R v DAWNEY [1999] NSWSC 944

New South Wales Supreme Court CITATION : R v DAWNEY [1999] NSWSC 944 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 70080/98 HEARING DATE(S) : 13/09/99, 14/09/99. JUDGMENT DATE : 15 September 1999

PARTIES : REGINA v Helga DAWNEY JUDGMENT OF : Barr J at 1

COUNSEL : Crown: M A Macadam QC Prisoner: C J Bruce SOLICITORS : Crown: D J Sanderson Prisoner: S M Tezjan CATCHWORDS : Criminal Law - sentencing - manslaughter - substantial impairment by abnormality of mind R v Engert (1995) 84 A Crim R 67 CASES CITED : R v Scognamiglio (1991) 56 A Crim R 81 R v Letteri, Court of Criminal Appeal 18.3.92 unrep DECISION : See paragraphs 72 and 73.

THE SUPREME COURT REVISED OF NEW SOUTH WALES COMMON LAW DIVISION AT GRAFTON

GRAHAM BARR J

Wednesday, 15 September 1999

70080/98 - REGINA v Helga DAWNEY

JUDGMENT 1 HIS HONOUR: On 13 September 1999 the prisoner Helga Dawney was called for trial for the murder on or about 25 August 1998 of her daughter Tenika Kristi Dawney. She pleaded not guilty of murder but guilty of manslaughter. The Crown accepted her plea in discharge of the indictment on the basis that if the matter had gone to trial the prisoner would have established the partial defence of substantial impairment by abnormality of mind, that is, that her capacity to understand events or judge whether her actions were right or wrong or to control herself was substantially impaired by an abnormality of mind arising from an underlying condition and that the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. 2 Since that was the first occasion on which the Crown had been prepared to accept such a plea in discharge of the indictment, the prisoner is to be taken as having pleaded guilty at the first opportunity. 3 The prisoner was born on 11 June 1969, the youngest of ten children of her mother. She grew up in a violent household. Her father was an alcoholic who beat his wife and children and behaved inappropriately with firearms. The prisoner was sexually assaulted by a brother when she was eight or nine years old. She was an anxious child. Her memories of home until she was thirteen or fourteen years of age are vague and unhappy. At that age she had a fight with her mother and ran away to live with one of her sisters. 4 She did not succeed at school and did not get on well with other pupils. She left unqualified part way through year nine. She did various jobs, none of them for any length of time. 5 She had a number of sexual relations with men, the first at fourteen years of age. When she was nineteen years old she lost a baby. She married at 23, but the marriage failed after two and a half years, apparently because the prisoner was unable then to have children. 6 Two weeks after the marriage ended she was raped by a man she had known for a number of years. 7 Some months later she was stabbed by yet another man. 8 During 1993 and again early in 1994 she had a relationship with Kenneth Robson, a man she had known since she was young. During the second period of the relationship Tenika Dawney was conceived. The relationship ended before the child was born on 22 September 1994. 9 The prisoner told Mr Robson that she was pregnant with his child, but he did not believe her. Even after the child was born, he did not accept that he was the father. He moved away from the area in the course of his work and did not return until 1997. 10 The prisoner was having a good deal of difficulty managing the child. She was easily irritated when the child cried and the child did not thrive. Officers of the Department of Community Services began to be concerned about her welfare and were instrumental in having the child fostered, first by a sister of the prisoner and her husband and then by others. Under the supervision of officers of the Department the child underwent an operation to correct a turning eye. 11 The prisoner did not always appreciate that others were acting in the child's best interests. She frequently attributed base motives to them and was abusive towards them. 12 In January 1996 the child was returned to the prisoner from Departmental care on condition that she underwent psychiatric assessment. Accordingly, she was seen by Dr Diana Hamilton. The prisoner told Dr Hamilton that allegations that she had neglected the child were without foundation, that officers of the Department were proceeding on baseless accusations and that neighbours, who had apparently complained about her conduct, were "morons". She described as manipulative the sister who had for a time fostered the child. 13 Dr Hamilton noted that the mood of the prisoner was irritable, angry and labile. She had limited frustration tolerance, was difficult to interview and generally unco-operative. She appeared of average intelligence. There was no evidence of psychosis and Dr Hamilton thought that she was not suffering from any psychiatric disorder. She considered the prisoner a particularly immature and vulnerable woman who had limited skills coping and in dealing with the stressors of parenthood. Dr Hamilton noted the difficult history of the prisoner and her overt hostility towards officers of the Department. She considered that there was a risk that the prisoner could place the child at further risk from future episodes of neglect. 