Regina v SS [2010] NSWSC 1169 (5 November 2010)

Last Updated: 8 November 2010

NEW SOUTH WALES SUPREME COURT

CITATION:
Regina v SS [2010] NSWSC 1169


JURISDICTION:
Common Law Division

FILE NUMBER(S):
2009/79057

HEARING DATE(S):
23-24/9/10

JUDGMENT DATE:
5 November 2010

PARTIES:
Regina
SS

JUDGMENT OF:
Kirby J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable



COUNSEL:
J Baly (Crown)
C J Bruce SC (Acc)


SOLICITORS:
K Vaughan - DPP (Crown)
Anderson Randall Sols (Acc)


CATCHWORDS:
CRIMINAL LAW
sentence
manslaughter by unlawful and dangerous act
setting fire to house in attempted suicide
partner died
long history drugs, alcohol, mental illness
offender severe burns
whether extra judicial punishment
whether offence aggravated because fire in deceased's home
shared accommodation s 21A(2)(eb) Crimes (Sentencing Procedure) Act 1999

LEGISLATION CITED:
Mental Health Act 2007
Crimes (Sentencing Procedure) Act 1999

CATEGORY:
Sentence

CASES CITED:
R v Allpass (1993) 72 A Crim R 561
R v Daetz & Anor [2003] NSWCCA 216; (2003) 139 A Crim R 398
R v Barci (1994) 76 A Crim R 103
Sharpe v R [2006] NSWCCA 255
R v Noble (1996) 1 Qd R 329; (1994) 73 A Crim R 379
Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267
R v Haddara (1997) 95 A Crim R 108
Alameddine v Regina [2006] NSWCCA 317
Christodoulou v R [2008] NSWCCA 102
Hyunwook Oh v R [2010] NSWCCA 148
R v Heyne (Court of Criminal Appeal, 18 September 1998, unreported)
R v Olig [2002] NSWCCA 249
R v Huynh [2003] NSWCCA 1066
R v Mooney (Supreme Court, Full Court, Vic, 21 June 1978, unreported)
R v Anderson [1981] VicRp 17; (1981) VR 155
R v Previtera (1997) 94 A Crim R 76

TEXTS CITED:


DECISION:
Imprisonment with a non parole period of 3 years to date from 15 February 2010 and to expire on 14 February 2013, with a total sentence of 6 years 7 months to date from 15 February 2010 and to expire on 14 September 2016. Eligible for release on parole on the 14 February 2013.



JUDGMENT:

THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

CRIMINAL LIST

KIRBY J

Friday 5 November 2010

2009/79057 REGINA v “SS”

JUDGMENT ON SENTENCE

1 KIRBY J: “SS” (the offender) lived with her partner, Matthew Tansley (the deceased), in a rented house in Lismore. In the same house there were four others, one being her daughter. On the evening of 6 February 2009, SS set fire to her room in an attempt to end her own life. Matthew Tansley raised the alarm and heroically entered the bedroom to rescue SS and to put out the fire. He received shocking burns to more than ninety percent of his body. He died two days later. SS escaped, as did the others. However, she was herself badly burned.

2 SS was charged with murder. On 2 July 2010, she was arraigned in Sydney. She pleaded not guilty to murder, but guilty of manslaughter. The Crown accepted that plea in full satisfaction of the indictment.

3 It remains for me to pass sentence. Before I do so, I must find the facts relevant to the sentencing discretion. Where the facts are adverse, they must be found beyond reasonable doubt. Where they favour the offender, it is enough that they should be established on the balance of probabilities.

Background.

4 The crime of manslaughter by an unlawful and dangerous act does not depend upon the state of mind of the offender. The Crown need only prove that, objectively, the unlawful act of the offender was dangerous. However, in determining the seriousness of the offence and the moral culpability of the offender, her state of mind is relevant.

5 SS was born in December 1968. At the time of the offence, she was 40 years old. She had a troubled history. Both parents had abused alcohol. Her mother had also abused drugs. Her parents separated when she was four years old. She remained with her mother, who mistreated her physically and emotionally. SS began drinking at the age of 13 years and shortly after began taking drugs. She completed Year 10 at school, but left home at the age of 16 years.

