Regina v Dalton

[2005] NSWSC 351

CITATION:	REGINA v DALTON [2005] NSWSC 351
HEARING DATE(S):	06/12/04, 07/12/04, 08/12/04, 15/12/04, 25/12/04
JUDGMENT DATE :	15 April 2005
JURISDICTION:	Common Law
JUDGMENT OF:	Adams J at 1
DECISION:	The offender is sentenced to three years and eleven months expiring on 14 March 2009 with a non-parole period of one years and seven months, expiring on 14 November 2006. The offender to be released to parole at the expiration of the non-parole period.

PARTIES:	Regina v Karen Ruth DALTON
FILE NUMBER(S):	SC 2004/2; 70016/04
COUNSEL:	T R Hoyle SC (Crown) C J Bruce/J Manuell (Accused)
SOLICITORS:	I Knight (Crown) Legal Aid Commission of New South Wales

LOWER COURT JURISDICTION:

Revised

THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

ADAMS J

FRIDAY 15 APRIL 2005

70016/04 - REGINA v KAREN RUTH DALTON

JUDGMENT

1 HIS HONOUR: On 8 December 2004 Karen Ruth Dalton was convicted on her plea of guilty of two offences of soliciting a person to murder Amy Jean Kyle and Troy Andrew Scott. The maximum term of imprisonment for such an offence is 25 years’ imprisonment. The pleas were entered after I had ruled that certain crucial and damning evidence to which objection had been taken concerning conversations between the offender and an undercover police officer were admissible in evidence.

2 The objective facts in this case are unusual. What follows is a summary of the salient features, which were not the subject of controversy.

3 In January 2001 Dennis James Dalton and Amy Jean Kyle were in a de facto relationship and residing in Casino. Amy Kyle had two children, one born in November 2001 and the other, Dalton’s child, who was born in January 2000. Dalton is the son of the offender. On 17 January 2001 Dalton attended Casino Hospital with his son, who was then unconscious and died on the following day at Lismore Base Hospital to which he had been transferred. An investigation of the circumstances of the child’s death was commenced.

4 On 10 September 2002, Dalton was arrested and charged with his son’s murder and on 2 May 2003 the charge against him was set down for trial commencing 4 August 2003. In April 2003 Amy Kyle was arrested and charged with the manslaughter of the child and being an accessory after the fact to the infliction on him of grievous bodily harm by Dalton. She was granted bail. The charges against Amy Kyle were listed for mention at Lismore Local Court on 22 July 2003. She had made a number of statements about the child’s death which implicated Dalton. It was expected that she would be called in Dalton’s trial as a prosecution witness.

5 In early June 2003 police involved in the investigation of the child’s death became aware that the offender was attempting to locate someone to murder Amy Kyle. It was decided to use an undercover police officer (called Stuart) to investigate this matter. This officer was introduced to the offender by a person who had been approached by her.

6 In February 2003 the informant went into custody in connection with some traffic matters and was at one stage in the Metropolitan Medical and Transit Centre, a part of the Long Bay prison complex. He shared a cell with Dalton whom he had met previously several times at Grafton Gaol. Not surprisingly, the two men got into conversation about the reason they were in gaol. The informant said that during these conversations Dalton had told him that he wanted to have Amy Kyle “out of the picture”.

7 On 3 March 2003 the informant was released from custody in Lismore as part of the MERIT scheme and went to live in Ballina. By an arrangement earlier made with or through Dalton he was met on his release by the offender. He picked up a social security cheque for $200 and spent it on liquor which he took to the offender’s house, where he met members of her family and some friends.

8 During the course of the afternoon the informant and the offender talked about a number of matters, including Amy Kyle. He had been drinking but thought he was not unduly affected. He said that the offender asked him if “I knew of anyone who could arrange to have Amy Kyle removed”. The informant rightly interpreted this as a request about having Amy Kyle killed. He replied that he was not from this State and he did not know anyone in the area but that he would look into it for her. He was at the offender’s house for something over five hours in all and then went home. It appears that he did nothing about the offender’s inquiry at this point.

9 In late March, despite his being on the MERIT scheme, the informant took a drug overdose and went into the Richmond Clinic in Lismore for about three weeks. He was then returned to gaol and transferred to Long Bay where he again shared a cell with Dalton. He discussed with Dalton his conversation with his mother. It is inescapable that Dalton and his mother also discussed this matter further.

