Kavanagh v The Queen

[2011] VSCA 234

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0440

SUSAN KAVANAGH	Appellant
	v
THE QUEEN	Respondent

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JUDGES	HARPER and HANSEN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	5 August 2011
DATE OF JUDGMENT	18 August 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 234
JUDGMENT APPEALED FROM	R v Kavanagh (Unreported, County Court of Victoria, Judge Jenkins, 18 November 2010)

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CRIMINAL LAW - Sentence - Intentionally causing serious injury - Plea of guilty - Sentence of 4 years’ imprisonment and non-parole period of 2 years - Whether sentencing judge erred in her approach to the appellant’s mental health issues - Appellant’s delay in calling an ambulance - Whether this delay affected the weight to be given to the plea of guilty - R v Verdins (2007) 16 VR 269 - Whether sentence imposed appropriate - Appeal dismissed.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr D A Dann	Rainer Martini & Associates
For the Crown	Mrs C M Quin	Mr C Hyland, Solicitor for Public Prosecutions

HARPER  JA:

1. The appellant suffers from alcoholism.  She also has a history of depressive illness stretching back to about 1990.  The tenth of twelve children, she was born on 20 January 1961.  Her childhood was marked by fear of her mother, who was ill with paranoid schizophrenia.  For a young child, that must have been more than a burden; but she also had to suffer the constant disapproval of her parents, for whom nothing was ever good enough.  She left school after completing year 10, and has since held various jobs, but went on a disability support pension in 2009.  Before she went into rehabilitation in 2008 she was drinking a two-litre cask of wine each day.  This has impaired her memory, and her higher mental functioning.  According to Dr Alan Jager, a forensic psychiatrist, she suffers from ‘alcohol dependence, dementia secondary to alcohol dependence, chronic major depressive disorder and a likely borderline personality disorder.’  The history of her relationships, as she described it to Dr Jager, is ‘completely incoherent’, as partners came and went on dates which she was unable to recall even approximately.  A pervasive sense of abandonment has, it seems, haunted her since childhood.

1. This came to a head on 15 December 2009.  She was then in about the sixth month of a casual relationship.  She was intoxicated.  It seems that she initiated, or at least recommenced, an argument with her partner.  He was either in bed or preparing for it, but changed his mind and began to dress in preparation to leave.  According to Pamela Matthews, a forensic psychologist, ‘[the appellant] had reached a point of no longer being able to cope with yet another such experience.’  She went into the kitchen, picked up a knife, returned to the bedroom and stabbed him in the stomach. 

1. His wounds were life-threatening, and their effects remain with him - with consequences which the sentencing judge described in her reasons for sentence as ‘devastating’.  His first reaction was of searing pain.…