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[2003] NSWSC 627
plaintiff. Scott was sentenced to five years’ imprisonment, with a non-parole period of two years six months commencing on 8 June 2002 and expiring on 7 December 2004; the judge made recommendations about...
Scott killed her partner during a confrontation in which he had a knife. The judge accepted that she acted in fear and self-defence, but found that the repeated blows with an iron went far beyond what was needed. Her depression, alcohol dependence, fear, guilty plea and prospects of rehabilitation all mattered, but the judge also treated the concealment of the death and body as serious aggravating features. The result was five years' imprisonment, reduced from a six-year starting sentence by 15 per cent for the guilty plea, with a non-parole period of two years and six months.
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In Regina v Scott [2003] NSWSC 627, Whealy J sentenced Cheryl Ann Scott for manslaughter after the Crown accepted her guilty plea in satisfaction of a murder indictment. The plea was accepted on the basis of excessive self-defence. The judge stated that the facts supported that basis ([1], [5]).
No linked legislation citations have been extracted yet.
Scott and Wayne Williams had lived together as de facto partners for several years and had two young children. The judgment records Scott's longstanding alcohol abuse and Williams' wish to end the relationship because he could no longer tolerate her drinking ([7]). The couple's relationship and family circumstances were affected by alcohol problems, child protection involvement, and recent events that included the termination of a pregnancy, Scott's drink-driving incident, the children being removed from her care, and the breakdown of the relationship ([51]-[57]).
The judge found that Williams had a knife at the start of the fatal argument and that Scott apprehended a threat from it. That finding rejected the Crown's submission that Williams did not have a knife during the scuffle ([38]). Scott struck Williams repeatedly with an iron. The post-mortem established blunt force head injury as the cause of death ([23]-[24]). The judge found that Scott was acting in apprehension of her safety but responded with excessive force and violence ([34]).
The events after the killing were central to the sentence. Scott arranged for a hole described as “grave size” to be dug, gave an explanation involving dead peacocks, and concealed Williams' death from his family, others and the authorities ([11]-[18], [39], [87]-[89]). The judge characterised the treatment of Williams' body and the concealment as callous and aggravating ([39]).
The sentence hearing included psychiatric and psychological evidence. The judge accepted that Scott was depressed and had experienced acute fear, anxiety and apprehension at the time of the killing, and accepted that the response was not planned or premeditated ([69]-[71]). But the judge was not satisfied that organic brain deterioration or battered woman syndrome had been proved on the applicable standard ([72]-[77]). Scott also had a longstanding alcohol problem and had made progress in treatment while in custody ([46], [65], [67]).
Whealy J concluded that a custodial sentence was required. The sentence was five years' imprisonment after a 15 per cent discount from a six-year term for the guilty plea. The non-parole period was two years and six months, backdated to 8 June 2002 ([100]-[104]).
The judge's reasoning balanced the circumstances of the offence against the offender's subjective circumstances. The starting point was not that Scott had acted without provocation or in a wholly unprovoked attack. The judge found the deceased had a knife and that Scott feared a threat. At the same time, the judge regarded her use of force as markedly excessive. He found she struck Williams five times with an iron, causing five significant wounds, and continued until Williams apparently fell ([86]). These facts supported a serious assessment of the offence even though the plea was based on excessive self-defence.
The judge gave weight to the lack of planning. He accepted that Scott's conduct occurred in a context of depression and acute fear and was not premeditated ([71]). That reduced her culpability relative to a planned killing. It did not, however, make the offending suitable for a non-custodial sentence in the judge's assessment.
The post-offence conduct weighed against leniency. Scott did not seek assistance for Williams, concealed his death and misled people about what had happened. The judge found the concealment was designed to protect Scott from discovery and showed indifference to Williams and to those who might have mourned him ([39], [87]-[89]). This was treated as distinct from the force used in the confrontation and as an aggravating feature of the sentencing assessment.
