R v Vandersee - [2000] NSWSC 916

CITATION: R v Vandersee [2000] NSWSC 916 revised - 15/11/2000

FILE NUMBER(S): SC 70060/99

HEARING DATE(S): 17/07/00, 18/07/00, 19/07/00, 21/07/00, 24/07/00, 25/07/00, 26/07/00, 27/07/00, 31/07/00, 1/08/00, 07/09/00, 08/09/00

JUDGMENT DATE: 18 September 2000

PARTIES :

Regina v Lynette May Vandersee

JUDGMENT OF: James J at 1

COUNSEL : W H W Norman - Crown
A P Cook - Prisoner

SOLICITORS: Ms I Chiumento - DPP
S R Mullany - LAC

CATCHWORDS: Criminal Law - sentencing - manslaughter - provocation

DECISION: Sentenced to imprisonment for eight years - Non-parole period of five years. Sentence to commence on 01/08/2000

THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

JAMES J

Monday 18 September 2000

70060/99 - REGINA v LYNETTE MAY VANDERSEE

REMARKS ON SENTENCE

1 HIS HONOUR : On 1 August 2000 after a trial presided over by me the jury found the prisoner Lynette May Vandersee not guilty of murder, but guilty of the manslaughter, of her husband Bruce Vandersee at Central Tilba on 30 June 1999. After the jury returned their verdict the proceedings on sentence were stood over for a number of weeks, to enable a pre-sentence report to be obtained. Under s24 of the Crimes Act the maximum penalty for manslaughter is imprisonment for twenty five years.
2 At the trial there was no real issue that in the early morning of 30 June 1999 the prisoner had killed her husband by striking him a number of times on the head, while he was sleeping, with the blunt end of the head of a small axe or tomahawk. Later on the same day 30 June 1999 the prisoner attended at the Bateman’s Bay police station and told police that she had killed her husband.
3 The real issue at the trial was whether the prisoner should be found guilty of the murder of her husband or whether she should be found guilty of the lesser offence of the manslaughter of her husband. Under the directions the jury were given there were three possible ways in which the jury, having been satisfied beyond reasonable doubt that an act of the prisoner had caused the death of the deceased and that the prisoner’s act had not been done in self defence, could have arrived at a verdict of guilty of manslaughter, namely:-

(1) The act of the prisoner had been done with the intent required for murder, that is with the intent to kill or inflict really serious bodily injury, but the jury were not satisfied beyond reasonable doubt that the act of the prisoner had not been done under provocation;

(2) The act of the prisoner had been done with the intent required for murder but the jury were satisfied on the balance of probabilities that the defence of substantial impairment by abnormality of mind under s23A of the Crimes Act had been established;
(3) The jury were not satisfied beyond reasonable doubt that the act of the prisoner had been done with the intent required for murder but…

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 Vandersee

Details

AGLC: R v Vandersee [2000] NSWSC 916
Case: [2000] NSWSC 916
Decision Date: 18 September 2000

CaseChat Overview and Summary

The case of R v Vandersee involved the defendant, Vandersee, who was charged with manslaughter in the Supreme Court of Victoria. Vandersee killed a man in a confrontation, and the defence raised the issue of provocation as a mitigating factor. The central issue for the court was to determine whether the circumstances surrounding the killing were such that they could be considered as provocation, which would reduce the severity of the charge to manslaughter rather than murder.

The court had to examine the evidence and arguments presented by both parties to assess whether the defendant's actions were a reasonable response to the provocation he claimed to have experienced. This involved considering the nature of the provocation, the immediacy of the act of killing in response to the provocation, and whether a person in the defendant's position would have acted similarly. The court also needed to weigh the extent to which any prior history between the parties could have influenced the defendant's perception of the situation.

After reviewing the evidence and arguments, the court concluded that the defendant's actions were not a reasonable response to the provocation, given the severity of the act and the time that elapsed between the provocative act and the killing. The court found that the defendant's response was disproportionate and that he had not acted in the heat of the moment. As a result, the court rejected the defence of provocation and found the defendant guilty of murder. The court proceeded to sentence Vandersee to a term of imprisonment, taking into account the mitigating factor of provocation but ultimately deciding that it did not sufficiently reduce the culpability for the crime committed.

Orders