R v Cook
[2015] VSC 406
•19 AUGUST 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2014 0115
| THE QUEEN |
| v |
| STEVE RAY COOK |
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JUDGE: | ELLIOTT J |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 20 JULY 2015 |
DATE OF SENTENCE: | 19 AUGUST 2015 |
CASE MAY BE CITED AS: | R v COOK |
MEDIUM NEUTRAL CITATION: | [2015] VSC 406 |
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CRIMINAL LAW – Sentence – Murder – De facto wife – Plea of guilty to manslaughter – Previous violence towards victim – Prior convictions involving violence – Deprived background – Mental impairment – Borderline personality disorder – General and specific deterrence – Remorse – Rehabilitation.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms A Hassan | Office of Public Prosecutions |
| For the Accused | Mr M Cahill | Slades & Parsons |
TABLE OF CONTENTS
A.. Introduction................................................................................................................................... 1
B.. Circumstances of the offence..................................................................................................... 1
B.1... Background.......................................................................................................................... 1
B.2... Events preceding the offence............................................................................................. 2
B.3... The offence............................................................................................................................ 3
C.. Some general statements concerning domestic violence...................................................... 6
D.. Impact on victims......................................................................................................................... 7
E... Circumstances of the offender................................................................................................... 8
E.1... Plea to lesser offence – no real utilitarian value............................................................. 8
E.2... Remorse................................................................................................................................ 8
E.3... Disadvantaged background............................................................................................. 10
E.4... Factors relevant to rehabilitation.................................................................................... 15
E.5... A retrial............................................................................................................................... 18
F... Sentence....................................................................................................................................... 18
G.. Other matters............................................................................................................................... 18
HIS HONOUR:
A. Introduction
Mr Steve Ray Cook, you have been found guilty of the murder of your de facto wife, Sharnee Raewyn Ngatai, on 11 January 2014 in Hampton Park, Victoria.
Before turning to the particular circumstances of your offence, it is necessary to say something broadly about the crime that you committed. Murder is 1 of the most serious crimes. For this reason, the maximum sentence for murder is life imprisonment.[1] You have taken a young woman’s life, and you have deprived her family and friends of a loved one. I have an obligation to denounce your crime in a way commensurate with its gravity.
[1]Crimes Act 1958 (Vic), s 3(1)(a).
B. Circumstances of the offence
I make the following findings in relation to the circumstances of your offence. These findings are consistent with the verdict of the jury and the evidence adduced at trial.
B.1 Background
You are now 24. You were born on 21 June 1991 in New Zealand. After a sometimes violent and unstable childhood, which I will go into further, at the age of 15 or 16, you followed your mother, Ms Lucy Romana, to Australia in or around May or June 2007.
Sharnee Ngatai was born on 21 September 1990 in Australia. She was brought up from the age of around 9 by her aunt and uncle, Louise Bowman and Sam Korau. Sharnee lived in New Zealand between 2002 and 2009.
In September 2010, you met Sharnee and began a relationship with her. Sharnee was pregnant when you met her. She gave birth to a daughter, Shavanna, on 23 March 2011. You have since fathered 2 children with Sharnee: a daughter, Aeriss, born in January 2012; and a son, Azariah, born in August 2013.
After an initially happy beginning, your relationship with Sharnee deteriorated and became, at times, violent. In an interview with a clinical and forensic psychologist, Ms Carla Lechner, on 29 May 2012, you stated that “when I think of things that have happened, bring it up and argue, get carried away and start abusing my missus, tell her to tell the truth, she carries on lying and I slap her”.[2]Although never witnessing any actual violence, your mother noticed bruising on Sharnee. It was unclear from your mother’s evidence as to how often or over what period of time she observed the bruising.[3]
[2]Report of Ms Carla Lechner, dated 6 June 2012, p 3.
[3]Ms Romana said she did not see any bruising on Sharnee after your release from prison in 2012. Sharnee’s body had many bruises in and on it at the time of her death. Whether this was as a result of the events on 11 January 2014, or otherwise, was not clear on the evidence. Significantly, your counsel specifically noted he did not seek to say that when you assaulted Sharnee on the night of the crime you were acting out of character.
In March 2011 and in October 2011, you brutally attacked Sharnee to the extent that she was hospitalised. On both occasions, Sharnee was pregnant; on the second occasion, with your child.[4]
[4]Judge Hicks, sentence, 1-2 [10]-[15].
