Regina v Sharon Kaye Yeoman - [2003] NSWSC 194

No judgment structure available for this case.

CITATION: Regina v Sharon Kaye Yeoman [2003] NSWSC 194

HEARING DATE(S): 28 February 2003, 21 March 2003

JUDGMENT DATE:
21 March 2003

JUDGMENT OF: Buddin J

DECISION: Pursuant to s9 of the Crimes (Sentencing Procedure) Act 1999 I make an order directing the offender to enter into a good behaviour bond for a period of four years. In accordance with s 95 of that Act that bond will be subject to the following conditions: 1 that you appear before the court if called on to do so at any time during the term of that bond; 2 that you be of good behaviour during the term of the bond; 3 that you accept the supervision of the Probation and Parole Service for the duration of the bond and in particular obey all reasonable directions of the Service in relation to attending and participating in programs, counselling and treatment in respect of issues relating to alcohol.

CATCHWORDS: Manslaughter - unlawful and dangerous act - plea of guilty - background of domestic violence and chronic alcoholism - powerful subjective case.

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED: R v Bogunovich (1985) 16 A Crim R 456
R v Cameron (2002) 187 ALR 65
R v Coleman (1990) 47 A Crim R 306
R v Gardner (NSWSC unreported 27 March 1992)
R v Hill (1980) 3 A Crim R 397
R v Jans [2000] NSWSC 525
R v Kennedy [2000] NSWSC 109
R v McDonald (CCA unreported 12 December 1995)
R v Melrose [2001] NSWSC 847
R v Previtera (1997) 94 A Crim R 76
R v Roberts (NSWSC 31 August 1989)
R v Runjanjic & Kontinnen (1991) 56 SASR 114
R v Spencer (NSWSC unreported 18 December 1992)
R v Thomson & Houlton (2000) 49 NSWLR 383
R v Troja (CCA unreported 16 July 1991)
R v Varagnolo (NSWSC unreported 21 March 1996)
R v Woolsey (NSWSC unreported 19 August 1993)

PARTIES :
Regina
Sharon Kaye Yeoman

FILE NUMBER(S): SC 70077/2002

COUNSEL: P Lynch (Crown)
SC Craigie SC (Offender)

SOLICITORS: SE O'Connor (Crown)
DJ Humphreys (Offender)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BUDDIN J

FRIDAY 21 MARCH 2003

70077/02 – REGINA v SHARON KAYE YEOMAN
REMARKS ON SENTENCE

1 HIS HONOUR: On 28 February 2003 Sharon Yeoman (the offender) pleaded guilty to the manslaughter of her de facto husband, Garry Maxwell Jones at Temora on 16 April 2002. Mr Jones’ death was caused by a single stab wound with a knife to his chest which penetrated his heart. The basis upon which the plea was entered was that that conduct amounted to an unlawful and dangerous act on the part of the offender. The offender was arrested on 17 April 2002 and spent that night in custody. She has been on bail ever since.

2 The offence occurred against the not unfamiliar backdrop of domestic violence and chronic alcoholism. The offender had lived with the deceased for a period of 25 years. She met him when she was only 17. It was the only relationship she has ever had. She was aged 43 at the time of the incident and is now 44.

3 The following version of events emerges from a recorded interview which was conducted with the offender on the day of her arrest.

4 On the day in question, the offender went shopping with her youngest son, Damien, who is now aged 5. (The offender and the deceased had three other sons who have now all reached adulthood.) Upon her return home at 11 am she observed that the deceased was consuming wine from a cask. Shortly thereafter the deceased left the house returning at about 2 pm. During his absence the offender also commenced drinking cask wine. Upon the deceased’s return both she and the deceased continued to consume that wine. At some stage during the course of the afternoon the offender was in her room playing cassette tapes. It included songs recorded by the popular singer, Johnny Cash. The deceased asked her on a number of occasions to turn down the volume of the music. The offender refused to do so. The offender admitted hitting the deceased with an electric jug at some stage of the afternoon. Later she provided Damien with an evening meal and put him to bed.

5 At some stage during the course of the evening the offender went into the kitchen area of the house. The offender was by this stage extremely intoxicated and her recall of the events of the evening was clearly affected by her consumption of alcohol. She told police that it was whilst in the kitchen that she “probably” removed a carving knife from the wooden knife block. She then went into the dining area where the deceased was seated. She recalled putting the knife into the deceased’s chest whilst he was standing. The deceased then slumped back into the chair upon which he had been sitting. The offender did not render any assistance to the deceased because, she said, she did not think or realise at the time that he was dead. She thought either that he had fallen over by reason of his intoxication or that he was being melodramatic. I have no hesitation in accepting the proposition that had she appreciated the significance of his injuries she would have sought help for him. She then went to bed.

6 At 7.20 next morning the offender was awoken by her son and informed that the deceased was lying on the floor in the dining area. She then spoke with a neighbour and requested that contact be made with the police. Local police and ambulance officers arrived. The offender made immediate admissions to police at the scene that she was responsible for the death of her de facto husband. During the recorded interview the offender also admitted stabbing the deceased. However she said that she had not intended to kill him when she stabbed him but had only intended to hurt him.

7 The offender’s recollection of events is, on her own admission, imperfect. She said that when she gets drunk she suffers from blackouts and that that affects her memory and that that is what occurred on this occasion.

