R v Joyce Mary CHANT

[2009] NSWSC 593

CITATION:	R v Joyce Mary CHANT [2009] NSWSC 593
HEARING DATE(S):	14/04/2009, 05/06/2009
JUDGMENT DATE :	26 June 2009
JUDGMENT OF:	Howie J at 1
DECISION:	In respect of the offence of improperly interfering with human remains the offender is sentenced to imprisonment for 10 months to date from 6 November 2007 and expired on 5 September 2008. In respect of the offence of manslaughter the offender is sentenced to a term of imprisonment of 4 years 9 months made up of a non-parole period of 3 years 4 months and a balance of term of 17 months. That sentence is to date from 6 June 2008 and the non-parole period is to expire on 5 October 2011 the date upon which the offender is eligible to be released to parole.
CATCHWORDS:	Criminal Law - Sentence - Manslaughter - Plea accepted on the basis of provocation - abusive relationship - deceased shot and dismembered by wife - long delay before body identified.
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 - s 21A(1)
CATEGORY:	Sentence
CASES CITED:	R v Falls [2004] NSWCCA 335 R v Alexander (1994) 78 A Crim R 141
PARTIES:	Regina v Joyce Mary Chant
FILE NUMBER(S):	SC 2008/16231
COUNSEL:	Crown - M Hobart SC/C Everson Offender - J Spencer
SOLICITORS:	Crown - S Kavanagh Offender - George Sten & Co

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

JUSTICE HOWIE

FRIDAY 26 JUNE 2009

2008/16231 R v Joyce Mary CHANT

REMARKS ON SENTENCE

1 HIS HONOUR: In October 1992 a number of body parts were found in and around Sydney. These included a torso wrapped in a bed sheet located at a truck-stop near Kiama and two human legs discovered in the Georges River at Taren Point. The remains were identified as coming from a Caucasian male of about 90 kilograms and approximately 178cm tall. There were no injuries to the body parts other than where they had apparently been severed from the body. They could not be further identified. The offender told her eldest son, Jamie, who was in custody at the time that his father had “abandoned us”.

2 On 5 January 1993, Jamie returned home. He was suspicious of his father’s absence and questioned the offender. She told him that it was his father’s torso that had been found and reported on the news. She said, “We fought, he was shot, I cut him up”. Jamie was told that she still retained the head and hands in two containers full of concrete. Shortly thereafter Jamie helped the offender dispose of the containers. They have never been recovered.

3 The offender reported her husband as missing on 23 March 1993. She stated that he had gone away to the car races on the October long weekend in 1992 and had never been seen or heard from again.

4 On 26 May 2006, the remains were identified by DNA evidence as being the deceased.

5 In November 2007 the offender was charged that between 1 August 1992 and 6 October 1992 she murdered the deceased, Wayne Chant, her husband. She was also charged with offences alleging that she improperly interfered with human remains in the period between September 1992 and December 1994. I will refer to the circumstances leading to the offender being charged with these offences shortly.

6 At her trial on 23 March 2009 she was arraigned on the charge of murder and one count of interfering with human remains between 1 August 1992 and 31 December 1994. She pleaded not guilty to the count of murder but guilty to the count relating to the human remains.

7 Evidence was called before the jury including from two of her sons. The offender maintained an account given in an ERISP to police after her arrest that the killing occurred as a result of the accidental discharge of the rifle when it was being brandished by her husband. In that interview she admitted having cut the body into pieces and disposing of the body parts, apart from the head and hands, shortly after the killing. The jury were instructed by me that, if they found the killing to have been the intentional act of the offender, they were to consider the issue of provocation. This was based upon a history given by the offender and supported by her sons of her husband’s verbal and physical abuse of her and the eldest son. The offender did not give evidence at the trial. The jury were ultimately discharged when they could not agree upon a verdict.

8 On 14 April 2009 the accused was again arraigned at her own request. In respect of the charge of murder she pleaded not guilty to murder but guilty to manslaughter. The Crown accepted that plea in full discharge of the count of murder. On 5 June 2009 I heard submissions on sentence during which the offender gave evidence.

9 The maximum penalty for manslaughter is imprisonment for 25 years. The maximum penalty for interference with human remains is imprisonment for 2 years.

10 There was a statement of agreed facts handed up. In light of the absence of any evidence of the offender that she had intentionally killed her husband, the facts supporting the plea to manslaughter were based upon hearsay material of what the offender’s barrister had told the Crown as to what the offender had told the barrister. This is to be treated as the truth even though the offender had always maintained to police that the killing was accidental.

11 I had, and still have, considerable doubts about this way of proceeding. Those doubts were somewhat confirmed when the offender gave evidence before me on the sentencing hearing. It was clear that, when she was taken to the exact mechanism of how she was able to shoot her husband, a much larger and stronger person than the offender, the offender’s account was at best unreliable but probably untrue. It was certainly not in accordance with the statement of facts and, therefore, I brought her evidence to an end as neither counsel wanted to pursue the matter. I should note that the agreed facts do not accord with what the offender said in conversations with her son Jamie which were, unbeknown to either of them, being recorded by police.

