R v Stewart [2008] NSWSC 1359

New South Wales Supreme Court

CITATION : R v Stewart [2008] NSWSC 1359

JUDGMENT DATE : 16 December 2008

JUDGMENT OF : Mathews AJ

DECISION : Sentenced to a non-parole period of four years to date from 25 June 2007. First date eligible for release on parole - 24 June 2011. Balance of term of two years and four months, commencing on 25 June 2011 and expiring on 24 October 2013.

CATCHWORDS : CRIMINAL LAW - sentence - manslaughter - jury verdict after trial for murder - offender with borderline personality disorder - intoxication - relevance of mental disorder on sentence - pre-trial offer to plead guilty to manslaughter - rejected by Crown - offender entitled to notional utilitarian value of offered plea

CATEGORY : Sentence

PARTIES : Danielle Stewart (Offender)

FILE NUMBER(S) : SC 2007/5781

COUNSEL : J Pickering (Crown) M Ierace (Offender)

SOLICITORS : Office of Director of Public Prosecutions (Crown)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

Mathews AJ

Tuesday 16 December 2008

2007/5781 R v Danielle STEWART

REMARKS ON SENTENCE 1 HER HONOUR: On 14 July 2008 Danielle Stewart was arraigned on an indictment which charged that on 23 August 2006 she murdered Chaim Kimel. She pleaded not guilty to this charge and a trial ensued. On 11 August 2008, the jury, by a majority of 11 to one, entered a verdict of not guilty of murder but guilty of manslaughter. 2 The background of the matter is as follows. The deceased, Chaim Kimel, was the offender's husband. They married in September 2004 but their relationship commenced some years earlier. There was a considerable age difference between them. In 2006 the offender was 30 years old and the deceased was 55. I shall be saying more about their relationship a little later, but it was clearly at times a highly volatile one. 3 I shall commence with the events of 23 August 2006. At that time the offender and the deceased were living in an apartment in New South Head Road, Rose Bay, together with the deceased's 16-year old son, Jordan. It was a Wednesday, and both the deceased and the offender had been at work during the day. They came home separately late in the afternoon. Not long afterwards they left to drive to the home of their friends, Harley and Angela, at Bellevue Hill. The four of them had a glass of wine together and then left to go to a restaurant in Rose Bay. The offender and the deceased arrived at the restaurant before the others and drank a bottle of wine between the two of them before their friends arrived. A further bottle was consumed whilst all four of them were eating their meal. They left the restaurant at about 8:30pm. The deceased accompanied their friends back to their Bellevue Hill home while the offender drove back to the Rose Bay apartment. Jordan was there at the time, and described her as "a little intoxicated" when she arrived. 4 Not long after the deceased telephoned the offender and asked her to join him at their friends' home. She left shortly afterwards and drove to Bellevue Hill. There the four of them sat and chatted and drank red wine. The offender must have consumed a considerable quantity of wine whilst there, given her subsequent very high blood alcohol reading, for she drank no further alcohol after she left the Bellevue Hill home, which was at about 10:30pm. 5 For some reason, which remains unexplained, the offender drove home on her own leaving the deceased to walk home. Jordan was on his computer when she arrived. He described her as appearing "very intoxicated". The offender logged into her own computer shortly afterwards. 6 The deceased arrived home about ten minutes later. Jordan said that the offender was at that time playing music very loudly through the computer speakers. The deceased turned the music down and the offender immediately turned it back up. This happened on several occasions. Jordan described the offender has becoming agitated, and he sensed an argument brewing, so he went into his bedroom and shut the door. 7 At 11 minutes past 11 the offender rang her grandmother, with whom she was very close, and spoke to her for about ten minutes. While she was on the phone the deceased changed the password enabling access to his business website. Shortly afterwards Jordan heard screaming and yelling between the offender and the deceased. The offender was calling out: "You fucking barred me out of the computer". The deceased said: "There's no need to get violent". A number of neighbours also gave evidence of hearing loud screaming, which apparently went on for several minutes. 8 At some stage the offender and the deceased moved into the hallway outside Jordan's bedroom. Jordan heard the sound of punching immediately outside his door followed by the thud of a body hitting the door. He assumed, because of the force of the impact, that it was his father striking the door. I should interpolate here that the deceased at the time weighed about 110 kilograms, which was approximately double the body weight of the offender. 