R v Bellchambers

[2010] NSWDC 306

CITATION:	R v BELLCHAMBERS [2010] NSWDC 306
HEARING DATE(S):	12 November 2010
JUDGMENT DATE:	12 November 2010
JURISDICTION:	District Court - Crime
JUDGMENT OF:	Knox SC DCJ
DECISION:	Count 1: a fixed term of twelve months imprisonment commencing on 13 April 2009 and expiring on 12 April 2010. Count 2: a non-parole period of imprisonment of nine years commencing on 13 April 2009 and expiring on 12 April 2018 with an additional four years and six months to be served on parole.
CATCHWORDS:	Sentence - Manslaughter - Victim in a coma for four and a half years - Impact of mental illness on sentence - Absence of manifestations of remorse - Delay - Multiple previous trials
LEGISLATION CITED:	18(1)(b) Crimes Act (NSW) 1900 59(1) Crimes Act (NSW) 1900 33 Crimes Act (NSW) 1900
CASES CITED:	R v Bellchambers [2008] NSWCCA 235 R v Hoerler (2004) 146 A Crim R 536 R v Isaacs (1997) 41 NSWLR 374 R v Palu [2002] NSWCCA 381 R v Qutami [2001] NSWCCA 353 R v Engert (1996) A Crim R 67 R v Wright (1997) 93 A Crim R 48 R v Niketic [2002] NSWCCA 425 R v Bolt [2001] NSWCCA 487 R v Kwon [2004] NSWCCA 456 R v Sherry [2000] NSWCCA 35 R v Whiting [2002] NSWSC 827 R v Cavanough [2007] NSWSC 561 R v Zammit [2008] NSWSC 317 R v Stewart [2008] NSWSC 1359 R v Doolan [2010] NSWSC 615 R v Mitchell 47 NSWDC (Sides DCJ) 11 December 1998
PARTIES:	Regina Dennis Arthur BELLCHAMBERS
FILE NUMBER(S):	2006/8890
COUNSEL:	Mark Hobart SC Timothy Watts
SOLICITORS:	Director of Public Prosecutions McCulloch and Buggy Lawyers

JUDGMENT

REMARKS ON SENTENCE

INDICTMENT

1 On 9 September 2010, the offender was found guilty by a jury following a trial on the following count:

On 22 January 2010 at Dunbogan in the State of New South Wales did feloniously slay Julie Ann Barry.

2 That count was brought pursuant to s 18(1)(b) of the Crimes Act (NSW) 1900. The maximum penalty for that offence is one of twenty-five years imprisonment.

PLEA

3 The offender was arraigned on 25 August 2010 and on that date he pleaded guilty to an assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act.

4 That offence was count 1 on the indictment before the jury. That offence is subject to a maximum penalty of five years imprisonment. An agreed set of facts was handed up in relation to that matter and that became exhibit 1 on the voir dire.

5 In summary, the assault occasioning actual bodily count relates to an assault earlier on the same day as the assault forming the basis of the act constituting the manslaughter count in relation to which the offender was convicted.

PROCEDURAL BACKGROUND

6 In November 2006 the offender was indicted on a count of maliciously inflicting grievous bodily harm pursuant to s 33 of the Crimes Act. The jury on that occasion were unable to agree on a verdict.

7 In August 2007 the offender was convicted by another jury following a trial on a charge brought under s 33 of the Crimes Act. That conviction was set aside by the Court of Criminal Appeal - see R v Bellchambers [2008] NSWCCA 235. The offender served a total of fifteen months in prison prior to his release on bail. He had earlier been in prison following the actual incident but was released on bail.

8 For the purposes of the current sentencing exercise, in accordance with the dates as specified in exhibit 5 on sentence of the Crown bundle of documents, it is agreed that the period the offender has been incarcerated following this offence is one of about nineteen months. The parties agree that there may be a couple of days either side of that total and I am proposing to go to the closest available date being a relevant sentencing date to which this sentence will be backdated. In my view, that is the proper approach to be adopted to ensure that there is no prejudice to anybody in taking into account the period of time served.

9 In November 2009, the offender was again indicted on the same count in a third trial. The jury was unable to reach a verdict on that second occasion.

10 The victim of the assaults, Ms Julie Barry, died on 22 January 2010. These proceedings, including the manslaughter count as outlined above, were then commenced against the offender. A chronology which became exhibit S6 refers to delays which occurred when the matter was adjourned until the post- mortem was completed in relation to Ms Barry.

RELATIONSHIP

11 The offender and Ms Barry had been in a relationship which was one of at least close personal friendship, and some further aspects of mutual care, since approximately 2003. Ms Barry, at that time, lived in Singleton, New South Wales. The offender lived nearby in Belford. The offender also had a holiday house at Dunbogan where he and Ms Barry sometimes stayed and where the relevant assaults occurred.

12 The relationship was characterised by heavy drinking on the part of both the offender and Ms Barry over a significant period of time. Both Mr Bellchambers and Ms Barry were considerable consumers of alcohol. There was considerable evidence that would suggest that both parties had ingested considerable quantities of alcohol on the day of the incident at least, and probably the immediately preceding days.

