R v Dellamarta
[2021] VSC 220
•4 May 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0124
| THE QUEEN | Crown |
| v | |
| BREE DELLAMARTA | Accused |
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JUDGE: | Taylor J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6 April 2021 |
DATE OF SENTENCE: | 4 May 2021 |
CASE MAY BE CITED AS: | R v Dellamarta |
MEDIUM NEUTRAL CITATION: | [2021] VSC 220 |
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CRIMINAL LAW – Sentence – Manslaughter – Accused stabbed partner once to the chest – Accused has lifelong intellectual disability and persistent depressive disorder – Whether Verdins principles applicable – No causal connection between disability and disorder and offending – Disability otherwise relevant – Resulting moderation of general and specific deterrence – Disability relevant to burden of imprisonment – Sentence of seven years and six months imprisonment with non-parole period of five years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D Glynn | Office of Public Prosecutions |
| For the Accused | Ms J Munster | Victoria Legal Aid |
HER HONOUR:
Bree Dellamarta, you have pleaded guilty to the manslaughter of Mark Ward by stabbing him once to the chest with a knife on 24 January 2020.
The maximum penalty for this crime is 20 years.[1]
[1]The maximum penalty for manslaughter has since increased to 25 years. See Crimes Amendment (Manslaughter and Related Offences) Act 2020, s 3 (amending Crimes Act 1958, s 5).
Summary of Offending
Mr Ward was your partner. The offence took place in the kitchen of your home in Heidelberg West at about midnight when Mr Ward, who did not live with you, was staying overnight.
The details of the offence remain somewhat opaque. Your motive in acting as you did is unclear. But, it is clear that you stabbed Mr Ward in anger after an argument.
On 23 January 2020 you returned to your home at about 4:00pm after finishing your shift at the Sycamore Tree café in Heidelberg. That café is a social enterprise operated by the Banyule network of Uniting Churches. Your work there was voluntary. You have an intellectual disability and relied upon the Disability Support Pension for income. I will return to the relevance of your disability below.
Mr Ward was already at your home. He had prepared an alcoholic drink for you in anticipation of your arrival. Over the next few hours you both drank alcohol.
At about 6.30pm you arrived together by taxi at the RSL Club in Heidelberg West. You went to meet your sister and her partner. It seems that it was your custom to socialise with them at that club on a Thursday evening. During your time there you and Mr Ward both consumed more alcohol. He was drinking VB stubbies. You later told police that you drank about six glasses of Canadian club whisky and ginger ale. The atmosphere was apparently convivial. Mr Ward was in a good mood following a win on the poker machines. Your sister and her partner drove you and Mr Ward home at about 8.30 pm.
After getting home, you had about another two drinks, and Mr Ward about three. Mr Ward went to bed at about 10.30pm, but you stayed up.
Sometime in the hour before midnight Mr Ward got up and came to the kitchen, where you were, to have a cigarette. An argument, loud enough for a neighbour to hear, developed. The argument was first heard at about 11.15pm and then, again at 11.45pm. By that time your voice had become louder and you sounded upset.
You later told police that Mr Ward had become abusive to you and you had become angry.
You picked up a kitchen knife and stabbed Mr Ward once to the upper chest. He collapsed to the floor. The knife penetrated his chest to a depth of 100mm, passing through his heart.
At 12.02am on 24 January 2020 you telephoned 000 and requested an ambulance. Both police and paramedics attended.
Police arrived first at 12.09am. You were unable to unlock the security door, but allowed police into the house via the garage. They found Mr Ward lying on the kitchen floor, unresponsive and in a pool of blood. Paramedics arrived at 12.13am. They found that Mr Ward was not breathing and had no pulse. Despite attempts to resuscitate him, Mr Ward could not be revived. He was declared deceased at 12.18am.
Police found a large kitchen knife on a cabinet in the kitchen. It had significant blood staining. A knife block with an empty slot was also found.
You were arrested and taken to the Heidelberg police station. You were interviewed in the presence of an independent third person. You admitted to stabbing Mr Ward, but were unable to say why you had done so. You said that you had never been scared that he would physically hurt you, but he had called you abusive and hurtful names. You said that you had become increasingly stressed that he was staying overnight at your home more frequently than you liked. You said that you did not want to hurt Mr Ward. You wanted him to stop being nasty and give you some respect. You also said that after you had stabbed him you pulled the knife out quickly and Mr Ward collapsed. You said that you called 000 straight away.
Impact of Victims
The court has received four victim impact statements in this matter. Each articulates the grief the death of Mr Ward has caused.