In June 2012, you were sentenced to 6 and 18 months’ imprisonment for these attacks.[5] The sentencing judge declined to order any cumulation given “your age (still being aged under 21) and your strong prospects of rehabilitation”.[6] After spending nearly 10 months in jail, you were released from prison and you and Sharnee got back together. At the time of the murder, you and Sharnee lived together with your 2 children at 35 Willow Drive, Hampton Park.
[5]Ibid, 9 [67]-[68].
[6]Ibid, sentence, 9 [69].
B.2 Events preceding the offence
In the early hours of 10 January 2014, the night before the murder, Sharnee went to your neighbour’s house. Sharnee asked your neighbour if she could sit on the porch as she did not want to be at home. She asked the neighbour to turn off the porch light as she did not want someone to see her sitting there. At Sharnee’s request, the neighbour called Sharnee a taxi.
Sharnee took a taxi to your mother’s house. When she arrived it was still early in the morning of 10 January 2014. Sharnee told your mother that you had had an argument with her and that you had told her to leave the house. Sharnee told your mother that you were intoxicated. Your mother decided to go to your house to collect the children as she anticipated you would not have heard the children wake up in the morning.
Later on 10 January 2014, Sharnee told your mother that she was going to meet you for a coffee. She left the children with your mother. Ms Romana gave evidence that, at the time, Sharnee appeared happy to be going to meet with you.
In the late afternoon or early evening of 10 January 2014, some of your extended family and friends came to your house for a party, at your invitation. The people who attended your house were your cousins, Drifter Curry and Casey Curry, Drifter’s partner Tuvale Taele, his brother, Nofoaiga Taele. Casey brought her 2 children. After going to buy some beer, you, Sharnee and the other adults gathered in the backyard.
It is unnecessary to go into the earlier details of that night beyond saying that, for the most part, it was relatively uneventful. Everyone appeared to be in good spirits. According to you, while in the backyard, you consumed approximately 15 bottles of beer.[7] Everyone was drinking, playing card and drinking games, and singing. Then Drifter and Tuvale had a minor disagreement and went inside. Ultimately, everyone but you went inside. Before Sharnee and Casey went inside, you fell asleep on 1 of the couches set up in the backyard.
[7]Record of interview, Q44 and Q51, p 7. They were bottles of Corona or Sol, which, I understand, contain 355 or 330 millilitres per bottle.
B.3 The offence
After a short while, Sharnee and Casey returned to the backyard. They tried to wake you up by talking to you and touching you. For no apparent reason, when you awoke, you became angry. You began attacking Sharnee. You punched her and you pushed her. Casey tried to stop you and you forcefully pushed her out of the way, twice. The first time she fell across a table. Casey brought Sharnee down with her as she fell. The second time, Casey hit the back of her head on a post. While you were attacking Sharnee, she was saying words to the effect of: “help me”. As a result of you assaulting Sharnee, she ended up lying on the ground.
Then, you picked up a steel-framed chair, held it above your head, and brought it down on Sharnee. You hit Sharnee with the chair with such force that 1 of the legs went through the skin, bone and dura of Sharnee’s head and penetrated her brain. In the words of Dr Parsons, the forensic pathologist who gave evidence at trial, the chair leg went “all the way through her brain”. Dr Parsons gave evidence that you must have used at least severe to extreme force to do such damage with the chair leg.
At the sentencing hearing, the Crown submitted that I must determine whether, as a matter of fact, you inflicted 1 or more blows with the chair. There was nothing inherent in the jury’s verdict as to whether or not you hit Sharnee with the chair beyond a single blow,[8] particularly as the Crown submitted to the jury that you could be found guilty of murder even if the jury found you had only hit Sharnee once.
[8]R v Edwards [2003] VSC 510, [7]-[8] (Gillard J).
While the evidence is not inconsistent with you hitting Sharnee with the chair more than once, I am not satisfied, beyond reasonable doubt,[9] that you did so.
[9]Filippou v The Queen [2015] HCA 29, [64] (French CJ, Bell, Keane and Nettle JJ, with whom Gageler J relevantly agreed: at [74]); R v Storey [1998] 1 VR 359, 369.3 (Winneke P, Brooking and Hayne JJA and Southwell AJA).
Casey gave evidence that she saw you raise the chair above your head more than once. In the witness box, in response to a question as to what she saw, she motioned the chair being raised and brought down 2 or 3 times. But that is quite different from her seeing you hit Sharnee more than once. In fact, Casey conceded that she could not see Sharnee’s body at the times the chair was brought down.