14 Dr Hamilton thought that formal psychiatric treatment would not benefit the prisoner, but recommended regular counselling from a social worker or a psychologist to help her deal with motherhood and to help her cope with her problems. 15 In November 1997 the prisoner caused an order to be served on Mr Robson requiring him to undergo a blood test. He complied and when he learned the results he accepted that he was the child's father. He attempted to gain access to the child but was unsuccessful, so he commenced court proceedings. Although orders were made in the Local Court, Mr Robson never did gain access to the child. 16 During 1998 the prisoner enrolled the child in a child care centre at Bilambil Heights. Staff of the centre would collect the child from the prisoner and return her at the end of the day. The child was made available only irregularly. Staff noticed that the child looked and smelt unwashed and had sores on her body. They had to wash her. They thought that she was not being properly looked after. 17 In the meantime, Mr Robson had commenced proceedings in the Family Court of Australia in Brisbane, apparently seeking a graduated series of orders leading towards an order that the child reside with him. 18 As she prepared for the Family Court proceedings, the prisoner asked the Acting Manager of the Department at Tweed Heads to write a report for the court as to the unsuitability of Mr Robson to have contact with the child. She said that Mr Robson was dangerous, possessed guns and dealt in drugs. She said that she would kill him. It is unnecessary for me to decide whether any of those claims was true and sufficient to say that the prisoner appears to have believed that what she was saying was true. 19 One day in May 1998 the prisoner told one of the staff of the child care centre, who was collecting her from the prisoner, that she could cope no longer with the court proceedings and that Mr Robson would have the child within a couple of weeks. She instructed the staff member not to return the child to her at the end of the day but to leave her at the police station. She told another staff member that she had already informed the Department about this and that she wanted the child away from her father so that he could not destroy her as he had destroyed the prisoner. She said that she already had one dead child and that this child might be better off dead as well. She said that she was going to commit suicide. 20 That was one of many occasions on which the prisoner threatened to harm herself or the child. 21 About one week before her daughter's death, the prisoner told a departmental officer that she could not cope and needed respite care for up to a week. As well as caring for her child, the prisoner was then engaged in a business making lead lights and was breeding fish. She was also studying to become a chef and had to put in a greater effort because she had missed some of her studies. 22 On 25 August 1998 a hearing was set down in the Family Court of Australia, Brisbane. The prisoner was then four months pregnant to another man. She attended with the child and her mother, Mrs Grahame. They travelled to Brisbane together on a coach. At court, the Registrar stated an intention to make an order for supervised access and asked Mrs Grahame whether she would be the supervisor. She agreed. Orders were made for Mr Robson to have access under Mrs Grahame's supervision for the next three Saturdays. The prisoner was very angry with her mother for having agreed to supervise access and very upset about the orders. She refused to return home with her mother and she and the child took a separate bus home. 23 She returned to the house in Tweed Heads where she and the child were living. On the same night she was harbouring an unreasonable but real fear that Mr Robson was stalking her and trying to injure her, her property or her child. She telephoned the Federal Police to ask for help. She telephoned the local police emergency service to ask for help. 24 Between 8pm and midnight she smothered the child in her bed. She spoke to nobody about the matter until she told her mother, some time after 7pm on the following evening, what she had done. In due course her mother told the police and they attended the house and found the dead child. They also found a crucifix and a rosary, which had been placed in the child's hand, and a note, which was in the following terms - FROM the bottom of my heart Tenika I will always love & protect you from you Drugo bastard Father, he wanted you dead & I don't know how to protect you but god will protect us both, I wish it was different but this the way it has to be. Lots of Love Always & 4 Eva in my heart Love you! your mum. 25 On the reverse of the note were written these words - REST IN PEACE I LOVE YOU XXXX 26 The prisoner was arrested two days later. She had superficial slash marks on her wrists. She was taken to the police station and underwent a formal interview. 