R v Butcher

[2000] NSWSC 92

CITATION:	R v BUTCHER [2000] NSWSC 92
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 70072/99
HEARING DATE(S):	23/02/2000
JUDGMENT DATE:	25 February 2000
PARTIES :	REGINA v Wayne John BUTCHER
JUDGMENT OF:	Barr J at 1

COUNSEL :	Crown: Miss W Robinson QC Prisoner: Mr P Boulten
SOLICITORS:	Crown: S E O'Connor Prisoner: Murphy's Lawyers Inc
CATCHWORDS:	Criminal Law - sentencing - provocation manslaughter
DECISION:	See paragraphs 30 and 31

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

GRAHAM BARR J

Friday, 25 February 2000

70072/99 - REGINA v Wayne John BUTCHER

JUDGMENT
1   HIS HONOUR: The prisoner, Wayne John Butcher, was committed to this Court for trial on 17 September 1999 on a charge of murder. On his first appearance in this Court on 3 December 1999 he pleaded guilty of manslaughter and the Crown accepted that plea in discharge of the indictment.

2 The Court has been asked to take into account pursuant to s 21 Criminal Procedure Act two offences, namely that he used a prohibited weapon, namely a shotgun, and that he did not keep a firearm safely.

3   29 May 1999 was the prisoner’s 50th birthday and members of his family organised a party for him at the property occupied by him and his wife near Mudgee. A large number of guests attended the party, which began soon after midday. The deceased, Ross Graham Denney, commonly known as “Shelby”, arrived later than most of the guests, about 9.30 or 10pm.

4   During the course of the party the prisoner consumed a substantial amount of alcohol. His wife Lucinda Butcher also consumed alcohol.

5   After about 10pm most of the guests had either left or had retired to sleep in the main residence on the property or in tents. The prisoner, much affected by alcohol, went to bed in the office. He and his wife had given up their room to guests. The party proper had taken place in a covered area called the greenhouse some distance from the residence.

6   The prisoner was woken by one of the dogs at about 2.30am. He noticed that his wife was not with him and that another dog was making a noise in the place where the party had been held. He rose, dressed and went to investigate. He was still substantially affected by the alcohol he had drunk. He came across the deceased and his wife in the greenhouse. Her jeans were pulled down, her breasts were exposed and the deceased was performing cunnilingus upon her. The prisoner kicked the deceased and remonstrated with him. The deceased used a coarse expression, the meaning of which was unclear. It was capable of being understood as adding further insult and it is not surprising that the prisoner took it that way. He was outraged. He went back to the house and entered the bedroom he normally occupied with his wife. The occupants of the room heard him say -

I’m gonna fucken kill Shelby. I caught him fucking my missus.

7   He went to the wardrobe and removed a rifle case from the top of it. The occupants of the room tried to stop him but were unsuccessful. The prisoner remonstrated again with his wife and repeated that he was going to shoot the deceased. He began calling out his nickname. He walked onto the veranda and took the gun out of the case.

8   He approached the deceased in a spot about 100 metres from the greenhouse. He discharged the shotgun from a distance of about eight to ten metres. The shot hit the deceased in the left chest, the bulk striking an area twenty-five by twenty-two centimetres. Some stray pellets struck the right and left shoulders, the upper neck and the lower jaw. At the base of the neck was an area of abrasion which might have resulted from contact from the integrated shot cup. The deceased died not long afterwards.

9   The prisoner went a little way further and made as though to shoot himself as well, but his son-in-law stopped him from doing so and took the gun off him.

10   The prisoner then began to say different things about what his intentions had been. After saying that he had shot the deceased he added that he only wanted to scare him and did not even aim at him. He also said that he did not even know that the gun was loaded.

11   The police were called and a number of officers attended the scene. The prisoner told them that he had not meant to hurt the deceased, just to scare him. He said to a friend at the police station that he did not think that the gun was loaded and that he was just going to scare the deceased. He said that he did not know how the gun went off and that he did not aim it.

12   The prisoner saw Mr Adrian Robinson, a clinical psychologist, five times between August and November 1999. He saw Dr Bruce Westmore, Forensic Psychiatrist, on 2 December 1999.

13   He told Mr Robinson that after the discovery and confrontation of the deceased he was angry and went to get the gun. He followed the deceased and tripped in the dark. The gun went off when he fell and he had no intention to harm anybody, only to scare the deceased. Even after the gun discharged he did not realise that he had shot the deceased. He thought that he had dived to the ground when he had heard the blast.

14   He told Dr Westmore that when he came on the deceased and his wife he felt sick. At some stage he hit his head on a railing and fell backwards. He saw a bright light. He did not remember saying that he intended to kill the deceased. He went into a paddock where he saw the deceased in silhouette. Some words were exchanged. The shotgun was over his right shoulder. He was left-handed. He recalled having the gun in his right hand and walking towards the deceased. He tripped and stumbled and somehow the gun went off. It scared him because he did not know that it was loaded.