6 When SS was 17 years old, she was working in the Bowral area and met her husband, Matthew. She became pregnant with her first child at the age of 17. By the time she was 20 she had her second child and ceased work. She has not worked since, relying upon Government benefits. She has four children.

7 Within a short time of marrying, SS and her husband began using heroin on a recreational basis, as well as other drugs. She claims that she was never dependent upon heroin. Nonetheless, in 1992 she was admitted to hospital following a heroin overdose. Whilst in hospital, she was questioned about the arrangements in respect of her children. She became fearful that her children may be taken from her unless she undertook treatment in respect of heroin. Shortly thereafter, she and her husband entered the methadone programme.

8 SS acknowledged that she became addicted to methadone. Indeed, she found it far more disabling than heroin. She made many attempts to reduce the dose, but found that such reductions were short lived. She continued taking methadone until 2008.

9 On 15 June 2001, SS was admitted to the Lismore Base Hospital, Psychiatric Unit, where she remained until the next day. According to the hospital records, she was diagnosed with an adjustment disorder with poly substance abuse, as well as “cluster B traits”. Cluster B traits are traits associated with a personality disorder (Exhibit 1). SS was placed on a disability pension for anxiety and depression (Exhibit 1, Case p 10).

10 At about this time SS’s treating doctor prescribed Xanax, a drug which belongs to a class of anxiety relieving sedatives known as benzodiazepines (Exhibit 1, Dr Neilssen, p 2). Within a short time, SS began to abuse these prescription drugs. At the same time she drank alcohol to excess.

11 Unsurprisingly, her life was chaotic. Over the years of her marriage, she had been repeatedly assaulted by her husband. She had not reported these assaults to the police. She regarded them as a private matter which had nothing to do with the police. She also recognised that the arguments which led to the assaults were not always her husband’s fault. She said this: (T 8)

“I am not the most easiest person to get on with.”

12 The disputes she had with neighbours in the community housing which she rented at Lismore were a further aspect of the chaos in her life. She acknowledged that, looking back, she was “the neighbour from hell” (T 25, 42). She played loud music. She did so, knowing it would aggravate a particular neighbour. In the arguments that followed, she would not take a backward step. She gave as good as she got.

13 In April 2008, there was a further violent argument between SS and her husband. Someone called the police. The police then determined that they would seek, on her behalf, an Apprehended Violence Order (“AVO”) against her husband. SS, when later speaking to a psychologist, acknowledged that, by this time, she and her husband were not happy. They had grown apart (Exhibit 1, Case p 7). They had been together for more than 22 years. The order having been made, her husband moved out and returned to Bowral, where his family lived.

14 SS later told Dr Neilssen that, after separating from her husband, alcohol became a significant problem (Exhibit 1, Dr Neilssen p 3). She developed a high tolerance to alcohol and would consume as much as a bottle of spirits each day. She avoided withdrawal symptoms by having yet more alcohol the following day.

15 On 10 August 2008, SS was taken by the police by the Lismore Base Hospital on a warrant under s 22 of the Mental Health Act 2007. That section gives the police power to take persons who are mentally unstable to hospital for assessment. SS remained in hospital overnight. She then resumed her chaotic life, abusing prescription drugs and alcohol.

The first fire.

16 On 25 August 2008, SS barricaded herself into her bedroom by placing a table against the door. She then set fire to the bed. Two of her children, both teenagers, were in the house at the time. The youngest child heard the alarm of the smoke detectors and went to her mother’s room. She endeavoured to open the door. She could not do so because of the table jammed against the door. There was smoke coming from the room and she could see flames. Cleverly, she got the garden hose and thrust it through the gap in the doorway, so that water flowed into the bedroom. She then ran next door to get the neighbours, who were asleep. They came at once and forced the door open. A neighbour, Ms Ronda Dawes, described what she saw in these terms: (Statement 8.2.09)

