Supreme Court New South Wales Medium Neutral Citation: R v Parker (No 2) [2016] NSWSC 813 Hearing dates: 27 April 2016 Date of orders: 14 June 2016 Decision date: 14 June 2016 Jurisdiction: Common Law Before: Rothman J Decision: (1) Conviction recorded; (2) Sentence imposed of seven (7) and a half years' imprisonment, commencing 16 December 2013 and concluding 15 June 2021, with a non-parole period of four (4) years, concluding 15 December 2017. Catchwords: CRIMINAL LAW – manslaughter- cognitive disorder suffered by offender – remorse – no intention to kill or cause grievous bodily injury – otherwise, also proved substantial impairment – early plea – sentence imposed Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 R v Fernando (1992) 76 A Crim R 58 R v McNaughton [2006] NSWLR 566; 163 A Crim R 381 R v Shankley [2003] NSWCCA 253 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Category: Sentence Parties: Regina (Crown) Marianne Parker (Offender) Representation: Counsel: M Pincott (Crown) E Wilson SC (Offender) Solicitors: Office of the Director of Public Prosecutions (Crown) Aboriginal Legal Service (Offender) File Number(s): 2013/378140 REMARKS ON SENTENCE 1. HIS HONOUR: Marianne Parker was charged with the murder of her husband, Kenneth Parker, to which she pleaded not guilty of murder but guilty of manslaughter. After a trial, a jury found her not guilty of murder and in accordance with her plea, guilty of manslaughter. 2. Criminal cases that come before this Court involving an unlawful death are without exception, tragic. The victim's life has been cut short, usually violently. Some cases are particularly sad. This is one of them. Here the life and death of the victim is extremely tragic. But so too has been the life of the offender, added to which is her palpable and obvious grief and remorse at the loss of her husband. The Victim 1. It is most unfair to describe a victim's life in summary form because it omits all but the most relevant to this crime and usually excludes the happy times and the emotional attachment of his family. But to understand this crime, one must understand certain traits of the victim and their relationship to the crime. 2. The victim is of Aboriginal descent. Born 6 July 1963 and 50 years of age at the time of his death. His older brother William gave evidence in the trial. 3. They seemed to have a close early childhood which was affected when, at 13 years of age, the deceased was out on one of the family's regular shooting expeditions. Present were the deceased, his two older brothers and his sister and their father. During the expedition, the deceased's gun accidentally discharged shooting the father and resulting in the father's death. 4. William, the older brother, noticed as they grew older, that the event had a huge effect on the deceased, even though the family supported him and made it clear that he was not to blame. 5. The deceased started abusing alcohol in his teens and eventually commenced self-harm. The older brother saw the results of each and in the case of self-harm, saw the injuries to his body including cuts to his chest and to his arms. 6. The self-harm continued and was a feature of the deceased's life at the time of his death. So too did the alcohol abuse. There was a short time during a previous relationship, where they were minimised. But as at the relevant time, they were a sad and tragic aspect of the victim's life. The Incident on 16 December 2013 1. It is necessary to set out briefly the bare facts of the incident that resulted in the victim's death. It is unnecessary at this juncture to summarise the evidence but to the extent it is relevant to sentencing, I will deal with some of it later in these remarks. 2. As earlier stated, the incident occurred on 16 December 2013. The deceased and the offender were drinking heavily, all day. 3. During the evening, the deceased commenced self-harm inflicting significant wounds on himself, in particular a deep wound to the chest. Notwithstanding my earlier comment as to evidence, I will give the basis for that conclusion. 4. The forensic evidence disclosed that wounds including the chest wound were caused by a sharp instrument such as a knife. From the blood stains and smears, it is clear that the deceased was wounded in the chest while facing a closed screen door. He was standing approximately 40 centimetres from the closed door when the wound was inflicted. 5. There can be no suggestion that someone other than the deceased inflicted those wounds. Further, there is no evidence to suggest that two knives or two sharp instruments were used to cause injury to the deceased. 6. As a consequence, the offender had dispossessed the deceased of his knife and thereafter inflicted the fatal injury. There was only one injury inflicted by the deceased, being a stab wound to the back which unfortunately struck him between two ribs, punctured his lung and caused a minute transection of the artery and vein shown up in microscopic sections of the ninth right intercostal artery. It was these transections caused by the stab wound to the back, close to the spine, that caused death. 