9 Jordan then heard the noise of someone, presumably the offender, hitting the ground, as the noise was accompanied by her scream. Moments later he heard his father call out: "Are you crazy? What are you doing? Are you crazy?" Shortly afterwards his father emitted a large scream of pain. At this point Jordan opened the door and saw his father in the hallway holding his hands across his stomach. His hands and his shirt were covered in blood. The offender was holding an antique knife in her hand. Almost immediately afterwards, at 11:38pm, the deceased made a triple-0 call in which he said he had been stabbed by his wife. He was taken by Jordan and others to the ground floor of the building. The ambulance arrived shortly afterwards and took him to hospital. Emergency surgery was performed, but he died on the operating table. A post-mortem examination showed that he had sustained two major stab wounds to the abdomen. 10 In the meantime the offender had thrown business records and a computer onto the floor outside the apartment and then locked herself into the apartment. She refused to open the door for the police, and they eventually had to break it down. She was behaving extremely irrationally at the time, and they concluded that she must be under the influence of alcohol or drugs. They were sufficiently concerned about her condition to have her eventually placed in an ambulance and taken to the Prince of Wales Hospital. There she was behaving in such an agitated and aggressive manner that hospital staff were unable to take blood tests in order to determine whether she had taken an overdose of drugs. It was only after she was administered two separate doses of Diazepam that she finally settled so that a blood test could be taken. This showed a reading of .203 grams of alcohol per 100ml of blood. She also had 1.3ml of Quintepine in her blood. Quintepine is the main ingredient of the drug Seroquel. 11 Dr Allender calculated that at the time of the stabbing the offender's likely blood alcohol reading was .240. He said that at that level all people, including regular drinkers who have greater tolerance than others, would be impaired. Their cognitive skills would be greatly impaired, inhibitions would be removed so that aggressive tendencies would be brought to the forefront. As to the Seroquel, Dr Allender said it was not possible to work backwards and calculate the amount of drug in the bloodstream at an earlier time. Seroquel, he said, is an antipsychotic drug, and 1.3ml is more than double the therapeutic dose. A combination of a high level of Seroquel and alcohol he said could significantly impair a person's memory of events which occurred whilst they were affected. This is of real significance in this case because I accept that the offender has no memory whatsoever of the stabbing, nor of the events immediately leading up to it. 12 The Crown has submitted that there is a real possibility that the offender took at least part of the Seroquel after the stabbing. There is no firm evidence either way on this, although the offender told Dr Allnutt that she took large quantities of Seroquel before the stabbing, and I am inclined to accept this. Ultimately it makes little difference in my view. If she did take some of the drug after the stabbing, it was certainly not for any forensic purpose. She was much too agitated to be calculating in her actions at that time. In any event, the jury's verdict means that by reason of the offender's intoxication, be it from alcohol alone, or from a combination of alcohol and drugs, she lacked the requisite intention for murder. I will be returning to discuss this later. 13 At this point I turn to discuss the offender's background. She is now 32 years old, having been born in January 1976. She had a particularly difficult childhood. When she was aged 11 her mother died of breast cancer after about three years of illness. The offender had been very close to her mother, and had helped to look after her during her illness. Also at about this time the offender suffered sexual abuse from three separate perpetrators. The last was the worst. It involved forced intercourse, and took place at much the same time as the death of her mother. 14 The offender has a history of self-harm, starting when she was about ten or 11 years old. Professor Quadrio, who provided several reports on behalf of the defence, commented that self-harm in young children is almost invariably associated abuse and/or trauma. 15 Not long after her mother's death the offender's father remarried. His new wife had children of her own, and had little time for the young Danielle. When she was 12 her family sent her to a youth refuge saying that she was out of control. She returned to live with her father and stepmother at various stages during her schooling. However she also spent a great deal of time in refuges, or staying with friends. During this period she became introverted and depressed, and took to alcohol and drugs. She is clearly an intelligent person, and despite her difficulties she achieved sufficiently good grades to go to university. However, she was unable to persist with her studies because of her mental condition. In addition to abusing alcohol and drugs, she developed anorexia nervosa, and at one point her weight went down to 37 kilograms. 16 It is unnecessary to go through the offender's adult life in any detail. Consistent with her borderline personalty disorder, which I shall be discussing shortly, there was little stability in her lifestyle. She had several moves from city to city, or suburb to suburb, and undertook various studies and forms of employment. The offender was close to some of her family members, including her maternal grandmother, her stepsister and her stepbrother. She was devastated when the latter two both died in traumatic circumstances within a relatively short time of each other. 