R v Buttery [2014] NTCCA 3

PARTIES:	THE QUEEN

	v

	BUTTERY, Bronwyn

TITLE OF COURT:	COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:	CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO:	CA 8 of 2013 

DELIVERED:	15 January 2014

HEARING DATES:	23 and 24 July 2013

JUDGMENT OF:	KELLY, BLOKLAND and BARR JJ

APPEALED FROM:	MILDREN J	

CATCHWORDS:

CRIMINAL LAW – Sentencing – Crown appeal against sentence – sentence unexceptional – no error demonstrated – sentence not manifestly inadequate – appeal dismissed.

CRIMINAL LAW – Sentencing – manslaughter – provocation – sentence not manifestly inadequate – appeal dismissed.

R v Blacklidge (NSWCCA) 12 December 1995, referred to.

Criminal Code (NT): s 411(4), s 414(1)(c), s 414 (1A)

REPRESENTATION:

Counsel:
	Appellant:	L Taylor SC and M Thomas
	Respondent:	R Wild QC

Solicitors:
	Appellant:	Office of the Director of Public Prosecutions
	Respondent:	De Silva Hebron Barristers & Solicitors

Judgment category classification:	B
Judgment ID Number:	Bar1401
Number of pages:	17

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

R v Buttery [2014] NTCCA 3
No. CA 8 of 2013

	BETWEEN:

	THE QUEEN
	Appellant

	AND:

	BRONWYN BUTTERY
	Respondent

CORAM:	KELLY, BLOKLAND & BARR JJ

REASONS FOR JUDGMENT

(Delivered 15 January 2014)