12 However, the tendered facts are those upon which I am required to sentence the offender despite my misgivings about their veracity and the basis upon which the Crown has accepted them. They are as follows. The deceased had “been bashing” and verbally abusing the offender regularly for many years. The abuse increased markedly after the deceased had a motor vehicle accident where he injured his head. He had never before the night of the killing threatened her with a firearm.

13 On the night of the deceased’s death he was drunk. There was an argument between the offender and him. The deceased produced a rifle, which caused the offender to become very frightened. There was a struggle in the third bedroom during which the offender pushed the gun towards the floor and a bullet was discharged.

14 The firing of the rifle caused the offender to panic and become more fearful. She left the bedroom, but the deceased followed her and dragged her into the main bedroom. As the offender was trying to pull away from the deceased, he fell onto the waterbed and dropped the rifle.

15 The offender believed that the deceased was going to kill her. She was “out of her mind with fear and lost her self-control”. The offender picked up the rifle and shot him in the head. He groaned for a while and then went quiet. She took the gun, left the bedroom and locked the door.

16 The body of the deceased was left in the bedroom for a number of days. Eventually, the offender dragged the body into the backyard. There she dismembered the body using an axe because she could think of no other way to dispose of the body. She put the head in an esky and the hands in a container, filled them both with cement and hid them under the bird aviary in the backyard. She disposed of the rest of the body at various locations, usually on drives with her two youngest sons.

17 In November 2007 police spoke with the offender and Jamie at their home. The offender re-affirmed her version of the deceased’s disappearance. Thereafter the police secretly recorded conversations between these two by the use of a listening device. The conversations disclosed that both knew of the killing of the deceased and the assistance of Jamie in disposing of some of his remains.

18 On 5 November 2007, after police had again visited the property, a conversation between the two was recorded in which the offender told Jamie that she did it because the deceased had threatened “to take your brother off me, because he didn’t see me as a fit parent”.

19 Although I heard evidence at the trial from both sons and saw an interview between the police and the offender, none of that material was re-tendered on the plea. I am, therefore, hamstrung in a proper evaluation of the facts and the appropriate sentence by the nature of the material placed before me. Had the jury convicted the offender of manslaughter on the basis of provocation, I would not have found the facts as set out in the agreed statement. I do not believe that they are true.

20 I heard evidence from the offender touching upon the assaults upon her by her husband. There was no objection to this evidence but I am not minded to accept it. In R v Falls [2004] NSWCCA 335 the Court of Criminal Appeal held that it was open to a judge to sentence according to the agreed facts and disregard evidence given by the offender relating to the facts surrounding the offence in addition to the agreed facts. In my opinion the offender has consistently tried to minimise her responsibility for the killing. Unlike the Crown, I would not have been prepared to act upon anything that the offender said about the circumstances surrounding the killing.

21 The Crown filed written submissions. Under the heading “Provocation Manslaughter”, the Crown refers to the following matters as relevant to the determination of the level of culpability as referred to in the judgment of Hunt CJ at CL in R v Alexander (1994) 78 A Crim R 141 at 144:

(1) the degree of provocation offered (or, alternatively, the extent of the loss of self-control suffered), which when great has the tendency of reducing the objective gravity of the offence, (2) the time between the provocation (whether isolated or cumulative in its effect) and the loss of self-control, which when short also has the tendency of reducing the objective gravity of the offence, and (3) the degree of violence or aggression displayed by the prisoner, which when excessive has the tendency of increasing the objective gravity of the offence.

22 The Crown addressed those matters. As to the first factor the Crown submitted, “The degree of provocation offered in this case was an assault accompanied with threats to shoot the offender and/or her children, and the firing of a bullet into the floor of the third bedroom and thereafter dragging the offender into the main bedroom”. As to the second factor the submission was: “The time between the provocation and the loss of self control was short”. As to the third it was submitted: “There was no violence displayed by the offender towards the deceased prior to the assault and threats”.

23 I take issue with the first and third submissions. As to the first there was no explicit or implicit threat to shoot the children and nothing to suggest that the offender thought there was. There may have been an implicit threat to shoot the offender although the offender gave very little evidence of it. The discharge of the weapon in the third bedroom might well have been because of the offender’s interference with the weapon. I do not accept the facts as indicating that she deflected a bullet intended for her by pushing down on the rifle.

24 The third submission clearly misunderstands the point made by Justice Hunt. It is not violence or aggression by the offender before the act causing death that is the relevant matter, but the degree of violence or aggression involved in the killing. The response to the provocation here was to shoot her husband who was drunk and prone on the bed after he had dropped the weapon. He was shot in the head at least once. No one but the offender will ever know how he died because the offender disposed of his head. It was a case of an intention to kill not an intention to inflict grievous bodily harm. That is a matter going to the objective seriousness of the offence.

