Regina v Cheatham [2001] NSWSC 580

New South Wales Supreme Court

CITATION : Regina v Cheatham [2001] NSWSC 580 CURRENT JURISDICTION: Criminal FILE NUMBER(S) : SC 70058/98 HEARING DATE(S) : 21 May 2001 - 4 June 2001 inclusive JUDGMENT DATE : 6 July 2001

PARTIES : Regina v Stephen Darcy Cheatham JUDGMENT OF : Michael Grove J at 1

COUNSEL : P. Conlon (Crown) P. Zahra SC (Prisoner) SOLICITORS : D.P.P. (Crown) A.L.S. (Prisoner) CATCHWORDS : CRIMINAL LAW AND PROCEDURE - SENTENCE - RETRIAL - INCREASE ON RESENTENCE INAPPROPRIATE IN ABSENCE OF CROWN ASSERTION OF INADEQUACY OF ORIGINAL SENTENCE - MURDER AND WOUND WITH INTENT TO MURDER DECISION : Sentence Imposed.

THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

MICHAEL GROVE J

Friday 6 July 2001

70058/98 - REGINA v STEPHEN DARCY CHEATHAM

SENTENCE

1 HIS HONOUR: Stephen Darcy Cheatham appears for sentence following a conviction by jury on two counts of murder and one count of wounding with intent to murder. 2 The victims were, respectively, his wife and one of his daughters in relation to the murder counts and another daughter in relation to the last mentioned count. This was a second trial. 3 It is appropriate to relate some details concerning the previous proceedings because they will explain the brevity of what I intend to say. The prisoner was presented for trial upon identical counts and raised a defence of mental illness. This was rejected by the jury and the prisoner was sentenced by Newman J. At the first trial it appears to have been common ground that there was no basis for leaving the possibility of an alternative verdict of guilty of manslaughter on the counts of murder. An appeal to the Court of Criminal Appeal held that this deprived the prisoner of an opportunity for a jury to consider whether or not he should be not so considered and the matter was sent back for retrial. 4 I observed in the absence of the jury during this trial that an order had been made sending back all three counts for retrial although technically the defence of diminished responsibility did not apply to the count of wounding with intent to murder. Although unexpressed, it is easy to understand why a Court of Criminal Appeal would wish to avoid the possible paradox of leaving intact a conviction on the third count and having a jury find that the defence of mental illness was made out in respect of the others, bearing in mind that all three counts arise out of activity within a very short span of time on the one occasion. 5 After the conviction at the first trial, Newman J made a series of findings. I have indicated to counsel that I have this morning examined the transcript of his remarks on sentence, and Mr Zahra SC for the prisoner indicated that he had little dispute of any finding of fact therein made. So far as I am able to detect he has no dispute with any finding that was there made. Of course, to a limited extent, his Honour was dealing with the matter in a slightly different context in that evidence potentially relevant to diminishing the murder counts to manslaughter was not before him. It does not seem to me that I need elaborate upon these matters and the detail of his remarks may be deemed incorporated for present purposes. 6 As was his Honour, I am satisfied that to some degree the prisoner was suffering from a delusion at the relevant time that he was suffering from AIDS. However, the finding of the jury is such, and my own finding is, that at the time of the various critical events he was aware of the nature and quality of his acts, which in each case involved stabbing, and that he knew that his acts were wrong. 7 It was necessary for me to direct the jury in accordance with Australian law that wrong should be understood in the sense of morality. The evidence would satisfy me that this was so. 8 I should add if it be relevant at all that it was clear on the evidence in my view, and I would find that, in addition, at all relevant times the prisoner was well aware that what he was doing was against the law. In a rather convoluted sense this series of events were a type of claimed euthanasia. It seems to me that the culpability of the prisoner for this, given the findings which the jury must have made and which I have made, is not significantly reduced. 9 I have had some evidence from Dr Milton that the prisoner feels a sense of guilt and depression but he is no longer deluded. The evidence of psychiatrists is that he does not present a risk to society. 10 I have also had some evidence from his brother who gave evidence at the trial. He has given evidence of some particular incidents which have occurred during the prisoners incarceration. He is the son of a prison officer and the brother of a police officer. He himself has worked for several years in the juvenile justice system. It is said that he was recognised by one of his former juvenile justice clients who is now an adult and in custody with him. Therefore he is in strict custody. 11 When the prisoner appeared for sentence before Newman J this situation was explicitly anticipated. The evidence I have before me in my view is no more than a manifestation of some particular events in accordance with that anticipation. 12 Mr David Cheatham gave evidence that his brother had expressed a view that he believes that he deserves the worst form of punishment. I indicated to counsel and I would simply note that and I would not take it literally. 13 I have already indicated to counsel my view that it would not serve the ends of justice to increase a sentence following a retrial which was made necessary only as a result of a successful appeal by the prisoner. I am conscious that I must exercise a discretion independent from that exercised by Newman J, and the question for me is not whether or not I should reduce that sentence but what sentence I should properly impose in all the circumstances. 14 As I have already said the relevant facts are for all practical purposes identical as they appeared before his Honour and as they appear before me. Although, as I have said, it is not my task simply to reapply what was done before, I have reached the conclusion that the appropriate sentence is identical to that imposed by Newman J. I acknowledge the submission by Mr Zahra that there have been stresses involved in the repeated proceedings. However, these in reality pale into insignificance having regard to the seriousness of the offences committed. 15 I have refrained from restating the details of the offences. This was done on the last occasion. It suffices for present purposes merely to observe that although on the night of the killings the prisoner had a telephone conversation with one of his superiors in which he appeared to be in good spirits, some time in the next few hours something happened to cause him to kill his wife with multiple stab wounds, to kill his three year old daughter with multiple stab wounds, and to attempt to do the same to the baby. I have not overlooked the circumstance that thereafter the prisoner made a genuine attempt himself to suicide. 16 I take that into account, as did Newman J, in coming to the conclusion that this is not a case which falls into the worst category. Since the sentence in 1998 there have been some technical changes to the method of imposition of sentence, but in substance I propose to impose the same. If you would stand up please Mr Cheatham. 17 On the first count, the murder of Sandra Marie Cheatham, you are sentenced to 24 years imprisonment to commence on 6 March 1998. I specify a non-parole period of 16 years to commence on the same date. For the murder of Briahna Marie Cheatham I sentence you to imprisonment for 16 years also to commence on 6 March 1998. For the wounding with intent to murder of Tahnee Jade Cheatham I sentence you to 12 years imprisonment to commence also on 6 March 1998. All of the sentences will be served concurrently. 18 It is manifest in the orders that I have made that I have, like Newman J, come to the conclusion that there are special circumstances justifying departure from the proportions set out in the relevant sentencing statute. 19 I recommend to the Corrective Services Department that there be made available to the prisoner psychiatric treatment and the like in accordance with his needs as assessed from time to time. **********