R v Sherry

[2000] NSWCCA 35

CITATION:	Regina v Sherry [2000] NSWCCA 35
FILE NUMBER(S):	CCA 60434/99
HEARING DATE(S):	3 February 2000
JUDGMENT DATE:	29 February 2000
PARTIES :	Regina Stephen Sherry
JUDGMENT OF:	Sully J at 1; Carruthers AJ at 32; Smart AJ at 33

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	60434/99
LOWER COURT JUDICIAL OFFICER :	Levine J

COUNSEL :	D. C. Frearson - Crown J. C. Nicholson SC - Respondent
SOLICITORS:	S. E. O'Connor - Crown T. A. Murphy - Respondent
LEGISLATION CITED:	Sentencing Act 1989 (NSW)
DECISION:	Crown appeal allowed - sentence quashed; In lieu of sentence imposed, sentenced to penal servitude for 6 years comprising a minimum term of 3 years 6 months starting on 16 October 1997 and ending on 15 April 2001 and an additional term of 2 years 6 months starting on 16 April 2001 and ending on 15 October 2003

IN THE COURT OF
CRIMINAL APPEAL

60434/99

SULLY J
CARRUTHERS AJ
SMART AJ

Tuesday 29 February 2000

REGINA v Stephen SHERRY

JUDGMENT

1   SULLY J: This is a Crown appeal against a sentence passed on 9 July 1999 by Levine J upon Mr. Stephen Sherry, [“the respondent”]. 2   On 29 June 1999 the respondent was presented for trial before Levine J at Grafton. He was so presented upon an indictment charging that he had murdered, on 16 October 1997 at South Grafton, one Mary Anne Casey, [“the deceased”]. To that charge the respondent pleaded not guilty. He was put, accordingly, upon his trial by a jury; and after a trial lasting several days the jury returned a verdict finding the respondent not guilty of murder but guilty of manslaughter. The respondent was thereupon convicted, and was sentenced by Levine J to penal servitude for 5 years. His Honour found “special circumstances” as contemplated by section 5 of the Sentencing Act 1989 (NSW); and divided the sentence equally between minimum and additional terms. The minimum term was dated to commence on 16 October 1997 and to expire on 15 April 2000. 3 For some six or seven years prior to October 1997 the respondent and the deceased had been living in a de facto relationship. There had been two children of that relationship: a daughter aged, in October 1997, about 12 months; and a son then aged about 3 months. The relationship between the respondent and the deceased had been a very volatile one marked by outbursts of violence and drunkenness. 4 As at 16 October 1997 the respondent and the deceased had separated. The deceased had custody of the two children, but the respondent visited them regularly, those visits bringing him necessarily into contact with the deceased. It seems that the respondent was genuinely attached to the two children, and was genuinely concerned about their welfare and upbringing. 5 On the morning of 16 October 1997 the respondent was sitting with a female acquaintance named Rosemarie Dennis outside the latter’s home in South Grafton. They spent some time in conversation, principally, as it would seem, in connection with some personal problems of the respondent, being problems not connected directly with the deceased. As the respondent and Miss Dennis talked, the respondent drank about two bottles of beer. Miss Dennis described the respondent as having been, in her then perception, agitated or frustrated. 6 Presently, the respondent caught sight of an acquaintance of his who was in the vicinity of the South Grafton Post Office Hotel car park. The respondent left Miss Dennis and walked towards this acquaintance. On the way he met the deceased in the car park. A verbal argument took place between the respondent and the deceased. At the end of that argument the respondent walked away from the deceased, back to Miss Dennis’ house, and resumed his seat on the verandah. 7 The deceased, then carrying her little daughter, approached the respondent. There was a further verbal argument between them. In the course of it the deceased told the respondent that their infant son was at the Post Office Hotel; and she told the respondent to go over there and collect the child. 8 The respondent did so, apparently taking time while he was at the Post Office Hotel to drink a vodka and orange juice in the hotel bar. He then left the hotel with his infant son, walked over to Miss Dennis’ house, and went inside the house to a room where the deceased was then seated on a lounge. 9 The Crown case at trial was that the respondent and the deceased had then become engaged in a very violent altercation. The Crown case in that connection relied upon the evidence of Miss Dennis who was present at the time, and who became so alarmed by what she was witnessing that she telephoned for assistance. The Crown case was that the respondent had taken hold of the deceased’s throat with his right hand and had pushed her head forcefully against the wall. The deceased, allegedly, responded by reaching up and taking hold of the respondent’s hair, pulling his head down towards her. The Crown alleged that the respondent had delivered a number of significantly hard punches to the deceased’s head; that he had disentangled himself from her grasp; and that he had thereupon stood up, taken hold of a beer bottle, and struck the deceased across the head with the bottle. 10 According to Miss Dennis, it was at about this time that she moved to the telephone, intending to seek assistance. She said that the respondent had approached her; that she had sought to fend him off by moving between them a pram in which one of the children was then lying; and that the respondent thereupon turned away from her, returned to the deceased, and again inflicted upon the deceased a number of significantly forceful blows. 11 Thereafter, according to Miss Dennis, the respondent walked into the kitchen where he took from its scabbard a large kitchen knife. He returned, holding the knife in his right hand, approached the deceased, and presented the point of the knife to her chest. He placed his left hand on the deceased’s right shoulder. The Crown case was that the respondent had, thereupon, stabbed the deceased below her right ear causing a wound which brought about her death. 12 Miss Dennis did not actually see the respondent inflict the fatal wound; but it was not disputed at the trial that the respondent had in fact been holding the knife in his hand when the fatal wound was inflicted upon the deceased. 13 The respondent gave evidence at the trial. He did not deny that there had been a violent confrontation between himself and the deceased. Nor did he deny that he had indeed gone into the kitchen and taken from it the kitchen knife in question. The respondent’s case was, however, that he came back into the adjoining room, carrying the knife; that he approached close to the deceased; that he pointed the knife, not at her, but at himself, telling her, in effect, that he had had enough of the fights that were constantly going on between them, and that he would resolve matters by stabbing himself. According to the respondent, he did not in fact intend to stab himself; but wished, rather, to make a point with the deceased. The respondent denied adamantly that he had ever struck the deceased with a beer bottle. The respondent did not dispute that he had struck the deceased a number of times; although he did not accept the precise description given by Miss Dennis in her evidence. The respondent did not dispute that he had the knife in his hand at the time the fatal stab wound was inflicted; but it was his consistent case that the inflicting of that stab wound had been entirely accidental. 14 Early in Levine J’s summing up to the jury, his Honour instructed the jury as follows:

“There are three potential results in this case. One, guilty of murder; or two, not guilty of murder but guilty of manslaughter; or three, not guilty of anything. I think it desirable to set that scene and establish that theme now, because not surprisingly the Crown has focused on success in proving guilt beyond reasonable doubt of murder. The defence has focused in effect upon the Crown having failed to prove beyond reasonable doubt the guilt of anything, and I would ask you to note the way I just put it. The Crown submits proof of guilt successfully, the defence submits failure. That reflects what I have referred to before, the obligation or onus on the Crown to prove guilt, there being no obligation or onus on the accused to prove innocence.” [Appeal Book 359]

15   Concerning the respondent’s case that the inflicting of the fatal wound had been an accident, his Honour instructed the jury as follows:

“An accident is an event which occurs but which is not in fact intended or foreseen by the accused, and is one which would not reasonably have been foreseen by an ordinary person. An accident, I will repeat it, is an event which occurs but which is not in fact intended or foreseen by the accused and would not reasonably have been foreseen by an ordinary person. An ordinary person in these circumstances is judged objectively and is taken to be an ordinary sober person.
Once, however, the issue of accident is raised by the accused, it is for the Crown to disprove that proposition, beyond reasonable doubt to exclude it. The accused does not have to satisfy you beyond reasonable doubt that it was an accident, the Crown has to satisfy you beyond reasonable doubt that it was not. If the Crown has satisfied you beyond reasonable doubt that it was not an accident in the sense relied upon by the defence, that is not the end of the matter. The Crown still has to satisfy you on the evidence beyond reasonable doubt that it was the deliberate act of the accused in stabbing the deceased done with the intention of killing or inflicting very serious bodily injury.” [Appeal Book 373,374]

16   Shortly thereafter, his Honour turned to the alternative verdict of guilty of manslaughter. In that connection, his Honour directed the jury as follows:

“Or in the event that you are not satisfied beyond reasonable doubt that the act of the accused in stabbing the deceased was done with either of those intentions, we come to the next step. The Crown has to satisfy you beyond reasonable doubt that it was an unlawful and dangerous act in a way that I will explain, and that will enable you to find a verdict of manslaughter.
I have dealt with murder and the elements. The position of the accused is an accident, the Crown has to dispel that, exclude it beyond reasonable doubt. The Crown’s position of course is this was no accident.
Yesterday I said that there were three possible verdicts. Guilty of murder, one. Not guilty of murder but guilty of manslaughter, two. Or three, not guilty. I am now coming to manslaughter which is the second of the three available verdicts. It has its elements as well. First the death of the deceased. Second the act of the accused caused the death. Third, that the act of the accused which caused the death was itself unlawful and was also dangerous.
Pausing there, the real difference between murder and manslaughter in this context is murder looks to the intention, and if that hasn’t been proved beyond reasonable doubt we now look at the act, was it unlawful and dangerous and did it cause the death of the deceased?
The Crown has to satisfy you beyond reasonable doubt that the act of the accused was an unlawful one. It doesn’t take a great deal of imagination, or indeed a requirement for me to direct you as a matter of law, that to present a knife to a person’s chest is an unlawful thing.
The second ingredient of the crime in relation to the act is that you must be satisfied beyond reasonable doubt that not only was it unlawful but dangerous. I direct you as a matter of law in this context that an act is dangerous. An act is a dangerous one when it is one which a reasonable person, that is the objective test again, ordinary reasonable person, would realise was an act which exposed another person to an appreciable risk of injury.
Certainly in this regard it is of importance to the Crown case, talking about manslaughter, that the knife was obtained from the kitchen and presented to the chest of the deceased in an environment of conflict, an unlawful and dangerous act. That is the knife being pointed at her chest. That is a very important area of fact for you to resolve.
On the other hand, as I understand the Crown’s position in relation to manslaughter even if he came out and pointed the knife at his own chest but the scuffle then broke out and continued and he maintained that knife in his hand, he didn’t drop it, in those circumstances his continuing holding of it became an unlawful and dangerous act. The knife went into the neck, the deceased died and the accused, if you are satisfied beyond reasonable doubt of all those things, would be not guilty of murder but guilty of manslaughter.
If the Crown, however, has failed beyond reasonable doubt to exclude the accused’s account, especially the nub of his account, “I put the knife to my chest to make a point to her. I didn’t intend to kill myself but I put it to my chest to make a point to her as to how seriously I viewed her conduct in relation to the children”, if the Crown fails beyond reasonable doubt to exclude that, or if you are in some doubt about it you cannot convict the accused of manslaughter.
Murder is concerned with the intention to do the act that caused the death. Manslaughter is concerned with the act that caused the death, whether it was unlawful and dangerous. You will have to make a finding as to what the act was. That will involve your consideration of the dynamics of what occurred on or about or at the relevant couches. You will have to be satisfied beyond reasonable doubt that the accident position advanced for the accused has been excluded.” [Appeal Book 374, 375, 376]

17   Part of the Crown case at trial was that the accused had told lies about the stabbing; and that the relevant circumstances were such that it was open to the jury to infer from the telling of the lies a consciousness, on the part of the respondent, of guilt of the deliberate and intentional stabbing of the deceased. His Honour gave the jury extensive directions concerning the drawing, from the telling of lies, of an inference of consciousness of guilt. Those directions are not the subject of any present challenge or criticism. Thereafter, his Honour gave the jury a summary of the relevant principles bearing upon the alternative verdicts open to the jury. In that connection his Honour gave the following directions:

“So what I want to now do is present a summary of this trial and the issues in relation to murder, manslaughter, and accident, that I hope will clarify the position. If the Crown satisfies you beyond reasonable doubt that the lies evidence the consciousness of guilt, and excludes beyond reasonable doubt the accused’s version as an accident, and still on the evidence proves the death of the deceased was caused by the deliberate act of the accused done with the intention to kill or cause grievous bodily harm, if you are satisfied of all those things beyond reasonable doubt it is your duty to return a verdict of guilty, that is of murder.
If the Crown satisfies you beyond reasonable doubt that the lies evidence the consciousness of guilt, and beyond reasonable doubt excludes the possibility of accident, but does not prove beyond reasonable doubt the intention, but does prove beyond reasonable doubt that the death of the deceased was caused by the act of the accused and this act of the accused was an unlawful and dangerous one, then it would be your duty to return a verdict of not guilty of murder but guilty of manslaughter. If the Crown fails to exclude beyond reasonable doubt the accused’s account of accident, or you have any doubt about it, then the accused would be entitled to be found not guilty. One, guilty of murder; or two, not guilty of murder but guilty of manslaughter; or three, not guilty.
There are two other matters I want to briefly say something about. First, relationship. You have heard evidence during the course of this trial that does point to the relationship between Mr. Sherry and Mary Anne Casey to have been, to put it bluntly, affected by violence and drinking.
There was a witness Miss Wheelan called very early in the trial who was not cross-examined, who observed the couple in the car park and the violence and the distasteful language that was used. It is there. Ms Dennis gave evidence that the relationship was rocky. They had done everything in their power to work things out and the relationship became progressively violent and it was better that they parted. What is the point of this evidence? I will tell you what it isn’t; neither the accused nor in any sense the deceased are on trial for their lifestyle. The evidence going to the relationship between Mr. Sherry and Ms Casey is to provide a background or a context in which evidence of the events which give rise to this case can be considered.
Mr. Sherry isn’t on trial for any violence that he might have intruded into the relationship. After her death Ms Casey is not on trial for her problems with alcohol or for any violence of the hair pulling. This evidence is by way of background and context. The Crown still has to prove guilt beyond reasonable doubt and this relationship material is there to avoid what would otherwise be an absolutely artificial situation, the consideration of these events in a vacuum. It is background material to provide a context and that is all. It is there but it does not relieve the obligation on the Crown beyond reasonable doubt to prove guilt in the way that I have said. It is all part and parcel of human life affairs that relationships sadly develop along these lines and it is background so that you can just view the events and the findings of fact you make about them in a context. That is all I am going to say.
You bring together your collective worldly wisdom and general knowledge of what goes on in life to this case, that is there, it is part of the scene, it is not used to prove guilt or to condemn people merely because of the way they lived.
The final matter I want to talk about is alcohol. Alcohol or intoxication is not a defence. It is not an excuse, it is not enough to say, “I don’t remember, I was drunk” . That is not what this case is concerned about in the context of alcohol. Alcohol may provide an explanation.
The Crown Prosecutor opened this case and closed it to my recollection, “Whatever drink the accused had consumed simply affected his determination to do what the Crown says he did” . The accused does not say he was so affected he couldn’t form the intention that I have been talking about. That proposition is not part of this trial at all.” [Appeal Book, 381, 382,383]