In light of this, and the concession by Dr Parsons that it was possible that Sharnee’s injuries could have been caused by just 1 downward application of the chair, I am not satisfied beyond reasonable doubt that you hit Sharnee with the chair more than once. Although it is possible you did hit her 2 or 3 times, I am not satisfied, to the requisite standard, that you did so.
Regardless of whether or not you hit Sharnee more than once, your crime was not only very violent, it was cowardly. You are a large man. Sharnee was not a large woman. You assaulted Sharnee in circumstances where your cousin and friend, Casey, tried in vain, a number of times, to stop you. After you had already assaulted her, Sharnee was lying helplessly on the ground. It was then that you killed her.
Sharnee was your de facto wife. She was the mother of your children. She was celebrating with family and friends in her own home, where she should have felt safe. When Sharnee tried to wake you, moments before you attacked her, she said words to the effect of: “babe come on, wake up, wake up”. She did nothing to provoke you.
As Sharnee’s de facto husband, you should have cared for and protected her. Sharnee should have been able to trust you. Instead, not only did you attack and murder Sharnee, you specifically targeted her over others. When Casey tried to intervene, you twice pushed her out of the way so that you could continue your attack on Sharnee. This was not undirected violence or aggression; you deliberately chose your de facto wife and the mother of your children as your victim.
I accept your counsel’s submissions that this murder was not premeditated. You had just been woken up and, for some unexplained reason, you were angry. While I have taken this absence of premeditation into consideration in your favour, I note that this does not lessen your culpability; it merely establishes the absence of a factor that would otherwise have aggravated it.
You were clearly intoxicated at the time of committing the crime. You were intoxicated to the extent that you could no longer walk properly. At trial, Dr Odell[10] gave evidence that at this point, your higher thought processes, including decision making, concentration, problem solving, divided attention and wakefulness, were likely to be adversely affected.
[10]Dr Maurice Odell is a senior forensic physician at the Victorian Institute of Forensic Medicine.
On the plea, your counsel accepted that your intoxication was not mitigatory. Your counsel made this submission on the basis that your conduct was not out of character, and, therefore, that your intoxication did not mitigate your moral culpability.[11] However, your counsel did submit that your intoxication was mitigatory to the extent that your alcohol dependence arose out of your troubled childhood. I will deal with this submission shortly,[12] in the context of your disadvantaged background. Both the Crown and your counsel agreed that your intoxication was not aggravating. The position adopted by counsel on this issue was clearly appropriate.
[11]Hasan v The Queen (2010) 31 VR 28, 33 [21] (Maxwell P, Redlich and Harper JJA).
[12]See pars 42-61 below.
Finally, I note that the Crown also invited me to make a finding as to whether you intended to kill Sharnee or whether you intended to cause her really serious injury. Again, I cannot be satisfied on the evidence, beyond reasonable doubt, that you intended to kill Sharnee rather than to cause her really serious injury. However, having said this, this is not a case where such a distinction is of significance in determining your moral culpability.[13]
[13]Cf R v Walters [2012] VSC 608, [23] (Macaulay J) (leave to appeal refused in Walters v The Queen [2013] VSCA 164, [5]-[10] (Coghlan JA, with whom Maxwell P agreed) and [25] (Priest JA, with whom Maxwell P also agreed).
C. Some general statements concerning domestic violence
The courts clearly recognise that they must forcefully condemn domestic violence.[14] When domestic violence manifests in murderous conduct, that conduct must be denounced in the strongest terms.[15]
[14]See, for example, R v Earl [2008] VSCA 162, [23] (Nettle JA, with whom Ashley JA and Mandie AJA agreed).
[15]Felicite v The Queen (2011) 37 VR 329, 333 [20] (Redlich JA, with whom Harper JA and Robson AJA agreed). See also Portelli v The Queen [2015] VSCA 159, [30] (Maxwell ACJ, Redlich and Kyrou JJA), a case not concerned with murder, but the comments concerning violent attacks on current or former domestic partners are of general applicability.
Moreover, general and specific deterrence have special significance in cases involving domestic violence. In such circumstances, general deterrence is more important as “[t]he victims of such violence are often so enveloped by fear that they are incapable of either escaping the violence or reporting it to the authorities”.[16]
[16]Pasinis v The Queen [2014] VSCA 97, [57] (Neave JA and Kyrou AJA).