13 In her statement dated 26 May 2005, Ms Bigham states that her mother the deceased, Ms Barry, was an alcoholic. A blood alcohol analysis conducted when she was admitted to hospital on the day of the incident gave a reading of 0.3. There was evidence at the trial about the probability of different readings at different times and the probable cause for the difference in the readings. This is only mentioned as part and parcel of the background to the particular events. There is nothing which would warrant a finding of provocation manslaughter as that term is sometimes used and I do not understand Mr Watts of counsel for the offender to argue to the contrary.

AGREED FACTS

14 A statement of agreed facts has been tendered which became exhibit 7. The statement of agreed facts tendered this morning became exhibit S7.

EVENTS LEADING UP TO THE INCIDENT

15 Having listened to and reviewed the evidence at trial, in my view the following are the relevant matters for this sentencing exercise. Ms Barry’s brother, Kerry Howlett, stayed with the offender and Ms Barry for a number of days from 13 May 2005 at the premises where the events took place. He was there to construct a deck.

16 From 16 May 2005 and for nine days following, there was a series of relevant events at or around the offender’s house, heard and observed by neighbours including shouting and altercations as well as marks and bruising on Ms Barry.

17 Between 13 and 16 May while Mr Howlett was there, no events were heard or seen by the neighbours.

18 On 22 May 2005, a neighbour Ms De Saxe, saw the offender and Ms Barry sitting on the front veranda of the house. Ms Barry had a black eye. That afternoon another neighbour, Raymond Shepherd saw the offender and Ms Barry sitting on the front veranda of the house and heard the offender say “Get inside, I’m going to teach you a lesson”. He heard what sounded like bashing, yelling and screaming and a cry consistent with a female voice coming from inside the house.

19 On 23 and 24 May 2005, Ms Barry was observed at various shops with bruises to her eyes and face. Ms Barry told one of the shopkeepers that the injury had come from “a bit of an accident”.

20 On 24 May Mr De Saxe heard a crash coming from inside the house. He saw Ms Barry lying on the deck of the house and the offender just inside the door. Ms Barry sat up and the offender walked away saying “Don’t fuckin’ worry about it”.

21 The neighbour Mr Shepherd and another visitor, David Footit, observed injuries to her eyes and bruising to her chest. David Footit, who was visiting Raymond Shepherd at the time, said that he saw that Ms Barry’s left eye was closed up and bruised and that Mr De Saxe, a neighbour living on the other side of Mr Bellchambers said that,

“at about 3.30pm on the Wednesday afternoon 25 May a tiler came to my place to measure up for some tiles. I was on my front porch when I looked over to 24 and saw Julie sitting on a chair out the front deck, she had bruising to her face. She had been badly knocked about, she had black eyes, her face looked swollen and I said ‘G’day’, and Julie looked at me and said ‘We are going home tomorrow’.”

22 Other evidence was given by people, including shopkeepers and casual observers from both Dunbogan and Laurieton, of their observations of the injuries suffered by Ms Barry. Her injuries were clearly extensive and serious. Those injuries, or at least some of them, must have been apparent to Mr Bellchambers.

THE INCIDENT AND ADMISSIONS BY THE OFFENDER

23 Ms Barry’s daughter, Sharni, had called the offender’s mobile number at about 1.10pm that day asking to speak to her mother. She said that the accused said to her:

“I’m sorry Sharni but I hit her. She went fucking nuts. She was smashing up the house. I went wack wack wack. She’s got two black eyes. It was the only thing that would calm her down and stop her”.

24 I make these observations because it becomes relevant in considering the impact and the effect of death and the matters taken into account by the treating doctors and subsequent medical experts including a Professor Du Flou and Dr Charles Teo. In that regard for example, the question of the black eyes is significant given the evidence concerning the racoon eyes said to be visible on Ms Barry.

25 When Sharni asked to speak to her mother, her mother came on the line and was crying. Sharni then rang various relatives and ultimately ended up asking her uncle, Kerry Howlett, to go to the Dunbogan home. At 4.16pm, Libby Barry, another daughter of the deceased, rang to speak to her. Libby had spoken to Sharni at approximately 1.30pm earlier that afternoon. The offender admitted to Libby that he had hit the deceased but “not that hard”. Libby told Mr Bellchambers that Kerry and Glenda Howlett would be coming to the home that night to collect Ms Barry.

26 Mr Howlett and his wife arrived at the home at about 9.30pm and knocked on the door. After about ten to fifteen minutes the offender opened the door. He had blood on his T-shirt and shorts, was carrying a cigarette and a glass with brown liquid in it.

27 The offender said to Kerry and Glenda Howlett:

“I’m sorry, I hit Julie. You’ll get a shock when you see her…I had to do it, she wouldn’t shut up”.

28 Ms Glenda Howlett noticed the offender’s right hand was extremely swollen. When Mr and Mrs Howlett went into the main bedroom they saw Julie Barry lying on the floor naked but for an item of clothing. Her face was covered in blood and there was blood on other parts of her body as well as on the mattresses and the bed-head as well as the wall behind it.

