R v Copeland
[2014] VSC 39
•11 February 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2013 0099
| THE QUEEN | Plaintiff |
| v | |
| ELLA CHRISTINE COPELAND | Defendant |
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JUDGE: | MAXWELL P | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 January 2014 | |
DATE OF SENTENCE: | 11 February 2014 | |
CASE MAY BE CITED AS: | R v Copeland | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 39 | |
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CRIMINAL LAW – Sentence – Defensive homicide – Plea of guilty – Single stab wound – Circumstances of killing unknown – No basis to assess proportionality between threat and response – Crown submission overstated seriousness of offence – Offender seriously drug-affected – Entrenched drug addiction – Whether mitigating factor – Whether conduct out-of-character – Remorse – Strong prospects of rehabilitation – No prior convictions – Sentenced to 8 years’ imprisonment, non-parole period of 5 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P Rose SC | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Accused | Mr D Hallowes | Patrick W Dwyer |
HIS HONOUR:
Ella Christine Copeland, you have pleaded guilty to the offence of defensive homicide in relation to the death of Colin Davey on 10 September 2012. I must now sentence you for that crime.
By your plea, you admit that you intended to kill Mr Davey or cause him really serious injury. In other circumstances, that would constitute murder. The acceptance of your plea to defensive homicide means that the prosecution accept that you killed Mr Davey while believing that it was necessary to do so to defend yourself from the infliction of death or really serious injury. By pleading guilty, however, you accept that you had no reasonable grounds for that belief. The maximum penalty for defensive homicide is 20 years’ imprisonment under s 9AD of the Crimes Act 1958 (Vic).
You were aged 24 at the time of this tragic incident. You were seriously affected by drugs at the time. You had developed a serious drug addiction over the preceding years, to which I will refer, and at the time of the killing you were using up to three grams a day of heroin, ‘ice’ (methylamphetamine) and a variety of prescription drugs. As a consequence of your drug addiction, you were no longer employed and had resorted to street sex work as a source of income to support your drug habit.
Circumstances of the offence
On 10 September 2012, you attended at an address at Richmond, as you wanted to purchase heroin from a known drug dealer. Owing to your drug-affected state, you made a nuisance of yourself within the apartment block by banging on doors and yelling out. Security staff called police, who attended and found you in a drug-affected state. An ambulance attended and you were taken to St Vincent’s Hospital for assessment and observation. You told the paramedics that you had taken ‘ice’ two days earlier and had taken heroin, Xanax and Valium that day.
At around the same time, Mr Davey attended at St Vincent’s Hospital, together with his daughter, Coralin Davey, for an X-ray.
After 3:00pm, the X-ray having been completed, Coralin left her father and went to the tram stop outside the hospital. She was going to meet up with her boyfriend. A little earlier, you had been released from the hospital and had made your way to the same tram stop.
At the stop, Coralin saw you fall over. You were screaming. She told police:
I saw on platform 1 a girl who was off her face with another guy. This was the first time I had ever seen this girl. The guy had to pick her up off the floor. The boy with her had to hold her and she, like, started screaming like she was in pain. I turned around and ignored her because I didn’t want to get caught looking.
Subsequently, Mr Davey joined Coralin on the tram stop and they both boarded a tram. You entered the same tram, immediately behind them. Mr Davey sat down, while Coralin stood next to him. You stood at the front, at the door, stumbling around and falling onto passengers. A short time later, you made your way down the tram to where Mr Davey and his daughter were. When other passengers left, Coralin offered you their vacant seats. Although you initially refused, you then stumbled and fell onto the seats. While sitting there, you said to Coralin that you had just had surgery.
At the intersection of Victoria and Lennox streets in Richmond, you and Mr Davey got off the tram. Coralin stayed on board. You and Mr Davey had not spoken up to this point. It would appear that Mr Davey walked to the traffic lights and waited to cross. At this point, you stood next to him and spoke to him. You then walked together towards the block of high-rise units where he lived.
According to your subsequent account, you and Mr Davey spoke about you going up to his unit where you thought you could make some extra money by performing sexual acts. You both entered the high-rise block and made your way to the 18th floor, where his unit was.
Once inside the unit, you said later, you sat in the lounge room while Mr Davey went to the kitchen to make a cup of tea for both of you. After some general chit-chat, Mr Davey asked about the cost of sex. You told police that you said to him that it was $50 for oral sex, $80 for sex and $100 for both. According to your account, he said to you that he would pay $50 upfront and $50 afterwards. You responded that you did not work like that and you would require payment upfront. As a result, you and he argued. He then walked out of the kitchen and proceeded to walk towards the front door carrying two large cups of tea in his hand. He placed the cups of tea on a small chest of drawers in the hallway and walked to the front door where he asked you to leave.