THE COURT:
[1]	This is a Crown appeal against sentence. 
[2]	The respondent, her son Christopher Malyshcko, and Zak Grieve were each charged with the murder of Raffaeli Niceforo (“the deceased”) on or about 24 October 2011.  The Crown case against the respondent was that she counselled or procured the murder of the deceased by the others, with intent to cause the death of the deceased.  Following a lengthy jury trial, Christopher Malyschko and Zak Grieve were found guilty of murder, and the respondent was found guilty of manslaughter.  On 9 January 2013, the respondent was sentenced to imprisonment for a period of eight years with a non-parole period of four years. 
[3]	The Crown appeals as of right on ground that the head sentence was manifestly inadequate. 
The offending
[4]	The learned sentencing Judge reviewed the circumstances of the offending in light of the verdict of the jury, and found the facts to have been as follows. 
[5]	The respondent was 53 years old at the time of sentencing.  Christopher Malyshcko was one of the children of her previous marriage.  After her divorce, she had a significant equity in a house in Royal Park, South Australia, of which she was the sole owner.  The respondent met the deceased in 2007 when she was working in a Woolworths store as a night filler.  The deceased was driving delivery trucks at the time.  The deceased returned to the Northern Territory and the respondent kept in contact with him.  In September 2007 she flew to Darwin to meet with him and became involved in a relationship with him for a short period, before returning to Adelaide.  In November 2007 the respondent moved to Katherine and obtained employment as head housekeeper for the All Seasons Motel.  She used to see the deceased each weekend.  He was working in Darwin at the time.  Subsequently the deceased obtained employment with a mining company in Pine Creek and at that stage the respondent and the deceased moved into a home unit together, in Katherine.
[6]	In 2008 the respondent purchased the Waterworks Laundry business in Katherine from the deceased’s brother for an amount of $50,000.  The respondent financed the purchase by granting a mortgage over her property in Royal Park.  The respondent and the deceased worked together in the laundry business.
[7]	Over the years from 2008 to 2011 the respondent’s relationship with the deceased deteriorated considerably, commencing not long after cohabitation began.  The deceased regularly used to call the respondent a stupid coon cunt and such other insulting and demeaning names.  The respondent was still in love with the deceased and agreed at his request in about September 2008 to undergo IVF treatment on two occasions in an effort to become pregnant.  The disappointment caused by the lack of success of the IVF treatments was a major factor in accelerating the change in the deceased’s attitude towards the respondent.  However, in October 2009, on the occasion of the respondent’s 50th birthday, the deceased proposed marriage and the respondent accepted the proposal in the hope that things would eventually get better.  They did not.
[8]	In about February 2011, Christopher Malyshcko decided to move to Katherine to work in the respondent’s laundry business.  There were two reasons for this decision: to save money, and to help the respondent leave the deceased.  Christopher Malyshcko took up residence in the adjoining home unit to that occupied by the respondent and the deceased.  However, Mr Malyshcko and the deceased did not get on; the deceased constantly belittled him and, as found by the sentencing judge, treated him abominably.
[9]	In June 2011, the respondent and Christopher Malyshcko obtained a full contact DVO against the deceased.  They both moved out of their adjoining accommodation in order to live elsewhere.
[10]	A few weeks later, however, the respondent decided to give the deceased another chance because he had sent text messages to her to the effect that he still loved her.  Members of the deceased’s family also made representations to the respondent that she and the deceased should reconcile.
[11]	The sentencing judge summarised the abuse suffered by the respondent over the period of co-habitation up to September 2011 as follows:
In summary, over a period of about two to three years you were subjected to a series of violent acts, including being choked by the deceased when he put his hand around your neck and lifted you off the floor, he deliberately burnt you with a cigarette, he pushed you onto the floor and stood on your chest, he grabbed your right arm and twisted it up behind your back towards the nape of your neck, he grabbed the middle finger of your right hand and twisted it back onto your thumb, he assaulted you with a hammer when he pushed you up against a wall and then at the last minute struck the bathroom door instead of you, he pointed a gun at you and threatened to give you both barrels if you did not keep your mouth shut, he forced himself upon you sexually and all the time swearing at you constantly, belittling you in front of others and using insulting words and gestures.
In addition, his behaviour towards other employees at the Laundromat was nothing short of scandalous and led to resignations and on some occasions he purported to fire staff for no good reason, and even though the business was not his, and he not acting in a managerial role.  He was a bully who always wanted his own way.  Nothing could ever satisfy him, no matter how hard you or others tried.  You were plainly cowed into doing his bidding at every turn, and were very frightened of him.  After the DVO, he no longer worked in the business but you continued to pay him a wage.  You had also financed his car collection.  He smoked marijuana and took other drugs.  He relied on you for money.  By the end of 2011 he had cost you so much money that you were effectively bankrupt.  You were his cash cow.  
[12]	In September 2011 the respondent went to Darwin with a female friend for a weekend getaway.  By that time she had lost a lot of weight and needed a break from the deceased.  She decided that she would not tell the deceased about this trip in advance, because, if she did, he would have wanted to accompany her.  When she returned the deceased interrogated her and, although the respondent told him the truth, the deceased believed that she had gone with another man and sent a number of abusive text messages to her.  