His estranged wife speaks of the difficulty of telling their two children that their father had been killed and the ongoing fear and social anxiety she experiences. His daughter, too, has experienced anxiety and also depression. Mr Ward’s sister and brother each speak of the pain of their loss and a sense of disbelief at his death.
These reports are affecting.
Personal Circumstances
It is necessary to say something of your personal circumstances.
You are now 43 years of age. You were 41 at the time of the offence.
You suffer from a form of developmental delay and, as a result, have impaired mental functioning. Your needs have always been met by a close and supportive family. You are the younger of two daughters to your parents, now both deceased. Until the age of 40 you lived at home with them. Their deaths, in 2012 and 2018, both from cancer, affected you greatly.
Your older sister is now the mainstay support in your life. It was she who assisted you to move from the family home and purchase a unit in October 2019. That unit is located only two minutes’ drive from your sister’s home. Whilst living independently, you did rely upon your sister and her partner for help. Your cats, dogs and fish are important to you.
Your developmental delay was first observed in primary school. You repeated prep grade and thereafter had a teacher’s aide until transferring to a special school at the end of year eight. Your years in mainstream schools were marked by recurrent teasing and ostracism. You finished your schooling after completing a year ten program. You cannot read or write.
You then attended TAFE to undertake a work education course. Thereafter you held a variety of paid jobs, including at a gym and child care centre. You have also worked as a kitchen hand in a number of situations, the last of which ended in 2016 when the facility in which you were employed closed down. At the time of your offending you were volunteering one to two days per week at the Sycamore Tree café.
Since the mid-2000s you have been in receipt of the disability support pension.
You have no physical health issues of significance, but you do have a long history of depression and anxiety. Your coping strategies when facing difficult situations are limited. You were sexually assaulted at the age of 18 years.
You have no reported history of illicit drug use. You do consume alcohol. You told both police and Mr Patrick Newton, who prepared a psychological report on your behalf, that you consumed about four mixed drinks per evening when you went out, which you did twice a week. You told Mr Newton that you would occasionally drink more. You said you often felt tipsy but were rarely drunk. You had clearly consumed more than four drinks on 23 January 2020, but you deny being drunk.
You have had two intimate relationships. The first, seemingly a positive experience, began when you were aged 18 years and lasted some two years. The second was with Mr Ward. He was noticeably older than you. He lived opposite your parents’ home. You met at the RSL. That relationship, which started in 2015, was on and off until his death. You state that the relationship was initially happy, but conflict emerged after the death of your mother in 2018. It intensified after you moved into your own unit in 2019 as he stayed with you more often than you liked.
You have no criminal history.
Consideration
The sentencing task in this matter is particularly difficult. The interplay of the circumstances of your offending and the constellation of your personal factors is complex and shifting. The sentence I pass must reflect the value our society places on human life as well as the condemnation of your behaviour in ending that of Mr Ward. At the same time, you come before the court with a range of longstanding and permanent deficits which are relevant to the sentencing exercise.
Your counsel submitted that the gravity of your offending was towards the low range. The Crown submitted that it was a serious example of manslaughter. I do not find descriptors of range to be helpful in this case. Rather, I consider the following factors to be relevant to the assessment of the objective gravity of your offending.
First, your use of a knife. In a deliberate action you plunged a large kitchen knife into the upper chest of Mr Ward. Second, he was your partner and the incident occurred in your home. Mr Ward was naked, unarmed and vulnerable. Although I note that you, too, were naked from the waist down. Third, you lashed out in anger. While the details of the argument remain somewhat unclear, you grossly over-reacted to whatever feelings of hurt and anger you were experiencing in the face of Mr Ward’s aggression. You told police that you did not feel physically threatened by him. Fourth, when Mr Ward collapsed you immediately attempted to revive him. You called 000 and followed the instructions given. You allowed police entry to your home. You participated in a lengthy record of interview with police and made significant admissions as to your behaviour.
The issue of your moral culpability for your offending is complicated by the your intellectual disability and persistent depressive disorder. The evidence of Mr Newton is that both your intellectual disability and persistent depressive disorder were active at the relevant time. Each condition resulted in alterations to your mental functioning. But Mr Newton stated that neither condition is directly related to your offending.
Your depressive disorder is characterised by long-term lowered mood associated with a slowing of cognitive processes, difficulty generating solutions and challenges implementing desired actions to solve problems. Your intellectual disability results in a reduced capacity for problem solving and generalised deficits in social skills, conflict-management skills and problem solving.
