Director of Public Prosecutions v Anna Horneshaw
[2017] VSC 111
•15 March 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2016 0153
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANNA HORNESHAW |
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JUDGE: | JANE DIXON J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 10 February 2017 |
DATE OF SENTENCE: | 15 March 2017 |
CASE MAY BE CITED AS: | DPP v Anna Horneshaw |
MEDIUM NEUTRAL CITATION: | [2017] VSC 111 |
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CRIMINAL LAW – Sentence – Murder – Plea of Guilty – Whether Verdins applies to schizotypal or borderline personality disorder – Applicability of O’Neill factors with where Verdins is found not to apply – Prospects of rehabilitation.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms Susan Borg | Office of Public Prosecution |
| For the Accused | Mr Scott Johns | Steve Parker, Theo Magazis and Associates |
DRAFT
HER HONOUR:
Anna Horneshaw you have pleaded guilty to the murder of Zvonimir Petrovski on 21 November 2015 at Thomastown. The maximum sentence for murder is life imprisonment.
You have no prior criminal history.
Zvonimir Petrovski (‘the deceased’) was a friend, and a father figure to you and was the lead tenant at the unit you shared with along with your partner Grant Brennan.
The factual background to your crime has been summarised in the Crown opening[1] which was read in open court. I have supplemented my understanding of the objective facts with material in the depositions and exhibits as well as information put forward by counsel during the plea hearing. The circumstances of your crime will be briefly described by me.
[1]Crown Exhibit 1.
On 21 November 2015 you were living in a two-bedroom unit in Main Street Thomastown, Victoria with the deceased and your partner, Grant Brennan. You occupied one bedroom with Mr Brennan, whilst the deceased's bed was in the living room along with two televisions and other furniture. The second bedroom stored various belongings
The deceased was aged 67 at the time of his death and was an alcoholic and in poor health. He was dependent on the pension for financial support.
Your partner Grant Brennan was also an alcoholic when you commenced a relationship with him in 2014. He had reduced mobility due to chronic severe gout and was on an invalid pension. He was also a heavy user of cannabis at the time.
You had been a heavy user of alcohol and cannabis and were also welfare dependent when you commenced living with Grant Brennan and the deceased. You had previously resided with them in a shared housing arrangement in Lalor.
You were four months pregnant to Mr Brennan at the time the deceased was killed.
The living arrangements as between yourself, Mr Brennan and the deceased were problematic with little attention given to household management within the confines of the unit. This may be explained by the physical disabilities and chronic ill health suffered by both men and your own incapacity following debilitating illness caused by your pregnancy.
You had been abstaining from alcohol since a four day admission to ‘Regen’ in September 2015 for detoxification. However, both the deceased and Mr Brennan tended to drink large amounts of alcohol from morning to night. Cannabis was also consumed by Mr Brennan and yourself when available. I infer that money for daily needs was scarce.
On Saturday 21 November 2015 you spent the day at home. Mr Brennan had been drinking wine with the deceased throughout the morning and early afternoon.
The deceased left and went to a bank to withdraw some money at around 3.45 pm. He was then collected from home and taken to a family barbecue in the late afternoon. He continued drinking at the barbecue and was in good spirits. He was dropped home at 8.30 pm.
Upon being delivered home the deceased was helped out of the car and assisted to the door by family members. He used walking sticks to ambulate and was a large man who moved slowly. He was handed over to you at the door of the unit along with an unfinished bottle of beer.
The deceased then sat at the kitchen table with Mr Brennan and dozed off for a period of time. When he awoke he continued drinking beer whilst Mr Brennan drank wine. Both men watched television and conversed from time to time whilst drinking alcohol.
Despite deciding to abstain from alcohol as a result of your pregnancy, you do not appear to have been capable of looking after yourself properly and your psychological and physical health was poor. Your unkempt appearance was noticed by a relative of the deceased when they dropped the deceased home.[2]
[2]Prosecution opening, quoting Alexander Petrovski, nephew of the deceased, [34].
