Director of Public Prosecutions v Edmunds
[2023] VSC 581
•3 October 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0003
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| BIANNCA EDMUNDS | Accused |
---
JUDGE: | LASRY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 5 May 2023 |
DATE OF SENTENCE: | 3 October 2023 |
CASE MAY BE CITED AS: | DPP v Edmunds |
MEDIUM NEUTRAL CITATION: | [2023] VSC 581 |
---
CRIMINAL LAW – Sentence – Murder – Guilty verdict following trial by jury – Second re-trial – Complicity – Encouraged current partner to murder former partner – Premeditation and planning – Murder occurred in the home of the deceased – Whether several victim impact statements admissible – Offender the mother of three children - Family law litigation – Physical and mental illness – Considerations of limbs 5 and 6 in R vVerdins; R v Buckley; R v Vo (2007) 16 VR 269 – Good prospects of rehabilitation – Sentenced to 26 years’ imprisonment with a non-parole period of 20 years.
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr N Hutton | Office of Public Prosecutions |
| For the Accused | Ms S Lacy | Victoria Legal Aid |
HIS HONOUR:
Introduction
Biannca Edmunds, on 17 December 2022, you were found guilty by a jury of the murder of Michael Caposiena. Caposiena was murdered on 12 March 2016 at Meadow Heights by your husband, Glenn Cassidy. He was shot in the head and died more or less instantly inside his home. During a physical altercation between the two men before the fatal shot was fired by Cassidy, Cassidy sustained multiple stab wounds to the torso as the result of Caposiena attempting to defend himself. Cassidy, too, died at the scene. You were not present at the property at the time of the murder of Caposiena and the death of Cassidy. The jury found you guilty on the basis that you were complicit in Caposiena’s murder pursuant to s 323(1) of the Crimes Act 1958.
On 5 May 2023, I heard a plea from Ms Lacy of counsel on your behalf and received twelve victim impact statements. I also heard submissions from the prosecutor, Mr Hutton, as to the sentence I should impose on you.
The maximum penalty for the offence of murder is life imprisonment[1] and it is now my responsibility to sentence you for this offence.
Victim Impact Statements
[1]Crimes Act 1958 s 3(1).
In relation to the victim impact statements, an issue arose. As I said, two men died in this incident, Michael Caposiena and Glen Cassidy. Family members of Cassidy also filed victim impact statements and the question arose as to whether I should consider them on the basis that Cassidy was also a victim of your crime. The question is whether those connected with Cassidy can be regarded as victims within the meaning of the Sentencing Act 1991 (‘the Act’). In the Act, s 3 includes the following definition of victim:
victim, in relation to an offence, means a person who, or body that, has suffered injury, loss or damage (including grief, distress, trauma or other significant adverse effect) as a direct result of the offence, whether or not that injury, loss or damage was reasonably foreseeable by the offender.
The offence I am considering is the offence of murder as committed by you on the basis of your complicity with Cassidy. Cassidy was also a murderer, and that conclusion was a necessary step in the jury reaching the verdict they did against you. The death of Cassidy was not an element of the offence you were charged with and, further, if Cassidy had survived then in all likelihood, he would have stood trial with you for the murder of Caposiena. I am unable to see how those people connected to Cassidy who have filed statements could be regarded as victims. I have not read the statements and in my opinion, they are irrelevant to the sentence I will impose on you. I will not take them into account.
Procedural History
You have stood trial three times for this offence and in no sense could it be said that the fault for that and the associated delay lay with you. For part of the time after you were charged, you were in custody and that was during the very difficult COVID-19 period. It is, therefore, a mitigatory factor to be considered in sentencing you. However, during these trials and until 16 December 2022, you were on bail. That bail order was made in this Court on 19 May 2020. You have been fully compliant with the conditions of that order, which was varied from time to time and which enabled you to travel interstate to be with your children. Your compliance is also in your favour.
The first trial commenced on 24 May 2022. On 21 June 2022, the jury was discharged after advising the Court that they could not reach a unanimous verdict.
The second trial commenced on 10 August 2022 and on 29 August 2022, your counsel made an application on your behalf for the discharge of that jury. I granted the application, and the jury was discharged without verdict.