It is unclear exactly what occurred at this time. When Mr Davey’s body was later found, he had one meat cleaver under, and another meat cleaver near, his right leg. It appears that you went into the kitchen and took up a large kitchen knife. You approached Mr Davey in the hallway near the front door. You stabbed him once in the back, and the knife was left in his body.
Mr Davey apparently grabbed the cordless telephone from its dock, near the front door, and rang ‘000’. In a laboured voice, he told the operator that he had been stabbed in the back. You then grabbed the phone from him and hung it up. It appears that Mr Davey then slumped against the front door.
You then made your way back into the kitchen and dropped the cordless phone on the floor. You collected your bags from the lounge and took a box of Mr Davey’s medication. You made your way to where he was slumped by the front door and took his wallet out of his jeans pocket. The wallet contained an assortment of cards and $420 in banknotes, which you stole from him. You then located a yellow plastic sheet which you placed over his head and upper body, leaving his legs exposed.
You then left Mr Davey’s unit and made your way down a number of flights of stairs to the 11th floor, where you pressed the lift button to go down. Doors opened and you got into the lift not realising that it was going up. By this time, three police officers were in the lift, and they saw that you had blood on your clothing and hands. When the lift stopped at the 18th floor, you were required to leave the lift.
Police found Mr Davey’s body slumped on the floor with his back against the front door. He was covered by the yellow sheet. There was visible bloodstaining on the floor around him, and blood spatter on the wall in the corner behind the door. His jeans were pulled down to his ankles and he was lying in his underwear. Beside his right leg was a black jacket and a brown-handled meat cleaver. Under his right leg was a second meat cleaver. Coralin Davey told investigators that the meat cleavers were usually kept behind the fuse box, on the wall next to the front door, for protection in the event of an armed intrusion.
A large black-handled knife protruded from the centre of Mr Davey’s back. Female cosmetic items belonging to you were located inside the lounge area of the unit and in the outside hallway leading to the stairwell. Blood was also located on the first floor of stairs leading down from the 18th floor.
While in custody at the police station, you removed the $420 in cash from your person and hid it in a door jamb of the holding cell. You subsequently identified this to police as being Mr Davey’s money.
Later on 10 September 2012, you were interviewed. You appeared to be in a drug-affected state and were acting aggressively. You were hitting your head against the wall. You were deemed unfit for interview that day.
The following day, having been deemed fit for interview, you gave an account of how you had come to stab Mr Davey in the back. You said that, after you both left the tram at the same tram stop, Mr Davey had asked you if you wanted to earn some more money. Because you were looking for more money to score heroin, you agreed to have sex with him. You went with him to his apartment and there were discussions regarding payment. You said you wanted payment upfront and he said he would pay half before and half after. He then walked to the front door holding two cups of tea and asked you to ‘just leave, just fucking leave’.
According to you, he turned around holding a knife and said, ‘we’re gonna have a little bit of fun’. You told police you believed Mr Davey was going to rape or kill you. You described how you disarmed him by grabbing the blade of the knife and twisting it from his hands. You said that you then pulled his head forwards and stabbed him in the back. You told police that Mr Davey had made an emergency call and that you had hung up the phone. You said that what you described as ‘the junkie part’ of you wanted the money, so you grabbed his wallet and his prescription drugs and left him slumped against the front door.
The Crown does not accept your version of events which has Mr Davey producing the knife. Nor, on the other hand, is the Crown able to say when, or how, or why the meat cleavers came to be where they were found, close by the body, nor whether Mr Davey had possession of them at or shortly before the time he was stabbed. I will return to this significant uncertainty later in these reasons.
Personal history of the deceased
Mr Davey was 68 at the time of his death. He had four children from his first marriage. This marriage ended in 1985 and that year Mr Davey moved to Australia. In 1987 he married Corazon Catamio. Coralin is their daughter. Her parents separated while she was still very young, but Mr Davey had fortnightly custody of Coralin up to about 2005, when she moved in permanently with her father. She was living with him at the time of his death.
Mr Davey and Coralin were extremely close. Coralin speaks movingly in her victim impact statement of her relationship with her father. She describes how she has lost ‘the biggest part of my life, my best friend and my father’. She describes her anger, hurt and sadness that he will not be able to be there for the significant events in her life. She writes that ‘[i]t breaks my heart to know my best friend won’t be there for me to open up to the way I used to’. I have taken into account the effect of this terrible crime on Coralin and Mr Davey’s other daughter, Tania Thorpe.
Your personal circumstances
You were born on 13 June 1988. You come from a stable and supportive family. Your parents operate a printing business, and you describe them as very hardworking. You have one older sister, who is a qualified materials engineer. Your relationship with your sister is not close.
You attended a private school in the eastern suburbs from Prep to Year 11. By Year 11, you were a daily drug user, typically injecting heroin. You did not sit exams that year. It was at about that time that you slashed your wrists and took what is described as a ‘cocktail’ of various medications. You came under the care of a psychiatrist, Dr Stamp, and for a period of about three weeks in February 2005, you were an inpatient at a private hospital in Burwood. You were then 16.
