New South Wales Supreme Court CITATION : R v Vandersee [2000] NSWSC 916 revised - 15/11/2000 FILE NUMBER(S) : SC 70060/99 HEARING DATE(S) : 17/07/00, 18/07/00, 19/07/00, 21/07/00, 24/07/00, 25/07/00, 26/07/00, 27/07/00, 31/07/00, 1/08/00, 07/09/00, 08/09/00 JUDGMENT DATE : 18 September 2000 PARTIES : Regina v Lynette May Vandersee JUDGMENT OF : James J at 1 COUNSEL : W H W Norman - Crown A P Cook - Prisoner SOLICITORS : Ms I Chiumento - DPP S R Mullany - LAC CATCHWORDS : Criminal Law - sentencing - manslaughter - provocation DECISION : Sentenced to imprisonment for eight years - Non-parole period of five years. Sentence to commence on 01/08/2000 THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION JAMES J Monday 18 September 2000 70060/99 - REGINA v LYNETTE MAY VANDERSEE REMARKS ON SENTENCE 1 HIS HONOUR : On 1 August 2000 after a trial presided over by me the jury found the prisoner Lynette May Vandersee not guilty of murder, but guilty of the manslaughter, of her husband Bruce Vandersee at Central Tilba on 30 June 1999. After the jury returned their verdict the proceedings on sentence were stood over for a number of weeks, to enable a pre-sentence report to be obtained. Under s24 of the Crimes Act the maximum penalty for manslaughter is imprisonment for twenty five years. 2 At the trial there was no real issue that in the early morning of 30 June 1999 the prisoner had killed her husband by striking him a number of times on the head, while he was sleeping, with the blunt end of the head of a small axe or tomahawk. Later on the same day 30 June 1999 the prisoner attended at the Bateman's Bay police station and told police that she had killed her husband. 3 The real issue at the trial was whether the prisoner should be found guilty of the murder of her husband or whether she should be found guilty of the lesser offence of the manslaughter of her husband. Under the directions the jury were given there were three possible ways in which the jury, having been satisfied beyond reasonable doubt that an act of the prisoner had caused the death of the deceased and that the prisoner's act had not been done in self defence, could have arrived at a verdict of guilty of manslaughter, namely:- (1) The act of the prisoner had been done with the intent required for murder, that is with the intent to kill or inflict really serious bodily injury, but the jury were not satisfied beyond reasonable doubt that the act of the prisoner had not been done under provocation; (2) The act of the prisoner had been done with the intent required for murder but the jury were satisfied on the balance of probabilities that the defence of substantial impairment by abnormality of mind under s23A of the Crimes Act had been established; (3) The jury were not satisfied beyond reasonable doubt that the act of the prisoner had been done with the intent required for murder but were satisfied that the act was unlawful and dangerous. 4 It is convenient to refer to these three types of manslaughter as provocation manslaughter, substantial impairment manslaughter and unlawful and dangerous act manslaughter. 5 Important principles governing the sentencing of persons who have been found guilty by a jury of a criminal offence were laid down by the five judge bench of the Court of Criminal Appeal in R v Isaacs (1998) 90 A Crim R 587. In Isaacs the Court of Criminal Appeal said:- (1) The power and responsibility of determining the sentence to be inflicted upon the offender rests with the judge and not the jury. (2) Subject to certain constraints it is the duty of the judge to determine the facts relevant to sentencing. (3) The primary constraint is that the view of the facts adopted by the trial judge for the purpose of sentencing must be consistent with the verdict of the jury. (4) A second constraint is that findings of fact made against an offender by the sentencing judge must be arrived at beyond reasonable doubt. (5) There is no general requirement that a sentencing judge must sentence the offender upon the basis of a view of the facts consistent with the verdict, which is most favourable to the offender. 6 The Court of Criminal Appeal said that the above principles apply equally to sentencing for manslaughter as to sentencing for any other offence. 7 In accordance with the opinion expressed by the Court in Isaacs that, other than in exceptional cases, trial judges should refrain from asking the jury the basis of a verdict of manslaughter returned by the jury, I did not ask the jury what was the basis of their verdict of manslaughter. At the trial I was not asked by the Crown Prosecutor or by counsel for the prisoner to ask the jury what was the basis of their verdict of manslaughter. 8 In accordance with the general principles of sentencing stated earlier in their judgment the Court of Criminal Appeal in Isaacs held that, where in a trial the jury have returned a verdict of guilty of manslaughter the sentencing judge's task is not to determine the basis upon which the jury found the prisoner guilty of manslaughter but to find for himself or herself the facts material to sentencing, consistently with the jury's verdict of manslaughter and bearing in mind that the prisoner is to be given the benefit of any reasonable doubt. 9 Guided by the principles I have stated or referred to, I will proceed to find the facts of the offence of manslaughter of which the prisoner has been found guilty. 10 There were a large number of witnesses at the trial, who included:- (1) The police who were at the Bateman's Bay police station on 30 June 1999 or who took part in the investigation into the death of Mr Vandersee. (2) The prisoner's two adult daughters by a previous marriage, Kerry Ford and Samantha Ellis. (3) The mother of the deceased, Mrs Vandersee. (4) Mr Peter Hollands who had been a friend of both the deceased and the prisoner but who had only seen them at infrequent intervals. (5) Persons who had known the prisoner and the deceased, while they lived in Tasmania before moving to Tilba. (6) Persons who had seen the prisoner and the deceased in Tilba. (7) A forensic pathologist Dr Bradhurst who performed the post mortem examination of the body of the deceased. (8) Two forensic psychiatrists Dr Clark, who gave evidence for the prisoner, and Dr Skinner, who gave evidence for the Crown. 11 However, the principal witness to the course of her life, her relationship with the deceased and the events leading up to the killing and the killing itself, was, necessarily, the prisoner herself. 12 After she had gone to the Bateman's Bay police station on 30 June 1999 the prisoner was interviewed by police in a long electronically recorded interview. An audio-video recording of this interview was admitted into evidence at the trial and was viewed and listened to by the jury and myself. In this interview conducted just a few hours after the killing, the prisoner spoke freely, giving many long narrative answers. I am satisfied that I should accept the answers given by the prisoner in the interview on 30 June 1999 as being accurate. 13 The prisoner gave evidence at the trial, which was held more than twelve months after the killing. It is unsurprising that at the trial she gave evidence of some matters which were not referred to in her answers in the interview on 30 June 1999. However, to the extent of any inconsistency between the answers she gave in the interview and the evidence she gave at the trial, I prefer the account given in the answers in the interview. 