27 During the interview the prisoner told the police that she was under too much pressure from what Mr Robson and the court were doing and "lost it". She said that she accidentally strangled the child with her left hand, when she was in bed screaming. She said that Mr Robson had told lies to the court and was a drug addict. She said that there was no way she would ever give her child to him. She said that regardless of whether the child was alive or dead, there was no way that he was going to have access. 28 She said that after she had killed the child she walked around in a daze and was bleeding from the wrists that she had slashed at about the same time. She intended to die because she had had enough. She wrote the note that she left with the body after she realised what she had done. She was not affected by drugs at the time. 29 She denied any threats to take her own or the child's life. She denied threatening to kill Mr Robson. She said that he had wanted the child dead as soon as he found out the results of the blood test and had gone to the police station to get his guns. She said that there was no way that he would ever get a chance of hurting the child. She said that she had "snapped" at the time of killing the child because of the child's father, the family court orders and what the Department and others had done with their lies, pushing their way into the lives of herself and the child, and taking the child from her. She said again that Mr Robson would never see the child again because of what he had done to the prisoner and referred to her having walked out on her husband, having been raped and having been treated badly by Mr Robson. She referred to him in extraordinarily derogative terms. 30 By her plea of guilty, the prisoner has retreated from her claim that she accidentally caused the death of the child. There is no doubt that she intended to kill her. 31 Since the prisoner has been in custody awaiting trial she has been examined by a number of psychiatrists who have provided reports for the Court. Each of the psychiatrists reported difficulty obtaining a consistent and clear account from the prisoner and remarked on the vituperative nature of her complaints about others. She appeared to them to be unable to attribute a decent motive to anyone else and to perceive any shortcoming in herself. 32 The first psychiatrist to see her was Dr Westmore. He interviewed her on 17 April and 11 August 1999. During their interviews the prisoner repeated her complaints about Mr Robson, said that he stalked her when she was eight weeks pregnant and implied that he had cut up her clothesline, broken into the laundry and thrown things at her house. 33 She denied having ever been aggressive to or neglectful of the child. 34 She told Dr Westmore that she was depressed and around the time that her daughter died and was lucky to get one or two hours sleep per night. She said that the child was constantly wetting the bed at the time. She was studying and trying to work and to cope with court cases as well. She was also pregnant. 35 Dr Westmore asked the prisoner about comments she had previously made to Associate Professor Hayes about hearing voices. She confirmed that she did hear a voice and presumed that it was God. She denied receiving messages from the television or radio. 36 Dr Westmore thought that she was intense, anxious and despondent. The detailed and complex way in which she spoke revealed a preoccupation with an extensive range of difficulties. There were strong themes of persecution in her thought content. 37 However, Dr Westmore did not think that she was suffering from hallucinations and concluded that she suffered from a personality disorder with paranoid and possibly borderline features. He pointed to the history of unstable interpersonal relationships, the history of being the victim of sexual abuse within and outside the family and to the violent abuse from her father. 38 Dr Westmore thought that there was no clear, consistent evidence of a diagnosable mental illness, for example schizophrenia, or a major affective disorder, but thought that the prisoner's resources were overwhelmed with the extended and extensive range of stressors she was exposed to during the time leading up to the death of the child. 39 Dr Westmore's opinion was that the prisoner was at the time suffering an abnormality of mind, namely a depressive illness. The abnormality of mind arose from the depressive condition and would have substantially impaired her capacity to control herself at the time of the homicide. He thought that the underlying condition was likely to have been long term. 40 Dr William Lucas saw the prisoner on 10 May, 3 June and 29 July 1999. It was necessary to have three interviews because the prisoner was talkative, difficult to hold to the subject at hand and repeatedly returned to things, not always relevant, that she preferred to talk about. 