The judge also considered denunciation and general deterrence. He referred to the serious character of unlawful homicide and the need for sentencing to recognise the value of human life ([90]-[96]). He accepted that personal deterrence was not needed because he was satisfied Scott would not offend in that way again, but concluded that general deterrence required reinforcement ([95]). The resulting sentence was not based only on deterrence: denunciation, the repeated violence, and the concealment also featured in the reasons.
Scott's personal circumstances were substantial. The judge accepted the depression, the acute fear and anxiety, the effects of the recent loss of her children and relationship, and the prospect of rehabilitation ([69]-[71], [79]). He also accepted that special circumstances existed and considered that Scott could benefit from lengthy parole supervision and treatment ([97]). Those matters informed the sentence and non-parole period, but did not overcome the other features of the case.
The judge addressed the victim impact statements separately. Although he recognised the family's grief, he said he did not use the statements to determine the sentence or increase its severity, referring to s 28(4b) of the Crimes (Sentencing Procedure) Act 1999 and Previtera and Bollen ([41]-[43]). The statements therefore formed part of the hearing material but not an aggravating basis for the penalty.
Finally, the guilty plea attracted a numerical discount. The judge assessed a six-year sentence before discount, treated the plea as having utilitarian value and as facilitating the course of justice, and reduced the term by 15 per cent to five years ([98]-[100]). The special circumstances and backdating were then reflected in the non-parole period and commencement date ([101]-[104]).
This is a first-instance sentencing decision, not an appellate judgment that reformulated the law of manslaughter or excessive self-defence. The judgment records a guilty plea accepted on an excessive self-defence basis, then applies statutory sentencing considerations and previously stated sentencing principles to the facts before Whealy J ([5], [40], [90]-[99]). It is best read as an example of how that judge balanced the particular offence and offender, rather than as a change in the legal test for self-defence or manslaughter.
The statutory provisions identified in the reasons were s 24 of the Crimes Act 1900, which the judge said set the maximum penalty for manslaughter at 25 years' imprisonment ([2]); s 21A of the Crimes (Sentencing Procedure) Act 1999, addressing aggravating and mitigating factors ([40]); s 22, which the judge considered in relation to the guilty plea ([98]-[100]); and s 28(4b), cited in the discussion of victim impact statements ([42]). The judgment does not set out the full text of these provisions, so this account is confined to the way Whealy J described and applied them.
The judgment cites earlier sentencing authorities. Regina v McDonald is cited for the denunciatory role of sentencing in manslaughter and the seriousness of unlawful homicide; the judgment reproduces a passage from that decision ([90]). Regina v Hill is cited in the same discussion of the seriousness of taking human life ([90]-[91]). Because the quoted language is from those other judgments, it should not be mistaken for new reasoning authored by Whealy J. Whealy J's own reasoning is his adoption of those principles in assessing Scott's case, especially at paragraphs 92 to 96.
The judgment also discusses Regina v Yeoman and Regina v Woolsley, which were relied on by the offender as examples of non-custodial sentences in cases involving a domestic dispute and a partner's death ([81]). Whealy J acknowledged similarities but concluded that differences in Scott's case, including the degree of force and the concealment, meant a non-custodial sentence was not appropriate ([85]-[89]). The decision therefore illustrates a fact-sensitive comparison, not a rule that those earlier outcomes must be followed or rejected in later cases.
The judgment does not establish the state of the law after 10 July 2003. It provides no later decisions or subsequent statutory amendments, so no claim about later legal developments can be drawn from this source alone.
At paragraph 34, the judge stated that Scott was “acting in apprehension of her own safety to defend herself” but “reacted with excessive force and excessive violence”. In plain English, the judge accepted the defensive context while finding that the violence went too far. That distinction is central to understanding why the plea was manslaughter on an excessive self-defence basis and why the sentence still had to account for serious violence.
At paragraph 38, the judge found that Williams had a knife at the start of the argument and that Scott apprehended a threat from it. This finding matters because it rejected a Crown contention about the facts. The judge also noted that Scott's accounts contained inconsistencies, but found the knife significant in every version of the history.
