R v Edwards
[2019] VSC 234
•12 April 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MILDURA
CRIMINAL DIVISIONSCR 2017 0289
| THE QUEEN |
| v |
| STACEY EDWARDS |
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| JUDGE: | EMERTON J |
| WHERE HELD: | Mildura |
| DATE OF HEARING: | 12 April 2019 |
| DATE OF SENTENCE: | 12 April 2019 |
| CASE MAY BE CITED AS: | R v Edwards |
| MEDIUM NEUTRAL CITATION: | [2019] VSC 234 |
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CRIMINAL LAW – Sentence – Manslaughter by unlawful and dangerous act – Stabbing of domestic partner – Single stab wound to neck – Context of family violence – Drug dependency – Early offer to plead guilty – Guilty plea – Genuine remorse – Childhood disadvantage reducing moral culpability – No prior criminal record – Good prospects of rehabilitation – Delay – Sentenced to 9 years’ imprisonment with a non-parole period of 6 years and 9 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms D Piekusis SC with Ms R Harper | Office of Public Prosecutions |
| For the Accused | Mr L Barker with Ms N Sheridan-Smith | Law and Advocacy Centre for Women |
HER HONOUR:
Stacey Edwards, you have pleaded guilty to killing Michael Power on 22 November 2016 at Swan Hill in Victoria. Mr Power died as a result of a stab wound to the neck, inflicted by you.
You were initially charged with the murder of Mr Power, to which you pleaded not guilty. You indicated a preparedness to plead guilty to manslaughter in July 2017, well before the committal hearing. The Crown withdrew the charge of murder just before the start of the trial three weeks ago. You were arraigned on a charge of manslaughter, to which you pleaded guilty. By your plea of guilty, you accept that you intentionally stabbed Mr Power and that you had no lawful excuse for doing so.
You and Mr Power had been in a relationship for just over twelve months at the time of his death. You met Mr Power in Swan Hill through your step-father in September or October 2015. At the time, you were living in Swan Hill with Auntie Gwen Taylor and the youngest of your three children, a daughter who was approximately a year old. You were not in contact with your daughter’s father. You had two older children who did not live with you.
In February 2016, shortly after you took up with Mr Power, you were provided with your own unit, through the Department of Health and Human Services at 5/13 Makepeace Street, Swan Hill. The lease to Makepeace Street was in your name, but Mr Power immediately moved in with you and your daughter.
In the days before his death, Mr Power’s continuing presence at Makepeace Street became a source of frustration for you. It is clear from the material in the depositions that you wanted him out.
You and Mr Power were heavy drug users. In some ways, this may have drawn you together, but in other ways, it tore you apart. Among other things, it caused repeated heated arguments about money.
Your relationship with Mr Power was sometimes, if not frequently, fraught. Family and friends observed the relationship between you and Mr Power to be marred by illicit drug use and sometimes violent confrontation. An issue at trial was likely to be which of you or Mr Power engaged in violent behaviour towards the other. The issue also arises to some extent on sentencing, as your barrister has submitted that your moral culpability for the offending is lessened by the violence inflicted on you by Mr Power. For reasons I will outline presently, I do not accept this submission.
However, the state of your relationship with Mr Power is relevant as background to your offending, as is your traumatic childhood and the series of dysfunctional and destructive relationships you had before meeting Mr Power.
Turning to your relationship with Mr Power. In the approximately ten months that you lived at Makepeace Street together, police were called to intervene in disputes between you and Mr Power on two occasions. You took out an intervention order against him in April 2016 and you each took out orders against the other in August of that year, some three months before you killed Mr Power.
On 3 April 2016 in the early afternoon, you phoned triple zero and requested police attendance at Makepeace Street. During that call, you could be heard telling Mr Power to ‘get out’. Mr Power in the background was heard to say that he was packing his ‘stuff’ and he asked you to stop assaulting him.
During this incident, you apparently punched Mr Power and he put his arms around you from behind and threw you on the couch. You continued to punch him. When the police arrived, Mr Power was observed to have a small injury to his lip and a ripped shirt. However, both you and Mr Power told the officers that you had had a verbal dispute.
The officers observed you to be aggressive and agitated, particularly towards Mr Power. They remained with you until Mr Power took his belongings and left with a friend. While you were waiting for Mr Power to leave, you yelled abuse and made derogatory comments to him. After he left, you refused to tell the police what had happened and you were, according to the police, uncooperative and rude.
The following day, you applied for an intervention order against Mr Power at the Swan Hill Magistrates’ Court. You were referred to counselling, but did not maintain contact with the counsellors.
The court made the intervention order you were seeking some days later, on
13 April 2016. The order did not prevent Mr Power from living with you and you continued to live as a couple at Makepeace Street.
Approximately five months later, at around 9 pm on 25 August 2016, the police were again called to Makepeace Street. Mr Power had left the premises. The officers reported that you spoke erratically, were aggressive and appeared to be drug effected. You told the officers that you had thrown a ceramic pot at Mr Power in self-defence.