14 Because both provocation and substantial impairment were raised at the trial and because it was submitted that much of the prisoner's previous life was relevant to either provocation or substantial impairment or both, it is necessary in my finding of the facts to cover the whole of the prisoner's life. 15 The prisoner was born in Australia on 18 August 1951, so that she was forty seven years old as at 30 June 1999 and she is now forty nine years old. 16 The prisoner's parents separated when she was very young and her mother went to live in Northern Ireland. The prisoner lived in Northern Ireland between the ages of four and twenty one. While living in Northern Ireland she was exposed to the troubles in that province. During her childhood she was often neglected by her mother. 17 In about 1972 the prisoner married her first husband, Ian Ellis, who was a British army officer serving in Northern Ireland. Soon after the marriage the prisoner and her first husband came to Australia. There were two children of this marriage, both girls, Kerry born in 1974 and Samantha born in 1975. 18 The prisoner's first husband began acting violently and the violence continued until the prisoner and her first husband separated in 1979. During the marriage the prisoner's first husband was violent to both the prisoner and the two children. He "picked on" Kerry because she had cerebral palsy and walked with a limp. On one occasion he committed a particularly violent assault on Samantha. 19 The prisoner left her first husband three times. The last time she left, the separation was permanent. On this occasion the prisoner, before leaving, made arrangements for her and the two children to be picked up by a friend, for her to obtain accommodation and for her to obtain employment. 20 The prisoner first met the deceased in 1980. Her first impression of the deceased was that he was very different from her first husband. He was not cruel; he was gentle. The prisoner moved in with the deceased just before Christmas 1980 and they were married on 31 July 1982. 21 The prisoner and the deceased moved to a house on the South Coast of New South Wales. The deceased's parents came to live with them in the same house and the household became very tense. The deceased started drinking heavily, apparently under the influence of his father, and the deceased became verbally abusive to the prisoner. 22 In March 1985 the deceased, the prisoner and her two children moved to Tasmania. The prisoner became manager of a diagnostic department at a hospital in Launceston. The deceased worked in his occupation as a signwriter. 23 The prisoner and the deceased bought a house in Labrina, a tiny village some distance outside Launceston. 24 On three occasions spread over a number of years the deceased cut the clothes the prisoner was wearing with a pair of scissors. On the last occasion he cut her underwear off her. 25 On occasions the deceased came up behind the prisoner and smacked her across the back of the legs or the buttocks with a ruler or a wooden spoon or pinched her skin with his finger and thumb. The deceased would sometimes punch the prisoner in the stomach or on the arm. They were not hard punches but the deceased would sneer at the prisoner when he punched her. 26 The deceased had sexual intercourse with the prisoner at times when she was unwilling. She stopped attempting to say "No" because she could not be bothered fighting him anymore. On occasions the deceased twisted her nipples. 27 In 1988 when Kerry was fourteen and Samantha was thirteen the two girls went to New Zealand to have a holiday with their natural father. The holiday was supposed to be for only two weeks. On the day they were due back the girls telephoned from New Zealand and told the prisoner that they did not love her and that they would not be coming back to Australia. The deceased commented to the prisoner "It serves them right. I don't want them back anyway". 28 Kerry returned from New Zealand after some months. When she returned she looked "glum" and "pathetic". The deceased said that he did not want Kerry back. Kerry lived in the household for about another couple of years. During this period the deceased and Kerry antagonised each other. Eventually Kerry moved out in about 1993. Kerry went to England, formed a relationship, married and had two children and she returned to Australia with her two children in 1998. The prisoner went to England in 1996 for five weeks to be present when Kerry had her first child. 29 Samantha stayed in New Zealand for about fifteen months. The prisoner received a telephone call from the New Zealand Child Welfare Department informing her that Samantha's father had assaulted her and deserted her, that Samantha was the prisoner's responsibility and the prisoner should arrange to have Samantha brought back to Tasmania. 30 Samantha returned to the household of the prisoner and the deceased in Tasmania. The deceased did not want her back. After Samantha returned, there were constant arguments between Samantha and the deceased. Samantha left the home when she was fifteen. After leaving home she lived with a neighbour and was then looked after by the Child Welfare Department. 31 Just before Samantha left home the deceased presented Samantha with a document prepared by him which was described at the trial as "a contract". This document was in the following terms:- "I Samantha (do/do not) wish to be a loving part of the Vandersee household and family (If the answer is (DO) then sign 'A') (If the answer is (DO NOT) sign 'B') (A) I promise to do what I am told to do, when I am told, and not lie. I promise to include both Mum and Dad in any decisions that have to do with my welfare friends or outings. I promise to not see or ring up any boy without the permission of both Mum & Dad. Sign ………………………………………. (B) I do not wish to be part of the Vandersee family. Therefore I do not expect any love or financial support from the family and will revert to being known as Samantha Ellis. Sign ………………………………………." 32 The deceased read Samantha's diary, which had been left at the house, and the deceased prepared a letter for Samantha, which was in the following terms:- "DEAR MISGUIDED SAM ELLIS, According to your 'Secret Diary' I am an asshole & I was just being mean to you and was using Shane as an excuse. If you had only done as you were told to do I wouldn't have been 'mean' to you. Your ringing Shane was only part of my disappointment in your actions and attitude. It was a culmination of lies, deceit, disobedience and unbecoming behaviour for a 14 year old. Your mother and I were crushed when we found out about your smoking, drinking and your sexual activities. But I suppose this would mean nothing to you. This, now is all water under the bridge as you have decided to start a new life of your own which I hope will bring you all the health, wealth and happiness you wish upon yourself. Not what you deserve. Please change your name on everything as Samantha VanDerSee doesn't exist any more! Your Ex Dad, Bruce VanDerSee". 