The third trial commenced on 22 November 2022. The jury retired to consider their verdict on 16 December 2022 and returned a verdict of guilty on 17 December 2022.
The Deceased Men
Glenn Cassidy
Cassidy was born on 16 February 1967. He was 49 years of age at the time of the offence and his death.
From 1994 to 2014, he was married to Janet Cassidy, with whom he had three children. They separated in December 2014. You commenced a relationship with Cassidy shortly thereafter and you and he were married on 27 February 2016, only some two weeks before the killing of Caposiena. The two of you initially lived in Rochester before relocating to a residence in Shepparton in May 2015. Cassidy’s daughters, Amber and Jessie-Lee, and his mother, Maree, resided with you at various times between May 2015 and the date of the offending.
Michael Caposiena
Caposiena was born on 30 May 1977. He was 38 years of age at the time of his death.
In 2006, Caposiena was involved in a serious motor vehicle accident for which he received a Transport Accident Commission payment. This money was used to purchase the residence in which he was murdered, being 1/37 Pascoe Street, Westmeadows.
Caposiena was your former partner, who you met in early 2012. You were engaged to marry but, your relationship ended the day before your engagement party. At the time of your break-up, you were pregnant with his child. You gave birth to your son, Luca on 3 June 2013. You and Caposiena had an acrimonious separation. Your counsel conceded that there had been a longstanding animus between you following the breakdown of the relationship which included elements of family violence. Caposiena had no involvement with the child for some time and that issue was relevant to your motivation for wanting Caposiena killed.
In February 2013, Caposiena commenced a relationship with Silvana Silva and in April 2015, they moved into the premises at 1/37 Pascoe Street, Westmeadows. In March 2014, when Luca was nine months old, Caposiena sought access to Luca. On 30 August 2015, he commenced supervised court-ordered visits with Luca at Berry Street, a family support organisation. The visits consisted of a two-hour supervised session once per fortnight. The final scheduled visit to Berry Street was on 11 March 2016, the day before Caposiena’s death. From that date onwards, the two of you were to make your own arrangements with respect to Luca. Caposiena was murdered by Cassidy the following day.
It is thus, obvious and not in contention that you were the link between Cassidy and Caposiena.
Circumstances of the Offending
Preliminary Issue – Prison Informers
Before dealing with the circumstances of your offending, it is necessary to resolve an issue that arose in the course of your counsel’s plea. Ms Lacy urged me not to accept the evidence of two witnesses, Josephine Gonzalez and Marina Loprese, for the purpose of sentencing you. These two women were in custody in the Dame Phyllis Frost Centre for serious criminal offending for dishonesty related offences. I, of course, note that during the course of their evidence it was put to these witnesses by your counsel that both women hoped that giving evidence in this trial would result in a less severe sentence being imposed upon them[2] and, as it was put, prepared to give false evidence to achieve that result.
[2]Wischusen J at [61] in DPP v Loprese [2021] VCC (County Court of Victoria, 9 February 2021) (restricted) imposed a less severe sentence on Ms Loprese for giving evidence in this trial. I am not aware of any discount afforded to Ms Gonzalez.
You met them at the women’s prison when you went into custody after being charged with murder and before you were released on bail by this Court. In their evidence before the jury, they outlined in elaborate detail conversations they had with you, either together or separately in August 2019, during which you described to them your extensive involvement in the planning of the murder of Caposiena. Ms Lacy’s submission on the hearing of the plea was that notwithstanding the jury’s verdict, they might well have rejected the evidence of those two women. She argued that their evidence was not necessary for a guilty verdict.
The two women gave broadly similar evidence of statements you made to them about how this incident resulting in the death of Caposiena had occurred. There was no issue in the trial that you had contact with them during your time in custody. I allow for the possibility that there may well have been some exaggeration, accepting as I do that these two women were of very limited credibility given that they both had very significant records of offences of dishonesty. However, I observed them as witnesses, and I thought they were persuasive. If I had been the trier of fact, I would have been prepared to act on their evidence. I think it is most unlikely that the jury could have reached a verdict of guilty if they had completely rejected the evidence of these two witnesses.
