R v DURANT [2007] NSWSC 428

New South Wales Supreme Court

CITATION : R v DURANT [2007] NSWSC 428

HEARING DATE(S) : 27.11.06-8.12.06 2.3.07

JUDGMENT DATE : 20 April 2007

JUDGMENT OF : Hulme J at 1

DECISION : I sentence the Prisoner to imprisonment for a non-parole period of 13 years and 6 months commencing on 19 January 2005 and to a further term of 4 years and 5 months. I record as the date upon which it appears that the Prisoner will become eligible for parole, 19 July 2018

PARTIES : Regina Michelle Lee Durant

FILE NUMBER(S) : SC 2006/400

COUNSEL : Crown: P Barnett Prisoner: Ms D Yehia

SOLICITORS : Crown: DPP of NSW Prisoner: Legal Aid Commission of NSW

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

HULME J

Friday, 20 April 2007

2006/400 Regina v Michelle Lee DURANT

JUDGMENT 1 HULME J: This is yet another tragedy born of abuse of a child, parental neglect and illegal drugs. The consequence is one man dead and a 26 year old mother of four children having to spend many years of her life in prison (although she would seem not to have been caring for them in any event). One cannot preside in the criminal courts of this state for long without reaching the conclusion that many children should be removed from their parents very early. Allowing them to remain in an addiction ridden household only maintains the problem "from generation unto generation". 2 In saying that I do not ignore the difficulty there would be in deciding who should go and who should stay. However it is a damming indictment of our society that we do not do far more to protect those too young to protect themselves. 3 On 8 December 2006 a jury convicted the Prisoner of murder. When arraigned, she had pleaded guilty to manslaughter but the Crown would not accept the plea in discharge of the indictment and a trial proceeded. 4 These remarks are directed to the topic of sentence. I should acknowledge at the outset that my findings must be consistent with the verdict of the jury and that before I can use adversely to the Prisoner matters going to her guilt or criminality I must be satisfied of them beyond reasonable doubt, but I need only be satisfied of matters in mitigation on the balance of probability. The category into which some of the matters referred to below under the heading "Psychiatric Evidence" falls may not be clear and when I come to that area I shall so far as possible indicate my degree of confidence with some particularity. 5 The victim of the offence was one David Allen Bryant. Some 2 or 3 months prior to his death, he had allowed the Prisoner and later some other people including the Prisoner's sister Melinda and others whom, because they were under 18 at the time, I shall refer to as L, C and K to live in a one bedroom flat in which he resided, the "guests" bunking down on the lounge or floor of the living/dining room. Why Mr Bryant permitted this use of his premises is not clear for he would seem not to have had any interest in drugs or particular interest in the persons mentioned. 6 At somewhere around 3 am on the morning of 15 January 2005 the Prisoner, Melinda, L, and K returned to the flat. The Prisoner had forgotten her key and woke the deceased in order that he might let the group in. Once inside, the Prisoner told Mr Bryant to go back to bed which he did and went back to sleep. Some time later the Prisoner procured some of the group to make a noise in order to wake the deceased and induce him to move from his recumbent position. This occurred and when his head had risen to at least some extent she struck it once behind the left ear with a medium sized sledge hammer. The result was a closed head injury from which he died. 7 The origin of the offence lies in the fact that the Prisoner seems to have been drugged and sexually assaulted in some way when she was about 6. The evidence as to this earlier incident is scant but sufficient to lead me to the conclusion that it probably occurred. A neighbour of the time gave evidence of a male, who died in late 1989 at about the time of the Newcastle earthquake, who spent a deal of time providing gifts, lollies and books to a group of children including the Prisoner. Another sister of the Prisoner gave evidence of an occasion at about that time when the Prisoner went missing, eventually came home, just stood there, would not eat dinner, and just went to bed and that after the incident the Prisoner complained of a sore vagina and commenced bed-wetting. Statements of the Prisoner to police, and on the night of the death of Mr Bryant, to others who were there indicate that she retained little recollection of the occurrence. She said she had some memory of it at about age 15 and some months later during the course of some sexual activity with her boyfriend. Even in her latest account of the incident, she does not know of the extent of any assault although in her ERISP she said "he didn't put his dick in me". 8 1987 records from the Department of Community Services, tendered during the sentencing proceedings, though not during the trial, show that there was some suspicion then that the male referred to had assaulted the Prisoner. 