29 The offender said repeatedly:

“I’m sorry, Julie attacked me and I had to do it. I had to do it”.

30 Mr Howlett then called on Mr De Saxe who came to the premises. He saw Ms Barry’s injuries were more severe than he had seen earlier in the day. Her face was blacker and more swollen and there was blood on it. Ms De Saxe could not recognise Ms Barry’s facial features because her injuries were so severe.

31 An ambulance was called and while that was coming the offender said to Mr De Saxe:

“I snapped. She drove me crazy and I snapped”.

32 He also said:

“Julie hit me today and I’ve never hit another woman ever. There’s something about Julie that triggers the anger in me and I just listened for half and hour. By hitting her was the only way I could shut her up”.

33 When the ambulance officers attended, one asked the offender about the injuries to Ms Barry. The offender said that she had gone crazy and that he had hit her at approximately 5pm. Another ambulance officer asked what he had hit her with. The offender replied “Just my fists”.

34 When the offender was examined, he had injuries by way of swelling to his right hand. By 27 May 2005, the injury had become a line of bruising on his right palm extending from his ring finger to the middle of his palm.

35 The offender was arrested on 25 May 2005.

MEDICAL EVIDENCE

36 Evidence was given at the trial by Dr Charles Teo, Dr Keller, Dr Buckland and Professor Du Flou. Treating doctors and ambulance officers who attended the offender’s home and removed Ms Barry noted that she, Ms Barry, had a Glasgow coma scale of three. Three is indicative of the most minimal level of responsiveness. This reading indicates that there was effectively a total unresponsiveness to pain or any other stimuli and, as was said by Dr Teo, the reading indicates that Ms Barry was effectively brain-dead.

37 When Ms Barry was taken to the Port Macquarie Hospital at about 11.30pm on 25 May 2005, she had extensive bruising to her face and torso, a laceration to her head and was unconscious. A CT scan of her head showed that she had an extensive sub-dural haematoma, a number of fractured ribs and a pneumothorax of the left lung.

38 On 26 May 2005, she was transferred to the Nepean Hospital for urgent neuro-surgical assessment and intensive care. Dr Kasikar, neurosurgeon, operated on her in an attempt to save her life. He found that the source of the bleeding which caused the sub-dural haematoma was a tear to the sagittal sinus, a central veinous blood vessel. Julie Barry was left severely brain damaged.

39 After the operation Ms Barry required constant nursing care. She remained in a coma and was essentially unresponsive to any stimuli. She died on 22 January 2010. A post-mortem was conducted by Dr Cala on 25 January 2010. The cause of death was said to be sepsis - an infective process which was unrelated to the head injuries (see the report of Dr Cala, Coroner: post-mortem report dated 17 May 2010). However Dr Cala’s report goes on to say that the head injury was a contributing factor to the death as it left Ms Barry with a severely impaired neurological function. Ms Barry was bed bound, unable to speak and required continuous care for survival. Further, there was no likelihood at all that Ms Barry could have notified medical or nursing staff of symptoms or her need for care given her neurological state.

OFFENDER’S STATEMENTS AND ADMISSIONS: ERISP

40 At 5pm on 26 May 2005, the offender participated in an electronically recorded interview. He admitted to deliberately punching Julie Barry twice in quick succession to the right eye. He said he did this to “quieten her down after she came home from the fish shop and just started yelling abuse at him and repeatedly slapping him”. He said he tried to calm her down for about three quarters of an hour but she just kept going “off and off and off”.

41 The offender stated that when Ms Barry attacked him she was not wearing much clothing because she had just been in the bath. He said he was standing up and he hit her. He also said that Ms Barry crawled around underneath the bed and was there sobbing. He said that she belted her head on the bedside table after he had hit her. He said that she tried to hide down by the side of the bed and that that was when he grabbed her and hit her. He said that she was squatting down beside the bed just throwing her arms out and around everywhere. He said he” thought no more of it” and ended up going to sleep.

42 The offender believed that he was awakened by a telephone call at about 6 or 7pm. The telephone records in evidence of Sharni indicate that her phone call was at around 1pm. He said that when he was woken up by the call, Julie Barry was still sobbing on the floor. The next he remembered was being woken by the arrival of Kerry Howlett at about 11pm. The Howlett’s estimate of their arrival at the property was at approximately 9.30pm. Their estimation was based on the time of half time in the relevant State of Origin Rugby League match being televised at that time and is consistent with that. It was only when he got up to let Kerry Howlett in the house that he, the offender, saw the damage to Ms Barry, resulting from the assault that constitutes the manslaughter charge.

43 In his interview, the offender admitted striking Ms Barry the previous Monday and giving her a black eye; further that he had “backhanded” her on the Monday night when she had fallen down the stairs while he was shaking her.

44 It is clear from the record of interview that the offender clearly admits having hit Ms Barry twice - that is relevant to count 1. He did not admit the assaults causing the more serious injuries found upon Ms Barry.

45 The offender’s case at trial was that he did not assault the victim in any way that caused the injuries she had and that the injuries she suffered were consistent with a fall either down the stairs or onto a tiled area. That account or explanation was clearly not accepted by the jury.