Your living environment was chaotic. The crowded unit was in disarray with unconsumed food scraps lying around, rubbish which had not been removed, and accumulated clutter covering most surfaces.[3] As well as yourself and your two co-tenants there were several cats being cared for at the unit.[4] A number of kittens were occupying your bedroom and a squashed mouse was seen near mounds of clothing on the floor.[5]
[3]See: Police Photobook A; ‘The unit was very untidy, dirty, stuff was dropped on the floor and no one clean it, I never saw the stove clean or the floor swept, always dishes in the sink,’ Statement of Vanco Gicev, Depositions, 3; ‘It had become a bit disorderly around the outside of the unit during the time of these tenants. There are things and rubbish left outside the unit,’ Statement of Lulush Zekirovski, Depositions, 8.
[4]Statement of Lulush Zekirovsji, Depositions, 8.
[5]Observed by Constable Peta Williams who attended the incident, Depositions, 99.
At around 10.00 pm you became frustrated and your frustration erupted into violence. You were craving cigarettes and began to ask the deceased for money to help you out. He told you to wait until the next day. You argued with him for ten minutes or so complaining that he had promised to look after the pair of you, and that he was holding out on you. When you challenged him to show whether he had any cash, he produced a fifty dollar bill and a twenty dollar bill from his pocket. You snatched the money from his hands and headed quickly into the kitchen. You were followed by the deceased who asked you to return the money.
You were seen by Mr Brennan to be standing in the kitchen near the kitchen drawers.
In response to the deceased's request that you return his money you became suddenly enraged and punched him so that he fell against the plaster wall and then face down onto the carpet. The head of the deceased perforated the plaster wall when he fell. At some stage during this incident you obtained a knife from the kitchen, and after the deceased fell down you knelt beside him and repeatedly stabbed him to the upper back, shoulder and neck whilst he lay prone on the floor. The knife used in the attack was a large boning knife which belonged to the deceased.
Grant Brennan who had remained seated nearby, described you as red faced, grunting and swearing abuse whilst stabbing the deceased. He said that you were holding the cash in your left hand whilst kneeling down and stabbing the deceased with your right hand. He yelled at you several times to stop and when you finally desisted he began to call emergency services with his mobile phone, telling you of his intentions.
The commotion was overheard by neighbours who complained about the noise and you had the presence of mind to yell out an apology in reply to them.
You then took over the telephone call from Mr Brennan and handed him the cash notes. You told him to get rid of the knife which was still lodged in the back of the deceased.
You lied to the emergency services operator saying that someone had broken in and stabbed your ‘daddy’.
Mr Brennan extracted the knife from the deceased. He placed it in a plastic shopping bag and took it outside and threw it into a wheelie bin. When he returned into the unit you were still on the phone to the 000 operator. You were crying and apparently following instructions to place a towel onto the deceased’s wounds and apply pressure.
When police and ambulance officers entered the unit shortly afterwards you were holding the head of the deceased whilst Mr Brennan had hold of and was using the mobile telephone. You were sent to a bedroom by them and seen to be extremely agitated and visibly shaking.[6]
[6]Statement of Peta Williams, Depositions, 99.
Nevertheless when spoken to by police both you and Mr Brennan maintained the fiction that an intruder had broken in and stabbed the deceased. You maintained this version in a false statement prepared at the Mill Park Police Station later that same night.[7]
[7]Mr Brennan also made a statement at Mill Park police station that night to the same effect.
The statement you made included some plainly implausible details.[8] There was also an obvious lack of consistency between your description of the intruder and that of Mr Brennan and there was an unexplained cut to Mr Brennan's thumb which had actually occurred when he pulled the knife out of the deceased.
[8]For example, you said: ‘When the intruder saw the accused exiting the bedroom he stated; is that bitch pregnant; I will cut the baby out of her.’ Crown Opening, [69].