At paragraphs 42 and 43, the judge said the victim impact statements were not considered in determining the sentence and were not used to aggravate it. In everyday terms, the family statements could be acknowledged as expressions of grief, but they did not increase the penalty in this case.
At paragraph 83, the judge cautioned that manslaughter sentencing statistics and comparisons with other cases were not decisive because each case required careful analysis on its own facts. This explains why the existence of other cases with non-custodial outcomes did not settle Scott's sentence.
At paragraphs 86 to 89, the judge identified the repeated blows, lack of immediate assistance, burial and concealment as reasons against a non-custodial sentence. These paragraphs show how conduct both during and after the killing entered the sentencing assessment.
At paragraph 94, the judge said Scott's subjective circumstances were not strong enough to displace community expectations about punishment for taking a human life. In plain English, her difficult life, depression and other personal matters were recognised but did not outweigh the seriousness of the offending.
At paragraphs 100 to 104, the judge set out the arithmetic and sentence. The six-year term was reduced by 15 per cent to five years, with a two-year-six-month non-parole period. The judge also recommended ongoing psychiatric assessment and alcohol counselling and specified supervision and counselling conditions for parole.
The decision is most relevant as a sentencing example where a person is being sentenced for manslaughter on an accepted excessive self-defence basis, and the sentencing court must weigh a defensive context against a forceful response. Relevant similarities include a perceived immediate threat, fear at the time of the incident, an absence of planning, and evidence of significant mental health or personal difficulties. In Scott, the threat involved a knife, and the judge accepted acute fear, anxiety and depression ([38], [58]-[71]).
The decision is also factually relevant where post-offence conduct is said to aggravate the offence or the offender's culpability at sentence. Here, the judge considered the failure to seek help, burial of the body, concealment of the death and misleading accounts about Williams' whereabouts ([39], [87]-[89]). A case without those facts would not have the same aggravating features identified in this judgment.
The judgment may also be useful in considering how a court records and evaluates competing evidence about a troubled relationship. Whealy J accepted that Williams had acted violently on the day of the death but did not accept that the relationship generally involved violence at a level that established battered woman syndrome. He emphasised the absence of the offender's own evidence and the limited corroboration for some of her histories ([73]-[78]). This aspect illustrates that clinical labels and reported histories are not automatically accepted as sentencing findings.
The decision should not be treated as a sentencing tariff. Whealy J expressly warned against treating statistics and other case outcomes as decisive ([83]). Whether another case is comparable would depend on its established facts, plea basis, force used, post-offence conduct, personal circumstances and applicable law.
The supplied judgment contains no decisions after 10 July 2003 and therefore does not show how later courts treated Regina v Scott. It would be unsupported to state from this text that a later court followed, distinguished, approved or criticised it.
Within the judgment itself, Whealy J considered earlier authorities concerning victim impact statements, sentencing in manslaughter, and non-custodial outcomes in domestic homicide cases. These include Previtera and Bollen at paragraph 42, McDonald and Hill at paragraphs 90 and 91, and Yeoman and Woolsley at paragraph 81. Their presence shows the authorities Whealy J relied on or considered for the issues before him. It does not establish how any later court treated Scott.
For a reliable account of subsequent treatment, a researcher would need to examine later judgments and the history of the relevant statutory provisions. That material is not included in this judgment or the sources provided for this analysis.
The judgment resolves the sentence for Scott on the findings made at her hearing, but leaves broader questions outside its scope. It does not set a general threshold for when excessive self-defence should result in a non-custodial sentence. Whealy J said such cases would be rare and rejected a non-custodial outcome on these facts ([85], [92]); he did not state a complete test applicable to every future case.
The decision also does not quantify how much weight each factor carried in the final sentence. The judge identified the excessive force, concealment, personal circumstances, guilty plea and rehabilitation prospects, but did not allocate a specific portion of the sentence to each factor beyond the 15 per cent plea reduction ([86]-[100]).