33 The prisoner told the deceased that the letter was disgusting but the deceased laughed at her. 34 After the two girls left the household there were "ups" and "downs" in the relationship between the prisoner and the deceased. There were "ups" when the deceased was in a good mood and there were "downs" when the deceased had been drinking or was in a bad mood. The deceased remarked how peaceful it was without the prisoner's daughters. Both daughters did make visits to the house and the visits were actually civil and quite pleasant. 35 The prisoner had a hearing deficit. The deceased was aware of this deficit and would either mumble or shout at her. 36 The prisoner had been making teddy bears for some time, selling some of them. The prisoner and the deceased agreed to leave Tasmania and go to Tilba on the South Coast of New South Wales. The prisoner felt burnt out in her job and hated the cold in Tasmania. The deceased was sick of his occupation of signwriting. 37 The prisoner and the deceased moved to Tilba. In Tilba they rented shop premises and rented premises in which to live. They set up a business selling teddy bears. The teddy bear shop was never a financial success. 38 Kerry with her two young daughters lived in Tilba from October 1998 to January 1999. Kerry had borrowed money from the prisoner and the deceased to pay for the airfares of herself and her two children from England. The deceased did not want Kerry and her children to come to live with the prisoner and himself. Kerry and her two daughters lived in the same house as the prisoner and the deceased for only two and a half weeks. The deceased adored Kerry's older child, Bethany. The deceased complained about the younger child crying at night. 39 The deceased was angry with Kerry for not making Bethany, who had cerebral palsy, walk and criticized Kerry as a mother. Kerry moved out into a flat in Tilba. The deceased constantly wanted to know what Kerry was doing about making Bethany walk. He believed that he could make Bethany walk, when Kerry could not. 40 The deceased prepared a document whereby Kerry would promise to make Bethany walk and it was provided that, if Bethany could not walk within a certain period of time, that would show that Kerry was a pathetic mother. 41 The deceased gave the prisoner the document to give to Kerry on Kerry's departure from Tilba to Western Australia. However the prisoner threw the document into a garbage bin and did not give it to Kerry. 42 After the departure of Kerry in January 1999, relations between the prisoner and the deceased were tense. The deceased's conduct, consisting of verbal abuse, commenting on the prisoner's appearance, smacking and punching the prisoner, twisting her nipples and having sexual intercourse without her consent, continued. 43 The prisoner attended at the teddy bear shop each day. The deceased stayed at home, making teddy bears or operating his computer. The prisoner was worried about how they would survive financially. The deceased said words to the effect that that was her problem. 44 The deceased would follow the prisoner around the house, he would not let the prisoner go anywhere by herself, even to the toilet. The prisoner neglected the house and her own personal appearance. 45 The deceased would go days at a time, without changing his clothes and without washing. In Tasmania the prisoner had made the deceased shower every day. "In Tilba after four or five days he was just putrid and I would say 'get in the shower'". The deceased would say "Oh stop nagging me". 46 On the weekend of 19 and 20 June the deceased was away from Tilba, leaving the prisoner at Tilba. 47 On 20 June the prisoner logged into the internet on the deceased's computer. She made a number of visits to the Cornell University Poisonous Plants home page and she made notes of information from this website on two pieces of paper, which became exhibits at the trial. 48 On these pieces of paper she recorded, inter alia, the symptoms produced in human beings by the ingestion of a number of poisonous plants, including poinsettia, fulmicort, wisteria, lantana and laburnum. For example, under the heading "lantana" she wrote:- "Ataxia, laboured breath, cyanosis, death, diarrhoea, lethargy, liver congestion, pupil dilation, pinpoint pupils, unconsciousness, vomiting, weakness" 49 The prisoner claimed in her evidence that she had obtained the information about poisonous plants, because she was contemplating suicide and denied that she had any other purpose in mind. According to Dr Skinner's evidence, which I accept, Dr Skinner asked the prisoner on 20 July 2000 "why did you look at poisonous plants on the internet?" and the prisoner replied "no definite intention, perhaps for Bruce or harm myself". I find that on 20 June 1999 the prisoner did contemplate suicide but the possibility of administering a poisonous plant to the deceased had crossed her mind. 50 On the weekend before the killing the prisoner and the deceased went to Sydney for a teddy bear show. On the Thursday before the weekend the deceased's mother came to Tilba to look after the shop in their absence. In the presence of his mother the deceased demonstrated a physical affection for the prisoner, which he did not show at other times and which the prisoner resented. 51 The prisoner thought that they did not have enough money to make the trip to Sydney but the deceased insisted on going. In Sydney the prisoner and the deceased entered their bears in the teddy bear making competition. On the Friday afternoon the prisoner proposed that they go out to the Gap, because she had not been there before. They went to the Gap and walked around. 52 On the Friday night the prisoner and the deceased went to the presentation ceremony for the winners in the teddy bear making competition. Neither the prisoner nor the deceased won. The prisoner did not care about not winning. The deceased who was "not a good loser" was upset. 53 On the Saturday the deceased was "just shitty about everything" and "just snide comments referring to my weight, my ugliness and my oldness". 54 On the Sunday they had very little money left. The prisoner made enquiries and discovered that there was a service station which would accept payment by cheque for petrol. The prisoner proposed that they go to Manly and take a walk along the beach. However, at Circular Quay they discovered that if they paid for return ferry fares to Manly, they would have just $4 left. The prisoner proposed that, instead of going to Manly, they take a walk around the Rocks and they went for a walk around the Rocks. There were "great long silences" from the deceased. 55 The prisoner and the deceased set off for home. The prisoner had taken the phone number of the service station which would accept a cheque but had omitted to write down the address of the service station. The deceased called her "a dickhead" for not writing down the address. They had difficulty finding the service station. The prisoner telephoned the service station and obtained directions how to get there and eventually they arrived at the service station. 56 On the way home the prisoner developed a bad headache. The deceased said "You can't have a headache" and turned the radio up. 57 When they arrived at their home in Tilba the deceased told his mother, in the presence of the prisoner, what a wonderful time he and the prisoner had had in Sydney. On the Monday the deceased's mother left. 58 On Monday 28 June 1999 the prisoner went to the teddy bear shop, where she remained several hours. 