R v Wetherall

[2006] NSWSC 486

CITATION:	R v Wetherall [2006] NSWSC 486
HEARING DATE(S):	8,9,10,11,12,15,16, 18 May 2006
JUDGMENT DATE :	18 May 2006
JUDGMENT OF:	Patten AJ at 1
DECISION:	See paragraph 67
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Quartly (1986) 22 A Crim R 252
PARTIES:	The Queen Denise Lynette Wetherall - Defendant
FILE NUMBER(S):	SC 2005/1575SCRM
COUNSEL:	Mr S Vandogen - Crown Mr J Stratton SC - Defendant
SOLICITORS:	Director of Public Prosecutions Legal Aid - Defendant

- 18 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

Patten AJ

18 May 2006

2005/1575

SENTENCE:

1 HIS HONOUR: On 8 May 2006, Denise Lynette Weatherall (to whom I will hereafter refer as the offender) pleaded not guilty when arraigned before me to a charge that on 8 February 2005 at Canterbury she did murder Brian William Wright.

2 A jury was empanelled and the trial proceeded to the extent that by Tuesday, 16 May, the case for the Crown and the case for the accused had concluded. In accordance with a ruling, which I gave during the course of the trial, the Crown indicated an intention to present a case in reply. However, before any evidence in reply was called, I was informed that, in effect, agreement had been reached between the Crown and the offender that she would be re-arraigned. On such re-arraignment the offender pleaded not guilty of murder, but guilty of manslaughter. That plea was accepted by the Crown in discharge of the indictment. Pursuant to s 157 of the Criminal ProcedureAct I accepted the plea of guilty to manslaughter, discharged the jury from giving a verdict and found the offender guilty of the offence of manslaughter.

3 Later in these reasons I will need to refer to the circumstances which led the Crown to accept the plea of guilty to manslaughter in satisfaction of the indictment, as according to the evidence before the Court it had declined to do so when such a plea was offered on an earlier occasion.

4 The primary facts concerning the killing of Mr Wright by the offender are not in dispute. They may be shortly stated: Somewhere around 10pm on the night of 8 February 2005 the offender armed herself with a kitchen knife, left her home at 52 Richard Avenue, Earlwood, drove to the vicinity of the Canterbury Hotel, entered the hotel and approached the victim, Mr Wright, who was drinking with some acquaintances. After a short conversation, the contents of which are not before the Court, the offender produced the knife which had been concealed in her clothing and stabbed the victim with it.

5 The knife entered the right side of his chest, passed between the third and fourth ribs on the right, entered the pericardial sac surrounding the heart, passed through the right ventricle of the heart and ended in the diaphragm of the chest itself. The wound proved fatal. It was inflicted with what Dr Johan Duflou, the forensic pathologist called in the Crown case, described as moderate force and led to the death of the victim some time shortly afterwards.

6 In order to place the bare facts, I have recited in their context, it is necessary that I make reference in some detail to evidence given at the trial. In that connection it is convenient first to refer to the testimony of the offender herself. In my assessment she was a truthful and reliable witness and I accept what she said.

7 An Australian aboriginal, she was born at Collarenebri on 10 July 1966, the oldest of six siblings. The family moved to Gunnedah when she was six and to Sydney when she was about eight. Her secondary education was at Enmore High School where she completed Year 12. When she was nine she was raped by a man whom she called Uncle Rex. He threatened her with violence if she reported what he had done. Between the ages of 10 and 12 she was sexually assaulted by her grandfather. When she was aged 14 she was raped by an uncle, as a consequence of which she became pregnant and subsequently gave birth to a male child who was immediately taken from her for adoption. As the uncle who raped her was still living with her family she did not tell her parents what had happened leaving them to think she was promiscuous. The emotional turmoil, which this would have caused, can only be imagined.

