Regina v Melrose [2001] NSWSC 847

New South Wales Supreme Court

CITATION : Regina v Melrose [2001] NSWSC 847 revised - 14/05/2002 CURRENT JURISDICTION: Criminal FILE NUMBER(S) : SC 70086/00 HEARING DATE(S) : 27 June 2001; 27 August 2001; 29 August 2001; 31 August 2001 JUDGMENT DATE : 31 August 2001

PARTIES : The Crown Mary Ann Melrose JUDGMENT OF : McClellan J

P Barnett (Crown) (27 June 2001) COUNSEL : P Dare (Crown) 27 & 29 August 2001) P Woods (Crown) (31 August 2001) P Hamill (Offender) SOLICITORS : Director of Public Prosecutions (Crown) Western Aboriginal Legal Service (Offender) CATCHWORDS : Sentencing - manslaughter - unlawful and dangerous act - offender pleaded guilty of manslaughter - domestic violence - relationship between offender and defacto characterised by violence and abuse - offender stabbed defacto following a confrontation - special considerations in the sentencing of aboriginal persons - exceptional circumstances - inapproprate for the imposition of a custodial sentence - good behaviour bond with conditions imposed in accordance with s 9 of the Crimes (Sentencing Procedure Act) 1999 LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 s 9 R v Roberts NSWSC, Hunt J, 21 August 1989, unreported CASES CITED : R v Stanley Edward Fernando, (1992) 76 A Crim R 58 R v Kennedy, [2000] NSWSC 109 DECISION : See paras 32-34

THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

McCLELLAN J

DUBBO: FRIDAY, 31 AUGUST 2001

70086/00 - REGINA v MARY ANN MELROSE

SENTENCE

1 HIS HONOUR: The offender was indicted before me on the charge of murdering her de facto husband, David Charles Lamb, on 11 December 1999 at Goodooga. To that indictment she pleaded not guilty of murder, but guilty of manslaughter. The plea was accepted by the Crown in full discharge of the indictment. 2 The Crown accepts that there is no evidence from which I could be satisfied that the offender intended to cause grievous bodily harm to the deceased. I am satisfied the Crown's position is appropriate and I proceed to sentence upon the basis that the offence arose from an unlawful and dangerous act. 3 The events of 11 December 1999 are, regrettably, not an isolated incident. The relationship between the offender and the deceased was characterised by violence and abuse over a long period of time. There has been tendered before me records from Walgett District hospital, excerpts from the computer recording system of the New South Wales Police and detailed reports from a psychologist and a psychiatrist. An understanding of the relationship between the offender and the deceased can be constructed from the information contained in those documents. In addition, the offender gave evidence before me which is consistent with those records. 4 The offender was born at Walgett into a stable and apparently happy family. She still has good relationships with her siblings and was close to both of her parents. On leaving school she worked for a time as a secretary and has also worked with children. She first became involved in a long term relationship when she was in her twenties and married Kevin Melrose. She separated from Mr Melrose after two years of marriage, then formed another relationship which lasted for a relatively short time. Her son Steven was born of this second relationship. Thereafter she became involved with the deceased and they lived in a defacto relationship which lasted until his death, a total of approximately fourteen years. 5 The deceased was violent to both the offender and her children. Although he was sometimes violent when he was not drunk, it is apparent that many incidents occurred when he was seriously affected by alcohol and drugs. He sometimes abused the children and apparently the child, David, was particularly vulnerable to his aggressive behaviour. David had medical problems which his father did not understand and in frustration would hit the child. 6 The offender would frequently attempt to persuade the deceased not to hit his children which would be greeted with an attack upon herself. The offender suffered severe injuries at times which included an incident when she was kicked in the head, leaving scarring above her right eye. She was commonly hit in the mouth, causing lacerations and she suffered more than one blow to her forehead. 7 Physical fights between the offender and the deceased were frequent. On average they occurred about twice a week. There was another occasion when the offender apparently believed the deceased was sexually molesting her eldest daughter and when she sought to intervene she was beaten with a vacuum cleaner handle. Her daughter became very frightened of the deceased and tried to keep away from him,. The offender, believing her best course was to endeavour to reduce conflict tried to maintain a peaceful household. As a result of that incident, the older two girls of the offender would not live in the house with the deceased but lived with the offender's sister or other relatives. 8 For a significant period of time the offender and the deceased lived in Walgett. The offender had family in the town and if problems arose in the domestic setting she was able to retreat and stay with relatives or with her mother. She often went to a refuge because she knew that if she went to her mother's home the deceased would soon find her. 9 Apparently the offender and the deceased moved to Goodooga, which is about 176 kilometres from Walgett, approximately one year before the tragic events occurred. This occurred in circumstances where a house was available at Goodooga which was more suitable than the accommodation available in Walgett. As a consequence of that move the offender lost her family support, apart from a female cousin who was also living in Goodooga. The deceased had significant family support in Goodooga. 10 The offender disliked living in Goodooga and felt isolated by her lack of support. Apparently the deceased constantly ridiculed her, would tell her to get out of the house and would sometimes chase her out of the house. She became more depressed. The evidence is that by December 1999 she was suffering from significant depression. She wanted to return to live in Walgett but the deceased refused this request. One of the reasons for his attitude was that Kevin Melrose, the offender's former husband, lived in Walgett. The deceased was intensely jealous and constantly concerned that the offender would renew her relationship with Mr Melrose. 11 Over the time they were living at Goodooga the beatings suffered by the offender at the hands of her defacto became more frequent. He would commonly consume alcohol and would become drunk. 12 On the evening of the offence there was to be a function in the local hall which included a presentation of trophies to the children for the football season. The deceased did not want to go but the offender was keen to attend for her son, David had won a football trophy which was to be presented. As it happened the deceased did go with the offender and began drinking with friends. He consumed a significant amount of alcohol and an incident occurred when a woman approached him. The offender apparently remarked on this approach and the deceased then took her outside, punched her and caused lacerations to her mouth. The deceased then dragged the offender over near a fence where he pushed her to the ground and kicked her in the legs. The deceased returned to the hall but the offender went to the police station. Tragically, for it is likely that the events which followed would not have occurred if it had been otherwise, the police station was unattended, the two local constables being in Lightning Ridge for the night. The offender disturbed the sleep of Michelle Pearce, the lock-up keeper's wife, who had retired at about 11.40 pm. Although she was awakened by the time she was able to arise and observe the situation, the offender had apparently gone. 13 At about 1.30 am the offender managed to contact Walgett police station and spoke with the constable on duty and told him that she felt the need to get out of town and go to a refuge. The constable in Walgett tried to contact Goodooga police but the line was engaged. When he returned the offender's call, the line had dropped out. 14 After leaving the police station, the offender went home. By this stage she was angry and frustrated and apparently "went mad" smashing up things inside the home. She threw bottles out of the windows and turned many things upside down. She came across a large knife on the kitchen bench which she put up her sleeve and subsequently returned with it to the hall. Although she gave evidence before me, that she was not aware that she had taken the knife and could not explain why she was carrying it, she told the psychiatrist that she had "taken the knife to protect herself." When the offender arrived at the hall the deceased was not immediately apparent. 15 Shortly thereafter, the offender was standing with her cousin when the cousin remarked "look out, he is behind." There are varying accounts of what occurred next. There was a verbal confrontation and I am satisfied that the deceased also physically confronted the offender and continued his aggressive behaviour towards her. During this confrontation the offender dropped the knife onto the floor. This occurred when she was running, as was the deceased. The offender managed to pick up the knife, run around a table in the room and when the deceased stopped running, she stabbed him once at the top of his left shoulder. At the time of the stabbing the offender did not realise the extent of the injury and thought that she had merely wounded the deceased. 16 After the deceased was stabbed he left the hall by the side entrance and made his way out into Adams Street where he collapsed and quickly died. At the same time the offender left the hall and went to the police station. Michelle Pearce, the lock-up keeper's wife, had already heard voices coming from the area of the community hall and was again awake. She opened the door to the offender who told her "stabbed me defacto." At the time the offender was very upset and emotional. The offender was allowed into the police station where she remained until police from Lightning Ridge and Walgett arrived. The offender told Mrs Pearce that the deceased had "hit me in the mouth and I wet my pants. I went home and smashed the house up, and got a knife." 