[13]	On 19 September 2011, the deceased arrived at the respondent’s laundromat business and ordered two of the staff to leave for the stated reason that there was no work for them any more.  He then began yelling at the respondent, demanding to know the name of the man who had accompanied her on her weekend to Darwin.  At one stage in the course of that confrontation he cornered the respondent and flicked her breasts, before then pushing a shopping trolley into her so that she could not move.  He then screamed into her face, demanding to know who she had been with in Darwin and how many times she had had sex.  He also called her a slut, and other things.  At another stage of the same confrontation he demanded that the respondent launder some tea towels for a friend and, when the respondent told the deceased that she was not going to do it, he threatened that his lawyer would ring her to tell her that she had to do it.  He then stormed out.
[14]	That evening the deceased sent a series of text messages in which he demanded copies of bank balances; demanded that the tea towels be laundered; and said that he intended to come in the next morning to take over the business.  One of the text messages read: “You better realise your genetic code sitting beside you will disappear and there’s no turning back”.  The sentencing judge found that this was clearly a threat to kill Christopher Malyshcko.  The texts referred to were followed by a number of very abusive and threatening texts which were followed the next morning by a further text which read as follows: “You had better think about – you are doing real quick today could be the day you lose someone close to you”.  The respondent interpreted that text, not unreasonably in the view of the sentencing judge, as a threat to kill her son Christopher Malyshcko.  
[15]	In the morning of 20 September 2011, the tyres on a van used in the respondent’s laundromat business were slashed.  The identity of the person causing the damage was not established. Later that morning, the deceased arrived at the laundromat in a very angry state, such that his eyes were bulging.  He abused Christopher Malyshcko, called him a fagot and a poof, and threatened to “rip his dick off”.  He approached very close to the respondent and whispered in her ear “Today could be the day that you lose someone close to you”.  He then demanded coins to use the coin operated washing machines to wash the tea towels referred to earlier, but then left the laundromat premises to walk to a nearby public laundromat.  The police were called and the door to the respondent’s business was locked to keep the deceased out.  
[16]	The trial judge found that, when the police arrived at the respondent’s Laundromat, they observed that she and Christopher Malyshcko were both pale, shaking and plainly distressed, and having difficulty even speaking properly.
[17]	After the police left to confirm the status of the DVO at the police station, the deceased returned to the respondent’s laundromat, banged on the locked doors, demanded more coins, made rude gestures and continued to yell and behave “like a spoilt child in a tantrum”, in the words of the sentencing judge.  Shortly after, the police returned and arrested the deceased.  He was bailed later that day on conditions similar to a full non-contact DVO to appear at the Katherine Magistrates Court on 20 October 2011.
[18]	The respondent and Christopher Malyshcko went to the police station where both made statements.  The statement of Christopher Malyshcko referred to something allegedly said to him by the deceased that the deceased had “fucked his mum up the arse and made her bleed and fucked his mum and made her squeal.”  The respondent later read her son’s statement and was disgusted by it.  
[19]	Later that day, the deceased drove past the laundromat premises, from where he could be seen by the respondent, and made a threatening gesture with his hands.  The sentencing judge found that, by that time, the respondent had reached the point where she did not feel that she could ever be free of the deceased, and that eventually he might kill her or her sons.  His Honour also made the following similar findings in the course of considering whether there was a level of self defence in the respondent’s ultimate conduct, notwithstanding the jury’s rejection of self-defence:
I accept that by September 2011 you thought that your life, and the lives of your sons, particularly Christopher, were threatened.  I take the view that at that stage you thought that you had no other choice but to bring about the deceased’s death.  You had good reason to believe that he might carry out his threats.  Not only had he directly made threats to both of your sons’ lives, and also to you, but you knew that he had convictions for weapons offences, and you had reason to believe that he might still have access to a weapon which the police had not found.  Further, in 1996 he had shot a man once before in the main street of Katherine, for which he was charged and found guilty in this court of doing an act causing danger whilst intoxicated.  Fortunately the gun misfired on that occasion and no serious harm was done, but he got a fully suspended sentence of imprisonment of 3 years.  He boasted that he had shot a man in the main street, and got away with it. …..  He was clearly a very frightening individual, demanding and controlling.  
[20]	The respondent said in her evidence that, in the evening of 21 September, after reading the statutory declaration of her son following the laundromat incident, she became serious about wanting to kill the deceased.  She referred to a combination of things, including the laundromat incident itself.  She explained that the content of her son’s statutory declaration “was more or less the straw that broke the camel’s back” because of the deceased’s “total disrespect” for her.  