10 On 12 June 2002, a day before his application for bail, the informant communicated with the police through his solicitor and disclosed what he knew about the Daltons’ intentions. Not surprisingly, the police supported his bail application and he was released.

11 Although there are substantial reasons for questioning the truthfulness and reliability of the informant’s evidence, it was not the subject of substantive attack and is supported in large part by the taped conversations that occurred between the offender and the undercover officer. In the result, and because of the way in which the police controlled the investigation, the informant’s role was no more than to introduce the offender to Stuart in a manner that would give her confidence that Stuart was trustworthy.

12 The first meeting between Stuart and the offender took place on 24 June 2003. They met outside the offender’s house in the Lismore area and then travelled to Lismore where they talked in a restaurant. The informant was present in the vehicle at the initial stages but nothing of any significance occurred at that time. The conversations were tape-recorded.

13 The important part of the conversation between Stuart and the offender occurred in the restaurant. Although the subject matter of the solicitation was indirectly prompted by Stuart, the offender volunteered why she wanted what she called “the job” done to Amy Kyle and then added that she wanted Troy Scott killed as well. Parts of the conversation were as follows (omitting the officer’s expletives) –

”Stuart: What’s he [meaning the informant] told ya?

Offender: He said that he found someone to do the job...on this bloody sheila.

Stuart: Mm. Who’s the sheila? What’s this ah, what’s the story with her?

Offender: Um, well she used to be with my son. And she’s the reason why he’s in gaol. She’s the reason ... And um, her and her bloody mother, they just create shit no matter re they go.

Stuart: So why is he in the clink?

Offender: Because all the blame’s pointed at him but they keep putting it off. He hasn’t been to court yet...He’s been in for so long.
...

Offender Volunteered] Actually, ah, I should have a photo of her back home...But...there’s that one and there’s this little white prick too, down here [meaning Troy Scott]. But money’s a flamin’ problem...to pay ya...he [the informant] said five, six grand. But, see, you’d want it up front wouldn’t ya?
...

Stuart: Nah. Nah. I’m happy with five or six hundred bucks to start the job...make sure (pause) I’ll take it. Are you gunna be right for...
Offender: Is that straight away or can you wait for it? ...See because around September, October, I’ll have my loan through. You know, from Centrelink, a five hundred advance payment... That one. And I’m workin’ on this other one I’m paying off, about that time that should come through too.


Stuart: When you want the job done?

Offender: ASAP, see but money’s the problem.

Stuart: You can’t get five hundred bucks?

Offender: I can talk to someone and see if I can borrow it.

Stuart: ...What sort of job do you want done?

Offender: Well, he [the informer] said that you’d get rid of the body and all.

...

Stuart: ..Have you been thinkin’ about this long?

Offender: Have I been thinkin’ about it long?

Stuart: Yeah...What sort of things - have you been thinking about how to do it?

Offender: Oh, I don’t know. I, I haven’t really got that far. I just thought to meself be nice if I could get someone to do something.

Stuart: Have you spoken to anybody else about this?

Offender: No.
...
Stuart: ..So you want it done as soon as possible mate?
Offender: Um, yeah. But the one that, that’s really giving me bloody stress and headaches is this little prick.


Stuart: Where’s he?

Offender: He, he lives here in this caravan park across here.

Stuart: Who’s that?

Offender: Troy Scott.

Stuart: And what’s he got to do with it?

Offender: He’s the father of my grandson. Now, he hasn’t done anything to help that little fella since he’s been born. He’s four now, just turned four last week. Hasn’t paid no maintenance, never bought nothing for him, never got anything for his birthday last week…and he’s trying to take Bubby off his mother. And he’s a bloody junkie.


Stuart: And the mother’s your daughter is it?

Offender: Yeah.

Stuart: Oh okay. (Pause) So you want something done with him too?


Offender: I’d rather him first.

Stuart: You want him killed, yeah?

Offender: Mm (Pause) ’cause he has caused so much heartache and shit for them, my kids.
Stuart: So why do you want the girl done? (Pause)
...

Offender: .. It’s just that, um, I don’t know how to put it. There’s been so much shit from her and her mother and for all the blame to go onto my son...and yet she’s been charged and she’s still out walkin’ about. Why shouldn’t she be in too? You know, like, if it’s a couple, it doesn’t matter who it is and one gets blamed for it. They’re as much to blame as both of them.