41 Dr Lucas observed that the prisoner had a number of beliefs of an unusual nature about extrasensory perception, precognition, "visions" and voices. He thought, however, that they were probably not psychotic phenomena but overvalued and unusual ideas consistent with a severe personality disorder. 42 He thought that the prisoner's personality disorder had mixed features, borderline and schizotypal traits being prominent. He thought that at the time she killed her daughter, the prisoner was subject to severe stressors, including fears which to others may have seemed unrealistic but which because of the prisoner's personality were very real to her. They obviously influenced her conduct. For example, she telephoned the Federal Police and the local police on the night after she returned from the Family Court. He thought that there were good grounds to consider that due to her personality disorder and depression, the prisoner's capacity to understand events, judge whether her actions were right or wrong or control herself were to varying degrees impaired. In his opinion the impairment was substantial. He thought that the underlying condition, namely the severe personality disorder, was not of a transient kind. 43 Dr Rosalie Wilcox saw the prisoner on 2 and 16 August 1999. Like the other psychiatrists, Dr Wilcox thought that the various odd beliefs the prisoner had were more overvalued ideas than true delusions. She thought that there was no schizophrenia. 44 Dr Wilcox concluded that at the time of the death of the child the prisoner was not suffering from a mental illness, though she expressed a number of bizarre beliefs. She thought that the prisoner was depressed at the relevant time and that her depression was secondary to her persecutory ideation. She thought that the prisoner had a personality disorder that had prominent schizotypal and some borderline traits. The schizotypal features which were noted included the expression of odd beliefs, such as extrasensory perception, her unusual perceptual experiences, the presence of speech that was vague, circumstantial and overelaborate, her suspiciousness and paranoid ideation and her occasional inappropriate affect. The borderline traits which were observed included her pattern of unstable interpersonal relationships, her inappropriate intense anger and her affective instability, due to a marked reactivity of mood. 45 Based upon her assessment of the prisoner and her reading of the extensive documentation provided, Dr Wilcox concluded that the prisoner was suffering from an abnormality of mind, namely a severe personality disorder. Dr Wilcox also thought that the prisoner's depressed mood would have altered her perception of her situation by causing her to see it as more hopeless than it really was. 46 She concluded that when she took her daughter's life the prisoner was quite overwhelmed and did not have the personal resources to deal with her situation in a rational manner. As a result, her capacity to understand events and judge whether her actions were right or wrong was impaired to some degree, but her ability to control herself was substantially impaired. 47 Dr Delaforce wrote a report, which was tendered in evidence. He also gave oral evidence, which I found most helpful. He saw the prisoner on 3 September 1999. He had had the benefit of reading the reports of the other psychiatrists. He also administered tests to the prisoner. He thought that there were no psychotic features present. The results of the Beck Depression Inventory Second Edition placed her into the severest range of major depression. The Millon Clinical Multiaxial Inventory III showed an exaggeration of her emotional problems as a consequence of her tendency to self-deprecation. The paranoia, anxiety disorder, post-traumatic stress, major depression and delusional disorder scales were elevated. 48 Dr Delaforce diagnosed moderate chronic major depressive disorder which, he stated, was consistent with the prisoner's results in the two tests he had administered. He did not substantiate a diagnosis of any of the specific personality disorders, but identified significant paranoid, borderline and schizotypal personality traits. 