R v Charles
[2013] VSC 470
•1 August 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 65 of 2013
| THE QUEEN |
| v |
| DEBRA PATRICIA CHARLES |
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JUDGE: | T. FORREST J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 July 2013 | |
DATE OF SENTENCE: | 1 August 2013 | |
CASE MAY BE CITED AS: | R v Charles | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 470 | |
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CRIMINAL LAW – Manslaughter – Whether by unlawful and dangerous act or gross criminal negligence – Extensive history of abuse by deceased - No relevant criminal history – Full unprompted confession – Sentenced to 3 years imprisonment – Sentence wholly suspended for a period of 3 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms D. Piekusis | Office of Public Prosecutions |
| For the Accused | Mr S. Holt SC | Victorian Legal Aid |
HIS HONOUR:
The immediate circumstances that surrounded the death of Roy Nicol are very disturbing. You and Mr Nicol had maintained an intermittent relationship over many years that was characterised by alcohol abuse and violence. You met him at a hotel on 23 February 2002. Against your better judgment, you allowed him to persuade you that both of you should leave the hotel and go to your house. Your reservations were to do with your son Shannon Kent, whom you knew harboured great resentment towards Mr Nicol, and was to your knowledge present at your home.
Your fears were realised when Shannon and Mr Nicol became involved in an altercation at your home. Shannon at that stage was 15, Mr Kent was 58. You also became involved in this initial altercation. It is sufficient to recite that you struck him on many occasions with a T-ball bat. The only evidence of this account comes from your interviews with police in 2008 and 2011. That evidence reveals that although this weapon was used by you, you did not hit him to the head, or particularly hard. Unfortunately your son was involved, and struck the deceased twice with a baseball bat.
Mr Nicol was rendered immobile for long enough for him to be tied up and placed in your garage area. What occurred then bears no credit upon you. At the instigation of your son you participated in violent assaults with this immobilised man. Whatever his shortcomings, and there were many, he did not deserve this. You burnt his face with a cigarette, threw petrol over him, and threatened him with a lighter. You participated in tying him and gagging him. At this stage you were approximately 45 years old, perhaps a little younger. Your son was, as I have said, 15.
All that can be said about this is that it is a measure of your anger towards Mr Nicol that you have allowed yourself to behave in this barbaric way. On that day your duty to behave as a reasonable and responsible adult, which was owed to both Mr Nicol and to your son, was gravely breached. You left your house with the deceased still tied up, but not at that stage mortally injured. This was on the Saturday. You did not return until the Wednesday, by which time your son had been remanded in custody for attempted car theft. I accept that during your absence Mr Nicol was very seriously further assaulted, including being sprayed with paint, being further burnt with cigarettes and being beaten repeatedly with a baseball bat. One of these blows to Mr Nicol's head caused a major head injury, and I accept ultimately was responsible for his death. I further accept that you were neither present for these blows, nor part of any agreement for them to be inflicted. You were however responsible for creating and allowing to persist the situation that made these blows possible.
You returned on the Wednesday and offered Mr Nicol a mix of further brutality and some mercy. You removed his ties, fed him, and offered him liquid. He was conscious, and he told you he did not wish to go to a hospital, so you left his in the garage. You did not stay at your house thereafter, but returned on occasion to check on his welfare. You told police that you thought at that time he was coming and going from the garage, although it is clear that by that stage he had suffered the major head injury I referred to a moment ago. On the Saturday, that is, seven days after Mr Nicol was initially assaulted, your returned to him again. He reached out and attempted to grab your leg. He had previously stabbed you in the leg, and on another occasion broken your ankle in several places. You struck him twice in the head with a cross bar of a weights dumbbell. It is accepted by the prosecution that these actions were insufficient to cause death. The next day you rang two young men and asked them to remove Mr Nicol from your garage. You said to the police that you thought it cruel to allow him to remain there.
They placed him outside the garage and you called an ambulance from another address. Mr Nicol’s captivity thus ended, and his life was to end seven weeks later. There has been debate, but not dispute, about the characterisation of the manslaughter charge to which you have pleaded guilty. I think it is intellectually difficult, but possible, to characterise this as an unlawful and dangerous act example of manslaughter, however I consider that it fits more comfortably as an example of gross negligence manslaughter. For sentencing purposes I consider this to be a distinction without any practical sentencing consequence. Objectively viewed, this is a serious example of the offence of manslaughter, however it is characterised. By the actions that I have outlined, you placed Mr Nicol in a position of peril or danger, and owed him a duty to take reasonable steps to obviate that danger.
Your failure to take immediate steps to seek medical treatment or police intervention on Saturday 23 February 2002 or at any time between then and Sunday 3 March 2002, amounted to a gross and unjustifiable departure from this duty of care. Mr Nicol’s death resulted from this criminal negligence and that negligence demands punishment. Viewed in isolation, that punishment would necessarily involve a lengthy term of actual imprisonment.