“10. Smoke then just bellowed up and out of the room. Through the smoke I could see (SS) lying on the bed, but she had the covers up over her head. ... I could see flames all the way around under her bed and at the bottom of her curtains. ... ”

17 Ms Dawes, exhibiting great courage, described what she then did, in these words:

“11. I went forward and grabbed (SS’s) arm to pull her up. As I pulled her arm the covers came back and I could see she was lying on her side. (SS) flopped back down because she was too heavy, and that’s when the bottom of the bed covers flicked up. As I pulled back I sat on the bed to try and pull her over me. I sat on the burning covers and burnt my bottom. I then dragged her off the bed, I think by her feet. I saw the next door neighbour from number 10, Percy, standing at the doorway of the bedroom. He helped me drag (SS) out into the hallway. I could tell that (SS) wasn’t breathing because I felt at her mouth with my hand and couldn’t feel any breath. I gave her two or three breaths of artificial respiration and Percy pushed on her chest.”

18 Once outside the house, SS was revived and taken to the Psychiatric Clinic at the Lismore Hospital, suffering from the effects of smoke inhalation. She remained at the clinic until 5 September 2008. The hospital notes record that she told hospital staff that the “lighting up of (the) house was not a suicide attempt”, she did not wish to die (Exhibit 1). Her friend Ms Ronda Dawes, who had rescued her, came to the hospital within a matter of days, bringing SS’s youngest child, who had raised the alarm. Ms Dawes recounted the conversation between mother and daughter, in these terms (substituting the letter “J” for the name of daughter): (Statement 8.2.09)

“14. After the fire (SS) was away being treated at the Richmond Clinic for a while. A few days after the fire I drove J there to visit her mother. J said to her, ‘Mum, you deliberately lit the fire.’ (SS) said, ‘I don’t remember doing it’. J said, ‘But you told me when you went to bed that you were going to do something stupid. How do I know that you’re not doing it again?’ All (SS) said to that was ‘I can’t remember doing it’. J said, ‘How can you not remember doing it, you nearly killed me.’ (SS) and J were in tears, so I said, ‘That’s enough’ and I took J home.”

19 SS, in her evidence on sentence to this court, repeated that she had no memory of the fire or being in the house before the fire. She was cross examined. The suggestion was made that she had, conveniently, a selective memory. SS insisted that she could not remember. There is no doubt that she was heavily intoxicated as a consequence of both alcohol and prescription drugs. The hospital diagnosis in respect of the first fire was “poly substance abuse”, in the context of a personality disorder (Exhibit 4). However, an Agreed Statement of Facts was tendered, which included the following statement relating to the first fire:

“23. ... She told another neighbour that she had lit the fire deliberately as an attempt at suicide. She was not charged for any offence.”

20 Elsewhere in her evidence, SS said that she was not sure what she remembered and what she had been told (T 49). I think it likely that she has no actual recollection of the circumstances leading to the first fire, but accepts, on the evidence, that she lit the fire and did so deliberately.

21 Whilst SS was in hospital, her husband briefly returned to Lismore and repaired much of the damage to the house. Once she was discharged, he again withdrew and returned to Bowral, in compliance with the terms of the AVO. Their youngest daughter, J, elected to go with her father, much to the distress of SS (T 17).

22 On 6 December 2008, acting upon the complaint of a neighbour, the police came to the home of SS with a warrant to remove her stereo. This was a source of anguish to SS. However, as it happened, she met Matthew Tansley the same day. Each had recently separated from a long term partner. Both tended to drink alcohol to excess. Quickly they formed a relationship.

23 Nevertheless, the disputes of SS with her neighbours continued. In January 2009, a neighbour took out an AVO against SS. She responded by taking out a similar order against the neighbour. On 29 January 2009, SS was arrested for breaching the conditions of the AVO. At the same time she was charged with offensive language and resisting the police officers who came to arrest her. At the time of her arrest, she was intoxicated. She was taken into custody, where she remained overnight (Exhibit 3). Ultimately, fines were imposed in respect of each offence.