You then transferred to Box Hill TAFE. It seems that you completed Year 11 and then commenced Year 12, but did not sit all of the Year 12 exams. You told Mr Cummins, a clinical psychologist who has been treating you since 10 September 2012, that throughout Year 12 (2006) you were a daily intravenous heroin user. You were supporting your heroin addiction by making up stories to obtain money from your parents. You were also stealing money from your parents and were also then sometimes assisting drug dealers with handing out drugs.
You estimated that, at that time, you were being given pocket money of around $200 per week. You said you would have been spending at least the equivalent of $50 per day on heroin (approximately 0.2 grams per day). You think that it was in Year 12 that you had a consultation with another psychiatrist, Professor Keks, who indicated that you should be re-admitted to the private hospital. You declined to follow that advice.
In May 2007, aged 18, you commenced a nursing traineeship at Villa Maria. You were simultaneously undertaking a Certificate IV of Health (Nursing) at Swinburne University of Technology in Croydon. You undertook this traineeship over a period of three years, between May 2007 and May 2010, and you typically worked at Villa Maria three days per week. Your position there eventually became permanent, and you successfully obtained a Certificate IV. Unfortunately, Villa Maria closed in May 2010 and you were made redundant.
Over the period of the nursing traineeship, you had three, or possibly four, Naltrexone implants fitted. You think the first of these was when you were about 19. You recall having other implants in 2008 and again in August 2009. Around that time, you were also taking Suboxone.
While undertaking the nursing traineeship, your primary drug addiction was to heroin, although you sometimes used amphetamines intravenously. In the later years of your studies, you started experimenting with crystal methylamphetamine and subsequently used it on a regular, and often daily, basis. In June 2010, you were admitted to a private hospital where you underwent a 28-day heroin detoxification. Shortly later, in July 2010, you gained entry to a nursing degree at Edith Cowan University in Perth. You abandoned that course after approximately two weeks, and were evicted from the house you were living in because of your erratic behaviour. You returned home to live with your parents and, in September 2010, you underwent two weeks of residential detoxification.
You then resumed casual employment with Eastern Health and, in March 2011, commenced a degree in nursing at Monash University. After approximately two months, you withdrew from that course, at about the time you were diagnosed as being hepatitis C positive.
Your mother has kept a diary of your treatment and hospitalisation, which provides the following subsequent chronology:
·July 2011 — inpatient at Malvern Private Hospital for 28 days;
·August 2011 — private rehabilitation clinic in Sydney for 32 days, receiving treatment for poly-substance addiction and for anorexia and bulimia;
·September 2011 — residential drug rehabilitation facility in Melbourne for two weeks;
·October 2011 — private rehabilitation clinic in Sydney for seven days, during which time you took an overdose of pills;
·late November/early December 2011 — admitted to Maroondah Hospital after taking an overdose of prescribed medication;
·December 2011–February 2012 — successive overdoses of prescribed medication and hospital admissions.
On 30 March 2012, you commenced a three to four week residential program in New South Wales. On 20 April 2012, you left the program in the company of another drug-using resident. You stayed together in Byron Bay, using drugs, until late June 2012.
You were intermittently in receipt of a Job Search allowance in early 2011. You said it was shortly later that you started working as a sex worker, by which time your drug use was chronically ‘out of control’.
Throughout your adolescence and adult years, you have been treated with a number of mood-stabilising medications and antidepressants. Your mother, who gave evidence at the plea hearing, said that throughout your secondary school years you seemed anxious, depressed and unhappy. She said she found it hard to understand that you had, as you plainly did have, such low self-esteem, when it seemed to her that you had so much going for you and had great friends around you. She and your father identified your condition as a mental illness problem and spent many years trying to get it properly diagnosed.
Your parents did their best to support and encourage you but you turned to drug use which, your mother now considers, was for the purpose of self-medication, you doing so in the hope that it would make you feel better. At first, the drug use was hidden from your parents but, subsequently, they became aware that you were a drug user and a drug addict. I have already referred to the multiple attempts at drug rehabilitation, most of which your parents paid for. Although at times they felt there was some progress being made, your mother continued to be concerned about your severe self-criticism and your lack of self-esteem.
When your mother was asked by your counsel as to her observations of you over the time you have been in prison — now approximately 16 months — she said that you now appear to be reflecting seriously on what you have done. She said, ‘I’ve watched a light come back’. She sees a lot of hope in the fact that you now appear to be looking for solutions for a way forward. In her assessment, you now feel an abhorrence about what has happened and feel quite clear that you never want to see drugs again.
It is, at the same time, accepted by your counsel that there have been two occasions when you have taken drugs while in custody. I will return to this later.