8 The offender gave many answers in the recorded interview which suggested that she was having difficulty recalling, with any precision, what had occurred. On various occasions she used expressions such as what she “probably”, “apparently” or “maybe” had done. In some circumstances an assertion by an offender that he or she cannot recall the details of a tragic event may be treated with suspicion. In my view however, the present offender was making a conscientious effort to recall how the events had unfolded but was having considerable difficulty in doing so because her memory was compromised by reason of her very significant state of intoxication, a matter to which I will shortly return. I am fortified in reaching this conclusion by the Crown Prosecutor’s view which was that the offender appeared to exhibit considerable candour when speaking to the police. Nevertheless, given the imperfections in the offender’s memory, it is necessary to approach what she told the police with considerable caution.

9 It is now necessary to say something about the consumption of alcohol on the part of the offender and the deceased respectively on the day in question. Ms Judith Perl, who is a forensic pharmacologist, states that at 11 am on the 17 April a blood sample was taken from the offender. When analysed it revealed a blood concentration level of 0.130 grams per 100 ml. Upon the assumption that the incident occurred at about 8 pm the previous evening, it was Dr Perl’s opinion that the offender’s blood alcohol concentration at the time would have been between about 0.280 to 0.500 grams per 100 ml. It is common ground that Dr Perl’s opinion is to be preferred to that proffered by Professor Starmer, who prepared a report on behalf of the offender, because a more accurate history was provided to Dr Perl. Professor Starmer, who has relevant expertise in relation to the effects of alcohol, expressed the opinion that a blood alcohol concentration of the magnitude of the offender’s would have almost certainly led her to have had “a reduced ability to fully appreciate the consequences of her actions. This would have been accompanied by severe perceptual, cognitive and psychomotor impairment.”

10 Quite apart from the opinion expressed by Professor Starmer, that material is significant in at least two different respects. First, it provides confirmation for the fact that the offender’s recollection of events was clearly hampered by reason of the amount of alcohol which she had consumed. Secondly, it may cast doubt upon whether the Crown could have established, if it had been required to do so, all the requisite elements of the crime of manslaughter. The Crown Prosecutor did not cavil with that proposition.

11 A post-mortem blood sample taken from the deceased revealed a blood alcohol concentration of 0.314 grams per 100 ml. Professor Starmer indicated that such a concentration is to be regarded as very high. In his view:

12 Although the direct cause of death was as a result of the stab wound, Dr Botterill, who conducted the post-mortem, concluded that alcohol toxicity was a further significant condition which contributed to Mr Jones’ death. He noted that “brain examination showed shrinkage of some parts of the brain, as can be seen in chronic alcoholism, and blood vessel congestion.” Dr Rodriguez, who is a neuropathologist, conducted a microscopic examination of the brain and found that there was atrophy in the anterior vermis which he concluded was “consistent with chronic alcoholic cerebellar degeneration.”

13 It would appear that the deceased, who apparently normally drank a cask of wine every day, abstained from drinking for a period of about three months in the year before his death. He was then suffering from serious kidney and liver damage as a result of which he required hospitalisation. He was at one stage placed on a life support system. He continued to suffer increasingly intense pain as well as the effects of liver cirrhosis. His decision to resume drinking at the end of 2001 may have been, as the offender apparently thought, simply a means of ending his life.

14 The offender told the police in the recorded interview that she drank wine every pay day and that she did so to excess. She said that she had been doing so ever since the family had moved in 1993 from Sydney to Temora where they lived in very modest circumstances. They had moved there in order that the family could be with the deceased’s father in his declining years.

15 She told the police that the deceased had been violent towards her throughout the relationship. She told them, for example, that about eight months prior to the fatal incident the deceased had hit her in the eye with a baseball bat. She indicated that she felt that she had no choice but to stay with the deceased because she did not have the means to enable her to leave.

16 She said that the deceased would, on occasions, taunt her and dare her to stab him. In fact she had done so on an occasion about twelve months prior to this incident after being similarly provoked by her husband. She thinks that that is probably what occurred on this occasion. I am inclined to accept that that is what in all likelihood did occur especially as there is some support for such a suggestion from the offender’s son, Nathan. He recalls three or four occasions on which he saw his father remove a knife from the kitchen and invite the offender to use it on him. On such occasions he would intervene, grab hold of the knife and return it to the kitchen. The last occasion on which he had observed such an incident was three months prior to his father’s death.

17 I referred earlier to the fact that the offender had been playing the music of Johnny Cash on the day of the incident. The following questions and answers which appear in the recorded interview indicate the relevance of that fact:

18 The death of her father was clearly a significant event for the offender. She undoubtedly had ambivalent feelings about him given her own childhood memories of having witnessed violence inflicted by him upon her mother. She had also been estranged from him for at least 20 years as he did not approve of her relationship with the deceased. The insensitivity that the deceased displayed in relation to her grief clearly upset the offender and that, it may be inferred, further undermined her emotional well-being and her capacity to resist his barbed comments. It is very likely, given all of the circumstances which culminated in the death of Mr Jones, that this issue provided an emotional trigger for the offender’s conduct on the day in question. There is evidence before me, for example, that the glass surrounding a mounted photograph of the offender’s father was broken on the day of the incident. Indeed there was also broken glass on the floor in the area in which the incident occurred. The knives from the wooden knife block were also scattered on the kitchen floor. The offender was unable, no doubt because of her impaired memory, to shed light on any of these matters.

19 The offender’s son, Nathan also provides support for this aspect of his mother’s case. He reports that his father “would needle my mother about her father who died in February 2002. My mother would become upset and shout.”

20 I have been provided with a considerable body of material which has assisted me in gaining some appreciation of the offender’s life. She grew up in Sydney and completed Year 10 at school. Other than a short period of employment as a shop assistant, she has not been in paid employment since 1976. She and Damien are now living with her mother in Springwood. She is in receipt of a supporting parent’s pension.

