R v Butler

[2012] NSWSC 1227

Supreme Court

New South Wales

Medium Neutral Citation:	R v Butler [2012] NSWSC 1227
Hearing dates:	20 September 2012
Decision date:	11 October 2012
Jurisdiction:	Common Law - Criminal
Before:	Button J
Decision:	The offender is convicted of the offence of manslaughter. I sentence her to a non-parole period of 4 years 6 months to date from 31 July 2010 and expire on 30 January 2015. I impose a parole period of 2 years 6 months, to date from 31 January 2015 and expire on 30 July 2017.
Catchwords:	CRIMINAL LAW - sentence - manslaughter - provocation
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Forrest v R [2009] NSWCCA 11 Goundar v R [2012] NSWCCA 87 R v Alexander (1994) 78 A Crim R 141 R v Oinonen [1999] NSWCCA 310 R v Previtera (1997) 94 A Crim R 76 R v Won [2012] NSWSC 855 Singh v R [2012] NSWSC 637 The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
Category:	Sentence
Parties:	Regina Patricia Mary BUTLER
Representation:	S Herbert (Regina) D Yehia SC (offender) Solicitor for Public Prosecutions (Regina) Legal Aid NSW (offender)
File Number(s):	2010/254934

Judgment

Introduction

1. On 4 September 2012, Patricia Mary Butler (to whom I shall usually refer as "the offender" in these remarks) was arraigned on an indictment containing two counts. The first alleged that on 31 July 2010 she murdered Brendan Potter (to whom I shall usually refer as "the deceased"). An alternative count of having committed the manslaughter of the same person was contained in the indictment. The offender pleaded not guilty to the count of murder but guilty to the count of manslaughter. The Crown accepted the latter plea in full discharge of the indictment, on the basis that the Crown could not disprove beyond reasonable doubt the partial defence of provocation. As a result of that process, the offender comes before Court today to be sentenced for the offence of manslaughter.

Approach to findings of fact

1. Many of the facts in the matter, whether objective or subjective, are not in dispute. In particular, a document containing agreed facts was tendered, and it reflected extensive concordance between the parties. Furthermore, a psychological report relating to the offender was tendered by her counsel, and, although there was some dispute by the Crown with regard to diagnoses contained in that document, the history provided by the offender to the psychologist was not disputed.

1. With regard to any facts that are in dispute, I am required to be satisfied beyond reasonable doubt of any matters adverse to the offender, and to be satisfied on the balance of probabilities of any matters that are in her favour: see The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270. It may be that there will be some aspects of the matter with regard to which I am unable to come to a firm conclusion.

The events of 31 July 2010

1. Early in the morning of Saturday 31 July 2010, the offender was working as a street prostitute in Kings Cross. The deceased approached her from his motor vehicle, and it was agreed between them that they would travel to a secluded part of Rushcutters Bay, where she would perform oral sex upon him for the sum of $70. They travelled to that nearby suburb, and the offender commenced to perform that act. Whilst she was doing so, the deceased as part of his obtaining sexual gratification, said some things about sexual assault of children. The offender reacted adversely to what the deceased said, but did not bring the arrangement to an end or seek to leave his car. To the contrary, it was agreed between the two of them that they would return to the flat of the offender in Macleay Street Potts Point, where she would perform a further sexual act upon the deceased in return for the sum of $150.

1. They arrived there very early in the morning. The two of them were alone in a room together. The offender complied with a request from the deceased that she dress herself in particular clothes. The deceased had brought a laptop computer with him, and he connected to an interactive site on the internet whereby one can watch so-called "models" performing sexual acts in real time in return for money. The offender was in a position to see what was being shown on the computer screen, and she saw that one of the people depicted appeared to the offender to be an 11 or 12 year old girl. That further disturbed the offender.

1. Thereafter, the offender performed oral sex on the deceased again. Whilst she was doing so, the deceased made reference to having had sex with her when she was a child. He additionally said something about having placed his penis in the mouth of the younger sister of the offender when she was a little girl and whilst she was asleep.

1. Those things were said by the deceased in order to heighten his arousal from what the offender was doing. In fact, they were fantasies, because in truth he had never met the offender or her sister before that night.

1. Tragically, those enunciated sexual fantasies of Mr Potter were to lead almost immediately to his violent death.

1. Unbeknown to the deceased, the offender had been a victim of the crime of child sexual assault for many years. Those offences were committed against her by her stepfather, when she was between the ages of 8 and 15 years. They included many and varied acts of sexual intercourse, and, on at least one occasion, her stepfather saw fit to invite a friend of his to have sex with his stepdaughter whilst he watched. As a defence mechanism, the offender would adopt the strategy of psychologically dealing with these repeated crimes by "blanking out" during them; in other words, going into some sort of dissociative state. Furthermore, the stepfather would threaten the offender that, if she told anyone about what he was doing to her, she would be taken from the family, and he would be free to prey upon the little sisters of the offender (in fact her stepsisters). That threat was one of the reasons why the offender did not reveal what was being done to her whilst she was a child.