Psychological assessment
As I mentioned, you have been seeing Mr Jeffrey Cummins since September 2012, and have seen him once or twice a month since then. Mr Cummins provided a report dated 28 January 2014, in which he concludes that you have suffered since your early adolescent years from a chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood. In his opinion, the disorder first developed in circumstances where you felt different from your school peers and your friends. There was no specific trigger, in his opinion, but the disorder became progressively entrenched in conjunction with your polydrug use. In Mr Cummins’ opinion, it is also reasonable to conclude that you were suffering from a Persistent Depressive Disorder in your adolescence and early adult years.
Mr Cummins expressed his conclusion in these terms:
I have been treating Ms Copeland since her arrest on 10/9/2012. In my opinion she has made very impressive use of the opportunity to receive treatment whilst in custody. She spontaneously acknowledges she is very grateful her parents have been paying for this [treatment]. Whilst incarcerated she has been intermittently on the antidepressant Prozac and the mood stabiliser Seroquel. In an overall sense, it is my opinion she has made very constructive use of her time on remand.
…
Whilst on remand she has been working in horticulture and most recently in the kitchen. She has now enrolled to undertake a printing and graphics course with Kangan Batman TAFE and she has also made enquiries to undertake a Certificate III and Certificate IV in Business. She has been advised she will not be able to commence these studies until she is sentenced.
Based upon my assessment of Ms Copeland it is my opinion her prospects for long term rehabilitation, including long term drug rehabilitation, are very favourable. I have not assessed her as having a general anger management problem. Her parents indicate that whilst her behaviour was often erratic and unpredictable, she did not have any history of violent behaviour. Her offending of 10/9/2012 is therefore in my opinion significantly out of character. I appreciate her perception on 10/9/2012 is therefore in my opinion significantly out of character. I appreciate her perception on 10/9/2012 could have been significantly compromised as a result of her state of drug intoxication. Ms Copeland has indicated it is her intention to continue receiving psychological treatment once she has been sentenced.
As indicated above, she expresses comprehensive remorse concerning her offending behaviour. She is ashamed that as a result of her behaviour Mr Davey lost his life.
In evidence at the plea hearing, Mr Cummins said that the two occasions of drug use while in custody did not represent relapses. He was aware of the circumstances in which this had occurred and, in his opinion, these two occasions were reflective of ‘specific crisis situations’.
Assessing the seriousness of the offence
Last year, in Nash v The Queen,[1] the Court of Appeal dismissed an appeal against a sentence for intentionally cause serious injury. In my concurring judgment, I noted that the Court of Appeal had recently reaffirmed the importance of current sentencing practices in the identification of the sentencing range applicable to the case at hand.
[1][2013] VSCA 172 (‘Nash’).
I there set out what Redlich JA had said in Ashdownv The Queen,[2] which in turn had been endorsed by the Court of Appeal in Anderson v The Queen,[3] as follows.
[I]t is [current sentencing practices] as revealed by those comparable cases concerned with the relevant category of seriousness of the offence, that will generally inform the range of sentences that are reasonably open to the sentencing judge.
Consistency in sentencing, fundamental to the administration of justice, requires adherence to current sentencing practice unless a specific circumstance exists which warrants departure from that practice. The law requires that a discretionary decision must be made in conformity with the well settled principles as must appellate review of such decisions. By this judicial method the law promotes consistency in decision-making and diminishes the risk of arbitrary and capricious adjudication.
[2](2011) 219 A Crim R 454, 17 [174], 23 [191].
[3][2013] VSCA 138 [21]–[24].
For reasons which I will give in due course, I consider that the sentencing range put forward by the Crown was quite inappropriate. It could not be reconciled with current sentencing practices for the relevant category of seriousness into which this case falls.
The prosecutor submitted that the objective seriousness of your offending placed it at the high end of the scale. Pressed by the Court to identify what features of the case justified this categorisation, the prosecutor relied almost entirely on what you did after you had stabbed Mr Davey — by taking the phone away from him, covering him up, taking his money and prescription drugs and then walking down several flights of stairs in order to avoid detection. He described your conduct as ‘fairly callous’.
The submission made on your behalf was that this was a miscategorisation of the relative seriousness of the offence. According to your counsel, examination of the growing body of sentencing law on defensive homicide shows that your case lacks the features which have been treated in successive decisions as making such an offence more serious. Your counsel relied in particular on the fact that:
(1) your action was confined to the infliction of a single stab wound; and
(2) because of the uncertainty surrounding what actually happened, no judgment could be made about the nature or extent of any perceived threat nor, therefore, about the quality of your belief that it was necessary to kill or seriously injure Mr Davey in order to defend yourself.
The prosecutor provided, in support of his submission on sentencing range, a folder containing some 26 sets of sentencing reasons, and three Court of Appeal judgments, in cases of defensive homicide. Unfortunately, the provision of raw sentencing material of this kind is, by itself, of no assistance in determining the sentencing range for the case at hand. The position is different, of course, if particular cases are identified as either being relevant, comparable or informatively different, but that is not what occurred.