21 The deceased’s younger sister, Ms Leanne Arnold has provided an affidavit in which she outlines her knowledge of the offender and her relationship with the deceased. She states that their mother died when the deceased was about 14. The family appeared thereafter to disintegrate. Their father became an alcoholic. The deceased also developed a drinking problem at about the age of 18. Ms Arnold said that she loved her brother. Nevertheless she went on to say that he was:

…an alcoholic of the worst kind, especially to Sharon Yeoman and my nephews. Garry drank excessively throughout his adult life. Gary was a terrible drunk. When he was drunk, he would be abusive. There were times when I was frightened of Gary. I have also seen him behave foolishly and dangerously.

I married when I was about 21. In the years after my marriage Sharon’s three boys would telephone me from a phone box near their home. This happened on many occasions at all hours of the night for a number of years. I would drive to Cranbrook (sic) where they lived and find the boys hiding in the public phone box. It would usually be because Gary was being drunk and abusive. I would take the children home to my house.

Gary made it difficult for them to live in one place for very long. Prior to Gary and Sharon moving to Temora, they lived at Mt Pleasant and then Regentsville and then Cranbrook. (sic)

I never saw Sharon and Gary actually fighting but I would see smashed things at their home and I saw the way that Gary would treat the children when he was drunk. Sharon often told me of being beaten by Gary when he was in a rage. She would also tell me of occasions when he smashed things in the home.

I remember saying to her “why do you put up with this?” and she replying, “because I love him”.

…

After they moved to Temora in the mid nineties, they lived with my father until my father could not cope with my brother’s abusive alcoholism. My father told me that at times he was frightened of Gary.

Not long before the death of my brother he was alcohol free for a few months. It was the first time he had been sober and non abusive in thirty years. By then it was possible to see that his brain did not work well and his body had deteriorated badly. He did try hard but alcohol took over again. The last time that I visited was only a couple of weeks before Gary died. Their son Gregory had his army induction at the time. I actually had a good time. Gary was sober for the day.

…

Sharon Yeoman has always been a warm and caring person. She has always been kind to me and to my children and also to the other members of my family. The current situation is really difficult because she remains a part of our family. I believe that she has suffered enormously because she has put up with Gary for all of these years.

I do not want to see her punished. If it were my choice, I would not want to see her charged at all. I am worried that if Sharon Yeoman is imprisoned her four children will suffer even more than they have to date and the next generation of our family will have the same sort of problems that mine has had.

22 The offender’s cousin, Ms Karen Gross, with whom the offender and Damien resided for a period of time after the commission of the offence, has also provided an affidavit. She was friendly with the deceased and in fact introduced him to the offender. Until they went to Temora, she saw them on a regular basis.

23 She said that although the deceased was courteous and well-mannered whilst sober, he was a “violent man when intoxicated.” She personally observed the deceased strike the offender on a number of occasions whilst he was intoxicated. She noticed on occasions that the offender had facial injuries which, she was told, were caused by the deceased. These included black eyes, bruises to the face and the loss of a front tooth. On one occasion when Ms Gross sought to intervene after the deceased had struck the offender, she too was slapped across the face by the deceased. She also observed the deceased throw objects at the offender and verbally abuse her.

24 In addition, she was aware that the children were on occasions also subjected to violence. On such occasions, with the offender’s concurrence, she removed the children from the home and looked after them. She went on to say that:

[f]rom about 1998 I started visiting again during Christmas holidays and school holidays. I would have visited about ten times up until Garry Jones’ death. I would stay in their house. By then Garry Jones’ health had deteriorated. He was drinking every day from about 6 am. I saw him behaving in a verbally abusive way a couple of times but did not see him act violently. Ms Yeoman’s drinking had got worse. It was not daily but when she would drink she would become very intoxicated. She had aged a great deal as well. They were living in poverty; their house was extremely run down. Most of their money was being spent on alcohol.

I last visited them about six weeks before Garry Jones’ death. Ms Yeoman’s father had died in Springwood. I went down to collect her for the funeral. When I drove her back I spent a couple of days with them. By then he had returned to drinking after a period when he had stopped drinking. Things between them were as they had always been.

Over the years I tried to help Ms Yeoman by making suggestions on how things could be better. She seemed to have lost all interest in life and motivation. Nothing that I suggested made a difference.

Damien was born in 1998. Both Ms Yeoman and Garry Jones were close to him. When in Temora I observed that Damien was always pretending to be someone else. He would ask other people in the house to assume other roles such as a character from the film Toy Story or Bob the Builder. At the time I thought he just had a very active imagination. Now I believe that his activities were an effort to block out what was happening in the household between the parents. He was never taken out of the house and was very shy.

Since Ms Yeoman moved from Temora to the Blue Mountains area I have seen positive changes in Damien as there is more contact with his extended family and more structure in his life. I think that he has come out of his shell, his behaviour has improved and he looks healthier.

25 The material with which I have been provided reveals that the offender’s physical and mental health deteriorated after the family moved to Temora. There the offender, deprived of ready contact with family and friends, felt very isolated. She began to drink excessively in an endeavour to cope with her feelings of isolation and to deal with the reality of her violent relationship with the deceased.

26 The offender’s third son, Nathan who is currently serving a short gaol sentence, provided some insight into the nature of his childhood. He described his father’s behaviour when intoxicated as “distressing”. He recalled that there were arguments between his father and his mother particularly on occasions when his father came home having spent all his money on alcohol. A fight would ensue and the children would be picked on. He recalled one such incident during which his father threw a knife at his mother. It missed her but went into Nathan’s calf. The injury required stitches. He also recalled other occasions on which he observed the deceased strike his mother causing injuries to her face.