Naturally police became suspicious and when Homicide members then arrested Mr Brennan and interviewed him, he admitted telling lies and gave a true account of what had taken place. He was released without charge. He later admitted placing the deceased’s money in his own wallet after it was given to him by you following the attack.
You were charged with murder on 22 November 2015 and remanded in custody.
You have remained in custody ever since.
The post mortem examination by pathologist Dr Bouwer counted 22 stab wounds mainly to the upper back and left posterior neck of the deceased. In addition to the multiplicity of stab wounds, there was evidence of facial bruising and bruising to the top of the head of the deceased consistent with the head of the deceased striking the plaster wall at the time he fell forward.
Internal injuries caused by the stab wounds were inflicted to the thoracic aorta, the left lung and the cervical spinal cord. The cause of death was determined to be the multiple stab wounds to the neck and torso leading to significant blood loss.
There was no cross examination of witnesses at a committal hearing in this case and whilst inquiry was made by your solicitors as to the existence of any mental impairment, a willingness to plead guilty to murder was communicated to the Crown once that issue was explored. The plea offer was communicated to the Crown on 22 September 2016 with a committal to this court on 20 October 2016. You entered a guilty plea before this court on 24 October 2016. I therefore regard you as having pleaded guilty at a relatively early stage of the proceedings.[9]
[9]Mr Johns in his written submission indicated that the mental impairment avenue was abandoned well in advance of the committal, and an indication given that a guilty plea to Murder would be entered. Defence Exhibit 2: Outline of Plea on Behalf of Anna Horneshaw, [44].
Your son, Oliver was born during your period on remand on 19 April 2016. He was removed from your care very soon after his birth by the authorities. Your sister and her partner have custody of your son and bring him for visits to Dame Phyllis Frost Centre on a regular basis.
You were seen by Associate Professor Andrew Carroll on 29 March 2016 in response to a request by your solicitor seeking to be informed as to any defence of mental impairment. He was provided with your mental health records from Northern Health which were obtained under subpoena. He prepared a report on 8 April 2016.[10]
[10]Defence Exhibit 4.
You were further seen by Dr Fiona Best at the request of your solicitor on 2 January 2017. Dr Best was provided with Associate Professor Carroll’s report prior to her assessment along with other relevant documentation. She prepared a report dated 30 January 2017.[11]
[11]Defence Exhibit 5.
Dr Best’s opinion was broadly consistent with that of Associate Professor Carroll as to the central diagnosis, motive and reasons for your offending.
Your personal background and psychological history are complex. You are currently 28 years old, having been born on 4 October 1988.
Whilst you do not have a major mental illness, your mental and emotional stability have been impaired by borderline personality disorder. The presence of a borderline personality disorder has been confirmed by both defence psychiatrists reporting on your behalf.
Associate Professor Carroll stated that you also meet the diagnostic criteria for ‘Schizotypal Disorder’ (ICD-10-F21). Dr Fiona Best noted that in her opinion you also meet the criteria for ‘Alcohol dependence currently abstinent in a controlled environment’.
I will refer to the significance of these impairments in due course.
You come from a loving family and have been supported at court by both parents and your older sister. Your father is a scientist, your mother is a teacher and author and your sister is a journalist. You did not suffer abuse or mistreatment within the home. However, your childhood, adolescence and adult life have been markedly abnormal.
As a child you were unable to maintain friendships at school and had significant difficulties fitting in to child peer group relationships.
Although clever and imaginative you were considered prone to flights of fancy and other children found you annoying. You were bullied at primary and secondary school and were often unhappy.
Your teenage years were disrupted by an eating disorder at age 14 which caused you to be hospitalised for a month at the Royal Children's Hospital (‘RCH‘) when you weighed only 37 kg. You had ongoing outpatient’s follow up through the RCH until the age of 18 in 2006. Nevertheless you were academically capable and after changing schools managed to enjoy the academic aspects of years 11 and 12.