18   After the summing up had concluded, both the Crown Prosecutor and counsel then appearing for the respondent applied for further directions. It is sufficient for present purposes to note that the Crown Prosecutor specifically acquiesced in the leaving to the jury of a possible verdict of manslaughter by an unlawful and dangerous act, that act being found in either of the two hypotheses which had been put in the summing up in the passages quoted above from pages 375 and 376 of the Appeal Book. 19   It has been necessary to set out in some detail the whole of the foregoing material in order to provide a fair context within which consideration can now be given to Levine J’s reasoning in the matter of sentence. 20   Levine J commenced his Honour’s remarks on sentence by observing, correctly in my respectful opinion, that the jury’s verdict of not guilty of murder but guilty of manslaughter: “………….. reflects the failure of the Crown to prove the required intent for the crime of murder, and the Crown’s success in negativing accident”. 21   His Honour then continued as follows:

“The basis upon which manslaughter was left to the jury was unlawful and dangerous act. I am satisfied beyond reasonable doubt that that act was the continued maintenance in his hand of the knife after the pause in what had been a violent scuffle between the prisoner and his partner which had earlier erupted between them on the morning in question.” [Appeal Book 413]

22   His Honour went on to say that he was not prepared to find beyond reasonable doubt that the respondent had struck the deceased with a beer bottle. 23   It is now submitted for the Crown that Levine J defined the relevant unlawful and dangerous act in a way that: “………… inappropriately minimised the objective seriousness of the Respondent’s conduct ……………..”. It is submitted that the verdict returned by the jury: “……… necessarily reflects the jury’s acceptance of Ms Dennis’ version that the Respondent obtained and then presented the knife to the deceased. ………….The Respondent’s assertion at trial of having pointed the knife at himself followed by misadventure ……………must have been rejected”. I do not accept these submissions of the Crown. As has been earlier herein explained, the issue of manslaughter by an unlawful and dangerous act was left to the jury, and that with the acquiescence of the Crown Prosecutor at trial, upon two alternative bases, one of which was the very basis adopted by Levine J. The two bases thus left to the jury were true alternatives. The evidence at trial, as Levine J himself pointed out during the course of the applications for further directions, did not permit of some subtle interweaving of the two alternative versions. Either the respondent deliberately presented the point of the knife to the chest of the deceased, or he did not. If the latter, then the alternative hypothesis put to the jury, being the hypothesis subsequently adopted by Levine J for the purpose of sentencing, was in my opinion undoubtedly open to his Honour in that latter connection. 24   It is submitted for the Crown that Levine J failed to take a sufficiently stern view of the objective gravity of the offence of which the respondent was convicted by the jury. It is submitted, in particular, that his Honour did not give sufficient weight to the fact that the crime had involved the unlawful and dangerous handling of a knife. 25   In my opinion, these criticisms have not been made good. It is not necessary, I think, to quote further extensive passages from the remarks on sentence. It is, I think, sufficient to say that I have read with care the remarks on sentence, and it seems to me that Levine J was entirely aware of the objective gravity of the facts and circumstances surrounding the death of the deceased. 26   It is submitted that Levine J erred in finding, as his Honour did, that the respondent had been, in the immediate aftermath of the stabbing, genuinely remorseful for what had happened. 27   The particular portion of the remarks on sentence at which this criticism is levelled consists of a bare statement by his Honour: “I accept that the prisoner was immediately remorseful for what he did, for what happened, for which he is entitled to full credit notwithstanding his not guilty plea”. [Appeal Book at 414] 28   It is submitted that this finding does not sit comfortably with the undoubted fact that the respondent, in the immediate aftermath of the stabbing, told lies to the investigating police. It seems to me that the making of this particular assessment of the respondent’s attitude was one which the primary Judge was much better placed than this Court to make. I am not prepared to say, on the basis of the material in the appeal papers, that Levine J was not entitled to come to that conclusion. 29   It is submitted, further, that in addition to the suggested patent errors to which I have referred, there was latent error in the sentence imposed, in that the sentence is, on its face, below the minimum point of an acceptable range of sentences for a manslaughter of the kind here in question. 30   I do not accept that submission. Levine J was, in my respectful opinion, entitled to find, as his Honour did, that there were very substantial subjective features of the respondent’s individual case; and that those subjective features entitled the respondent to a proper mitigation of what might otherwise have been thought to be an appropriate sentence. The relationship between the respondent and the deceased was, as I have earlier herein noted, a volatile one. It was, essentially, dysfunctional. It was marked by violence and drunkenness. It was in its incidents, and it has been in its consequences, tragic for everybody touched by it. It is my own view that a somewhat more severe sentence might have been imposed without thereby attracting the appellate intervention of this Court. That is not, however, at all the same thing as saying that the sentence in fact imposed fell manifestly below the minimum point of a proper range.