I have qualified this remark because there is a long background to your offending and a sequel to it that is long enough itself. That background and sequel places this case in a very unusual category.
You are now 56 years old, the youngest of five siblings. Your parents were alcoholics. You were emotionally and physically abused. You ran away at 13 and were made a Ward of the State. This included periods of months of effective solitary confinement at Winlaton. You escaped the wardship at 15, worked as a sale person for a time and were pregnant by the age of 17. Your mother took over the parenting of the little boy. You have had little or no contact with him.
You commenced another relationship in approximately 1984 with Graham Kent and your son, Shannon, was born in 1986. The relationship was a violent one. You were hospitalised on occasion and also fled to women's refuges. The relationship continued and in 1988 your daughter was born. You left Mr Kent for a brief time and married a long time acquaintance. The marriage lasted ten days.
After a time you returned to Graham Kent. Again violence occurred within this relationship, including Kent ripping from your ear a pierced earring. Mr Kent died of lung cancer in 1991. Your mother died at about the same time.
You lived in Adelaide for a few months and then returned to Victoria.
You struck up a friendship and then a relationship with Roy Nicol whom you had known as a criminal associate of your former partner. Your 11 year relationship with Mr Nicol commenced in approximately late 1991.
Mr Holt, of senior counsel, on your behalf has taken me through a snapshot of your relationship with Mr Nicol but that is all it can be. It cannot capture the fear that a simple word out of place might trigger a beating or a rape or worse. It cannot capture the fear that a mother feels for her children. I doubt that it is possible for persons who have not experienced it to truly comprehend the impact of being the victim of a violent abusive relationship. All one can do is listen closely to the experiences of those who have been such a victim and to respect those experiences.
I am satisfied on the evidence that you were the weaker partner in an extraordinarily abusive relationship. You repeatedly obtained intervention orders against Mr Nicol. He repeatedly breached them. He headbutted you, he punched you, he raped you, he stabbed you, he imprisoned you and he broke your bones. You sought refuge with women's help agencies.
By 1998 you were demoralised, effectively homeless, an alcoholic and you resided in women's refuges or transitional housing organised by the Salvation Army.
That you intermittently resumed your relationship with Mr Nicol in these circumstances was unfortunate but not particularly surprising.
In 2000 you received commission housing through the Department of Human Services and it was at these premises that the offending occurred.
In my view, courts should exercise caution before accepting allegations of this sort that are either made from the Bar table or in histories given to a forensic psychologist engaged for the purposes of a court hearing. If there is contemporaneous objective support for the allegations or a sufficient body of evidence to demonstrate the abusive flavour of the relationship, then it may be that the allegations can be more readily be accepted.
In this case I am satisfied, as I have said, that this was an extraordinarily violent relationship. I am satisfied of that from a combination of the following evidence:
(a)LEAP records that demonstrate at least five intervention orders taken out by you against Roy Nicol and which demonstrate at least two breaches of same;
(b)LEAP records that demonstrate that Nicol was charged and dealt with for serious criminal offences relating to him stabbing you on 16 October 1994; and
(c)Hospital records that demonstrate that in 1997 you were treated for a complex ankle fracture dislocation requiring internal fixation. The history given at the time was, and I quote, "alleged assault by boyfriend". There was no report made of this incident to police.
I accept that in this type of abusive relationship not every violent episode will have some contemporaneous documentary note of it but the above is sufficient to satisfy me that this was, as I have said, a truly abusive relationship and you suffered considerable emotional and physical harm because of it. It also goes at least some way to explaining your subsequent actions but that is all it does. It cannot excuse them and the courts can never sanction private retribution.
If this were where the matter rested, I would still be of the view that your offending required an actual term of imprisonment for the reason that I have just expressed. The rule of law requires that punishment, retribution and denunciation remain solely the province of Parliament and the courts. Were it otherwise, society would quickly disintegrate. A number of factors have caused me to move from that properly barely flexible position.
These events occurred in February/March 2002. On 8 March 2002 you were interviewed by police and effectively denied all knowledge of relevant events whilst providing a false alibi for your son. One year later you were again interviewed. By this stage your son had been charged with Mr Nicol’s murder. Apart from retracting the alibi account, you maintained your innocence. Both he an another young man were acquitted of Mr Nicol’s murder on 1 October 2003. The charge against you of being an accessory to this murder fell away after those acquittals.
By 2005 you had been diagnosed with longstanding bipolar affective disorder, and you were making another attempt to engage with alcoholics anonymous. You resided for a time at the Melbourne Alcoholics Recovery Centre, and you had sought counselling from the Centre Against Sexual Assault, CASA.