59 In the evening of 28 June she conducted a teddy bear making class at the shop. She had been conducting such classes, with some interruptions, since September 1998. The class on 28 June started at about 7 pm and lasted for about two and half hours. To a person who attended the class the prisoner appeared tired. The prisoner failed to notice that a member of the class had sewn a leg on a teddy bear back to front, which was something she would ordinarily have noticed. 60 On Tuesday 29 June the prisoner went to the shop at 10 o'clock and remained in the shop until lunch time. At lunch time on 29 June she had a conversation with the deceased, who demanded to know why she had been using the computer on 20 June. 61 On 28 and 29 June Kerry, who was in Western Australia, telephoned the prisoner. The prisoner told Kerry on the telephone that she and the deceased had had a dreadful weekend in Sydney, that the deceased was furious that he had not won a prize in the teddy bear making competition and that the deceased claimed that everything that had gone wrong on the weekend had been her fault. Kerry asked her mother whether she loved the deceased and the prisoner replied that she did not. Kerry asked why the prisoner did not leave the deceased and the prisoner said that she could not. Kerry asked the prisoner to come to Perth for a holiday. When the prisoner said that she had no money, Kerry said that she and Samantha would send the prisoner money. The prisoner said "I can't bring these problems to you". 62 On the evening of 29 June the prisoner went home from the shop. She told the deceased that Kerry had asked her to go to Perth for a holiday. The deceased said to the prisoner "What did you say to her on the phone? Were you rude to her? She owes us all this money". Some of the money Kerry had borrowed to pay for the airfares was still outstanding. The deceased demanded to know when Kerry would repay the money and whether Kerry was making Bethany walk. 63 The prisoner was upset and went to the bathroom in the house. The deceased followed her to the bathroom, pulled a chunk of the prisoner's hair and cut it off with a pair of scissors. The deceased said "Now you can't go to Perth". The prisoner was shocked by the deceased's act. The prisoner thought to herself "I can't live like this any more". 64 The prisoner went into the computer room, where the deceased was. The deceased sneered at the prisoner and lifted up his hand in a dismissive way. The prisoner attempted to do some sewing on a teddy bear but was unable to do so. The deceased announced that he was going to bed and went to bed. 65 At about 10.30 pm the prisoner went to bed. After a while she fell asleep. She woke up at about 2 am. She had been waking up at 2 am every morning. In an answer given in the interview on 30 June 1999 she said "Waking up constantly during the night with all the money that we owe". 66 The prisoner gave an account in her evidence at the trial that after waking up she walked outside and looked at the stars, and while she was outside she heard a noise which sounded like someone walking on the floorboards of part of the house, that she thought it was her husband moving around inside the house and that she was terrified because she would be unable to give her husband a reason for being outside the house. She grabbed the axe from the wood pile in the yard because she was frightened of her husband and then went back inside. 67 The prisoner gave a quite different account when she was interviewed by police on 30 June 1999, only a few hours after the killing. She said in part of her answer to Q42 in the interview that, after getting up, she looked at the night sky from within the house. After a digression, she continued:- "I can't say what thoughts made me think, the moon, the way the moon was shining, because, like, just shining on the axe which is stuck in a piece of wood outside, you know, there's the axe and I thought, mmm, so I went outside, took it out of the piece of wood and went back inside again ……" 68 In this version the prisoner first saw the axe while she was still inside the house and she went outside the house to get the axe. There was no mention in this version of her hearing noises from the house or being frightened of her husband. 69 I accept what the prisoner said in the answer to Q42 in the interview and I do not accept her evidence, to the extent to which it is inconsistent with the answer she gave to the police. 70 After re-entering the house with the axe, the prisoner heard her husband snoring. She became angry, because, if she happened to snore, her husband would kick her until she woke up. The prisoner could see the shape of the deceased in the bed. She hit the deceased on the head a number of times with the blunt end of the axe head. She thought that she had hit him four or five times. Dr Bradhurst, the pathologist, found eight distinct wounds on the deceased's head and I find that there were eight blows. In Dr Bradhurst's opinion, which I accept, a severe degree of force was used. Photographs of the deceased's head showed deep gouges to the head. 71 The prisoner said that she did not know what her thought processes were at the time of striking the deceased with the axe. Immediately afterwards she realized that what she had done was wrong but she could not recall thinking that while she was striking the deceased. 72 The prisoner washed the axe. The prisoner noticed that there were blood stains on a curtain. She washed the curtain, but not, I accept, for the purpose of avoiding responsibility for the crime. 73 The deceased was breathing loudly and the prisoner got a doona from another bedroom and covered the deceased with the doona, so that the prisoner did not hear the breathing. 74 When the deceased stopped breathing, the prisoner got a drink of water and sat on the back step of the house, watching the sun rise. 75 The prisoner changed out of her pyjamas into street clothes, because she needed to go to the shop to put a sign in the window to say that the shop would not be open that day. She went to the shop and put a sign in the window. She left a message in the shop that a customer who had almost completely paid off a layby could have the goods. 76 The prisoner cut the rest of her hair short, showered, packed a bag, took a last walk along the beach and drove to the Bateman's Bay police station. She went to the Bateman's Bay police station, because she did not want to run the risk of meeting anyone she knew at the Narooma police station, which was nearer. 77 She presented herself at the counter of Bateman's Bay police station at 12.15 pm. She told Constable Flood, a female officer at the counter, that she had hit her husband in the head with an axe and that he was dead. Constable Flood gave evidence, which I accept, that the prisoner displayed no emotion, that she spoke freely of what she had done, that she was calm but that she was a little withdrawn. 78 The prisoner was interviewed by police in a recorded interview, which commenced at 1.34 pm and concluded at 2.40 pm. She appeared calm and composed in the video of the interview. She gave long narrative answers to many of the questions she was asked. 