17 The offender was subsequently interviewed by police when she admitted the offence and provided a full account of the events. She told the police that the deceased had abused and hit her in the hall and forced her outside. She was then dragged across to the fence and assaulted. She also told them she went home, wrecked the house and got the knife. She came back to the dance where the deceased came and hit her and knocked her to the ground. 18 The offender said there had been nothing wrong earlier in the evening but when she told the deceased "the sheilas wanted to dance with him he went skyrocket." She said that he hit her in the mouth three or four times that the first blow was struck outside the hall. She said he was very aggressive in the hall and had forced her to go outside where he was accusing her of "wanting guys." The physical injuries to the offender are apparent from the photographs which have been tendered before me. 19 When asked what was going through her head when she stabbed the deceased, the offender said "well I just, it was getting to me. I have been with him for so long you know. Just he picks on me all the time. He has already gone, going to gaol over me. He comes out and does it again." 20 It is plain that there has been a long history of violence between the offender and the deceased. The deceased apparently received a custodial sentence for one incident and there were other apprehended violence orders which were made. 21 Post mortem examination revealed that the deceased had consumed significant alcohol. The offender had also consumed alcohol and had some traces of marijuana in her blood. 22 Following the death of the deceased the offender suffered significant shock which ultimately turned to remorse. She became severely depressed and believed she was being threatened by others, particularly members of the deceased's family. She felt she had no support and could not stop crying. She was admitted to hospital. At that time she had visions of the deceased's body standing in the room in front of her. She reported seeing his face constantly and she had hallucinations which were described by the psychiatrist as "very vivid and his expression is very stern." 23 The offender was transferred to Bloomfield hospital at Orange where psychiatric assistance was available. At the hospital she was counselled. She locked herself in a room using a screw driver out of fear that someone would kill her. She experiences feelings described by the psychiatrist as "paranoid" becomes frightened if she sees strangers, especially from other western towns. On one occasion she cut her left wrist and on another occasion she took an overdose of a combination of Sertraline and Chlorpromazine tablets. 24 The offender was seen on two occasions by Dr Yvonne Skinner, an experienced clinical psychiatrist. She concluded that there is ample evidence to corroborate the offender's account of physical abuse. This conclusion is not challenged by the Crown. She reports that the offender felt that her relationship with the deceased deteriorated when they moved to Goodooga and she felt helpless and unable to change the situation. Dr Skinner posed the question which many would ask in these circumstances as to why the offender did not leave the unhappy relationship. Dr Skinner said: "I think it would be have been almost impossible for her to make such a change. She reports that she did pack her bags and attempt to leave on a number of occasions. She took out apprehended violence orders. She went to live with her mother or other relatives, but he found her and forced her to return. She went to a refuge in Walgett, but that arrangement could only be temporary. From her description David Lamb (the deceased) had pathological jealousy and believed that she was interested in another man, and would have followed her if she had tried to move out of the area. She felt powerless because of the fact that he was physically violent towards her and the children." 25 Dr Skinner concluded that the offender, at the time of the offence and subsequently, has been suffering from Major Clinical Depression. She is of the opinion that the depressive illness has been so severe that she has experienced visual hallucinations and has attempted suicide on at least two occasions. She concluded that the offender has a dependent personality but is free from significant underlying personality pathology. 26 Dr Skinner gave evidence and stated that in her opinion there was a high risk of the offender committing suicide if she was placed in full time custody. There was less risk if a sentence served by weekend detention was imposed. She also believed that the offender would respond to a regime of strict supervision and it was essential that she receive adequate psychiatric assistance and counselling. In her opinion the offender must live without using alcohol or drugs. If this is achieved she was of the opinion that there was very little chance of a repeat offence or of any offence at all. I accept her evidence. 27 The courts have made plain on many occasions that the taking of human life cannot be viewed with any leniency in all but the most extraordinary circumstances. Not even extreme domestic discord can excuse the taking of human life. This is particularly the case when the offender is sentenced on the basis that there has been an intention to kill or to cause grievous bodily harm, but the crime of murder has been reduced to manslaughter by reason of provocation. A different view may be appropriate if extraordinary circumstances exist and the manslaughter, as in the present case, is found to have been caused by an unlawful and dangerous act. (See R v Roberts NSWSC, Hunt J, 21 August 1989, unreported). 28 The sentencing of aboriginal persons can also give rise to particular difficulties. These were discussed by Wood J in R v Stanley Edward Fernando, (1992) 76 A Crim R 58. The difficulties involved in offences arising in circumstances of domestic violence were considered by Barr J in R v Kennedy [2000] NSWSC 109. In that case, which involved an aboriginal person in circumstances of domestic violence, his Honour deferred passing sentence and imposed conditions on the offender. His Honour formed the view that the circumstances of the case were so unusual that there was no need for a custodial sentence in order to deter others from committing such crimes. 29 In the present case, having regard to the matters to which I have referred, I am satisfied that the circumstances are exceptional and inappropriate for the imposition of a custodial sentence. The only basis upon which, in my opinion, such a sentence could be appropriate would be in order to ensure that persons suffering domestic violence understand that the law cannot tolerate the taking of a human life. However, I am satisfied that the object of general deterrence can, in the present circumstances, be achieved if I defer passing sentence and require the offender to enter into a bond imposing strict conditions on her future conduct. I have also considered whether a sentence to be served by way of weekend detention should be imposed. In my opinion this would place very significant burdens on the offender. There is, in my opinion, a real risk that the offender would prove unable to accommodate the obligations of weekend detention with the need to care for her family and receive adequate treatment for her serious psychiatric condition. Of necessity she would be required to live away from her home environment and would be deprived of the support she will require if she is to rehabilitate herself. 30 It is obvious that the offender's rehabilitation is dependent upon a return to psychiatric health. This will be best achieved if she is able to return to a stable domestic situation and restore some structure to her seriously damaged life. 31 In forming the conclusion which I have, I am also mindful of the evidence which has been given to me both in documentary form and this morning in court by the Probation and Parole Service of the Department of Corrective Services. I am particularly mindful and grateful for the evidence which the Crown provided from Mr Tobin, the Area Co-ordinator of the Dubbo District Office. That evidence persuades me, notwithstanding some other material which I had earlier received, that an appropriate regime of assistance and supervision can be put in place under the control of the service. 32 Mary Ann Melrose would you please stand. You have pleaded guilty to the manslaughter of David Charles Lamb. In accordance with s 9 of the Crimes (Sentencing Procedure) Act 1999, I make an order directing you to enter into a good behaviour bond for a period of four years. 33 The bond shall contain the following conditions: 1. That you will appear before the court if called upon to do so at any time during the term of your bond.