27 The offender’s oldest son, Shane, provided a victim impact statement. He confirmed other accounts of his parents’ chronic drinking problems and of occasions when violence was exhibited. He said that he had been frightened of his father until he was old enough to stand up to him. His own life had been dominated by alcohol. However having attended an alcohol rehabilitation program, he has now stopped drinking. He ends his statement with the following poignant observations:

My major concern about sentencing is the outcome for my four year old brother Damien. Damien needs his Mum. I am ambivalent about Mum getting a light sentence because I feel she did the wrong thing but I also love her and am concerned for Damien. I am prepared to help look after Damien if that is necessary. I also feel Mum should get some counselling like I have. I wish to keep in contact with Mum but she does not seem to feel this way at the moment.

28 I have also received a victim impact statement from the second oldest son, Gregory. In it he expressed understandable feelings of grief and anger as a result of the death of his father. I am aware of course that the effect of the death of Mr Jones upon relatives is not, for present purposes, a relevant consideration. See R v Previtera (1997) 94 A Crim R 76. Nonetheless the court expresses its profound sympathy to all those who have been and are suffering by reason of Mr Jones’ death.

29 I have related the history of the deceased’s domestic violence in order to provide a context in which the present offence occurred. I have no intention in doing so to cast any judgment upon the behaviour or lifestyle of the deceased.

30 As I have already observed the offender witnessed domestic violence by her father against her mother. It would involve her father punching, hitting or choking her mother at least once a month. It only ever occurred after her father had consumed alcohol. The offender was as a result understandably upset and angry with her father but was left with feelings of helplessness about the situation. Her mother would afterwards carry on as if nothing had happened. The offender would sometimes seek refuge from the violence at her grandmother’s house.

31 Growing up in such an atmosphere, the offender came to believe that violence was the norm in domestic relationships. When it happened to her she tried to block it out. It took a similar form to that which she had witnessed as a child although she reported that the deceased had also head butted her on occasions. She was too embarrassed to ask for help, a course of action which she would have regarded as a sign of weakness. She also hoped that things might improve. Indeed when the deceased was employed, there were periods of relative calm. Regrettably the deceased had not been employed for about 10 years prior to his death.

32 I have been provided with a psychosocial report prepared by Ms Danielle Castles, who is employed by the Legal Aid Commission. She has had 17 years experience working in the social welfare field, with particular expertise about drug and alcohol issues and domestic violence. The report is comprehensive and instructive. I have found it to be of considerable assistance. In those circumstances, I am of the view that it would be helpful to set out extracts from it which I have found to be particularly illuminating. Ms Castles commences by explaining the nature of domestic violence. She says that:

“Women experiencing domestic violence are often subjected to physical, sexual, emotional/psychological, social and economic abuse. Abuse may be overt (physical violence) or it might be deceptively subtle (emotional abuse).

It is the interplay between making the woman fearful and reducing her self esteem which results in the abuse having significant and prolonged effects on the woman.”

The effects of domestic violence are such that women in violent relationships are convinced they are hopeless, that they need to be dependent upon the abuser and could not possibly survive without him. The most significant aspect of prolonged abuse is the gradual breaking down of a woman’s autonomy.

33 Ms Castles then sets out the ways in which domestic violence impacted upon the present offender:

Social Control

Deprived of the affirmation and validation of others, the victim of abuse becomes that much more vulnerable to the attentions at the abuser

In 1993 Mr Jones moved his family away from the Penrith area to Temora, near Wagga. Ms Yeoman had no contact with her family during this time, whereas before she saw them often.

"We would have a big fight and I would stay. I would never leave the boys alone with him”.

I just didn't go out at all

nice when people were there, but he would start when people left".

Ms Arnold confirmed that when the family moved to Temora that she rarely saw them.

Emotional/psychological control

At the start it was just me he would put down, over the years, it was my family too. He would put down the boys all the time, just for being kids".

Graphic swearing. I felt degraded

He made me think I was a slut, that I must be whatever he said. He went on and on about things until in the end you believed him. I believed him".

Over recent years Ms Yeoman reported that the physical violence had abated but the emotional and psychological abuse had increased to replace it. She recalled that Mr Jones would regularly threaten her with violence, call her names, put her down and generally taunt her.

Physical Violence

Actual physical violence and threats of violence were common throughout the relationship. Ms Yeoman recalled that she was regularly hit or choked by Mr Jones.

It was before Nathan was born, he chased us around the house with a weapon, a gun, threatening to kill us. We hid in the backyard, he was yelling. I was scared, I stayed in the back room with the boys that night. We stayed away from him the next day - stayed mostly outside".

Ms Yeoman added that Mr Jones often threatened to kill her. The enormous power of the fear instilled in women in such a situation means it is not necessary to use violence all the time. It is the unpredictability of violent outbursts which helps keep the woman under control. Ms Arnold recounted an incident where Mr Jones slashed the pet cat's throat in front of Ms Yeoman and the boys. Such a violent act would have sent a clear and powerful message to his family.

Ms Yeoman recalled an incident in the 1970's where she refused to buy Mr Jones marijuana and was punched in the face for saying no. Ms Yeoman was also able to recall many separate occasions in which Mr Jones was violent to their sons.

I would try to intervene, to stop him. I would be ignored. Once he threw a knife which hit Nathan in his leg (Nathan was aged eight). DOCS (Department of Community Services) came and wrote a report but did nothing"

"That their Dad was cranky, drunk and cranky".

Cycle of Violence

Theorists outline a cycle of violence which identities (sic) the pattern of abuse in relationships where there is domestic violence. Characteristically the cycle has several phases.

"The cycle begins with a build up of tension, fear and control, until the violent episode. After the explosion comes a period of remorse, during which time the man will coax the woman back to his side. The cycle inevitably recommences as this honeymoon period lapses".