Stuart: Is it - how’s it gunna help you though, if she’s gone?

Offender: Well, maybe the bloody mother’ll piss off, go back to Queensland.

...

Stuart: Okay. What’s this girl’s name?

Offender: Amy Kyle [spells name].

Stuart: How old is she?

Offender: She must be about 19 now.

Stuart: And she’s got a kid?

Offender: Yeah. She’d be 18 or 19 at least. (Pause) She must be 19.

...

Stuart: How old’s the little one?

Offender: Um, she must be about two now.
...

Stuart: This Amy ... how do you want it done?

Offender: I’ll leave that up to you.

Stuart: Your choice.

Offender: Long as it’s erased...

Stuart: I like to keep me customers happy.

Offender: (Laughs) Well, you do it your way, because, oh, this’d be the first time for me... Anything like this.


Stuart: That’s funny, they all say that.

Offender: That’s why it’s a bit …freaky with me. (Laughs)

Stuart: Oh mate, you’re right. Ah ’cause if its, if you want her ...shot, it cost extra because I’ve got to ... go and buy a clean gun. Or if you wanna ... with a shiv or a knife or somethin’, well its the same price, its all right. It’s cool. Price we worked on. But the gun’s dearer. So that’s up to you, mate. (Pause) Ah, I got to get - cost me more for a clean gun.


Offender: Yeah.
...

Stuart: .. All right. So, did you want it done with a gun or a ... knife or what? How do you want it done?

Offender: Well, if its with a gun, how much is that altogether?

Stuart: Well .. it is six but [the informant] has told me between five and six, so we’ll go five...

Offender: Yeah.

Stuart: .. and with a gun, like its six and a half ... Can’t go any cheaper.

Offender: Yeah, I know, I know.

Stuart: And you’re talking about other business too, don’t ya? This other bloke across the road?


Offender: Yeah.

Stuart: In the caravan park.

Offender: Yeah.

Stuart: But I don’t, I don’t want the six and a half now.

Offender: Right.

Stuart: I don’t want that now until the job’s done... Pay me when the job’s done.

Offender: And what if I can’t give it to you in one hit?

Stuart: Oh, we can work something out. But what I need is a deposit though ...To show me that you are gunna pay me ... You know, if you don’t give me that and I’ll go and do the job, then what’s to stop, to stop you from not paying me? ...So...
Offender: Yeah, I realise that side of it. The only thing is that I get that five hundred deposit, would you be happy with a hundred a fortnight? Oh, just till I come up with some other money in the meantime ... Cause we are that ... strapped for cash, true. So you’d be happy with that?


Stuart: Well, I’m not happy with it, but ...
...

Stuart: So, yeah, all right. So you want it done with a gun?

Offender: May as well ... make sure its finito.

Stuart: Mm. So, if I go in there and she’s at home with other people, what do you want done there?
Offender: Ah, I don’t care about her and her mother.
Stuart: Yeah. When, when you mean you don’t care, what do you mean you don’t care?
Offender: You know, if you do whatever you have to do with them - but, ah, that little one, don’t hurt her.


Stuart: So, if the mum gets in the way and she gets hurt, that’s not a problem?

Offender: Her mother?

Stuart: Yeah.

Offender: Yeah, not a problem.

...

Stuart: ... Right, you got a photograph of her at home?


Offender: Yeah, I have.

Stuart: All right. We might head back to your place and grab that.

Offender: And I’ve got a photo of this other little prick too.

Stuart: Yeah, so what’s the go with him ... he’s givin’ your daughter grief, is he?

Offender: ...he - yeah - he doesn’t want Bubby really...but he’s making it out to the courts that he loves Bubby and he wants him. All he wants is to get back with my daughter...he’s getting back at my daughter through his grandson.

...

Stuart: So, you want something done to him?

Offender: I reckon him would be better first.

...

Stuart: Well, what do you want done to him?

Offender: He (pause) bang.

Stuart: Bang? You want him killed too?

Offender: Mm.

Stuart: Where you gunna get the money to pay for him too?


Offender: I’m thinkin’, the way things are goin’, if you get rid of him first and put the other one on hold.

Stuart: Why is that?

Offender: Well, he’s more of a threat than she is.