Although you were able to complete a tertiary degree at Swinburne University in psychology and sociology in 2010, your life became unstable again after the breakup of a four year intimate relationship. That relationship with your then boyfriend ended in 2012. You saw a psychologist between 2012 and 2013 and were observed to have been engaging in risk taking behaviour.
You were drinking very excessive quantities of alcohol and had ceased pursuing any form of work or education.
You were treated under the auspices of Northwest Area Mental Health Services in 2013 and fell victim to a serious sexual assault in May 2014 when a stranger in an alleyway took advantage of your drug affected condition.
You were treated in 2014 by psychologists at St Vincent’s hospital and at Headspace, presenting with apparent post-traumatic stress disorder symptoms at that time. You engaged in serious self-harming behaviours which led to a hospital stay in September and then in November of that year.[12] You have said that around that time you were trying to drink yourself to death[13] and deliberately consumed very large quantities of alcohol. This led to admissions for alcohol detoxification in 2014.
[12]‘She presented at hospital with police in September 2014 after she attempted to stab herself following an argument with her parents denying her access to alcohol. In November she presented at the emergency department having consumed mouthwash and hand sanitiser.’ Report of Associate Professor Carroll, [69,70].
[13]Report of Associate Professor Carroll, [68].
There was also an involuntary admission to the Sunshine Hospital Psychiatric Unit for five days in January 2015.[14] There was a further involuntary admission to the Broadmeadows Psychiatric Unit between 10 and 18 February 2015 followed by voluntary admission between 21 and 25 February 2015. You had been diagnosed with borderline personality disorder whilst an inpatient there and noted to also suffer anxiety and alcohol abuse. You were prescribed Quetiapine (Seroquel).
[14]‘She had been picked up naked at a petrol station in Footscray intoxicated with methamphetamine. She was briefly psychotic which was attributed to methamphetamine and she was discharged on a short course of olanzapine. Alcohol abuse to the extent of 36 standard drinks a day was noted.’ Report of Associate Professor Carroll, [72].
You and your mother were reportedly unhappy when you were discharged from that unit in February 2015, believing the discharge was premature.
It had been planned that you would be admitted to the North West Prevention and Recovery Care unit for long-term psychosocial treatment in March 2015 but the admission was terminated when you were found to be hoarding medication.
Associate Professor Carroll opined that the 2014 sexual assault exacerbated your mental health problems markedly. He noted that you coped in a dysfunctional way by abusing alcohol, cannabis and your medications but that although you engaged in a number of brief psychiatric admissions in 2015 you were not engaged in long-term mental health care at the time of the offending.[15]
[15]Report of Associate Professor Carroll, [166].
You had a further overnight involuntary admission to the Northern Hospital on 19 July 2015 when you were found to be extremely drunk with a reading of .14.
This highly unstable period of your life was still ongoing at the time at which your son was conceived.
You reported to Associate Professor Carroll that you had contacted police in August 2015 asking to be taken to a psychiatric hospital but that this request was declined by police. You had formed the belief that you were being inappropriately diagnosed and insufficiently treated by psychiatric services. You believed you had a major mental illness and felt mismanaged.
Turning again to the events of 21 November 2015, it seems that your friendship with the deceased involved mutual affection and care but was also marked by frustration and dependency. It was in that context that the offence took place.
According to the history you gave to Associate Professor Carroll, during episodes of drinking the deceased and Mr Brennan were in the habit of engaging in loud verbal arguments.[16]
[16]This history was also confirmed to Associate Professor Carrol by Mr Brennan, Report of Associate Professor Carroll, [125].
The fact of these arguments is supported by police statements taken from occupants of the neighbouring units, although it is likely you were also a participant in the verbal arguments with the deceased.[17]
[17]Statement of Lulush Zekirovski, Depositions, 9; Statement of Dzengis Zekirovski, Depositions, 16; Statement of Tina Anu, Depositions, 23.