We just knew, we dreaded these days coming around. I was always trying to keep the kids quiet."

"honeymoon period

oh you mean the initial I'll be nice now period"

just keep the peace

Culture of Silence

For sure. She always put on a brave face, every-one pretended it was okay. But you could see it in their faces, in the kids faces".

"we didn't interfere, in our family we don't interfere in the way we raise our kids or live our lives

I got her primed to get an AVO, but the next day she backed out. I s'pose she was scared and that".

Impact of Domestic Violence

doing something every-day so he doesn't have to think about it".

The youngest son Damien is aged four. Whilst Ms Yeoman believes he has not witnessed any physical violence she knows that he would have heard much of the ongoing verbal abuse.

Ms Yeoman believes that the death of Mr Jones has had a greater impact upon Damien than exposure to domestic violence. Her observations of Damien's behaviour, however, suggest quite a different reality.

Ms Yeoman reported significant changes in Damien's behaviour since the death of his father. She said that Damien:

· No longer wets the bed.

· Has stopped stuttering one week after his father's death.

· Is now eating his dinner.

· Is more sociable, for example, he used to hide under the table when visitors came.

· Has met his grandmother, aunts, uncles and cousins for the first time. (Damien chatted about his cousin Josh at the interview).

"He talks now, he sits on my knee and says `I love you'. He was so secluded before (in Temora). He never saw any-one (sic). If I would visit he would hide under the table".

just pain

I would be nicer to him the next day, cook something he liked, buy him something or generally keep the peace"

"How could I know. Its just how I was

"Of course she was depressed! Any-one would be with my brother. I would be just from visiting"

Sharon just gave up

Ms Gross noted that the impact of domestic violence upon Ms Yeoman was obvious. " She came to a point where she couldn't take it any more and started drinking. Life and motivation went out of her. She became resigned to the situation. She lost her motivation for life. She spent a lot of time just sitting and staring ".

34 Ms Castles summarised her conclusions in the following terms:

Ms Yeoman presented as a woman struggling to come to terms with the death of her husband, their history of domestic violence and the impact domestic violence has had upon herself and her sons.

A normal life, a good life”

just give up.”

It is the interplay between making the woman fearful and reducing her self esteem which results in the abuse having significant and prolonged effects on the woman. The most significant aspect of prolonged abuse is the gradual breaking down of a woman’s autonomy. Dr Judith Herman, a psychiatrist who has worked extensively on the impact of traumatic violence, argues that the experience of repeated trauma through captivity, whether as prisoners of war, soldiers in combat, political hostages or women who are battered over a period of time, produces qualitatively worse damage that is profound and long term, including the loss of will to live, robotisation, and erosion of personality. Ms Yeoman said that over time she believed what Mr Jones said of her. She succumbed to his world view.

Ms Yeoman used alcohol mainly in response to the domestic violence. It appears it was her primary coping mechanism. Both Ms Arnold and Ms Gross confirm that it was as though Ms Yeoman resisted for some time but that in the end she succumbed to binge drinking as a way to escape or cope. Ms Yeoman reports that now she does not feel the need to drink and is aiming for abstinence.

….

In my professional opinion the circumstances surrounding Mr Jones’ death are best understood against the backdrop of chronic domestic violence. Twenty-five years of physical violence and verbal abuse have substantially eroded Ms Yeoman’s personal autonomy. In the months and weeks proceeding (sic) Mr Jones’ death I note that his mood had deteriorated dramatically and his alcohol consumption had increased. I think that it is significant that Ms Yeoman was consistently subjected to Mr Jones’ verbal abuse and taunting even though he was seriously unwell.

35 Ms Castles makes the following observations about the offender’s relationship with her son, Damien:

As is common in families where there is domestic violence the parent/child relationship often experiences significant disruption. It appears however that Damien has developed a secure attachment to Ms Yeoman. Ms Yeoman, with much input and support from her family, has begun to establish essential routines and boundaries for Damien. It seems however, that in the past these essential elements of effective parenting and secure family life were lacking.

Ms Gross said that it is only recently that Damien’s life has become more stable. Ms Yeoman will need ongoing support in order to parent Damien effectively and support him through his loss and recovery from domestic violence. The present honeymoon period will fade as Damien seeks autonomy and mastery through his own development milestones. It is likely his behaviour will become challenging for Ms Yeoman. It is my opinion that Ms Yeoman and Damien would benefit enormously from a parenting program.

Generally speaking, there are three steps integral to the recovery pathway. They are 1) establishing safety, 2) reconstructing the trauma story and 3) restoring connection between survivors and their family/community. Ms Yeoman and Damien are now safe. They will however both need professional and familial support to reconstruct the trauma story, that is, to put it in its proper context by understanding the dynamics of their trauma, to not internalise or take responsibility for the violence and to recover from its effects. The third step of the recovery pathway, reconnecting survivors with their family and community has just begun for Ms Yeoman and Damien.

Damien began school on Friday January 31. The impact of separation from his mother at this development stage would be enormously detrimental for Damien. From all accounts he has just become settled and is feeling safer and secure. This is clearly in evidence by the significant and positive behavioural changes in Damien.

Children of Damien’s age interpret most events in relation to self. They do not have the cognitive competence to take into account the whole situation. Placing blame for adult anger or violence or their absence on oneself, therefore, is a developmentally defined common occurrence for preschoolers. There is a real risk that Damien would see himself as the cause of his mother’s absence.

As already mentioned Damien has begun at school. He will be exposed to interactions with many children and adults. For a child who has been isolated to the extent Damien has, negotiating multiple new relationships could prove to be quite stressful. Damien’s experience of and exposure to domestic violence from birth puts him at a disadvantage when meeting this particular milestone.