Also, specific deterrence is often more important, as it is in this case, because “women who are killed by their husband, boyfriend or de facto partner have frequently been assaulted by them many times previously”.[17]
[17]Ibid, [53].
D. Impact on victims
As would be expected, the impacts of your crime are devastating. Sharnee’s biological father, Mr Dion Kahukaka, stated that when he heard of his daughter’s death, he “fell apart into a million pieces”. He has since had thoughts of self-harm and has “been diagnosed with post-traumatic stress disorder and [is] receiving psychological support for stress [and] depression”.[18]
[18]Victim impact statement of Dion Kahukaka dated 30 June 2015.
Similarly, Sharnee’s biological mother, Ms Raewyn Ngatai, stated that:[19]
The degree of sadness, anger, and hurt I initially suffered (and still do at times) after my twin brother had told me what happened, was an intense shock and depression [was] so deep I could not speak … To think of my daughter’s pain and suffering at those hands leaves me unblinking for a long time.
[19]Victim impact statement of Raewyn Ngatai dated 7 July 2015, par 1.
Although neither of her biological parents raised Sharnee, their grief remains palpable.
Another impact of Sharnee’s death on others was the evidence given by your mother, Ms Romana, on the plea. In cross-examination, your mother said that neither Aeriss nor Azariah have any memory of their mother, Sharnee. Ms Romana stated:
When we show Aeriss her mum, she goes, “No, it’s not my mum”, we go, “Yes, it is, it’s your mum” and she just looks at it and she just doesn’t take any notice of the pictures any more.
Similarly, Ms Romana said Azariah does not remember Sharnee. Whatever may be the short or long-term memory of their mother, you have caused immeasurable loss and injury to your own children.
E. Circumstances of the offender
E.1 Plea to lesser offence – no real utilitarian value
You pleaded guilty to manslaughter in both this trial and the first trial.[20] Little, if any, real utilitarian value was achieved by this course.[21] It was still necessary to have a trial. And although the trial was confined to 1 element of the offence, namely the intention element,[22] putting that element in issue required a substantial number of witnesses to give evidence in any event.[23] Moreover, given the evidence available to the prosecution, only that 1 element could realistically have been disputed; and you chose to do so.
[20]A trial was conducted in March 2015, but the jury was unable to reach a verdict.
[21]Cf Phillips v The Queen (2012) 37 VR 594, 610 [55] (Redlich JA and Curtain AJA, with whom Maxwell P and Harper JA agreed). See also at 610-613 [56]-[67], and 601 [23] (Nettle JA, with whom Harper JA also agreed).
[22]The only element of murder contested at trial was whether you had the intention to kill or to cause really serious injury.
[23]There were 19 witnesses called by the Crown.
E.2 Remorse
As to the question of whether your plea may be indicative of subjective remorse on your part, the Crown relied on Chalmers v The Queen[24] as authority for the proposition that your plea does not necessarily indicate remorse. I do not think that that decision takes things very far in relation to your case, other than to say that whether or not a plea will indicate remorse is highly dependent on the circumstances of the case. In particular, a guilty plea to a less serious offence than the offence the subject of conviction may more readily permit a conclusion that the plea was not motivated by remorse.[25] However, no definitive statements may be universally applied. I, as the sentencing judge, am required to make an evaluation based on the facts in this case, in light of their overall complexity.[26]
[24](2011) 37 VR 464.
[25]At 475 [51]-[52] (Maxwell P, Redlich JA and Kyrou AJA).
[26]Phillips v The Queen (2012) 37 VR 594, 615 [72] (Redlich JA and Curtain AJA, with whom Maxwell P agreed).
The circumstances suggest that your plea is indicative of some remorse, as such a finding is consonant with other evidence.[27] For example, after you murdered Sharnee, you were visibly upset. You cried, you held Sharnee, you tried to wake her up, and you said words to the effect of: “No, no, that’s my wife, that’s my wife”. This evidence is to be given more weight as it occurred on the night of the murder, and prior to the police arriving at the scene and arresting you.
[27]Barbaro v The Queen [2012] VSCA 288, [38], [40], (Maxwell P, Harper JA and T Forrest AJA).