17 In 1999 the offender entered into a relationship with Jason Gooden, who has maintained a friendship with her, and who remains highly supportive of her. It was when Jason was away in Darwin in November 2000 that the offender first met Chaim Kimel. This was a turning point in her life, although she continued her relationship with Jason, at least on an intermittent basis, until the middle of 2002. 18 The offender's relationship with the deceased was a volatile one from the beginning. In January 2001 the offender was admitted to hospital following an overdose of prescription drugs. She complained, amongst other things, of having been sexually abused by her older employer. It is apparent that this must have been the deceased, for on a number of occasions since then the offender has talked about the deceased's sexual demands in the earlier stages of their relationship. In 2001 and January 2002 the offender again took overdoses of prescription tablets and was admitted to hospital. On the last occasion it was the deceased who contacted emergency services when he was unable to raise the offender from her bed. 19 A summary extracted from hospital and police records between January 2001 and April 2006 was in evidence at the offender's trial. This attested to the several occasions, particularly in the early stages of their relationship, when the offender either attempted suicide or threatened to do so. There were also a number of occasions between July 2002 and March 2005 when arguments between the offender and the deceased became so violent that police and/or hospital authorities became involved. On all of these occasions one or both of them was heavily intoxicated. Indeed, it is apparent that throughout their relationship both parties regularly used to abuse alcohol and other recreational drugs. 20 In spite of these problems the relationship endured and they married late in 2004, having a ceremony both in India and in Australia. In early 2005 the offender became pregnant to the deceased but the pregnancy was terminated on the basis that the relationship was not stable enough for them to have a child. Towards the end of 2005 they separated and the offender went to live in Balmain. She commenced an Internet relationship with a man in Melbourne and, at the end of that year, went to Melbourne to meet him. However, she returned to Sydney early in 2006 and resumed her relationship with the deceased. As it transpired, she had become pregnant in Melbourne. The deceased insisted that the pregnancy be terminated, and this took place. However, the offender found it extremely upsetting. 21 Shortly afterwards, in April 2005, she started to seek treatment from a psychotherapist, Dr Rosalind Foy. She first saw Dr Foy on 10 April 2006 and, thereafter saw her almost every week until 22 August, the day before the killing of the deceased. Dr Foy diagnosed her as suffering from borderline personalty disorder. The offender made no mention to Dr Foy of any physical abuse at the hands of her husband, although she did refer to emotional abuse. Dr Foy said she had had highly conflicting feelings about their relationship. On the one hand she had a high level of anxiety or fear about the loss of the relationship, on the other hand she resented what she described as his dominating and controlling behaviour. 22 I think I should interpolate here that the deceased was well aware of the offender's problems, and was apparently highly protective of her. It is very likely that the behaviour which she perceived as controlling or dominating was in fact designed to shield her from her own excesses. 23 The offender's conflicting feelings about the deceased were also conveyed to the other psychiatrists who gave evidence. She told Dr Allnutt that the deceased was funny, exciting, full of energy and intelligent. They had a lot to talk about, and communicated well despite their age difference. She described the relationship as consisting of intense highs and lows. 24 It was Dr Foy who put the offender onto Seroquel. She said in evidence that the offender was making positive steps during the time she was treating her. Both the offender and the deceased were trying to address their alcohol problems. They were drinking less than previously, and had adopted a firm rule of not having any alcohol in the home. This evidence accords with other evidence in the trial, to the effect that there seemed to be more stability in their relationship during the several months leading up to the killing, when the two of them and Jordan were living in the Rose Bay apartment. 25 This takes me to say something about the offender's psychiatric condition. Three psychiatrists gave evidence at the trial; Dr Foy and Dr Allnutt on behalf of the Crown, and Professor Quadrio on behalf of the offender. All agreed that the offender suffers from borderline personalty disorder. Dr Foy and Professor Quadrio described her condition as "severe", or "very severe". Dr Allnutt did not put it so high. This disorder is generally related to childhood trauma, of which the offender had more than her fair share. Dr Allnutt noted that the offender had made between eight and ten suicide attempts from the age of 12. Also at that age she started to abuse alcohol and other drugs. He described her as having a substance dependence disorder. 