The judgment's treatment of battered woman syndrome is confined to the evidence before it. The judge was not satisfied on the evidence that Scott displayed the relevant features, citing the limited objective support and the fact that she did not give evidence ([73]-[77]). The decision does not determine how evidence of that kind should be assessed in other cases with different expert evidence, corroboration or factual histories.
Likewise, the judge accepted depression and acute fear, but was not satisfied that organic brain deterioration had been established ([69]-[72]). The judgment does not determine how different medical evidence might affect culpability or sentence in another case.
Finally, the decision gives no later history of the sentence, parole or Scott's rehabilitation, and no later appellate consideration. It recommends treatment and supervision but does not report whether those recommendations were implemented or their effect ([103]-[104]). Any assessment of those matters would require sources beyond this judgment.
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CITATION : Regina v Scott [2003] NSWSC 627 HEARING DATE(S) : 07/07/03, 08/07/03, 09/07/03 JUDGMENT DATE : 10 July 2003
JUDGMENT OF : Whealy J at 1 DECISION : Sentence you to a term of 5 years imprisonment. I set a non-parole period of 2 years 6 months, which is to commence on 8 June 2002 and is to expire on 7 December 2004. The offender is to be eligible to parole on 7 December 2004. I recommend that during her time in prison, the offender should be provided with ongoing psychiatric assessment and treatment and she should receive counselling for alcohol abuse if that faclity continues to be available. The conditioons of parole are to include conditions as to supervision required by her depression and alcohol dependency; and as to counselling to promote her recovery from alcohol dependency.
CATCHWORDS : Plea to Manslaughter - Alcoholic - Excessive self defence LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Regine v Previtera (1997) 94 ACR 76 Bollen v Regina (1998) 99 ACR 510 Regina v McDonald (NSWCCA unreported 12 December 1995) CASES CITED : Regina v Hill (1981) 3 A CrimR 397 at 402 per Street CJ Regina v Cameron (2002) 187 ALR 65 Regina v Woolsley (NSWSC unreported 19 August 1993 per Newman J) Regina v Yeoman [2003] NSWSC 194 per Buddin J PARTIES : Regina v Cheryl Ann Scott FILE NUMBER(S) : SC 70092/02 COUNSEL : Mr L. Gray - Crown Mr T. Healey; Ms Gibbons - Offender SOLICITORS : Office of the Solicitor for Public Prosecutions, Wollongong - Crown Roach & Halligan - Offender
IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST
1 HIS HONOUR: Cheryl Ann Scott, whom I shall refer to as the offender, was indicted on 7 July 2003 before myself and a jury panel. The charge in the indictment was that the offender between 12 March 2002 and 3 April 2002 at Moruya in the state of New South Wales did murder Wayne Robert Williams. To this charge the offender pleaded not guilty to murder but guilty of manslaughter. The Crown accepted the plea in satisfaction of the charge in the indictment. 2 The maximum penalty for the offence of manslaughter is imprisonment for 25 years (s 24 of the Crimes Act 1900). 3 Submissions and evidence were taken on both 8 and 9 July and the matter was adjourned until today for sentence. 4 I am required to find the facts relevant to sentencing. It is necessary that the facts I find must, so far as they relate to findings of fact against the offender, be findings arrived at beyond reasonable doubt. The onus of proof going to matters of mitigation is on the offender, who must establish such matters on the balance of probabilities. 5 There is substantial agreement between the Crown and Mr Healey of Senior Counsel, who appears on behalf of the offender, as to the basis of the manslaughter plea. The plea has been proffered and the Crown has accepted the plea on the basis of excessive self-defence. For reasons that I will state I accept and agree that the facts fully support the proposition that manslaughter occurred on this basis. 6 The facts giving rise to the tragic circumstances leading to the death of Wayne Williams (the deceased) are, with one exception, not seriously in dispute. They may be briefly stated. 7 As at March 2002, the deceased and the offender had been living as de facto husband and wife for a number of years. They lived together at 25 The Anchorage, Moruya Heads, in a two bedroom transportable home situated on a block of about one and a half hectares. There were two young children of the relationship, Sharmaine and James. The offender had a long history of alcohol abuse. As at March 2002 the deceased had expressed to a number of persons the fact that he wished to end the relationship as he could no longer tolerate the offender's drinking problem. 