Regina v Judith May Duncan [2010] NSWSC 1241

New South Wales Supreme Court

CITATION : Regina v Judith May Duncan [2010] NSWSC 1241

HEARING DATE(S) : 24 September 2010

JUDGMENT DATE : 29 October 2010

JUDGMENT OF : Hidden J

DECISION : Sentenced to imprisonment for 3 years, NPP 1 year and 4 months, from 26 July 2009.

CATCHWORDS : CRIMINAL LAW - sentence - manslaughter - unlawful and dangerous act - offender mature woman of good character - killed her partner by single stab wound during violent incident - history of physical and emotional abuse by deceased

CATEGORY : Sentence

R v Kennedy [2000] NSWSC 109 R v Melrose [2001] NSWSC 847 CASES CITED : R v Jukes [2006] NSWSC 1065 R v Edwards (1997) 90 A Crim R 510 Stephenson v R [2008] NSWCCA 266 Berrier v R [2009] NSWCCA 40

PARTIES : Regina (Crown) Judith May Duncan (Offender)

FILE NUMBER(S) : SC 2009/57595

COUNSEL : Mr A McCarthy (Crown) Mr J Stratton SC (Offender)

SOLICITORS : Mr S Kavanagh - Solicitor for Public Prosecutions (Crown) Ms S McCorriston - Kamilaroi Aboriginal Legal Service (Offender)