25 The offender was born on 8 July 1951. She is about to turn 58. She has no prior convictions, nor has she been convicted of any offence since the killing. There are two testimonials from members of the public who have known her over the years and speak of her kindness. There is a psychiatric report in evidence. I do not take into account any of the facts related in the report as to the circumstances of the killing nor of her account of injuries she attributes to her husband. I will sentence her upon the agreed statement. There is a history of depression but I see little of relevance in it. The offender has not worked for a number of years. She was said to have been of “limited intellectual capacity” but she is in my opinion capable of manipulating her children and of attempting to manipulate the court. She was described as having “several disabling physical conditions that greatly limit her mobility”. She used a stick in moving to the witness box during the sentencing proceedings and gave evidence as to her medical conditions and the treatment she receives. It was not submitted that these physical problems were of any great significance in determining the appropriate sentence.

26 This offence occurred many years ago. The delay is not a matter of mitigation in light of her disposing of the body and lying to police to hide the fact that she had killed the deceased. It is an aggravating matter that she involved one of her sons in taking the body out into the yard and the other in the disposal of the body. In evidence she attempted to minimise her responsibility in that regard. Cutting up the body and disposing of body parts is not taken into account as a fact relevant to the manslaughter as there is a separate offence in respect of that conduct.

27 The Crown submitted there were no aggravating factors under s 21A(1). It was submitted, however, that there were mitigating factors, one of which was that the offender was provoked. With respect that submission is misconceived as the offender is being sentenced for manslaughter by reason of provocation. The offence would have been murder but for the fact that she was provoked. She does not in my view have that fact taken into account twice as also mitigating the offence of manslaughter. So far as the offender is unlikely to re-offend and is probably rehabilitated, that simply means that I do not have to be concerned with specific deterrence or the protection of the public.

28 The offender was called to give evidence so that she could express her remorse. I do not believe that she is in the slightest way remorseful for the death of her husband and never has been. She has since that time lied and manipulated her children, in particular her eldest son Jamie. Her only regret is that her two eldest sons, those who were most affected by the death of their father and her part in it, will no longer maintain contact with her. The youngest son who has intellectual problems visits her and wants her to be at liberty to live with him. But apart from an emotional need, I do not accept that he relies upon his mother for his day to day care as the offender attempted to suggest in her evidence.

29 The punishment for manslaughter is primarily concerned with denouncing the taking of human life. There is also an element of general deterrence involved depending upon the particular facts. This is far from the worst case of manslaughter based upon provocation but it is clearly a serious offence for which the offender must be punished notwithstanding the delay since the killing.

30 There was little utilitarian value in either of her pleas of guilty. Despite a submission made by the Crown that the plea saved her sons from giving evidence, that is not a relevant factor in determining the discount. In any event they had to give evidence at the first trial. The plea to manslaughter saved a further short trial. The plea of guilty to the charge of interfering with body parts had no independent utilitarian value as the facts of that offence were part of the facts of the murder charge. I do not take into account her offer to plead guilty to manslaughter before the first trial in the circumstances of this particular case given that she was denying having intentionally killed the deceased. She receives a discount of 5 per cent on both charges.

31 The son Jamie was charged with concealing a serious indictable offence and interfering with human remains. He was given the benefit of a conviction under s 10A. There is no parity between his criminality and that of the offender.

32 There have been cases where an offender has been granted extreme leniency where the killing has occurred as a result of a long history of serious abuse. I do not believe that this is the situation here although I am willing to accept that it was a physically abusive relationship. On the facts I am bound to find that it was the deceased who introduced the loaded firearm into the events of the night and used it in a threatening manner toward the offender that resulted in a discharge of the weapon in the third bedroom. That is highly provocative conduct especially in light of the nature of the relationship between the deceased and the offender. On the agreed facts I am required to find that the act causing death followed immediately upon the provocation in an instantaneous decision made by the offender when the deceased had dropped the weapon. She then panicked as to disposing of the body. However, the interference with human remains is a serious example of this offence.

33 There are no special circumstances except in so far as the manslaughter sentence is accumulated. This is so even though it is the offender’s first period in custody. There is to be a fixed term in relation to the offence of interfering with human remains because of the sentence for the manslaughter. That sentence is in effect the non-parole period on a sentence of 15 months less the discount. There is partial accumulation with the sentence for manslaughter. It is my intention that the offender is to spend 4 years in custody before being eligible for release to parole.

34 In respect of the offence of improperly interfering with human remains the offender is sentenced to imprisonment for 10 months to date from 6 November 2007 and expired on 5 September 2008.

35 In respect of the offence of manslaughter the offender is sentenced to a term of imprisonment of 4 years 9 months made up of a non-parole period of 3 years 4 months and a balance of term of 17 months. That sentence is to date from 6 June 2008 and the non-parole period is to expire on 5 October 2011 the date upon which the offender is eligible to be released to parole.

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