You had been diagnosed with severe ongoing morning sickness (hyperemesis gravidarum) and were admitted to hospital in November 2015 and put on a drip because of dehydration.
You wanted to move out of the unit but were no longer welcome at your parents’ home.[18] You had seemingly become frustrated by the difficulty of your living arrangements. Your frustration was perhaps made worse by your advancing pregnancy. A social worker was in the process of looking for alternative accommodation for you.
[18]Ms Pershall, your mother, visited you weekly or fortnightly: Report of Associate Professor Carroll, [150].
It also seems likely that your agitation at the time you killed the deceased was contributed to by the physiological effects of hunger and disruption to your medication regime. You told Associate Professor Carroll that you don't believe you had eaten anything much that day. You were being prescribed 300 mg daily of quetiapine (Seroquel) by your General Practitioner but had run out of it five days earlier . You had not managed to gather yourself together sufficiently to seek further prescriptions from your doctor.
You told Associate Professor Carroll that you felt ‘strung out’ when you ran out of quetiapine in mid-November 2016, after being in the habit of taking well in excess of the prescribed dosage throughout the earlier part of November.
You had also been in the habit of smoking cigarettes and cannabis even after you stopped drinking alcohol but had run out of both at the time of the offence.[19] You were unable to sleep for more than a few hours at night but tended to stay in bed to avoid your partner and the deceased.
[19]Report of Dr Best, [142]-[144].
Associate Professor Carroll opined:
In summary therefore, her mental state was disturbed at the relevant time. Her already impaired coping resources (which are fragile at the best of times due to her schizotypal disorder and borderline personality disorder) had been diminished further by several years of substance use following posttraumatic difficulties after an assault in 2014. She was struggling greatly to cope in the highly dysfunctional residence in which she found herself. For several days prior to the attack, there were also acute physiological factors affecting her self-control: abrupt withdrawal of high doses of quetiapine and cannabis; and possibly, some degree of starvation due to morning sickness. There is a realistic link between these various mental health problems and the episode of rage which resulted in the attack on Mr Petrovski.
However he also said that you were able to reason with respect to the wrongfulness of your actions, and your actions in the aftermath were strongly indicative of you being aware of the wrongfulness of your actions.[20]
[20]Report of Associate Professor Carroll, [177].
Dr Best considered that although there was no defence of mental impairment available to you there appeared to be a causal link between your impaired mental functioning and your fragile mental state.[21] She noted however, that you did appreciate the gravity of the offence and its consequences.[22]
[21]. Dr Best opined that your personality difficulties combined with sudden cessation of antipsychotic medication and medical complications of pregnancy impacted deleteriously on your capacity to exercise appropriate judgment and make calm decisions and think clearly at the time of the offence. Report of Dr Best, 11.
[22]Report of Dr Best, 11.
The Crown emphasised that your evasive actions immediately after the killing bore on an assessment of your capacity for self-control and self-awareness at the time of the crime. Whilst conceding that the attack on the deceased was not premeditated, the Crown disputed the extent to which your personality difficulties and mental or psychological condition could be relied on to reduce moral culpability.
In my view your borderline personality disorder and schizotypal disorder do not fall to be considered as constituting a major mental illness or an impairment of mental functioning of the kind contemplated in R v Verdins.[23] Mr Johns accepted that DPP vO’Neill[24] clarified that personality disorders are not impairments of mental functioning within the scope of Verdins. He noted that Associate Professor Carroll referred to a schizotypal disorder as a ‘mental illness in the same chapter as schizophrenia in the ICD-10 Diagnostic Manual.’ Mr Johns was not prepared to concede that Verdins was inapplicable to your mental condition but developed an alternative argument that even if Verdins was not enlivened your psychological condition was relevant in the ways discussed in O’Neill.[25]
[23][2007] VSCA 102.
[24][2015] VSCA 325.
[25]Defence Exhibit 2: Outline of Plea on Behalf of Anna Horneshaw, [42], citing DPP v O’Neill [2015] VSCA 325, [96]-[97].
I do not think that the reports of Associate Professor Carroll or Dr Best provide a sufficient basis for enlivening Verdins principles despite the submission put by Mr Johns that a schizotypal disorder may do so. It was noted in the report of Dr Carroll that whilst schizotypal disorder is cited in the same chapter as schizophrenia in the ICD-10 Diagnostic Manual, in the DSM diagnostic system the similarly described Schizotypal Personality Disorder is in the Personality Disorder section of the DSM diagnostic system.[26]
[26]Report of Associate Professor Carroll, fn 1.
In O’Neill the court expressed the position that the borderline personality disorder described by the psychologist in that case could not provide a basis for a moderation of the principles of general deterrence and noted that the condition did not play any relevant role in diminishing the respondent’s capacity to understand the nature and gravity of his offending. His condition at the time of the offence and at the date of sentence was not such as to make him an unsuitable vehicle for general deterrence.[27]
[27]The question as to whether Verdins applies is also relevant to consideration of specific deterrence and other aspects of retributive sentencing.
Mr Johns did not dispute that the evidence shows that you were aware of the nature and gravity of your actions at the time of performing them. This is consistent with the reports of Associate Professor Carroll and Dr Best, and is borne out in part by reference to your post-offence behaviour. Further, there is not sufficient evidence to satisfy me on the balance of probabilities that your Borderline Personality Disorder and Schizotypal disorder sufficiently impaired your mental functioning to enliven Verdins principles.
Both Dr Best and Associate Professor Carroll stated that there was no evidence of psychotic symptoms around the time of the offending, or that you had any delusional thinking with respect to the victim.[28] These findings contribute to my view that there is a lack of causal connection between your diagnosed condition and the offending conduct.
[28]Report of Associate Professor Carroll, [151], [173]-[174]; Report of Dr Best, 3. See also Associate Professor Carroll’s list of the symptoms of your schizotypal disorder, including the observation that that your unusual perceptual experiences are ‘not quite psychotic in intensity.’ See Report of Associate Professor Carroll, [161].
Nevertheless, Mr Johns argued that there is room for your personality disorder, background circumstances and disturbed condition at the time of the offence to be given weight in arriving at a just and proportionate sentence in the way discussed in O’Neill.[29]
[29]DPP v O’Neill [2015] VSCA 325, [96]-[97].
Just as in O’Neill the complex personality matrix of the accused was relevant to the sentencing synthesis and helped explain why the offender behaved as he did, so it is in your case that such an explanation is relevant to sentence.
In this regard, the Court of Appeal's reasoning in O’Neill resonates, where the court said:
...the respondent’s fragile psychological state and complex profile were the product of the unusual and difficult nature of his background and circumstances. His condition bore in a limited way upon the seriousness with which his conduct should be viewed.…[30]
[30]Ibid, [11], quoting DPP v O’Neill [2015] VSC 25, [7].
Mr Johns also sought to advance argument that principles 5 and 6 in Verdins regarding hardship in custody were engaged in your case. However, as stated I do not accept that Verdins principles apply in your case. Also, the evidence before me tends to show that you have adapted reasonably well to your current situation in prison and are showing positive signs for future psychological growth.
Turning to the impact of your crime on others, Zvonimir Petrovski's death has occasioned great sadness to his friends and relatives. He was loved and cherished despite his difficult social circumstances.
I have received and had regard to the victim impact statement provided by Gordana Petrovska who is the daughter of the deceased. She says she loved her father and spoke to him every week on the phone, as well as seeing him once a month. She honoured her father's death with Macedonian orthodox traditional rites but found it difficult to understand why her father was killed. She felt angry, lost and in pain as a result of learning of how he died.