79 The following questions and answers occurred in the interview: Q64: Was there any violence, in, in, in your marriage? A. No, he wasn't a violent man, it was all words, it wasn't, he was never violent, physically violent, he has never hit me. Q65: Okay, was there any abuse in your marriage? I gather what you are talking about today is mental abuse. A. Yeah ….." 80 Reliance was placed in argument on some of the evidence given by the witnesses who saw the prisoner or the deceased in Tilba. None of these witnesses had any close association with either the prisoner or the deceased. 81 Mr. Windever gave evidence that on 23 June 1999 the prisoner had sounded upset when she told Mr Windever on the telephone that an application that she had made for a loan had been unsuccessful. It is to be borne in mind that Mr Windever was the property manager of the real estate firm which managed the residential premises in which the prisoner and the deceased were living and at the time of the telephone conversation the prisoner and the deceased owed about three months rent. By this time the prisoner and the deceased also owed about three months rent on the shop premises. 82 Mr Kropf gave evidence that in Tilba the prisoner would appear to be happy one day, moody the next. Sometimes she would walk down the street, with her head down, not acknowledging other people. 83 Mr Jones who operated a store in Central Tilba gave evidence that a few days before 30 June he saw the prisoner walking with her head down. 84 Ms Preston gave evidence that if the deceased said "Right we're going, she (the prisoner) would jump". 85 Catherina Whiffen attended the teddy bear making classes. The classes were conducted either at the shop or at the prisoner's house. The classes initially used to run to about 9.30, with the participants having coffee towards the end of the class. However, at the instigation of the deceased, who was present at classes conducted in the house, coffee was served near the beginning of the class and conversation after the class had finished was eliminated. Ms Whiffen said "I don't think he wanted her to have any friends". She also gave evidence of examples of dictatorial conduct by the deceased in regard to the prisoner. 86 After this summary of the facts I return to the question of determining the basis or bases on which I should find that the prisoner committed the offence of manslaughter. 87 Neither the Crown Prosecutor nor counsel for the prisoner submitted that I should find that the prisoner, not having the intent required for murder, committed unlawful and dangerous act manslaughter. I am satisfied beyond reasonable doubt that the prisoner did the act, or rather the acts, causing death, that is the eight acts of striking the deceased with the axe, with the intent required for murder. 88 It is true that the prisoner did not make any admission of having had an intent to kill or to inflict really serious bodily injury. She said in her evidence that she did not know what her thought processes were at the time of killing the deceased. However, I am satisfied that the only reasonable inference that could be drawn from the circumstances that she struck the deceased eight times on his head with an axe with a severe degree of force, even if she used the blunt end of the head of the axe, is that at the time of striking the deceased she had the intent required for murder. I accordingly consider that the prisoner should not be sentenced on the basis that she committed unlawful and dangerous act manslaughter. 89 I am also satisfied beyond reasonable doubt that her intention at the time of striking the deceased was to kill the deceased and not merely to inflict really serious bodily injury. In addition to the circumstances I have already mentioned, her conduct soon after striking the deceased supports the inference that at the time of striking the deceased she intended to kill him. 90 Both the Crown Prosecutor and counsel for the prisoner submitted that I should find that the prisoner had committed provocation manslaughter. I agree that I should find that the Crown did not succeed in proving beyond reasonable doubt that the prisoner in killing the deceased did not act under provocation. Having found that the Crown did not succeed in discharging the onus of disproving provocation, I am required to sentence the prisoner on the basis that the acts of striking were done as a result of a loss of self control on the part of the prisoner that was induced by conduct of the deceased and that the conduct of the deceased was such as could have induced an ordinary person in the position of the prisoner to have so far lost self control as to have formed at least an intention to inflict really serious bodily injury. 91 Counsel for the prisoner submitted, and the Crown Prosecutor disputed, that I should also find that the prisoner committed substantial impairment manslaughter. I accept the submission made by counsel for the prisoner that there would be no inconsistency in my finding both provocation manslaughter and substantial impairment manslaughter. 92 Under s23A of the Crimes Act, which came into effect on 3 April 1998, a person who would otherwise be guilty of murder is guilty of manslaughter, if:- 93 1. At the time of doing the act causing death the person's capacity to understand events or to judge whether his or her actions were right or wrong or to control himself or herself was substantially impaired by an abnormality of mind arising from an underlying condition and 94 2. The impairment was so substantial as to warrant liability for murder being reduced to manslaughter. 95 The onus is on an accused person to prove both parts of the defence on the balance of probabilities. 96 As previously indicated, two psychiatrists gave evidence at the trial. Dr Clark gave evidence for the prisoner and Dr Skinner gave evidence for the Crown. 97 Dr Clark saw the prisoner on four occasions in June and July 2000. The first occasion was on 21 June. The last occasion was on 24 July. 98 Dr Clark took a history from the prisoner. He gave evidence that among other things the prisoner told him about the deceased's conduct:- "She said it was an insidious process initially of demeaning her and then treating her like a sub-human being, not allowing her any freedoms, and this gradually got worse and worse until there were physical assaults in the sense of sexual assaults. And this - and I think the final incident was when he allegedly cut her hair off". 99 Dr Clark formed the opinion that at the time of killing the deceased the prisoner was suffering from a major depression. He considered that factors which supported this opinion were the nihilistic nature of the act of killing, that the prisoner had been thinking of suicide, that she had been suffering from sleep disturbance, that she had lost interest in everyday things, that she had been neglecting herself, taking no pride in her appearance and that her weight had been fluctuating. 100 Dr Clark was asked whether in his opinion the prisoner had suffered from a bipolar disorder and he replied:- "This only became a possibility to my mind when I considered her presenting state in the last couple of times I'd seen her. And she appears much brighter now". 101 Dr Clark noted that the prisoner had described herself as being "dissociated" at the time of the killing. 