Stuart: Oh, okay. But you still want her done?

Offender: Yeah, but I reckon do him first ... I’ve only got one grandson ...and he’s trying to take bub away from us.”

14 This is but a sample of the conversation concerning the proposed killing of Amy Kyle. There was a deal of conversation about how much Stuart would charge and how the offender would pay. The price of about $5,000 was mentioned. The source of this figure is uncertain, but I think it likely that it came from Dalton, possibly from discussions with the informant, who passed it on to the police. Stuart obviously assumed that this was the amount on offer. He was soon disillusioned. The offender had little more than her pension and the vague possibility of a small loan. But this did not deter her. Indeed, it is a mark of her resolve that she was - or said she was - prepared to pay part of what was obviously her only source of a very small income to have Amy Kyle and Troy Scott killed, if she could. Nor should or could it be assumed that, even for the tiny sum she was offering, she would have been unable to find some person desperate enough to kill for it, though I think that it would have been improbable.

15 The offender told Stuart about Amy Kyle’s social habits and showed him where she lived. When they returned to the house she fetched photographs of the intended victims and gave them to Stuart. The conversation finished with an agreement that the accused would contact Stuart when she had obtained the agreed deposit.

16 It is quite clear that aside from finding someone to do the job, the informant had played no part in the instigation of the offences: this was the idea of the offender and possibly her son. The offender had plainly been considering the matter for some time. The conversation is also inconsistent with any suggestion that the proposal may have been encouraged by Stuart, except in the sense that he was, of course, offering to carry out the killings. On 3 July 2003 Stuart called the offender’s telephone number in Lismore but was told she had gone to Sydney. He left a message asking the offender to cal him. On Saturday 5 July 2003, Stuart called the offender’s number again and was given the same information. He again left a message for her to call him and, shortly after, she did so. She was with her grandchild at Mount Druitt railway station and told Stuart that she had been evicted from her accommodation. She asked if he knew anyone who could help. Not surprisingly, he said no. Stuart asked if she was in a position to give him some money as he intended to go up to the Lismore area in the ensuing week. She said that she should be able to after she returned to Lismore on Monday, suggesting that it might be Thursday or Friday. He asked her whether “you can guarantee me I’m not wasting my time though” to which she replied, “Yeah”.

17 In this conversation Stuart was undoubtedly attempting to persuade the offender to commit herself to continuing their arrangement and to a timeframe for the payment of the deposit of which they had spoken. However, the only uncertainty expressed by the offender was about whether she would have the money available. There was no hint that she had any hesitation about continuing with her proposal.

18 On 10 July 2003 Stuart again called the offender at her home. She told him that she was going to call him later but she had not been sure when it would be because she was “waiting on money”. She said that she had intended to send someone to draw it out of an ATM in a nearby shopping centre. Stuart suggested that she could meet him at some shops about thirty minutes walk away and that he would take her to the ATM. The offender agreed and they met shortly after. The offender told Stuart that she had arranged for someone to collect the money but she had not yet received it. She said in answer to a query from Stuart that she had $60 to $70 on her. The conversation continued –

“Stuart: You understand that’s just for me to go and have a look, have a couple of drinks and take a - watch her?
Offender: Yeah, yeah.
Stuart: Yeah.
Offender: What I was going to ask you is, can you please fix him up first?
Stuart: You want him done first?
Offender: Please, because things are getting that bad that, um, it looks like he’s gunna get residency [meaning custody] of bub ... Everything goin’ his way and he can’t look after himself, let alone bubby.
Stuart: So, if he’s out of the way?
Offender: Yeah, then everything’s sweet for bubby and his mum.
Stuart: So your daughter will get - oh, okay ... get custody.
Offender: Please. What I was gunna do is give you this money now [hands over $60].. and give you a ring on your mobile ... when I get this rest of the money.
Stuart: Oh, right, yeah.
Offender: Okay? And, um, if you’re in need of money that much and you get him first ...be able to give you another hundred today or tomorrow ... soon as you fix it up. That might be a better photo [of Troy Scott]. I had to cut it off.

...

