New South Wales Supreme Court CITATION : R v KENNEDY [2000] NSWSC 109 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 70091/98 HEARING DATE(S) : 28/02/2000, 29/02/2000 JUDGMENT DATE : 1 March 2000 PARTIES : REGINA v Sharon Lea KENNEDY JUDGMENT OF : Barr J at 1 COUNSEL : Crown: H Hamilton Prisoner: E Wilson SOLICITORS : Crown: S E O'Connor Prisoner: Western Aboriginal Legal Service LEGISLATION CITED : s 558 Crimes Act CASES CITED : R v Bogunovich, Maxwell J, 30.5.85, unreported R v Roberts, David Hunt J, 31.8.89, unreported DECISION : See paragraphs 61 and 62 THE SUPREME COURT REVISED OF NEW SOUTH WALES COMMON LAW DIVISION GRAHAM BARR J Wednesday, 1 March 2000 70091/98 - REGINA v Sharon Lea KENNEDY SENTENCE 1 HIS HONOUR: On 28 February 2000 the prisoner, Sharon Lea Kennedy, pleaded not guilty of the murder of Paul Sharpley but guilty of his manslaughter. The Crown accepted the plea in full discharge of the indictment. 2 The prisoner killed the deceased by inflicting a single knife wound to the chest, penetrating the heart, on the evening of 1 April 1998. In order to explain why that happened it is necessary to relate something of the history of the relationship of the prisoner and the deceased. 3 The prisoner and the deceased were both persons of aboriginal descent. At all material times they and their families and friends lived in Walgett. The deceased's mother and several members of his family lived at an aboriginal settlement called Namoi Village, just outside the town. 4 The prisoner was born on 19 December 1970. She met the deceased when she was about seventeen and he was about eighteen years of age. Not long after they met, the deceased was sent to serve a period of six months in a juvenile justice detention centre as a result of a part he played in a riot. Whilst he was away, the prisoner stayed with his mother at Namoi Village. 5 The deceased returned and he and the prisoner began living together. He soon gave her a savage beating of a kind that he would frequently repeat during the eleven years they would remain together. From then until the time of his death the deceased punched and kicked the prisoner, pushed her down stairs, threatened to kill her, flogged her with a hose and a tyre inner tube and inflicted all manner of cruelty upon her. Her life was not her own. He frequently punished her for doing things without his permission. He punished her for talking to another man. He would not let her stay away from the house. She could go nowhere unless he approved. 6 He seemed to take pleasure in making her do things which distressed and humiliated her, especially in the presence of his relatives and friends. He cut the throat of a sheep and made her, much against her will, skin and dress it. He made her climb a telegraph pole. 7 He was a very heavy drinker and was often drunk, but it was not only when he was drunk that he beat and humiliated her. 8 He frequently forced her to have sexual intercourse against her will. She submitted rather than face a beating. 9 There were two children of the union, a girl now aged eight years and a boy aged six years, and the deceased used to beat them as well. He beat the prisoner when she was pregnant. 10 He never gave her a kind word. He never ever gave her a present. The only time she remembers enjoying his company is when they went fishing together. 11 For a number of years after they began living together they were in the deceased's mother's house at Namoi Village. Whenever she was in trouble the prisoner found herself unable to obtain sympathy or help from the residents there and unable for emotional and practical reasons to get in touch with the police. Hardly any of these many attacks were reported. 12 On occasions members of the deceased's family bashed the prisoner or helped him bash her. 13 Later on they moved into the township of Walgett and eventually into the premises at 87 Neilly Street where they were living at the time of the death of the deceased. 14 The few examples of attacks which were reported to the police are as follows. On 20 January 1993 the deceased is reported as having punched the prisoner in the back and the head. In granting an apprehended domestic violence order against the deceased, the Local Court noted that there had been assaults on three prior occasions. 15 On 23 November 1994 the records of the Local Court show that the deceased punched the prisoner a number of times and that she fled from the house. She feared for her safety and was no longer prepared to continue their relationship. The Court made a further apprehended domestic violence order. 