9 One day at the home of the deceased and about 2 to 3 weeks before his death, the Prisoner observed on a wall of the premises a photograph, taken some 15 years earlier of the deceased his wife and children. It occurred to her that the Prisoner was the person who had kidnapped, drugged and assaulted her when she was 6. She found confirmation of this belief in a number of events that subsequently occurred, such as Mr Bryant's movement of photos and placing them in certain positions and the way he looked at her. That confirmation can only be described as irrational and indeed I am satisfied that if she was sexually assaulted, it was not by the deceased. 10 The 15th January 2005 was a Saturday. On the preceding Tuesday the Prisoner, by then long addicted to drugs including cannabis, amphetamines including ice and heroin was admitted to hospital following excessive consumption of Datura, a drug which she and others staying in the deceased's house had extracted from a local plant. She was released from hospital at about 6pm on Thursday 13th January, proceeding shortly thereafter to acquire some speed. There is little other evidence as to what happened on Thursday but on the Friday according to what the Prisoner told Dr Allnut, she woke up on a lounge in the deceased's premises, went to a pub, had some Jim Beam, at the pub or soon after had a gram of amphetamine, visited a couple of relatives, smoking cannabis at one of these places, returned to the victim's flat early on the Saturday and there ingested speed on 2 further occasions. 11 Although there are some differences in detail, the substance of the Prisoner's account is corroborated by her sister Melinda and K. 12 Between the time of returning to the deceased's residence and her attack on him, the Prisoner gave to Melinda, L and K an account of what had happened to her at age 6. It seems that this was the first time she had discussed those events. In her account to Dr Allnutt, the Prisoner said that what then happened included drug taking, sitting around a table, going to the bathroom and more drug taking, going outside the front door, picking up a knife and picking up the hammer. It was after this that the Prisoner induced the waking of the deceased. 13 In her ERISP, which commenced in the early hours of 20 January 2005, and soon after she was arrested, the Prisoner said that she had done what she did because it had to be done, she didn't want the deceased to live anymore, she knew what she was doing, that she had said she was going to kill him, and that the "rock spider cunt needs to die now". She recounted other statements she had made around the table including:- "I told K, I said, for what he's done to me when I was a kid he's gunna pay for it now. And, and I'm, gunna take some of his stuff so we can get some money and that." 14 She explained the waking of the deceased so that he would know what was going to happen to him and "I wanted him to know that it was me, then just to see blackness, to know nothing." Elsewhere in the ERISP she said that she was fully in control and knew what she was doing. The ERISP continues:- "… I don't know the way to put how I was feeling. Q And this was… A Cause there was too much hurt in my life and… Q This is a good opportunity to tell us what you were feeling and, and how you were feeling and why you did things. If you want to tell us about your hurt… your hurting and, this is a good time. A I just had so much anger in, like, from 9 months old my father has bashed me, and then the first bloke that takes me away he does stuff to me that, to make me not remember what he had done. And then, then after that my fuckin mother hasn't been the same with me, always just, You're an evil cunt, you're a cunt of a kid. You know, fuckin and then when I was 12, 6, 6 years later, and fuckin her (me) boyfriend molested me then when I was 12 and you know in my own bed and I got kicked out of home. Living in the streets. 15 Immediately following the blow, noises were heard emanating from the deceased. The Prisoner, desirous of her younger sister not hearing these or seeing things, told her to get outside but instructed K to stay inside and then gave a number of instructions to him and L directed to the removal of a play-station, a stereo and some toy or model trucks from the unit in order that they could be exchanged for more speed. All four then left driving away in Melinda's car. The Prisoner then remembered that some fingerprints would have been left on a Foxtel set-top box which had been the subject of attempts to remove and also realised that the deceased's wallet had been left at the flat. At what seems to be the instigation of the Prisoner, the vehicle was turned around in order that these matters could be remedied, the deceased's flat was re—entered, and afterwards the four again drove off. 16 She told Dr Allnutt, a psychiatrist who interviewed her in connection with her trial, that she also realised that she had to pick up the weapon as it was evidence and she had to get rid of it. 17 When arraigned before Barr J and at her trial, the Prisoner pleaded not guilty of murder but guilty of manslaughter. It seems to have been understood at all relevant times by all concerned that that was on the grounds of diminished responsibility.