7. The deceased walked outside the door, sat on the porch step and then on the path, and died. At the time of his death, he was being attended by neighbours and others, who had been alerted by the offender. 8. The offender and the deceased had been drinking most of the day and were drunk. The deceased's alcohol concentration at the time of death was 0.25 grams per hundred millilitres of blood. There is no reason to believe that the offender's blood alcohol concentration was significantly less, and she was still well affected by alcohol at 12.30am on 17 December (some five hours after the stabbing). 9. The offender had been arrested on 16 December 2013 and could not be questioned until the next day because of her intoxication. She has remained on remand in gaol since 16 December 2013 on account of this offence. The Offender 1. It is necessary to describe some aspects of the offender in order to understand the objective seriousness of the offence. First, it is appropriate to point out that even within serious crimes such as murder and manslaughter, it is necessary to determine the relative objective seriousness of the offence within the range of circumstances covered by the offence. 2. The offender has severe impairment of her executive functioning and is placed in the bottom one per cent of the population in that respect. Dr McMahon, a clinical psychologist, qualified by the Crown, tested the offender and made the aforementioned finding. Indeed, as explained by Dr McMahon, one test similar to a children's game like I Spy, had to be abandoned because of the offender's inability to organise her thought processes. 3. Each psychiatrist diagnosed the offender with cognitive disorders of some kind and each expressed the opinion that the effect of the alcohol on her cognitive disorders, and lack of executive functioning, would have exacerbated her inability at emotional regulation and her inability to judge right from wrong, and to control her actions: see, for example, Dr Allnutt, qualified by the Crown, at transcript page 282. 4. The defence case to murder was the lack of intent and, in the alternative, substantial impairment of the mind. Often the law, for good reason, separates issues into categories. However, some cases involve an inextricable inter-weaving of the categories. 5. In this case, there was clearly an underlying abnormality of mind exacerbated by alcohol. The combined effect on the psychiatric evidence leaves the Crown in a position that it has not proved beyond reasonable doubt that the offender formed, even momentarily, an intention to kill the deceased or to cause him really serious injury. Nevertheless, that was the effect of her conduct. 6. To the extent that it be necessary, I should also make clear that the offender did not contemplate the risk of death before proceeding regardless. The evidence establishes that a reckless disregard for human life was a state of mind of which the offender was, in this instance, incapable. 7. In any event, the defence has proved on the balance of probability, if there were intent on the part of the offender, that there was a substantial impairment of the mind giving rise to diminished responsibility. 8. There are arguably aggravating features: the use of a weapon and the offender's criminal record. The use of the weapon, in circumstances where there is no intent to injure, is less significant. 9. The prior criminal record, which includes acts of personal violence, does not increase the objective seriousness of the offence, but does render retribution, deterrence and the protection of society, more of a concern warranting greater attention: see, inter alia, Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 ('Veen (No 2)'); R v McNaughton [2006] NSWLR 566; 163 A Crim R 381; R v Shankley [2003] NSWCCA 253. 10. While this offence did occur in the deceased's home, it was also the offender's home and ought not be regarded as an aggravating feature. 11. Overall, the relative objective seriousness of the offence is not at the lowest range. But it is below mid-range in objective seriousness. Subjective Circumstances 1. Some of the subjective circumstances of the offender have been mentioned already. I will not repeat them, but they relate to the criminal history and the psychiatric disorder. 2. The offender is also Aboriginal; she is a Wiradjuri woman. She attended school until year 7 and was raised in households in which physical, sexual and alcohol abuse were evident. Her parents separated. 3. At one stage, the offender was required to live with her grandparents and ran away from home in 1972, aged 14, and worked in Sydney. She married Kevin Sheady at the age of 16 and had four children in that relationship, the first at 17 years of age. One child was adopted out. 4. The relationship involved some violence and the couple separated causing the offender to lose custody of her children. The offender was then involved in a number of very abusive relationships. 5. Her mental health issues have been noted over many years, and she has a record of alcohol and drug abuse before imprisonment. 6. I turn then to the prospects for rehabilitation and to remorse. Unlike some offenders, with severe cognitive disorders, Ms Parker has managed to learn behaviours that, in the absence of alcohol abuse, overcome many difficulties. 