Mr Power was located by the police nearby. He confirmed that you had thrown a pot at him, which had grazed his shoulder. He said that you had argued about money. He provided a statement about the incident at the Swan Hill Police Station that evening.
The police were again called to Makepeace Street at approximately 11.41 pm that night. Again, Mr Power was not present. You told the officers that Mr Power had returned to the unit and had entered using his key. He then approached you in the kitchen, grabbed you by the throat, threw you to the ground and kneed you in the head. You also said that prior to leaving, Mr Power had thrown a chair which broke the dining room window.
Your account of this incident is confirmed by a friend who was present at the time, Jessica Wilson. Ms Wilson stated that you came to her house in a real panic and said that Mr Power had punched you in the face and on the back and had ‘done a runner.’ The police had come but you were concerned that Mr Power would come back and hurt you. Ms Wilson accompanied you back to Makepeace Street. Ms Wilson stated that Mr Power returned unexpectedly about 15 minutes later, you asked him for his key, he refused to give it and you argued. All of a sudden Mr Power ‘lost it’ and went at you. He pushed you and, as you slouched over, he punched you in the head a couple of times. He swept some scales off the kitchen bench and then picked up a kitchen chair and threw it through the dining room window. Ms Wilson pleaded with him to leave. He left and Ms Wilson called the police.
According to Ms Wilson, Mr Power did not look himself. He looked ‘ice’ affected. She said you were in a similar state. You both looked to Ms Wilson to be coming down from the drug.
The police officers who attended following this incident offered to find you alternative accommodation but you wanted to remain at Makepeace Street. The police arranged for a support person to come to stay with you. They returned to Makepeace Street at approximately 1.42 am while you were still with the support person. You declined to make a statement but you said you would go to the Swan Hill Hospital for assessment. Although the police suggested that you might make a statement in the presence of a person you were comfortable with and give it to the police at a later date, you did not take up that suggestion.
Later on the night of the incident, in fact at 5.29 am in the morning, Mr Power was arrested at the Swan Hill Hospital where he was found asleep in the waiting room. He was taken to Swan Hill Police Station and interviewed about breaching an intervention order and assault-related offences against you. He denied those allegations and apparently complained about you, because a few days later, on 20 August 2016, Mr Power spoke to police and told them he did not want to proceed with any complaint he might have made against you.
On 31 August 2016, the intervention order against Mr Power was varied to, among other things, exclude Mr Power from being within 200 metres of where you lived, worked or attended school or childcare. You were not present when the variation was made. At the hearing, Mr Power made an application for an intervention order against you. That order was made, preventing you from being within 200 metres of your home in Makepeace Street. In other words, the orders prevented both of you from living at Makepeace Street. Both orders had an expiry date of 30 August 2017.
On 8 November 2016, Mr Power went to the Swan Hill Police Station and asked to withdraw his complaint against you relating to the incident on 25 August.
However, things came to a head in late November 2016. Mr Power was still living at Makepeace Street. In the days before Mr Power’s death, you were agitated and restless, coming and going from Makepeace Street, and sleeping elsewhere overnight on one occasion. You told friends and family that you wanted Mr Power out of your unit and, among other things, that you planned to go Deniliquin to stay with Auntie Gwen Taylor’s relatives in order to have a break from Mr Power.
At various times from and including 20 November through to 22 November 2016, people with whom you came into contact observed you to be highly agitated and under the influence of drugs.
On Sunday 20 November, Aunty Gwen Taylor observed you to be behaving ‘differently’. You were moving around continually and, particularly, moving your hands. You told her that you wanted Mr Power to leave Makepeace Street and that he had been hitting you. It was Aunty Gwen who suggested that you go to stay with relatives in Deniliquin.
The following day, Monday 21 November, you were at home with your daughter and Mr Power when you spoke to building contractors who were there to carry out refurbishment works on your unit. You told them you did not want them working inside your unit without you, that it was not safe for you there and that you wanted a male removed from the property. You went in and out of the unit a number of times after this. Each time you went inside, they could hear you yelling at someone, ‘Get out of here. I don’t want you in my house’ and, ‘it’s not your house.’ The male who was there reportedly did not yell back but mumbled quietly.
On the evening of Monday 21 November, you visited your cousin, Shiralee Atkinson, who thought you were ‘off your head.’ You told her that you had not slept in five days, that you had been on ‘ice’ and that you had taken too much Serepax. You asked Ms Atkinson to look after your daughter the following day but she could not help you. You also visited a friend, Elton Bettinelli, several times during the afternoon and evening of 21 November. He told you that you could stay the night. At some point, you went back to Makepeace Street and argued with Mr Power before returning to Mr Bettinelli’s house. You told him that Mr Power had grabbed you and thrown you away from a cupboard when you tried to get some food.
