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Supreme Court 21 July 2006

R v Russell

[2006] NSWSC 722

HomicideDomestic & family violence
SENTENCING MANSLAUGHTER PROVOCATION DOMESTIC VIOLENCE

Citation: R v Russell [2006] NSWSC 722
Court: Supreme Court of New South Wales
Date: 21 July 2006
Judge(s): Newman AJ

Background

The offender, Cherie Russell, was charged with the murder of her de facto partner, Jeffrey Cook, following an incident at their shared home in Stanhope Gardens on 18 March 2005. The pair had been in a relationship of approximately 18 months, marked throughout by alcohol abuse and episodes of violence, predominantly perpetrated by the deceased when intoxicated.

On the evening in question, both parties had been drinking. While the offender was on a phone call with her daughter, the deceased became verbally abusive and then struck her. He produced a knife, threatened to kill her, and then put the knife down. He then taunted her to stab him. The offender took a knife and stabbed him once in the chest, causing a fatal injury to his left ventricle.

The Crown accepted a plea of guilty to manslaughter in full satisfaction of the murder indictment, on the basis that it could not negate the partial defence of provocation under s 23 of the Crimes Act 1900. The sentencing hearing proceeded before Newman AJ on 10 and 11 July 2006.

  • Whether provocation under s 23 of the Crimes Act 1900, or alternatively unlawful and dangerous act, formed the proper basis for the manslaughter finding
  • What weight should be given to the history of domestic violence and the concept of battered woman syndrome in sentencing
  • Whether special circumstances existed to justify varying the statutory ratio between the non-parole period and the overall sentence
  • What sentence was appropriate for a guilty plea to manslaughter in a domestic violence context

Decision

Newman AJ found that the offender had stabbed the deceased with an intention to cause grievous bodily harm, and that provocation within the meaning of s 23 of the Crimes Act could not be negated. This made the Crown's acceptance of the manslaughter plea appropriate. The court declined to adopt the alternative framing advanced by the defence that the death resulted from an unlawful and dangerous act.

The court considered the history of violence in the relationship and addressed the relevance of battered woman syndrome. Consistent with the authorities cited, the court held that battered woman syndrome operates as a mitigating factor in sentencing, not as an exculpatory one. That history was, however, given genuine mitigating weight.

Several additional factors reduced the sentence from what might otherwise have been imposed. The Crown conceded, and the court agreed, that the offence was not premeditated. The guilty plea was given credit as saving the time and cost of a trial. The offender's genuine remorse was also accepted. Each of these matters was taken into account in the sentence ultimately imposed.

The court found that special circumstances existed, warranting a departure from the standard ratio between non-parole period and parole period. The basis for this finding was that the offender would require post-release supervision to address her alcohol dependency, a matter already being managed through prison counselling.

Orders Made

  • Non-parole period of three years, commencing 18 March 2005 and expiring 17 March 2008
  • Parole period of three years, commencing 18 March 2008 and expiring 17 March 2011
  • Total sentence of six years

Key Takeaways

  • The Supreme Court confirmed that battered woman syndrome, and a history of domestic violence more broadly, operate as mitigating factors in sentencing for manslaughter but do not excuse or exculpate the offending conduct.
  • Provocation under s 23 of the Crimes Act 1900 functions as a partial defence reducing murder to manslaughter; where the Crown cannot negate it, acceptance of a manslaughter plea is appropriate even where the offender acted with intent to cause grievous bodily harm.
  • A guilty plea to manslaughter entitles an offender to a sentencing discount, reflecting the utilitarian benefit of avoiding the expense and complexity of a trial.
  • Special circumstances justifying an extended parole period may be established where post-release supervision is needed to address an offender's substance dependency, particularly where that dependency was connected to the circumstances of the offending.
  • In sentencing for manslaughter arising from domestic violence, relevant mitigating factors identified in this decision included the absence of premeditation, genuine remorse, the guilty plea, and the history of abuse suffered by the offender.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 23, 24
- Crime (Sentencing Procedure) Act 1999 (NSW)

Cases
- Bollen v Regina (1998) 99 A Crim R 510
- R v Bogunovich (1985) 16 A Crim R 456
- R v Judith Ann Spencer (Mathews J, unreported, 18 December 1992)
- R v Kennedy [2000] NSWSC 109
- R v King [1998] NSWSC 289
- R v McIntyre (McInerney J, unreported, 15 March 1996)
- R v Melrose [2001] NSWSC 847
- R v Previtera (1997) 94 A Crim R 76
- R v Roberts (Hunt J, unreported, 31 August 1989)
- R v Stokes & Difford (1990) 51 A Crim R 25
- R v Woolsey (Newman J, unreported, 19 August 1993)
- Runjanjic and Kontinnen (1991) A Crim R 362
- The Queen v Simon (Bruce J, unreported, 21 July 1995)
- The Queen v Varagnolo (McInerney J, unreported, 21 March 1996)
- The Queen v Yeoman [2003] NSWSC 194