Stuart: And you want him done first, obviously?
Offender: Mm, please ... he’s the main problem at the moment.
Stuart: Yeah. What sort of problems is Amy causing you?
Offender: Um, just abusing us, her and her mother, and threatened to get other people for us ... threatening to get other people for us.
Stuart: What do you mean?
Offender: Like her relations.
Stuart: Oh, to...
Offender: To do things to us.
...
Stuart: Mm. All right. So this, ah, if I do, ah, I’m gunna go to [a bar where the offender had said Amy Kyle often went]. If I bump into Amy, things could get, things could happen tonight. You know that.

Offender: Yeah, yeah.
Stuart: So you are comfortable if I kill her tonight?
Offender: Yeah, yeah, fine. I just hope you can get that other prick first though... because his solicitor has put in an application for residency for him ... And that only takes so many days and we’d only just come back a couple of days ago, so that’s why I’m hoping that you can get him first ... I just think that if he’s out of the road, well, we won’t have any problems then...where bubby’s concerned.”

19 The conversation ended with the offender saying that she was going to leave with the person who was getting cash from the ATM and would call Stuart when she had the money to arrange to meet. The offender was arrested shortly afterwards.

20 I have set out substantial parts of the recorded conversations between the undercover police officer and the offender, in part to demonstrate that the offender regarded herself as a free agent in the negotiation and was not manipulated or pressured into committing the offences. It does seem that the continued contact with Stuart, at his instigation, provided a timeframe that might well have advanced things more quickly than otherwise, at least so far as Amy Kyle was concerned. The offender was always anxious to have Scott disposed of as soon as possible. In maintaining this contact the officer acted properly. It was obviously important that the offender should not meet another person in the meantime who might agree to carry out her threats.

21 The offender did not give evidence at the sentence proceedings. A number of reports were tendered on her behalf, all of which I have read carefully. The following personal history is taken from the psychosocial assessment report.

22 The offender was born in Bonalbo, New South Wales, in 1955. Her mother was a Bundjalong woman. Her father, from Queensland, was an Undumbi man from an area surround the Glasshouse Mountains. The offender, who was the fifth of seven children, described a happy childhood, though her father was often violent. Although they were very poor, her father was always in employment, working in a sawmill or as a bricky’s labourer. Her mother did not work outside the home until the offender was 15, when her father was tragically killed in a car accident.

23 The offender said she was the subject of sexual assaults by three males on different occasions whilst she was a teenager. Some years after her father’s death the offender met and formed a relationship with a young Aboriginal man. Their lives together, first in the Bonalbo area and then in Lismore, were very happy, although this happiness was clouded by the death of their firstborn child, a daughter, who died as a neonate. The birth of a son followed and a short time later the offender’s partner died suddenly, of an undiagnosed heart disease. He was only 25 years of age.

24 In Lismore the offender formed another relationship, but it was characterised by continuous and severe domestic violence perpetrated against her by her partner. After he had left her many times and returned with promises to reform he made his final exit when she was pregnant with their third child. She had the baby and lived alone with her four children for approximately ten years until she met and formed a relationship with her current partner, with whom she has lived, mostly in Lismore, for 15 years. Both have described that as a good relationship, although it has been severely strained as a consequence of the emotional trauma and stresses endured by the offender in recent years.

25 In the last ten years the offender’s life has been beset by tragedy which has been visited upon her in the form of the death of many close and extended family members. The first of these occurred on Christmas Day 1995 with the accidental death of her first-born son, the only surviving child of her first partner. Within months her grandchild, the infant daughter of her dead son, died in mysterious circumstances. Ten other relatives died in this period. In addition, three of her siblings have died from heart disease or cancer, each of them around the time of his or her fiftieth birthday.

26 In addition, her son Dennis killed her grandchild and is presently serving a sentence of nine years with a non-parole period of four years’ six months. At the same time, having come from a very large family, as did each of her parents, the offender has many surviving relatives in addition to her three surviving children, the eldest of whom is in custody. She has one grandchild living in the area and has a very close bond with him.

27 So far as the offender’s education is concerned, she completed Year 8 at secondary level. Although she enjoyed school, she was forced to leave and find employment after the untimely death of her father when she was 15 and in Year 9. She found work and until the birth of her first child had always been employed, albeit in a series of unskilled jobs. Since that time she has not been in paid work and her poor health now excludes the possibility.

28 In addition to caring for her own children the offender has, on an informal basis, temporarily fostered many children, Aboriginal and non-Aboriginal, for periods ranging from one to six months. This charitable and unselfish contribution to community life deserves due recognition, not least in circumstances such as the present.