Further, as submitted by your counsel on the plea, you appeared to express remorse during the police interview, saying: “I can’t believe I done that”,[28] “[It was] a horrible mistake”[29] and “I feel like a dog”.[30]In addition, on the plea, you tendered a letter that you had written. In it, you say: “I want to offer my utmost sincerest and deepest apologies; I’ve wrongfully taken the daughter, mother, sister and friend from you and the rest of the world”.[31] You expressed your apologies, sorrow and regret on numerous occasions in the letter. The Crown also conceded that you are to some extent remorseful.
[28]Record of interview, Q294, p 42.
[29]Ibid, Q306, p 43.
[30]Ibid, Q310, p 44.
[31]Exhibit D1.
On the plea, the Crown correctly submitted that remorse is relevant to sentencing insofar as it supports a contention that the prisoner has good prospects for rehabilitation.[32]
[32]Phillips v The Queen (2012) 37 VR 594, 621 [101] (Harper JA). See also at 614 [69] (Redlich JA and Curtain AJA, with whom Maxwell P agreed).
On this basis, the Crown further submitted that, because your prospects for rehabilitation are almost entirely dependent on abstinence from alcohol, your remorse does not assist the court in determining your prospects for rehabilitation. I do not accept this submission. It ignores the fact that despite the undeniable connection between your aggressive behaviour and your abuse of alcohol, the court must take into consideration a complex factual matrix in determining your prospects of rehabilitation, including your remorse. Simply because 1 factor is important, and may be the most important, does not mean that other relevant factors have no bearing. It also fails to recognise that your remorse may make it more likely that you are able to abstain from alcohol, thereby increasing your prospects of rehabilitation. I have therefore taken into account your remorse in your favour in determining your prospects for rehabilitation.
E.3 Disadvantaged background
I accept that your early life was characterised by times of hardship, alcoholism and violence. Your background is set out in the report of Associate Professor Andrew Carroll dated 31 May 2015[33] and in the evidence given by your mother on the plea.
[33]Exhibit D7.
Both your mother and your father abused alcohol during your childhood.[34] Your father was violent towards you and very violent towards your mother, hospitalising her on a number of occasions.[35] You witnessed such violence, including when your father attacked your mother, in front of you and your siblings, causing bruising on her ribs and face.[36] Your father did not punch you, but he hit you with objects, like vacuum hoses, and he burnt your buttocks.[37] You were forced to move house repeatedly to break the cycle of drinking and violence. At 1 point, you even moved in with your uncle because you were being continually “picked on” by your father.[38]
[34]Report of Associate Professor Andrew Carroll dated 31 May 2015, par 55.
[35]Ibid, pars 55 and 57.
[36]Ibid, par 55.
[37]Ibid, par 57.
[38]Ibid, par 58.
During primary school, you did not get into trouble and you performed well academically. But when you went to high school, you were victimised. You were beaten up a number of times, including by a gang of boys on at least 3 occasions. Around this time, your mother noticed a change in you. She said you became “really hard” and started closing yourself off. Your mother gave evidence that you were expelled for “tagging” the toilets. Associate Professor Carroll, in his report, stated that you told him you were expelled for being argumentative with teachers.[39]
[39]Ibid, par 59.
When you moved to Australia with your mother, you undertook a TAFE computer course. You did not complete that course.[40] You have mostly been unemployed since leaving school. The longest job you held was for 6 months at a factory.[41] You have not worked since 2011.
[40]Ibid, par 60.
[41]Ibid, par 61.
By the age of 15 you had already started drinking and taking drugs, although your mother was not certain when you started drinking heavily.[42] Associate Professor Carroll, in his report, stated that you told him that you began using alcohol at the age of 12 and that you were a binge drinker throughout your teenage years.[43] Your mother gave evidence on the plea that your father introduced you to alcohol.
[42]Ibid, pars 21-25.
[43]Ibid, par 45.
In his first report, Associate Professor Carroll concluded that:[44]
[44]Ibid, pars 76–83.
Cook’s developmental history was marked by high levels of physical and emotional abuse inflicted on him by both parents.[45] He appears to have grown up in a chaotic and neglectful domestic environment whereby he was not adequately nurtured or protected. This appears to have left him with longstanding feelings of insecurity and inner turmoil.
He commenced cannabis and alcohol abuse at an early age, and both his account and that of his mother suggest that during adolescence, he became increasingly suspicious of other people. There is no evidence however that he developed a psychotic illness at any point.
There are a number of features indicative of significant damage to his personality stemming from his childhood trauma. Diagnostically, he presents with a mixture of borderline and paranoid features. He gives an account of being persistently hypervigilant and mistrustful of other people; in interpersonal relationships, this has taken the form of excessive concerns about fidelity and consequent possessiveness and recurrent domestic violence.