8 Shortly after this, when she was about 15, she met the victim Brian Wright, apparently commonly known as “Peachy”. When she was 16 they commenced to live together. In part her motivation was to escape from having to live in the same house as the uncle who raped her and fathered her child. With interruptions, the relationship between the offender and the victim continued until his death. During the course of it she experienced several miscarriages and by about 1991 concluded that she could not have further children. At about that time her sister, who was pregnant with her third child, said that she would not be able to look after it and proposed to the offender, as an alternative to adoption out, that she mother the child herself. The offender agreed and assumed the care of the child, Amanda, two days after she was born on 29 October 1991. Amanda called the offender “Mum” and the victim “Dad”, although it seems plain that at some stage she was told that her natural parents were the offender's sister and her husband.

9 As it happened the offender later conceived as a consequence of her relationship with the victim and in due course gave birth to Danielle, who is now aged nine being born on 24 February 1997.

Both the offender and the victim became heavy drinkers and on occasions the victim was violent towards her. Nonetheless, the relationship continued until a day in December 2003 when she learnt that Amanda had disclosed to a friend at school that she had been sexually assaulted by the victim, that this had been reported to the authorities and that Amanda had been interviewed by First Constable Natasha Fleeting. She said that when she learned of this she “went into shock” and, at first, found it impossible to believe as the victim was the only person to whom she had confided her own childhood sexual abuse. Later, when she confronted him he told her that he did not remember the incident because he was drunk, but added, "If she said it happened, then we taught her not to lie, then it's the truth." He also explained that in the dark he may have mistaken Amanda for the offender. He promised that there would be no repetition of his behaviour, either with Amanda or with Danielle.

10 However, the police took out an Apprehended Violence Order against Mr Wright, which operated for a period of 12 months from December 2003 and obliged him to remain away from Amanda. As a consequence, he moved out of the house. For a few months Amanda also moved away and stayed with her birth mother at Forbes. This arrangement, however, came to an end in May 2004 when Amanda decided she wanted to return to live in Sydney with the offender and Danielle and this was put into effect.

11 From May 2004 until February 2005, the offender lived with Amanda, Danielle and the offender's brother Ralph in the house at 52 Richard Avenue, Earlwood. In light of the terms of the Apprehended Violence Order there was no contact between the victim and Amanda, but apparently he was visited from time to time by the offender and Danielle.

12 After the Apprehended Violence Order expired in December 2004, although Mr Wright was not then living with the offender and the children, there were occasions from January 2005 when he would stay overnight. On those occasions the offender stipulated that Amanda sleep in her Uncle Ralph's room, he apparently being absent from the house, because it had a lock on the door and Amanda was directed to ensure that she locked the door before going to sleep. She also stipulated that the victim was only to stay overnight on Mondays because that was the day on which she refrained from drinking alcohol.

13 As it happened the precautions against any improper contact between Mr Wright and Amanda, which the offender thought she had in place, seem to have failed on the night of Sunday 6 February 2005, although she did not become aware of the extent of such failure until two days later. On the evening of 6 February the offender, at the victim's request, met him at the Campsie Hotel and drank with him there for some time. She had already been drinking during the day. At some stage they left the hotel and drove to the offender's home in her car, Mr Wright being the driver. The offender described herself as “very drunk”, but her understanding was that she would be dropped at 52 Richard Avenue and Mr Wright would then drive her car to his home. She said that she could not recall coming home and going bed that night, but at some stage woke up and got out of bed to go to the toilet. In the course of doing this, she unexpectedly found that the victim was asleep on the lounge. She aroused him and demanded to know what he was doing there. He told her that he had set out in her car to go home but had an accident and, as a consequence, had returned to the house and gone to sleep on the lounge. She expressed her annoyance, but Mr Wright appeared to go back to sleep. The offender then checked that Amanda was indeed sleeping in Ralph's room with the door locked. However, she decided to arouse Amanda so that she could accompany her on an inspection of the damaged car. After this she returned to her bedroom where Danielle was also asleep and left Amanda to return to the room with the lock on the door.

14 Both the offender and the victim remained at the house at 52 Richard Avenue, Earlwood during Monday 7 February and the victim stayed overnight sleeping on a mattress in the offender's room. In accordance with her usual practice the offender drank no alcohol on the Monday.