The main issue which arose is whether the effect of their evidence that you were the ‘driving force’ behind the plan to kill Caposiena should be accepted by me. They were not the only witnesses who gave that evidence. In any event, I am content to sentence you on the basis that by the time the killing of Caposiena occurred, Cassidy was almost as committed to doing it as you were, both because of his obsession with you and his affection for the child Luca. What I would not accept is that you were in any sense cajoled or overborne by Cassidy in relation to the death of Caposiena. In my view, planning for this offending began as your wish, and Cassidy ultimately, but not reluctantly, agreed to perform the killing.
I would accept the point made by Mr Hutton in argument that your DNA not having been found on the firearm that Cassidy used does not necessarily diminish the credibility of that evidence. It is true that Gonzalez and Loprese claimed you told them that the gun had been used by you and Cassidy as a kind of sex aid while you were persuading Cassidy to undertake the killing of Caposiena. Ms Lacy had argued that their evidence was not supported by the forensic evidence, particularly if you had been licking the barrel of the gun and more extensive DNA would have been expected. It is perhaps enough to say that while that criticism is fair, it does not conclude the issue, as there is no continuity evidence about the firearm from that point onwards. There are all kinds of reasons why, despite what is asserted as to how the gun was used by you, DNA consistent with that was not located. Frankly, not much turns on whether this occurred or not.
To the extent that the evidence of Gonzalez and Loprese supports the way in which the Crown put its case against you, I will act on their evidence. Given my observations about the enthusiasm that Cassidy had for the death of Caposiena, I am not sure that conclusion makes a significant difference to the outcome.
Your Intention and Encouragement
The prosecution case at your trial was that after 2014 and onwards, an issue arose in relation to Caposiena wanting to have access to the child Luca; a child he had fathered. You objected to this and had claimed he was unfit and violent and that you wanted to get on with your life with Cassidy. You made it clear to a number of people including members of your family, that you wished Caposiena would stay out of your life. You also claimed he was a threat to you and would kidnap Luca, potentially removing him from Australia. Cassidy had developed a good relationship with Luca and was of the view that he needed to protect you. You also expressed the wish to find someone to kill Caposiena. Your sister, Kirinia Edmunds, gave evidence about your negative reaction to Caposiena being involved with the child. You wanted Cassidy to be the only father in your children’s life but Caposiena wanted to be involved in Luca’s life. You were very resistant to that prospect. Your sister Kirinia said that you did not want Luca and Michael to have a relationship, saying ‘I wish Michael would stop trying for Luca’[3] and that you said this often. Kirinia recalls that you would make these comments in front of Cassidy and the children.
[3]Transcript of Proceedings, R v Edmunds (Supreme Court of Victoria, S ECR 2020 0003, Lasry J, [16 August 2022]) [3].
Kirinia also recalled you saying that you were sick of the access visits and having to travel to Melbourne. You said that Caposiena was getting in the way of your lifestyle and it wasn’t worth it for the trips down to Melbourne. You said that you wished the problem would just disappear and that Cassidy would be the boy’s only father.
The witness Paul Bonner was a friend of Cassidy’s and they had grown up together, regarding each other as brothers. Cassidy told him that there were custody issues between you and Caposiena and that you kept pushing him, Cassidy, to go down and see Caposiena in relation to money and custody. Bonner recalled that the arguments between you and Cassidy about this topic were so big that Cassidy would go to Bonner’s house to escape them. He recalled Cassidy telling him that you did not want a custody case and you were putting Cassidy under pressure to sort it out.
Bonner recalls witnessing more than one argument between you and Cassidy where you said ‘If you were a real man, you’d – you’d take care of it, you’d deal with it and you’d sort it out, if you had any balls, you know, you’re spineless, you’re a coward, you’re piss-weak.’[4] A few months before Cassidy’s death, Bonner visited him at your home. You came out and spoke to Bonner in the carport of the premises and asked Bonner if he would go down and take care of Caposiena. He told you to fuck off. This is evidence your counsel argued I should not accept. I would indicate that to the extent I need to be satisfied about it beyond reasonable doubt, I would not be so satisfied.
[4]Transcript of Proceedings, R v Edmunds (Supreme Court of Victoria, S ECR 2020 0003, Lasry J, [18 August 2022]) [6].