46 The offender also told the police in his ERISP that he had lost control, that effectively the victim had gone off and run into walls and belted her head and hit herself (see question and answer 61) on bedside tables. He insisted that Ms Barry had “done the damage to herself - not all of it” (see question and answer 74). That comment needs to be taken into account in the context of the evidence that a neighbour heard the offender say to Ms Barry on the afternoon of 22 May words to the effect of “Get inside, I’m going to teach you a lesson” (see transcript 242 at line 31). Following that, neighbours heard a female voice crying and yelling and screaming.

47 The offender’s account (see the question and answer 300 in the ERISP) was that he was “sick and tired of her screaming and yelling and hitting me. Even the neighbours complained”. He admitted that he could have - and should have - walked out of the bedroom if he had wanted her to stop. He also admitted that when she hit him and was throwing her arms out “… she wasn’t hurting me too much…” (question and answer 324).

48 His account of what had happened in the afternoon was that they had had a bath together (question and answer 312), that he had gone to sleep and then woken when she started hitting him and ripping the bed clothes off him (question and answer 333). He said he hit her to quieten her down (question and answer 365) and that he hit her before - “…it was the only way to quieten her down”. He said the last time he had hit her was five months previously, (question and answer 385) as well as having hit her at a public concert they had been to (question and answer 396).

49 In relation to the events of the evening when he went to sleep “…she was crying on the floor “ (question and answer 377). He had noticed her falling down the stairs twice before but she didn’t need medical attention nor did he call an ambulance (see question and answer 413).

FINDINGS

50 Against this background and the submissions made, my findings of fact need to be consistent with the jury verdict and the elements of the offence charged, that is, manslaughter. Given the fact that the offender was previously tried on three occasions – with the outcomes as set out earlier - it needs to be borne in mind that there is a different consideration of the mental elements required in relation to the manslaughter count on which the offender was convicted compared to the counts in the earlier trials. For example, any finding of an intent to cause grievous bodily harm where the death resulted could have properly founded a count of murder.

51 I find that the offender punched Ms Barry at least twice in relation to the events constituting count 1 and a number of times thereafter. Further, that those punches were in addition to the assaults which occurred constituting the facts for count 2. I accept the evidence of Dr Charles Teo (transcript 579) to the effect that there were multiple blows resulting in multiple differing injuries.

52 Dr Teo’s summary of the injuries and consequences were as follows:

“The subdural haematoma is caused by one blow, the skull base fracture caused by another blow, the black eye caused by another blow, a broken nose by another blow and broken maxilla by another blow. If she had bilateral racoon eyes that’s another blow. So there would have been multiple blows resulting in multiple differing injuries.”

53 The assault which resulted in Ms Barry’s death clearly occurred between approximately 5pm or possibly 6pm and 9:30pm on the evening of 25 May 2010 and followed the earlier assaults relevant to count 2. That brain injury resulted from the assault perpetrated upon Ms Barry by Mr Bellchambers was a substantial cause - and, in my view, the precipitating cause - of the deceased being rendered unconscious which in turn led to her coma and then to her death.

54 I find that the offender’s second assault on Ms Barry later in the afternoon of 25 May 2005 was the substantial cause of her death. Further, Mr Bellchambers’ actions, although not premeditated, constituted an unlawful and dangerous acts.

55 Having reviewed both the medical evidence and the blood splatter evidence I do not accept that the injuries sustained by Ms Barry were the results of her hitting her head on a stationary object such as either the bedside table nor the stairs in the home.

56 I accept Dr Teo’s evidence where, and to the extent that, it is in conflict with that of either Professor Du Flou or Dr Cala as to the cause and effect of the subdural haematoma suffered by Ms Barry.

57 The cause of Ms Barry’s death may well have been ultimately the infective process which resulted from her body malfunctioning or not being able to resist infection by reason of debility or immuno-suppression. However, Ms Barry’s head injury - for which at least a substantial cause was the offender’s assault - was a direct and contributing factor to her death. She was left with a severely impaired neurological function, bed-bound, unable to speak and requiring continuous care for her survival.

58 There was evidence in the trial as to the extent of the sustained patterns of drinking by both the offender and Ms Barry and that there had been altercations between them at relevant times. However, I do not find that there was any evidence sufficient to attract the defence of “provocation manslaughter” as that term has been used - for example, in R v Hoerler (2004) 146 A Crim R 536 at [29] and R v Isaacs (1997) 41 NSWLR 374.

59 The offender had apparently been aware that he had lost control in the past - see the transcript at 107.2 – but his actions on 25 May 2005 were way beyond any explicable or tolerable limits of behaviour. Ms Barry was a relatively small woman; smaller than the offender. On any view of the evidence she had spent a considerable period of years preceding the offence, assisting the offender in at least in some capacity of friendship, in their personal relationship and her care for him. She was present in his home as his guest, at the very least. The cause of conduct which ultimately resulted in the events precipitating her death followed a sustained period of drinking and arguing.