…
In recent years, the clinical picture of personality disorder has been further complicated by alcohol dependency, with almost daily heavy usage.
…
There is … good evidence both of a mixed personality disorder, and of alcohol dependency (which is currently in remission in a secure environment).[46] The offence appears to have occurred due to a combination of personality-based relationship conflict,[47] impulsivity and alcohol intoxication.
(Emphasis added.)
[45]There is no direct evidence of your mother abusing you. Further, since moving to Australia, your mother has abstained from drinking alcohol.
[46]At the time of this report, you were incarcerated.
[47]In a supplementary report, Associate Professor Carroll revised his explanation for why the offence occurred, excluding “personality-based relationship conflict”, at the request of your counsel as this was “not the evidence at trial”: report of Associate Professor Andrew Carroll dated 1 July 2015, pars 8–11. I have acted upon the report as revised.
In his final report dated 17 July 2015, Associate Professor Carroll stated that, at the time of the offence, your mental functions would have been severely impaired as a result of your intoxication, the effects of which would have been “especially grave due to [your] personality-based dispositions towards impulsive behaviour, anger and jealousy”.[48]
[48]Report of Associate Professor Andrew Carroll dated 17 July 2015, par 9.
I accept that you had a troubled upbringing and that your mixed personality disorder and alcohol dependency were, at least in part, a result of your upbringing. As held by the Court of Appeal in R v Terricks:[49]
circumstances of disadvantage, deprivation or … violence may be explanatory, if not causative, of the offending or (if relevant) of the offender’s alcohol or drug addiction.
[49](2009) 24 VR 457, 468 [46] (Maxwell P, Redlich JA and Robson AJA).
Similarly, in Bugmy v The Queen,[50] the plurality of the High Court stated:[51]
An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced.
In stating this, it was not being suggested that an offender’s deprived background has the same mitigatory relevance for all purposes of punishment.[52] That said, in every sentencing decision, full weight must be given to an offender’s deprived background.[53]
[50](2013) 249 CLR 571.
[51]At 595 [44] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).
[52]Ibid.
[53]Ibid; cf 598 [56] (Gageler J) citing Neal v The Queen (1982) 149 CLR 305, 326.5 (Brennan J).
As a general rule, responsibility for an offence will not be mitigated where behaviour is influenced by self-ingestion of drugs or alcohol.[54] In its written submissions, the Crown submitted that the only exception to this general rule is where such conduct is “out of character”.[55] However, contrary to this submission, a second exception is where:[56]
the court is satisfied that there is something which, whether wholly or partly, excuses the taking of drink or drugs, it will treat that circumstance as going in mitigation.
[54]R v Copeland [2014] VSC 39, [61]-[62] (Maxwell P), citing R v Redenbach (1991) 52 A Crim R 95, 99.
[55]Outline of submissions on behalf of the prosecution at the plea dated 20 July 2015, par 14.
[56]R v Redenbach (1991) 52 A Crim R 95, 99.8 (Young CJ, Brooking and Marks JJ).
Generally, the fact that such alcohol dependence arose out of a troubled childhood will not be sufficient for the court to consider intoxication to be a factor in mitigation of culpability.[57] However, in this instance, because of the very young age at which you started drinking, the direct role of your father in introducing you to alcohol, and the fact that both your parents abused alcohol in the family home until you were 15, I treat this as a circumstance in mitigation.
[57]See, for example, R v Redenbach (1991) 52 A Crim R 95, 99.9 (Young CJ, Brooking and Marks JJ); R v Copeland [2014] VSC 39, [66] (Maxwell P).
In summary, based on the evidence presented on the plea, I accept that your upbringing and resultant personality disorder and alcohol dependence were, in part, causative of you committing the offence. I have therefore taken this into account in your favour in determining your moral culpability for your crime.
Your resultant personality disorder also requires me to consider the principles concerning impaired mental functioning as reformulated in R v Verdins.[58]
[58](2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA).
On the plea, your counsel correctly observed there was no evidence of any mental illness and, by reason of that, he declined to make any submission based on the Verdins principles. However, such principles are not limited to serious psychiatric illness, and may be applicable:[59]
where the offender is shown to have been suffering at the time of the offence … from a mental disorder or abnormality or an impairment of mental function, whether or not the condition in question would properly be described as a (serious) mental illness.