However, his evidence indicates that in earlier stages, and against the background of Caposiena pursuing his rights to access to the child, you had a clear idea and intention of what you wanted to happen and what you were prepared to do to bring it about.
Planning and Preparation
In December 2015, Cassidy was beginning to make plans for the murder of Caposiena. As evidence of that, the prosecution relied on what was described as the so-called ‘to do’ list which he prepared. That list was made on the Notes application on his phone and apart from other things relevant to his relationship with you, included reference to ‘knife, bike or car that’s not mine, body, transport, getting him alone, one bullet’.[5]
[5]Exhibit Z.
According to the evidence of Bonner, you were pressing Cassidy to do something about Caposiena.
In the week leading to the killing of Caposiena, you and Cassidy’s mother were in Darwin. The prosecution case was that that trip was planned primarily to give you an alibi for the killing of Caposiena which was originally planned to occur during that time. I am not persuaded that was necessarily the case.
On several separate days in March leading up to the deaths of Caposiena and Cassidy, Cassidy was travelling to Melbourne and that involved some surveillance of Caposiena’s premises. In several phone calls between you and Cassidy in the days leading up to the murder, you spoke in coded terms about your joint plan to kill Caposiena including how and when it would occur. During these calls, reference was often made to ‘the job’, ‘work’ and the ‘workers’. It was the prosecution case that ‘the job’ and ‘work’ related to the murder plot and that ‘workers’ referred to Caposiena and Silva. These conversations were recorded by Cassidy on his phone for unknown reasons. I found these telephone calls to be compelling evidence of the agreement between you and Cassidy.
The Murder
By Friday, 11 March 2016, with you back in Victoria from Darwin, you were urging Cassidy that the killing of Caposiena had to be done.
On Saturday, 12 March 2016 at 12:23pm, a text message was sent from Cassidy’s phone to you which read:[6]
Biannca, I love you so much. You have no idea what – I’m about to do something that you would consider absolutely fucking stupid, but I can’t put up with this shit anymore. I can’t be a part-time parent to Luca. If I get caught I want them to know you had nothing to do with this. This is my choice, my decision. You know nothing about it, please. I can see the stress of you losing our first baby due to him, and I could never forgive him for that and it - scared that one day he will try to take my boy from me. Has pushed me over the fucking edge. Please know that what I do, I do for you, even though you wouldn’t agree. I love you so much.
[6]Exhibit F.
It is clear on the evidence that at the time that message was sent, you and Cassidy were both in the house at Shepparton. The message was, I am satisfied, created by you in circumstances where Cassidy was effectively incapable of composing it as the evidence demonstrates. The message was designed to remove you from any criminal liability for what was about to occur by creating the false impression that Cassidy was on a mission of his own.
At approximately 1.00pm, Cassidy left Shepparton in a blue vehicle and travelled towards Melbourne on the Hume Highway. His trip was captured by traffic cameras at Broadford at 2.23pm, Wallan East at 2.37pm and Beveridge at 2.41pm.
At approximately 7.00pm, Caposiena and his partner Silva returned to their home, situated at 1/37 Pascoe Street, Westmeadows after an early dinner. They decided to watch a movie together in the lounge room. Meanwhile, upon arrival in the vicinity of their home, Cassidy parked the vehicle in Liddell Street, Westmeadows, which was parallel to and one street east of Pascoe Street.
At approximately 7.18pm, Silva was in the lounge room and saw Cassidy walk past on the opposite side of the street not carrying anything. That was captured on CCTV. She told Caposiena that she had just seen Cassidy. Caposiena did not see him and at first found it difficult to believe. CCTV captured Cassidy walk past a second time at 7.27pm, this time carrying a white bag.
At approximately 7.30pm, Silva and Caposiena saw Cassidy walk up to their front door. They were both concerned that Cassidy was at their property. Caposiena went to the kitchen and armed himself with a carving knife that he took from the knife block. Cassidy knocked on the door and Caposiena walked over and opened the door but left the security door locked. Caposiena hid the knife from view and the two men had a short conversation.
Silva overheard Caposiena say ‘I can’t help you with that’, before Cassidy extended his arm towards Caposiena to initiate a handshake as a ruse to get the door open. Caposiena opened the security door and reached out to shake his hand. Cassidy then forced his way inside and a struggle ensued between the two men. Cassidy produced the firearm and pointed it towards Caposiena’s head. Caposiena stabbed Cassidy several times in the torso.