29 The offender is in poor health. Her non-insulin dependent diabetes is controlled by diet and exercise and her other conditions by medication but, of course, do not restore her to full health. The prognosis is guarded. She suffered a stroke in August 2004 which has led to present symptoms of fatigue, aching legs with a “dragging” of the right leg when tired. She says that since her stroke she has suffered from memory impairment. She has reported no history of mental illness, psychiatric or psychological interventions, but said - and I accept - she suffers from anxiety and panic attacks. Her anxiety is chronic. The panic attacks reported by her to be occurring twice weekly are associated with post-traumatic stress disorder and unresolved grief. Her grief for her dead son seems chronic and each mention of him during interviews moved her to tears. After so many years such raw grief is considered to be pathological in the sense of constituting an illness. She has never had counselling around these issues, although such an intervention may have facilitated the process of recovery or psychological reinstatement.

30 The offender has no history of abuse or addiction to illicit substances. She said her alcohol consumption has usually not been a problem, save for a one-year binge that was a futile attempt to assuage her grief following the death of her son. In this year, 1996, she drank to excess on a daily basis.

31 The offender is living with her partner in a rented house in Casino. Relatives come and stay for various lengths of time. Her three surviving children, two daughters and a son, together with her grandson, are the main focus of her life. Amongst the Aboriginal population in her area she has the status of an elder. She takes family and kinship obligations seriously. Her partner said that he is most supportive of her and prepared to do anything required to give her the help and support the he is able to.

32 The offender described a life in country New South Wales which, whilst not uncommon by Aboriginal standards, has been, by non-Aboriginal standards, exceedingly difficult, characterised by poverty and violence and their malignant effects. Her “hand to mouth” existence and obvious impecuniousness are symptomatic of her economic and social disadvantage as an Aboriginal. There are many legacies of this in her life. In addition, she suffered the untimely death of her father and the consequential lack of educational opportunity, the premature death of her first partner and a violent second relationship which resulted in her being left to raise four children alone, at least in their early years.

33 Housing related poverty in the insecure private rental sector has been a feature of her life both as a child and an adult, resulting in her often having to pay rental costs disproportionate to her low income. Innumerable moves, sometimes sub-standard accommodation and instances of discrimination by landlords and agents have always been her lot.

34 Ill health now plagues her, as do the chronic anxiety and panic attacks which are a manifestation of the cumulative stressors in her life. Untimely death is no stranger in the Aboriginal community. The offender has experienced the tragic loss of family members and in poor health and in the fiftieth year of her life, she is well aware of the unfavourable morbidity and mortality statistics of her Aboriginal cohorts as compared to the white Australian population. She has the diseases of poverty, endemic in the Aboriginal population, hypertension, obesity, diabetes and coronary heart disease. An Aboriginal woman’s life expectancy, at 59, is 22.5 years less than that of other Australian women. Coming to sentence her at this time, I consider that this factor is very significant.

35 A number of additional relevant facts are disclosed in the thorough report prepared by Dr Delaforce. Perhaps the most significant is that the offender’s closest confidants - her mother and her sister - had died several years before the death of her grandson at the hands of her son and she separated from her partner following a bad argument at the time that she started to have contact with the undercover police officer. She felt alone and with no-one to turn to. I would accept that at this time she was very depressed (though not clinically so) and even had thoughts of suicide. She became increasingly worried about and protective of her surviving grandchild and worried continuously about Dennis, fearing that he might be killed in prison. Her older son had died on his way home from prison and the offender thought that he may have been murdered. She was also distressed by the continuing uncertainty of the outcome of the criminal proceedings against him.

36 To Dr Delaforce, the offender asserted that it was her conversation with the informant that made it easier for her to go beyond her angry thoughts of wishing Amy Kyle and Troy Scott were away from her to wishing they were dead and wanting to kill them. Having regard to the sequence of events, the content of the conversations and the way in which the informant was cross-examined during the voir dire, I do not accept his version of events if it is intended to convey the notion that the informant encouraged her or was the first to mention the possibility that she might obtain the services of a contract killer. The offender told Dr Delaforce that she felt “ridiculous” after asking what she thought was a contract killer to kill Amy and Troy and explained it by the very great stress that she was feeling at the time. There is no direct evidence of remorse or contrition but taking the materials disclosed in the particulars overall and the plea of guilty, I am prepared to conclude in her favour that she is, indeed, remorseful about what she attempted to procure the undercover police officer to perform.

