R v Memery
[2001] VSC 266
•26 July 2001
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1467 of 2000
| THE QUEEN |
| v |
| NORMAN ALEXANDER MEMERY |
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JUDGE: | Teague J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23-31 May, 1-13, 19 June 2001 | |
DATE OF SENTENCE: | 26 July 2001 | |
CASE MAY BE CITED AS: | R v Norman Alexander Memery | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 266 | |
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Criminal Law – Sentence – Manslaughter – Stabbing in struggle – Aggravating and mitigating circumstances – Sentence of six years, non-parole period of four years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. G. Hicks Q.C. Mr. J. Baum | Office of Public Prosecutions |
| For the Accused | Mr. W. Toohey | Mulcahy Mendelson & Round |
HIS HONOUR:
Norman Alexander Memery. You have been found guilty of manslaughter by a jury that found you not guilty of the murder of Trevor Tamme at Healesville on 13 May 2000.
Trevor Tamme had become the subject of your attention when he started a relationship with a Ruth Hartney in January 2000. Until that time you had been in a relationship with Ruth Hartney for over five years. You were upset that she broke off the relationship and you showed it.
Some weeks after the break-up a van owed by Ruth Hartney was the subject of certain vandalising acts carried out in the early hours of the morning. She had not had trouble of that kind before she broke off the relationship with you. She inferred that you were responsible.
She went to court and obtained a restraining order against you. The order stopped you contacting her, or going near her home at 4 Westmount Road, Healesville.
Over the weeks that followed, her van was, and vehicles owned by Trevor Tamme were, the subject of further vandalising acts in the early hours of the morning. She complained to the police. The police declined to act as she had no proof that you were the culprit. The police suggested that she might get a camera installed outside the front of her home. She followed up on that suggestion.
A camera was operating there in the early hours of 13 May 2000. On that night you had been with a friend to two hotels. You then went back to your home in Woori Yallock. You then left home and drove alone to Healesville. You took with you a knife and a tyre lever. You went to 4 Westmount Road. It was just before 4 a.m. You were unaware that a camera was recording the acts of vandalism that you then carried out. You used your knife to slash tyres on Ruth Hartney's van and Trevor Tamme's utility. You used your tyre lever to smash rear vision mirrors on the two vehicles. You pulled out rose bushes. You damaged wires in a heating control box.
The noise that you made alerted Ruth Hartney and Trevor Tamme to your presence. Trevor Tamme came out of the house wearing only pants. No top. No shoes. You heard the noise he made as he came out of the house. You ran to the road and up the hill to the right. He ran after you. You could have out-run him. But after being chased to a position two streets away, you stopped. You turned to face the deceased. You still had the knife and the tyre lever. He had no weapon.
He moved quickly to take control of the situation. He took you in a headlock. The two of you went to the ground. During your struggle to get free your head came in contact with, and was abraded by, the bitumen. Under his control the two of you walked back towards Ruth Hartney's home. There was more than one stop in that walk. Your struggling continued. As you struggled the pressure to your neck varied. At times you found it hard to breathe and to talk. At one stage as you struggled you received a knock to your back which caused a fractured rib. At another stage he made you drop the tyre lever you were still carrying. He picked it up and threw it away.
You still had the knife in your pocket. As the two of you came closer to Ruth Hartney's home you pulled out the knife. You decided to use it to get away from Trevor Tamme. You could open it with one hand and you did. You swung your arm with the knife over your shoulder at Trevor Tamme. You did not specifically intend either to kill or really seriously injury him. But the one swing of the knife caused it to penetrate his heart. Your aim of being released was achieved. Trevor Tamme let you go. He headed for Ruth Hartney's home. He died there a few minutes later. You walked down the hill. You got into your car. You left the scene.
The next day you were interviewed by the police. You gave to the police an account of what occurred. That account was a mixture of truth, half-truths and lies. The jury would not have accepted many of the things that you then said. Included in what they rejected was your claim that you acted only in self-defence.
In assessing the seriousness of your criminal conduct, I accept that you did not go to Ruth Hartney's house intending to confront or to be physically violent towards Trevor Tamme. You went there to damage property of Ruth Hartney and of Trevor Tamme. You went about that activity in a calculating way. In the early hours of the morning you thought there was little prospect of your being caught-out and punished.
Once Trevor Tamme had been alerted to your vandalism, he was clearly out to see that you were held to account. Your actions were doubly illegal. You were at Westmount Road flagrantly in breach of the court's intervention order, and you were engaged in damaging property. His words and actions showed that he was intent on bringing you before the police. You could have chosen not to face the deceased. You could have out-run him. The reasons you gave to the police for choosing to turn and face him are scarcely compelling. Once you did turn on him you quickly found yourself under his control. You then chose to extract yourself from his control by using a knife to carry out an unlawful and dangerous act that caused his death.
I have read attentively the victim impact statements lodged with the court. I have ignored some parts inappropriately included. There are five statements, but that of Phyllis Tamme is also informative as to the trauma suffered by other children of Trevor Tamme. All statements are reminders of the tragic consequences of the loss of a father, husband and friend. They add an appropriate balance to the sentencing process.
I turn to your personal circumstances. You are 43 years of age, having been born in January 1958. Your parents and older sister remain supportive of you. Despite suffering from dyslexia you got to Form 4 at Lilydale Technical School. Your marriage in 1983, from which you have two children, ended in divorce in 1995. Earlier this year you entered into another relationship.
You have prior convictions in April and August 1994 for breaches of intervention orders, and for allied charges of destroying or damaging property and burglary. The convictions did not lead to any great punishment. Nevertheless, they are still of considerable concern to me.
As to the events leading to the convictions, I have a statement from your former wife. It seems that how you acted as to Ruth Hartney was remarkably similar to how you had acted as to your former wife.
First, you were unable to accept each of them telling you that your behaviour towards them was unacceptable, and that you should keep away from them.
Second, you then pestered each of them so that they had to take out an intervention order against you.
Thirdly, you engaged in further pestering behaviour, escalating it to a high level of vandalism in breach of the court order.
I have taken into account in your favour a variety of mitigating factors. I accept that you have shown a degree of remorse for the death of Trevor Tamme, including that you have on a number of occasions visited his grave. I accept that you have substantially, but not totally, cooperated with the police.
I have noted that from a time prior to Ruth Hartney terminating the relationship with you, you had suffered from depression, linked in part to your divorce and inability to see much of your children. The depression was worsened by the termination of the relationship with Ruth Hartney, and by your being pestered early in 2000 by a person or persons unknown.
The depression has necessitated medication and continued counselling. I have read the report of Dr Carol Burton and have noted what she says, including as to your level of intelligence and as to your receiving continuing psychiatric help. I have noted your considerable involvement in the Country Fire Authority as a volunteer. I have noted that you have been engaged in employment effectively continuously since leaving school. The evidence points clearly to your being a good worker. I have noted that you have continued to pay monthly maintenance for your two children.
On the whole there are reasonable signs of good prospects of rehabilitation, but the assessment is qualified given that you have shown on more than one occasion that you can treat court orders with contempt.
I declare that you have spent 108 days in prison up to today, 26 July 2001. I direct that that declaration be noted in the records of the court.
I impose on you a sentence of six years' imprisonment. I fix a non-parole period of four years.
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