New South Wales Supreme Court CITATION : R v DOOLAN [2010] NSWSC 615 HEARING DATE(S) : 7 June 2010 JUDGMENT DATE : 7 June 2010 JURISDICTION : Common Law JUDGMENT OF : Michael Grove J EX TEMPORE JUDGMENT DATE : 7 June 2010 DECISION : Offender sentenced. CATCHWORDS : CRIMINAL LAW AND PROCEDURE - Sentence - Manslaughter - Plea of guilty accepted in satisfaction of indictment for murder - Unlawful and dangerous act - Particular facts - No special point of principle CATEGORY : Sentence PARTIES : REGINA - Crown Jacqueline Barbara DOOLAN - Offender FILE NUMBER(S) : SC 2009/160858 COUNSEL : H Wilson - Crown D Yehia SC - Offender SOLICITORS : Solicitor for Public Prosecutions - Crown Mandy Hull & Associates - Offender IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST MICHAEL GROVE J NEWCASTLE: Monday 7 June 2010 2009/160858 R v Jacqueline Barbara DOOLAN SENTENCE 1 HIS HONOUR: Jacqueline Doolan you pleaded guilty to manslaughter which the Crown has accepted in discharge of the indictment against you and I formally convict you of that offence. I note that the Parliament has set a maximum penalty of 25 years imprisonment for such an offence. 2 The facts are set out in an agreed statement which of course I accept and I do not propose to recite what can be read therein in full. I summarise however some aspects which appear therein. 3 The offence occurred at about 5pm on 6 March 2009. You were then aged nearly 43 and the victim, Glenn Green, was aged 49. You are both of Aboriginal descent. As you told Dr Seidler, your parents were devout Christians and did not abuse alcohol or drugs. Your family was not exposed to undue racism or social alienation as a result of Aboriginality. No submission was made that you were disadvantaged for those reasons. 4 In later life alcohol however became a problem for you, as it was for Mr Green. The evidence also shows that you were both users of cannabis. Paragraph 5 of the agreed statement of facts reads: "Both the deceased and the offender were alcoholics and their relationship was characterised by regular drinking to the point of intoxication. Apart from the periods when the deceased sought treatment for alcoholism, both typically spent each day in an alcohol induced haze." 5 You and Mr Green had commenced a relationship in round about 2005 and you lived in Department of Housing premises in Toronto. From time to time there were separations and also, for some periods, your daughters lived with you in the premises. A brief description of your relationship as observed by others has been incorporated in the statement of facts and again I quote: "Neighbours and others who knew the couple described their relationship as volatile and their time together was punctuated by frequent arguments, many of them verbal but some of which descended into violence from the deceased towards the offender or from the offender towards the deceased." 6 I do not pause to recapitulate the detail of all the observations, save to note that a neighbour Mrs Coughlan said that colourful, verbal threats by you to Mr Green were not apparently taken seriously by him and after a fight, you both would apologise for the disturbance and laugh together about it. Other neighbours made generally similar observations, however on occasions police were called and at least one apprehended violence order was put in place. 7 One incident in April 2008, which resulted in charges against Mr Green, involved his passing the blunt edge of a knife across your throat and making shallow cuts in your arm. It is a misfortune that such an event may have contributed to your sharing, what I consider is a considerable gap in community recognition, of just how fatally dangerous wielding a knife can be. Although you accept that, apart from the incident which brings you here, you have occasionally meted out violence to Mr Green, I accept that it was essentially retaliatory, rather than having been initiated by you. 8 On 6 March 2009 you and Mr Green were both drinking. His post mortem blood alcohol level was .215 grams per 100 millilitres, plus some evidence of cannabis use. Your blood was not sampled until after 2am on 7 March and it was clear of alcohol but not of cannabinoids. Professor Starmer's evidence is not challenged and, having regard to it, I find that it is probable that at 5pm on 6 March your blood alcohol level was something over .139 grams per 100 millilitres. In reaching that conclusion, I take into account observations of others including the police custody officer and your daughter Termanie, whose affidavit was read without objection and was not challenged by cross-examination. In that circumstance, I accept her evidence about these and the other matters to which she has deposed. 9 During the day of 6 March, encounter between you and Mr Green was observed. The exchanges are set out in the agreed facts. Eventually some time after 4.30pm you and Mr Green were heard swearing at each other, one neighbour commented to another "As usual". Mr Green had at one point walked away. A neighbour Mr Foord noticed him carrying a white cup, from which Mr Green customarily drank wine or beer. The narrative continues and again I quote: "A few minutes later Mr Foord noticed the deceased emerge from his house and start to walk up the street. He was wearing thongs and still carrying the white coffee cup. The offender came out of the house moments later; she too was carrying a coffee cup and she flung it after the deceased. It fell short and smashed on the roadway. The offender yelled "Fuck off cunt" to the deceased and he called back "All right I'm going". At that point the offender was seen to run back inside her house, emerging a moment later. As she ran across the front yard of 12 Sunderland Street towards the street, the offender picked up a knife that was lying on a table at which she had earlier been sitting, repairing a wooden cross. With the knife in her hand she began running along the street after the deceased, yelling "I'll kill you cunt". Ron Foord, who was still standing with Matthew Cutting hosing his garden at number five, could see that the knife was a large, kitchen knife and the offender was carrying it in her right hand as she ran after the deceased. Two schoolboys, Zac Croker and Darcy Payne, were on their way to football training when they too saw the offender chasing the deceased up the street with the knife in her hand. Glenn Green quickened his pace to a jog when the offender began chasing him up the street. He was laughing at the offender and as she came closer to him he stopped jogging and turned to face her. The two were standing at the top of the driveway at number 3 Sunderland Street. Matthew Cutting saw Mr Green begin to dance around the offender and heard him saying "Jackie you can't catch me". Ron Foord thought the deceased was playing "catch me if you can" and teasing the offender to try to catch him. The offender said "I'm going to get you". She was holding the knife in her hand with the blade pointing downwards. She then raised the knife and, with a downward thrust, stabbed Glenn Green once to the left side of his chest near his shoulder." 