7. This incident shows examples of it. The offender has developed learned behaviours in living skills and to cope with anxiety. 8. Due in part to the extraordinary dedication of local police, she was taught to ring police when distressed. On 16 December 2013, the offender rang police. Unfortunately, the officers were unavailable or could not be reached. Had they been, we may not be at this point. But I must comment on my admiration for the police, involved with the deceased and the offender, who exemplify the kind of conduct that is needed if society is to deal appropriately with domestic violence, with those suffering mental issues and with Aboriginal incarceration. 9. The offender was tested 20 months after the death of her husband. She had not consumed alcohol in that time. Yet her tests still reveal severe cognitive disorder. Nevertheless, the offender has been in gaol for nearly three years and has not consumed alcohol. If that situation can be a learned behaviour pattern, her prospects of rehabilitation are good. But she will need significant time under supervision in the community and for that reason, I find special circumstances. 10. Her early background gives rise to Fernando considerations (R v Fernando (1992) 76 A Crim R 58), but there is no discount on the basis merely of race: Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571. 11. I turn then to remorse. The offender has no memory of the events on 16 December 2013. As one of the doctors testified, it is possible that the deceased stepped back onto the knife. 12. In my view, such a possibility would not have been accepted by a jury properly instructed. However, Ms Parker never relied on such a possibility. Despite her lack of memory, the offender formally and informally accepted that she stabbed the deceased. 13. The offender pleaded guilty to manslaughter at the earliest opportunity. It is appropriate to afford her a 25% discount for that plea: s 22 Crimes (Sentencing Procedure) Act 1999 (NSW). 14. The plea, the acceptance of guilt and her conduct, disclose profound remorse. She displayed that to the psychiatrist and the remorse was obvious from the offender's conduct during the trial and sentencing proceedings. 15. The offender has strong family support and, in my view, is unlikely to re-offend. Conclusion 1. Sentencing involves the synthesising of various goals which may pull in different directions. They include the protection of society, deterrence of the offender and of others tempted to offend, retribution and reform: s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) and the High Court judgment in Veen (No 2). 2. I have been taken to a number of cases. But comparisons in manslaughter cases are particularly problematic. Even more problematic is the recourse to statistics, which involves the perpetuation of sometimes unwarranted limitations. Rather, consistency is achieved by the consistent application of principles. 3. The maximum sentence is 25 years' imprisonment. This is a guidepost reserved for those guilty of manslaughters in the worst category. There is no standard non parole period. The offence is below mid-range. It was neither planned nor premeditated. 4. The offender, other than the issues already mentioned, was unaware of the consequences of her actions because of her mental state and her intoxication. One of the more intriguing aspects of this case is the offender's real immediate distress at the injury caused and somewhat oddly the deceased's expressed view, while bleeding to death, that the offender ought not go to gaol for this: see, the evidence of Nita Carr, transcript 155-156. The distress of the offender continues. Specific deterrence is not a major issue and the offender's mental issues make her an inappropriate vehicle for general deterrence. 5. Nothing I can do can bring the deceased back. Rather, I must impose a sentence consistent with others in the manner described, which seeks to achieve the goals I have recited. 6. I consider a head sentence of 10 years imprisonment is appropriate as a starting point. I do not, given the seriousness of the offence, consider a non-custodial sentence or one that is not full time, would adequately reflect the offence. Nor would either achieve the previously mentioned goals in this case. 7. The sentence will date from the date of arrest, to take account of the time served already for this offence. As earlier stated, I allow 25% for the plea of guilty at the earliest opportunity and I find special circumstances. 8. MARIANNE PARKER, please rise: You are convicted of manslaughter, in that on 16 December 2013, at West Wyalong, you did unlawfully kill Kenneth Wayne Parker. You are sentenced to a non-parole period of four years' imprisonment, commencing 16 December 2013 and concluding 15 December 2017, with a further term of three and a half years concluding 15 June 2021. You are first eligible for release on parole on 15 December 2017. ********** Amendments 20 June 2016 - Paragraph numbering corrected. 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. Decision last updated: 20 June 2016