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

HIDDEN J

Friday 29 October 2010

2009/57595 Regina v Judith May Duncan

REMARKS ON SENTENCE 1 HIS HONOUR: It sometimes happens that a person who has led a blameless life commits a fatal act of violence in the heat of a moment. A human life is taken. The lives of the victim's loved ones are dealt a blow from which they may never recover. The life of the perpetrator is changed irrevocably. Cases of this kind present the courts with a particularly difficult sentencing exercise. This is such a case. 2 In the early hours of Sunday, 26 July 2009, Judith May Duncan stabbed her partner, Thomas George Chatfield, with a kitchen knife at their home in Moree, inflicting a wound which led to his death. The incident occurred in circumstances which I shall describe shortly. She did not intend to kill him or to cause him serious injury. She was indicted for the murder of Mr Chatfield, but her plea of guilty to manslaughter was accepted by the Crown in satisfaction of that indictment. She stands for sentence on the basis that she caused his death by an unlawful and dangerous act. 3 Ms Duncan is an Aboriginal woman, who was 44 years old at the time of the offence and is now 45. She was brought up in the Moree area. She left school before completing year 12. She did a number of courses relating to welfare, and had a commendable employment history in community service. For some years she was employed by the Department of Youth and Community Services, now the Department of Community Services, where she became a District Officer. In more recent years she worked with the Department of Local Government, caring for the aged and people with disabilities. She was highly regarded in the welfare sector. I received statements from a number of her colleagues attesting to her integrity, competence and dedication. 4 Mr Chatfield had been her only partner. Their relationship was longstanding, commencing in the 1980s. They had one child, a son, who is now an adult. During the relationship he had worked intermittently, and she had been the main breadwinner in the household. It seems that he resented her stable employment and professional success. 5 Unfortunately, from a relatively early stage in the relationship he began to abuse her, physically and emotionally. This was by no means a daily occurrence. It was sporadic but it persisted throughout the relationship. There is no need to dilate upon it. I accept Ms Duncan's evidence about it, which is supported by the statements of her son and her work colleagues. There were episodes of physical violence, some of which appear to have been fairly severe. There were also episodes of abusive and threatening behaviour, which she found more frightening than the violence. She said in evidence, "It got to the stage in the long run … he would just have to raise his voice and I would be looking for somewhere to hide." 6 Sometimes he came to her workplace and abused her there. On one of those occasions the manager at her office called the police, because he was concerned for her safety and that of the other employees. Over the years, particularly in the year leading up to the fatal incident, he accused her of being unfaithful to him. These accusations were unfounded. In that last year the physical and verbal abuse increased, and she became depressed. 7 Throughout all this, as is so often the case, she did not seek the intervention of the law. Nor did she seek professional assistance, even though she worked in an area where it was readily available. Over the years she herself had assisted people who were the victims of domestic violence, and from time to time she had told her colleagues about Mr Chatfield's behaviour. Nevertheless, the effect of her evidence was that she did not wish it to be known within her community that she lived in an abusive relationship. She felt that she was perceived as a role model within that community and, as she put it, "I wouldn't be seen as a very good role model if I couldn't be seen handling my own situation, in trying to help other people get their lives together and support them." 8 Her evidence about this pattern of abuse was impressive in its frankness. She described it in a composed manner. Her account was clearly not exaggerated, and at no stage did she seek to portray herself as the frail and helpless victim of a cruel and violent man. Indeed, asked in cross-examination to describe the relationship just before the fatal incident, she said that it was "very volatile", adding that they were "both very headstrong …". 9 It is against this background that the offence must be understood. Ms Duncan and Mr Chatfield had been invited to a party on the night of Saturday, 25 July 2009. Mr Chatfield went to the party, but she was tired and stayed at home. He returned to the home at about 9.00pm and asked her to join him at the party, but she refused. She went to bed at about 11.00pm. 10 At about 2.30 the following morning he woke her. He was drunk and angry. He called her a "slut" and a "moll", and pushed her off the bed. She landed on the floor on all fours. He told her to get out of the bedroom because she was not sleeping in the bed that night. 11 Apparently, he had heard a message received on her mobile phone at around that time, and believed it to be from someone with whom she was having a liaison. He demanded to know who had been ringing and said to her, "Who are you running around with?" It transpired that the message had been left by a male cousin of hers, who was managing a local hotel and was finishing work at the time. He was ringing to see if she and Mr Chatfield were still awake, so that he could come around and have a drink with them. 12 She got dressed and left the bedroom, intending to sit in the lounge room and watch television. He intercepted her in the hallway and pushed her, again causing her to fall to the floor. Apparently, this was at a point very close to the kitchen. He stepped over her, she thought that he was going to continue to assault her, and she seized a knife from the kitchen and stabbed him once in the abdomen. She then looked for somewhere to hide, fearing that he would come after her. 13 She went outside the house but came back in, to find him lying on the lounge room floor. It appears that it was only then that she realised that he was badly hurt. She rang her son, who was also at a party in the area. In a voice which he described as "scared and panicked", she said, "I stabbed your father". The son drove home. Mr Chatfield was still conscious and said to him, "Son, help me." Ms Duncan said, "I'm so sorry, son." Mr Chatfield called to her, and she knelt next to him, held his hand, and repeatedly said that she was sorry. 14 Both she and her son called the triple-0 emergency line. I have heard a recording of her call, in which she reported having stabbed Mr Chatfield in the stomach once. She was clearly distraught and was pleading for help. 15 When police arrived, she again admitted having stabbed Mr Chatfield. Asked by Senior Constable Cusack what had happened, she said, "He kicked me out of bed and I grabbed some pillows because I knew I'd be sleeping alone and then he was sort of pushing me down the hallway and I fell, and then I grabbed a fuckin, … I suppose that's it for my job." That last observation seems inappropriate, indeed rather callous, in the circumstances. However, in the light of the clear evidence of her distress and remorse over what she had done, I place no significance on it. 16 Senior Constable Cusack also heard her say, "I suppose it seems pretty cold but I've just been putting up with this for so long." Some friends of her son arrived, and to one of them she said, "Me and George had a row … it was over a text message." Mr Chatfield was generally referred to as "George". To another person she said, "I didn't mean it. I didn't mean it." 17 He was conveyed by ambulance to Moree Hospital, where he underwent surgery. He died shortly thereafter. A post-mortem examination conducted the following day determined that the cause of death was haemorrhage due to a stab injury to the abdomen. 18 Even though the ambulance station was very close to the home where Mr Chatfield and Ms Duncan lived, an ambulance did not arrive until about 15 minutes after the triple-0 notification. An Ambulance Service incident report which is in evidence discloses that the call was classified as "non-emergency". Why that is so is unexplained. It may be because Mr Chatfield was still conscious, and could be heard speaking in the background, and the operator may not have realised how serious his injury was. Moreover, the ambulance crew on duty at the time was involved in a task out of Moree, and the officers who attended had to be recalled to duty from their homes. It also appears from the post-mortem report that an injury to Mr Chatfield's left renal vein was not identified at surgery. Whether Mr Chatfield might have lived if ambulance officers had attended the home sooner, or if surgery had been more effective, I cannot say. 19 Ms Duncan was arrested on the day of the offence, 26 July 2009, and has been in custody since. Her sentence will be backdated to that day. 20 I have regard to the evidence of Mr Chatfield's abusive and violent behaviour towards her because, obviously, it is relevant to an assessment of the gravity of her crime. I have no evidence of his background, in which an explanation of his behaviour might be found. It is no part of my function to pass judgment upon him, and I would not presume to do so. His good qualities are apparent from victim impact statements I received from his parents, his sister and his son. These were moving testaments to their love of him, their grief and outrage at his untimely death, and the enduring effects this tragedy has had upon their lives. I expressed my deepest sympathy to them during the sentence proceedings, and I do so again now. I can but hope that the conclusion of these proceedings will be a small step towards their coming to terms with their loss, but I am well aware that no sentence I pass could relieve their pain. 21 There is no doubt that Ms Duncan is deeply remorseful for her crime. So much is apparent from her behaviour that morning. Before me, she expressed her remorse in no uncertain terms in evidence. She described the offence and the background to it in the composed manner to which I have referred. In fact, it appeared to me that she was making every effort to keep her emotion under control. However, when asked by her counsel, Mr Stratton SC, how she felt about Mr Chatfield, she broke down and sobbed. Through tears, she uttered one of the most sincere and abject apologies I have ever heard. Among other things, she said: "I love him and I miss him and I am sorry for what has happened. I am going to have to live with this for the rest of my life …, it makes my heart ache knowing what I have done and I would like to say to them for their son, no-one wants to lose their children before their time. … there's not a day since this happened that George hasn't been on my mind. … it's very hard not to be thinking about him. I wanted to grow old with the man. I love him. We had our problems … . There is not a day that I don't pray for everyone involved with this." 22 To say that Ms Duncan has led a blameless life is not to suggest that her background is entirely unblemished. She has two previous convictions, both of them for driving with the prescribed concentration of alcohol, in 2001 and 2002 respectively. On one of those occasions she had driven from the home to get away from Mr Chatfield after he had assaulted her. This minor criminal history is of no significance for present purposes. 23 By her own account, she appears to have been a fairly heavy drinker, and she regularly used cannabis. She was assessed for the purpose of sentence by the well known forensic psychiatrist, Dr Olav Nielssen, who provided a report. He concluded that at the time of the offence she was suffering from substance use disorder and depressive illness. However, at the time he interviewed her in custody in August of this year, he considered the substance use disorder to be in remission and the depressive illness to be in partial remission. 24 While in custody she has been an Aboriginal delegate, which is a position of some trust. Her task is to act as a liaison between new Aboriginal inmates and the prison authorities, helping them adjust to their custodial status and ensuring that they have access to appropriate services. She herself has undertaken counselling courses in self management and recovery, and grief and loss. 25 Clearly, she has excellent prospects of rehabilitation. It is apparent from the testimonials I have received as to her character that she has support within the Moree community. In his report Dr Nielssen made some observations about her which I would endorse: "She has reached an age of relative maturity with no major criminal convictions and without pursuing an unproductive or anti-social lifestyle. She has been employed in responsible positions in the caring professions for most of her adult life … . She has addressed her substance abuse disorder … . She does not have a psychiatric disorder that would predict further irrational or self defeating behaviour." 26 That said, she would benefit from a reasonable period of supervised liberty upon her release to help her reintegrate into society. This is her first experience of imprisonment and, as she realistically pointed out in evidence, because of her conviction it is unlikely that she has any prospect of returning to employment in the government welfare sector. Accordingly, I find special circumstances justifying a departure from the statutory proportion between sentence and non-parole period. 27 Manslaughter is an inherently serious offence, whatever the circumstances of the particular case, because it involves the unlawful taking of a human life. Nevertheless, the crime involves a very wide spectrum of criminality and it is necessary to examine the circumstances of each case to determine where it falls within that spectrum. Ms Duncan's offence is clearly low in the scale of culpability. She killed Mr Chatfield by a single blow to the stomach with a knife. As I have said, she did not intend to kill him or to cause him serious injury. While the basis of manslaughter in her case is not excessive self defence or provocation, there are elements of both in her arming herself with the knife and striking as she did. She acted quickly and impulsively in the heat of a violent incident which, as Mr Stratton put it, was not of her choosing. 28 I am indebted to Mr Stratton and the Crown prosector for their reference to a number of manslaughter sentence cases, but they are of little assistance. To say that every case turns on its own facts is not to deny that some guidance might be obtained by examination of other broadly similar cases. It is unnecessary to go to the detail of the cases to which I have been referred. While at a superficial level they share some of the features of the present case, a closer examination discloses that the similarities are greatly outweighed by the differences. 29 It is appropriate that I record what those cases are. Three are decisions at first instance: R v Kennedy [2000] NSWSC 109 (Barr J), R v Melrose [2001] NSWSC 847 (McClellan J, as he then was) and R v Jukes [2006] NSWSC 1065 (Hoeben J). The remaining three are decisions of the Court of Criminal Appeal: R v Edwards (1997) 90 A Crim R 510, Stephenson v R [2008] NSWCCA 266 and Berrier v R [2009] NSWCCA 40. Two of them were cases in which a woman killed a violent and abusive partner: Kennedy and Melrose. Both were particularly distressing cases, in which the offender had been the victim of persistent and very severe abuse. Each of them was placed on a 4 year good behaviour bond. 30 I do not consider a non-custodial sentence to be appropriate in the present case, and Mr Stratton did not suggest that it was. Nevertheless, Ms Duncan is entitled to a marked degree of leniency. The circumstances of her offence speak for themselves. It was committed by a mature, responsible and caring woman who, I am confident, will never re-offend and who will have to endure the burden of her guilt for the rest of her life. I propose to fashion a sentence which will enable her release in the near future. 31 But for her plea of guilty, I would have imposed a sentence of 3 ½ years. I shall reduce that term by 15% on account of the plea, producing in round figures a sentence of 3 years. I shall specify a non-parole period of 16 months. The sentence will commence on 26 July 2009. She will be released on parole on 25 November 2010, and her sentence will expire on 25 July 2012. 32 Judith May Duncan, for the manslaughter of Thomas George Chatfield you are sentenced to a non-parole period of 1 year and 4 months, commencing on 26 July 2009 and expiring on 25 November 2010, and a balance of term of 1 year and 8 months, commencing on 26 November 2010 and expiring on 25 July 2012. I direct that you be released on parole on 25 November 2010.