31   For the whole of the foregoing reasons, I am of the opinion that the Crown appeal against sentence should be dismissed.

IN THE COURT OF
CRIMINAL APPEAL

60434/99

SULLY J
CARRUTHERS AJ
SMART AJ

Tuesday 29 February 2000

REGINA v Stephen SHERRY

JUDGMENT

32   CARRUTHERS AJ: I agree with Smart AJ.

IN THE COURT OF
CRIMINAL APPEAL

60434/99

SULLY J
CARRUTHERS AJ
SMART AJ

Tuesday 29 February 2000

REGINA v Stephen SHERRY

JUDGMENT

33   SMART AJ: The Director of Public Prosecutions appeals against the alleged inadequacy of a sentence comprising a minimum term of 2-1/2 years and an additional term of 2-1/2 years imposed on Mr Sherry following his conviction of the manslaughter of his former de facto wife. He was acquitted of the charge of murder. 34   In late 1991 Mr Sherry commenced a relationship with the deceased (Mary). That relationship continued with breaks up until her death on 16 October 1997. At that time they were living in separate premises. Both had major problems with alcohol and had dismal existences. They had two children, a daughter called Trinity born on 21 November 1995 and a son called Ben born in June 1997. The deceased and the two children spent the night of 15 October 1997 in a bedroom at the Post Office Hotel, South Grafton. 35   About 6.00am on 16 October 1997 Mr Sherry went to the home of Ms R. Dennis. She too had problems with alcohol. About 6.15 am they were on the balcony talking. Mr Sherry left to see a man called Herb who was walking across the Hotel's carpark. As Mr Sherry walked across the carpark he met Herb and subsequently the deceased. She and Mr Sherry had a heated conversation. She did not have the children with her. Mr Sherry asked about the children and was told that they were upstairs in the hotel. He told the deceased to remove the children from the Hotel and take them home. He remonstrated with her about leaving the children upstairs in the hotel and locked in a room. Mr Sherry returned to Ms Dennis' home and the deceased went back to the hotel. A little later the deceased, with her daughter, walked across the carpark and entered Ms Dennis' home. 36   Mr Sherry inquired about Ben's whereabouts and was told by the deceased "You're the father, you can go and get him." He retorted. He went back to the hotel and collected Ben. He was on a bed in a room upstairs, screaming. He had a drink with a friend in the bar. Mr Sherry returned to the home of Ms Dennis, with Ben in his pram. 37   According to Ms Dennis, Mr Sherry asked the deceased to come outside as he wanted to discuss a couple of things with her. The deceased declined. He told her to get the smart look off her face. He slammed his open hand around her throat. Her head went back with some force over the top of the lounge on which she was seated. The deceased re-gathered and started to come forward. Mr Sherry punched her a number of times. She grabbed him by the hair and pulled some of his hair out. Ms Dennis with the assistance of another man extricated Trinity. Ms Dennis said that she screamed out to Mr Sherry to leave. Next Mr Sherry struck the deceased about the head with a beer bottle around the temple. Ms Dennis said that she went to the telephone and dialled triple 0. Mr Sherry took a couple of steps towards her. Ms Dennis said that she was terrified. Mr Sherry punched the deceased again to the head several times. Ms Dennis said that she telephoned the deceased's sister, Ms S. Cox. She saw Mr Sherry hit the deceased again. 38   Ms Dennis said that the deceased entered the kitchen and moved quickly around it. Ultimately, he pulled a knife out of a holder. Holding the knife he came across the living room to the deceased who was still sitting on the green lounge. He held the knife in the centre of her chest. The knife was straight out and straight on. He was very close to the deceased. Ms Dennis cried out "Steve, don't". She turned to speak to Ms Cox on the telephone again. Ms Dennis next noticed the deceased on her feet but staggering. Ms Dennis noticed blood around the deceased's chest and on her hand. Ms Dennis grabbed Ben and ran out the back door. She had Mr Roberts rescue her daughter. 39   In cross-examination she agreed that on earlier occasions she had given a slightly different sequence of events. She explained this by saying that she was in shock. She affirmed that what she had said in Court was correct. She would not concede that the deceased's pulling of Mr Sherry's hair started before he threw any punches. She said that all of Mr Sherry's blows were directed to around the head of the deceased. She denied that Mr Sherry had pointed the knife at his own chest and not at the deceased's chest. 40   Mr Sherry said that when, upon his return to Ms Dennis' home with Ben, the deceased declined to go outside and speak with him, he pushed her on the forehead and told her to wake up to herself. She grabbed his hair with both hands. He said that this hurt, that he tried to pull away and that he grabbed hold of her hands. A scuffle ensued. He managed to get away but she had pulled out some chunks of his hair. He heard Ms Dennis say "I'm going to call the cops on you." He said that on hearing this he went to the kitchen area of the house. He grabbed a knife from its sheath and came back towards the deceased and stood in front of her. She was still seated on the lounge. He said that he bent over, put his hand on her shoulder, held the knife towards himself and told her that he was sick of it and her. He indicated that he had the knife towards his stomach. With her left arm she grabbed his right arm and tried to push that arm away. His arm went up. She came forward. He had been pulling the knife towards himself. His grip on the knife released. The next thing which he said he remembered was the deceased looking up at him. The transcript description of events in Mr Sherry's examination reads:

"…She had been sitting back like that (indicated) and then she moved forward on the seat as if to get up, pushed me away."

Mr Sherry said that when the knife came down the deceased was still sitting on the seat. The transcript reads:

"Q. What happened to the knife when it came down?
A. Mary looked up at me like that (indicated) and I threw the knife, and it was the look on her face and I looked behind her hair and I seen blood coming out of this area here (indicated)."

Mr Sherry said that he did not feel the knife go into Mary. The deceased stood up and started to go towards the door. He supported her as she walked in the room. As she sank to the floor she hit her head on an internal pole. The appellant asserted that he was reasonably drunk at the time of the incident and that he was in shock after it.

41   Mr Sherry said that he was concerned about his children and that he pleaded with her but she would not listen to him. He was trying to explain to her what she was doing to him. He said when he had the knife he was not going to kill himself "or anything." He was saying, "Can't you see?" He added "I'm sick of it. I will end up knocking myself." He had no intention of stabbing the deceased. 42   Mr Sherry said that the version which he gave to the ambulance service that the deceased fell on a knife was not true. He also said that the version which he gave the police in the recorded interview as to how the knife got into the deceased's neck was not true. He denied ever having the knife in his hand. Further, at one stage he denied ever picking up the knife and approaching the deceased with it. He explained his falsehoods thus:

"I was scared at the time. Like I said I was at a loss to explain how it happened at the time to the police. I don't really trust the police or that. I found them intimidating."

He gave details of another encounter with the police as to the custody of his daughter in which they allegedly behaved as bullies.

43   In cross-examination the Crown challenged much of Mr Sherry's evidence. As to his assertion that he was reasonably drunk it elicited that he told the police in his interview that at the time of the incident that he was sober. He agreed that he was feeling a little the worse for wear from what he had to drink on the day before the incident and the relatively small amount of alcohol he had had that day. Mr Sherry conceded that he lost his temper when Ms Dennis said that she was going to call the police. 44   Mr Sherry conceded that he was understandably upset because of the deceased's neglect of his children. He describe himself as concerned about her care of the children. At one point he said "I was angry because I was saying to Mary, "Look at Benjamin". He asked her to look at Ben's eyes. Mr Sherry blamed her for the situation. 45   As to his evidence that he felt intimidated Mr Sherry was taken through the police interview and conceded that they appeared to treat him with civility and sympathy. Mr Sherry said that he had long held the view that the police were intimidating and that he felt that way during his interview. 46   When asked how the deceased received her injuries he replied "Only we went over the other lounge, eh. As we flew on to that it seemed to happen then, eh." He said that there was blood coming from her head and that "there is a knife there in the lounge or something, eh." Mr Sherry agreed that he had told the police some deliberate lies. They were lies on important matters relating to the incident and the knife. 47   Mr Sherry agreed that while he was in the kitchen looking for a knife the deceased was sitting quietly on the lounge. Galvanised by Ms Dennis stating the she was calling the police, Mr Sherry agreed that he went to the kitchen deliberately to get a knife. Mr Sherry said that he felt like stabbing himself in the stomach. Mr Sherry insisted that he pointed the knife at his own chest. 48   Dr A.D. Cala, the forensic pathologist who conducted the post-mortem examination said there was a 50mm stab wound in the left side of the neck passing into and through the lobe of the left ear and involving the lower part and the inner part of the left ear. The wound track passed through the left jugular vein and the left common caratoid artery which was almost completely cut through. There was extensive bleeding. The wound track resulted in a 10mm diameter stab wound to the back of the mouth. There was a 5mm diameter stab wound in the food pipe. These various injuries were part of the same penetrating stab wound. The approximate depth of the stab wound from the skin to the oesophagus was 170mm. Dr Cala thought that the most likely explanation was that the knife came down in an arc or swinging action. 49   Dr Cala observed a bruise in the left temple area of the head, a bruise about 20 x 15mm about 90mm above the top of the left ear. There were a number of bruises on the right arm. There were also bruises on the left arm. In both cases some of the bruises were of medium size and some were relatively small. There was bruising on both legs. There was bruising in places around the head and scalp but there were no skull fractures. The bruising was consistent with the application of blunt force. 50   In cross-examination Dr Cala agreed that the stab wound would have required the application of a moderate degree of force. More than a small amount of force was required. It would have been difficult if not impossible to inflict the wound in question if the knife was in some one's hand and facing upwards as opposed to downwards. In cross-examination he said that it was theoretically possible that the stabbing injury could have been inflicted if the deceased arose from a seated position and pushed the knife away as she did so with the accused's grip on the knife loosening. The knife had to be wielded in a downwards fashion. 51   In summing up as to manslaughter, the judge explained that to present a knife to a person's chest is unlawful. He explained that an act is dangerous when an ordinary reasonable person would realise was an act which exposed another person to an appreciable risk of serious injury (SU 21 + 36). As to manslaughter the judge said:

"…it is of importance… that the knife was obtained from the kitchen and presented to the chest of the deceased in an environment of conflict, an unlawful and dangerous act. That is the knife being pointed at her chest. That is a very important area of fact for you to resolve.
On the other hand as I understand the Crown's position in relation to manslaughter even if he came out and pointed the knife at his own chest but the scuffle then broke out and continued and he maintained the knife in his hand, he didn't drop it, in those circumstances his continued holding of it became an unlawful and dangerous act. The knife went into the neck, the deceased died and the accused if you are satisfied beyond reasonable doubt of all those things, would not be guilty of murder but guilty of manslaughter."
If the Crown, however, has failed beyond reasonable doubt to exclude the accused's account, especially the nub of his account "I put the knife to my chest to make a point to her. I didn't intend to kill myself but I put it to my chest to make a point to her as to how seriously I viewed her conduct in relation to the children". If the Crown fails beyond reasonable doubt to exclude that, or if you are in some doubt about it you cannot convict the accused of manslaughter."

52   During their deliberations the jury asked this question:

"If we accept that the Crown has failed to disprove Mr Sherry's version of the stabbing and we consequently then accept Mr Sherry's version does it then follow by law that Mr Sherry is legally not guilty? Or, does the fact that he retained the knife in his grasp after his arm had been pushed away by the victim open him to a charge of manslaughter by virtue of putting the victim in danger?"

The judge replied:

"The answer to the first part of that question is yes. If the Crown has failed to disprove beyond reasonable doubt Mr Sherry's version legally Mr Sherry is not guilty and your verdict according to law will be not guilty. The answer to the second part of your question is no, manslaughter cannot be found because the retaining of the knife after the arm was pushed away was part of the accident on which the accused relies and which the Crown must disprove beyond reasonable doubt. The only way the second part of the question can be answered yes is if you are satisfied beyond reasonable doubt that the Crown has excluded the issue of accident.
In short the answer to the two parts of your question is as follows: Yes to the first question, no to the second."

53   In his remarks upon sentence the judge said:

The basis upon which manslaughter was left to the jury was unlawful and dangerous act. I am satisfied that that act was the continued maintenance in his hand of the knife after the pause in what had been a violent scuffle between the prisoner and his partner which had earlier erupted between them on the morning in question."

The judge further said:

"…there was evidence to the effect that the accused presented the knife to the chest of the deceased on the one hand, and on the other, presented it to his own chest. Safely, however, I am of the view that beyond reasonable doubt the conclusion reached by me is one available to be arrived at."