26 All the psychiatrists were in general agreement as to how the offender manifested her symptoms of borderline personalty disorder. She had a tendency to volatile relationships, a high level of impulsivity, emotional instability involving extreme mood swings, having a maladaptive way of dealing with difficult situations, self-destructive behaviour, substance abuse, and inappropriate anger. These symptoms of course are not present all the time. In many respects the offender was able to lead a relatively normal, if rather disorganised, life. She is clearly highly intelligent and, as Professor Quadrio commented, would have had great potential were it not for the problems associated with her condition. 27 Professor Quadrio has seen her since her conviction and an updated report was tendered on sentence. The professor noted that the offender's psychiatric status is unaltered in that she still has a severe borderline personalty disorder. However, the issues of substance abuse are now under control because she is in prison. She said that the offender is very slowly learning more adaptive ways of dealing with situations, particularly since she has no access to drugs or alcohol. 28 Professor Quadrio considers that the offender will require lengthy and intensive treatment for her condition. This is not available within the prison system. If she had access to such treatment, Professor Quadrio considered that she would have good prospects for significant recovery over two to five years. She considered that the risk of re-offending was very low, particularly if the offender was engaged in therapy and remained abstinent. She did not regard the offender as a risk to the community, but said that she would be a risk to herself unless and until she receives adequate treatment. 29 The offender has at no stage denied that it was she who inflicted the fatal stab wounds on the deceased. Nor could she in the circumstances, particularly as she has no memory of the events. A number of issues were raised at the trial, including self-defence and substantial impairment. I ruled during the course of the trial that a defence of mental illness was not available. There were three possible scenarios through which the jury was entitled to find her not guilty of murder but guilty of manslaughter. These were: first, that she lacked the requisite intention for murder; second, partial self-defence; and thirdly, substantial impairment. In my opinion the first of these is by far the most likely, particularly in the light of the evidence as to the offender's state of intoxication at the time and her irrational behaviour shortly afterwards. Both counsel agree with this proposition. Accordingly, the jury's verdict must be taken to reflect a finding that during the course of a physical altercation between them, the offender deliberately stabbed the deceased in the abdomen on two occasions. However, given her intoxication and her general mental state at the time, she lacked the requisite intention for murder. She is therefore to be sentenced on the basis that she committed an unlawful and dangerous act causing death. 30 I turn now to the various factors to be taken into account on sentence. Lengthy and detailed submissions, both written and oral, were presented on behalf of both the Crown and the offender. It is fair to say that in relation to many issues there is a significant divergence between their approaches. Indeed the extent of polarisation between them is, in my experience, most unusual. 31 One of the major issues in dispute between the parties related to the offender's borderline personalty disorder, and most particularly the part which it played in the commission of this offence and the extent of its relevance on sentence. 32 The parties did accept, as a matter of principle, that an offender's mental disabilities may be relevant to sentencing in the following respects: (1) moral culpability may be reduced where the disability materially contributed to the commission of the offence, thereby reducing the need for denunciation; (2) general deterrence should usually be given less weight where the offender suffered from a mental disability, because such an offender is not an appropriate medium for making an example to others; (3) a custodial sentence may be more onerous for a mentally ill person; and (4) the level of danger which the person presents to the community necessitate greater consideration being given to specific deterrence. 33 Apart from the unavailability in prison of appropriate treatment, according to Professor Quadrio, there is no suggestion that the offender's custodial situation will be more onerous by reason of her disorder. Accordingly, that factor can be put to one side. The other three, however, remain potentially relevant, and were the subject of submissions by both the Crown and the offender. 34 The Crown's primary submission was that the offender's borderline personalty disorder should not be used to mitigate sentence in either of the first or second respects. In this regard the Crown Prosecutor's written submissions quoted a passage from Dr Allnutt's evidence relating to acts done in anger, which the doctor described as a "normal feeling". 35 The submissions continued: "The Crown submits that your Honour would accept that once the offender was in this angry state, she had the same choice as any angry person, and her choice was to unlawfully kill the deceased. The Crown submits that her borderline personalty disorder was not a causal factor in this unlawful killing."