[59]R v Verdins (2007) 16 VR 269, 271 [5] (Maxwell P, Buchanan and Vincent JJA).
The mere fact that your borderline personality disorder may not be a psychiatric illness does not, of itself, exclude your case from the operation of the Verdins principles. That is, while a borderline personality disorder may be less severe or serious than other mental illnesses, this does not prevent you from seeking to ameliorate your sentence pursuant to the Verdins principles. Rather, the severity or seriousness of your mental impairment will affect the extent to which these principles can ameliorate your culpability.
In line with this conclusion, borderline personality disorder has been found to be sufficient to enliven the Verdins principles in a number of cases.[60] Having established that such an abnormality of mental functioning exists, the relevant question is whether or not that abnormality was causative of your commission of the offence.[61]
[60]See, for example, R v Stensholt [2014] VSC 668, [37] (Curtain J); R v West [2013] VSC 737, [42] (Curtain J).
[61]R v Zander[2009] VSCA 10, [29] (Dodds-Streeton JA, with whom Nettle JA agreed).
As set out above,[62] I accept Associate Professor Carroll’s evidence that your borderline personality disorder was, on the balance of probabilities, at least in part, causative of your offence. In light of this, the Verdins principles apply in your case. The application of these principles supports the findings, and the approach, set out in paragraph 53 above.[63]
[62]See pars 47-53 above.
[63]I have been careful to avoid any doubling up of sentencing benefit arising from your personality disorder.
Further, as to deterrence, your personality disorder is not sufficiently severe to significantly lessen the purposes of specific or general deterrence in your case.[64] Furthermore, as was recognised by Associate Professor Carroll in his final report, “… there is nothing to suggest that imprisonment will pose risks to [your] mental health any greater than the negative effects on mental well-being suffered by the average prisoner”.[65] In light of this, your personality disorder does not suggest that your sentence be reduced on the basis that it may exacerbate the detrimental effects of imprisonment.[66]
[64]R v Verdins (2007) 16 VR 269, 276 [32].
[65]Report of Associate Professor Andrew Carroll dated 17 July 2015, par 17.
[66]R v Verdins (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA).
Thus, the extent to which these findings are mitigatory must be limited by the matters referred to immediately above. Further, your actions were voluntary, intentional and specifically directed towards the victim. This is not a case in which it is suggested that your circumstances were such that you had no control over your actions. Despite your mental impairment, you still made a decision to commit a heinous crime and you should be held accountable accordingly.
Furthermore, it is important that you understand that these findings, to the extent that they reduce your moral culpability, in no way excuse your behaviour; they simply provide a partial explanation as to why you did what you did.[67] Moreover, it does not diminish the need to vindicate the dignity of Sharnee and reflect the community’s disapproval of the crime committed.[68]
[67]Marrah v The Queen [2014] VSCA 119, [16] (Redlich and Tate JJA).
[68]Ibid, citing Munda v Western Australia (2013) 249 CLR 600, 620 [54] (French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ).
E.4 Factors relevant to rehabilitation
On the plea, your counsel submitted that you have reasonable prospects for rehabilitation based on your relatively young age, your remorse,[69] the support of your family[70] and your gainful use of time in custody.[71] I accept these are factors in your favour with respect to rehabilitation and I have taken them into account in determining your prospects of rehabilitation. However, such considerations must be moderated in light of the seriousness of your crime.[72]
[69]As set out at pars 37-41 above.
[70]Report of Associate Professor Andrew Carroll dated 31 May 2015, par 36.
[71]Ibid, pars 34-35.
[72]See, for example, R v PDJ (2002) 7 VR 612, 629 [82]-[83] (O’Bryan AJA, with whom Chernov and Eames JJA agreed).
Another factor relevant to the issue of rehabilitation is your prior criminal conduct. Considering that you were only 22 at the time you committed this offence, you have a substantial criminal history. You were convicted of approximately 20 offences, of varying degrees of gravity, between 2010 and 2012.[73] Of particular concern, and of the most relevance to your sentence in this matter, are your offences involving violence.
[73]Exhibit P3, pp 1-3.
As set out at paragraph 9 above, you were found guilty in 2012 of recklessly causing injury and recklessly causing serious injury in relation to 2 attacks perpetrated by you against Sharnee.[74] These attacks were brutal.
[74]Ibid, p 1; Judge Hicks, sentence, par 1.