EVIDENCE ON SENTENCING PROCEEDINGS

60 The offender did not give evidence either at the trial or on those proceedings.

VICTIM IMPACT STATEMENTS

61 Victim Impact Statements prepared by Ms Glenda Howlett and also Ms Sharni Barry have been tendered. Ms Howlett’s statement of 28 October 2010, being exhibit S10, was read by Ms Howlett’s sister. It was a comprehensive statement including details relevant to Ms Barry’s past life, her histories and the impact on many members of the family of her death. That included both her children and her siblings. It also makes reference particularly poignantly to the nature of the relationship between Ms Barry and the offender as well as her own immediate and extended family. Her circumstances in the coma were clearly a continuing source of anguish for members of her family. That includes her period in the hospital when she was visited by members of the family.

62 Ms Barry’s daughter, Sharni Barry, provided a statement which became exhibit S11. She delivered that and again, that statement and her delivery of it made clear the impact of her death on her and her siblings - Adam and Clare, as well as Libby. The statement was, as I say, particularly evocative (as was that of Ms Howlett’s) in relation to the addiction that Ms Sharni Barry subsequently developed and the impact on her of all aspects of her life.

OFFENDER’S PERSONAL CIRCUMSTANCES

63 It is clear from all of the documentation that the offender is a fifty-six year old man with no prior convictions. His education and training has included post-training engineering courses in administration and people management.

64 A bundle of certificates and his work history were tendered and I have read those documents this morning. He is clearly a person of intelligence and determination with an established work history. He has worked in a number of capacities including as a mechanical engineer in the mines for many years and has always been employed until recent times. In 1997, he developed a cattle feed lot on his property and developed a business that employed permanent and casual staff until his arrest in May 2005, at which point the business collapsed.

65 That led to the present financial situation - there is no evidence before me but I accept the submissions made by Mr Watts of counsel on instructions in response to my queries on relevant matters concerning the costs of the treatment of Ms Barry. As I say, it’s not necessary nor probably appropriate that I make findings of fact in this regard given the state of the evidence, but I simply relay into these remarks on sentence what I have been told by counsel - that is that there were some discussions and civil proceedings commenced against Mr Bellchambers during the course of which he made an offer which was not accepted by those representing Ms Barry or the family. Since that time, his assets have apparently all been expended in his legal proceedings although the last trial was conducted with some assistance from Ms Margaret Dunn, who I will refer to later.

66 The fact of the matter is that for whatever reason, the offender had not made any contribution to the ongoing expenses for Ms Barry. As I understand the position from the Crown’s (quickly obtained) instructions, most of those expenses or a substantial proportion have been met by Medicare and, accordingly, underwritten by the community. I think those matters only become relevant to the question of the remorse said to be exhibited or felt by the offender during the period since the offence on 25 May 2005 for which he has pleaded guilty. I will deal with those matters later.

67 In terms of the offender’s future, he has had a relationship with Ms Margaret Dunn, who was present both during the trial and at some stages and during the sentencing proceedings. She gave evidence in the trial on behalf of the offender from which it appeared that she and Mr Bellchambers have a relationship of friendship and some intimacy. She has lived with the offender in the Dunbogan property where the offences occurred for some time and apparently has taken over his ownership of that property as a result, it is said, of threatened foreclosure proceedings. Ms Dunn was clearly supportive of the offender but in my view minimised his responsibility in the incident and the extent of his drinking. She also quite gratuitously criticised the late Ms Barry while giving her evidence. It is hoped that the relationship between Ms Dunn and the offender will continue after his period of incarceration but I would not be confident that she would provide the offender with any objective assessment of his behaviour - in particular, his drinking and the impact of it. However, that is some years off in terms of its relevance.

PRE-SENTENCE REPORT

68 A pre-sentence report dated 12 November 2010 was prepared by Ms Miller of the Windsor Probation and Parole Service. In this report Ms Miller says that little has changed since the Probation and Parole Presentence Report of 2007 which was referred to and also attached to her report.

69 There are some differences in the two reports. I do not think it is necessary to go through those in great detail but they, to some extent, relate to differences that the offender has had in terms of his perception about the relationship. In my view the relationship was, on an objective view - regardless of Mr Bellchambers’ view of it, as I have set out earlier.

70 It seems from the most recent pre-sentence report that in relation to his employment he, Mr Bellchambers, has not worked since the beginning of 2006. He has not applied for benefits because his business remains registered.

71 Importantly, also, the report sets out that although Mr Bellchambers required medication for his depression he did not seek that medication at the time he was admitted into custody earlier this year. He has not sought treatment nor investigation of it since his last assessment in November 2007. That becomes relevant when I consider the next reports which have been tendered on behalf of the offender by Dr Donald Rowe.

72 Reports of Dr Rowe have been tendered and have become an exhibit. That report was dated 10 November 2010. In summary, Dr Rowe said that Mr Bellchambers exhibited symptoms of a prior major depressive order, substance abuse disorder and alcoholic intoxication. In terms of his opinion, he stated that substance abuse disorder can lead to physical danger, legal problems arising from the use and a continuance of use despite recurrent problems associated with substance abuse. Dr Rowe believed that this was exhibited by Mr Bellchambers with respect to alcohol related violence.