15 On Tuesday, 8 February 2005, she drove the victim to work. Later she met him by arrangement near the Canterbury Railway Station about 4pm when he gave her some money, which she used to buy beer from a bottle shop. He left her to go to the Canterbury Hotel. She went home, arriving at 4.40pm. Danielle was with her and Amanda was already at home. Once home, apart from feeding the children, the offender commenced to drink the beer which she had purchased. She drank four 800 millilitre bottles of beer that she had purchased from the bottle shop and then another four, one of which she had in the refrigerator and three, which she purchased from the nearby Earlwood Hotel. She said that it was not unusual for her to drink that sort of quantity.

16 About 8.30pm Amanda came to her as she was drinking in her bedroom and indicated that she had something serious to say. What Amanda had to say was that in the early hours of Monday 7 February the victim had once again sexually assaulted her. She said that she could not remember the details of the conversation, but she could remember that as a consequence, "I'm just sitting there crying and all I'm thinking is how could you do this, how could you let him come back". The offender says that she has no recollection of what happened thereafter. Her next memory is of being in the dock at Burwood Police Station. Since then she has been in custody.

17 It is next appropriate that I make reference to the evidence of Amanda Wright. As she was entitled, under the Children (Evidence) Act, she testified via closed circuit television from a remote location and her evidence-in-chief comprised, for the most part, the playing of her records of interview with Constable Natasha Fleeting on 11 December 2003 at Earlwood Public School, and on 21 February 2005 at Ashfield Police Station.

18 In the earlier interview Amanda told Constable Fleeting that she had been sexually assaulted by the victim the previous night. The interview was quite lengthy and detailed. It is unnecessary for me to recite those details, but suffice to say that, if true, they involved Mr Wright in the commission of a series of very serious sexual offences, including aggravated sexual assault within s 61J of the Crimes Act, an offence which carries a maximum penalty, on conviction, of imprisonment for 20 years.

19 The second interview with Constable Natasha Fleeting in February 2005 concerned the events of the night of 6/7 February 2005 and the night of Tuesday, 8 February 2005. As to the former, Amanda said that after she returned to her uncle's room having inspected the damaged car with her mother, she forget to lock the door, despite her mother's exhortation. Some time later Mr Wright entered the room woke her up, lay down beside her and then sexually assaulted her, ignoring her requests that he desist. Again, according to Amanda's evidence, a series of extremely serious sexual assaults were committed upon her, the detail of which I need not repeat. The episode ended when he made her lie on her stomach and then penetrated her, either with a finger or his penis. Again, on the face of Amanda's evidence, Mr Wright exposed himself to conviction for an offence under s 61J of the Crimes Act.

20 On the night of 8 February 2005, Amanda told her mother in detail what had occurred between herself and Mr Wright two nights earlier. What she told her mother, she said, appeared to make her very angry. She believed her mother then telephoned her father on his mobile telephone, but she did not overhear the conversation. Soon after the offender told her two children to go to sleep. They both got into their mother's bed where Danielle ordinarily slept in any event. Danielle did go to sleep within a few minutes, but Amanda stayed awake and heard her mother leave the house and drive away in her car.

21 A number of witnesses gave evidence as to the subsequent events at the Canterbury Hotel where the victim was killed. Those witnesses included two members of staff, a security officer and several patrons. The witness who, in my opinion, gave the most complete and reliable account was Ms Lisa Greech, although all the witnesses were in broad agreement as to what occurred within their particular observations. Ms Greech arrived at the hotel at about 8pm in company with her friend, Lisa Anderson. The two young women had been at a band rehearsal in Alexandria. Ms Greech had not been at the hotel previously and knew nobody in it. She and Ms Anderson ordered and consumed a meal of Chinese food from the kitchen and at about 9pm Ms Anderson introduced her to the victim whom she called Peachy. He joined the two women at the table at which they were sitting. Both the victim and Ms Anderson were drinking beer, but Ms Greech consumed only Coca Cola. The two women and the victim remained, from about 9pm onwards, at, or in the vicinity of, a table in the bar area of the hotel. During this time she said there were two calls on the victim's mobile telephone, one of which he ignored, but the other, at about 10pm, he answered and then left the table for about five minutes. He told the women that a person whom he described as his ex-wife was coming.