The second fire.

24 On the morning of 6 February 2009, SS and Matthew Tansley met Richard Gannon, Matthew’s brother, at the Tattersall’s Hotel in Lismore. They drank three rounds of beer. Matthew and his brother then purchased a carton of beer which they took back to the house. SS, meanwhile, went to the doctor to obtain a prescription for medication she required. She then attended the Housing Tribunal, which was hearing a complaint by neighbours against her, concerning excessive noise. At about 3.30 pm, SS returned home. She was upset. The Tribunal had made an order that she should vacate the premises. Matthew and his brother continued drinking beer. In the course of the afternoon, SS and Matthew began singing songs on the karaoke play station.

25 At some point the deceased’s brother, Richard, went to the supermarket where he purchased food and vodka. Once he returned, SS cooked a meal for all members of the household. SS’s daughter and her boyfriend retired to a bedroom. SS, Matthew and Richard Gannon continued drinking.

26 SS remained upset about the Tribunal hearing. Eventually Richard Gannon withdrew and fell asleep in the spare bedroom. SS and the deceased then began arguing. The agreed facts included these words:

“10. The deceased and the offender could be heard arguing. Peter Cooper (the daughter’s boyfriend) heard the deceased say ‘I am sick of living like this and putting up with you being pissed all the time. I am going to leave you if you don’t pull your head in.’ He also heard, during the night, heavy furniture being moved in the offender’s bedroom. (SS’s daughter) was awoken during the night by the deceased shouting ‘Just go to sleep Sharyn. Just be quiet and go to bed.’ She heard her mother reply – ‘Fuck off.’ She knew by the sound of the voice that her mother was drunk.”

(parenthesis added)

27 Some time later, Peter Cooper was awakened by footsteps in the hallway. Matthew was yelling: “You’re fucking not are you?”. Mr Cooper immediately got up. He made his way to the adjacent bedroom, being the bedroom occupied by SS and Matthew. The agreed facts described what he saw in these words:

“11. ... The room was engulfed in fire. He saw the deceased ‘barging’ the bedroom door open, as if there was something against it. He then observed the deceased ‘lunge’ into the room and immediately come back out screaming. Cooper and (SS’s daughter) ran from the house. The deceased was running in front of them screaming. Mr Gannon (Matthew’s brother) also fled from the burning house. The deceased threw himself onto the front lawn and rolled around screaming.”

(parenthesis added)

28 The Fire Brigade and Police were called. There was substantial damage to the house. A neighbour described the scene, saying:

“... we started putting water on our houses because there was no point wasting water on number 8, it was too far gone.”

29 SS left the house through the back door. She emersed herself in the back yard swimming pool. She was clearly affected by alcohol. The agreed statement included the following:

“16. A police officer spoke to the offender while she was in the swimming pool. The officer smelt alcohol on the offender. She observed that the offender did not flinch when a large cannula was inserted by a paramedic into her neck. She concluded that the offender was intoxicated. She was taken to Lismore Hospital.”

30 The Police at the scene spoke to Matthew Tansley as he lay on the nature strip. He described what had happened in these words:

“14. ... ‘she poured four litres of petrol everywhere and lit it up.’ The deceased then asked if the offender was okay and said ‘I tried to put the fire out but I couldn’t, I tried to get everyone out in time, I don’t know why Sharyn did it. I told her to go to bed.’”

31 An Ambulance Officer, when transporting Mr Tansley to hospital, heard him say: “She’s fucking done it again, she’s fucking done it again”.

32 The Police immediately began an investigation into the cause of the fire. The agreed facts recorded their findings in these words:

“19. A scene of crime officer concluded that the fire originated in the bedroom of the offender. No accelerant was located however a fire affected petrol can was found in the bedroom. A day or two before the fire Peter Cooper saw the offender take a can of lawn mowing petrol into the house. At the time the offender said to Cooper that she was removing the petrol from outside the house ‘before someone does it to ours’ this was a reference to the day before when someone had poured petrol on Cooper’s front door and lit it causing a small amount of damage. Two youths were seen by a neighbour to run from the scene.”