37 The offender’s partner confirmed her account of her mental and emotional state, including particularly that she was overprotective of Dennis and her grandchild. He was aware that the offender had talked of wishing that Amy and Troy were dead but never thought that she might make contact with a contract killer to carry out those wishes. The significance of their separation at the crucial time could not have been known to the offender’s partner, of course, and he is in no sense responsible for what happened. However, on a careful consideration of the evidence, I am persuaded that had the offender not been so alone and socially isolated at a time of real psychological impairment and distress, these offences would very likely not have occurred. Her mental state, combined with the availability and continuing contact with the undercover officer, turned her feelings of anger and despair about Amy Kyle and Troy Scott into action and she lacked the emotional capacity to stop what she had put into motion.

38 I have already mentioned that I consider that the police - and the undercover officer in particular - acted with complete propriety, indeed, as they were bound to act in light of what they knew. However, had there been no follow-up or had follow-up been significantly delayed, I think that it would have been most unlikely, though I cannot say certain, that the matter would have gone any further.

39 I should mention I have considered and given due weight to the report of Dr Igor Petroff, Bugalma Bihyn and the positive testimonials of Ms Ita Murray and Rosslyn Sten.

40 In summary, the offender has been a well-respected member of her community, where she is regarded as an elder and over the years has frequently helped many young people, both Aboriginal and non-Aboriginal, by allowing them to stay with her because of their problems at home. She has suffered a long history of misfortunes and heartbreaks and was alone at a crucial time in her emotional and mental distress. I do not doubt that her judgment was significantly distorted at the time. However, although this mitigates the seriousness of her offences, it cannot excuse them.

41 I should mention that Amy Kyle was a proposed Crown witness at the time that the offender solicited the undercover officer to kill her. However, having regard to the terms of the conversation with the officer and the unguarded language which the offender used, I have concluded that this was not a motive for the solicitation. It was, rather, anger and resentment at the fact that whilst her son was in prison awaiting trial Amy Kyle was walking around free and apparently the authorities had accepted that she was not as responsible as her son for what had happened to her grandchild.

42 On the other hand, so far as Troy Scott was concerned, she wanted him killed because he had taken legal proceedings in relation to the custody of her grandchild. This increases the gravity of the offence significantly. It is important that people feel free to approach the courts to determine matters in dispute between them and anything which might lead them, through fear or other improper pressure, not to do so must be taken very seriously in the administration of criminal justice. In the result, then, her crimes reflected a substantial level of moral and criminal culpability which must have serious consequences.

43 I should mention that Dr Delaforce considered that, from the beginning of 2002 and continuing until mid 2004, the offender was suffering from Chronic Adjustment Disorder with Depressed Mood and Panic Disorder with Agoraphobia. It seems to me to follow from her psychological condition that she is not a proper vehicle for the imposition of a full measure of sentence in which general deterrence plays a significant role, at least in terms of the non-parole period which I have determined.

44 I am satisfied that, despite the serious objective circumstances of the offences, what the offender did was an aberration, to which surrounding circumstances outside her control significantly contributed. The subjective circumstances justify a substantial amelioration of punishment. The close connection between the two offences justify my regarding them as, essentially, part of the same episode of criminality and, accordingly, the sentences should be served concurrently. They will commence from today.

45 Although she pleaded guilty at the last moment, doing so avoided the necessity of the undercover officer giving evidence and thus exposing his identity to a degree markedly more than would otherwise be the case. Accordingly, for reasons of public policy, it is appropriate to give the offender a utilitarian discount of 15 percent off the sentence that I would otherwise have imposed.

46 Having regard to the offender’s age, health and emotional state, there are special circumstances justifying a variation of the statutory calculation for the determination of the appropriate non-parole period. I should state that before the discount I had determined that an overall sentence of five years would have been appropriate. I have deducted an additional two months from the ultimate non-parole period and additional term to account for the offender’s pre-sentence custody. Accordingly, the offender is sentenced to serve a non-parole period of one year and seven months, expiring on 14 November 2006 and an additional term of two years and four months, expiring on 14 March 2009. I direct that the offender be released to parole at the expiration of the non-parole period.

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