What is required, in order for sentencing information of this kind to assist in the determination of a sentencing range, is a sufficient analysis of the sentencing decisions to discern what are the features of offending of this nature which have led sentencing courts to view a particular instance of the offence as more or less serious.[4] That is the task which I have had to undertake for myself.
[4]Cf Nash [2013] VSCA 172.
By definition, in every case of defensive homicide the offender will have had an honest belief that the killing of the victim was necessary in order to defend himself/herself or another person. That is a constant. Equally, in each such case, it will have been proved, or admitted, that there were no reasonable grounds for that belief. In other words, the belief held by the offender that the conduct was necessary had no rational foundation. That is also a constant, but it is in this area of the absence of reasonable grounds that the sentencing decisions reveal important differentiating factors.
As the Court of Appeal said in Creamer v The Queen,[5] in a passage to which defence counsel drew attention:
The gravity of this offence must depend, to a considerable degree, upon the strength of the circumstances said to give rise to the belief that self-defence was warranted. Of course, in any case where the verdict is one of defensive homicide, the offender’s belief must have been unreasonable. Otherwise, the jury would have acquitted entirely, on the basis of self-defence.
However, there are degrees by which a belief may be said to have been unreasonable. In some cases, the line is just barely crossed. In others, the belief is wholly unjustifiable, almost to the point of being fanciful.[6]
[5](2012) 221 A Crim R 284.
[6]Ibid 293 [49]–[50]; see also McEwan v The Queen [2013] VSCA 329 [114]–[115].
The belief in question is the belief that it was necessary to kill the victim, or cause the victim really serious injury, for the purposes of self-defence or defending another. Clearly, the absence of reasonable grounds for that belief will encompass a wide range of circumstances, from those in which there was little or no threat of violence to those in which there was either a real threat or actual violence (even though there was no reasonable basis for believing that that threat, or that violence, could only be defended against by killing the person in question).
An analysis of the sentencing decisions provided reveals[7] that this range of possibilities has been dealt with by use of the notion of proportionality between the (perceived) threat or violence and the offender's response to it. As Kaye J said in R v Baxter,[8] the degree of culpability of the offence there under consideration was
to be gauged by the disproportionate extent to which [the offender] overreacted to the danger, which [he] believed there was of [the victim] killing [him] or causing [him] really serious injury.
[7]See Appendix A to these reasons.
[8][2009] VSC 178, [10].
In a number of the first instance decisions which I have read, the sentencing court has viewed the offence as being more serious because the offender’s response was ‘grossly disproportionate’ to the actual or perceived threat.[9] Naturally, it is in this area of (dis)proportionality that the severity of the attack on the victim is relevant. In some of the cases which have attracted head sentences of 10 or 11 years (that being, as will appear, the range put forward by the Crown for the head sentence in this case), the striking feature is sustained brutality — repeated stabbing or bashing of the victim — when the circumstances objectively provided no justification for such a response.[10]
[9]See, eg, R v Svetina [2011] VSCA 392 [30]; R v Ghazlan [2011] VSC 178 [3]; R v Vazquez [2012] VSC 593 [12]; R v Baxter [2009] VSC 178 [10]; R v Talatonu [2012] VSC 270 [16]; Creamer v The Queen (2012) 221 A Crim R 284 [51].
[10]See, eg, McEwan v The Queen [2013] VSCA 329 [105]; R v Creamer [2011] VSC 196 [28]–[29]; R v Vazquez [2012] VSC 593 [12]; R v Ghazlan [2011] VSC 178 [3]; R v Edwards [2012] VSC 138 [49].
This brief analysis demonstrates that the Crown’s characterisation of the present offence as being in the high range of seriousness is wholly unsustainable. It was common ground on the plea that it was quite impossible for the Court to form any view about what actually happened between you and Mr Davey in the period immediately leading up to his death. As noted earlier, the prosecution would not accept your version of events alleging that Mr Davey came at you with the knife. Had that been the case, of course, you might well have had a complete defence on the basis of self-defence. Equally, however, the presence of the meat cleavers prevented the Crown from contending that you had not faced any threat at all. We simply do not know.
Although the death of Mr Davey is, from the outside, difficult to understand given the circumstances of your encounter with him, the fact that both the meat cleavers were by his side raises a whole range of possibilities about possible aggression or threats of violence on his part. I should make clear immediately, however, that I make no such finding and cast no aspersions of any kind upon Mr Davey. I am simply wishing to explain why I am unable to make the kind of judgment to which the cases refer — about whether your response was ‘grossly disproportionate’, or wholly devoid of any reasonable justification. In the absence of an adverse finding of that kind, your offence cannot be said to have been in the most serious category.
It follows, equally, however, that I am unable to find that your killing of Mr Davey, or the seriousness of it was in any way mitigated by the existence of some kind of threat to you. This case may be distinguished, moreover, from those in which an immediate threat is made more serious because of a preceding history of violence[11] or of domestic violence.[12]
[11]R v Monks [2011] VSC 626.