It has been observed that exposure to domestic violence may affect pre-school age children’s social-cognitive development competence; they were often socially isolated from their peers and did not relate to the activities or interests of their age group and they had some problems relating to adults. It would be in Damien’s best interests for disruptions to be kept to an absolute minimum.

36 The offender was examined by Dr Bruce Westmore, a forensic psychiatrist. Having obtained a history from her, Dr Westmore expressed the following opinion:

It is probable that she has had episodes of depression in the past in response to the reported violence towards her, the most appropriate diagnosis appears to be episodes of an adjustment disorder with symptoms of depression and possibly anxiety… .

Her history profile would suggest she has some features of the so-called “battered spouse syndrome”. While never financially dependent on the deceased, she reports that she did love him and she repeatedly returned to him after he was violent towards her when he indicated he was sorry and violence towards her would not occur again.

While there is no pattern of violence in her life in terms of her involvement in other or previous violent relationships, she did witness violence at home when her father was aggressive towards her mother. She also had dependant (sic) children at home over a number of years and a dependant (sic) child at the time the incident occurred. She describes being scared to leave the deceased, fearing he would come after her or fearing that he might harm himself as he attempted to do on one occasion previously when she left him. She describes herself as being weak willed and not having the courage to do what she felt she should have done many years ago, that is, to leave the deceased after his violence towards her started. She felt she did not “have the power” to do so. These are some of the characteristics which are seen in battered spouses and some of her history is consistent with that particular condition.

On the day of the incident she acknowledges that she was intoxicated and the incident was precipitated by an argument between herself and the deceased. The deceased had not been physically violent towards her on that day although he dared her to stab him with a knife which he in fact took from the kitchen.

37 Upon the important question of any future risk which the offender may pose, Dr Westmore concluded that:

I do not believe that this woman represents any risk to the general community or to any person in the community at this time. The matters before the court arose from a very specific and peculiar set of circumstances and are therefore very situationally specific. Her risks of reoffending in the future in such a way are in my opinion negligible, probably non-existent. Supporting this opinion is her additional history that she no longer takes alcohol.

38 The offender was referred to Mr John Flockton for a psychological assessment. His opinions and conclusions are set out below:

Clinical assessment with Ms Yeoman suggests chronic low level depression (dysthymic disorder – DSM-IV 300.4) not unusually found in women who have experienced persistent domestic violence and/or been victim or witness to various forms of long term abuse. Her reported exposure to parental domestic violence in childhood must also be considered as a contributing factor to her current presentation.

Assessment does not confirm the presence of a trauma-induced disorder such as post traumatic stress disorder during the course of the relationship with her partner. She has however suffered at least mild to moderate impairment to her own level of functioning by being witness to his persistent physical and emotional abuse of her sons.

Periodic alcohol abuse and “binge drinking” as reported by Ms Yeoman and its known effects on judgment and impulse/emotional control also needs to be taken into account in assessment of Ms Yeoman’s state of mind at the time of Gary Jones’s death and her general level of psychological functioning.

39 A pre-sentence report has been prepared. The author of the report says of the material to which I have made reference, that it clearly outlines:

…the detrimental psychological impact that the emotional and physical abuse perpetrated by the victim over the years has had on Ms Yeoman, and her likely need for long-term counselling and treatment to address this issue.

Ms Yeoman indicated that she regretted stabbing her husband, claiming that her actions were “spur of the moment”, and a reaction to the victim’s recent and constant taunting of her in relation to the death of her father some weeks before, against the background of the emotional and physical abuse perpetrated on her by the victim over the previous years. She could recall being “very drunk and very angry” at the time of the offence, although she claimed to have been unaware of the extent to which she had injured him with the knife. Nevertheless, Ms Yeoman indicated the [sic] she “loved him”, and felt very sorry for the impact her actions have had both on her and her children, who are now without a father.

The offender expressed her concern regarding the emotional well-being of her 5 year old son should she receive a full-time custodial sentence, although she indicated that she has already made arrangements for one of her sisters to care for him should she be imprisoned.

The offender presents as being genuinely remorseful for her actions and their tragic consequences. It appears that Ms Yeoman’s own alcohol abuse, together with the psychological impact of being subjected to long-term emotional and physical abuse by the victim, have directly influenced her commission of the offence.

40 I remind myself that I must proceed to sentence the offender against the background of the relevant statutory framework and in accordance with the principles enunciated in the relevant authorities. The plea of guilty was, as I have said, entered on 28 February 2003. In those circumstances I must have regard to the purposes of sentencing which are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. That section, which is in the following terms, commenced operation on 1 February 2003:

3A

41 I must also, in determining the appropriate sentence, have regard to the aggravating and mitigating factors which are set out in s 21A of that Act. It is apparent from the concluding words of s 21A(1) that the list is not exhaustive. As long as I take into account those factors that are relevant and known it is not necessary, as I understand the situation, to deal seriatim with each matter which is identified. Suffice it to say that I have had regard to the statutory requirements to which I have just referred and given due weight to the matters which I regard as being of particular relevance.

42 It is also necessary to have regard to the maximum penalty which is prescribed by the legislature. In the case of manslaughter it is imprisonment for 25 years. See s 24 of the Crimes Act 1900. Finally so far as statutory requirements are concerned, I remind myself that s 5(1) of the Crimes (Sentencing Procedure) Act1999 provides that “[a] court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.”