I have no doubt that her grief is representative of grief suffered by other family members and friends of Zvonimir Petrovski and that your actions have caused great distress to them.
The taking of a human life by an act of violent homicide demeans the whole community and must be roundly condemned. Mr Petrovski was vulnerable to attack by you because of his age and disability and the consumption of alcohol by him during the course of the day.
Through your counsel you have acknowledged that I am obliged to impose a lengthy gaol sentence on you for the serious crime of murder.
However, I am satisfied that you are remorseful for your actions and deeply regret ending the life of a person who offered you kindness and affection.
You have written a letter of apology in which you express your sorrow and admit the wrongfulness of what you did.[31]
[31]Defence Exhibit 1. This letter also acknowledges that a lengthy sentence will be imposed.
I have also received testimonials from friends and family who visit you in prison. They refer to your sorrow and shame at having killed your friend.[32]
[32] Defence Exhibit 3: Character Reference of Mary Pershall, Character Reference of Margaret Schubert, Character Reference of Gill Scott, Character Reference of Julie Morsillo.
Your current custodial circumstances are that you remain imprisoned at Dame Phyllis Frost Centre and are medicated with quetiapine and antidepressants. You have undertaken self-improvement courses whilst in custody[33] and helped other prisoners with literacy.[34] You have been regularly visited by family and friends and see your son during visits whenever practicable within the constraints of your position in custody.
[33]Report of Associate Professor Carroll, [54], [55], [57]. You have worked as a billet, attended various groups including drama, art, Narcotics Anonymous and Alcoholics Anonymous. You have enrolled in the Frame of Mind programme for Borderline Personality Disorder, Plea transcript, 32.
[34]Defence Exhibit 1.
In his comprehensive plea and written submission, your counsel referred to a number of matters which tend in your favour. You have been attending psychological and psychiatric consultations in custody and taken prescribed medications appropriately.[35] In considering the constellation of mitigating factors I have had regard to the following matters:
[35] Report of Associate Professor Carroll [86 and 87]; Report of Dr Best, 8-9; Plea transcript, 34.
(i) Your plea of guilty, and obvious remorse;
(ii) Absence of prior offending;
(iii) The spontaneous nature of your offending and the lack of premeditation;
(iv) Your physiological condition at the time of the offence as described to Associate Professor Carroll and Dr Best;
(v) Your diagnoses of borderline personality disorder, schizotypal disorder, and lifelong psychological vulnerabilities and further deterioration following a sexual assault in 2014;
(vi) Your past history of seeking out psychiatric and psychological help, and your history of hospital admissions in 2014 and 2015 including as both a voluntary and an involuntary patient on occasions;
(vii) The stressful domestic circumstances that existed at the time of the offence;
(viii) Your prospects for rehabilitation being enhanced by your behaviour in prison[36] and your willingness to seek and accept help;
[36]Plea submission from the Defence, Plea transcript, 32.
(ix) The persistence of family and friends in their attempts to support you in ways that should assist your rehabilitation into the future;
(x) Your good prospects for rehabilitation, founded in part on your acknowledged intellectual capabilities and past success in pursuing tertiary education;[37]
[37]You have also co-written educational books with your mother.
(xi) The suggestion in materials put forward of your behalf that your motivation to rehabilitate has been strengthened by the recent birth of your son Oliver and that the structured environment in the women’s prison[38] may provide some benefits to your mental stability;
(xii) The extra curial consequence of hardship caused by separation from your newborn son.[39]
[38]‘Ms Horneshaw described periods of unhappiness in custody but had adapted to the prisons regime, liked its potential for solitude, and was mostly able to manage her internal distress at her current predicament.’ Report of Dr Best, 9. See also, ‘In prison she enjoys song writing classes and tutoring inmates who want to improve their English’, Defence Exhibit 3, Character reference of Gill Scott; and ‘Anna has found some comfort in the strict routines and caring staff at Dame Phyllis Frost Prison who have supported her to a level of relative calmness’, Defence Exhibit 3, Character reference of Julie Morsillo.