Mr Newton made plain that neither condition is associated with an increase in impulsivity, aggression or other acting out per se.
Your counsel submitted that this evidence demonstrated a realistic connection between your impaired mental functioning and your offending such as to enliven the application of the principles in Verdins[2] to reduce your moral culpability, albeit slightly.
[2]The Queen v Verdins (2007) 16 VR 269.
The prosecutor submitted that the evidence was insufficient to do so. He argued that there needed to be a ‘certain threshold level of centrality’ of the disability to the offending conduct before there could be a reduction in moral culpability based upon mental impairment. At the same time, he accepted that the deficits and difficulties arising from your conditions are nonetheless relevant to the sentencing exercise such as to have essentially the same effect.
I must determine whether and to what extent your mental function was relevantly impaired on the basis of the expert evidence before me. There is nothing in the report of Mr Newton that demonstrates a causal link between your intellectual disability and depressive disorder and your offending. I am not satisfied that principles one, three and four of the Verdins framework should be applied in this case. That said, I accept the submission of the prosecutor that your deficits are nonetheless relevant to the sentencing exercise. I give them appropriate weight as part of the general background to your offending.
Accordingly, both your moral culpability for your offending and the relevance of general deterrence is somewhat reduced.
Specific deterrence is a more difficult consideration. I accept that you are genuinely remorseful for your offending. Your actions demonstrate this. You called 000 immediately. You were cooperative with police. You pleaded guilty to this offence immediately after the issue of your fitness to stand trial was resolved. The relatively superficial expressions of contrition you have made to both your sister and Mr Newton are consistent with your intellectual disability and a product of your limited cognitive and language skills.
It is difficult and somewhat artificial to assess your prospects for rehabilitation. While Mr Newton states that you pose a low risk of general recidivism, your resort to lethal violence in a situation of interpersonal conflict merely months after you first commenced to live independently is troubling. And the limitations you have as a result of your intellectual disability cannot be cured. However, they can be managed. I accept unreservedly the statement of your sister that she will support you.
While situations of interpersonal conflict will undoubtedly arise again in the future, your particular offending conduct considered in light of the unique circumstances of your relationship with Mr Ward and your otherwise non-violent history renders community protection of lesser relevance in the sentencing exercise. I consider your prospects for rehabilitation, within your limitations, to be fair.
Ultimately I consider the need for specific deterrence to be modified by your personal factors.
I also take into account your plea of guilty. You were initially charged with murder. The question of your fitness to stand trial was properly raised. Once determined, you offered to plead guilty to manslaughter. In the circumstances I treat your plea as being early. Not only, as I have said, is this evidence of your remorse, but your plea has facilitated the course of justice, prevented community expense and avoided the trauma of a trial for Mr Ward’s family.
I accept that your deficits mean that your will find prison more burdensome than a person without your disability. Mr Newton described you as a vulnerable prisoner at risk of victimisation and other negative attention in the custodial environment. It seems that this risk has, in fact, materialised. Mr Newton further stated that there is some risk that the intensity of your depressive symptoms will increase as a result of your incarceration. I accept these opinions. I also accept that your experience of custody to date has been difficult given the lack of physical visits between March and December 2020 consequent upon the COVID-19 pandemic.
I have been referred to a number of cases to assist me with the range of sentence for offences such as this.[3] I have had regard to current sentencing practices. I have applied the principle of parsimony.
[3]Defence counsel referred to R v Field [2021] VSC 134; DPP v Devey [2021] VSC 121; Edwards v The Queen [2020] VSCA 339; DPP v Garrard [2020] VSC 154; DPP v Wong (No 2) [2020] VSC 884; DPP v Awad [2019] VSC 706; DPP v Frost [2019] VSC 672; DPP v Walker [2018] VSC 83; and Kells v The Queen [2013] VSCA 7.
Sentence
Ms Dellamarta, would you please stand.
Balancing as best I am able, the competing considerations laid down in the Sentencing Act 1991 (Act) and having regard to the matters I have just discussed, for the offence of manslaughter, I sentence you to imprisonment for seven years and six months. You must serve a minimum of five years before being eligible for parole.
I declare that you have already served 466 days of that sentence by way of pre-sentence detention.
I am required by s 6AAA of the Act to indicate what sentence I would have imposed but for your plea of guilty. As such, I declare that I would have imposed a sentence of nine years’ imprisonment with a non-parole period of seven years.
I make the disposal order in the terms sought by the Crown.
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