[12]See, eg, Black v The Queen [2012] VSCA 75; R v Edwards [2012] VSC 138.
This is, in my view, a serious example of defensive homicide. It is an unexplained and inexplicable killing and you, of course, can offer no explanation for it. I accept what your counsel said on your behalf, that you simply have no recollection of the events. That speaks to your seriously drug-affected state at the time.
As the Court of Appeal said in Wilson v The Queen,[13] defensive homicide is a very serious offence, because it requires the formation of an intention to kill or to inflict really serious injury. But for the belief in the necessity to act in self-defence, the charge would be murder.[14]
[13][2011] VSCA 12 [50].
[14]Ibid [24].
Your counsel submitted that I should view your moral culpability as reduced on account of your having been drug-affected when you killed Mr Davey. According to that submission, what differentiated your case from others involving intoxication was that your drug addiction began at an early age and was a response to the mental health issues from which you were even then suffering. Your counsel accepted that you had had opportunities to choose to stay off drugs but contended that, against the background of the early onset of your mental illness and the consequent addiction, your choices were different than for someone who consciously decided later in life, to commence taking drugs.
The principles governing the relevance of self-induced intoxication (whether by alcohol or drugs) as a sentencing factor are well established. The general rule, as your counsel conceded, is that an offence will not be mitigated where behaviour is influenced by self-ingestion of drugs or alcohol.[15] In Redenbach,[16] the Court of Criminal Appeal said:
Nowadays it frequently occurs that those who attack and kill or seriously injure someone are affected to some extent by drink or drugs. Where this condition is self-induced, it is not generally to be regarded as mitigating the offence, for in most cases the offender may be regarded as morally responsible for his condition at the time of the offence.
[15]R v Redenbach (1991) 52 A Crim R 95, 99 (‘Redenbach’).
[16]Ibid.
There are two exceptions to this general rule. The first is where there is some external factor which the court views as excusing (rather than merely explaining) the consumption of alcohol or drugs. In Redenbach, the Court gave the example of:
a drunken man who had committed an armed robbery [who] showed that his alcoholism was the result of the painful disease from which he suffered.[17]
The other example given in that case was of drug addiction resulting from the medicinal use of prescription drugs.
[17]Ibid, citing Kevich (Unreported, Court of Criminal Appeal, 25 November 1977).
The second exception is where it can be said that, as a result of intoxication, the offender acted out of character. As discussed by the Court of Appeal in Hasan v The Queen,[18] the ‘out of character’ exception has been consistently recognised but rarely applied. The Court there said that, on ordinary principles, the offender would bear the onus of showing that she did not know what effect alcohol (or drugs) would have on her.[19]
[18](2010) 31 VR 28 [21]–[34].
[19]Ibid [34], citing DPP v Arvanitidis (2008) 202 A Crim R 300, 311 [34].
In my opinion, the first exception does not apply in your case. I accept that your drug addiction began while you were a schoolgirl and was reflective of, and responsive to, your mental distress. The evidence is equally clear, however, that you have had — through the unstinting support of your parents, and through your own efforts — many opportunities to wean yourself off this devastating addiction. It also shows that, for varying periods of time and to varying degrees, you have succeeded in reducing your dependence on drugs.
There is no evidence to suggest that there is any particular feature of your mental illness, or of your drug dependency, which makes it peculiarly or unusually intractable, such that you are unable to break free from the addiction. Indeed, the evidence demonstrates, as I have said, that for quite significant periods you have been able to function quite effectively, both in obtaining your nursing qualification and then in working as a nurse.
In many of the decisions I have read on defensive homicide, the offender was someone who, unlike you, came from a broken home and was subjected to a most violent and dysfunctional upbringing, as a result of which he/she began consuming alcohol at an early age and became dependent on it. It may be assumed that, like you, such an offender was self-medicating in order to deal with the mental distress of childhood experiences. Yet it is not suggested in any of those cases that, when that person subsequently offended while in an intoxicated state, their use of alcohol was to be excused by their difficult upbringing.
There is, however, some more force in the proposition that this offence was entirely out of character for you as a result of your intoxication. Although the submission was not put in these terms, Mr Cummins’s unchallenged evidence, set out earlier, was that you had never shown a disposition to violence and that this offence should be seen as ‘significantly out of character’. Your case is, of course, different from that of the first time user of alcohol who has a quite unanticipated reaction, but I attach some weight to the fact that you would not have had any appreciation that, by persisting in drug taking, you would be prompted to act violently.
Mitigating factors
There are a number of strong mitigating factors in your favour. First, you have no prior convictions. Secondly, you have expressed deep and genuine remorse for what you did. I accept that you first expressed remorse when you were interviewed by police and that, as Mr Cummins has recorded, you have been spontaneously, repeatedly and ’comprehensively‘ remorseful in your meetings with him. Mr Cummins confirmed in evidence that he has no doubt that your remorse is genuine. Nor do I. You are still relatively young, and this is a case where I consider it to be of particular importance to recognise your efforts at, and to promote the prospects of, your rehabilitation.
