R v Benstead

[1995] QCA 195

IN THE COURT OF APPEAL [1995] QCA 195

SUPREME COURT OF QUEENSLAND

C.A. No. 9 of 1995

Brisbane

[R. v. Benstead]

THE QUEEN

v.

LINDA CAROL BENSTEAD

(Applicant)

Fitzgerald P
de Jersey J

Byrne J

Judgment delivered : 23/05/1995
Judgment of the Court

Order: The application for leave to appeal against sentence is granted. The appeal is allowed to the extent that, instead of the sentence imposed, the applicant is sentenced to imprisonment for 7 years with a recommendation that she be eligible for parole after serving 2 years and 6 months of that sentence.

CATCHWORDS:	CRIMINAL LAW - sentence - manslaughter.
Counsel:	Mr G Long for the applicant Mr W Clark for the respondent
Solicitors:	Legal Aid Office for the applicant

Director of Prosecutions for the respondent

Hearing Date:  5 April 1995

REASONS FOR JUDGMENT OF THE COURT
Judgment delivered: 23/05/1995

The applicant was convicted on her plea of guilty of the unlawful killing of her friend, Jeffrey McGregor, who died from a single stab to the chest inflicted mid-afternoon on 29 December 1993 in Nambour's main street. The stabbing occurred after a loud and sustained argument between the applicant and McGregor, who were both very drunk. The applicant pulled a knife from her bag, drew it from its sheath with her right hand, and swung her right hand around. The knife became impaled in McGregor's chest, penetrating to the heart. The applicant then let go of the knife, leaving it in McGregor's chest and, while talking to herself, walked across the road to a store. Next she proceeded to an hotel where she was arrested a few minutes later.
The applicant was sentenced to 11 years imprisonment. In recognition of her guilty plea and attempts while awaiting sentence to overcome her dependency on alcohol, the judge recommended that the applicant be eligible for parole after serving four years of the sentence. The applicant contends that the sentence is manifestly excessive.

The applicant was born in 1950. Hers was a troubled childhood. By 1973, when her son was born, she was so addicted to drugs and alcohol that she was unable to care for him. Apart from about six years beginning in 1978, when she temporarily overcame her addictions, the applicant has often been treated for abuse of alcohol and barbiturates. She has been admitted to places providing services to cope with alcohol and drug dependency, including Biala (an alcohol and drug detoxification unit), the Wacol Rehabilitation Service (about a dozen times) and the Alcohol and Drug Service at Royal Brisbane Hospital. She was admitted to Rosemount, a facility within the division of Psychiatry at Royal Brisbane Hospital, for four months in 1985 to be treated for alcohol abuse, a depressive disorder and panic attacks. In 1991 the applicant was diagnosed as suffering from major depression.

The applicant suffered many complications from her alcohol and drug abuse, including mild cerebellar damage and what Dr Reddan, a psychiatrist, calls "alcoholic blackouts". Dr Reddan considers that in late 1993 the applicant had a borderline personality disorder and was prone to dissociate under stress.

The applicant met McGregor at Biala in 1991 where he was also receiving help for a dependence on alcohol. A few weeks after the applicant left Biala, McGregor came to her house and soon they began living together. Three months later, they separated. After that, the applicant did not see McGregor for nearly two years. In late October 1993, she met him at a Brisbane hotel and they commenced to live together again. In November 1993 they moved to a caravan park at Woombye.

At the caravan park, the applicant and McGregor regularly consumed large quantities of alcohol. On the night of 27 December they made such a commotion that they were asked to leave. Packing in haste next morning, the applicant put kitchen knives into her handbag. She and McGregor then went to an hotel for the night. Next morning, they began drinking warm beer at about 8 a.m. in their hotel room. They went to the bar as soon as it opened at 10 a.m. and continued drinking. Discussion about new accommodation eventually turned to argument. In circumstances far from clear, the stabbing took place at a bus seat not far from the hotel after the applicant and McGregor had been drinking steadily for more than six hours.

The applicant was so intoxicated at the time of the stabbing that the prosecution accepted that it could not prove an intention to kill McGregor or to cause him grievous bodily harm. The applicant's condition and the absence of any motive for an attack on her companion combine to support that attitude.

Indeed, the applicant probably lacked any intention when the blow was struck, so that her offence may be seen as a tragedy resulting from the criminally negligent absence of control of the knife.
The offence was serious, involving as it did a killing with a knife. However, when the applicant's culpability is assessed in the light of her depression and borderline personality disorder predisposing her to dissociate under stress, the sentence of 11 years imprisonment seems much too heavy.

The application should be granted, and the appeal allowed to the extent of substituting for the sentence imposed a sentence of 7 years imprisonment, with a recommendation that the applicant be eligible for parole after serving 2 years and 6 months years of that sentence. The judge declared that the period spent in pre-sentence custody be imprisonment already served under the sentence, and that part of the sentence must stand.