73 I do not propose to take those matters into account where they are contradictory to the findings that I have already made which I believe are the subject of evidence in the trial. Nevertheless, by way of background it is important that I note that Dr Rowe stated that the offender suffered from cognitive and emotional deterioration due to chemotherapy treatment which began in 1993 following the offender’s diagnosis of non-Hodgkin’s lymphoma which can be a potentially fatal condition. The offender was advised that the average survival rate was some five to seven years. Consequently he withdrew from people and suffered difficulties in concentrating and remembering things. He was treated for anxiety and depression and panic attacks following his diagnosis in 1993 but that must be subject to the comments that I have outlined from the presentence report.

74 In terms of the future, Dr Rowe says that compliance with prescribed medication and a reduction in alcohol consumption will prevent Mr Bellchambers from posing any threat to himself or others and stabilise his mental state. He refers to his slightly depressed effect and stated that he had received the agreed facts and that his professional opinion based on those was:

“It described a man afflicted with severely altered medical state marked by aggression and violent behaviour in what is described as a volatile relationship. His irrational mental state appears to be a culmination of stressors and ongoing alcohol abuse and depressed mood of increasing severity together with the effects of an organic brain injury due to his chemo therapy treatment and his sudden abstinence from his antidepressant medication treatment.”

75 The offender told Dr Rowe that at the time of the offence he had not taken his antidepressant medication as he had forgotten to take it to Dunbogan. He stated that, without that medication, he was experiencing anxiety and panic attacks. Against that background the Crown submits, and - in my view - appropriately so, that I should look at such evidence with reservation given the combined effects of the decisions of the Court of Criminal Appeal in R v Palu [2002] NSWCCA 381, R v Qutami [2001] NSWCCA 353 and R v Niketic [2002] NSWCCA 425. I propose that those matters only be taken into account by way of background explanation. Those, like the other statements referred to in the psychologist’s and presentence report’s were not made on oath or affirmation and are not able to be tested.

76 These matters become relevant in terms of remorse. The offender stated to Dr Rowe that he felt ashamed for what had happened to Ms Barry and he felt sorry for everyone around her. He stated that, when she was working for him (which seems to me a minimisation of the extent and closeness of the relationship) he had made appointments with doctors and sought help to control her alcoholism and behaviour. He had also seen practitioners for his own depressive mental state. There is some corroboration for his own treatment by reference to the statement from Dr Rajaratnam. Dr Rowe concluded:

“The offender did not pose any current danger to himself or others giving his ongoing participation in psychological and pharmacological treatment.”

77 However, that must be subject to the matters I have already relayed in terms of the pre-sentence report.

MATTERS FOR CONSIDERATION ON SENTENCE

AGGRAVATING FACTORS

78 I have dealt with matters, I think, which properly set out the factors of aggravation on which the Crown relies.

MITIGATING FACTORS

79 It is clear that Mr Bellchambers does not have a criminal history except for the offences for which he currently appears for sentence and that is clear from the report and, I think, is a matter of non-controversy.

SUBMISSIONS ON SENTENCE

80 I have been assisted by the written submissions received from both the Crown and defence counsel and the quality of them. Importantly, Mr Watts of counsel submits that the sentence imposed by Judge Freeman was set aside on appeal and it is no relevance in these circumstances. I have set out the history of that matter.

COMPARABLE SENTENCES

81 Importantly, I should say that I have reviewed some ten or so comparable sentencing decisions with relevant decisions of the Court of Criminal Appeal on manslaughter sentences in the context of domestic relationships. Those go over a period of time and changes to sentencing patterns must be noted and I have done that. Of course, as with the review of any list of sentencing authorities, what needs to be taken into account is the relevant factual situations which gave rise to those convictions and sentences as well as the personal circumstances of each of the offenders which are always different. Clearly, there are also other differences in the sentences imposed in those matters but I would simply indicate that the relevant sentences that I have taken into account (not exhaustively) include the matters of R v Bolt [2001] NSWCCA 487, R v Kwon [2004] NSWCCA 456, R v Sherry [2000] NSWCCA 35, R v Whiting [2002] NSWSC 827, R v Cavanough [2007] NSWSC 561, R v Zammit [2008] NSWSC 317, R v Stewart [2008] NSWSC 1359, R v Doolan [2010] NSWSC 615 and some decisions of this Court including that of R v Mitchell 47 NSWDC (Sides DCJ) 11 December 1998.

82 I have also had regard to the JIRS statistics which are relevant both in relation to counts 1 and 2 but again, there is minimal assistance obtained from that given the fields of information captured.

CONSIDERATION

83 In terms of my overall consideration of this matter and in particular, the facts as I have outlined them and found them to be and the submissions made by counsel both orally and in writing, it is clear that the relationship between the offender and Ms Barry was a relatively long-standing one with various aspects to it - importantly it involved regular and sustained bouts of drinking. The relationship developed from one where Ms Barry worked for Mr Bellchambers, initially as a cleaner in various properties of his or in which he had an interest. Subsequently their relationship became one of physical intimacy whereby, from time to time, Ms Barry accompanied Mr Bellchambers elsewhere, for example, when he went to work in other areas such as Wollongong. That relationship seems to have been admitted in the original pre-sentence report and then subject to some variation in the second report prepared this week.

