REGINA v MERCY

THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

1 HIS HONOUR: I should say by way of introduction, that although I have once referred to the name of the deceased, I am aware that Aboriginal people have a sensitivity to mentioning the name of a deceased person and accordingly I do not otherwise refer to his name. 2 The offender, Beryl Anne Mercy, has pleaded guilty to the manslaughter of Berrin Dean Charles on 12 February 2003, with whom she was then living in a de facto relationship. The deceased died from a wound inflicted by the offender with a kitchen knife to the left back of his chest. 3 The circumstances of the wounding, though not completely clear, are not controversial. The offender and the deceased, who are both Aboriginal, had known each other for almost twenty years, having had a brief relationship when the offender was nineteen years of age. She will be forty years old in six months time. As a result of that relationship, the offender and the deceased had a daughter Neesha. Thereafter they continued with a platonic and casual friendship over the ensuing years until about nine months or so before the deceased was killed, when they commenced living together in a de facto relationship. The offender had left a longstanding relationship of some fifteen years with a Mr Paul Johnston, to whom she had four children, to live with the deceased. Despite this Mr Johnston, who had continued to look after the children, has said that he would be prepared to resume a family relationship with the offender when she is free. It is important to note that although the offender left her children in Mr Johnston's care whilst living with the deceased, she visited them frequently and often stayed with them for two or three days at a time. I do not doubt that she very much cares for them, and that her separation from them is painful for her. 4 It is clear that the offender has had a serious drinking problem for many years and that it became very much worse when she resumed living with the deceased. She said to Ms Danielle Castles, the Manager of the Client Assessment and Referral for the Legal Aid Commission, who prepared a psycho-social report for the purpose of these proceedings, that she started to drink daily, and was "blacking out all the time with Benny, all the time in the day and all." 5 Part of the difficulty with determining the events immediately preceding the fatal wounding is that both parties were drunk at the time. The deceased had a blood alcohol reading of well over .232 grams per 100 millilitres of blood, and the offender was also significantly affected by alcohol, although not to the same extent. 6 The relationship between the offender and the deceased was not only characterised by excessive drinking, but after some months, by physical abuse. The detail of this abuse comes from primarily from what the offender told Ms Castles, but she confirmed it under oath in this Court, and she was not cross-examined to suggest that she had not told the truth. Mr Bruce of counsel for the offender did not take her through the details. I draw no adverse inference from this. To require any woman to give detailed evidence of material of this character in an open court room must cause considerable embarrassment and distress. To do so to this particular witness, even more so, especially when the deceased's close relatives are in the public gallery. I do not intend by this observation to imply any criticism at all. Of course, the family and friends of the deceased will in the ordinary course of things wish to be present at proceedings of this kind. At the same time, their presence may well place constraints on the way in which evidence is adduced, especially where that evidence is emotionally laden and implies some criticism of the deceased. 7 The temptation, indeed the need, to justify or at least explain the criminal use of lethal violence in a case like the present, is a strong one, and it is necessary to approach with some scepticism unsupported allegations of violence on the part of the deceased made by an offender. I should say, however, that I thought the offender was candid and truthful in her evidence, and in some respects, her accounts of the deceased's jealous anger and violent behaviour is supported by independent witnesses. 8 I do not intent in these reasons to set out in detail the offender's account of the deceased's abusive behaviour toward her. It involved not only frequent violence and threats of violence but also verbal abuse. She was asked by Ms Castles if she tried to leave the relationship and she replied: "A lot of times. When he wasn't around me I got that way (I thought) he was spying on me. I was so scared. He said 'Don't you ever talk to anyone, I'll find out, I'm watching you.' He said if I left him he would hang himself on a tree with my name on him. I thought to myself 'no way, I can't let him do that.' I always blame myself. Today I still blame myself. I would wake up with a black eye or busted mouth. I would say 'I am going to do everything he says', so I wouldn't get hit. Then at night he would make accusations and it would start."