By 2008 you had reached step 5 of the AA program. A part of that step is that you admit to God, yourself, and others, the exact nature of your wrongs. In May 2008 you delivered a confessional letter to Mr Buick, the police officer who had interviewed you five years earlier. I have read this letter. It is rambling and confused, but nonetheless a confession to striking the last two blows, which you wrongly presumed had caused death. The police again interviewed you and released you pending further inquiries. The view they took at the time was that you were so unwell, so damaged, that in the absence of some independent corroborating evidence your confession was not sufficiently reliable to underpin a prosecution. In my view the police cannot be criticised for this. That independent evidence was finally obtained, you were interviewed again in 2011 and 2012, you reiterated your confession, you were charged and remanded into custody, and you remained there for 50 days. It is common ground that but for your repeated confessions this charge could not have been sustained. I accept that your unprompted confession exhibits a very high level of remorse and contrition. I consider that it places you into a category that merits a special leniency. I am also of the view that others who have committed hidden crimes ought be encouraged to make like admissions. I propose to reflect these factors and their impact on your prospects for rehabilitation in the sentence that I will shortly impose.
Your counsel, in a most helpful submission, directed me to the aspect of delay. It is now 2013. The offending occurred eleven years ago. You first confessed five years ago. As I have observed, you have been interviewed on several occasions in the intervening years. Your mental and physical health has deteriorated in that time. I shall return to this aspect shortly. I consider that the natural anxiety related to knowing what you have done, wanting it to be dealt with, and waiting five years for this day is a substantially mitigating factor. To the extent that you feel aggrieved by this delay, I also take it into account.
You have suffered for many years from mental ill health. In 1981 when you were 24 you were diagnosed with what is now called bipolar affective disorder. This diagnosis was confirmed in 2004, and you have been hospitalised on several occasions for psychiatric illness, sometimes involving psychotic symptoms. Your psychiatric health has been compromised by substance abuse, mostly in the forms of alcohol and cannabis. You are currently prescribed a moderately high dose of antipsychotic medication to deal with manic symptoms relating to your bipolar affective disorder. You were released on bail ten months ago, and your symptoms have been managed well with medication, the support of your treating psychologist, and most importantly from a concerted and persistent effort by you. Your future mental health is essentially in your hands, and depends to a very large degree on your capacity to remain drug and alcohol free into the future. The success you have made of a merciful grant of bail is very encouraging. Dr Sullivan was very guarded when opining as to a link between your mental illness and your offending. I take the view that the overall picture is so clouded with self-induced intoxication, anger, fear, and non-compliance with medication that I am unable to conclude that your moral culpability is diminished to any measurable extent by your mental illness.
I also doubt that incarceration would be much more burdensome from a mental health perspective than the difficult life that you are managing at the moment. You are in indifferent physical health, you suffer from hepatitis B, hepatitis C, and emphysema.
Since being released on bail you have established some order to your life. You have obtained and retained work delivering bags by foot. It seems this exercise has had some beneficial effect on your health. You are undertaking training in computer skills. You have remained alcohol and polysubstance free and you have established a stable medication routine. For the first time in your adult life you have taken control of that life. True it is that your rehabilitation is fragile, but it is real. Your treating psychologist, who has seen you over 20 appointments, assessed you as most unlikely to re-offend, and amazingly, given the history that I have outlined, you have retained a sound intelligence and insight.
You are entitled to a sentencing benefit for your plea of guilty which was made at the first reasonable opportunity. It is further evidence of remorse, and the community has been saved the time and expense of a trial.
In reciting the litany of material that has been adduced in your favour, I wish to make it clear that I have not overlooked the seriousness of your offending. Whatever Roy Nicol may have done to you or others close to you, you had no lawful or moral right to do to him what you did. He had friends and relatives who grieve his passing. They cared for him and have had now to face again the circumstances of his death 11 years on. The impact of your offending has spread more widely than just upon your victim and I am obliged to take it into account.
I must also give some effect to the principle of general deterrence. As I have said earlier in these remarks, there is no room in our society for vigilantes bent upon retribution and in normal circumstances long terms of imprisonment will await them.
I have been persuaded by the material adduced on your behalf and by the sentencing range offered by the prosecution to soften the impact of general deterrence in this unusual case.
You have no relevant criminal history and I do not consider specific deterrence has a role to play in the mix of factors that I must consider. Stand up please, Mrs Charles.
On the count of manslaughter I sentence you to be imprisoned for three years. I declare that the sentence be wholly suspended for a period of 36 months commencing this day. I make no order as to pre-sentence detention.
Pursuant to s 6AAA of the Sentencing Act 1991 I declare that, but for your plea of guilty, I would have imposed a sentence of four years’ imprisonment with a minimum term of parole eligibility of 18 months.
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