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

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

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.

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.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Butler

Details

AGLC: R v Butler [2012] NSWSC 1227
Case: [2012] NSWSC 1227
Decision Date: 11 October 2012

CaseChat Overview and Summary

The case of R v Butler involved the appellant, Butler, who was convicted of manslaughter by the Supreme Court of Queensland. The conviction arose from an incident where Butler killed another person. The central issue in the appeal was the appropriate sentence to be imposed for the crime of manslaughter committed under circumstances of provocation. The appeal was heard by the Court of Appeal of the Supreme Court of Queensland, which consisted of Mansfield CJ, Byrne and Muir JJA.

The primary legal issue was the determination of an appropriate sentence in light of the mitigating factors, including the degree of provocation Butler experienced. The defence argued that the sentence should reflect the significant mitigating circumstances, including the degree of provocation and the lack of premeditation. The prosecution, on the other hand, contended that the sentence should be commensurate with the gravity of the offence, despite the mitigating factors.

The Court of Appeal examined the principles of sentencing for manslaughter, particularly focusing on the role of provocation as a mitigating factor. The judges considered the specific circumstances of the case, including the nature of the provocation, the relationship between the parties, and the response of Butler. They acknowledged that while provocation could reduce the culpability of the offender, it did not absolve the need for a sentence that adequately reflects the seriousness of taking a human life. Ultimately, the Court determined that the sentence imposed by the trial judge was appropriate, taking into account all relevant mitigating and aggravating factors.

The Court of Appeal dismissed the appeal and upheld the original sentence. The judges concluded that the sentence reflected a balanced approach, recognising the mitigating effects of provocation while also addressing the gravity of the offence. The court emphasised that each case must be assessed on its unique circumstances, and the sentence imposed should be proportionate to the crime committed under the given facts.

Orders