102 Dr Clark considered that the prisoner's capacity to control herself had been substantially impaired at the time of the killing and that her capacity to reason had been impaired. 103 In cross-examination Dr Clark was vague about the dates of the occasions on which he had seen the prisoner. He agreed that while he had read a transcript of the interview of the prisoner by the police on 30 June 1999, he had not seen (or listened to) a video of the interview. 104 Dr Clark was cross-examined about the history he had received from the prisoner and the way in which he had recorded it. Dr Clark had chosen the word "tyrannical" to describe what he had been told by the prisoner about the deceased's conduct. The prisoner had told Dr Clark that the deceased had "imprisoned" or "enslaved" her. Dr Clark had described the prisoner as being in "a cocoon of terror". 105 Dr Clark recorded the prisoner as telling him that in the early morning of 30 June 1999 she had gone outside and was looking at the moon, when she saw the moonlight on the axe. She also told Dr Clark that she was apprehensive in case the deceased woke up. 106 Dr Clark identified as indicia of depression:- (i) Depressed mood (ii) Diminished interest in activities (iii) Weight loss or weight gain (iv) Insomnia or hypersomnia (v) psychomotor agitation or retardation (vi) Fatigue (vii) Feelings of worthlessness (viii) Diminished ability to think (ix) Recurrent thoughts of death and suicide 107 Dr Skinner saw the prisoner on one occasion only, on 20 July 2000, when she saw the prisoner for two and a half hours. She took a history from the prisoner. She watched and listened to the video of the interview of the prisoner on 30 June 1999. 108 As I have already noted, the prisoner told Dr Skinner, when asked by Dr Skinner why she had looked up poisonous plants on the internet, "I had no definite intention, perhaps for Bruce or harm myself". 109 Dr Skinner expressed the opinion that while the prisoner may have been suffering from depression at the time of the killing, it was a mild, and not a severe, form of depression. 110 Dr Skinner gave the following evidence:- "... to laymen's understanding depression means a feeling of sadness and perhaps despondency, a sad mood. To the psychiatrist, clinical depression is a term used when the depression is so severe that it begins to affect physical functioning and the person with, what we would describe as a clinical depression, has a number of characteristic features, such as a sleep disturbance, which is usually characterised by early morning waking; physical changes, such as a severe slowing of all movements so that the person walks, talks and moves very much more slowly than normal. And there's often long pauses before they initiate a movement, so there'll be sitting in a chair and then remain seated before they actually initiate an action that they're contemplating. Persons with severe depression often have a very characteristic sort of facial expression, like a really worried frown, but something that can't be mimicked. It is a particular expression that anyone looking at them would recognise them as looking sad, down, depressed, and it is a constant mood, so that they're constantly unhappy, sad, and they're not able to brighten up. And even the things that they normally enjoy very much they're just not able to get any enjoyment out of it. They remain feeling very sad and miserable and just can't get pleasure out of anything. They withdraw socially and don't want to talk to other people. Some people won't even answer the phone, won't go out. If they do talk to someone it's just a one or two word reply. So the depressed person will spend a lot of time sitting in a chair, neglecting himself not even showering sometimes, not even worrying what they look like, not caring about things. And there's an impairment of cognitive functioning. By that I mean ability to think clearly, to remember things, to concentrate on things, and so they're not able to carry out their normal functioning in a job or in a - you know, in any normal capacity. Q. Would you expect a person suffering from such a severe clinical depression to be able to run or conduct a business? A. No, they wouldn't be able to effectively conduct a business. If they had a business you would expect the business would be run down because they would be just sitting there doing very little". 111 In Dr Skinner's opinion, the prisoner's capacity had not been impaired at the time of the killing in any of the respects set out in s23A of the Crimes Act. 112 Dr Skinner was cross-examined at considerable length and I have taken all of this cross-examination into account. 113 Dr Skinner accepted that the teddy bear business being conducted by the prisoner would have been a comparatively undemanding business to conduct. However, she said that, if the prisoner had been severely depressed, the prisoner probably would not have gone to the shop or would have been very unreliable about opening the shop. 114 Dr Skinner pointed out that during the trip to Sydney on the week-end preceding the killing, it was the prisoner who had initiated or proposed a number of activities, like going to The Gap, going by ferry to Manly, going to The Rocks and discovering a service station which would accept payment by cheque. Dr Skinner said:- "To think of going on a trip to Manly to me suggests the person is looking at something that they might… enjoy". 115 Evidence of observations of the prisoner by persons in Tilba was put to Dr Skinner. Dr Skinner did not agree that instances of the prisoner sounding upset, looking unhappy and walking with her head down not acknowledging people, indicated severe depression. 116 In Dr Skinner's opinion, the prisoner's failure to notice that a member of her teddy bear making class had sewn on a leg back to front was a lapse of concentration and not an indicator of severe depression. She said:- "I think a person with severe depression would probably not have run the class or would have been noticeably distracted or would have suffered a more severe cognitive impairment, they wouldn't have been able to run the class in an organised way". 117 Dr Skinner had recorded in her notes that on 20 June the prisoner had contemplated suicide. However, the prisoner had not carried out any action to harm herself and had subsequently continued to carry on the business and had gone on the trip to Sydney. There was nothing to indicate that the prisoner had been thinking about suicide during the whole period of ten days between 20 June and 30 June. 118 In forming her conclusion that the prisoner was suffering from only a mild form of depression, Dr Skinner took into account her viewing of the video of the interview. She thought the interview was significant, because it took place so close to the time of the killing. On the basis of her viewing of the video Dr Skinner said:- "I formed a conclusion that she did not have the characteristics of a person with severe depression. There was no evidence of some of those features that I've described, such as the depressed face, with the worried frown sort of look, the motor retardation, slowness of speech; none of those things were present". 