R v Jeffrey Dunn

[2005] NSWSC 1231

CITATION:	R v Jeffrey Dunn [2005] NSWSC 1231 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	6,7,8,9,14 June, 5 August and 13 September 2005
JUDGMENT DATE :	13 September 2005
JUDGMENT OF:	Latham J at 1
DECISION:	Manslaughter - Non-parole period of five years, to date from 12 March 2004, to expire on 11 March 2009. The balance of the term shall be three years expiring on 11 March 2012.

CATCHWORDS:	Sentence: Manslaughter - Finding by Jury of Provocation.
CASES CITED:	The Queen v See 2001 NSWSC 776 The Queen v Ladd 2001 NSWSC 1055 The Queen v Griffis 2001 NSWSC 1154 The Queen v Popovic 2001 NSWSC 1118, The Queen v Gardiner 2001 NSWSC 1147, The Queen v Tindall 2002 NSWSC 1108, The Queen v Lynch 2002 NSWSC 1140, The Queen v Johnson 2003 NSWCCA 129, The Queen v KMB 2003 NSWSC 862, The Queen v Marlow 2003 NSWSC 1130, The Queen v Walsh 2004 NSWSC 111, The Queen v Williams 2004 NSWSC 189, The Queen v Clark 2004 NSWSC 1125, The Queen v Hamoui [number 4] 2005 NSWSC 279. The Queen v Previtera 1997 94 ACR 76
PARTIES:	Crown - Regina Accused - Jeffrey Dunn
FILE NUMBER(S):	SC 2004/2841
COUNSEL:	Crown - P Conlan SC Offender - RJ Button
SOLICITORS:	Crown - S Kavanagh Offender - SE O'Connor

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

LATHAM J

13 SEPTEMBER 2005

2004/2841 REGINA v JEFFREY DUNN

SENTENCE

1 HER HONOUR: The prisoner, Jeffrey Dunn, was found guilty by a jury of manslaughter on the basis of provocation. The offence carries a maximum penalty of twenty-five years imprisonment. The prisoner, and the victim, Jacqueline Dowd, met in the 1990s whilst both were working at BHP. In about 1996 the victim rented a room in a house at Cartwright which was leased by the prisoner. That arrangement continued until 2000 when the prisoner leased another house at Mount Pritchard. The victim continued to live relatively harmoniously with the prisoner in those premises.

2 In 2002 the prisoner obtained Housing Department premises in Cartwright. Those premises consisted of one room, a bathroom, and a small kitchen. The victim was also seeking Housing Department accommodation. It appears that the prisoner agreed to let the victim stay with him until a unit became available. The victim moved in to the prisoner’s unit in late 2003.

3 Evidence was given at trial of arguments between the prisoner and the victim and of their daily consumption of large amounts of alcohol. A significant part of their relationship, which was never sexual, was based on a common history of heavy drinking. The evidence at trial also established that as the drinking progressed in the course of the day, the intensity and volume of the arguments between them would increase.

4 It was the prisoner’s case at trial and one which was ultimately accepted by the jury that the victim would resort to common themes during these arguments. The victim would, in effect, taunt the prisoner about the lack of family and other meaningful relationships in his life, contrasting his position with her own, blessed as she was with a daughter, grandchildren and siblings. There were also comments about his manhood. These remarks, and the impact they had upon the prisoner need to be understood against the prisoner’s background, to which I will turn later in these remarks on sentence.

5 At about 5.30pm on 12 March 2004 the prisoner and the victim were in the prisoner’s unit having commenced drinking some eight hours earlier, although they had not been in each other’s company for that entire period. Neighbours heard the victim’s raised voice, and in particular some references to the fact that the prisoner was “all alone in the world.” The prisoner had wanted to sleep, but the victim was listening to music and in that vein the argument escalated until the prisoner said:

“look Jackie , if you don’t shut up, I’m going to come over and kill you.”

At question 51 of the record of interview, the prisoner comments that at that time his threat was just a joke. But,

“She kept on and on, so I went to the kitchen, I got two knives, and I walked down and I said, which one do you want Jackie, and she went, go for it, so I did.”

6 The prisoner plunged one of the knives into the victim’s abdomen causing damage to the liver, abdominal aorta and renal blood vessels. The victim died shortly thereafter. The prisoner called triple O and told the operator he had stabbed his sister. This was terminology which had been adopted by the prisoner and the victim to avoid misconceptions by others that they were sexual partners.

7 The victim’s blood alcohol reading was 0.330 at the time of her death. When ambulance officers arrived at about 6.20pm the prisoner repeated the admissions made in the triple O call. He confirmed the details again at about 6.30pm to investigating police and expanded on his account in the course of a record of interview at Green Valley Police Station later that night. The prisoner was described as moderately affected by alcohol. However, his outward demeanour no doubt masked the extent of his alcohol consumption, given his long term drinking pattern. The prisoner never contested that he stabbed the victim with the intention to cause her grievous bodily harm. The position and depth of the wound could not realistically be construed otherwise. However, the prisoner’s counsel submits that the evidence would not satisfy the Court beyond reasonable doubt that there was an intention to kill. In so far as the objective gravity of the offence depends to some extent on the prisoner’s intention at the time he stabbed the victim, the prisoner’s acknowledgment to police that he had threatened to kill the victim before he obtained the knives, is capable of constituting some evidence of that intention. However, the prisoner’s statement in that regard, when construed in the context of the otherwise mutually supportive relationship between the prisoner and the victim, and taking the prisoner’s intoxication into account, is not conclusive of this issue.