8 Michelle Williams, the deceased's sister, had the care of the child James following the offender's hospitalisation in Canberra for a time in late February and early March 2002. On 10 March and 11 March Michelle spoke with her brother and with the offender by telephone about arrangements for picking up the child James. It was Michelle's understanding from these conversations that both her brother and the offender would travel to Canberra to collect James. 9 On the afternoon of 11 March the offender arrived at Queanbeyan without the deceased. The offender told Michelle that Wayne had left with a red-headed woman who had a red car, owned her own home and had no kids. The offender said the deceased had walked out saying: "I don't want the house or the cars or the kids. You can have them". 10 Thereafter Michelle did not see or speak with her brother again. No family or friend heard from him after that weekend. On 16 April 2002 Michelle reported her brother as a missing person to the Queanbeyan police station. 11 On Wednesday 3 April 2002 the offender arranged for Norman Hunt, a bobcat operator, to attend her home and dig a trench. On arriving at the premises Mr Hunt spoke with the offender and she indicated where she wanted the hole dug. When asked what the size of the hole should be the offender replied, "Grave size." 12 The offender said by way of explanation that she needed to bury two peacocks which had been killed by her stepson and then placed under the house. Mr Hunt noticed a putrid smell about the premises. As instructed he prepared a hole about two metres long, 800 millimetres wide and a metre deep. On completing the work he left. 13 After lunchtime in the afternoon of 3 April 2002 Rosemary Ruhl, the neighbour of the offender, saw her dragging a floral double sheet from the side of the house to the rear of the house and toward the pit which had earlier been dug by Mr Hunt. Mrs Ruhl saw that the sheet seemed to contain two large lumps of about equal size. Mrs Ruhl and her husband Franz came to the offender's aid. 14 The offender collapsed with her burden when still a short distance from the pit. Franz Ruhl went to her assistance and slid the bag into the hole. There was a putrid smell emanating from the bag. Mrs Ruhl had noticed a similar smell coming apparently from under the house when she had been at the offender's home the previous day. 15 An ambulance was sought and attended and the offender taken to hospital that afternoon. Mr Ruhl filled the hole in with dirt which had been stacked at the sides. 16 The offender gave the Ruhls to understand that the bag contained dead peacocks. She complained to Mrs Ruhl of the smell and said she had to shower repeatedly and would have to bleach the back verandah and stairs to get rid of the smell. 17 Asked about the deceased the offender said: "...He rang from Melbourne. He was very happy." In later conversations the offender told Mrs Ruhl that Wayne had spoken to her by telephone on a number of occasions. 18 On 29 May 2002 the offender was spoken to by plainclothes senior constable McPherson at Bateman's Bay police station when she was there on an unrelated matter. The offender told Mr McPherson she was living alone. She said the deceased was living with a red-headed woman in Queensland. He had been gone about three months. He called her and said he was in Queensland. Asked what it was that she had buried in the backyard the offender said it was two dead peacocks which had been killed by her stepson. 19 On Saturday 8 June police executed a search warrant at 25 The Anchorage, Moruya Heads. The offender was not at the home. A search of the house and outbuildings was conducted. 20 The hole was excavated and the decomposed body of a male was recovered. The body was wrapped in a blue and yellow doona cover and was situated face down, lying generally north/south, the head to the south. The body proved to be wrapped in layers. 21 At the outermost layer was the doona cover previously described. Beneath that a yellow blanket was wrapped immediately about the body. The head of the deceased was covered by a black plastic garbage bag. Located under the bag was a towel wrapped about the head. Beneath the towel was a vinyl type cover/bag also wrapped about the head. The head was immediately covered by a plastic shopping bag. 22 Tattoos could be seen on the body such that the police were confident the body was that of Wayne Williams. Subsequent fingerprint examination verified that fact. Dr David Rivett attended the gravesite, inspected the body and formally pronounced life extinct. 