33 SS sustained burns to 54% of her body. She said, once more, that she had no recollection of the fire or the circumstances leading to the fire. She remembered aspects of the hearing before the Tenancy Tribunal, although, to her mind, the hearing had taken place some days before. Her first recollection after the fire was regaining consciousness in the Intensive Care Unit at Brisbane Hospital. Dr Olav Nielssen, forensic psychiatrist, explained the effect of significant quantities of alcohol upon memory in these words: (Dr Nielssen 12.2.10, p 7)

“(SS) reported drinking four drinks at a hotel and as much as a bottle of vodka on the day of the fire and having no memory of the events leading to or surrounding the fire. Consumption of as much as 300 grams of alcohol in a day is frequently associated with amnestic episodes, or ‘blackouts’, even in habitual drinkers with a high tolerance to the effects of alcohol. The addition of even a small quantity of benzodiazepine medication is likely to have increased the likelihood and duration of an amnestic episode.”

34 I accept her absence of recollection as genuine.

35 After the fire, the police interviewed people who knew SS in order to obtain some insight into her state of mind. Her neighbour, Ronda Dawes, described SS in the months preceding the fire in these terms: (S’ment 8.2.09, p 4)

“31. In terms of her drinking, (SS) was a bourbon drinker, but in recent times she has started drinking red wine. I would term her an alcoholic, because, and especially the last couple of months, (SS) would drink every day, to the point of being drunk. She told me, ‘That’s the only way I can forget my problems’. I had noticed recently she had started drinking in the mornings, and on a few occasions I had to tell her I couldn’t deal with her because she had been drinking.”

36 SS now accepts that, on the evidence, she deliberately started the fire in an attempt to end her own life, even though she has no recollection of having done so (T 10).

37 Let me then turn to the subjective case presented on behalf of SS.

Subjective case.

38 I have already described the background of SS. Her lawyers, for the purposes of sentence, arranged for SS to be examined by Dr Nielssen, forensic psychiatrist, and Ms Debbie Case, psychologist. Dr Nielssen diagnosed the following psychiatric conditions: (p 6)

1. Substance dependence and abuse.

2. Anxiety disorder.

3. Depressive illness, in partial remission.

39 When Dr Nielssen saw SS in February 2010, she said that neither in August 2008, on the occasion of the first fire, nor in February 2009, the second fire, had she intended to commit suicide. She said much the same to Ms Case in September 2010. Her evidence on 23 September 2010, accepting that each fire was a genuine suicide attempt, is therefore very recent. She stated that she found the acknowledgement of attempting suicide extremely difficult. She saw herself as a strong person. She knew that others depended upon her, so that she needed to be strong. She saw suicide as a sign of weakness (T 11/14). However, having been confronted with the evidence, she now recognised that she had deliberately lit each fire. She has also come to realise that she needs help. She had found the four hour session with Ms Debbie Case, psychologist, beneficial, simply by talking about her problems. She has since undergone counselling and, likewise, recognised its benefits (T 28, 31).

40 SS told Dr Nielssen in February 2010 that she had not had alcohol or illicit drugs since 6 February 2009. She said she was the “clearest” in her adult life. She looked forward to remaining drug free (Dr Nielssen, report p 5). SS said much the same thing to Ms Case (report p 13). When giving evidence, SS acknowledged that she had a drink in June 2010 on the occasion of the birth of her granddaughter (T 27), a bourbon and coke. She expressed great disappointment with herself for having done so.

41 Since her release from hospital in June 2009, SS has lived with her former husband’s parents in Bowral. Her former husband, Matthew, hopes that they will resume their marriage. SS has reservations about stepping back into the marriage because her husband still has alcohol and occasionally illicit drugs (T 27/28). SS told Ms Debbie Case the following: (report p 13)

“... Sharyn reported being unable to have substances of any amount or description in her life. She advised that she wished a life of abstinence and clarity and would not be able to tolerate a partner who did not support her new needs.”