84 On occasions Mr Bellchambers brought Ms Barry to the home in Dunbogan. She was no stranger to that home and he had used it as a holiday home from time to time. As I say, it was in that home, to which he had brought her as his guest - in addition to any other basis under which she might have been there, that the events occurred which lead to her death.

85 The accused admitted hitting her, twice on one occasion, on that day, 25 May 2005. Tthat contemporaneous admission was made to Ms Barry’s daughter in response to her calling him and then her brother. After Mr and Mrs Howlett called, as well as some of the neighbours, Ms Barry was discovered. It was a result of their intervention and attendance, not as a result of anything the offender did.

86 Mr Bellchambers did not, after that call - when he knew that he had hit Ms Barry (even on his own account, earlier in the day) - ask anyone else for assistance for Ms Barry. He also seems to have been passive when the ambulance officers and neighbours attended and discovered Ms Barry, although it may be that he was in some kind of shock at that stage. I note that he was able to answer the front door in the circumstances where he had a drink in his hand when he responded.

87 Similarly, the ambulance officers and the neighbours seem to have taken a part in lifting her onto the bed and covering her semi-naked body which was attended to by Ms Howlett as I recall the evidence. On any view of the evidence, Ms Barry must have been in at least some condition and state of the nature in which she was found for some hours without getting any attention, medical or otherwise, from the offender.

88 The photographic evidence was particularly graphic as to the bloodstains on the floor, on the walls and on the mattress and the blood-soaked bedding which was in evidence.

OFFENDER’S DRINKING

89 Mr Bellchambers has clearly had a significant drinking problem going over many years. His relationship with Ms Barry, as I have said, was one characterised by heavy drinking, during which he drank spirits, including whisky, and she, Ms Barry, drank wine. His drinking on that day seems to, on his own admission, have included six drinks of scotch and coke between 3pm and 5pm on the day (see question and answer 122). Eight empty scotch whisky bottles were found at the home where the incident occurred.

90 The offender, as I have noted from the psychologist’s report and the medical reference tendered, has also been through the process associated with his lymphoma - the chemotherapy that he had for many months thereafter (on at least six occasions) and, it seems, if not a nervous breakdown then certainly a severe nervous reactions from that time about his condition. He has been prescribed antidepressants and I have dealt with that already.

OFFENDER’S EXPRESSION OF REMORSE

91 In terms of his expression of remorse, that was done in the context of these sentencing proceedings and in somewhat ambiguous form in the earlier reports to which I have referred.

92 I do not see any evidence of any acceptance of responsibility for his actions over the last five years, nor any real practical manifestation of remorse on his part, for example, on meeting the medical costs of the victim and therefore the community while she was in a coma over that extensive period. Put on his behalf by Mr Watts was that Mr Bellchambers in fact offered some amount of money to settle those claims, but that was not accepted, it seems, on the unsworn evidence, by the members of Ms Barry’s family.

93 As I have said, in terms of the overall issues which I need to consider in the context of a manslaughter case, the death, and its costs were extensive. Those costs of full time care have had to be met by others and underwritten by the community. The absence of any contribution by him, or any practical demonstration of remorse for at least the matter to which he has pleaded guilty should also be viewed against the background that where his immediate comments to the Howlett’s on their arrival indicated an awareness that he had done something wrong. His attitude to the police was that he “wanted to get this mess sorted out”. But this is a very limited acceptance of the reality of what the photographic evidence displayed about Ms Barry and her situation at that time.

OBJECTIVE SERIOUSNESS AND DETERRENCE

94 In my view, there must be a sentence reflecting the seriousness of the facts and the relevant course of conduct on the day of the events, as well as the requirements of specific and general deterrence.

95 This is a charge of manslaughter where there has been the death of a woman with whom the offender was in a relationship, in his own home, to which he had invited her. Mr Watts submits - in my view – correctly - that the sentence imposed by Judge Freeman, following the earlier jury trial, is not binding on me, nor indeed has it any advisory value. I also need to note that that sentence was in the context of a different charge, albeit with the same maximum penalty, but with a standard non-parole period that has been since established for the offence.

96 Against that needs to be weighed against the evidence of the offender’s psychological condition and his past treatment for whatever depression he suffered following the non-Hodgkin’s lymphoma and the associated chemotherapy he experienced as well as the matters set out in the psychologist’s report. To the extent that the psychologist’s report goes beyond referring to stresses and depression associated with these sentencing proceedings and to the extent, for example, that it relates to his behaviour about the chemotherapy that he has suffered, I did take that into account as a matter relevant under the general principles of R v Engert (1996) A Crim R 67 and R v Wright (1997) 93 A Crim R 48 concerning a person in the position such as the accused.

DELAY

97 The other matter that needs to be stated is that the offender has had this matter hanging over his head for five and half years, through four trials and a successful appeal. He has the cost of these proceedings and has not been the recipient of a grant of legal aid. Mr Watts of counsel informs me, based on his instructions, that the offender is now without assets.