On the first occasion, in March 2011, Sharnee was brought to hospital with extensive bruising to her neck, arms and face.[75] Sharnee told a social worker that she was “petrified” of you.
[75]Judge Hicks, sentence, par 10.
On the second occasion, in October 2011, you verbally abused Sharnee before punching her in the ear, causing her to bleed, and punching her with a closed fist to her face, causing her to lose consciousness for an extended period of time.[76] You dragged her, unconscious, to her bed. The next morning, Sharnee woke up to find blood on her clothing. When you had returned from work, you continued your attack, hitting her on her injured ear and eye with a newspaper.[77] Sharnee was again taken to an emergency department.[78]
[76]Ibid, par 15.
[77]Ibid, par 16.
[78]Ibid, par 18.
On this plea, the Crown also addressed 2 further violent offences that you committed, both of which proceeded as a consolidated plea at the Dandenong Magistrates Court in October 2010.[79] On the first instance, for unexplained reasons, you became angry and assaulted 2 security guards at a McDonald’s restaurant. One of the victims was knocked to the ground during this assault, receiving a cut to his left eye. On the other occasion, again for apparently unexplained reasons, you verbally abused and punched a bus driver.
[79]Exhibit P3, p 1.
In 2012, in connection with your prosecution for the 2 attacks on Sharnee for which you were charged, Judge Hicks found that you had positive prospects for rehabilitation.[80] This finding was, in part, based on Ms Lechner’s opinion.[81] However, only 18 months after being released from prison on these charges, you murdered Sharnee. You have already been given the chance to rehabilitate yourself. You did not take it, with tragic consequences.[82]
[80]Judge Hicks, sentence, par 38.
[81]Report of Ms Carla Lechner dated 6 June 2012, p 6.
[82]See R v Gull [2003] VSCA 123, [15] (Vincent JA, with whom Phillips CJ and Ashley AJA agreed).
These violent crimes, and in particular those committed against Sharnee, cast doubt on your prospects for rehabilitation and reinforce the need for specific deterrence in your case. The fact that you have continued to commit crimes involving violence despite being convicted and sentenced a number of times, shows that you have little regard for the law and significantly undermines my ability to have any confidence that you will be able to rehabilitate yourself.
On the plea, the Crown submitted that your prospects of rehabilitation are almost entirely dependent on your abstinence from alcohol.[83] Although I do not accept this submission unreservedly, I agree that such abstinence is highly likely to form a necessary part of your rehabilitation. In addition to addressing your abuse of alcohol, as stated by Associate Professor Carroll, your rehabilitation also relies on your ability to resolve your “difficulties with your emotional regulation, especially anger”.[84] There is no evidence before me of the likelihood of either your alcohol intake or your personality disorder being successfully treated. Although Associate Professor Carroll was asked to give his opinion as to whether a full recovery was likely, he did not do so other than to say that you would benefit from treatment.[85] Further, in many cases where a long sentence is called for, it is not possible to foresee the future course an offender will take.[86]
[83]See also par 41 above.
[84]Supplementary report of Associate Professor Carroll dated 17 July 2015, par 20.
[85]Ibid.
[86]Cf R v PDJ (2002) 7 VR 612, 629 [82] (O’Bryan AJA, with whom Chernov and Eames JJA agreed).
In the circumstances, and in light of the lack of evidence, I do not find that your personality disorder or your use of alcohol have any bearing, whether mitigatory or aggravating, on your prospects for rehabilitation. I find your overall prospects for rehabilitation to be reasonable, but adversely affected by your background. This is, in large part, due to your criminal history and, in particular, your history of violence against Sharnee which did not cease even after you were first incarcerated.
E.5 A retrial
I note that by reason of a hung jury in the first trial, you have also had to face a second trial, with some consequential delay (albeit very minor).[87]
[87]Cf R v Azizi (2013) VSC 16, [55] (Kaye J).
F. Sentence
Taking each of the matters referred to above into account, and balancing the factors as best as I am able, on the count of murder you are convicted and sentenced to be imprisoned for a period of 21 years and 6 months. I fix a minimum non-parole period of 17 years and 6 months.
G. Other matters
Pursuant to the Sentencing Act 1991 (Vic), s 18(4), I declare that 586 days of imprisonment (inclusive of today) have been served by way of pre-sentence detention, and that this period be reckoned as a period of imprisonment already served. I shall cause that declaration to be noted on the records of the court.
I will make the disposal order sought by the prosecutor (and not opposed by your counsel).
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