty. It is consistent with her background and her lifestyle throughout her adult years. 7 The offender was born in Victoria. Her parents separated when she was only three. It seems that her father was an alcoholic who was prone to violence. Her mother remarried two years later, and her stepfather treated her well. Nevertheless, she was frequently disciplined at home and her behaviour worsened when her younger sister was born. It appeared to her that her mother devoted most of her attention to the sister, of whom she became jealous. There were episodes of destructive behaviour and she ran away from home on several occasions. Her mother died in 1993. 8 The family moved to the north coast of New South Wales while she was still in primary school. She was educated to school certificate standard, although her schooling was disrupted by her errant behaviour. Indeed, at the ages of twelve and thirteen she spent two short periods in children's homes because of it. After leaving school, she did a secretarial course. 9 At the age of sixteen she was raped by three men. She reported the matter to police, but it seems that they did not accept her account of the incident and no-one was charged. At the same age she began drinking alcohol and soon became a binge drinker. She also used cannabis and, from the age of about eighteen, heroin. Her use of alcohol moderated after she took to heroin, and her level of intoxication at the time of the killing was atypical. She continued to use cannabis and heroin throughout her adult years, and it seems that much of her criminal record is drug related. 10 After she was raped she spent about six months living on the street, sometimes sleeping with men whom she picked up at a hotel. When she was seventeen she moved to Melbourne to live with her grandmother. As a result of an assault upon her grandmother she spent a short period of time in Pentridge Prison. After her release she was introduced to prostitution, which became her main occupation. Her life thereafter was described by one of the psychiatrists as "extremely chaotic", characterised by tumultuous relationships, alcohol and drug abuse and conflict with the criminal law. 11 Each of three relationships with men led to the birth of a child. As a result of the first, which lasted for a year or so, she has a son who is now about sixteen years old. The second, which was short-lived, produced a daughter who is about thirteen. The third relationship was with the deceased and it produced another son, Ashleigh, who was born in 1998. He is in foster care, while the two older children are in the care of the offender's stepfather. 12 The deceased was her step-father's son from his first marriage. It seems that the offender had little contact with him during her childhood, although the evidence about this is scanty. She got in touch with him after her release from prison in 1997, he offered her accommodation and the relationship developed. It was turbulent, as I have said, although the offender has acknowledged that he was violent to her only when he had been drinking. This case is all the more tragic because it appears that this relationship, for all its problems, was the best she had ever had. In evidence she said of the deceased, "… he was my friend, he was my lover, he was everything to me." 13 It seems that the offender saw a psychiatrist on a couple of occasions during her childhood, but there is no evidence of the outcome of those consultations. In early 2000 she was admitted to Cumberland Hospital with psychotic symptoms following her ingestion of a large amount of amphetamines, and while she was at that hospital she displayed the symptoms of temporal lobe epilepsy. An EEG conducted since her arrest for the present matter displays some atrophy of the left temporal lobe, although the psychiatric evidence is inconclusive about the bearing this might have upon her behaviour at the time of the killing. 14 Of greater significance is her history of paranoid delusions since the birth of the child, Ashleigh. She told the psychiatrists of her belief that she was being watched and, indeed, she came to believe that the deceased was watching her at the behest of the prison authorities at Mulawa, apparently because his work uniform was the same colour as the uniform worn by prison officers. This led her on one occasion to cut off an arm of all his shirts and take them to his place of employment, where she dumped them on his desk. 15 That said, there is no evidence that the killing was the direct result of a paranoid delusion. I accept that she has no recollection of the stabbing itself. To the psychiatrists she was at a loss to explain it except to say that she might have been angered by his calling her a dog which, of course, is a particularly offensive term to someone who has been a prisoner. All the psychiatrists who examined her concluded that she was suffering from a schizophrenic illness at the time. Dr Michael Guiffrida considered that she had the defence of mental illness. This also appears to have been the view of Dr Brian Boettcher, who concluded that "she had suffered from a break from reality of sufficient severity to impair her capacities as required in law to excuse her …". However, two well known forensic psychiatrists, Dr Bruce Westmore and Dr Olav Neilssen, supported the defence of substantial impairment: Dr Westmore on the basis that she had suffered "an episode of disassociation during the critical time" and Dr Neilssen on the basis that her mental state "probably had a substantial effect on her judgment and perception of events, as she is likely to have interpreted events in the context of her paranoid delusions." 16 Upon her reception at Mulawa after her arrest for this offence, the offender was found to be mentally ill and was transferred to the Bunya Unit at Cumberland Hospital as a forensic patient. In large part, this was because of her refusal to accept treatment for cervical cancer which, apparently, had been first diagnosed as long ago as 1995. In a report of March 2001, Dr Giuffrida described gradual but significant improvement at that unit, with a positive response to medication. In a report of September 2001, Dr Boettcher considered that she was "trying to understand in a distant sort of way what has been happening to her". However, he expressed concern about her provocative and abusive conduct towards other patients, which he saw as a reflection of her personality quite apart from any mental illness. In evidence she acknowledged this behaviour, although she said that many of her altercations with other patients were not initiated by her. She agreed that, as her mental health improved, she did not fit in as well with other patients. 17 She underwent radiotherapy at Westmead Hospital for the cancer which, happily, appears to have been successful. Nevertheless, a report of January 2002 from Dr C A Bull, medical director of radiation oncology at that hospital, expresses a guarded prognosis. As that treatment has been completed and her mental health has improved, she has now been discharged from the Bunya Unit and returned to Mulawa. There she has been working and undergoing various courses, including accounting. She recognises that she still has a mental illness and maintains a regime of medication. She has also participated in a Naltrexone program to deal with her drug problem. 18 Clearly, her position has improved considerably during the period she has been in custody. Her presentation in evidence before me was markedly different from what might have been expected from a reading of the psychiatric reports and the other material. She was well groomed and articulate, and appeared sincere in her expressed resolve to pursue her rehabilitation. She said that she wishes to re-establish her relationship with Ashleigh, who has been brought to visit her in custody on a number of occasions. She wants to complete her accountancy course and, eventually, to practise in that profession. She intends to pursue her interest in the guitar and, upon her release, to form a circle of friends. She does not have contact with her sister and, understandably in the circumstances, her relationship with her stepfather is strained. Nevertheless, she said that she enjoys the support of an aunt and uncle who live in Victoria. 19 This is not to deny that much needs to be done to turn her life around. Dr Westmore and Dr Neilssen both expressed the view that she needs long term psychiatric treatment, Dr Neilssen adding that she requires the assistance of a drug and alcohol service for a lengthy period. Both Dr Neilssen and Dr Boettcher concluded that, apart from her schizophrenic illness, she suffers from a personality disorder with borderline traits. Dr Boettcher had this to say: "I believe that she will continue to be at risk of a recurrence of the psychosis and that this may worsen if the temporal lobe damage and resultant epilepsy worsens or if she is again involved in substance abuse. This would lead to the possibility of a loss of critical judgment and the possibility of violent episodes again. Risk management will involve the active and, compulsory if necessary, treatment and repeated assessment by mental health staff to track her progress and suggest ways of reducing life stresses." 20 Clearly, her long history of aggressive behaviour, including that observed in the Bunya Unit, is of concern. Nevertheless, I believe that her prospects of rehabilitation are reasonable. Given the progress she has made so far, and with appropriate management in the future, there is reason to be hopeful that she will not re-offend in a violent way. 21 I have regard to her plea of guilty to manslaughter, although this is not a case where it would be appropriate to recognise that plea by a quantified reduction of the sentence otherwise appropriate. It is sufficient to say that, as she has no recollection of the stabbing and there is evidence supporting the defence of mental illness, I view the plea as a demonstration of her acceptance of her responsibility for the death of the unfortunate victim. That said, I am mindful of the seriousness of this crime involving, as it does, the unlawful killing of a human being. I take into account her mental state at the time and her psychiatric history, together with the other mitigating factors, but appropriate effect must be given to consideration of retribution and deterrence. 22 Clearly, there are special circumstances warranting a departure from the usual proportion between sentence and non-parole period. So much is common ground. The offender has been in custody since her arrest in the early hours of 3 October 2000. 23 Leanne Patricia Mabbott, you are sentenced to imprisonment for seven years, to date from 3 October 2000, with a non parole period of three and a half years. You will be eligible for release on parole on 3 April 2004. **********

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