[21]	The sentencing judge found that Christopher Malyshcko decided on 20 September 2011 that the deceased had to die.  He subsequently approached the respondent and asked her if she wanted to have the deceased killed.  The  respondent gave evidence in cross examination that her son approached her on a second occasion, on possibly 23 or 24 September, to discuss organising the killing of the deceased, and that she responded “Yeah, why not.”  Christopher Malyshcko told the respondent that she needed to find $15,000 to have the deceased killed.  
[22]	In late September, the respondent paid the $15,000 to her son in two lots, an initial amount of $10,000 and shortly after a further amount of $5,000.  Her son did not tell her who would carry out the killing nor when and how the killing would occur.  The respondent did not ask any questions about those matters.  
[23]	Christopher Malyshcko then planned and organized the killing, recruiting Zac Grieve and Darren Halfpenny to help carry it out.  The actual killing did not take place until the night or early morning of Sunday 23 and Monday 24 October 2011.  The killing was very brutal.  The deceased was attacked in his own flat by Christopher Malyshcko and Darren Halfpenny.  Halfpenny grabbed the deceased around the throat from behind and held him in a headlock whilst Malyshcko struck the deceased to the head several times with a wrench.  The deceased died at the scene.  The killers then drove the body to a location on Gorge Road, outside of Katherine, where they dumped the body in a shallow ditch near the side of the road.  
[24]	During the period after payment of the money up to the time of the killing of the deceased, the respondent had second thoughts.  On two occasions, she spoke to Trevor Tydd, a friend and confidant, and said that she did not think it was necessary to kill the deceased.  However, she was told “it couldn’t be stopped” and/or “it can’t be done”, that is, that the killing could not be cancelled.  The sentencing judge found that the level of persuasion to continue was not great.  He considered that it amounted to being told no more than “it is too late now”, when in fact it was not too late.  
[25]	The respondent was interviewed by police on several occasions subsequent to the discovery of the deceased’s body, but denied any knowledge of the matter.  Eventually, she decided to confess on 27 November 2011, and subsequently participated in a lengthy formal interview with police in which she made extensive admissions, claiming that she acted in self defence.
[26]	At the commencement of the trial the respondent entered a plea of guilty to manslaughter by reason of provocation, but her plea was not accepted by the Crown.  The jury’s verdict of not guilty of murder but guilty of manslaughter indicates that the jury accepted the partial defence of provocation.  In other words, the jury was not satisfied beyond reasonable doubt that: (1) the deceased had not, by his conduct, whether immediately before his death or at some earlier time, provoked the respondent; (2) the deceased’s conduct towards and affecting the respondent had not caused a loss of self-control which resulted in her conduct in causing the deceased’s death; and (3) the conduct of the deceased was not such as could have induced an ordinary person to have so far lost self-control as to have formed an intent to kill the deceased. 
[27]	During the trial, the respondent also argued that she acted in self defence (which included defence of herself and/or of Christopher Malyshcko).  However, the jury’s verdict of guilty of manslaughter indicates that the jury rejected self defence.  Notwithstanding the jury’s manslaughter verdict, the judge still had to consider, for sentencing purposes, whether there was a level of self defence in the respondent’s actions.  
[28]	The sentencing judge reasoned that the jury had not accepted self defence, not because the jury did not believe the respondent’s evidence that she believed that the deceased would eventually kill her or her sons, at least at the time she agreed to allow Christopher Malyshcko to organise the killing of the deceased, or soon thereafter, but rather because, after time had passed and the deceased had not been killed, either the respondent realised that it was not necessary to kill the deceased or because her conduct was not a reasonable response in the circumstances as she perceived them to be.
[29]	His Honour found that from a point in time before the killing of the deceased, the respondent no longer believed it was necessary to kill the deceased.  Further (or alternatively), her response to the perceived threat was not a reasonable one in that the respondent did not give the justice  system the opportunity to prove itself in providing the protection she needed.
[30]	The judge also had to consider, for sentencing purposes, the level of provocation offered by the deceased to the respondent, in respect of which his Honour made the following summary findings: 
In my opinion the level of provocation offered was severe and extreme.  Your case has many, but not all of the features of what used to be called “battered wife syndrome”.  I accept the evidence of the psychiatrists that you suffered from moderate depression as a result, and probably also post traumatic stress disorder, which reduced your capacity to act rationally, and to exercise full control over your emotions and decisions.  The jury obviously accepted that the loss of self control was of a very high order, because the Crown had not proved that the deceased’s conduct was [not] such as could have induced an ordinary person to have so far lost self control as to have formed an intent to kill.  Both of these factors have the tendency to reduce the objective gravity of the offence.  The next factor is the time between the provocation, whether isolated or cumulative in effect, and the loss of self control, which, when short, has the effect of reducing the gravity of the offence.  In this case, the provocation extended over a period of three years, gradually getting worse and worse until the events of early September.  It was these events which I find caused the loss of self control, and in the circumstances I find that the provocation was sustained until a few weeks before the deceased’s death.