23 On 10 June 2002 Dr Paul Botterill, pathologist of the Department of Forensic Medicine at Glebe, conducted an autopsy upon the deceased. Dr Botterill concluded the cause of death to be blunt force head injury. 24 The autopsy findings included a total of five tears of the skin of the scalp, one with an associated break of the top of the skull and probable bleeding into the tissues of the brain. Further examination of the skull and cervical spine showed a linear fracture at the back of the skull. There were decompositional changes to the body consistent with many weeks post death interval and consistent with a period of burial. 25 Later that same day the offender was arrested. She declined to participate in an interview with police. The offender was refused bail and charged. 26 On Sunday 9 June the offender was overheard by two prisons officers, Messrs Feirer and Cross, talking to her daughter on the telephone. She was heard to say: "I was sick of him threatening me. I was sick of him bashing me" and, later, "I got sick of it. I just lost the plot." 27 In a telephone conversation with her former husband Dean Edmondson, on either Saturday 8 June or Sunday 9 June, the offender was asked: "Why did you kill him?" She replied: "I'm not going to have anyone threaten me." 28 On Tuesday 18 June at Westmead Hospital Mr Edmondson again spoke with the offender on this topic and they had the following conversation:
OFFENDER: "He was threatening me with a butcher's knife. He was going to kill me. He was trying to stab me".
EDMONDSON: "Is that how you killed him, you stabbed him?"
OFFENDER: "No, I hit him in the head with an iron."
EDMONDSON: "When you hit him the first time why didn't you just run?"
OFFENDER: "He had locked the doors and wouldn't let me ring or get away."
OFFENDER: "Because he was still viable." 29 The offender spoke with her daughter, Corey Edmondson, by telephone on Sunday 9 June. The offender said at one point: "I didn't mean it. He threatened me with a knife." 30 On Tuesday 18 June at Silverwater Corey Edmondson again spoke with the offender and the offender said: "He came inside and we were fighting and he hit me and he got a knife and held it to my throat and told me he was going to kill me. I lent backwards and grabbed the iron and hit him...He started stumbling and I hit him in the middle of his head. I went blank and I got a guy to come and dig a hole for peacocks. He dug the hole and I dragged him out there through the day and covered him up. The neighbour came and helped me fill in the hole." 31 In a telephone conversation with her sister-in-law Caroline Scott at a time following her arrest when she was detained at Westmead Hospital the offender had this conversation:
CAROLINE SCOTT: "Tell me as best you can what led up to what has happened. Did he die in the bedroom?"
OFFENDER: "All I can remember is that he was coming at me with a knife up the hallway and out on to the verandah. (She then said she picked up something.) I was trying to protect myself and I hit him. That's all I remember."
32 In response to a later query as to why she had buried the body the offender said: "You've never been in that situation before. I was so scared. I just panicked."
33 In a conversation with her father, Gordon Scott, at Westmead Hospital on 15 June the offender said: "Wayne was drunk and chased me around the kitchen with a butcher's knife. (To defend herself she had hit Wayne)."
34 The brief summary of the facts I have recounted plainly show beyond reasonable doubt that the offender, although acting in apprehension of her own safety to defend herself, reacted with excessive force and excessive violence to the situation.
35 In the report of Dr Bruce Westmore, which I shall refer to when describing the offender's subjective case in more detail, there is a history given which provides some further detail of the occurrence when the deceased was struck by the offender. In the course of that history the offender's version is in these terms:
"When she got out of the shower Wayne was there drinking bourbon. She said, He was pretty tanked, he wanted to know where the car was and where the kids were'. She told him of her difficulties including the history that DOCS had taken the children away. She said, He started abusing me, I could barely understand what he was saying. I was shocked and pissed off that he was there.' She said she told him she would ring the police.
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."