43 Furthermore I must have regard to the particular principles that inform the sentencing task in a case such as the present. The starting point must be the fact that a human life has been taken. The community expects that human life will be protected by the law and that those who take it will be punished. See R v Troja (CCA unreported 16 July 1991 at 2); R v McDonald (CCA unreported 12 December 1995). In R v Hill (1980) 3 A Crim R 397, Street CJ said:

It has been said that manslaughter, perhaps, beyond any other crime is protean. The circumstances leading to the felonious taking of human life being regarded as manslaughter rather than murder can vary infinitely, and it is not always easy to determine in any given case what should be done in the matter of sentence. At the start it should be recognised that the felonious taking of a human life is recognised both in the Crimes Act, 1900 and in the community at large as one of the most dreadful crimes in the criminal calendar. The courts have, however, over the decades gradually manifested a willingness to recognise factual contexts which provide some basis for understanding the human tragedies that can lead to the taking of a life. The manifestation of this humanitarian tendency is necessarily attended by the utmost caution. It can be seen to be constantly written in the decisions of the courts and in the enactments of the legislature that the taking of a human life is a grave action calling for a correspondingly grave measure of criminal justice being meted out to the guilty party.

In a case such as the present, where there is material justifying a degree of understanding and of sympathy towards the appellant, the task of sentencing is particularly difficult. It is necessary to evaluate the demands of the criminal justice system, the expectations of the community at large, the subjective circumstances of the person coming forward for criminal judgment and the interest of society in protecting itself and its members from criminal activity amounting, as in the present case, to the taking of a life.

This is more deliberate than what is at times encountered in a manslaughter situation within a domestic circle of two persons struggling together in a mutually drunken state in which one seizes a knife from a nearby receptacle and the knife finds its way into a mortal part of one or other of the participants in the struggle. The present case involves, it is repeated, the deliberate obtaining of a rifle and bullets and then the firing of the rifle at the deceased

44 In R v Roberts (NSWSC unreported 31 August 1989) Hunt J, in the course of deferring passing sentence upon an offender who had been the victim of domestic violence, said that:

[I]t has been made clear by the courts that the taking of a human life, even within the context of domestic violence, will not be viewed with leniency. Not even extreme domestic discord can ever be an excuse for the victim to take the law into her own hands and to extinguish the life of the aggressor. But those statements have been made in cases where the victim is standing for sentence upon the basis that there has been an intention to kill or to cause grievous bodily harm, and where the crime of murder has been reduced to manslaughter by reason of provocation. In that situation, it is only in the most exceptional case that a non-custodial sentence will be imposed. (at 5)

Roberts

R v Bogunovich

45 There are a number of matters upon which the offender is entitled to rely in order to mitigate what would be the otherwise appropriate penalty. See s 21(A)(3) of the Crimes (Sentencing Procedure Act) 1999. First, she has no criminal convictions recorded against her. She has, but for this incident, lived an otherwise blameless life. She has raised her children in difficult circumstances to the best of her ability. I accept that she may thus be regarded as a person of good character Secondly, she made immediate admissions that she had been responsible for the death of the deceased. Thirdly, she entered a plea of guilty to the charge of manslaughter at the first opportunity that was available to her. See s 22 of the Crimes (Sentencing Procedure) Act 1999. In doing so, to adopt the language used by the High Court in R v Cameron (2002) 187 ALR 65, she has “facilitated the course of justice.” In R v Thomson and Houlton (2000) 49 NSWLR 383, the Court of Criminal Appeal indicated that an early plea of guilty would, in appropriate circumstances, entitle the offender to a substantial discount from the otherwise appropriate penalty. Furthermore, the Court went on to say that “[i]n some cases, the plea, in combination with other relevant factors, will change the nature of the sentence imposed” (at 419). Fourthly, I accept that the offender is quite genuine in her expressions of remorse for the consequences that her actions have caused. Moreover, I accept the submission that had she contested the charge before a jury, she may have been able to resist the Crown case against her. In those circumstances, her plea of guilty assumes particular significance. Fifthly, especially as she has now abstained from the consumption of alcohol, her prospects of rehabilitation are excellent. I accept the view of Dr Westmore that she is most unlikely to re-offend. Sixthly, I accept the view of Ms Castles and others that it is especially important that she be in a position to perform an on-going nurturing role in the development of her young son. He is at a vulnerable age and seems now to be flourishing in his new environment. Seventhly, it is apparent from what I have already said that there was no element of planning on the part of the offender. Eighthly, as I have earlier remarked it is apparent that the offender was in all likelihood to some extent provoked into doing what she did. The Crown correctly characterised it as being a case in which there was a measure of provocation albeit falling short of the statutory requirement. Ninthly, it is clear that the offence took place against the background of continuing domestic violence over a prolonged period of time the impact upon her of which cannot, for the reasons advanced by Ms Castles and others, be underestimated. Tenthly, I accept the evidence of Dr Starmer that the offender was not fully aware of the consequences of her actions by reason of the extraordinary amount of alcohol which she had consumed. This would invite the conclusion that the offender, by reason of her intoxication, acted out of character. See R v Coleman (1990) 47 A Crim R 306 at 327. Those factors, particularly when considered in combination, enable the offender to make out a legitimate claim for an unusual degree of leniency.

46 Mr Craigie SC, on behalf of the offender, has urged me to impose a non-custodial sentence upon his client. When I asked the Crown Prosecutor for his attitude to that submission, he indicated that he did not wish to be heard. That clearly was a position taken after due consideration by an experienced, responsible and capable Crown Prosecutor who has appeared in many homicide cases. Although I must exercise my sentencing discretion in accordance with established principles, I am entitled to have regard to, and be guided by, the attitude of the Crown Prosecutor whose task, in situations such as the present, is to ensure that the Court does not fall into appealable error. When pressed he did indicate that I would not be falling into that kind of error if I was to accede to Mr Craigie’s submission.