Mr Johnston has confirmed one occasion when the offender was hit by the deceased when she attempted to leave him, and fled to his house. 9 During the two weeks allegedly prior to 12 February 2003, the offender and the deceased were living with a mutual friend, Tracey Grant, and her three young children. Ms Grant described the couple's relationship to police in her statement as follows: "Berrin drinks alcohol every day, he is a heavy drinker. Alcohol makes Berrin jealous about Beryl. I would describe Berrin as a violent person. I have not seen Berrin assault Beryl. I remember an occasion last week when Berrin came to my place, he was banging on the door and I noticed that his fingers were cut. Berrin said 'Look what I have done to Beryl' and he showed me his fingers. Beryl came running down to my place from the Mission. Beryl said 'Look at what he has done to me.' I took this to mean that Berrin had hit her. I had a look at Beryl and noticed her two lower front teeth were knocked into her mouth. Beryl's mouth was bleeding. I reported this matter to the Police and the Police attended my house. Beryl spoke to the Police at my house. Beryl later had to go to the dentist and have two teeth taken out. Berrin gets verbally abusive towards Beryl when he is drunk, he sort of plays mind games with her and he talks under his breath to Beryl. He would pull her aside and have conversations with her away from everyone else. Berrin did not like to let Beryl out of his sight." 10 Ms Grant said that on 11 February 2003, the offender had been drinking for most of the day and into the night, with friends and family. He was also smoking cannabis. The offender came in the afternoon and was drinking as well. Ms Grant was so affected by alcohol, however, that she was unaware that the deceased had been stabbed. The persons who were in the house at the time and who made statements to the police were also considerably affected by alcohol. A Mr Close mentions an argument between the offender and the deceased that appears to have been instigated by the offender. He said both of them were drunk. He went into the back yard with a flagon to get away from them. He was told of the stabbing afterwards by one of the other witnesses. 11 Mr Mitchell Hoskings was also present that day but left in the late afternoon. He told police that he had seen the deceased assault the offender on a number of occasions. He said that when he was leaving, the two were arguing over the children, but declined to tell police what was said. He thought that at that time they were still sober. 12 Mr Edward Hoskings knew the offender and the deceased for many years. He said that they often argued. He had been in the group that day but went to bed about 7 o'clock. He woke to voices yelling in panic and was told that the offender had stabbed the deceased. It seems that he did not recall any argument that afternoon or evening. 13 The offender's daughter Neesha, had gone that day to the house with her mother to see the deceased, her father. They arrived, she told police, about midday. Her father was, as she described it, "already charged up when we got there." She and her mother were drinking beer. As Neesha recalled the events, the offender told her she was going to bed and went into the bedroom she shared with the deceased where the deceased then was. Neesha heard them arguing. Her mother came out to the kitchen where Neesha was and accused the deceased of sleeping with another woman, as Neesha recalls what she said. The offender grabbed something off the top of the sink and went back to the bedroom. Shortly after, Neesha heard her father yelling, "I think in pain". She walked to the bedroom and saw him lying on the floor at the end of the bed. He was on his side and she saw blood on his back. The offender was standing next to him not saying anything. Ms Grant came in and picked up a knife from the floor. An ambulance was called almost immediately and attended about 10 minutes later. The records show that the call was made just after 12.30am on 12 February. The deceased's condition was obviously serious, and he deteriorated whilst being taken to hospital. He died about two and a half hours later. 14 In the result, it appeared the deceased died from blood loss, mainly from a lacerated spleen. I should mention that it is clear from a neighbour's statement that the offender and the deceased were having quite a loud and heated argument for some time before the final confrontation. 15 It is necessary to consider the statements of the witnesses with considerable care, having regard to their relationship with both the deceased and the offender, and the fact that they were Aboriginal and were speaking to police officers. 16 The offender was interviewed by police at about 3.40am on 12 February. Her account is essentially that she and the deceased were having a pleasant evening when he started to abuse her calling her names, which I do not think it necessary to quote, and making accusations of sexual misbehaviour. When they went to the bedroom this continued and the offender punched his face. Although as I have mentioned, her account is not altogether clear, it seems that the deceased grabbed the offender's singlet and at the same time attempted to close the door. The offender said that he did this when he intended to assault her. She said that she managed to escape after several attempts. She went to the kitchen and saw the knife. She said, "And I thought, "Well I'll just teach him'." The offender grabbed the knife and returned to the bedroom intending, she says, to scare the deceased and to "show him that I wasn't afraid of him because he was always bashing me around". The offender described what happened in this way, after having said that she had the knife in her right hand and was walking down the passageway to the bedroom: "Q. And when you were walking down there, what were you intending to do? A. Nothing, absolutely nothing. Q. When you entered the bedroom Berrin was laying on his side? A. Yeah Q. Still laying on the ground? A. Yes. Q. All right, can you tell me what you did then? A. He was laying there looking at me and he just said 'What are you doing?' and I said 'Why are you jealous of me Benny?' Q. Sorry? A. He said 'What are you doing?' Q. Yes? A. I said 'Benny why are you jealous of me?' He didn't say nothing. I said 'I'm sick of you hitting me all the time' and he just said, 'You deserve it' so I got the knife and put it up and I tapped him with the knife, just tapped him and I felt it go in. Q. Where did you think you'd get him? A. In the back I knew. Q. Okay in the back, whereabouts in the back? A. Um, on his left side, I think just below his shoulder blade. Q. So did he have his back turned to you when you stabbed him? A. No, he was lookin' at me. Q. Yes, so he's still laying on his side? A. Yeah, and I said 'I'll stab you', he just looked at me and said 'Do it, do it.' I wasn't going to do it. Q. Okay so when you hit him with the knife, what were you intending to do? A. I only wanted to frighten him. I didn't think the knife would go in because it had no point on it. I didn't think it would go in. Q. But did you want to hurt him with the knife? A. No, no because it had no point, it was just round, I thought it was blunt and I didn't think the knife would go in him. Q. How hard did you hit him with the knife? A. It wasn't hard, I just, just went in like that. Q. OK. So after the knife went in did you pull it back out? A. Yes. Q. And it's then you noticed is it that it went in? A. Yeah."

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.

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