16 On 1 October 1996 after he and the prisoner had been drinking, the deceased punched her several times in the head with closed fists, knocking her to the ground and kicking her in the mouth. Once again an apprehended domestic violence order was made. 17 On 2 May 1997 the deceased was charged with assault occasioning actual bodily harm after once again knocking the prisoner to the ground. On that occasion stitches had to be inserted above her right eye. 18 The last such order was made on 8 September 1997. It was still in force on the night the deceased died. 19 Over the years the prisoner developed a fear of the deceased. Although she retaliated on some occasions on which he attacked her, she learned not to do so. She learned to behave in ways that might placate the deceased. She rarely reported her injuries. Sometimes she gave an explanation that exculpated the deceased. For example, on one occasion she jumped over an hotel bar to get away from him and broke her arm. She told hospital staff merely that she had fallen. 20 The occasions on which the deceased injured her seriously enough for her to get medical attention seem to have been few. However, she received more black eyes than she can remember. 21 The prisoner did not drink when she met the deceased, but she began to do so. I think that this was because it tended to make the behaviour of the deceased easier to bear and perhaps to help her to forget. There was plenty of opportunity for her to get access to alcohol. In due course the prisoner, like the deceased, became addicted to the use of alcohol and accustomed to taking it in excess. 22 I think that in a practical sense the prisoner probably did all she could to protect herself from the abuse of the deceased. It would have been unrealistic to expect her to leave Walgett and the support and sympathy of her friends in the aboriginal community there, particularly her grandmother, who for all practical purposes has been her mother since her early years. 23 About two months before April 1998 a significant change took place in the deceased's behaviour. He began to exhibit sudden mood changes, swinging from calmness to anger without apparent reason. Friends told the prisoner that the deceased would kill her. The prisoner told his mother that he should go into a mental hospital. Unfortunately, nothing was done to protect the prisoner. Perhaps nothing could have been done. 24 During the afternoon of 1 April 1998 the prisoner and the deceased were at home together at 87 Neilly Street. They both smoked marijuana and drank beer. The prisoner was playing cards and the deceased wanted her to give him money, but she refused. He became angry and she became afraid that he would assault her again. 25 The deceased's anger increased when he realised that the prisoner had prepared a meal for a school friend of their children's. He started calling the prisoner an obscene name. She thought that he would start hitting her again and ran next door, believing that he would not pursue and assault her there. After some time she went to a second neighbour's house and telephoned the police. Police officers arrived and took the deceased to Namoi Village and left him there to cool down, something, I think, that they must have become used to. 26 The prisoner looked after the children and later in the afternoon took them to their grandmother's house and cooked a meal for them. She left them there and went to the Imperial Hotel between 6.00 and 7.00pm. 27 Towards 8.00pm the deceased got a lift to Walgett and headed for the Imperial Hotel. According to a witness who was with him and who does not drink, the deceased was "charged up". By 9.00pm he had been refused further bar service because he was too drunk. 28 The deceased and the prisoner were seen arguing in the hotel, both under the influence of alcohol. Later on they were seen on opposite sides of the room, not talking. 29 They left the hotel together at 10.00pm when it closed. They were with one other person. All three were drunk and the prisoner fell over and had to be helped up. 30 The two went home by themselves. They were seen and heard arguing shortly before they entered the house. In the house the deceased began punching and kicking the prisoner. The prisoner has no recollection of what then happened. The next thing she remembers is running next door to ask her neighbour to telephone the ambulance. By that time the deceased was on the front lawn, lying face down. His neighbour went to assist him. He was bleeding. 31 Police and ambulance officers attended and the ambulance officers began to try to resuscitate the deceased, but he died where he lay on the grass. The prisoner was present, distraught and screaming and threatening to commit suicide. She told the police that she did not know where the knife was, that she had thrown it away. A search showed that it was in the house. The furniture in the house was knocked over, showing that there had been a struggle. 