1. A month or so before her encounter with the deceased, the offender had been sexually assaulted whilst she was working as a prostitute. The way in which that crime had been committed had some similarities with the way in which her stepfather had sexually assaulted her years before. At the time of the commission of that offence, the offender was powerfully reminded of what she had suffered in her childhood. In fact, it was only on the night that she encountered the deceased that the offender had returned to her work as a street prostitute.

1. In short, completely unbeknown to the deceased, the offender had a special sensitivity with regard to child sexual assault, which had been exacerbated some weeks before, and she had an extreme sensitivity to the thought of sexual assault upon her little sister.

1. Immediately upon the deceased referring to the little sister of the offender, she, to use her own words "sort of blanked out". In the opinion of a psychologist, which I accept, she entered into a dissociative state in which she was not fully aware of what she was doing. To use the language of the partial defence of provocation, she suffered a loss of self-control that I am satisfied was very profound. She picked up a piece of granite that was in the room for domestic purposes and struck the deceased to the head with it at least 30 times. Thereafter, she came to her senses to at least some degree, although she was still suffering from a loss of self-control. She did not do anything to assist the deceased who must have been by that stage very badly injured, if not close to death. Instead, for reasons that are not entirely clear to me, but probably included a desire to hide what she had done, some fear of retribution from the deceased, and an impulse to complete the violent assault that had commenced when she first lost self-control, the offender grabbed a knife and used it to stab the deceased to the throat three times. Two of the wounds were superficial, but one was over 12cm in depth and perforated the carotid artery of the deceased.

1. At that stage the offender did not reveal what she had done. Indeed it was quite some time before she left the room and told her then-boyfriend, who had been sleeping in a nearby room, what had happened. During the intervening period, she made a primitive attempt to clean up and to hide her acts. When she did confess to her boyfriend, and he insisted that the police be called, she was not keen for that to happen, and expressed a desire not to go to gaol.

1. Eventually police were called to the building and the offender was arrested. She chose to engage in an interview with police without the presence of a solicitor. During that interview she freely confessed her crime. The offender was charged with murder on that day, and has been in custody ever since.

Objective seriousness of the offence

1. The offence of manslaughter carries a maximum term of imprisonment for 25 years. There is no standard non-parole period attaching to the offence. That maximum penalty, combined with the fact that every offence of manslaughter involves the unlawful killing of a fellow human being, demonstrates the gravity of the crime to which the offender has pleaded guilty.

1. Turning to this particular offence, it is well known that, because the legal and factual bases upon which manslaughter may be made out are so varied, it is difficult to create some sort of hierarchy of seriousness. But at the least it can be said that, in this case, there was certainly an intention to kill, both during the attack with the piece of granite, and during the stabbing of the throat of the deceased. Two weapons were used. The offender treated the body of the deceased with callous disdain during her misguided attempt to hide her crime. The fatal ordeal of the deceased was brutal, painful, and terrifying.

1. On the other hand, it may be accepted that almost every member of our community recoils from the thought of child sexual assault, and reacts to it with anger and disgust. Even a person without the special sensitivities of the offender would have regarded the behaviour and words of the deceased as, at the least, offensive. The special sensitivity of the offender made the provocation to which she responded by losing self-control very powerful in its effect.

1. In short, bearing in mind the considerations discussed in R v Alexander (1994) 78 A Crim R 141, and despite the gravity of the provocation in its effect on the offender, this particular manslaughter cannot be characterised as anything other than of considerable objective seriousness.

1. Having undertaken that analysis, I wish to emphasise that nothing I have said about what happened early on the morning of that day should be interpreted for a moment as suggesting that the deceased deserved to meet this violent death, or that the offender was in any way justified in what she did. In truth, if she was offended by what the deceased said to her in the car at Rushcutters Bay or in the flat at Potts Point, she should have put an end to the arrangement, left him in the car or ordered him out of the flat, and perhaps called the police with regard to what she saw on the laptop. As she herself said to the police after she was arrested, she had no right whatsoever to do what she did.

Subjective features

1. Although the plea of guilty to the offence of manslaughter was accepted by the Crown on the day on which the trial was listed to commence, the offender had in fact offered to plead guilty to that offence very much earlier. Indeed, she had done so even before she was committed to this Court. Senior counsel for the offender submitted that a discount for the utilitarian value of that plea of guilty should be 25 per cent, and the Crown Prosecutor did not submit that such a discount was not open. Pursuant to what was said in R v Oinonen [1999] NSWCCA 310 and subsequent cases, I have discounted the sentence accordingly.