Cassidy then shot Caposiena in the head and Caposiena dropped to the floor. Although wounded, Cassidy proceeded to attack Silva because he thought she had stabbed him. However, he too collapsed to the ground from his wounds. Both men died at the scene. Silva sustained significant injuries for which she was hospitalised. It was not alleged that you contemplated the attack on Silva.
The prosecution case against you was put on the basis of complicity. It was alleged that you, pursuant to s 323(1) of the Crimes Act 1958 (Vic), either intentionally assisted, encouraged or directed Cassidy to murder Caposiena, or that you entered into an agreement, arrangement or understanding with Cassidy to murder Caposiena. The prosecution case was primarily put on the basis that you and Cassidy had reached an agreement that Caposiena be killed. We cannot know whether the jury accepted that and, I suspect, it makes little difference, although I am satisfied there was an agreement.
So, what is now to be said about this whole sorry saga? First, your conduct is to be condemned because you decided to try to avoid an inconvenient family law dispute by the use of homicidal violence. I am sure many family law litigants feel anger and frustration at the process but fortunately, they are prepared to abide the application of the law. Second, you relatively easily persuaded Cassidy to do the killing. Third, the planning and thought that went into Caposiena’s death, though totally misguided, was lengthy, careful and designed to avoid criminal liability for you. These factors add up to a degree of entitlement that is at the extreme end of any scale. Denunciation, punishment, specific and general deterrence are all significant sentencing factors. As is always the case, these deaths were an avoidable tragedy. The issues confronting you were so easily resolved without resort to violence.
Victim Impact Statements
In relation to the victim impact statements that I will take into account, they began with the statement of Silvana Silva. She was the partner of Caposiena and witnessed his murder, as well as being physically attacked herself. The impact on her will obviously be deep and long lasting. She was also the executor of Caposiena’s estate and was required to engage in litigation instigated by you over that estate. She has suffered diagnosed conditions. She suffers from the permanent effects of her loss and what she witnessed.
Maria Bortone is a sister of Caposiena. She also described her loss and the consequences of her brother’s death which included a degree of dislocation in her life.
Another sister of Caposiena is Teresa Zaffina, who described the way her brother’s death has changed her life. She engaged in counselling and tried to manage her depression. She took time from her work as a primary school teacher and the effects on her seemed to magnify and progress back to some degree of normality has been very slow.
Sandra Zaffina, another sister, has suffered the same loss and the same consequences.
Socorza Caposiena is the mother of Caposiena and, as would be expected, her loss is devastating. It has resulted in psychiatric treatment for, among other things, suicidal ideation. As with all family members, it is the manner which their family member died that is so difficult for them to deal with.
Claudia Bertone is a niece of Caposiena and she has been similarly affected by the trauma of her uncle’s death, as has Christina Bortone, another niece.
Kristine Mueller and Brian Kays were neighbours of Caposiena and witnesses to what occurred on 12 March 2016. They both gave evidence during the trial. They have suffered post-traumatic symptoms of significance. Their statements highlight not only the effect of the violent incident, but the stress of the trial process and the delay in its completion.
The statements illustrate the catastrophic ripple effect of conduct like yours which affects so many people in so many traumatic ways. These are all people who were doing no more than just living their lives until they changed forever. I have taken each of those victim impact statements into account in deciding the sentence that should be imposed on you.
Personal Circumstances
Family Background
You were born on 22 March 1986 in Hobart to Ross Smith and Ellen Smith. You were 29 years of age at the time of the murder. You are now 37 years of age. You are the second oldest of four children. You have an older brother, Richard, a younger brother, Michael, and a younger sister, Kirinia. Your father was often absent from the family home for extended periods of time due to his employment in the mining industry. Your parents separated when you were six years of age following periods of sustained pressure and stress.
Your mother re-partnered with Bevan Edmunds, who became your father figure and whose surname you adopted. You gained two older step-siblings who were ten and five years older than you and a younger step-brother from their union.
In 1997, when you were 11 years of age, the family moved to Melbourne. You initially lived in a caravan park in Hawthorn, then in Frankston and in Carrum Downs.