42 Hence, notwithstanding her bleak history, there is reason for hope that SS now has insight into her various problems, and especially the destructive effect of drugs and alcohol upon her life. In the course of her evidence, SS said this: (T 34/35)

“Q. I mean again just sitting there now how would you describe him, what was he like, Matthew, when you were with him, as a person?

A. He was very caring and thoughtful.

Q. Very caring and thoughtful. Do you see any positives at all coming out of this tragic loss?

A. Yes, I do see positives coming out.

Q. You do see positives - I know it's hard but you have to talk up - "I do see positives coming out", what is that? What do you see?

A. That I'm going to be changing a lot about myself.

Q. You are going to be changing a lot about yourself?

A. Yes.

Q. Do you remember in conference you told me something along those lines, but before you said it you said this might sound a bit - and you said something else before that. Remember we had a conference and you told me something along those lines?

A. I said it sounded selfish.

Q. It sounded selfish. What you're meaning is it sounded selfish, what you're saying is this incident, the fire on that night and the loss of Matthew (has) to some extent turned you around?

A. Yes.

Q. What do you see yourself as a different person from the one before the fire?

A. I just have different views on how to approach things and I'm sure with a bit of help I can make it even better.”

43 I accept that SS is genuinely remorseful for her actions. Ms Case noted that, throughout their consultation, she was distraught when discussing the offence and Matthew’s death (Exhibit 1, Case pp 2, 13). When SS first saw Matthew’s family at court, she said that she wanted to tell them how sorry she was about his death. At the time she felt that she could not approach them (T 32).

44 However, when she saw the family again on 23 September 2010 at Darlinghurst, when this matter was listed for submissions on sentence, she did approach them. They were in a coffee shop. She described what happened in these words: (T 33)

“Q. You went up?

A. I said to them that I was sorry for the death of their son.

Q. "Sorry for the death of their son". Who did you say that to?

A. His mum and dad.

Q. Can you remember if you said anything else - I'm not saying you did, but I'm just trying--

A. And that I was really sorry in the way that he died.

Q. Is that it?

A. And that may be some day, but not today but they might be able to forgive me.”

45 With great generosity, Matthew’s family responded by thanking her (T 33).

46 SS is entitled to a discount in respect of her plea of guilty. The plea was offered shortly after the committal proceedings. I believe the appropriate discount is 17½%.

47 The offender has a criminal record, although far less extensive than you would expect, given her association with drugs and alcohol. She was fined and disqualified from driving in 1997 and again in 1998, because she was driving under the influence of drugs. She has been convicted of offensive language, shoplifting and destroying property, as well as the offences which occurred in 2009, which I have described. I am urged to find that her prospects of rehabilitation are good (s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999) (“the Act”) and that she is unlikely to reoffend (s 21A(3)(g)). Everything obviously depends upon whether SS can maintain her resolve to abstain from alcohol and drugs. I think it likely that she will abstain. Her prospects are therefore good and I believe she is not likely to reoffend.

Extra Judicial punishment.

48 After the fire, SS was taken to the Lismore Base Hospital. She was then airlifted to the Royal Brisbane and Women’s Hospital Intensive Care Unit. She was placed in a medically induced coma for about two weeks. She had suffered 54% dermal and full thickness burns, mainly to her arms and legs (Exhibit 4). She remained in intensive care until 3 March 2009. She was heavily bandaged and, in the early stages, very swollen. Ultimately she was transferred to the Burns Unit of the same hospital, where she underwent six operations involving skin grafts. She said that, once she recovered consciousness, the pain was excruciating.

49 On 21 April 2009, SS was transferred to the Royal Rehabilitation Centre at Ryde. When undergoing rehabilitation, she was required to take two or three baths a day, over many weeks. She would be placed in the bath in bandages which were then removed once they had soaked through (T 21). Pain killing medication was given to enable her to survive that process but, in her words, it “never seemed to be enough” (T 20). She was later required to undergo physiotherapy to prevent contracture of the limbs. Again, the process involved enormous pain. The treatment included wearing a body suit. It was enormously difficult and painful to get into the suit. It was a relief to take it off. She was ultimately discharged from the Rehabilitation Centre on 3 June 2009.