1. I am also satisfied that the offender is deeply remorseful for what she has done. I come to that view for a number of reasons. First, although it is true that on the morning of her crime she made an extended but rudimentary effort to hide her acts, I am satisfied that that was the result of panic and shock at what she had done. On the same morning, when the police did arrive, she was frank with them about her crime. Secondly, as I have said, she offered to plead guilty at a very early stage. Thirdly, she expressed her remorse to the psychologist, and he observed that at the time she did so she was sobbing. Fourthly, she gave evidence before me and in the presence of members of the family of the deceased as follows:

"Q. You said to the police that you sort of blacked out?

A. I did and I am so sorry.

Q. What are you saying you're sorry about?

A. I feel so bad for what's happened and I can't change it. I'm so sorry for his family I'm so sorry."

During that part of her evidence, and indeed during the majority of it, the offender was sobbing more or less uncontrollably. I by no means interpreted that as being solely referable to her own situation. Fifthly and finally, during the reading of the victim impact statement by Mr Potter's sister, I noted that the offender was crying in the dock as well. That was in sharp contrast to the behaviour of many offenders whom I have observed during that painful process in other proceedings on sentence. In short, for a plethora of reasons, I am satisfied that the offender deeply and bitterly regrets what she has done, and has come to understand the enormity of it.

1. The offender was born in October 1982. Accordingly, she was aged 27 as at the date of the offence, and as at today has just turned 30. Her background is hardly a privileged or happy one, quite apart from the crimes of which she was victim to which I have already referred. The offender was the product of a brief sexual encounter between her mother and father, and her mother was aged 15 when the offender was born. Her parents never married or lived together. She grew up in a family home with her mother and her stepfather and a number of stepbrothers and sisters. Her family changed residences frequently, the offender changed schools as a result, and she was not a good student. She had few friends, and was often suspended from school. Quite apart from the sexual abuse, her upbringing was characterised by other forms of violence, and the abuse of alcohol and illicit drugs by, at least, her stepfather.

1. The offender left school prior to Year 10 and left home at around the same time. She became a prostitute at the age of 18 years. By that stage she was already abusing alcohol, cannabis, MDMA, and amphetamines. By the age of 25, she was addicted to heroin. By the time of the offence, she had been a drug dependent street prostitute for many years, and I am prepared to infer that that state of affairs involved a great deal of degradation, poverty, and sadness. It is noteworthy that not a single person from outside of gaol, whether family member, romantic partner past or present, or friend or acquaintance, was prepared to come and give oral evidence in support of the offender, or even to write a reference in her favour.

1. Although I accept her longstanding drug problems, and despite the fact that she may have ingested some drugs in the afternoon and evening before, I am not satisfied on the balance of probabilities that the offender was affected by illicit drugs to any substantial degree as at the time of the offence.

1. The psychologist who saw her a month or so ago diagnosed her as currently suffering from Post Traumatic Stress Disorder arising from sexual and emotional abuse, a dependence on drugs, and anxiety and depression, and I accept those diagnoses.

1. The criminal record of the offender is virtually unblemished. It records her as having been fined in 2001 for having taken part in prostitution in a vehicle in February of that year, when the offender was only 18 years old. That offence is entirely consistent with the history provided to the psychologist, and which I have accepted. In 2009, she was convicted of having goods in custody with no penalty being imposed. Again, I regard such a matter as entirely consistent with the petty criminality that attaches to the life of a drug dependent prostitute working in Kings Cross. Her criminal record certainly entitles her to some leniency, and it is noteworthy that there is no hint of violence contained in it.

Aggravating and mitigating factors

1. I do not propose mechanistically to recount the provisions of s 21A of the Crimes (Sentencing Procedure) Act 1999. I trust that my findings as to the objective and subjective features of the matter sufficiently elucidate the aggravating and mitigating features that I have found to exist. I indicate that I have considered the written and oral submissions of both counsel on this issue. I have also referred myself to the section, whilst taking care to avoid the obvious danger of double-counting that exists in such a case.

Prospects for the future

1. As I have said, the offender was taken into custody on the day of the offence, and she has remained there until today. Her response has been generally very positive. She is free of illicit drugs and has received counselling with regard to avoiding a relapse in the future, she is being treated for depression, she has undertaken education in gaol, and she is keen to continue it by focussing on studies in business management or in real estate. It seems that whilst in custody she illicitly obtained a single tablet from another prisoner in a foolish attempt to deal with the stress of her court proceedings, but I do not regard that as greatly adverse in the circumstances. The chaplain of the prison in which she is being held has spoken very highly of her. All in all, her progress has been very promising, and bodes well for the future.

