R v Uttley
[2009] VSC 79
•16 March 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1708 of 2008
| THE QUEEN |
| v |
| MARGARET ERICA UTTLEY |
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JUDGE: | OSBORN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2, 3, 4 and 11 March 2009 | |
DATE OF SENTENCE: | 16 March 2009 | |
CASE MAY BE CITED AS: | R v Uttley | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 79 | |
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CRIMINAL LAW – Manslaughter – Plea of guilty – Offender confronted by victim in early hours of the morning – Killing with weapon taken from victim – No murderous intent – Personal circumstances – Remorse – 5 years imprisonment – Minimum non‑parole period of 2 years
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P Rose SC with Mr B Kissane | Office of Public Prosecutions |
| For the Accused | Mr P Dunn QC with Mr J Hannebery | Tony Hannebery Lawyers |
HIS HONOUR:
Margaret Uttley you have pleaded guilty before me to the manslaughter of your husband Stephen Henry Uttley at Tarneit on 11 October 2000.
You married your husband in May 1975 when you were both aged 20, more than 25 years before his death. There were four children of the marriage: Lisa born in 1976, Carly born in 1978, Mark born in 1982, and Hayley born in 1985.
You lived on a farm at Tarneit which had been purchased by Mr Uttley’s mother and was owned by a family trust for the benefit of Stephen and his family.
On the night of Stephen’s death you had attended a line dancing group in which you participated once or twice a week. On this occasion you came home later than usual arriving at about 11:30 pm.
At about 2:00 am you were woken by Stephen, who appeared drunk and was in possession of a shotgun and threatened to shoot you. Stephen was an alcoholic whose alcoholism and depression had deepened following his mother’s death in 1998. He had a longstanding habit of drinking heavily into the night.
He was of relatively slight build and you struggled with him and disarmed him, grabbing the gun in the semi‑darkness, as Stephen lost balance and fell over the bed.
You then pointed the gun at Stephen as he moved back towards you. You squeezed the trigger of the gun causing it to discharge. The shot struck Stephen in the head. You told police that when you caused the gun to discharge, you did not intend to shoot Stephen, but you were only a short distance from him. You told police you were just hoping to stop him.
The Crown has accepted your plea to manslaughter on the basis that having regard to the circumstantial evidence as a whole, and in particular prior relationship evidence, your account can be accepted as truthful on the balance of probabilities. In particular the Crown accepts that it cannot prove that you acted with murderous intent.
It follows that your actions are to be characterised as manslaughter by way of unlawful and dangerous act, that is resulting from an assault, with the shotgun, done without the intent requisite for the crime of murder.
Following the killing of Mr Uttley, you concealed the fact of his death, first from your children, two of whom were sleeping in the house, and then from the world at large.
In addition you disposed of your husband’s body by burning it and burying the remains.
You told protracted (although somewhat inconsistent) lies about your husband’s departure to the Northern Territory.
It was not until you were ultimately confronted in August 2007 by police, with the circumstantial case pointing to your responsibility for your husband’s disappearance, that you admitted what you had done.
There are a series of associated factors which aggravate the criminality of your conduct. First, the long concealment of Mr Uttley’s death caused protracted uncertainty and distress to members of his family. Secondly, the desecration of his body was such as to reduce it to no more than fragments of bone. Thirdly, you did not acknowledge your responsibility for your husband’s death, until in effect you were confronted with a police position adverse to you.
The victim impact statements of Mr Uttley’s sisters, aunt and brother‑in‑law confirm what might otherwise have been inferred, namely that for his family and friends, his unexplained disappearance and the ultimate news of his manner of death have been painful and disturbing.
As against these matters there are a series of mitigating circumstances to which your counsel have pointed. They embrace considerations relating to the facts of the case and to your personal situation.
One. You have no prior convictions (or indeed convictions since the offence) and have lived a hardworking life within the Werribee community, caring for a family of four, assisting your husband to operate the farm on which you raised your family, and working in a series of jobs since.
Two. You ultimately co‑operated with police and gave them a full circumstantial account of what occurred, at the time of your husband’s death, which was subsequently corroborated by circumstances known only to you, such as the place of burning and disposal of your husband’s body and the fact that he was shot in the head.