119 Dr Skinner gave evidence that coming out of or recovering from a severe depression is gradual (and hence would be unlikely to occur in the few hours between the time of the killing and the time of the interview). 120 Dr Skinner said that during the marriage the deceased had not been totally controlling. The prisoner had been employed or had operated a business. The prisoner had had at least some say in the relationship. When she was offended by the deceased's lack of personal hygiene, she had told him to take a shower. She was the one who during the trip to Sydney made suggestions about what they should do. 121 I consider that I should prefer the evidence of Dr Skinner to the evidence of Dr Clark and should find that, while the prisoner was suffering from depression at the time of the killing, it was a mild depression and not a severe depression. 122 In my opinion, it was a considerable advantage for Dr Skinner that she viewed the video of the interview of the prisoner on 30 June 1999 and saw and heard the prisoner being interviewed, whereas Dr Clark did not. I have viewed and listened to the recording of the interview and I accept Dr Skinner's evidence that during the interview the prisoner did not appear to be severely depressed. 123 I have rejected as inaccurate parts of the history which was given by the prisoner to Dr Clark and on which Dr Clark based his opinion, for example the parts of the history in which the prisoner said that she was already outside when she first saw the moonlight on the axe and that she took the axe because she was afraid of the deceased. 124 I consider that some of the history as recorded by Dr Clark, including that the deceased had "enslaved" the prisoner and that the prisoner was living in "a cocoon of terror" overstates the true history. 125 I consider that it is significant in assessing the degree of the prisoner's depression that up to the day of the killing the prisoner continued to operate the shop and to conduct the teddy bear making classes and that on the previous week-end in Sydney she had initiated activities and she had given thought to what might be pleasurable activities to engage in. 126 I do not consider that I should find that the prisoner suffered from a bipolar disorder. Dr Clark regarded it as only a "possibility" that the prisoner suffered from a bipolar disorder and the basis given for even this possibility seems to me to be flimsy. An opinion by a general practitioner who had seen the prisoner in Tasmania was formed only in hindsight. 127 I am not satisfied on the balance of probabilities that at the time of the killing the prisoner's capacity to understand events or to 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. Alternatively, I would not be satisfied on the balance of probabilities that any impairment was so substantial as to warrant liability for murder being reduced to manslaughter. Accordingly, I do not find that the prisoner is to be sentenced on the basis that she committed substantial impairment manslaughter. 128 Although I have found that the prisoner did not commit substantial impairment manslaughter, she was suffering from mild depression at the time of killing the deceased and this state of mind is a circumstance of mitigation. 129 I was referred by both the Crown Prosecutor and counsel for the prisoner to a number of authorities, for the principles of sentencing stated in them or in support of a submission that the sentencing decision in a particular authority afforded some guidance to what would be a proper sentence in the present case. 130 In R v Blacklidge (unreported Court of Criminal Appeal 12 December 1995), which was a case dealing with manslaughter by reason of diminished responsibility but in which statements of principle were made which are applicable to manslaughter generally, Gleeson CJ, with the concurrence of the other members of the Court, said at p 4:- "It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability. At the same time, the courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of a human life. That is the starting point for a consideration of the appropriate penalty, and a key element in the assessment of the gravity of the objective circumstances of the case. ( R v Dodd (1991) 57 A Crim R 349; R v Hill (1981) 3 A Crim R 397 at 402). 131 In R v Morabito (1992) 62 A Crim R 82 Wood J, as his Honour then was, who delivered the leading judgment and with whom the other members of the Court agreed, referred with approval at 85-86 to what Lee J had said in R v Whalen (unreported Court of Criminal Appeal 5 April 1991):- "… society can never condone the taking of a human life as a solution to marital discord. The law does no more than recognise that provocation can overcome a person's self-control and result in that person killing another, and in that circumstance it allows the crime to be seen as manslaughter, not murder". 132 In R v Alexander (1994) 78 A Crim R 141 Hunt CJ at CL, sitting without a jury, found the accused guilty of provocation manslaughter. In his remarks on sentence his Honour said that he agreed with the view that "it is only in most exceptional circumstances that a non-custodial sentence will be imposed in a domestic provocation case". 133 In his remarks on sentence in Alexander Hunt CJ at CL suggested that three particular matters had been taken into account in provocation manslaughter cases:- "(1) the degree of provocation offered (or, alternatively, the extent of the loss of self-control suffered), which when great has the tendency of reducing the objective gravity of the offence; (2) the time between the provocation (whether isolated or cumulative in its effect) and the loss of self-control, which when short also has the tendency of reducing the objective gravity of the offence; and (3) the degree of violence or aggression displayed by the prisoner, which when excessive has the tendency of increasing the objective gravity of the offence". 134 The Crown Prosecutor referred me to a number of cases, which it was submitted might afford some guidance in sentencing the prisoner. The Crown Prosecutor referred particularly to R v Whalen, in which the Court of Criminal Appeal dismissed a prisoner's appeal against a sentence of eight years, with a minimum term of five years. Whalen was a case in which a wife in an unhappy marriage, who had been subjected to psychological mistreatment by her husband humiliating her rather than to physical violence, had killed her husband while he was in bed, using an axe and a knife. 135 Counsel for the prisoner submitted that I should find, and I accept that I should find, that there was provocative conduct by the deceased, both over an extended period down to 29 June 1999 and on the night of 29 June itself. 136 Without endeavouring to be exhaustive, I am satisfied that the deceased was a domineering and controlling person, who sought to dominate and control the prisoner, even to the extent of following her around in the house. He was not, however, completely controlling. The deceased was a recluse himself and he sought to prevent the prisoner from having a social life of her own. The prisoner found the relationship "stifling". 