22 A short time after this Ms Greech saw a person, as it transpired, the offender approach the table. She came up to the right side of the victim and had a short conversation with him, which Ms Greech did not overhear. Ms Anderson sought to introduce herself to the offender and extended her hand, but the approach was ignored. Ms Greech then saw the offender lunge at the victim, probably twice, after which she saw blood on her hands. She realised that the offender was holding a knife. What next happened, according to Ms Greech, was that the victim stood up, as if to turn around but then collapsed to the floor on top of the offender, in the course of which the knife came out of the offender's hand and landed somewhere behind the bar. She next observed the victim lying face down on the floor, about a metre from the bar, surrounded by a pool of blood. The offender was screaming, "You raped our daughter”, and “You molested our daughter". Immediately thereafter, Ms Greech noticed that the offender appeared to exhibit remorse, calling out, "I've killed him, I've killed him, I'll never see my children again, I’ve lost my best friend." She was crying.

23 In cross-examination by Mr Stratton SC, counsel for the offender, Ms Greech agreed that the offender used the words "you molested our daughter" and also the words, "you raped our daughter" and at the time seemed to be angry. She also agreed that soon afterwards there seemed to be a change in the offender who became very distressed and hysterical. She uttered the words, "I've killed him, I've killed him", in what Ms Greech agreed was a remorseful fashion.

24 As I have indicated a number of witnesses testified as to the events at the hotel and their evidence was substantially to the same effect as that of Ms Greech. All agreed that immediately after the stabbing the offender appeared to exhibit very considerable remorse. She waited at the hotel until police arrived whereupon she was arrested and taken into custody where she has remained ever since, that is since 8 February 2005, a period of more than 15 months. Upon her arrest the offender freely admitted to police that she had stabbed the victim with a knife she had taken from her home. She told the arresting officer, Sergeant Stengos, "I just want to tell you that he has been molesting my daughter. I just found out he had gone all the way with her".

25 During the course of the trial, Mr Stratton made it clear that the offender intended to rely upon provocation within s 23 of the Crimes Act and substantial impairment by abnormality of mind within s 23A. The Crown indicated that it would object to provocation being put to the jury, in light of the decision of the Court of Criminal Appeal in R v Quartly (1986) 22 A Crim R 252, but the Offender's plea of guilty to manslaughter and the Crown's acceptance of that plea, intervened before I could hear argument and give a ruling upon the matter.

26 Although the matter of provocation was again addressed during the sentencing hearing in a somewhat different context, I do not think I need to decide whether it could have been put to the jury under s23 of the Crimes Act. There is, of course, no doubt that I am bound by the decision of the Court of Criminal Appeal in R v Quartly.

27 However there was, I think, some provocation by Mr Wright which I think I am entitled to mention as a mitigating factor under s21A(3) of the Crimes (Sentencing Procedure) Act constituted at least by Mr Wright staying over on the night of 6/7 February, 2005 against the wishes of the offender.

28 In support of the defence under s23A of the Crimes Act, in respect of which the onus was upon the offender, Mr Stratton called evidence from Dr Rosalie Wilcox, a psychiatrist of some 12 years experience.

29 I interpolate that earlier I had declined to direct the Crown to call, in its case in chief, evidence of rebuttal of Dr Wilcox' opinions, leaving it to the Crown to call such evidence in a case in reply if it was so minded.

30 Dr Wilcox told Mr Stratton that she interviewed the offender on 17 May 2005 for a period in excess of 4 hours and subsequently has prepared two reports. She took an extensive history which largely accords with my earlier summary of the evidence at trial given by the offender.

31 Following the interview, Dr Wilcox said that she formed the opinion that, at the time of the offence, the offender was suffering from abnormality of mind, which she described as a personality dysfunction.