8 The prisoner candidly discussed the offence at every stage. There is no basis upon which I should reject out of hand his statement to police that his threat to the victim was just a joke. In the result I am not satisfied beyond reasonable doubt that the prisoner intended to kill the victim at the time he fatally wounded her. That said, this was an objectively serious offence. The victim was a defenceless woman, sitting in a chair, smoking a cigarette when the prisoner stabbed her. The prisoner’s resort to the use of knives to silence her was cowardly and brutal. That is, the degree of violence displayed by the prisoner was excessive. Whilst he was affected by alcohol, he was nonetheless capable of acting rationally. It must be said, however, that his capacity to exercise judgment was impaired. I would not regard the degree of provocation offered by the victim as significant, however the prisoner had endured her jibes for some years over the course of their relationship; so that the cumulative effect of the provocative conduct was triggered on this particular evening.

9 There was sufficient time between the victim’s provocative conduct and the act causing death to allow the prisoner to go to the kitchen and retrieve two knives. A further conversation followed, before the prisoner actually stabbed the victim. It was a relatively brief loss of self-control. His actions were not premeditated in that sense. All of these factors affect the objective gravity of the offence, see The Queen v Alexander, 78 ACR, 141 at 144. Taking these factors into account I would assess the offence as falling slightly above the mid range for offences of this nature. The felonious taking of a human life is one of the most serious offences in the criminal calendar, and it is generally met with custodial penalties. However, the wide variety of circumstances capable of giving rise to a conviction for manslaughter find expression in a correspondingly wide range of custodial penalties, rendering reliance upon Judicial Commission statistics of dubious value. It is more helpful to have regard to sentences imposed for manslaughter on the basis of provocation.

10 The schedule attached to the remarks on sentence of Justice Hulme in The Queen v Cardoso 2001 NSWSC 775, is a starting point. To those I would add the following. The Queen v Kelly, 2000 NSWSC 701, The Queen v See 2001 NSWSC 776, The Queen v Ladd 2001 NSWSC 1055, The Queen v Griffis 2001 NSWSC 1154, The Queen v Popovic 2001 NSWSC 1118, The Queen v Gardiner 2001 NSWSC 1147, The Queen v Tindall 2002 NSWSC 1108, The Queen v Lynch 2002 NSWSC 1140, The Queen v Johnson 2003 NSWCCA 129, The Queen v KMB 2003 NSWSC 862, The Queen v Marlow 2003 NSWSC 1130, The Queen v Walsh 2004 NSWSC 111, The Queen v Williams 2004 NSWSC 189, The Queen v Clark 2004 NSWSC 1125, and The Queen v Hamoui [number 4] 2005 NSWSC 279.

11 The foregoing demonstrates that a range of head sentences from four years to fourteen years to have been imposed in such cases. I do not mean to suggest that the penalty to be imposed for the loss of Ms Dowd as a sister, mother, grandparent, auntie and friend, is to be gauged by sterile comparisons with other cases. Each case is to be assessed according to its individual features. However, the sentencing discretion I have to exercise is not unconfined. The scope of the penalties imposed in broadly comparable cases indicates the range from which this Court has not departed in recent years, and from which I ought not depart absent some compelling circumstance.

12 I turn to the prisoner’s subjective circumstances. He is now sixty years of age, he has no relevant criminal history. He was born in Wales and reported a happy childhood. He has a sister who last contacted him fifteen years ago. Both parents are deceased. The prisoner left school at fifteen years of age, and obtained employment as a mechanic which he maintained until his emigration to Australia with his then wife and two children in about 1980. The marriage broke down, resulting in the departure of the prisoner’s wife and children back to the UK, when the children were thirteen and six years of age. The prisoner had some contact with the children thereafter, but ultimately lost contact and settled into a socially isolated and emotionally detached existence. Apart from the platonic relationship with the victim, the prisoner has no friends or social networks, and has had no sexual relationships since the failure of his marriage. His heavy and persistent consumption of alcohol over many years has resulted in organic brain damage. His memory of events in his past is extremely poor. At the time of the offence he was regularly consuming up to four litres of wine per day. Since coming into custody his general health has improved. He has gained weight and he has realised for the first time that his consumption of alcohol was problematic.

13 There can be no doubt he is genuinely contrite. He contacted the authorities as soon as he realised what he had done, and expressed remorse during the interview with police. He has repeated the depth of his sorrow and regret for the relatives of the victim a number of times to Probation and Parole Service officers, to a consulting psychiatrist, a psychologist, and to this Court. The prisoner was always willing to plead guilty to manslaughter on the basis of provocation, but the Crown rightly in my view determined that the issue of provocation was a trial matter.

14 Nonetheless I take into account the prisoner’s offer of that plea, at an early stage. Given the promising indications that the prisoner intends refraining from alcohol in the future, and the specific circumstances giving rise to this offence, I regard his prospects of rehabilitation as cautiously optimistic. He does not pose a significant risk of further offences of violence.

15 The Court heard from the victim’s brother and sister on the question of the impact of the victim’s death upon them. Those statements are to be taken into account according to the law discussed in The Queen v Previtera 1997 94 ACR 76. The depth of their grief must be acknowledged. However, the Court cannot accede to demands for punishment beyond that appropriate to the circumstances of the offence, and the subjective circumstances of the offender when considered against the range of sentences discussed above.

16 The prisoner is entitled to a finding of special circumstances given that this is his first custodial penalty at his advanced age. Taking all of these matters into account I propose to sentence the prisoner as follows:

Mr Dunn would you please stand. On the offence of manslaughter you are convicted. I sentence you to a non-parole period of five years, to date from 12 March 2004, to expire on 11 March 2009. The balance of the term shall be three years expiring on 11 March 2012. The first date upon which you are eligible for release to parole is 11 March 2009. Thank you Mr Dunn.

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01/02/2006 - - Paragraph(s)