R v Joyce Mary CHANT [2009] NSWSC 593

New South Wales Supreme Court

CITATION : R v Joyce Mary CHANT [2009] NSWSC 593

HEARING DATE(S) : 14/04/2009, 05/06/2009

JUDGMENT DATE : 26 June 2009

JUDGMENT OF : Howie J at 1

DECISION : In respect of the offence of improperly interfering with human remains the offender is sentenced to imprisonment for 10 months to date from 6 November 2007 and expired on 5 September 2008. In respect of the offence of manslaughter the offender is sentenced to a term of imprisonment of 4 years 9 months made up of a non-parole period of 3 years 4 months and a balance of term of 17 months. That sentence is to date from 6 June 2008 and the non-parole period is to expire on 5 October 2011 the date upon which the offender is eligible to be released to parole.

CATCHWORDS : Criminal Law - Sentence - Manslaughter - Plea accepted on the basis of provocation - abusive relationship - deceased shot and dismembered by wife - long delay before body identified.

LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 - s 21A(1)

CATEGORY : Sentence

CASES CITED : R v Falls [2004] NSWCCA 335 R v Alexander (1994) 78 A Crim R 141

PARTIES : Regina v Joyce Mary Chant

FILE NUMBER(S) : SC 2008/16231

COUNSEL : Crown - M Hobart SC/C Everson Offender - J Spencer

SOLICITORS : Crown - S Kavanagh Offender - George Sten & Co

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

JUSTICE HOWIE

FRIDAY 26 JUNE 2009

2008/16231 R v Joyce Mary CHANT

REMARKS ON SENTENCE 1 HIS HONOUR: In October 1992 a number of body parts were found in and around Sydney. These included a torso wrapped in a bed sheet located at a truck-stop near Kiama and two human legs discovered in the Georges River at Taren Point. The remains were identified as coming from a Caucasian male of about 90 kilograms and approximately 178cm tall. There were no injuries to the body parts other than where they had apparently been severed from the body. They could not be further identified. The offender told her eldest son, Jamie, who was in custody at the time that his father had "abandoned us". 2 On 5 January 1993, Jamie returned home. He was suspicious of his father's absence and questioned the offender. She told him that it was his father's torso that had been found and reported on the news. She said, "We fought, he was shot, I cut him up". Jamie was told that she still retained the head and hands in two containers full of concrete. Shortly thereafter Jamie helped the offender dispose of the containers. They have never been recovered. 3 The offender reported her husband as missing on 23 March 1993. She stated that he had gone away to the car races on the October long weekend in 1992 and had never been seen or heard from again. 4 On 26 May 2006, the remains were identified by DNA evidence as being the deceased. 5 In November 2007 the offender was charged that between 1 August 1992 and 6 October 1992 she murdered the deceased, Wayne Chant, her husband. She was also charged with offences alleging that she improperly interfered with human remains in the period between September 1992 and December 1994. I will refer to the circumstances leading to the offender being charged with these offences shortly. 6 At her trial on 23 March 2009 she was arraigned on the charge of murder and one count of interfering with human remains between 1 August 1992 and 31 December 1994. She pleaded not guilty to the count of murder but guilty to the count relating to the human remains. 7 Evidence was called before the jury including from two of her sons. The offender maintained an account given in an ERISP to police after her arrest that the killing occurred as a result of the accidental discharge of the rifle when it was being brandished by her husband. In that interview she admitted having cut the body into pieces and disposing of the body parts, apart from the head and hands, shortly after the killing. The jury were instructed by me that, if they found the killing to have been the intentional act of the offender, they were to consider the issue of provocation. This was based upon a history given by the offender and supported by her sons of her husband's verbal and physical abuse of her and the eldest son. The offender did not give evidence at the trial. The jury were ultimately discharged when they could not agree upon a verdict. 8 On 14 April 2009 the accused was again arraigned at her own request. In respect of the charge of murder she pleaded not guilty to murder but guilty to manslaughter. The Crown accepted that plea in full discharge of the count of murder. On 5 June 2009 I heard submissions on sentence during which the offender gave evidence. 9 The maximum penalty for manslaughter is imprisonment for 25 years. The maximum penalty for interference with human remains is imprisonment for 2 years. 