50 She then went to live with her husband’s family in Bowral. She came under the care of the Bowral Medical Centre. On one occasion the pain was overwhelming and she collapsed, and was admitted to the Bowral Hospital for a few hours (T 24).

51 SS has been left with very significant scarring to her arms, hands, legs and feet, as depicted in photographs (Exhibit 2). She is hypersensitive in her feet. She experiences contractures, caused by scar tissue, and will require operations in the future. She presently requires skin management and pain management and occasionally physiotherapy.

52 It was submitted on her behalf that the grievous injuries that she suffered amounted to extra judicial punishment. As such, they were a mitigating factor on sentence. The Crown rejected that suggestion. The injuries were self inflicted. According to the Crown, to amount to extra judicial punishment such injuries must be inflicted by others, not by the offender.

53 The principles relating to extra judicial punishment as a matter in mitigation have been considered in a number of cases. Adverse consequences arising from vigilante or revenge attacks may be taken into account (R v Allpass (1993) 72 A Crim R 561; R v Daetz & Anor [2003] NSWCCA 216; (2003) 139 A Crim R 398). Injuries, whether inflicted by the police (R v Barci (1994) 76 A Crim R 103) or a security guard (Sharpe v R [2006] NSWCCA 255) or the victim (R v Noble (1996) 1 Qd R 329; (1994) 73 A Crim R 379), are matters in mitigation.

54 However, the concept has not been confined to adverse consequences inflicted by others. In R v Daetz (supra) James J (the other members of the Court of Criminal Appeal agreeing) stated the principle in these broad terms: (at 411)

“... In sentencing the offender the court takes into account what extra-curial punishment the offender has suffered, because the court is required to take into account all material facts and is required to ensure that the punishment the offender receives is what in all the circumstances is an appropriate punishment and not an excessive punishment. How much weight a sentencing judge should give any extra-curial punishment will, of course, depend on all the circumstances of the case. Indeed, there may well be many cases where extra-judicial punishment attracts little or no significant weight.”

55 Matters such as loss of employment or profession or superannuation benefits are matters that can be taken into account in sentencing the offender (Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 per McHugh J at [54]).

56 The principle has been extended to self inflicted injuries. In R v Haddara (1997) 95 A Crim R 108, the Victorian Court of Appeal recognised as a matter of mitigation the physical and psychological injuries suffered by the offender (who was charged with arson) following a fire which he had lit. In Alameddine v Regina [2006] NSWCCA 317, Grove J (the other members of the Court agreeing) said this: (at [23])

“23. As the cases to which I have referred reveal there is a strong current of judicial opinion against outright rejection of the possibility of mitigation even where the injury is self inflicted or induced by the activity of the offender. ...”

57 In Christodoulou v R [2008] NSWCCA 102, the offender threatened to inject himself with battery acid if an attempt were made to arrest him. He ultimately carried out that threat and suffered injury, although the injury was cosmetic rather than functional. Grove J, in that context (Johnson J agreeing, Campbell JA doubting) refused to regard the injuries as extra curial punishment and a matter in mitigation. He identified the principle in these terms: (at [42])

“42. Insofar as the taking into account of extra curial punishment may be described as a principle, there is no authority for extending it to deliberately caused injury and such an extension should not, in my opinion, be recognized.”

58 The injury in that case arose after the offences had been committed and were inflicted by the offender upon himself as a means of evading arrest. Here, the injuries were the consequence of the offence itself. It may be accepted that SS intended death, not the shocking injuries that she sustained. They are the consequence of her rescue. They may be characterised as extra judicial punishment. The words of the Victorian Full Court in R v Barci (supra) are apposite. In the context of serious injuries inflicted upon the offender in the course of a robbery, the Court said this: (at [111])

“... For the rest of his life, those injuries will serve as a savage reminder to Barci of his criminality, and as such, they must fairly be regarded as constituting some punishment for that criminality.”