54   With respect, I do not know what this passage means. The judge does not state whether the knife was ever pointed at the deceased or whether it was always pointed at his chest. The judge was not satisfied beyond reasonable doubt as to the use of the bottle to inflict the blow to the head, 55   The judge recognised that the offence was serious and that a human life had been lost. He deplored the use of a knife. He noted that the deceased and Mr Sherry had had a turbulent relationship and that drink generally played a great part in their lives. 56   The judge accepted that Mr Sherry was immediately remorseful for what happened. It was evident that from the earliest point Mr Sherry was anxious to exculpate himself from criminal liability and told lies to do so. He was remorseful for what had happened but anxious to avoid criminal responsibility. 57   Mr Sherry was born on 21 February 1961. The judge found that Mr Sherry had been plagued by alcohol since the age of 12. The judge was satisfied that his lengthy criminal record was explicable by reference to this. That record extends back to 1979 and contains 22 separate entries, many of which involve two or more offences. The offences were generally at the lower end of the criminal scale. There were numerous fines, some recognizances and two Community Services orders. There had been no custodial sentence. 58   The judge attached considerable weight to Dr Lucas' report and was satisfied that Mr Sherry's alcohol abuse was contributed to by family and personal disasters. Dr Lucas thought that Mr Sherry's prognosis will depend on whether he is able to remain abstinent from alcohol and that given his history he would require considerable willpower and assistance to do so. It appeared from Dr Lucas' report that Mr Sherry had dried out while in gaol awaiting his trial. He told Mr Lucas that he now felt a different person and in control of his life. 59   Dr Lucas recorded "Neuropsychological testing strongly suggestive of brain damage, probably due to alcohol, with deficits in learning and memory retrieval." This deficit will not help in his fight against alcoholism. 60   The judge emphasised Mr Sherry's concern for his children several times during his remarks on sentence. It weighed heavily with him. Up to the date of the offence that concern had not been sufficient to persuade Mr Sherry to give up drinking to excess. On any view Mr Sherry's prospects of rehabilitation could only be described as guarded. 61   The judge described the subjective circumstances of Mr Sherry as compelling. With respect, I do not regard that description as correct. He has, however, led an unfortunate life and it is a pity that he surrendered to alcohol and has been unemployed for a long period. His plight attracts sympathy. 62   The judge found two special circumstances warranting the allowance of additional time for the additional term. The judge said:

"…there is a special need for intense alcohol abuse rehabilitation to be continued, monitored and supervised upon release."

and

"…it is vital in the prisoner's interests that there be put in place upon his release a regime for the establishment, it is to be hoped, of a relationship with his children whose interests, I add on the material available to me, would equally be served. Clearly a major component in this catastrophe was the prisoner's justifiable concern for the welfare of his children."

63   Mr Sherry told Dr Lucas that the children kept him going. That is readily understood. The re-establishment of a relationship between Mr Sherry and his children is a sensitive matter of some complexity to be handled as thought appropriate at a later date and in the best interests of the children in the circumstances then prevailing. He did kill their mother. 64   The verdict of the jury negatived accident. Even on the evidence of the defendant after a struggle or fight with the deceased he left her sitting on the lounge. He went looking for a knife and took one from its sheath. He was aroused by Ms Dennis' intention to call the police and dialling triple 0. He walked over to where his wife was sitting with the knife. He was standing very close to her. She must have been terrified. Proceeding on the basis that he pointed the knife at himself (in the chest area) it was very dangerous to hold the knife so close to her. The knife entered her and travelled downwards. The whole incident owed its genesis to the conduct of Mr Sherry and the stabbing must be seen in its disturbing context. It is a mistake to take a microscopic view of the stabbing. 65   The sentence imposed and especially the minimum term, was manifestly inadequate and does not reflect the objective gravity of the offence which took a human life. The sentence imposed gives undue weight to the subjective features and insufficient weight to the serious objective features.. 66   Turning to the question of re-sentencing Mr Sherry relies on his affidavit of 28 January 2000 and the affidavit of Ms C J Farnan of 1 February 2000 which annexes a copy of the report of 29 November 1999 of Ms C. A. Drayden-Thompson. Mr Sherry points out that he was in custody from 16 October 1997 onwards and that for the 21 months prior to sentencing he was in maximum security. He is now in minimum security and has attended all the courses available. He has also been employed in the sugar bag factory. There has been a shortage of drug and alcohol counselling at Grafton Gaol. Under his present sentence Mr Sherry is eligible for release on parole on 16 April 2000. Mr Sherry has stated that upon his release on parole he intends to live with his parents at Tweed Heads and when he is established, to resume the care of his children. 67   The report of Ms Drayden-Thompson, the Psychologist in Charge at Grafton Gaol states that Mr Sherry "has demonstrated a significant improvement in his coping skills and appears to have the commitment to remain alcohol free." Ms Drayden-Thompson recommended a reduction in classification to C1. It was desirable to see how Mr Sherry performed in minimum security. Ms Farnan has deposed to speaking to Ms Drayden-Thompson on 27 January 2000 and being advised that Mr Sherry was continuing to make progress towards his release. 68   I have attached considerable weight to Mr Sherry being eligible for release on parole on 16 April 2000 and the progress which he has made in prison. Those matters along with the matter of double jeopardy have led me to the view that a lesser sentence should be imposed than otherwise would be appropriate. I agree that there are special circumstances. After such a long addiction to alcohol Mr Sherry is going to need sustained supervision and assistance. Further, this is his first time in gaol. The lowest sentence which should be imposed, bearing in mind that this is a Crown appeal, is one of six years with a minimum term of 3 years 6 months. 69   I propose the following orders:

1. Crown appeal allowed; sentence quashed.
2. In lieu of the sentence imposed Stephen Sherry is sentenced to penal servitude for 6 years comprising a minimum term of 3 years 6 months starting on 16 October 1997 and ending on 15 April 2001 and an additional term of 2 years 6 months starting on 16 April 2001 and ending on 15 October 2003.

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