I am satisfied that your prospects of rehabilitation are very good. Entrenched drug addiction of the kind from which you have suffered means that there can be no guarantees about the future. Your experience to date demonstrates that very powerfully. But the evidence given by your mother and the expert opinion of Mr Cummins have enabled me to conclude that your commitment to living a drug-free life is as strong as it could reasonably be expected to be at this time.
I accept Mr Cummins’s opinion that the two incidents of drug-taking while in prison do not constitute relapses, but were responses to the pressures of the situation. Likewise, I accept his evidence that your intermittent reluctance to take prescription medication for your depression reflects your wish to take personal responsibility and develop other coping strategies. Self-evidently, however, you must continue to take the advice of expert practitioners as to the most effective form of treatment in aid of your recovery.
Fourthly, you have pleaded guilty. You originally offered to plead guilty to manslaughter but, I am informed, once the prosecution made clear that that plea would not be accepted, you offered to plead guilty to defensive homicide and that plea was accepted. I accept that your plea of guilty is consistent with your remorse. It also has a significant benefit in saving Mr Davey’s family the pain of a trial, and saving the community the cost and time of a trial hearing.
As mentioned earlier, the principal matter relied on by the prosecution as making your offence more serious was your conduct after you had killed Mr Davey. It was said that you had treated him callously and with a ‘contumelious disregard for his wellbeing’. With the possible exception of the hanging up the phone, I am not persuaded that your conduct should be so regarded.
Stealing money and drugs is a criminal offence, and to steal from a dead person is simply despicable. But it seems to me that this does not reflect any callousness of attitude towards your victim in the sense contended for by the prosecution. Rather, it reflects your intensely selfish state of mind when drug-affected. Such complete self-pre-occupation, and entire focus on your own interests, must be seen to be characteristic of your severely drug-affected state. As I suggested in argument, this circumstance seems to me to stand in contrast with those where there is actual mistreatment, or abuse, or destruction of a corpse by the person who has caused the death. That is, of course, a very serious aggravating factor.[20]
[20]See, eg, Hunter v The Queen [2013] VSCA 385 [127]; R v Spark [2009] VSC 374 [30].
If you had taken appropriate steps (as I have no doubt you would have done but for your drug-affected state) and telephoned an ambulance and waited until it arrived, that would have been a matter in mitigation. The fact that you did not take those steps does not, however, in these circumstances make the offence materially worse, in my view.
Sentencing range
The Crown’s submission was that the sentencing range for this case was as follows: a head sentence of between 10 and 11 years and a non-parole period of between eight and nine years. The defence submission was that this range was premised on a miscategorisation of the seriousness of the offence. For the reasons I have already given, I would uphold that submission. Moreover, a number of the cases where sentences of 10 and 11 years have been imposed were cases where, unlike the present case, the accused pleaded not guilty[21] and/or had relevant prior convictions.[22]
[21]DPP v McEwan, Robb and Dambitis [2012] VSC 417; R v Svetina [2011] VSC 392; R vParr [2009] VSC 468.
[22]Wilson v The Queen [2009] VSC 431; R v Ghazlan [2011] VSC 178; R v Evans [2009] VSC 593; R v Edwards [2008] VSC 297.
It was submitted on your behalf that, once the degree of seriousness of the offence had been properly assessed, consistency with current sentencing practices — as applicable to the relevant category of seriousness — required a sentence below the bottom end of the Crown range, both as to head sentence and as to non-parole period. Having ascertained current sentencing practice through my analysis of the decisions provided, I agree with that submission. You pleaded guilty on the reasonable assumption that you would be sentenced in accordance with current sentencing practices, and that is, of course, what must occur.[23]
[23]DPP v CPD (2009) 22 VR 533 [69].
Having regard to the absence of any prior convictions and the absence of any history of violence, and your commitment to your own rehabilitation, I do not regard specific deterrence as a matter of any significance. Nor, for the same reasons, is protection of the community. I have taken into account the need for general deterrence, but only to a limited degree. Having regard to your condition at the time of the offending, it can properly be said that you are not a suitable vehicle for that purpose.[24] This sentence cannot, of course, address the much more fundamental problems of the availability of drugs and of young people developing destructive conditions of drug addiction.
[24]Cf Khoja v The Queen [2014] VSCA 9.
On the charge of defensive homicide, I sentence you to eight years’ imprisonment and I direct that you serve a period of five years before being eligible for parole. I declare that, if it had not been for your plea of guilty, I would have sentenced you to nine-and-a-half years’ imprisonment and would have imposed a non-parole period of six years.