10 You had in fact been using the knife to repair a cross to be placed on your father's grave. I consider you took it as something at hand without particularly, in your alcohol induced state, appreciating how lethal it could be. Glenn Green could not be resuscitated and his body was taken by ambulance to John Hunter Hospital. 11 You made your way to the local cemetery with the cross which I have mentioned. You also had with you a bag and a cask of wine. You were spoken to there by police and arrested. I am satisfied that you had no idea of the extent of injury that you had caused. Your drunken statements about stabbing are consistent with my earlier observations of your ignorance of the likely lethality of knives. 12 Your lack of real understanding of the consequences of what you had done was also demonstrated in your reaction to being told of Mr Green's death. You were in the police station and fell to the floor crying and an Aboriginal support person was sent for to assist to calm your apparent distress. 13 Before turning to matters concerning the relevant objective and subjective circumstances, I acknowledge the receipt of four victim impact statements from Mr Green's mother and three of his sisters respectively. Their grief and sense of loss is patent and such comfort as I can offer is limited to this public acknowledgement. Obviously nothing can alter the situation of loss, but it is important that it be understood that I am not in any sense evaluating Mr Green's life. Every life is valuable beyond description. Nor, however, is it my task to avenge his death in some way and the value of his memory is not gauged against any penalty which is ultimately to be imposed. 14 It is no novel proposition that the offence of manslaughter can occur in what must be the widest span of seriousness of any particular crime. It is accepted by the Crown that your liability stems from an unlawful and dangerous act. It follows, and I accept, that you neither intended to kill or cause really serious bodily injury to Mr Green. Yours is an unintended offence. It is, however, a serious offence because it involves the felonious taking of human life, but in the scales of manslaughter which, as I mentioned in an exchange with counsel, can rise as high as just short of murder, I would assess the level of seriousness of your offending to lie in the lower echelons thereof. 15 You have some prior convictions which, although two convictions for driving with the prescribed concentration of alcohol in 1990 and 1992 tend to confirm your problems with alcohol, I would not regard them as weighing against you in assessing penalty for this offence. You have expressed remorse from an early stage after the offence and I believe your actions at the time exhibited it. I regard it as genuine. I note the content of your letter to me, which is to like effect, and that the Crown does not dispute that you are remorseful. 16 It is pleasing to note also in that letter, an insight that you have into the effect your deed has had on Mr Green's family. I read what you said about the poisonous nature of alcohol and I hope that you can maintain that perception. It gives promise for your ultimate rehabilitation. Whether that promise can be fulfilled is likely to depend upon your capacity for abstinence. Obviously I cannot be sure of the future but, given what you state, I would find a probability of reasonably good prospects of rehabilitation. 17 There has been some debate between counsel concerning the weight to be given to the history of domestic violence between yourself and Mr Green. There is a difference between throwing pots, pans and the like and using a knife, which I need not elaborate on. As a reaction to violence of the kind described as being visited upon you, it could not be justified. Whilst, as I have noted, Mr Green may have initiated some violence, the reality is as described by your neighbours; you and Mr Green lived a life in an alcoholic haze, punctuated by the passage of verbal and physical abuse between you. I do not regard the history as a matter of significant weight in diminution of sentence assessment which is otherwise appropriate. 18 As counsel have made some reference to statutory provisions, I observe accordingly that the offence involved the use of a weapon, namely the knife, and in your favour that the offence was spontaneous and wholly unplanned and I do not regard your minor prior record as a reason for denial of leniency. I am satisfied that you were always ready to plead guilty to manslaughter, although initially charged with a more serious offence. That stance is confirmatory of your remorse and contrition, which I do weigh in your favour. 19 The jurisprudence, which has developed for what is conventionally called the utilitarian value of the plea, postulates a not immutable upper limit of 25 percent discount for a plea of the highest utility. There was considerable utilitarian value in your stance but in unembroidered terms of utility, it does not lie in the very highest classification. I propose to apply a discount of 20 percent. 20 It is not submitted that a non custodial sentence is called for and I agree with that submission. It is necessary to set a non parole period. I find there are special circumstances in response to which I will in your favour depart from the formula which is set out in sentencing legislation. The reasons for this are combined in your imprisonment for the first time, when of relatively mature years, the psychological issues addressed by Dr Seidler which need to be attended to and the community benefit that I consider will stem from supervised rehabilitative steps in a sufficiently long period of parole. 21 Taking into account the whole of the circumstances, except the utilitarian value of the plea, I would assess an overall term of seven years six months, but for that plea I would reduce the assessment by 20 percent to six years. If the statutory formula for setting non parole period were applied, it would amount to four years six months. I would set a non parole period of three years nine months. 22 Jacqueline Doolan, for the manslaughter of Glenn Green you are sentenced to imprisonment consisting of a non parole period of three years and nine months to commence on 6 March 2009 and to expire on 5 December 2012, with a balance term of two years three months to commence on 6 December 2012. The earliest date of eligibility for parole is specified as 5 December 2012. ********** 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.