17 I have inspected the knife. It indeed has a rounded end which is a millimetre or so wide. I accept that the offender was surprised when it wounded the deceased so easily. I think, however, that she used rather more force than a tapping. Despite its blunt tip, the knife penetrated the skin to a depth of at least 115 millimetres. Even so, I believe that the offender did not intend to inflict any serious injury on the deceased, that indeed she wanted only to frighten him and that she only struck him when he taunted her. I should add that although the offender was angry and hurt, I do not believe that she was acting under the impression that the deceased had been unfaithful or by way of any response to any such suggestion.
18 As I have mentioned, the offender gave evidence before me. That account also was unclear. This may be explained by a number of factors, including the extent of her intoxication and emotional turmoil at the time of the events and the shocking consequences of what she did. However, I also think that the offender has not yet acknowledged to herself what actually happened. She said that when she returned to the bedroom with the knife, the deceased was "laying there swearing at me". She told him that she ."was sick of you hitting me all the time." The deceased said, "Do it if you're gunna do it, just do it". The offender said he was looking straight at her, smiling. She became angry, and in her words, "tapped him". She was unable to remember whether she was standing or kneeling at the time but she thought she was kneeling. The offender was asked what she felt about what happened. She said, "Well if I could turn back the time I would, I wouldn't have grabbed the knife at all, I've not only ruined my life, I've ruined his family and my children. I haven't got a life".
19 It seems to me that when the offender got the knife, her intention was, indeed, merely to frighten the deceased. She was upset and angry and drunk. When she showed the knife to him as a threat, he simply taunted her. This, of course, simply emphasised her helplessness. She had, without thinking it through, reached the point of no return. Rather than back down and make her threat a meaningless and humiliating gesture, she struck at him in defiance with lethal consequences. It should be recalled that she had earlier punched the deceased in the face and that on her own account, he had not assaulted her, although it may well be that her apprehension, that as she put it, she "was in for a flogging", was an accurate one.
20 Accordingly, this is not a case of self defence, although it did have an element, as Mr Bruce contended, of the offender taking a stand. But she went too far and in so doing, committed manslaughter.
21 In the result, I am satisfied that the deceased had been continuously abusive towards the offender, both verbally and physically including sexual abuse, that on the night in question he implicitly threatened violence, that she got the knife to frighten him and struck him in response to his taunts to demonstrate that she was not afraid of him, and I also am satisfied that she did not think that the knife would cause any serious injury. As I have mentioned, she was affected by alcohol at the time and was not thinking clearly.
22 The objective seriousness of the offender's crime must be regarded as considerable. The unlawful taking of human life has always been regarded as a grave crime. It is obvious from what I have said already that there were present in this case some significant extenuating circumstances, but to use a knife to cause a lethal injury even in those circumstances, is a grave offence. Even accepting everything that the offender has said about what happened, the fact is that she had managed to evade the deceased, there were other people in the house including her own daughter. She did not need to return to the bedroom and certainly did not need to do so with a knife. On the offender's own account, she returned to the bedroom to continue her confrontation with the deceased, even at the time at which she struck him with the knife, he was not then threatening violence, at least immediately.
23 I have been referred to a number of cases in which offenders convicted of manslaughter by an unlawful and dangerous act have been dealt with otherwise than by full time imprisonment. It is not necessary for me to analyse them for present purposes. It is enough to say that the circumstances of those cases were very different from the present. In all of them, the violence suffered by the offender had continued for many years; the threats of violence were of far greater seriousness; some involved fear of death at the hands of the deceased; and in a number of cases, children were also under threat. I have therefore come to the view that I am bound to impose a sentence of full time imprisonment.
24 A Victim Impact Statement was read to the Court by Ms Shirley Charles, the sister of the deceased, on her own behalf and that of her family. In it she states how much he meant to them, especially since of her four brothers, the deceased was the last survivor. Ms Charles describes the family's great grief and anger at their loss and their sense that their brother's spirit is not at rest. This proceeding itself will have been the cause of additional pain, as things have been said about their brother which they may well not have known and may find it hard to believe. Ms Charles said in her statement that the deceased did not deserve to die. That is certainly true and that is why the criminal law will punish the offender, but it does so through the Court as the delegate of the community after attempting by an objective and fair process to determine the relevant facts. I do not doubt that the deceased had many good qualities, some of which Ms Charles mentioned in her statement, but above all he was a human being and a member of our community who should still be living his life.
25 It is important to understand that by permitting victim impact statements to be received in a hearing such as this, the law does not thereby place them to be weighed by the Court in the scales of justice. The taking of a life is the gravest injury known to the criminal law. Accordingly, it is not made more serious because the victim's death is the cause of pain or grief to others, however intensely felt. The life of one person cannot be regarded as more valuable than the life of another, or the killing of one person as more grievous than the killing of another, because of their personal or social circumstances. To do this would undermine the moral standards essential to the maintenance of the rule of law. It would be wrong to take one day from an otherwise appropriate sentence for murder because the deceased was selfish, obnoxious, cowardly and without friends or family to grieve for him or her. By exact parity of reasoning, it cannot be right to add a day to an otherwise appropriate sentence because the deceased was honourable, loved and surrounded by friends and family. If this were not so, counsel for the killer might rationally submit that as the victim was of the former character, the crime was less grave, and the sentence should be more lenient, and the Crown Prosecutor, by pointing to a grieving family, submit to the contrary. The virtues or vices of the deceased, the extent of his or her social connections and whether the death caused grief or passed unnoticed by an indifferent public would then become the subject of evidence and argument. The law will neither value a life nor punish a death by such a demeaning process.
26 More difficult perhaps to accept but also crucial to the administration of justice is the notion that the value that the law ascribes to the life which has been taken arises from and reflects that same sense of reason and humanity which requires value also to be ascribed to the lives of the persons who come before the law for punishment. They are the values and aspirations of our society, not the values and aspirations of the criminal. Thus the considerations that moderate the measure of punishment are not applied primarily because of anything due to the offender, but what is due to ourselves as a civilised and humane community, not so much because we respect the criminal, but because we respect ourselves.
27 The High Court has said in Veen v The Queen (No 2) (1988) 164 CLR 465, per Mason CJ, Brennan, Dawson and Toohey JJ (at 476) -
"…sentencing is not a purely logical exercise and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. There are guideposts to the appropriate sentence but sometimes they point in different directions…."
28 In dealing with offenders, the Court must remain objective and dispassionate. All the relevant facts must be carefully weighed. The circumstances of the crime include not only the result but also the events which gave rise to it, the intentions of the offender, his or her personal characteristics and attributes, and the various explanations for the crime. The public interest as well as the personal interests of the victims and the offender must be reflected in the outcome. As is obvious, these considerations will be in tension if not in conflict.
29 In this case, in particular, the public interest in saving the considerable expense and uncertainty of a trial, and stress and inconvenience to witnesses, requires the Court to give a significant downward adjustment to the offender's ultimate sentence. Even so, as the legislation provides, such a sentence must not be unreasonably disproportionate to the nature in circumstances of the offence.
30 It is necessary briefly to describe the offender's subjective circumstances. She is an Aboriginal woman who was born in Coffs Harbour. Her early childhood was a difficult one. She was raised in a home where drunken violence by the males, including sexual abuse, was commonplace. When she was twelve, the offender went to live with her maternal aunt where conditions were much better and at least she felt safe and cared for. The offender had her first child at the age of fifteen, and over the years has had eight children, the youngest four of whom are aged six, eight, ten and eleven years. She left school halfway through year eight during her first pregnancy. She has not had any paid employment. The offender started drinking in her early teens and has been binge drinking now for many years, reaching a climax when she recommenced her relationship with the deceased. The offender is diabetic and in February this year, underwent successful coronary artery by-pass surgery, from which she is still recovering. She has no criminal record.
31 I have no doubt that the offender is genuinely contrite for having killed the deceased. She will not offend again and poses no risk to the community. The Crown Prosecutor has conceded that she pleaded guilty at the first practicable opportunity. Accordingly, I propose to allow a discount of twenty-five percent in the sentence to reflect the utilitarian value of the plea.
32 The offender has also spent fifty-seven days in prison whilst on remand. I have taken this into account by reducing both the non parole and balance of her term by three months to allow for the harsher conditions of remand imprisonment.
33 Because the offender's medical condition requires supervision, she will be likely to spend much of her imprisonment in Sydney where it will be difficult if not impossible for her children to visit her and then only rarely. This is an additional hardship which will be accounted for by reducing the otherwise appropriate sentence. I also think that some allowance should be made having regard to the onerous conditions of bail that involved her practical isolation from her family whilst on remand.
34 The offender's medical condition and its consequences, together with the fact that this is her first experience of lengthy imprisonment, constitutes special circumstances justifying departure from the statutory calculus in s44 of the Sentencing Act 1995.
35 Beryl Anne Mercy, for the manslaughter of Berrin Dean Charles you are sentenced to a minimum term of two years and three months imprisonment, to commence on 19 April 2004 and ending on 18 July 2006 on which date you will be eligible for parole. The balance of the sentence is two years and eight months, which will expire on 18 March 2009.