She said she was then putting logs on the fire and she heard Wayne in the kitchen. She was crouched down at the fire. She then saw Wayne behind her with a knife. She said, He said I've fucking had it', I was stunned. He was ranting and raving. I wasn't drunk. I stood up, it probably only took about two seconds, he was on me, he had me around the throat, he was pushing back into the flue and he was choking me. One hand on my throat..."
"She said she was pushing one of his hands back, the hand he held the knife in. She said she moved her right hand back and it picked up an iron and she hit him on the back of the head with it. She said nothing happened initially so she hit him on two further occasions. She said she could feel his arm slacken. She stated, `They reckon he was hit multiple times (but) I can only remember three.'"
36 An even more detailed and vivid history is given in the full Phlan-Williamson report (Exhibit 2).
37 Although the offender herself did not give evidence before me, these uncorroborated versions contained in the history generally accord with the facts I find established in relation to the circumstances of the deceased's death. There are of course inconsistencies between a number of the versions the offender has given but the substance remains generally the same.
38 In particular I am satisfied beyond reasonable doubt that the deceased had a knife in his hands at the commencement of the argument and assault. I am also satisfied to the requisite degree that it was the apprehension of the offender that she was under threat from the knife. This finding means that I reject the Crown submission that in fact the deceased was not holding a knife during the scuffle between the two participants. It is true that one version given by the offender suggests that when she came to her senses the knife was in the kitchen block. This statement and the ambiguities it reveals must remain unresolved, however, as I am satisfied that I can place reliance on the fact that in every version of the history given by the offender the deceased's possession of the knife played a significant part.
39 On the other hand, the Crown has submitted, and I accept, that it has been demonstrated beyond reasonable doubt that the circumstances in which the offender buried the deceased's body and concealed the fact of his death for a considerable period of time constitute aggravating circumstances. This treatment of the deceased's body, and for that matter his family, was callous and indifferent and designed to protect the offender from discovery. Certainly these actions do not demonstrate remorse or concern for her late partner, at least at that point in time.
40 I am required by s 21A of the Crimes (Sentencing Procedure) Act 1999 to take into account both the aggravating and mitigating factors set out in that section of the Act. The list of such matters of course is not exhaustive. In addition to the matter that I have found I also take into account as an aggravating matter proved beyond reasonable doubt that the offence involved the actual use of violence, including the use of a domestic iron as the weapon or vehicle for the infliction of that violence.
41 I shall turn in a moment to consider the offender's subjective features and the submissions that have been made in relation to factors in mitigation. Before doing so, however, it is necessary for me to refer to the Victim Impact Statements. I have been supplied with brief statements by Thelma and Douglas Williams, the parents of the deceased; and with a statement from Michelle Williams, the sister of the deceased. Though the statements are brief they inform the Court tellingly of the profound and significant effect this tragic and unnecessary death has had on the members of the family. It is my earnest hope that the opportunity to express these very deep felt matters of grief and loss may help in some way to assuage the tragedy that has befallen the members of this family.
42 I do not, however, consider that it is appropriate to have regard to the contents of those statements in determining the sentence to be passed. (See s 28(4b) of the Crimes (Sentencing Procedure) Act 1999; Regina v Previtera (1997) 94 ACR 76; Bollen v Regina (1998) 99 ACR 510).
43 I should make it clear that this material was not admitted for the purpose of increasing the penalty otherwise appropriate to the crime and has not been taken into account or used by me to aggravate the severity of the crime.
44 I turn now to the offender's subjective circumstances. The offender was born on 15 April 1961. She is now 42 years of age and she has been in custody since 8 June 2002 when she was arrested. She came from a good family, her father being a professor of chemistry who now lives in Tasmania. She was brought up in Lane Cove, although her parents were divorced when she was about 11 years of age. In Exhibit "D" she is reported as having said that her childhood was a happy one and that her parents had been loving, kind and generous.
45 Although her father was "a high achiever" she became bored at school and left at the age of 14. This was despite the fact that she was doing quite well at her schooling. She moved out of home when she was 15 because she wanted independence. She took up with a young man, Dean Edmondson, and moved into his home when she was about 17.
46 At a very early stage after moving out of home the offender developed an alcohol and drug dependence. Her alcohol abuse took the form of bingeing on spirits. Her criminal history records a number of drink driving offences, which corroborate this alcohol problem. Although she was for a time also dependent on cannabis and heroin this addiction ceased when she was about 25.
47 On leaving school she held a number of employments including working as a restaurant hostess and she operated a natural beauty clinic. She worked in a bakery for 4 years but last worked in a job in 1996.