47 In support of his contention, Mr Craigie has referred to a number of decisions of this Court in which the offender has, in somewhat comparable circumstances, received the benefit of a good behaviour bond. See R v Gardner (NSWSC unreported 27 March 1992 per Wood J); See R v Woolsey (NSWSC unreported 19 August 1993 per Newman J); R v Varagnolo (NSWSC unreported 21 March 1996 per McInerney J) and R v Jans [2000] NSWSC 525 per Grove J. I was also referred to the decision in R v Spencer (NSWSC unreported 18 December 1992 per Matthews J) in which a sentence of periodic detention was imposed although it may be observed that unlike the present case, that was a case in which murder was reduced to manslaughter, by reason of provocation. The Crown pointed out that none of those cases attracted a Crown appeal.

48 Although each of those decisions turns on its own facts, it may be accepted that in each there was present a history of domestic violence which was usually accompanied by a significant degree of alcoholism on the part of the deceased. Several of the cases exemplify what has come to be called the “battered wife syndrome” or perhaps more correctly the “battered spouse or partner syndrome”. That phenomenon has been recognised in this country at least since R v Runjanjic & Kontinnen (1991) 56 SASR 114. I have derived some assistance from the cases to which I have been referred and in particular from the case of Woolsey, which bears considerable factual similarities to the present case, and Varagnolo. I also accept that the decisions to which I have been referred are said to be a representative sample, rather than an exhaustive list, of cases in which there has been a disposition of other than full-time custody.

49 I have also derived some assistance from two fairly recent decisions. In both R v Kennedy [2000] NSWSC 109 and R v Melrose [2001] NSWSC 847, aboriginal offenders who had stabbed to death their respective partners and who had been subjected to domestic violence, were each placed on a good behaviour bond. In each instance the offender had pleaded guilty to manslaughter by reason of an unlawful and dangerous act.

50 It is not easy to categorise the heinousness of the offender’s actions in the present case particularly as the Crown case depends almost entirely upon the offender’s version of what occurred. As I have already said, her recollection of the relevant events surrounding Mr Jones’ death is imperfect. Given that difficulty, I am disposed to accept Mr Craigie’s submission that “the offender’s intention was no more and no less than to engage in a desperate and objectively dangerous gesture, without intending harm or worse to the deceased” although I would interpose the words “any real” between the words “intending” and “harm”. He accurately characterised the case as one of a “non-intentional homicide in circumstances of tragic misadventure.” In those circumstances, it appears to me that it is not inappropriate to regard the offender’s criminality as falling towards the lower end of the scale of culpability for an offence of this kind. When that consideration is taken in conjunction with the very powerful subjective case which has been advanced on behalf of the offender, it appears to me that the exceptional course which Mr Craigie urges can be adopted without offending the various principles to which I have earlier made reference, notwithstanding the fact that a human life has been taken.

51 I have given anxious consideration to the various sentencing options which are available to me. In the final analysis, I am persuaded that the interests of justice can be appropriately met by the order which I am about to pronounce.

52 Sharon Yeoman please stand. Pursuant to s 9 of the Crimes (Sentencing Procedure) Act I make an order directing you to enter into a good behaviour bond for a period of four years. In accordance with s 95 of that Act that bond will be subject to the following conditions:

(1) that you appear before the court if called on to do so at any time during the term of that bond;

(2) that you be of good behaviour during the term of the bond;

**********

Last Modified: 04/24/2003

Citations

Regina v Sharon Kaye Yeoman [2003] NSWSC 194

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CITATION:	Regina v Sharon Kaye Yeoman [2003] NSWSC 194
HEARING DATE(S):	28 February 2003, 21 March 2003
JUDGMENT DATE:	21 March 2003
JUDGMENT OF:	Buddin J
DECISION:	Pursuant to s9 of the Crimes (Sentencing Procedure) Act 1999 I make an order directing the offender to enter into a good behaviour bond for a period of four years. In accordance with s 95 of that Act that bond will be subject to the following conditions: 1 that you appear before the court if called on to do so at any time during the term of that bond; 2 that you be of good behaviour during the term of the bond; 3 that you accept the supervision of the Probation and Parole Service for the duration of the bond and in particular obey all reasonable directions of the Service in relation to attending and participating in programs, counselling and treatment in respect of issues relating to alcohol.
CATCHWORDS:	Manslaughter - unlawful and dangerous act - plea of guilty - background of domestic violence and chronic alcoholism - powerful subjective case.
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Bogunovich (1985) 16 A Crim R 456 R v Cameron (2002) 187 ALR 65 R v Coleman (1990) 47 A Crim R 306 R v Gardner (NSWSC unreported 27 March 1992) R v Hill (1980) 3 A Crim R 397 R v Jans [2000] NSWSC 525 R v Kennedy [2000] NSWSC 109 R v McDonald (CCA unreported 12 December 1995) R v Melrose [2001] NSWSC 847 R v Previtera (1997) 94 A Crim R 76 R v Roberts (NSWSC 31 August 1989) R v Runjanjic & Kontinnen (1991) 56 SASR 114 R v Spencer (NSWSC unreported 18 December 1992) R v Thomson & Houlton (2000) 49 NSWLR 383 R v Troja (CCA unreported 16 July 1991) R v Varagnolo (NSWSC unreported 21 March 1996) R v Woolsey (NSWSC unreported 19 August 1993)
PARTIES :	Regina Sharon Kaye Yeoman
FILE NUMBER(S):	SC 70077/2002
COUNSEL:	P Lynch (Crown) SC Craigie SC (Offender)
SOLICITORS:	SE O'Connor (Crown) DJ Humphreys (Offender)