32 She told Mr Stratton that the consequence of such a mental state was reduced capacity to control her actions. Moreover, Dr Wilcox expressed the opinion that notwithstanding that the offender was likely to have been affected by alcohol at the time:

“Even if she hadn't been drinking, the discovery that her daughter had been sexually assaulted on the second occasion was significant enough trauma to influence her behaviour and to cause her to act in such a manner".

33 Subsequently Dr Wilcox was asked to review her opinion and she prepared a second report of 10 May 2006 in which she made a different diagnosis, namely that at the time of the offence the offender was suffering from an acute stress disorder which she described as "a condition which is a developed anxiety with dissociative symptoms within a period of one month to exposure of something traumatic, and it is associated with dissociative symptoms which occur at the time of the exposure to the trauma and it is a condition that is a precursor to post traumatic stress disorder. Dissociative symptoms she described as: "symptoms of being blank, not connected to one's circumstances, one's environment, feeling loss of memory".

34 Asked by Mr Stratton to identify the symptoms that she relied on in coming to her opinion that the offender was suffering from acute stress disorder, Dr Wilcox said, "I believe that the traumatic stress, as discussed in my earlier report, was the discovery that Ms Weatherall's daughter Amanda had been sexually assaulted by her stepfather. This was particularly traumatic for Ms Weatherall as it was the second occasion that it had occurred and her sense of betrayal was intense. She had repeatedly made allowances for her partner. In addition, she had an increased risk of developing an acute stress disorder due to her own prior history of trauma and sexual assault and while experiencing the traumatic event, or after the event, there is the development of a number of dissociative symptoms. Ms Weatherall described being in a disconnected state after her daughter told her about the sexual assault where she was not listening and she felt somewhat blank. This suggested an absence of emotional responsiveness".

35 Dr Wilcox referred to evidence that, on the night of the crime, the offender had told police officers that her mother had told her to “go out and get” the victim for molesting Amanda. This was said in the context that the offender's mother died more than 10 years previously. Dr Wilcox said her reference to having been in communication with her mother further supported her impression that she was in a disconnected state and not totally aware of her surroundings. The fact that her memory of the alleged offence was impaired could also be related to a level of disassociation or to the development of dissociative amnesia.

36 Dr Wilcox was extensively cross-examined by the Crown Prosecutor, and if I may say so, very skilfully, and to considerable effect. She did, however, maintain her opinion that at the time of the offence the offender was suffering from an underlying psychiatric condition which would fall within s 23A of the Crimes Act.

37 In re-examination she told Mr Stratton that in her opinion at the time of the stabbing the offender suffered from an abnormality of the mind, that such an abnormality of the mind arose from an underlying condition; and that, in her opinion, the offender's inability to control herself was substantially impaired by the abnormality of mind.

38 Following the conclusion of Dr Wilcox' evidence on 15 May, the trial was adjourned until the following day due to the then availability of Dr Stephen Allnutt, whom the Crown intended to call in its case in reply.

39 On the morning of the following day the proceedings were delayed while Dr Allnutt conferred with the offender in the cells at the court, and then whilst both counsel conferred with him, and, subsequently, the Crown and Mr Stratton sought further instructions. Later, in open court, the learned Crown Prosecutor announced that Dr Allnutt, who had previously disagreed with Dr Wilcox' opinion that the offender at the time of the offence was suffering from an underlying mental condition, had, following his further interview with the offender, changed his opinion and had formed the view that at the time of the offence she was suffering from post traumatic stress disorder. This change of opinion by Dr Allnutt motivated the decision to accept a plea of guilty to manslaughter.

40 During the sentencing hearing today, Dr Allnutt gave oral evidence. For reasons, which he proffered in some detail, he said that in his opinion when she committed the offence the offender was suffering from post traumatic stress disorder produced by being told by Amanda that Mr Wright had sexually assaulted her. As a consequence, in Dr Allnutt's opinion, there was a substantial impairment of her capacity to understand events or to judge whether her actions were right or wrong or to control herself.