49 He thought that at the time of the child's death the prisoner had experienced a severe level of stressors for a number of months and during her lifetime overall. They included her difficulties managing her daughter, for example, when she would not settle during the night and when she repeatedly wet the bed, the continued conflicts with Mr Robson, including the Family Court proceedings, her fears of being stalked and her attempts to catch up with her studies. She had attempted to get help from others. For example, she had told the departmental worker as late as one week prior to the death that she could not cope and needed respite care. She made it clear to others, too, for example the employees of the child care centre, that she could not cope. She wanted her daughter put in a safe place to protect her from what she perceived as the danger presented by Mr Robson's imminent access to her. 50 On 25 August 1998 stress was heightened because of the orders made in the Family Court. The prisoner had a serious argument with her mother. Subsequently, fearing that she was again being stalked and that she or her daughter might be killed or kidnapped, she again sought help by telephoning the Federal Police and the New South Wales police. 51 Dr Delaforce thought that there were two categories of motive in child homicide which were relevant, namely killings in retaliation and altruistic killings. Although he thought that one aspect of the prisoner's personality traits was her tendency to seek revenge, he did not regard revenge against Mr Robson as the significant aspect of the homicide. He thought the altruistic aspect more important. 52 In the altruistic homicide of a child, the parent perceives the killing to be in the child's best interest, that is, that the best solution at the time is to kill the child. Although this was not an obvious case, such as where a child suffers a severe and painful medical condition or a terminal illness, nevertheless the altruistic aspect applied because of the prisoner's fears, which he thought genuine, for the welfare of the child should Mr Robson have contact with her. Such a type of altruistic killing, he said, is more common in women and is often associated with a depressive disorder, which can severely change a person's thinking and behaviour. 53 Dr Delaforce concluded that when she killed her daughter, the prisoner had an abnormality of mind arising from underlying conditions, namely the major depressive disorder and the personality disorder. Those conditions had both been present virtually throughout the adult life of the prisoner and were therefore not transitory. As a result of the abnormality of mind arising from those underlying conditions, there was a substantial impairment in her capacity to understand events, or judge whether her actions were right or wrong, or to control herself. Dr Delaforce thought that she probably had a sincere and genuine belief that her daughter would be better off dead rather than have contact visits with her father. 54 When an offender is being sentenced who was suffering from an abnormality of mind at the time of the offence, considerations of general deterrence and retribution may be less weighty than in the ordinary case. R v Engert (1995) 84 A Crim R 67 per Gleeson CJ at 71. See also the references at that page to R v Scognamiglio (1991) 56 A Crim R 81 at 86 and R v Letteri Court of Criminal Appeal, 18 March 1992, unreported per Badgery-Parker J. But it all depends on the circumstances of the individual case. The existence of a causal relationship between a mental disorder and the commission of an offence does not automatically mean that an offender will receive a lesser sentence, any more than the absence of such a causal connection produces an automatically greater sentence. For example, the existence of a causal connection between a mental disorder and an offence might reduce the importance of general deterrence and increase the importance of particular deterrence or of the need to protect the public. R v Engert at 71. 55 The abnormality of mind which affected the prisoner substantially impaired her mental responsibility for her act but did not negate responsibility. The reduction in her capacity for self-control or to judge whether her action was right or wrong reduced her responsibility but did not excuse her act. 56 Any sentence to be imposed must recognise the objective seriousness of the offence, notwithstanding the substantial impairment of that capacity, and in particular that what was here involved was the felonious taking of human life with intent to kill. 57 In February 1999 the prisoner gave birth to a daughter who is now being cared for by relatives. She told Dr Delaforce that she continued her determination to fight to overcome men abusing women and children. She said that since the birth of her daughter she was not sure whether to accept her daughter being cared for by her relatives or to fight to get her back. If she decided to fight to get her back, she said, "The law will not stop me getting my daughter back". 58 She also said that she continued to have people protecting her, whom she would not name, so that Mr Robson might be "marked for death" if the news media reported unfavourably about her during her forthcoming murder trial. 59 These two threats were matters of considerable concern to Dr Delaforce, who thinks that as things stand it would be dangerous for the prisoner to be released from prison. That risk arises because the prisoner might try to get her daughter back, with consequent danger to the daughter and those having the care of her, and might try to exact revenge on Mr Robson. 