R v Melrose - [2001] NSWSC 847

CITATION: Regina v Melrose [2001] NSWSC 847 revised - 14/05/2002

CURRENT JURISDICTION: Criminal

FILE NUMBER(S): SC 70086/00

HEARING DATE(S): 27 June 2001; 27 August 2001; 29 August 2001; 31 August 2001

JUDGMENT DATE:
31 August 2001

PARTIES :

The Crown
Mary Ann Melrose

JUDGMENT OF: McClellan J

COUNSEL : P Barnett (Crown) (27 June 2001)
P Dare (Crown) 27 & 29 August 2001)
P Woods (Crown) (31 August 2001)
P Hamill (Offender)

SOLICITORS: Director of Public Prosecutions (Crown)
Western Aboriginal Legal Service (Offender)

CATCHWORDS: Sentencing - manslaughter - unlawful and dangerous act - offender pleaded guilty of manslaughter - domestic violence - relationship between offender and defacto characterised by violence and abuse - offender stabbed defacto following a confrontation - special considerations in the sentencing of aboriginal persons - exceptional circumstances - inapproprate for the imposition of a custodial sentence - good behaviour bond with conditions imposed in accordance with s 9 of the Crimes (Sentencing Procedure Act) 1999

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s 9

CASES CITED: R v Roberts NSWSC, Hunt J, 21 August 1989, unreported
R v Stanley Edward Fernando, (1992) 76 A Crim R 58
R v Kennedy, [2000] NSWSC 109

DECISION: See paras 32-34

THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

McCLELLAN J

DUBBO: FRIDAY, 31 AUGUST 2001

70086/00 - REGINA v MARY ANN MELROSE

SENTENCE

1 HIS HONOUR: The offender was indicted before me on the charge of murdering her de facto husband, David Charles Lamb, on 11 December 1999 at Goodooga. To that indictment she pleaded not guilty of murder, but guilty of manslaughter. The plea was accepted by the Crown in full discharge of the indictment.

2 The Crown accepts that there is no evidence from which I could be satisfied that the offender intended to cause grievous bodily harm to the deceased. I am satisfied the Crown's position is appropriate and I proceed to sentence upon the basis that the offence arose from an unlawful and dangerous act.

3 The events of 11 December 1999 are, regrettably, not an isolated incident. The relationship between the offender and the deceased was characterised by violence and abuse over a long period of time. There has been tendered before me records from Walgett District hospital, excerpts from the computer recording system of the New South Wales Police and detailed reports from a psychologist and a psychiatrist. An understanding of the relationship between the offender and the deceased can be constructed from the information contained in those documents. In addition, the offender gave evidence before me which is consistent with those records.

4 The offender was born at Walgett into a stable and apparently happy family. She still has good relationships with her siblings and was close to both of her parents. On leaving school she worked for a time as a secretary and has also worked with children. She first became involved in a long term relationship when she was in her twenties and married Kevin Melrose. She separated from…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Melrose

Details

AGLC: R v Melrose [2001] NSWSC 847
Case: [2001] NSWSC 847
Decision Date: 31 August 2001

CaseChat Overview and Summary

In the matter of R v Melrose, the defendant stood before the court for sentencing following a plea of guilty to the charge of manslaughter. The case arose from an incident in which the offender, while in a relationship marked by violence and abuse with their defacto partner, stabbed the partner during a confrontation. The relationship was one of significant volatility, and the stabbing incident was a culmination of ongoing domestic violence. The court was required to determine an appropriate sentence, taking into account the unique dynamics of the relationship and the broader context of the offender's life, including their Aboriginal heritage.

The primary legal issues before the court involved the appropriate sentencing for manslaughter in a domestic violence context, as well as the consideration of special factors relevant to Aboriginal offenders. The court had to balance the need for accountability and deterrence with the potential for rehabilitation, particularly given the exceptional circumstances of the case. The court also considered whether a custodial sentence would be appropriate, given the background of the offender and the potential impact on their rehabilitation and reintegration into the community.

In delivering its judgment, the court emphasised the importance of recognising the context of domestic violence and the history of abuse within the relationship. The court also acknowledged the unique challenges faced by Aboriginal persons in the criminal justice system. Given these factors, the court determined that it was inappropriate to impose a custodial sentence. Instead, the court opted to impose a good behaviour bond with specific conditions, as authorised by section 9 of the Crimes (Sentencing Procedure Act) 1999. The conditions were designed to support the offender's rehabilitation and to protect the community, while also providing an opportunity for the offender to address the underlying issues that contributed to the offence.

Orders