41 He said that, in his opinion, the impairment would have arisen even if the offender had not been affected by alcohol. He pointed out, in effect, as I understand his evidence, that at the time the offender was very vulnerable to post traumatic stress disorder by reason of many factors in her life, including her own sexual abuse, matters arising out of that abuse, and the events of December 2003.

42 He identified several particular stressors which, in his view, caused her to suffer episodes of post traumatic stress disorder in the past.

43 Although Dr Allnutt concluded that the offender was at low to moderate risk of re-offending, at least without the unlikely repetition of the circumstances applicable to this case, he thought that she required continuing treatment in several areas, including alcohol abuse. He agreed that his views are now similar if not identical to those of Dr Wilcox.

44 It follows, therefore, that the offender is to be sentenced upon the basis that she has proved that her capacity to understand events or to judge whether her actions were right or wrong, or to control herself, was substantially impaired by an abnormality of mind arising from an underlying condition, and that the impairment was so substantial as to warrant liability for murder being reduced to manslaughter.

45 It also follows, as it seems to me, that, in considering the matter, I am bound to disregard the effects of self-induced intoxication, as that is the basis upon which the offender has established her defence.

46 Dr Allnutt was asked by the Crown whether the impairment was total or in effect little more than substantial. His reply certainly indicated that it was not in his opinion total but otherwise his view seemed to be somewhat in inconclusive.

47 The offender put herself forward as a person of good character and evidence as to this is not contradicted by the Crown. She has one previous conviction for offensive language in January 1998.

48 Although she left the paid work force on the birth of Danielle, previously she was in regular, responsible employment for many years.

49 I am satisfied that she is a loving and caring mother to Amanda and Danielle, and I accept her evidence that as the elder sibling she has always assumed some responsibility for the welfare of her family. Her agreement to bring up Amanda as though she were her own daughter evidences this.

50 Although it is clear on the evidence that the offender had a major problem with alcohol abuse, it is also clear that she was sufficiently aware of this to ensure that alcohol did not prevent her fulfilling her primary obligations to her children. Moreover, I accept the evidence that violence was entirely foreign to her nature whether affected by alcohol or not.

51 I am also satisfied that within seconds after stabbing the victim she expressed, by words and actions, perhaps the deepest and most genuine remorse I have ever encountered in my experience as a judge. I have already made reference to what she said at the hotel on the night but her remorse was I think also indicated in the hotel security video which depicted her crawling on the floor to the victim while he lay dying, and holding his hands.

52 After the acceptance by the Crown of her plea of guilty to manslaughter, she was called by Mr Stratton to the witness box and gave short evidence on matters relevant to sentence. She testified to the effect that, prior to her arraignment in the Supreme Court, she indicated her willingness to plead guilty to manslaughter and, upon being asked how she felt about the death of Brian Wright replied:

“Well nobody can be more sorry than what I am. I think that that is why I found myself a safe haven in Mulawa because I only get to see my children once a week, because I have to live with that. I couldn't protect my eldest one, Amanda, and I have taken my youngest one, Danielle, her father away from her. I will have to live with this for the rest of my life."

53 She said that she still regarded the victim as the love of her life and, being asked by Mr Stratton whether there was anything she wanted to say to members of Mr Wright's family, particularly his sister Coral, who was in court, replied:

“I am sure she knows it, how sorry I am, as they know me just as my own family do. We have been part of each other's lives for a long time. We grew up together. All week I could not look into her eyes and regardless of what they think of me, I will always love them and I am so sorry.”

54 I now turn to the specific matters which I am required to consider by s21A of the Crimes (Sentencing Procedure) Act. There is no aggravating factor within ss(2) I identify which was not an element of the offence.

55 As to mitigating factors, as I have indicated as a matter of common sense, it seems to me that there was some provocation by the victim, even if it was not such as to fall within s23 of the Crimes Act. As I have also indicated, the offender has no significant record of previous convictions and is a person of good character. My assessment is that she is extremely unlikely to re-offend and, as I have also earlier indicated, she has shown what I regard as genuine remorse.