91 In Regina v Hill (1981) 3 A Crim R 397 at 402 Street CJ said: "In a case such as the present, where there is material justifying a degree of understanding and of sympathy towards the appellant, the task of sentencing is particularly difficult. It is necessary to evaluate the demands of the criminal justice system, the expectations of the community at large, the subjective circumstances of the person coming forward for criminal judgment, and the interest of society in protecting itself and its members from criminal activity amounting, as in the present case, to the taking of a life. Sometimes, as in the present case, the personal qualities of a victim of unlawful homicide will serve to focus attention upon this important aspect of sentencing law. This is not because the punishment for homicide varies according to the personal qualities and characteristics of the victim. Rather, the qualities of a particular victim may serve as a useful reminder of the quality of human life itself, and of all that is involved in taking it away." 92 It is very important, in my view, that these principles should not be devalued. There will undoubtedly occur, from time to time, a case where, after careful consideration, the Court comes to the conclusion that a non-custodial sentence should be imposed. Such a case will in the nature of things be rare. 93 I acknowledge the subjective circumstances of the offender are strong in the present case. Her life has been tinged with tragedy and alcohol abuse. There is a need to consider her welfare and that of her children, who are at the present time kept from her. She has, by her plea and by the statements made by her counsel on her behalf, demonstrated eventual remorse and contrition for her actions. 94 These subjective circumstances, however, are not so strong as to disturb the legitimate expectations of the community as to the nature of the punishment which should flow from, as occurred here, the taking of a human life. This is particularly where the death has happened as a consequence of an excessively forceful number of violent actions, notwithstanding that these occurred in the circumstance of self-defence and without planning or premeditation. 95 Finally, although there is no need for the sentencing process to provide an element of personal deterrence in the present case - I am quite satisfied that the prisoner will not offend in this way again - there is an element of general deterrence that requires reinforcement. 96 For these reasons the sentence to be imposed must denounce the offender's actions and must recognise the seriousness behaviour in action which has the consequence of taking the life of a valued human being. 97 Notwithstanding all that I have said, the circumstances that I have earlier outlined recognise that the level of culpability in the present case is not by any means at the highest level. The subjective circumstances of the offender are strong and it is not in issue that special circumstances exist in the present case. In my view, the offender would plainly benefit from a lengthy period of parole supervision with conditions requiring general and psychiatric counsel and the continuance of treatment for her depression and continued alcohol avoidance. 98 There is a need to recognise as well the offender's plea of guilty. See s 22 of the Crimes (Sentencing Procedure) Act 1999. 99 This plea has a utilitarian value. It demonstrates remorse and has "facilitated the course of justice"; Regina v Cameron (2002) 187 ALR 65. In all the circumstances it entitles the offender to a reasonable discount on the sentence to be imposed. 100 In my view, an appropriate sentence to reflect the various considerations I have outlined is a sentence of six years imprisonment. I propose to discount that sentence by fifteen per cent to reflect the value of the guilty plea. The sentence so discounted will be for a term of five years. 101 In setting a non-parole period I will take into account the special circumstances which I have found in the present case. The sentence will be backdated to 8 June 2002, the day when the offender went into custody. 102 Cheryl Ann Scott, I sentence you to a term of five years imprisonment. I set a non-parole period of two years six months, which is to commence on 8 June 2002 and is to expire on 7 December 2004. 103 The offender is to be eligible to parole on 7 December 2004. I recommend that during her time in prison, the offender should be provided with ongoing psychiatric assessment and treatment and she should receive counselling for alcohol abuse if that facility continues to be available to her. 104 The conditions of parole are to include conditions as to supervision required by her depression and alcohol dependency; and as to counselling to promote her recovery from that alcohol dependency.
Last Modified: 07/16/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Regina
Scott
(2002) 187 ALR 65
Scott was sentenced to five years’ imprisonment, with a non-parole period of two years six months commencing on 8 June 2002 and expiring on 7 December 2004; the judge made recommendations about psychiatric treatment and alcohol counselling in custody and specified parole supervision and counselling conditions.