48 She has had two significant relationships, the first with Mr Edmondson, from whom she was divorced when she was about 32. He obtained custody of their child, Corey. She reported to Dr Westmore that there was occasionally violence in that relationship and that he had tried to choke her and would pull her hair. I have also read the statement taken from Mr Edmondson, which puts rather a different light on the relationship and suggests that there were mutual differences between them principally because of her alcohol abuse and controlling nature. From that relationship there were five pregnancies, one live birth and one termination. Corey is now aged about 14.
49 The second relationship was with the deceased. She met him in about 1996. Exhibit "D" contains a report which suggests that she told the social worker that meeting the deceased gave her a purpose in life, "she started to enjoy life again and started getting a bit of sanity back into her life." She told Dr Westmore the deceased never worked but just drank and gambled.
50 From that relationship there were two live births, although she had five pregnancies in total to him. The two children were Sharmaine, presently aged 5, and James, who is 2 years of age.
51 Exhibit "F" is an affidavit of Tina Macri, the child protection case worker with the Department of Community Services at Batemans Bay Community Service Centre. This provides a detailed history of the complex and troubled relationship between the offender, the deceased and the children. It covers a period between 1998 and February 2002. There have been a number of occasions when it has been necessary for the Department of Community Services to intervene particularly in relation to the welfare of the children.
52 I am satisfied beyond reasonable doubt, having read all this material, that a great part of the problem which has arisen in this family context has been due to the offender's alcoholism and her behaviour when affected by alcohol. It seems that the deceased has also had problems with alcohol from time to time, although these appear to have been more in reaction to his partner's alcoholic bingeing rather than as a consequence of any alcoholic dependence on his part of a high order.
53 In her meetings with Dr Westmore the offender has readily admitted that she has had a binge alcohol intake pattern for the last 15 years and has detoxified "too many times". None of the previous treatments have helped her. She also described some troubled aspects of her relationship with the deceased. She said, "He would give me such a hard time". She complained that the deceased had been verbally and physically violent towards her on numerous occasions over an extended period of time. She also complained that he was unsupportive when the children required care and he was a chronic gambler and heavy drinker. On the other hand she said that there were occasions when they had a good relationship and they did many things together and he taught her a number of things. She acknowledged that she loved him and she misses him at this time.
54 There were a number of specific events, according to the Westmore history, which occurred quite shortly before the death of the deceased. Dr Westmore described these as, "A number of significant negative life stressors".
55 She had a pregnancy terminated because of development problems with the foetus. The deceased was, according to her, unsupportive during that time. He was unwilling to care for the children. After the termination of the pregnancy she had to travel home by bus as the deceased would not collect her from Canberra.
56 When driving back to Canberra to pick up her son she was involved in a motor vehicle accident and was unable to drive her car. She was stranded in town, her children were looked after by her sister-in-law. She got drunk that night and the following day her sister-in-law reported her to the police when she attempted to drive her car CH. She was charged with a DUI matter. The criminal history confirms that this was so. DOCS then became involved and the children were taken from her care.
57 When she returned home the deceased was in the process of leaving her and he may have had another female friend in his life at that time. According to her, he did in fact leave her and she reported becoming tearful and depressed and had an episode of drinking. However, the offender maintained to Dr Westmore that at the time of the death of the deceased she was not drinking but that he was intoxicated.
58 It was Dr Westmore's opinion that the offender had many features of a battered woman. Secondly, he thought that she was significantly depressed at the time of the death of the deceased. Thirdly, he thought that when she was threatened with a knife by the deceased, and when he attempted to choke her, she would have at that time experienced acute and intense emotions of fear, anxiety and apprehension.
59 For these reasons Dr Westmore expressed the opinion that at the time the death occurred the offender was suffering from a depressive illness complicated by acute fear and anxiety. He thought this mental condition would have substantially impaired her capacity to control her behaviour in relation to the deceased.
60 Finally, Dr Westmore expressed the opinion that the offender appeared to have suffered many years of psychological trauma not only because of her relationship with the deceased but because of her very troubled obstetrics history.
61 A summary report from Marianne Phlan-Williamson (Exhibit 2) provides further insight into the offender's condition both at the time of the offence and at the present time. This psychological assessment summary points to a number of matters. First, the author of the report expressed the opinion that the offender was suffering symptoms of chronic alcoholism, acute postnatal depression and battered wife syndrome.
62 In connection with the second matter, the report highlights the history of eight unsuccessful pregnancies during her life culminating in the termination very shortly before the time of the killing. All the dead babies were christened, named, nursed and buried by the offender, although she did not receive grief counselling or treatment for consequent depression in any of these instances.