Following the separation of your biological parents, you did not maintain a relationship with your father. You reconnected with him following the birth of your first child, Tyler in 2007. You have since developed a close relationship with him and have described him as one of your closest supporters. In 2017, you became estranged from your mother and your siblings. The circumstances of your estrangement remains a source of considerable distress for you.[7]
[7]Report of Patrick Newton dated 6 April 2023, 5.
Physical and Sexual Abuse
Your childhood was characterised by deprivation, dislocation and fear. You were inadequately protected, and you suffered repeated sexual and physical abuse at the hands of your older brother. I am told by your counsel that he was a troubled child who required an extensive amount of care and attention from your parents. He was reportedly diagnosed with bipolar affective disorder and schizophrenia, as well as significant developmental problems, which underpinned his violent sexual abuse towards you.[8] You reported that these experiences commenced when you were in primary school. You found them to be extremely distressing and you spent much of your childhood being fearful of your brother. You disclosed the abuse to your parents. Your mother did nothing to prevent the abuse from continuing – focusing instead on your brother’s needs. Your father was more supportive and responsive. However, his absence from the family home for work and his own mental health problems made it difficult for him to assist you.[9] Patrick Newton characterises your childhood as one in which there was dislocation and periods of emotional deprivation.
[8]Ibid.
[9]Ibid 4.
Education
Your family relocated numerous times when you were a young child and this had a significant impact on your education. You reported attending at least five primary schools, none of which you can recall in much detail. You described yourself as having been an average student and that despite the recurrent moves, you had progressed through the grades without repeating. Nonetheless, you ceased your high school education half-way through Year 11.[10]
[10]Ibid 5.
You have completed numerous diplomas and TAFE courses both during your time in the community and during the first period of remand. I am told by your counsel that during your first period of remand, you undertook all certificates available to you which included those in kitchen operations, micro-business operations and cleaning. There are no further certificates available to you at Dame Phyllis Frost Centre at this time, save for a parenting course which you are due to commence shortly, if you haven’t already.
Employment
After leaving high school, you joined the Royal Australian Navy where you were trained in logistics. You were medically discharged within a year due to stress fractures in your feet, which you incurred during your training.
After leaving the Royal Australian Navy, you worked in a variety of jobs. At the age of 19, you were employed by BHP Billiton in Perth in Western Australia and worked within security administration. You continued to work there until the age of 21. You then worked as a dental nurse in Melbourne before giving birth to your son, Luca. You worked in an administrative role at Visy in Shepparton and as a dental nurse in Bendigo after the murder. After settling in Canberra in October 2020, you worked in various retail roles until you were convicted of murder and remanded in custody on 17 December 2022.
Whilst in custody, you were employed within the kitchen but were unable to continue in this role due to the difficulties you experienced with other prisoners. You are working in a trusted cleaning role within your unit.
Relationships and Children
You have participated in five relationships as an adult. Your first relationship was with a man named Dirk Bakkar, whom you met whilst working in Western Australia. There is one child of the relationship, namely Tyler, who is 15 years of age.[11]
[11]Ibid 6.
Your second relationship was with the deceased man, Caposiena. As I have already indicated, you share one child with him, Luca, who is now nine years of age.
Your third relationship was with the deceased man, Cassidy. You did not share any children, however, you were undergoing fertility treatment in hopes of becoming pregnant. You reported to Mr Newton that you had ‘loved Glenn’ and that he had ‘treated [her] boys as his own’. You further disclosed that you argued frequently and faced a range of stressors including supporting members of his family, unemployment and challenges associated with the IVF treatment that you embarked upon during your time together.[12]
[12]Ibid.
Following the death of both Caposiena and Cassidy, you had a brief relationship with Todd Bookham, who was a witness for the prosecution. You lived together briefly.[13]
[13]Ibid.
You have a third child, Arabella, who is four years of age and who Bookham claims is his child. I am told by your counsel that a paternity test has been ordered by the Family Court as part of those proceedings.
You are now in a relationship with a man named Courtney Chalman, whom you are engaged to marry. The court received a letter from Mr Chalman dated 2 May 2023, in which he speaks highly of your parenting and your work ethic. He describes you as a ‘well respected member of the community’, who is caring and charitable. He has noticed a deterioration in your mental health since your remand in December 2022 and attributes this to your separation from your three children.