[39]R v Williams [2004] VSC 429, [16].
I do regard the ferocity of your attack on the deceased and your lies to police as factors of aggravation.
However, your attempts to avoid responsibility, were relatively short-lived and your plea of guilty and behaviour on remand is symbolic of a shift in your attitude.
I have also taken into account the principles of sentencing set out in s 5(1) Sentencing Act 1991 (‘the Act’) and had regard to current sentencing practice.
In Felicite[40] the Court of Appeal cautioned against broad generic labels as a means of applying statistical ranges to particular offences. In that case complaint was made that the judge did not pay sufficient regard to comparable sentencing for ‘domestic’ murders. The Court said:
The sentencing judge’s approach was consistent with the caution sounded in Hudson v R that ‘like cases’ can only, at best, provide a general guide or impression as to the appropriate range of sentences and that ‘comparable cases’ can only provide limited assistance to a sentencing court. In particular, sentencing should not be approached as though the correct sentence falls within a very narrow band.[41]
[40][2011] VSCA 274.
[41]Ibid, [25].
The parties in this case did not seek to place a range of comparable cases before me but relied chiefly on O’Neill as a comparable sentencing judgment. This was perhaps reflective of the idiosyncratic characteristics of the sentencing task in your case. But I have paid attention to the broad range of published sentences for murder and gained assistance from surveying the Victorian Sentencing Manual and Sentencing Snapshot for Murder.[42] I have formed the view that a proper synthesis of all the matters relevant to sentencing leads to the conclusion that your punishment should be fixed at the lower end of the mid-range of sentencing for murder.
[42]Sentencing Advisory Council, Sentencing Snapshot No 171, May 2015.
I have given weight to the principle of parsimony in s 5(3) of the Act.
In my view your chances of reforming yourself are good. I base this on the evidence that you have resumed educative endeavours and appear to have largely accepted your lot. You are co-operative with visits from supportive family and friends, including those who bring your son for visits. Your counsel informed me that the desire to parent your son provides a strong motivation to rehabilitate. In addition, you have also been cooperative with psychological treatment and medication offered to you in custody, and this bodes well for improvement of your condition in the future.[43]
[43]Report of Dr Best, 8.
I do not regard specific deterrence as especially applicable in your case.
I consider the extra curial consequence of the removal of your infant son from you as a cause of significant hardship to you.[44] Indeed, Ms Borg conceded that hardship flowed from this consequence.[45]
[44]Mr Johns informed the court that you had been hopeful of rearing your baby until the age of four whilst in custody under the belief that this was sometimes permitted to other women prisoners. Plea transcript, 30-31.
[45]Ms Borg made the ‘pragmatic concession’ as to hardship flowing to the accused as a result of separation from her child. Plea transcript, [63].
I am bound to impose a sentence which reflects general deterrence, just punishment and denunciation, having regard to the seriousness of the crime of murder and the objective gravity of the offending.
The murder of Zvonimir Petrovski was completely unprovoked. You stabbed him 22 times in a fit of rage while he lay defenceless on the floor.
In light of all the factors I have already referred to I sentence you as follows:
On the crime of murder you are sentenced to 17 years imprisonment with a minimum non-parole period of 13 years.[46]
[46]In fixing the non-parole period, I have taken into consideration the reasoning in R vVZ, that the main considerations when determining a non-parole period are the prospects of rehabilitation of the offender. In this case, your prospects of rehabilitation are favourable, if you are given proper support whilst on parole. See, R v VZ [1998] VSCA 32, [11].
If not for your plea of guilty I would have sentenced you to 19 years imprisonment with a non-parole period of 15 years.
I declare 481 days presentence detention not including today as already served pursuant to s 18 Sentencing Act 1991.
I make the Disposal order sought by the Crown.
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