Three. You have pleaded guilty to the charge of manslaughter in circumstances where there were some prospects you might be acquitted entirely by a jury. Your plea must be accorded substantial weight in these circumstances. I accept that it reflects remorse and that it has saved the community the cost and difficulty of a contested trial.
Four. Manslaughter is an offence which embraces a series of different categories of circumstances in which the offender unlawfully causes death. In your own case it is accepted that you did not shoot your husband, either with the intent to kill him or with the intent to cause really serious injury. (I should add that I am satisfied having regard to the circumstances of the case as a whole, including the fact two teenage children were sleeping in the house at the time, that the killing was not premeditated.)
The absence of an intention to kill or cause really serious injury is a factor bearing significantly upon the moral culpability of your actions. In the present case you killed your husband in circumstances precipitated by him when he was drunk in the early hours of the morning, and you were suddenly awakened and threatened.
When you took control of the shotgun you failed to make it safe and failed to avoid using it yourself, but the circumstances in which you came to do so, were not fundamentally of your making and did not result in the crystallisation of murderous intent on your part. I accept that in these circumstances your conduct falls at the lower end of the range of criminality embraced by the crime of manslaughter.
Five. The decision you made to conceal your husband’s death, was made in the shocking aftermath of the shooting of your husband of 25 years, and in effect the final failure of a marriage in which your husband had ultimately attacked you at night, when in the grips of longstanding alcoholism and depression. It is not surprising that your reactions were not dispassionately rational, however misguided they now seem.
Six. Your husband’s death did not advantage you financially and you have since worked commendably hard to provide for your children.
Seven. The period since your husband’s death has not been without stress. You took an overdose of medication and attempted suicide when faced with apprehension by the police. You also have spent a substantial period of time in custody before you were granted bail.
Eight. Since you have been granted bail you have displayed a continuing capacity to act in a positive manner in the role of a mother, grandmother and carer for your own mother, within an extended family. In turn you have the support of that family.
Nine. I am satisfied your prospects of rehabilitation are good and there is little weight to be given to the need for specific deterrence.
Your plea was supported by a series of references from employers, friends, acquaintances and family members. They describe your positive qualities as a mother, a worker and a community member. You came to this country with your parents at the age of seven and you were educated only to the age of 15. But it is apparent that you have intelligence and have worked hard to build a life for yourself and your family in your community.
In addition, oral evidence was called from an officer of the Department of Human Services who is the former wife of your present partner and the mother of a son, who spends recurrent time with you during access visits to his father. This evidence was particularly compelling given that it was adduced from a person who was independent and potentially critical of your capabilities. She stated in part:
I find Margaret to be a very kind person. She’s very other centred. She is a good mother to her four children and also to my son, Joel, and to Lina’s daughter and to her grand-daughter, Brooke, she has been involved in her care, and, yes, she is a very kind and caring person…
Further evidence was also called from one of your neighbours at Tarneit to similar effect, confirming the material contained in the written references submitted to me.
The evidence as a whole points up the fact that the killing of your husband was a tragic criminal mistake in a life that has otherwise had much to commend it.
The evidence also supports the view that you have much to contribute to your extended family and in turn to the community, and that there is a public interest in allowing you to continue these roles without undue interruption.
This said the offence to which you have pleaded guilty is a serious one, in respect of which Parliament has fixed a maximum penalty of 20 years’ imprisonment.
Domestic violence is a scourge upon our community, and killings within the home must be met by the criminal law with sanctions which reflect the repugnance to the community of behaviour of this kind. Such sanctions must also give weight to considerations of general deterrence. The law must protect all members of the community. The fact that Mr Uttley was an alcoholic suffering from depression and it seems not greatly loved by his immediate family, does not mean that his death can be treated as the loss of a life of no value.
Ultimately however I must impose a sentence which is just in all the circumstances of the case and gives due weight to the factors that I have referred to including those which favour mercy.
Mrs Uttley in all the circumstances of your case I sentence you to five years’ imprisonment. I fix a minimum non‑parole period of two years. I declare that you have already served a period of 121 days pre‑sentence detention.
I declare pursuant to s 6AAA of the Sentencing Act 1991 that but for your plea of guilty I would have sentenced you to eight years’ imprisonment with a minimum non‑parole period of five years.
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