32 The prisoner said to one police officer that they had been rowing and that she had had enough of the deceased, that he was just into her all the time and that she got sick of it. 33 The prisoner acknowledged on oath that she must have taken up the knife that killed the deceased. However, counsel on both sides agreed that the Court could not be satisfied beyond reasonable doubt that the prisoner intended to cause grievous bodily harm to the deceased or kill him and that the proper basis for sentencing was that in her use of the knife the prisoner committed an unlawful and dangerous act. 34 It is not altogether easy to ascertain the facts immediately surrounding the stabbing of the deceased. I accept the evidence of Dr Westmore and Ms Aitken that a combination of the trauma of the occasion and the substantial amount of alcohol that the prisoner had consumed on the night may explain her amnesia. I accept that she is genuinely unable to remember what happened after the deceased began punching and kicking her. 35 There were no signs of any meal or eating utensils in the lounge or the dining room. The stove was left on and had to be switched off later on by a police officer, and that suggests that the prisoner might have been about to begin preparing a drink or a meal. The knife was much like other knives in the kitchen and was of a common design. It was pointed and serrated. There is no reason to think that the prisoner handled the knife before the altercation in the house. Whatever she did was done on the spur of the moment. 36 I think that when she realised that she was coming under yet another violent attack she took hold of whatever was close at hand in an attempt in some way to make the deceased modify his behaviour, short of an intention to do him really serious injury. She told Senior Constable Menzies not long after the event that they were rowing and that she had had enough of him. She continued - He was just into me all of the time and I got sick of it. 37 After police attended they took the prisoner away to the police station and had cause to examine her closely. Because of things she said and did they were in some fear that she might injure herself. If she had been carrying injuries there and then inflicted by the deceased they might have been noticed. 38 The prisoner was asked in cross-examination what she had meant when she had told the police officer that the prisoner had been "just into" her all the time. She said that that meant that he was shouting at her or abusing her. 39 The Crown Prosecutor submitted that the Court should not accept that the deceased had physically abused her and that the apparent lack of injuries suggested that the deceased's attack was not of the most serious kind. The use of the knife in the circumstances should therefore be regarded the more seriously. 40 I do not accept that submission. The prisoner was in such a distressed state that she had no desire to complain about injuries she might have had. Any injuries might in the circumstances not have been noticed. She may well have received painful injuries that did not show. 41 But that is not the whole of the story. The prisoner's expectation of another beating was just as important as the receipt of injuries. The recent behavioural changes of the deceased must have given her even more cause for concern. I think that the deceased punched and kicked her and that she must have believed that she risked serious injury. 42 I accept that the prisoner did not plan any attack on the deceased but took the knife in the heat of the moment. 43 There is no evidence precisely how the wound was caused. The two of them must have been struggling violently. The knife, which was pointed and sharp, passed wholly through soft tissue, between the fourth and fifth ribs and into the heart. The resulting wound was approximately ten centimetres deep. It went from left to right and slightly downwards. It could have resulted without the application of great force. The movement of the deceased's body may have contributed as much to the force of the stabbing as any movement of the prisoner's hand. In the circumstances it is not possible to draw any firm conclusion about the precise way in which the knife entered the body of the deceased. One could not confidently say that the wound resulted from a clean blow delivered by the prisoner. 44 The prisoner grew up in Gunnedah and attended primary school there. Her mother was strongly addicted to alcohol and used regularly to beat her with her hands or anything that came to hand. She had no love for her and never told her who her father was. The prisoner discovered the identity of her father only recently. The prisoner was brought up for the most part by her maternal grandmother and regards her as her mother. 45 She was educated to Year 11 and took the school certificate. She had already had a couple of jobs when she met the deceased and would have progressed in her work if she had been given the opportunity. She is reasonably intelligent. 