63 The report suggests that the pattern of drinking changed following the trauma of her first miscarriage in 1986. (Exhibit "D", however, suggested that she was binge drinking prior to this time and was already in the grip of an alcohol and drug dependence at an early stage). The report (Exhibit 2) gives some brief detail of assertions of violent and threatening behaviour by the deceased towards the offender. The difficulties of this relationship were described as underlying the ultimate incident in which the deceased met his death.
64 The offender apparently expressed remorse to Ms Phlan-Williamson, especially in relation to the fact that she had hidden the body and not contacted the police immediately. She said that she had no trust in the police as she still had the mage of her screaming children being taken away in Canberra following the termination procedure, and being booked by the police for driving whilst intoxicated.
65 The final portion of the summary looks at the offender's present position while in the Mulawa Correctional Centre. It appears the offender has benefited from the counselling sessions she has undertaken. She has, of course, been free from alcohol for over a year and has been studying a theology course. She has expressed a desire to attend further counselling and therapy to assist in her recovery from past alcoholism and depression. She is keen to recover her children and nurture them.
66 This summary was supplemented by the tender of a full report from Ms Phlan-Williamson. It is also part of Exhibit 2. It contains the results of the extensive assessments carried out on the offender by the psychologist. Generally these confirm the offender's average abilities in relation to most of the tests carried out although she has above average abilities in some areas. The report suggests the possibility of brain damage as a consequence of alcohol abuse but otherwise agrees with the opinions expressed by Dr Westmore.
67 There is a further report from Kylie Fogarty, an alcohol and drug worker at the Mulawa Correctional Centre dated 7 July (Exhibit 3). This report comments on the offender's good progress through the intervention program at Mulawa. She is reported as having demonstrated considerable insight into her own problems and has completed a relapse program. Ms Fogarty predicts the offender's ability to remain alcohol free in the community as "overly promising". She recommends that the offender should receive community and church support in the way of further counselling and alternative coping skills.
68 What then are the findings that may be appropriately made in this offender's favour, having regard to this extensive body of expert evidence?
69 First, I accept that the offender was suffering from a depressive illness at the time she struck and killed the deceased. It seems perfectly clear on the evidence that this depression had its source in the tragic history of a number of unsuccessful pregnancies.
70 Moreover, the bouts of postnatal depression were never addressed or treated. This depression state could only have been worsened by the constat cycle of binge drinking and alcoholism on the offender's part which occurred throughout the relationship with the deceased. The events leading up to the violent argument on the day of his death undoubtedly exacerbated the offender's depression. The loss of the children, the drink driving charge, and the abandonment of her by her partner would have plunged the offender into a deep sense of depression and anxiety.
71 Secondly, I accept Dr Westmore's suggestion that at the time she was threatened by the deceased, the offender at that time had experienced acute and intense emotions of fear, anxiety and apprehension. In this context, her reactions, though markedly excessive, were not planned or premeditated.
72 I am less confident that it has been shown that the offender was suffering from organic brain deterioration at the relevant time. Miss Plahn-Williamson referred to this as "a possibility" in her report and I am not satisfied on the probabilities that such brain damage was in existence. The assessment results administered by the clinical psychologist place the offender in an average context on all tests except in some areas where the performance is in fact above average.
73 Moreover, I am not satisfied on the probabilities that the offender was at the relevant time exhibiting the responses and features of battered woman syndrome. There is a considerable body of evidence before me which deals with the relationship between the offender and the deceased. I have paid particular regard to Exhibits 4, 5 and 6 as well as to the detailed reports and the oral evidence of Miss Macri Exhibit "F". I accept that there were on occasions violent actions by the deceased towards the offender but I do not accept that this was generally the situation between them. Rather, I am satisfied that violent actions and behaviour on the part of the deceased towards the offender were rare occurrences.
74 The deceased was of course placed on a bond in May 2000 for an assault in April 2000. The facts of that incident demonstrate quite plainly that the offender in turn assaulted the deceased during the incident. There have been no verified assaults since that time and I have been unable to find any substantial body of objective evidence which would satisfy me that the relationship between these two people resulted in the offender being appropriately classified as a battered woman.
75 It is true that the offender described herself as having been the subject of verbal and physical violence at the hand of the deceased in the history she gave to the psychiatrist and the history given to the clinical psychologist. The offender, however, gave no evidence before me. In my view, very little weight can be attached to these histories in the absence of either evidence from the offender or from other persons which corroborate the assertions.