60 Dr Delaforce also stressed that the legal circumstances surrounding the care of the new daughter need to be settled. It would be dangerous, I infer, to release the prisoner into an environment in which she could become bound up in a fight for control of the child. 61 Therapy, Dr Delaforce said, is necessary because the prisoner is a very angry woman. Her anger derives from all the stresses of her life, the most important being the spontaneous termination of her pregnancy in 1988, the break up of her marriage, the rape and the stabbing. Those were circumstances she complained about over and over again. She is chronically and severely depressed and must be allowed to work through her anger and desperation so as to be able to accept her losses and, when she is released from prison, accept as settled the circumstances in which her daughter is cared for. 62 Shortly before he gave his evidence, Dr Delaforce had had a telephone conversation with the psychologist at the prison where the prisoner is now kept, Miss Straede. He had some knowledge of the work being done by Miss Straede before he spoke to her. He reported in very favourable terms about the results of her work and commended her for the progress she had achieved so far in modifying the prisoner's attitudes. He observed that she was the first therapist the prisoner had learned to trust. However, he observed that there was much more that needed to be done before safety could be achieved. 63 Dr Delaforce was unable to say how long that might take but that, given the continuation of the work of Miss Straede and the co-operation of the prisoner, a lot of therapy within one year could make a lot of difference. If there were less therapy or less effective therapy, of course, longer would be required. 64 It is not clear how long Miss Straede has been the prisoner's therapist. However, she is willing to continue in this role and the signs seem encouraging. 65 I do not understand Dr Delaforce to be suggesting that a single year will be enough to achieve the fundamental change in the prisoner that will be necessary before she can safely be allowed into the community again. Although I accept the importance of more recent events in shaping the attitude of the prisoner, for example the four events on which Dr Delaforce places emphasis, I do not think that they are the only events that have affected her. I think that the important events of her unhappy and violent childhood, for example the misbehaviour of her father and her brother, contributed to her personality disorder, particularly her persecutory ideation, and to her major depressive disorder. In view of her entrenched attitude, as revealed by such vehement complaints to so many people on so many occasions it is obvious that a substantially greater time than one year will be needed. 66 The minimum term of the sentence I impose must take account of that consideration. 67 At a number of points in their reports the psychiatrists remarked upon the inappropriate affect of the prisoner, showing great anger and concern for some matters and apparent unconcern for others chief among which was the death of her child. That might give rise to the impression that the prisoner has no regrets for what she has done. Dr Delaforce thinks that she is remorseful for having taken the life of her daughter. He thinks her genuine in speaking of the pain she suffers, knowing that she has killed her friend. I accept this evidence. 68 The prisoner is therefore entitled to the full benefit of her early plea of guilty, not only because it has spared the community the time of a trial but because it is evidence of her remorse. 69 The prisoner has no other convictions. 70 After she is released at the expiration of her minimum term of imprisonment, the prisoner will need an extended period on parole in order to assist her rehabilitation and to put into effect in the community the attitudes which will by then have been established during psychological therapy. 71 The minimum and additional terms of the sentence I impose will take account of that need and the need to ensure that the prisoner will not be released into the community until she has ceased to be a danger. 72 I direct that a copy of this judgment, of the report of Dr Delaforce of 8 September 1999, and of a transcript of the evidence he gave on 14 September 1999 be sent to the Parole Board so as to give the Board an opportunity, when considering whether the prisoner should be released on parole, to review the progress that has been made towards a solution to the problem of her dangerousness. 73 Helga Dawney, I sentence you to penal servitude for eight years. The sentence will comprise a minimum term of five years, commencing on 28 August 1998 and expiring on 27 August 2003 and an additional term of three years. You will be eligible for release on parole on 27 August 2003. **********