“Cheeseball” murderer sentenced

Justice Howie’s sentencing remarks on sentencing Sarah Ward for the murder of Eli Westlake in June 2008 have now been published (R v Ward [2010] NSWSC 304).

I wrote most of the following as a postscript to another post which discussed this case in another context, but it is really a standalone post.

Ms Ward said at the trial (as reported in the press at the time) that she did not mean to drive over Eli Westlake. She said her foot got stuck on one pedal or another and the passenger took hold of the wheel. That was a question for the jury and they must have rejected this account.

The sentencing remarks reveal that Ms Ward also mounted an (unsuccessful) defence under s 23A of the Crimes Act. This provides that if

“at the time of the acts or omissions causing the death concerned, the person’s capacity to understand events, or to judge whether the person’s actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition, and the impairment was so substantial as to warrant liability for murder being reduced to manslaughter”

the person is to be found guilty of manslaughter only.

The difficulty for Ms Ward with this defence was that there was some question as to the underlying condition (she has since been diagnosed as bipolar) and because she was intoxicated. The section requires that the effect of intoxication be disregarded.

Whilst it is up to the jury to return the verdict, it is up to the judge to make more detailed findings of fact consistent with that verdict. Justice Howie’s account is at paragraphs 4 to 13 of the sentencing remarks. These are that the interaction between Eli, his brother Joel and another friend started with Ms Ward driving the wrong way down a one way street where Eli and his companions were walking on their way home from a pub. They said something to her, the cheeseballs were thrown, and from there the altercation escalated. Both sides were drunk, but Ms Ward and her companion seem to have been the ones who took the altercation to a higher level. They could always have just driven away, whatever was said. The passenger got out of the car to take the argument further at one point (and then retreated). Ms Ward also got out of the car later, and fell to the ground when Joel Westlake (Eli’s brother) retaliated when she was physically attacking him.

The three young men walked away from the car to join their companions further away. It was Ms Ward who escalated the encounter to a fatal level by driving at Eli, not once, but twice.

It is a sobering reminder that you can never be too careful when dealing with strangers. You just don’t know who they are. As emerged on sentencing, Ms Ward had quite a history of “anger [mis]management” events, especially when drunk. Amongst other things, she had (when drunk) stabbed her then husband twice with a kitchen knife during an argument with him, when he was lying face down on a sofa. On another occasion she saw a woman who owed her money lying on that woman’s bed and climbed through a window to assault her. Justice Howie mentions that she was also charged with assault but I take it from this that in fact she was not on that occasion convicted of assault. These were not the only incidents.

Sentencing is a complicated thing unless you are an expert in the field. As I understand it, the maximum penalty for murder is life, but under section 21(1) of the Crimes (Sentencing Procedure) Act, a lesser penalty may be imposed, and normally is – often 25 years (I’m a bit vague about the exact basis for this).  Normally, anyway, it is the non-parole period which is most important. That is the minimum term the prisoner must serve. Section 54A of that Act then sets out standard non-parole periods which are to apply to “mid-range” offences. Under section 54B, a decision by a judge to set a longer or shorter period must be supported by reasons, which can only be those provided for in section 21A.

Justice Howie is one of the tougher judges. He held that the offence was a mid-range offence, though it is hard to imagine him ever finding that any murder was anything less, other than what he described (at [32]) as “the typical case of murder coming before this Court,” namely “domestic killings usually in the heat of the moment and often fuelled by alcohol” which he stated are “probably lower than mid-range.” He was of the view that this case was “more serious than that.” The use of the car as a weapon was an aggravating factor under section 21A(2)(c) of the Crimes (Sentencing Procedure) Act, as was the grave risk of death (section 21A(2)(ib)) to the other person whom she struck with the car. He allowed some reduction of the standard non-parole period on account of Ms Ward’s remorse.  He sentenced Ms Ward to 25 years’ imprisonment, with a non-parole period of 18 years 9 months and a balance of term of 6 years 3 months.

As Ms Ward has been in prison since the accident in June 2008, this means she will be eligible to be considered for parole on (and not eligible to be released before) 6 March 2027.

3 Responses to ““Cheeseball” murderer sentenced”

  1. Dahlia Says:

    I’m a little at a loss as to why a _domestic_ killing in the heat of the moment and fueled by alcohol is a lesser crime than this killing of a stranger in the heat of the moment, fueled by alcohol. Do people have some kind of license to off their spouses?

    • marcellous Says:

      I’m not sure of the premiss of your comment, Dahlia. What is your basis for saying that a domestic killing is a lesser crime than this? Are you saying that on the basis that the law accepts that provocation might apply in a domestic relationship when it would not when dealing with strangers? Provocation is always a question of fact, but I think I could accept that. Within a relationship I think we ought to understand how provocations accumulate (but do so within the context of a relationship), whereas as between strangers society would break down pdq if that were permitted – it’s too easy to “snap” with a stranger.

      However, I also have to say that this “lesser crime” stuff is kind of weird, because it is a symbolic discourse via punishment whose efficacy must be wondered about: manslaughter and murder, and longer and shorter punishments, are all still crimes which are punished quite substantially. Relative penalties can only have a very indirect effect: I expect that few have stayed their hand (or conversely, cast the fatal blow) by thinking about the length of the sentence they will face.

      • marcellous Says:

        Dahlia,

        I take my comment back because I see now what you are basing your comment on. There is no licence to kill your spouse, but the implication is probably that bad behaviour in the domestic sphere (or “in private”) rates as less serious than in the public sphere. We have to behave better when we are out, and if we don’t, it’s worse than bad behaviour when out.

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