76 Mr Healey correctly pointed to three witnesses statements where there was a reference to some violence on the deceased's part. My overall impression from the whole of the evidence however is that he was not a violent man and that, as I have said, violence on his part towards his partner, although undoubtedly it occurred from time to time, was not a normal part of their relationship.
77 Ms Macri's evidence was telling in the respect. The objective medical evidence generally did not support the offender in the regard. In fact, it rather tended to point in the opposite direction.
78 That said, there is no doubt that the deceased acted in a violent way towards the offender on the day he met his death. No doubt he was at the end of his tether just as she was so far as the extent of her depression was concerned.
79 Finally, I accept that despite the sad and tragic life the offender has led there are prospects for her rehabilitation. She has done well in the correctional centre and the prospect of counselling and supportive therapy when she is released from custody give me cautious hope that she may recover from her past alcoholism and her depression and resume her role as a compassionate mother.
80 I turn now to consider the submissions of counsel and to assess the totality of the case in order to determine an appropriate sentence. The offender has some prior criminal history but none of it, in my view, is of any relevance to the sentence I should impose. This history merely confirms the background of problems the offender has encountered from time to time as a consequence of her alcohol abuse.
81 The essential submission that has been made by Mr Healey on behalf of the offender is that she should receive a non-custodial sentence. In that context, Mr Healey has referred me to the decision of Buddin J in Regina v Yeoman [2003] NSWSC 194 per Buddin J unreported 19 and to a schedule which accompanied that decision. There was also an earlier decision by Newman J in Regina v Woolsey (NSWSC unreported 19 August 1993 per Newman J). These were cases where the Court in effect found exceptional circumstances, refrained from imposing a custodial sentence and imposed a bond in situations which had some similarity to the present case.
82 There are undoubtedly a number of cases where women especially have been spared the imposition of a custodial sentence in instances of a domestic dispute involving the death of a partner. On the other hand, I am well aware that there are many other cases where manslaughter has occurred during a domestic argument but where the Court has imposed sentences that have ranged from four to six year full-time custodial sentences.
83 I am also aware that statistics are available in relation to manslaughter sentences generally although it is plainly the fact that, particularly in relation to the crime of manslaughter, statistics from the Judicial Commission must be approached with caution. This is so because each case must be very carefully analysed on its own facts and circumstances. Additionally, it is necessary to bear in mind that, in the case of manslaughter especially, neither a consideration of statistical information nor an examination of results in other decided cases illuminates in any decisive manner the decision to be reached in a particular case.
84 I have read carefully, however, the cases that have been submitted to me by counsel for the offender and I have examined closely the schedule which was referred to in Yeoman's case. Some of those cases I am familiar with.
85 I regret to say that I have come to the conclusion that I am unable to conclude in the present matter that a non-custodial sentence is appropriate. My reasons briefly stated are these. First, although there are similarities between a number of matters appearing in the present case and the two cases and the schedule to which I have referred, there are also differences.
86 The first matter of importance, it seems to me, is that the force demonstrated by the offender's actions was, as I have said earlier, markedly excessive. The deceased was struck five times with the iron and received five quite significant wounds. Any one of these blows would have been likely to stun and deter the deceased. The offender, however, continued her attack upon him until he apparently fell to the ground.
87 Secondly, I do not think that the offender demonstrated any remorse whatsoever at the time or shortly after the killing. She did not seek to obtain assistance for the deceased and, as I have said, treated his body callously by abandoning it and later burying it unceremoniously in the backyard.
88 Moreover, she concealed the fact of his death from his family, interested people and from the authorities and pretended that he was still alive and well.
89 Thirdly, this indifference to the deceased and, for that matter, to those who might wish to have mourned for him, is a significantly aggravating matter. Had it not been for the persistence of the police, the body may well have never been recovered.
90 There is another important reason why exceptional circumstances do not exist so as to warrant the imposition of a non-custodial sentence in the present case. This relates to recognition of the principles which have long been recognised in manslaughter cases. These principles are set out in Regina v McDonald NSW CCA unreported 12 December 1995. The Court there comprised Gleeson CJ, the President Justice Kirby and Hunt CJ at CL. The passage which is often quoted is in the following terms at page 8:
"In a case such as the present, it is important to bear in mind the denunciatory role of sentencing. Manslaughter involves the felonious taking of human life. This may involve a wide variety of circumstances, calling for a wide variety of penal consequences. Even so, unlawful homicide, whatever form it takes, has always been recognised by the law as a most serious crime. (See Regina v Hill (1981) 3 A Crim R 397 at 402.) The protection of human life and personal safety is a primary objective of the system of criminal justice. The value which the community places upon human life is reflected in its expectations of that system."