1. Having said that, it is noteworthy that the dissociative state in which the offender committed this crime was neither a unique event nor a new one. As I have recounted, she told the psychologist she would enter such a state when she was being sexually assaulted as a child. Not only that, when she spoke to the police on the morning of the offence, she said:

"Q132

O.K. When you, when you say that you hit him repetitively, but you didn't know that you were doing it - - -

A

I black out sometimes. I get so angry that I black out, and sometimes it's longer than others, but, and it's usually like just a few minutes or something.

Q133

And what happens when you black out?

A

I, like, for instance if you and I were having an argument, O.K. and something happened, just triggered me off, I sort of go blank and then I just attack like, I don't, I don't know what, why or what it is, but it's happened to me since I was a small kid. I don't know if it's like a defence mechanism or what, but - - -"

Furthermore, I note that, even whilst being interviewed by the psychologist, there was some suggestion of her entering such a state there and then.

1. This tragedy having occurred whereby the offender committed an act of fatal violence whilst in such a state, it seems to me imperative that that aspect of her personality be addressed to ensure that it does not happen again. Certainly, the evidence would not lead me to make an adverse finding as to future dangerousness as discussed in Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 that could lead to a lengthening of the sentence. However, as I have said, in light of the fact that the offender has been prone to such states since she was a child; in light of the fact that, according to what she said to police, it has a connection with anger and arguments, and can lead to "attack"; and in light of the fact that such a state on that morning had disastrous consequences, it seems to me that it is imperative that the offender be called upon to address it, both in custody and in the community.

Comparative cases

1. Although each case turns on its own facts, both counsel helpfully referred me to a number of decisions of this Court, both at first instance and in the Court of Criminal Appeal, specifically with regard to sentences for manslaughter founded on the partial defence of provocation. I have no doubt that sentences for manslaughter have increased to a substantial degree over the past 25 years, and sentences for manslaughter founded on provocation are not excluded from that phenomenon. I have had particular regard to the decisions of the Court of Criminal Appeal in Goundar v R [2012] NSWCCA 87 and Forrest v R [2009] NSWCCA 11, and the recent sentences imposed at first instance by Fullerton J in R v Won [2012] NSWSC 855 and McClellan CJ at CL in Singh v R [2012] NSWSC 637.

Special circumstances

1. Senior counsel for the offender has accepted that not only is a sentence of imprisonment inevitable, but also there must be some further time in custody pursuant to a non-parole period. However, she did submit that special circumstances exist that could permit a variation of the usual ratio between the head sentence and the non-parole period. The Crown Prosecutor did not oppose such a finding with any force. I am satisfied that special circumstances exist, on the basis of the undoubted longstanding psychological problems of the offender, her need to deal in particular with a dependence upon drugs that has existed for many years, and the fact that, after she is released, it will be a very substantial adjustment for her not only to return to the community, but also to avoid her previous way of life. She will need a great deal of help in avoiding returning to the corner of William and Bourke Streets. In short, I propose to adjust the non-parole period to a small degree.

Victim impact statement

1. As part of the Crown case, Brendan Potter's sister, Ms Tammy Foy, read out a victim impact statement that she had prepared. That process starkly revealed the severe effects that the violent death of her brother had had upon her and their extended family. To lose any family member, even one who is old and frail, is a painful process. To lose one who is in the prime of life and who dies violently and suddenly at the hands of another is, I have no doubt, devastating. On behalf of the criminal justice system, I extend my condolences to those who are grieving, and will continue to grieve, the criminal loss of the life of Brendan Potter. It goes without saying, that nothing that can happen in this Court today will make good that loss, although the end of this process may provide some closure to those who are suffering. I have approached the victim impact statement in accordance with well-established principles of law: see R v Previtera (1997) 94 A Crim R 76.

Aspects of sentence

1. I wish to make three things clear both to the offender and the members of the community present about the sentence that I will impose in a moment. The first is that the sentence is substantially shorter than the one that would have been imposed if the offender had been convicted of murder as opposed to manslaughter. I trust that it is well understood that manslaughter, although a very serious offence, by its nature reflects a lesser culpability than the crime of murder, and has played that role for hundreds of years. The second is that the sentence has been reduced to reflect both the early offer to plead guilty of the offender and her remorse. The third is that her release will be by no means automatic at the end of the non-parole period that I impose. If she does not continue with the commendable progress she has made in custody, there is no guarantee of release before the entirety of the head sentence.

Imposition of sentence

1. Patricia Mary Butler, you are convicted of the offence of manslaughter. I sentence you to a non-parole period of 4 years 6 months to date from 31 July 2010 and expire on 30 January 2015. I impose a parole period of 2 years 6 months, to date from 31 January 2015 and expire on 30 July 2017.

1. Accordingly the head sentence is a period of imprisonment for 7 years to date from 31 July 2010, with a non-parole period of 4 years 6 months. I indicate that, but for the utilitarian value of the plea of guilty, the head sentence would have been imprisonment for 9 years 4 months.

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Decision last updated: 11 October 2012