46 Immediately after the death of the deceased the prisoner openly exhibited her remorse. She has continued to do so ever since. In recent times she has repeated her expressions of remorse to professionals who have interviewed her and to the Court. I am satisfied that she feels her guilt keenly. I accept the statement of Ms Duffy, psychologist, that she ruminates over the death of the deceased. Her plea of guilty is further evidence of remorse. Although it is not altogether clear, it appears as though it was offered as soon as there was a firm indication that the Crown would entertain it. 47 The plea weighs in sentencing also because it has saved the community the time and trouble of a trial. 48 The prisoner has a minor record. There is one count of stealing, one count of offensive language and one of offensive behaviour. They are insignificant for present purposes. I do not think that she will offend again. I think that the most serious risk that now exists is that she may do some harm to herself. 49 Reports were provided for the Court by Dr Westmore and Dr Milton, psychiatrists and Ms Aitken and Ms Duffy, psychologists. 50 Dr Milton did not interview the prisoner and I find his report of little value. 51 Dr Westmore did examine her but that was principally for the purpose of advising her solicitor whether she might have a defence to the charge of murder which was then outstanding. He thought that her mood state was despondent and that her affect was flat, but he thought that there were no psychotic features and did not in terms mention depression. 52 Ms Duffy tested the prisoner. The result of one test showed the presence of strong depressive and self-defeating characteristics. She thought the prisoner perceived herself as worthless, vulnerable, inadequate, unsuccessful and guilty and frequently engaged in self-criticism. She thought that the prisoner had a sense of hopelessness, suicidal ideation, feelings of pessimism and a fear of the future. 53 I observed the prisoner as she gave her evidence. I thought that her answer to the question asked by the Crown Prosecutor showed that she was honest because she rejected an opportunity to put her case higher than it was. I found it very difficult to assess her mood. The formality of the proceedings overwhelmed her and she spoke so quietly that she could scarcely be heard. I regret to say that the atmosphere of the Court was not calculated to encourage her to say what she thought and felt. Nothing that I heard or saw made me think that Ms Duffy might have been wrong. 54 Ms Aitken thought that the prisoner was seriously depressed. 55 The preponderance of psychological evidence shows that the prisoner's systematic exposure to beatings at the hands of her mother and then her husband and her addiction to alcohol have combined to form in her feelings of worthlessness, giving rise in my opinion to a substantial fear that she may harm herself if not appropriately supervised, counselled and, if appropriate, treated. 56 It is now well established that when a human life is taken, even within the context of domestic violence, the Courts will not deal leniently with the offender unless the case is exceptional. It is only in the most exceptional case that a non-custodial sentence will be imposed. See Regina v Bogunovich, Maxwell J, 30 May 1985, unreported; Regina v Roberts, David Hunt J, 31 August 1989, unreported. 57 Of course, cases in which the prisoner is found to have lacked the intent to kill or do grievous bodily harm fall towards the lower end of the range of seriousness of manslaughters. This is such a case. 58 Although contending for a custodial sentence, the Crown has, in my opinion very properly, submitted that a sentence of less than full-time custody falls within the range of sentencing discretion of the Court. 59 In my opinion the circumstances of this case are so unusual that there is no need, in order to deter persons generally from committing such crimes, to impose any sentence of custody upon the prisoner. I think that justice will be done if sentence is deferred. 60 However, the prisoner needs to be supervised and for her counselling to continue. She and her children, who are now in the care of the deceased's mother, need the opportunity to see more of each other. 61 Sharon Lea Kennedy, in accordance with s 558 Crimes Act I defer passing sentence upon you. You are to enter into a recognisance in the sum of $5,000 without surety to be of good behaviour for a period of four years and to be liable to be called up for sentence at any time within that period for any breach of your recognisance. 62 It will be a condition of the recognisance that within forty-eight hours after your release you report to an officer of the Probation and Parole Service at Dubbo and that you accept the supervision and directions of the officers of that service, particularly as to any psychological or psychiatric counselling or treatment that may be recommended. The recognisance may be entered into before a magistrate or a Justice of the Peace. 63 Exhibits B, C, D and E may be returned. ********** Last Modified: 09/25/2000 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.