15   The prisoner’s statements that he tripped and did not know how the gun had gone off, coming so long after the events and being so significantly different from what he had said before and after the shooting are surprising. They are even more surprising in view of the fact that when he gave evidence before me the prisoner did not adhere to them and said that he had no clear recollection of the events. He said that he could no longer distinguish between his own memory and what other people had told him had happened, whether by reference to what he said or otherwise. He repeated that his only intention was to scare the deceased. He had no recollection of going and getting the shotgun.

16   The facts of this case are generally not in contention, but an issue has arisen whether the Court can be satisfied beyond reasonable doubt that the accused intended to do the deceased really serious injury when he discharged the shotgun. That he did is the only reasonable inference to be drawn from his leaving the house carrying the loaded shotgun stating his intention to kill the deceased. Nothing about the wound received by the deceased suggests that the accused did not continue to have that intention when he discharged the gun.

17   The evidence which is said to throw a reasonable doubt upon the conclusion is of the things the accused said afterwards, beginning with the statements that he had only intended to frighten the deceased and that he did not know that the gun was loaded.

18   It is understandable that a person confronted by the events that confronted the accused and reacting as he did should begin to justify his actions upon realising what he had done in the heat of the moment. That is what I think the accused did. I do not accept as factual his claims that he only intended to frighten the deceased or that he did not know that the gun was loaded. Even he has tacitly acknowledged that the story he told about an accident was untrue.

19   None of the things said by the accused after the shooting raises in my mind a reasonable doubt that when he fired the gun he intended to kill the deceased. It is therefore appropriate to sentence him upon the basis that he shot the deceased under provocation.

20   The few years before these events were very stressful for the prisoner. He had been living in the United States of America for about fifteen years when, in 1994, his mother became terminally ill. He and his wife came to Australia to care for her and settled on the Central Coast. In 1997 they bought a house there but within a couple of weeks of their moving in it was destroyed by fire and they lost heavily. The prisoner’s mother had a bad accident and remained in hospital until her death in January 1998.

21   The prisoner worked in the automotive industry during his time in the United States. After his return to Australia he established an importing business, but it did not do well. He and his wife decided to move to Mudgee to make a fresh start. They purchased a piece of land which they intended to clear and use to grow olives.

22   The prisoner’s present wife is his third wife. He maintains good relations with his two former wives and has adult children from one of those marriages. He has a close and supportive family. Notwithstanding that he had those things to be thankful for and that he must have had much to look forward to, he was very depressed at about the time of these events. The circumstances in which his mother had died, the loss of the house and difficulties with his importing business all pressed heavily upon him. The occasion of his 50th birthday was not a source of pleasure for him and it was against his wishes that his wife and daughters arranged the party.

23   The unexpected and distressing nature of what the prisoner saw and the prisoner’s understanding of what the deceased said to him must be seen in the light of the events of the last few years and their effect upon the prisoner. This was yet another disaster, this time a highly humiliating and insulting one. It was provocation of the grossest kind.

24   The prisoner is a man of the highest character. He has never been in trouble with the law. He is highly regarded by his colleagues in the community. He is loved by his family.

25   I accept that he has become despondent about killing the deceased and that his expressions of regret and remorse are genuine. His early plea of guilty is evidence of his remorse and will carry weight in the sentence that must be imposed.

26   I am satisfied that he will not offend again. He is no danger to the community and there is no need for the sentence to provide for his personal deterrence.

27   He is being treated with anti-depressants and I accept the evidence of Dr Westmore that that treatment ought to continue. I also accept the opinion that, a custodial sentence being necessary, the prisoner will have a difficult time because of his depression and the risk that he may harm himself.

28   A report was prepared for the Court by Helen Dowling, Probation and Parole Officer at Bathurst. Making reference to the prisoner’s depression, Ms Dowling recommends that at the conclusion of any custodial sentence the prisoner be directed towards the Mental Health Service to monitor the depression and to continue counselling with the services provided by the Probation and Parole Service. I think that the expected continuance of the depression and the need for treatment and counselling amount to special circumstances justifying the imposition of an additional term of the sentence which exceeds one-third of the minimum term.

29   After his arrest the prisoner was confined to custody for about two and a half months before entering bail.

30   Taking into account the pre-sentence custody and the offences on the Form, I sentence the prisoner to penal servitude for a period of four years and six months. The sentence will comprise a minimum term of two years and six months commencing on 23 February 2000 and expiring on 22 August 2002 and an additional term of two years commencing on 23 August 2002 and expiring on 22 August 2004. The prisoner will be eligible for release on parole on 23 August 2002.

31   I recommend that the prisoner undergo psychiatric examination as soon as possible. I recommend that he serve his sentence in a minimum security institution.

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Last Modified: 09/25/2000