10 There was a statement of agreed facts handed up. In light of the absence of any evidence of the offender that she had intentionally killed her husband, the facts supporting the plea to manslaughter were based upon hearsay material of what the offender's barrister had told the Crown as to what the offender had told the barrister. This is to be treated as the truth even though the offender had always maintained to police that the killing was accidental. 11 I had, and still have, considerable doubts about this way of proceeding. Those doubts were somewhat confirmed when the offender gave evidence before me on the sentencing hearing. It was clear that, when she was taken to the exact mechanism of how she was able to shoot her husband, a much larger and stronger person than the offender, the offender's account was at best unreliable but probably untrue. It was certainly not in accordance with the statement of facts and, therefore, I brought her evidence to an end as neither counsel wanted to pursue the matter. I should note that the agreed facts do not accord with what the offender said in conversations with her son Jamie which were, unbeknown to either of them, being recorded by police. 12 However, the tendered facts are those upon which I am required to sentence the offender despite my misgivings about their veracity and the basis upon which the Crown has accepted them. They are as follows. The deceased had "been bashing" and verbally abusing the offender regularly for many years. The abuse increased markedly after the deceased had a motor vehicle accident where he injured his head. He had never before the night of the killing threatened her with a firearm. 13 On the night of the deceased's death he was drunk. There was an argument between the offender and him. The deceased produced a rifle, which caused the offender to become very frightened. There was a struggle in the third bedroom during which the offender pushed the gun towards the floor and a bullet was discharged. 14 The firing of the rifle caused the offender to panic and become more fearful. She left the bedroom, but the deceased followed her and dragged her into the main bedroom. As the offender was trying to pull away from the deceased, he fell onto the waterbed and dropped the rifle. 15 The offender believed that the deceased was going to kill her. She was "out of her mind with fear and lost her self-control". The offender picked up the rifle and shot him in the head. He groaned for a while and then went quiet. She took the gun, left the bedroom and locked the door. 16 The body of the deceased was left in the bedroom for a number of days. Eventually, the offender dragged the body into the backyard. There she dismembered the body using an axe because she could think of no other way to dispose of the body. She put the head in an esky and the hands in a container, filled them both with cement and hid them under the bird aviary in the backyard. She disposed of the rest of the body at various locations, usually on drives with her two youngest sons. 17 In November 2007 police spoke with the offender and Jamie at their home. The offender re-affirmed her version of the deceased's disappearance. Thereafter the police secretly recorded conversations between these two by the use of a listening device. The conversations disclosed that both knew of the killing of the deceased and the assistance of Jamie in disposing of some of his remains. 18 On 5 November 2007, after police had again visited the property, a conversation between the two was recorded in which the offender told Jamie that she did it because the deceased had threatened "to take your brother off me, because he didn't see me as a fit parent". 19 Although I heard evidence at the trial from both sons and saw an interview between the police and the offender, none of that material was re-tendered on the plea. I am, therefore, hamstrung in a proper evaluation of the facts and the appropriate sentence by the nature of the material placed before me. Had the jury convicted the offender of manslaughter on the basis of provocation, I would not have found the facts as set out in the agreed statement. I do not believe that they are true. 20 I heard evidence from the offender touching upon the assaults upon her by her husband. There was no objection to this evidence but I am not minded to accept it. In R v Falls [2004] NSWCCA 335 the Court of Criminal Appeal held that it was open to a judge to sentence according to the agreed facts and disregard evidence given by the offender relating to the facts surrounding the offence in addition to the agreed facts. In my opinion the offender has consistently tried to minimise her responsibility for the killing. Unlike the Crown, I would not have been prepared to act upon anything that the offender said about the circumstances surrounding the killing. 21 The Crown filed written submissions. Under the heading "Provocation Manslaughter", the Crown refers to the following matters as relevant to the determination of the level of culpability as referred to in the judgment of Hunt CJ at CL in R v Alexander (1994) 78 A Crim R 141 at 144: