R v McNiven
[2011] VSC 569
•8 November 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 187 of 2010
| THE QUEEN |
| v |
| KERRY ANNE McNIVEN |
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JUDGE: | LASRY J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 24 August 2011 and 19 October 2011 | |
DATE OF SENTENCE: | 8 November 2011 | |
CASE MAY BE CITED AS: | R v McNiven | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 569 | |
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CRIMINAL LAW – Sentence – Manslaughter – Plea of guilty - Intellectual compromise - Alcoholism - Deprived history – Remorse.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Campbell Thomson | Office of Public Prosecutions |
| For the Accused | Nick Papas SC with Jacob Kantor | Trish Devlin Lawyers |
HIS HONOUR:
Kerry Anne McNiven, on 24 August 2011 at Wangaratta you pleaded guilty to the manslaughter of Gary Stewart. The incident causing the death of Gary Stewart happened at about 6.15pm on 18 November 2009 on the banks of the Ovens River at Wangaratta. It is now my responsibility to sentence you for this crime. The maximum penalty for manslaughter is 20 years imprisonment.
You were originally charged with murder but after some argument in Court and a decision by me, the Crown accepted your offer to a plea to manslaughter. There is no argument between you and the prosecutor as to what happened that day at the Ovens River. The prosecutor says, and you accept, that what you did was unlawful and dangerous and caused Gary Stewart’s death.
Circumstances of the offence
On Wednesday, 18 November 2009 you and Gary Stewart, a man you had known for about ten years as a friend, and refer to as Father Gary, spent the day drinking together. That seemed to happen a lot. You were at a house drinking and in the afternoon of that day, one of your friends told you that during the week before Gary Stewart had been seen touching your breasts after you had become unconscious from drinking too much.
The prosecutor says that there were three people who witnessed Gary touching your breasts and they told Ray Fleming about it. Ray Fleming is a man with whom you had been in a relationship and with whom you had had a child, Bianca.
According to what I have read and been told in Court, when you were told about Gary having touched you, you became upset. In fact, Ray Fleming had told the three people that had told him about it, not to tell you because he knew that when you heard about it you would be angry and he was right. That is what happened when Sandy Riley told you, during the afternoon of the day that Gary Stewart died, that Gary had touched you the previous week.
You were upset and, given your personal history and the bad things that happened to you when you were younger, that is understandable, though it is does not in any way justify what happened to Gary. What it does do is provide an important explanation for what happened and why you did what you did.
On the day that Gary Stewart was burned, you and Gary were at Ray Fleming’s house and there was a lot of drinking going on. Other people were there too but as the day went on, most of them left his house and only you and Gary were left there. The two of you then went for a walk from the house down to the river and you carried a can of two-stroke fuel. Gary Stewart carried beer in a red shopping bag. When you got to the boat ramp off Templeton Street in Wangaratta you both sat down and started drinking the stubbies of beer.
At around 6.15pm, other people saw you stand behind Gary and pour the liquid from the fuel can over him. Two of those people who were then walking away from where you were turned back to see that Gary was completely on fire. They rushed to help him and took him to the river to put out the flames. Police and ambulance were contacted. At one stage you also helped in splashing water over Gary. A few minutes later you walked away and returned carrying a stubby of beer.
It is obvious that very soon after you tipped the liquid in the can over Gary, something caused that liquid to catch fire. I am not sure how that happened. The Prosecutor has told me that he says this crime of manslaughter is based on you tipping petrol over Gary which was against the law and very dangerous and that it caught alight either because Gary or someone else very close by was smoking and that was enough to start the fire. I agree with the Prosecutor about that and your counsel, Mr Papas, does not argue with it.
Gary was taken by ambulance to the Wangaratta Hospital and given medical treatment. He had burns to 72% of his body. Later on that night, he was taken by air ambulance to the Alfred Hospital Burns Unit in Melbourne where he was given further treatment but remained in a critical condition. He died from complications as a result of his extensive burns on 5 December 2009.
Much of your life and that of Gary Stewart has been affected by the regular heavy drinking. This terrible incident occurred partly because of that.
You pleaded guilty the charge of manslaughter and that is to your credit. I think that means that you are sorry for what you have done. In addition to your plea of guilty, Mr Papas read out a letter that you have written which actually explains how sorry you are for what you have done. In that letter, you have apologised to Gary’s family, your own family and your indigenous culture. You have said how you are trying to improve yourself in relation to drinking and also in your links with your aboriginal culture. I believe you are sorry and that has an important effect on the sentence that I will give you.
Victim Impact Statements
I have received as Exhibit B, victim impact statements from a number of people. They include Isabella Stewart who is the mother of Gary Stewart, and David Stewart, the younger brother of Gary Stewart. Irene Denise Stewart, Jackie Stewart, and Tanya Gail Covill, three of Gary Stewart’s sisters, each filed a victim impact statement. Irene is the eldest and is taking care of the family to a large extent. Finally, Kaye Debra Watson, a fourth sister of Gary Stewart, also filed a victim impact statement. Each of those statements show how much those people loved Garry Stewart, and how upset his family is that he was injured by you and then died. They will have to struggle with their pain for a long time and they will often be reminded of what they have lost. In deciding what sentence you should be given, I have taken what each of these people have said in their statements into account.
Personal circumstances
You are 44 years of age and an Australian indigenous woman. You have been in Dame Phyllis Frost Women’s Prison since you were arrested about the fire and the death of Gary Stewart.
You were born in Cunnamulla in Queensland and then moved to Alice Springs. You were the only child of your parents but you have a younger half‑sister. Your mother was apparently an alcoholic and you never met your father. The psychiatric report of Dr Lester Walton records that after one stepfather was killed and the death in a motor vehicle accident of another stepfather, you were made a ward of the State and placed in foster care. You reported a very traumatic childhood and adolescence, including a history of physical and sexual abuse at a very young age. That sexual abuse was apparently repeated when you were a teenager and from what you told Mr Delaney, it was violent.
You went to school in Alice Springs and were educated to grade 10, but you had learning difficulties throughout your education.
You initially worked as a housekeeper after leaving school. However, I am told that you worked for more than 20 years as a librarian in Alice Springs and, during that time, you achieved some qualifications in “librarianship”. You had a relationship in Alice Springs for about 14 years with a man called Steve that produced two children but you don’t have any contact with them. About 12 years ago in Alice Springs you met Ray Fleming and you apparently moved to Wangaratta a little over 10 years ago and not long after that gave birth to your daughter Bianca. Bianca was the product of your relationship with Ray Fleming and she is now nine years of age. Your relationship with Ray has ended but he still supports you.
You have been in trouble before but only on two counts of criminal damage for which the Court gave you a community based order. That incident, which happened back in 2006 was also connected with too much drinking. Otherwise, you seem to have been able to stay out of trouble most of the time. You have been in custody since your arrest in this case but this is the first time you have been in gaol.
I have three reports that tell me a lot about you and your background. They are the report of consultant psychiatrist Dr Lester Walton, dated 13 October 2011, a neuropsychological report of Dr Luke Delaney dated 12 August 2011 and a report from Calvary Health Care of 18 October 2011.
In his report, Dr Walton reports that you are reasonably literate, though he and Mr Delaney, the neuropsychologist that assessed you, agree that it is likely that you now suffer from a “minor intellectual compromise” as a result of your history of alcohol abuse. Importantly, Dr Walton also thinks that you are very sorry for what you have done. It may be you were showing your regrets straight away when you splashed water on Gary after he became alight at the river.
You have had a difficult history, particularly with alcohol. You started drinking when you were very young and you were drinking a lot. As I have been told and as is obvious, alcohol has caused a great deal of harm in aboriginal communities and it has had a very bad effect on you. Your heavy drinking started a long time ago and after your relationship with Steven failed it apparently became a lot worse. You were binge drinking and not eating for long periods of time. This has probably had a bad effect on your brain. You do have trouble with remembering things.
Dr Walton suggests that, unlike for many people, the time you have already spent in gaol may have been beneficial for you, because it has helped you to withdraw from your acute alcohol dependence, and to remain alcohol free the entire time you have been at the Dame Phyllis Frost Centre which is almost two years. You have expressed your motivation to remain alcohol free when you are released from prison, and Dr Walton has acknowledged that more time in gaol is unlikely to produce any more benefits to you in this respect.
Mr Papas has told me that in prison you have done a horticulture course and you have also tried to improve your writing skills. When you are released you will probably go back to Wangaratta because that is where Ray and your daughter Bianca are.
Dr Walton has also said, and I agree, that the big challenge for you will be to not drink alcohol when you are released from prison. From what I have read and been told, if you can stay away from alcohol when you are released you have a good chance of making something good of the rest of your life but if you can’t, there will be more problems. While you are in prison you should get as much help as you can for this and make sure that there are people who can support you when you get out.
Mr Luke Delaney gave evidence during the hearing to decide whether I should let the prosecutor put evidence of your police record of interview before a jury, in the event that you stood trial. He made various assessments of you both as to your mental ability and the effect on you of having drunk a large amount of alcohol. In essence he thought you have developed a mild disability because of your level of drinking, and that you may have harmed yourself by the drinking you have done. He also thought that treatment of you would help particularly when it comes close to the time for you to be released from prison.
Finally, I should mention the report of Stephanie Perrot from the Calvary Health Centre which is apparently an in-house alcohol treatment centre from which you received assistance on three occasions between 2006 and 2009. That suggests that you realised then as you do now, that you need as much help as you can get to deal with the things that are having a bad effect on your life.
Conclusion
By pleading guilty you have agreed that your actions caused Gary Stewart’s death. I think that you were very upset by what you had been told Gary had done to you the week before his death. It is also obvious that you and Gary had both drunk a lot of alcohol during the day that this happened. This offence of manslaughter is a very serious offence and all people, including aboriginal people, must understand that if they do things like this and cause someone else’s death, there is going to be serious punishment. You must also realise that you must not do anything like this again because if you do the consequences for you will be extremely serious.
You have had a difficult life and I think that since you have been in gaol you have decided to try hard to make your life better. I also think you are very sorry for what you did and that is one of the reasons why you have pleaded guilty. You still have plenty of life left and it is up to you to give yourself a better chance to live that life well when you are released from gaol.
In all the circumstances, the sentence I propose to impose on you is imprisonment for seven years. I will fix a minimum period of four years before you can apply to be released on parole. That will mean that when you have served four years in prison, including the time you have already served, you can ask the Parole Board to release you under their supervision. You will be able to do that in a little over two years. If the Parole Board agrees to release you then they will keep a close eye on you over the next three years and hopefully that will help you get your life back on a good track. I have fixed that non-parole period because I think it will help you.
I declare that your pre-sentence detention is 721 days including this day and I direct that that declaration be retained in the records of the Court and be reckoned as time already served.
Pursuant to s 6AAA of the Sentencing Act 1991 I indicate that, were it not for the plea of guilty which you have offered, the sentence I would have imposed would have been a sentence of ten (10) years’ imprisonment with a minimum term before eligibility for parole of seven (7) years.
I have already made the disposal order under s 78 (1) of the Confiscation Act 1997 and the order for a forensic sample under s 464ZF of the Crimes Act 1958.
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