Arguments on appeal 
[31]	The appellant’s arguments, directed to the single ground of manifest inadequacy, focused on the time that elapsed between provocation and loss of control; the respondent’s involvement of her son in the homicidal plan; and the degree of violence in not merely wishing to cause serious harm to the deceased but actually to kill him. 
[32]	In relation to the lapse of time between provocation and loss of control, senior counsel for the appellant, Ms Taylor SC, submitted that a significant period of time elapsed between forming the intent to kill the deceased and the actual killing.  Ms Taylor invited this Court to determine the true level of provocation operating on the respondent by looking at the respondent’s contemporaneous behavioural responses.  It was submitted that the respondent did not snap or suddenly lose control; that she did not place any conditions as to the payment of the money and that, although she had second thoughts, referred to in [24], she took no steps to stop the killing.  It was submitted that the extended time lapse in this case increased the objective gravity of the offence.  
[33]	The appellant also argued that the respondent resiled from her guilty plea to manslaughter on the grounds of provocation, ultimately arguing for a complete acquittal on the basis of self defence.  The appellant submitted that this change of approach diminishes the value of the offer to plead and hence any sentencing discount which can properly be attributed to it.  
[34]	Counsel for the respondent, Mr Wild QC, emphasised the sentencing judge’s findings as to the severe and extreme level of provocation offered by the deceased, over several years.  He submitted that the findings in respect of the deceased’s conduct and behaviour to the respondent, her son, employees and members of the Katherine community were “damning” of the deceased.  He further submitted that these findings were made after a six week trial, and not after a simple plea of guilty; moreover, the findings were made after the sentencing judge had had the benefit of seeing and hearing all the witnesses, including the respondent.  Mr Wild submitted that the sentencing judge was therefore in a peculiarly better position than this Court to consider the many factors relevant to the sentencing process, not all of which necessarily emerged from the sentencing hearing or the remarks on sentence. 
[35]	As to the discount for the plea, Mr Wild submitted that the sentence reflected a reduction of 20 per cent for the plea of guilty and a number of other matters, and that the 20 per cent discount was proper.  
The principles
[36]	It is fundamental that the exercise of the sentencing discretion is not disturbed on appeal unless error in that exercise is shown.  The presumption is that there is no error and the appellate court does not interfere with the sentence imposed merely because it is of the view that the sentence is insufficient or excessive.  It interferes only if it be shown that the sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence.  The error may appear in what the sentencing judge said in the proceedings or the sentence itself may be so excessive or inadequate as to manifest such error.  In relying upon manifest inadequacy it is incumbent upon the appellant to show that the sentence was not just inadequate but manifestly so.  The appellant must show that the sentence was clearly and obviously, and not just arguably, inadequate.
[37]	The right of the Crown to appeal against a sentence is conferred by s 414(1)(c) of the Criminal Code.  Section 411(4) provides that the Court, if it is of the opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefore and in any other case shall dismiss the appeal.  Additionally, s 414(1A) of the Criminal Code provides that the Court must not take into account any element of double jeopardy involving a respondent being sentenced again when deciding whether or not to allow a Crown appeal.  
[38]	The crime of manslaughter encompasses a wide range of situations.  As Gleeson CJ observed in R v Blacklidge: 
It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases.  Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability.   
[39]	The starting point for a sentence in every case of manslaughter is the felonious taking of human life.  That is both “the starting point for a consideration of the appropriate penalty, and a key element in the assessment of the gravity of the objective circumstances of the case”.
Consideration of the arguments
[40]	While there is much to be said for the appellant’s arguments summarised in [31] and [32], we have no doubt that the sentencing took these and all other relevant matters into account in his consideration of the objective seriousness of the offending. 
[41]	 The sentencing judge found the degree of violence involved in the offending to have been high, and his Honour correctly characterised the gravity of offending as being in the mid to high range.  At the same time, his Honour identified important and highly relevant mitigating aspects, both in relation to the offending and the offender.  After a painstaking and comprehensive analysis of the relevant facts, the sentencing judge then carefully weighed and applied the appropriate sentencing principles. 
[42]	The sentencing of offenders who themselves are victims and who commit crimes against those who have victimised them is often complex and difficult.  This case is a good example of the tensions in the sentencing process in such a situation.  In our view, however, the sentence imposed struck the correct balance. 
[43]	In our opinion, the discount of 20 per cent allowed to the respondent was within the sentencing judge’s discretion and was unexceptional.  No error has been demonstrated.  
[44]	The appellant has failed to establish that the sentence was manifestly inadequate.  The appellant has not established that the sentence failed to reflect the objective seriousness of the offending or that it was otherwise inadequate in all of the circumstances, both of the offence and the offender. 
[45]	The appeal is dismissed. 
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