98 That seems to be consistent with the material tendered, on an unsworn basis, in the psychologist’s report. However, it should also be noted, as became very evident in the course of the victim impact statements that were read this morning, that Ms Barry’s family, both her children, her siblings and other members of her extended family, have had the ongoing trauma of seeing and being aware of their mother in a vegetative and deteriorating state over the same period. Ultimately, the family members have had to make the difficult decision, particularly the son Adam and his siblings, to authorise non-resuscitation procedures, given the condition of Ms Barry by late 2009 and certainly January of 2010.

99 While I am bound by the effect of the decision in R v Previtera (1997) 94 A Crim R 76 as explained by the decision in Regina v Berg [2004] NSWCCA 300, the tragic impact of Ms Barry’s ongoing condition on her as well as her other siblings and relatives until her death, was very clear during the course of the evidence given during the trial. That was amplified this morning in the victim impact statements as delivered. Any allowance for the delay and the obvious pressures that have been on Mr Bellchambers over that period of five and a half years needs to be tempered by the comments contained in the decision of R vRagius (1997) 92 A Crim R 330 at [5].

100 As I say, from the point of view of simple humanity, it must be taken into account that the offender has had the stress of this matter hanging over his head for a substantial period; much longer that is the case in the matter of Ragius.

SPECIAL CIRCUMSTANCES

101 Defence counsel submits that the offender’s age, the absence of any prior convictions and the absence of any indication that he would re-offend are factors which should attract a finding of special circumstances.

102 He is a middle-aged man, in terms of years, with more behind him than he has in front of him. He is a man who has had a significant working life and contribution to the community in that regard. As I have already noted he is a man of some determination, intelligence and ability and, subject to the qualifications I have made in relation to any future relationship with Ms Dunn, it is unlikely that he would re-offend, particularly if he is subject to frequent testing and treatment concerning alcohol.

103 I do think that, in the circumstances, there is evidence on which I could base - and I propose to do so - a finding of special circumstances, warranting an adjustment to the statutory formula, such that the ratio that the non-parole period of imprisonment bears to the head sentence will be one of two-thirds.

CUMULATION AND CONCURRENCE

104 The question then arises, in relation to count 2, of accumulation and concurrence. The facts in relation to count 2 relate to the same victim at the same premises, at an earlier time on the same day and following what was essentially the same course of conduct and behaviour between the offender and Ms Barry and his behaviour towards her. While a separate sentence needs to be imposed to reflect the different criminality involved and separate sentencing issues such as the plea of guilty, in my view, the sentence on count 1 should be served concurrently with that imposed in relation to count 2.

105 In case these proceedings are varied in another place, I should note that the plea of guilty was offered at the outset of the trial. In my view, it had almost nil utilitarian value in terms of any advantage or beneficial effects for the criminal justice system. It was clearly offered in circumstances where it had a forensic advantage to the offender in terms of an explanation of the bruising to Ms Barry out of the events of the earlier assault. I would not regard that plea as warranting the attraction of any relevant discount to the sentence which would otherwise be appropriate. In relation to that aspect, in addition to the comments that I have earlier made concerning the totality of the offences, relevantly that assault occurred in the context of a domestic relationship of some standing where there was trust by Ms Barry that she would be properly cared for in the offender’s home in a way which reciprocated the care and affection that she had extended to him.

SENTENCE

106 In my view the sentence to be imposed on count 1, to which the offender has pleaded guilty, should be a fixed term of twelve months imprisonment to be served concurrently with the sentence on the manslaughter count.

TIME SERVED IN CUSTODY

107 I have already indicated in the course of these remarks the fact that the offender has been in prison on at least two separate occasions, following the incident and then subsequently after the second trial. He was also remanded by me in custody on 9 September until today. It seems that - doing the best I can with the calculation of the various dates from the Corrective Services records and the agreed facts between the parties - the total period already served in prison is one of nineteen months.

COUNT 1

108 The sentence of the Court is that in relation to count one the offender is sentenced to a fixed term of twelve months imprisonment commencing on 13 April 2009 and expiring on 12 April 2010. That is being backdated to 13 April 2009.

COUNT 2

109 In relation to count two the offender is sentenced to a non-parole period of imprisonment of nine years with an additional four years and six months to be served on parole. That non-parole period will commence on 13 April 2009 and expire on 12 April 2018.

110 This sentence reflects a head sentence of thirteen years and six months imprisonment subject to the period on parole which will commence on 13 April 2009 and expire on 12 October 2022.

111 I note for the record that the sentence on count one is to be served concurrently with the sentence for count two.

112 The total sentence reflects my intention of a finding of special circumstances warranting an adjustment to the statutory formula of non-parole to parole time of two thirds in relation to the total head sentence.

PAROLE CONDITIONS

113 I recommend that on Mr Bellchambers’ release to parole he be subject to the following conditions, in addition to the usual conditions, for example that he be of good behaviour:

114 That he attend such alcohol treatment programs as may be directed by the New South Wales Probation and Parole Service

115 That he be subject to random breath analysis.

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