59 I therefore turn to the objective seriousness of the offence.

The objective seriousness of the offence.

60 The foundation for the charge of manslaughter against SS was the unlawful and dangerous act of setting fire to her bedroom, as she attempted to end her own life. Objectively, the circumstances were very serious. Accelerant was used. The house was occupied by a number of individuals. Some were asleep. Some, including her daughter, were very young. A number were seriously affected by alcohol. All were forced to flee from the house. The house was substantially damaged.

61 The Crown asserted that the offence was aggravated because it was committed in the house of the victim (s 21A(2)(eb) of the Act). Matthew Tansley had resided in the house since December 2008. Counsel for SS submitted that the provision did not apply. He argued it was confined to threats from outside the home, such as a home invasion, rather than threats from within. However, the wording of the statute suggests a wider meaning. A person should be entitled to feel safe in his or her own home, including from people who share the same home (cf Hyunwook Oh v R [2010] NSWCCA 148 at [36]- [40]). Nonetheless, its importance, as a matter of aggravation, will vary depending upon the circumstances. In the context of the present offence, it is less important than it would be in the context of a home invasion.

62 The moral culpability of the offender also requires an examination of her state of mind. The Crown, in submissions, acknowledged that SS was, at the relevant time, “deranged”, through the combined effect of alcohol and her psychological problems.

63 SS’s actions followed arguments with the deceased. It may be inferred that she acted impulsively. Nonetheless, her offence involved a number of separate steps. She pushed the table against the door. She spread accelerant in the room. She then set it alight. Although she was very drunk, I infer that she was not oblivious to her surroundings. If she thought of others, she was simply beyond caring.

64 The Crown submitted that her intoxication was not a mitigating factor and, in one sense, that is right. It is not something that reduces her culpability. However, her intoxication is relevant to her appreciation of the danger that she had created for others. Here, one cannot be confident that she had such an appreciation.

65 Attention was drawn by counsel for SS to a number of cases in which individuals had been sentenced for manslaughter, where fire was involved (R v Heyne (Court of Criminal Appeal, 18 September 1998, unreported); R v Olig [2002] NSWCCA 249; R v Huynh [2003] NSWCCA 1066). Each case is different and the guidance provided by these cases is therefore limited. The mental illness of SS at the time of the fire moderates the importance that general deterrence may otherwise have in determining an appropriate sentence. In R v Mooney (Supreme Court, Full Court, Vic, 21 June 1978, unreported) referred to in R v Anderson [1981] VicRp 17; (1981) VR 155 at 161, Young CJ said this:

“... general deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others.”

66 On the other hand, the history of SS in lighting one fire in August 2008, which had serious consequences, and another fire in February 2009, which had catastrophic consequences, underlines the importance of personal deterrence.

67 During the sentencing hearing, the mother, the stepfather and the sister of Matthew Tansley read Victim Impact Statements. They described the horror of his death. He was a gentle and decent man who exhibited true heroism. He suffered greatly for it. His family, including his young children, now suffer through his loss. I must, of course, deal with this material in a manner consistent with R v Previtera (1997) 94 A Crim R 76 at [85].

68 There is no doubt that gaol will be difficult for the offender by reason of her disabilities. To assist in her rehabilitation from drugs and alcohol, I find special circumstances, and will fix a longer than usual parole period.

69 SS completed her treatment at the Royal Rehabilitation Centre at Ryde on 3 June 2009, and was then taken into custody. She was released on bail on 19 February 2010 (261 days). She should be given credit for that time. I will back date the sentence to a notional starting date of Monday 15 February 2010. The starting point for the sentence is 8 years, discounted by 17½% for the plea of guilty.

70 SS, I sentence you to imprisonment with a non parole period of 3 years to date from 15 February 2010 and to expire on 14 February 2013, with a total sentence of 6 years 7 months to date from 15 February 2010 and to expire on 14 September 2016. You will be eligible for release on parole on the 14 February 2013.

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LAST UPDATED:
5 November 2010