Since your return to custody, you have become involved in an acrimonious family law dispute regarding the care of your three children. As part of those proceedings, it has been directed that the children have regular contact with you both via telephone and video, however, your counsel have advised me that contact to date has been very limited and that some weeks, no contact is made. You are also self-represented in those proceedings and understandably, this causes you significant stress and difficulty.
Physical Health
As a child, you were diagnosed with juvenile arthritis. This was treated with cortisone injections, however to this day, you continue to experience chronic pain in your hands, wrists and knuckles. You have carpal tunnel in both your wrists which causes you significant pain and discomfort. In your feet, you suffer from plantar fasciitis for which you require surgery. You also dislocated your shoulder as a child and continue to experience some restriction of movement as a result.
As an adult, you suffer from a sizable list of chronic physical conditions that cause you periodic but significant pain and discomfort. You are diagnosed with osteoarthritis, endometriosis and adenomyosis, and you suffer from migraines. In relation to your reproductive health conditions, you experience very heavy bleeding and chronic pain for which you require a hysterectomy. This procedure is to be organised by the prison. In the meantime, you are treated by general practitioners and prescribed painkillers.
You do not have a history of engaging in illicit drug use or excessive alcohol use.
Mental Health
You have experienced a range of mental-health related difficulties in your lifetime and you have participated in various episodes of treatment for those conditions. You were assessed by Clinical and Forensic Psychologist, Mr Patrick Newton on 24 March 2023 and 6 April 2023. Mr Newton also gave evidence at your plea hearing on 5 May 2023.
Anxiety
Mr Newton diagnosed you as suffering from an adjustment disorder that is chronic in nature. He described your symptoms as moderate to severe. He reported that your anxiety developed in response to being charged and prosecuted for this matter, and that it affects physical, emotional, interpersonal and cognitive aspects of your life. His diagnosis is based on the following stressors:[14]
[14]Ibid 9 – 10.
(a) You are deeply upset and worried about the welfare of your children and the conflict over their care. This is what occupies your mind the most.
(b) You concerned about the legal matters you are currently facing.
(c) You are also concerned about the circumstances of your incarceration. You feel unsafe in prison and have experienced recurrent threats, intimidation and violence from other inmates. You spend most of your time alone in your cell, save for short periods of engagement with the prison’s chaplaincy services. You feel isolated in prison and cannot access support and companionship from other women. You also experience chronic sleep disturbance.
(d) You continue to manifest a range of impacts resulting from your exposure to your past traumatic experiences. Features of your incarceration regularly bring to mind the coercive control and violence you suffered in the past, and this rekindles distressing memories.
Personality Adjustment
Mr Newton reports that you present with prominent features of a dependent and self-defeating personality. He states that this exacerbates your experience of anxiety and intensifies your distress. The development of your personality has been undermined by several significant events in your development period. These events include your reported childhood sexual abuse, the disruption to your primary attachments brought about by your parents’ emotional instability and the mental illness they reportedly both suffered, and the peripatetic lifestyle which your family pursued.[15]
[15]Ibid 10 – 11.
As a result, your personality is characterised by Mr Newton by a conflicted dependency on others. You view the world in harsh and competitive terms and believe that your weaknesses leave you vulnerable to exploitation at the hands of others. Your experiences of powerlessness, mistreatment and dislocation have left you doubting your self-efficacy and feeling a pervasive sense of dependence upon a strong support person to deal with the challenges of life. These issues have led to significant conflict in your personal relationships, as well as increase your vulnerability to exploitation and underpin an increased susceptibility to emotional upheaval at times of stress.
The prosecutor has accepted that limbs five and six of the principles identified in Verdins[16] are applicable and some amelioration of your sentence is appropriate. This is on the basis that the sentence I impose on you may weigh more heavily on you than it would on a person in normal health and that there is a serious risk that imprisonment will have a significantly adverse impact on your mental health. This will be a mitigating factor.
[16]R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269 (‘Verdins’).