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ANNEXURE ‘A’
Defensive homicide: analysis of sentencing decisions
| Case | Plea | Relevant Priors | Sentence | Commentary on belief in necessity of killing victim | |
| Head | NPP | ||||
| R v Middendorp [2010] VSC 202 (appeal dismissed: Middendorp v The Queen (2012) 35 VR 193) | NG | 12y | 8y | ||
| R v Creamer [2011] VSC 196 (appeal dismissed: Creamer v The Queen (2012) 221 A Crim R 284) | NG | 11y | 7y | Court of Appeal: objective evidence belied account of accused: [22], [48]; ‘no basis whatever’ for belief of accused: [50]; ‘grossly disproportionate, as well as being objectively unnecessary to defend herself’: [51]. | |
| DPP v McEwan [2012] VSC 417 (appeal dismissed: McEwan v The Queen [2013] VSCA 329) | NG | ✓ | 11y | 8y | Belief of accused ‘wholly unreasonable’: [98]. |
| R v Svetina [2011] VSC 392 | NG | 11y | 7y | Reaction of accused ‘grossly disproportionate’ to threat faced: [30]. | |
| R v Ghazlan [2011] VSC 178 | G | ✓ | 10y | 7y6m | ‘Brutal and grossly disproportionate’: [3], [17]. |
| R v Edwards [2008] VSC 297 (on appeal, sentence held manifestly inadequate but appeal dismissed: DPP v Edwards [2009] VSCA 232) | G | ✓ | 10y | 8y | Actions of accused ‘especially violent and especially disproportionate’: [32]. |
| R v Parr [2009] VSC 468 | NG | ✓ | 10y | 8y | 17 stab wounds: [12]. |
| R v Evans [2009] VSC 593 | G | ✓ | 10y | 7y | One stab wound, in response to punch; mid-range level: [44]; but for subjective (mistaken) belief in necessity, would have been murder: [45]. |
| R v Vazquez [2012] VSC 593 | G | 10y | 7y | Accused’s belief was ‘by any measure…entirely unreasonable’ and ‘grossly disproportionate to any threat’: [12]; ‘grossly unreasonable’: [24]. | |
| R v Wilson [2009] VSC 431 (appeal dismissed: Wilson v The Queen [2011] VSCA 12) | G | ✓ | 10y | 7y | Accused ‘created the circumstances’ that resulted in need to defend himself: [19]; Court of Appeal: accused ‘plainly intent on some form of confrontation’ with victim: [49]. |
| R v Taiba [2008] VSC 589 | G | ✓ | 9y | 7y | ‘[S]erious example’ of offence: [30]. |
| R v Black [2011] VSC 152 (appeal dismissed: Black v The Queen [2012] VSCA 75) | G | ✓ | 9y | 6y | ‘Disproportionate’ to threat posed: [22]; actions ‘spontaneous, unplanned and momentary’, and informed by family violence: [22], [23]. |
| R v Croxford [2009] VSC 516 | NG | ✓ | 9y | 6y | Response ‘fuelled by anger’: [28]; ‘reasonably serious example’, though ‘spontaneous’ and resulting from circumstances outside offender’s control: [29]. |
| R v Baxter [2009] VSC 178 | G | ✓ | 8y6m | 5y6m | ‘Grossly disproportionate’: [10]. |
| R v Kassab [2013] VSC 379 | NG | ✓ | 8y6m | 5y6m | ‘Serious example’: [35]. |
| R v Giammona [2008] VSC 376 | G | ✓ | 8y | 6y | ‘Sheer number and seriousness of [knife] wounds indicated that by then any perceived threat had subsided’: [31]. |
| R v Talatonu [2012] VSC 270 | G | 8y | 5y3m | ‘Grossly disproportionate to the threat’: [16]; could have walked away: [17]. | |
| R v Monks [2011] VSC 626 | G | 8y | 5y | Actions ‘clearly’ disproportionate: [32], [38]; belief influenced by family violence: [33]. | |
| R v Jewell [2011] VSC 483 | G | 8y | 5y | ‘Degree of culpability demonstrated by extent to which [accused] overreacted to the danger’: [20]. | |
| R v Martin [2011] VSC 217 | G | ✓ | 8y | 5y | |
| DPP v Chen [2013] VSC 296 | NG | 8y | 5y | Accused ‘killed an unarmed man with a weapon’ without reasonable grounds; relevant cognitive deficits [30]. | |
| R v Trezise [2009] VSC 520 | G | 8y | 4y | Reaction ‘totally disproportionate’: [47]; ‘frenzied attack’ which cannot be explained: [23]; underlying intellectual disability. | |
| R v Smith [2008] VSC 87 | G | ✓ | 7y | 5y6m | |
| R v Spark [2009] VSC 374 | G | ✓ | 7y | 4y9m | |
| R v Edwards [2012] VSC 138 | G | ✓ | 7y | 4y9m | ‘Disproportionate response’: [49]; history of domestic violence. |
| R v Smith [2008] VSC 617 | G | 7y | 4y6m | ||
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