137 The deceased used cruel and abusive language to the prisoner. He made cruel comments about her alleged lack of intelligence and about her physical appearance. The deceased demonstrated a false affection for the prisoner in the presence of his mother, which he did not show when he and the prisoner were alone together. He had been at times domineering and cruel to the prisoner's daughters and had made cruel comments about her daughters to the prisoner. 138 On the night of 29 June the deceased cut off part of the prisoner's hair for the purpose of preventing her going to visit her daughter Kerry in Perth. This was a triggering event. Subsequently that night the deceased behaved towards the prisoner in the way I have described. 139 During the marriage the deceased committed acts of physical abuse against the prisoner, such as smacking her legs and buttocks with a ruler, pinching her, lightly punching her in the stomach or arm, twisting her nipples and requiring her to have sexual intercourse with him, when she was unwilling, indicating that he was using the prisoner for his own sexual relief. 140 These acts of physical abuse were humiliating and distressing. I consider that they were regarded by the prisoner primarily as psychological abuse, rather than as physical violence. When the prisoner was interviewed by the police, she said that the deceased had not been a physically violent man and that what she was complaining of was mental abuse. 141 As regards the three matters identified by Hunt CJ at CL in Alexander: 142 1. The degree of provocation and the extent of loss of self-control. 143 In assessing the degree of provocation to the prisoner, it is necessary to take into account the personal characteristics of the prisoner, including her emotionally deprived and troubled childhood and adolescence and her abusive first marriage. When compared with the provocation in some of the other cases to which I was referred, I consider that the degree of provocation in the present case should be assessed as medium, rather than great. I do not consider that the prisoner suffered a complete loss of self-control, even after taking into account the violence of the acts of killing. 144 2. The time between the provocation and the loss of self-control. 145 Some hours elapsed between the last provocative conduct on the part of the deceased before he went to bed and the killing of the deceased. This was not a case of an immediate response done in the heat of the moment. The prisoner formed the intent to use the axe to strike the deceased, when, from inside the house, she saw the moonlight shining on the axe. She sustained this intention, while she went outside, got the axe and returned inside. 146 3. The degree of violence or aggression displayed by the prisoner. 147 The degree of violence was very great. The prisoner struck the deceased eight times on the head with the axe with a severe degree of force, while the deceased was sleeping. 148 I have already referred to many of the subjective circumstances of the prisoner. She was forty-seven years old at the time of killing the deceased. She had been married twice and had two daughters by her first marriage. She had no previous criminal history. She had been employed in a diagnostic department at a hospital in Tasmania and had then carried on the teddy bear shop at Tilba. 149 On 30 June 1999 she handed herself in at the Batemans Bay police station and made extensive admissions about killing the deceased. Her admissions were tantamount to an admission of guilt of manslaughter. I do not, however, consider that she is entitled to a discount in sentencing on the basis of the principle in R v Ellis. Even if she had not gone to the police, the death of the deceased, her husband, would soon have been discovered and there would have been a powerful circumstantial case against the prisoner that she had killed him. 150 The summary in the pre-sentence report, which was prepared by a Probation and Parole officer who had seen the prisoner a number of times while she was on bail pending her trial, was:- "Over the past year it has become apparent to the writer that Ms Vandersee was neglected and probably disliked by her mother, and was subject to physical, emotional and sexual abuse throughout her life. She has spent the past year looking at difficult emotional issues and memories which she had suppressed for many years. Ms Vandersee has looked closely at how these events led to her committing the offence, and has made significant progress in making the changes necessary to avoid such behaviour in the future. Despite the intensive support of the writer, her sister, her daughters, her counsellor and her friends, Ms Vandersee continues to lack self-confidence and to doubt her self-worth. A small example of this is her embarrassment about telling anyone, including custodial staff at the prison, of her hearing impairment (she is 90% deaf in one ear and 30% deaf in the other)". 151 As I have already noted, on 30 June 1999 the prisoner handed herself into the police and admitted her guilt. However, she did not express any regret that she had killed her husband. 152 I have taken into account a reference from a Catholic priest whose congregation the prisoner has joined and a number of other references. The priest considers that "she is a fundamentally sound and responsible person". 153 In my opinion, this is not an exceptional case in which a non-custodial sentence could properly be imposed. The sentence will commence from 1 August 2000, being the date on which, after the jury had returned its verdict of guilty of manslaughter, I declined to continue the prisoner's bail. I am satisfied that there are special circumstances within s44 of the Crimes (Sentencing Procedure) Act, in that the prisoner is a middle aged woman who has never been in prison before and who will require a proportionally longer than usual period of supervised liberty after she is released. 154 I have endeavoured to take into account all relevant factors, including the objective gravity of the offence of taking the deceased's life, that the offence was committed under provocation, that the prisoner was depressed at the time of committing the offence and the subjective features of the prisoner. Mrs Vandersee, I sentence you to imprisonment for eight years commencing on 1 August 2000. I set a non-parole period of five years commencing on 1 August 2000. I specify 1 August 2005 as the earliest date on which you will be eligible for release on parole. Addendum to Remarks on Sentence: With reference to par149 of the Remarks on Setence, I have allowed the prisoner a discount for handing herself in and making extensive early admissions, alhough I do not consider that she is entitled to a further discount on a basis that, apart from her admissions, the offence and her guilt of the offence would be unlikely to have been discovered. On 30 June 1999 the prisoner made admissions that she had killed the deceased by striking him on the head with an axe. However, there were a number of issues at the trial which were not covered by admissions made by the prisoner on 30 June 1999, including whether the prisoner had acted with the intent required for murder, whether the Crown had proved that the prisoner did not act in self defence, whether the prisoner could establish the defence of substantial impairment and a number of aspects of whether the prisoner had not acted under provocation. ********** Last Modified: 11/21/2000 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.