56 By virtue of s22 of the Crimes (Sentencing Procedure) Act the offender is entitled to have her plea of guilty taken into account. In my opinion, in this case, such plea entitles her to a very significant discount towards the top of the usual range, at least 20 percent.

57 If her offer to plead guilty to manslaughter had been accepted before arraignment, the plea would have had utilitarian value, more significantly however, her offer to plead guilty to manslaughter was evidence, if further evidence be necessary, in light of the material which I have already mentioned, of remorse, and also indicative of a willingness to assist in the pursuit of justice.

58 I received into evidence at the hearing today a Victim Impact Statement from Mr Wright's sister Coral. It indicates that he was a loving and loved member of their family and in addition a hard working and extremely useful member of society.

59 The statement was received in accordance with s28(3) of the Crimes (Sentencing Procedure) Act. I express again, as I expressed at the time, the court's sympathy to Mr Wright's family. For a number of reasons I am not entitled by law to increase the sentence, which otherwise would be applicable, by reason of the impact of the victim's death on his family. One of those reasons is that in the sight of the law all human beings are equal and a loss of a valuable member of the community, well loved by his family, is not to be regarded differently from the loss of someone not so well loved or not so useful.

60 It is appropriate, however, in this particular case, that I comment about evidence which suggested the very serious matters involving Mr Wright and Amanda to which I have referred in some detail. I sympathise with Ms Wright in her contention that her late brother has been given no opportunity to answer the allegations.

61 I point out that he is not on trial here and certainly no case has been proved against him beyond reasonable doubt in respect of any allegation. He is entitled to the presumption of innocence which attaches to all citizens unless and until an alleged criminal offence has been proved beyond reasonable doubt in a properly constituted court of law.

62 Although some may find the distinction difficult to understand I should also point out that the offender is guilty of manslaughter, rather than murder, not because of what Mr Wright did or did not do in fact, but because of what the offender was told about him, thereby causing a psychiatric condition which, in turn, created a substantial impairment of mental capacity.

63 Mr Stratton in his submissions accepted that the offence of manslaughter is a very serious one as evidenced by the maximum penalty of 25 years imprisonment fixed by s24 of the Crimes Act. However, both counsel conceded that the range of sentences available having regard to the particular circumstances of the case is extremely variable.

64 Despite mental impairment, the offender took a knife from the house and took some pains to find the victim and stab him. On the other hand, it was certainly not a frenzied attack and the knife penetrated only once. I could not conclude, beyond reasonable doubt, that her intention was to kill Mr Wright as opposed to inflict upon him grievous bodily harm.

65 Both counsel submitted that only a custodial sentence will meet the circumstance of this case but the Crown acknowledged that there are powerful subjective circumstances to be taken into account in the offender's favour. In my opinion she is entitled to a very considerable degree of leniency principally to be derived from her plea of guilty; her previous good character; her admirable employment record; the circumstance that, because of the impairment of her mental processes at the time of the offence, the element of general deterrence has diminished significance; the fact that, due to sexual abuse, she was deprived of a normal childhood; and her deep remorse; my conclusion that she is unlikely to reoffend; and the desirability that her children should have their mother returned to them.

66 For the reason that this is her first time in gaol and for the reason that, in my opinion, she needs a greater period for the supervision of her rehabilitation than provided by the statutory formula, I find special circumstances.

67 I make these orders. Stand up please Ms Weatherall. I convict the offender Denise Lynette Weatherall of the manslaughter of Mr Brian Wright on 8 February 2005. I sentence her to imprisonment for a term which will comprise a non-parole period of eighteen months and a total term of three years. The sentence will date from 8 February 2005 and expire on 7 February 2008. I direct that the offender be admitted to parole on 7 August 2006. Once admitted to parole I further direct that it be a condition of her parole that she submit herself to the supervision of the Probation and Parole Service and, in particular, accept its directions as to treatment and/or counselling for alcohol abuse, anger management, and cognitive behavioural problems.

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