Regina v Fox [2001] NSWSC 573

New South Wales Supreme Court

CITATION : Regina v Fox [2001] NSWSC 573 CURRENT JURISDICTION: Criminal FILE NUMBER(S) : SC 70057/00 HEARING DATE(S) : 23-24 April 2001 JUDGMENT DATE : 6 July 2001

PARTIES : Regina v Alvina Joyce Fox JUDGMENT OF : Michael Grove J at 1

COUNSEL : D. Frearson SC (Crown) M. Ramage QC (Prisoner) SOLICITORS : D.P.P. (Crown) Robert Hill & Co (Prisoner) CATCHWORDS : CRIMINAL LAW - SENTENCE - MANSLAUGHTER - ABORIGINAL/TORRES STRAIT ISLANDER - MITIGATORY CIRCUMSTANCES DECISION : Sentence Imposed

THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

MICHAEL GROVE J

Friday 6 July 2001

70057/00 - REGINA v ALVINA JOYCE FOX

SENTENCE

1 HIS HONOUR: On 23 April this year Alvina Joyce Fox pleaded guilty at Coffs Harbour before me to an indictment making available plea to the offence of manslaughter. She stands convicted of that offence. As I have formed a firm view as to the course I should take I propose to proceed to sentence forthwith even though I might express myself more felicitously were I to stand the matter over. But it seems to me in the interests of all concerned, and in particular for overall justice, that I proceed now. 2 The prisoner is a young woman now aged 33 years. She is of Aboriginal or Pacific Islander extraction. Her life has been one of significant tragedy. She was born in Townsville in North Queensland and spent a lot of her young years on Palm Island, which is located off the coast near the township of Cardwell. Over the years a lot has been learned about conditions for residents there and it is not my present function to comment upon them beyond finding that the prisoner was considerably disadvantaged by reason of her residence at that place. 3 However, in later years things have changed manifestly for the better, and there is considerable material before me that indicates that it is desirable that she be able to fulfil her wish to return there where she has children presently in the custody of her sister and other family support. 4 I should turn however to the facts of the offence. The prisoner has had an almost lifetime addiction to alcohol. Numerous attempts to overcome this have been unsuccessful. The killing occurred in a park in the township of Moree and the victim was in a de facto relationship with the prisoner. They had recently been discharged from an obviously failed attempt at alcohol rehabilitation in a nearby township. However, they were resided together at what is called Byamee Proclaimed Place, which is a shelter for homeless and intoxicated persons in Moree open between 4:00pm and 8:00pm. 5 On the day in question, 12 November 1999, they had been in the park where they consumed a considerable amount of methylated spirits together with apparently an amount of wine. I am satisfied that the prisoner had no intent to kill or cause grievous bodily harm to the victim. Indeed I am satisfied that in an alcohol haze she was attempting to wake him by kicking him about the head. I am satisfied she has no real recollection of the circumstances. 6 It is true that some witnesses give evidence of things that she apparently said at the time, but I am satisfied that whatever she did and said was to a significant extent outside of any control or intent by reason of her enormous ingestion of insidious intoxicating liquor. The vulnerability of the victim was later discovered and, whilst this is not directly relevant, it is nevertheless a circumstance which I feel ought be taken into account. 7 I am satisfied that she had no appreciation of the serious harm which might befall the victim. I should note in passing that although she used her feet they were not shod with shoes or anything of the sort at the time. 8 The plea of guilty to manslaughter was accepted on the basis of the Crown's assertion that nevertheless she was engaged in an unlawful and dangerous and act and, despite the alcohol which I have mentioned, had sufficient capacity to form the intention which was necessary to constitute that offence. 9 She was taken into custody on 13 November 1999. Shortly thereafter she was released to bail but the conditions of bail were such that she was in what I would regard as effective although different custody. More tragedy occurred during her period on bail. There was an attempt at suicide by hanging. She was taken to a women's refuge, but I accept the submission by Mr Ramage of Queens Counsel on her behalf that she was in fact sent back to prison at Mulawa in September last year because there simply seemed to be nowhere else to send her. For present purposes I regard her custody as being continuous since 13 November 1999. 10 I have already made some reference to the tragedy which is to be found in her background. Mr Ramage has helpfully reduced his submissions to writing. I have already indicated how helpful I have found them and I do not propose to take up time this morning by repeating what can be read there. The written submissions will remain with the papers and I would simply indicate that I regard those submissions as compelling in all the circumstances. From it I have gleaned some of the facts that I have mentioned. 11 The problem arises then what is the appropriate course? It is acknowledged, as Mr Ramage necessarily acknowledged, that the taking of human life must be regarded seriously in any circumstances. Nevertheless, I am satisfied that the prisoner is truly contrite in every sense that expression bears. She had no intention to cause the harm that followed her actions. 12 I have had tendered to me, from a former de facto wife of the deceased, a document in the nature of a victim impact statement. It is not necessary for me to elaborate upon the limited use that can be made of such a document and it suffices for present circumstances merely to say that I have noted what is contained in that document. 13 I have already indicated that I believe that the interests of justice will best be served by the prisoner being able to return to Palm Island where she has some family support. I have not noted, but perhaps I should specify, that the prisoner, despite the gloomy past affectation by intoxicating liquor, is nevertheless before a court virtually on the first occasion; she has no prior convictions on her record. That stands in good stead and is, in my view, a considerable indication of her basic good character. I am satisfied that it is unlikely that she would offend again. I have taken into account the reports that have been tendered and the analysis that, in particular, Dr Westmore has offered. 14 I return then to the order that I should make. I believe that I should impose a sentence which reflects the seriousness with which the community regards the taking of human life. Nevertheless, for the reasons that I have adumbrated, there are obviously special circumstances, and I would describe them as very special circumstances in this case. 15 It is not necessary for me to elaborate upon the general disadvantage that has been recognised as having been inflicted upon Aboriginal and Torres Strait Islander citizens in this nation. Nevertheless, to the extent that this is a matter of notoriety, the particular facts in this case show that the prisoner has suffered in an extreme way throughout her life. It will not be in her interests, in particular, for me to make an order for her immediate release. It is obvious that she will need assistance in the future and, for that reason, the assistance of authorities such as probation authorities will be necessary. 16 I wish to indicate for the information particularly of the Parole Board that it is my view that the prisoner should in fact be released to parole as soon as possible after the non-parole period which I am about to specify, and I would strongly recommend that parole be granted upon conditions which would enable her to resume her life in Palm Island where, as I have said, she could have some family support. 17 For the manslaughter of Brian Leslie Gardiner I sentence you to 5 years imprisonment to date from 13 November 1999. I specify a non-parole period of two years dating from 13 November 1999 thereby making you eligible for release to parole on 12 November this year. **********