Submissions
Apart from the submissions I have already referred to, in her submissions, Ms Lacy accepted, consistent with the jury verdict, that by 3 March 2016 there was an agreement in place between you and Cassidy for the killing of Caposiena. That, she argued, was the earliest date on which you could be said to be party to such an agreement. She also accepted that your primary motive was in connection with the child Luca. There were a number of matters that she argued I should not act on, including the claim that you purchased a gun for $100.00 and that you drew the map of Caposiena’s premises that was found in Cassidy’s possession. I accept her submission in relation to the gun.
Ms Lacy accepted the significance of general deterrence but submitted that specific deterrence is less significant because you are without prior convictions and given the nature of this offence, you are unlikely to commit offences in the future. She submitted that your prospects for rehabilitation are good.
Mr Hutton took issue with a number of conclusions urged on me by Ms Lacy as I have outlined. Perhaps the most significant concerned the commencement of the agreement between you and Cassidy – did it commence in December 2015 or is 3 March 2016 the appropriate starting point? He argued that I should act on the evidence of Loprese and Gonzalez, as well as Bonner and Bookham.
Mr Hutton also submitted that your involvement and commitment to the death of Caposiena meant your moral culpability was very high and attracted the consequent sentencing factors.
Conclusion
The jury’s verdict requires that you be sentenced on the basis that over an extended period of time you and Cassidy came to an agreement that Caposiena should be murdered and that Cassidy was the person to do the killing on behalf of both of you. Your hostility towards Caposiena was long standing and though it is difficult to be precise about the timing, the agreement between you and Cassidy that Caposiena would be murdered began well before 3 March 2016.
The aggravating features of your offending are several. First, it was accompanied by significant premeditation. You were hostile toward Caposiena over an extended period and you considered and supported the idea of his murder over that period. It was, in fact, your idea and you had the primary motive for wanting Caposiena dead, though I accept it was one shared by Cassidy. You used a degree of control that you had over Cassidy to bring it about by him doing the act, although, as I have said, I do not sentence you on the basis that he was in any sense an unwilling participant.
Second, your planning involved an element of protecting yourself from the consequences of Caposiena’s death by ensuring that you would not be present and, I accept, your original hope was that it could be done while you were in Darwin.
Third, there was significant planning which you either participated in or supervised.
You also assisted or directed or encouraged Cassidy by providing the home address of Caposiena. You helped Cassidy to perform surveillance on Caposiena’s home and drew the map that was exhibited in the trial. You fabricated the text message that was featured in the evidence and which was designed to ensure that you were not implicated in the killing. I am not sure how much pressure you applied to Cassidy. I accept that he was a willing participant, not a mere dupe, and engaged in the plan with some enthusiasm perhaps because by doing so, he gained your attention and approval. That took the form of support from you and expressed concern for his welfare.
The killing of Caposiena occurred in his home and in front of his partner who has been utterly traumatised by what occurred, given that she was also attacked by Cassidy. I make it clear that I do not sentence you on the basis that you were in any way complicit in that attack on her, but you clearly did contemplate that Caposiena would be murdered in his home. The fact that the murder occurred as it did in front of Caposiena’s partner is a significant factor and you must have realised that is what would occur.
Your counsel rightly accepts that your moral culpability was high. Punishment, denunciation and general deterrence are all significant factors in the sentence I will impose upon you.
On the other hand, you are the mother of three children, and I accept you have a very strong commitment to them. Your custody is very difficult for you given the consequences that follow from that. There are Family Court proceedings in relation to them. That will continue and you will effectively be deprived of their full-time company. You suffer from significant physical and mental illnesses that I have described the latter bringing you within limbs 5 and 6 of the Verdins principles. Your prospects for rehabilitation are good and, in my opinion, you are not a future threat to the community.
I have paid attention to current sentencing practices.
For the crime of murder, you will be sentenced to be imprisoned for a period of 26 years. I direct that you serve a period of 20 years before you are eligible to apply for release on parole.
Pre-Sentence Detention
I declare that you have served 625 days by way of pre-sentence detention, not including today’s date, and I direct that those days be recorded and calculated as time already served.
Ancillary Orders
I also make the forfeiture order sought, pursuant to s 151 of the Firearms Act 1996 and the disposal order sought, pursuant to s 77(1) of the Confiscation Act 1997.
0
1
0