When another friend, Paul Sweeney, arrived the three of you had a discussion about Mr Power. You expressed concern that Mr Power had threatened to stab you. Mr Sweeney offered to help remove Mr Power from the unit. You and your daughter remained overnight at Mr Bettinelli’s house.
During that overnight stay, at approximately 12.19 am, you telephoned the Swan Hill Police Station and spoke to Constable Caleb Thompson. You told him that you had argued with Mr Power and that he had breached an intervention order. You said you were not at home but at a safe address with Elton and another person. According to Constable Thompson, you did not want the police to attend. You said you would come to the police station the next morning to make a statement. Constable Thompson thought you sounded highly intoxicated.
Mr Bettinelli has also given an account of this telephone conversation. At your end it was conducted on a speaker phone and he heard parts of it. Mr Bettinelli said you told the police officer that Mr Power was back in the unit and that he had been threatening you and that you felt very unsafe to go back. Mr Bettinelli said he heard the police officer say he was not going to bother the sergeant, that enough was enough, that you needed to get over yourself and that there was no way they were going to come and remove Mr Power that night. You got upset and said that if Mr Power did something to you, the police would be to blame.
According to Mr Bettinelli, he told you that you needed to do everything in your power to look after yourself and he and Mr Sweeney told you that if you could not get help from the police, they would speak to Mr Power and get him to leave.
At some point during that night, you went to Jessica Wilson’s house with Mr Sweeney where you were joined by Kintae Salter. Mr Salter described you as ‘pretty frazzled’ and said you looked like someone who had been up for a couple of days taking ‘ice’.
The following morning, Tuesday 22 November, you left Mr Bettinelli’s with your daughter and another friend. Mr Bettinelli assured you that you could stay a further night if necessary.
During that morning you telephoned the Swan Hill courthouse and spoke to the Koori coordinator, Maydena Calvino. You were required to attend court that day but sought to be excused for family reasons. You were told that you had to attend.
That day the contractors returned to Makepeace Street. You were again heard by them talking loudly to someone in the unit, telling that person to get out. Again, there was no clear or audible reply. You left with your daughter, handing over the key to the unit to one of them and saying, ‘He won’t leave so I’m leaving’. You were described as agitated.
You walked to your step-father’s house but he was not there so you returned to the unit. The contractors again heard you saying, ‘Get out, get out’. A short time later your step-father’s partner, Raylene Reynolds, came to Makepeace Street. You put your daughter in her car. Your daughter was screaming and you were barefoot and agitated. You told your daughter it was all right and to go with aunty.
In the early afternoon two men pulled up at Makepeace Street in a ute and asked what was happening. One of the contractors heard you say to them, ‘By tonight I’ll either be in gaol or dead’.
It appears that on that day, the day that you killed Mr Power, you were trying to make arrangements for the care of your daughter. That afternoon you went to Swan Hill Magistrates’ Court where you spoke with the Registrar in Charge, Lisa Bannam, and Ms Calvino. You asked Ms Bannam to witness a statutory declaration to sign over the care of your daughter to your sister. Ms Bannam noted your agitation and signed the statutory declaration, in order to placate you, believing it would have no legal affect.
You told Ms Calvino that Mr Power would get a look in his eye like he wanted to kill you, and that he would just go at you when you were least expecting it. Ms Calvino observed you to be agitated and behaving erratically. You told her that you had not slept in days and had been on a ‘massive bender on drugs’.
At approximately 2.30 pm, you went to the Swan Hill Office of Community Corrections, apparently in search of Mr Sweeney, where you spoke to Vaughan Stockwell. You were visibly upset. You said that Mr Power had threatened to kill you and that you wanted Mr Sweeney to stay with you. Mr Stockwell provided you with another contact for support but you rejected that assistance and left.
Outside the Office of Community Corrections you spoke briefly with Alan Thorpe. He described you as chaotic and angry during your conversation with him. He said you were difficult to understand.
At approximately 4.40 pm on 22 November 2016, you went to Coles in Swan Hill, where you purchased a Wiltshire brand paring knife.
It appears that you then returned to Makepeace Street. At approximately 7.44 pm you phoned the Swan Hill Police Station. You told Constable Alexander, who answered the phone, ‘You better hurry up and get around here as I’m about to stab Michael in the neck’, and ‘I hope he doesn’t bleed out before you get here’. Attempts were made to contact Mr Power on his mobile phone but he did not answer.
Constables Cartwright and Taverna arrived at Makepeace Street at 8 pm. They saw you standing in the doorway to the unit. You went back inside and seconds later came back outside, running towards them with a knife in your hand. When challenged by Constable Taverna you dropped the knife but continued towards the officers who subdued you with capsicum spray. At this point Mr Power ran out of the unit. He was holding the right side of his neck and yelling, ‘She stabbed me’. When he reached the end of the driveway he collapsed. Constable Cartwright went to his assistance and tried to stop the blood flow from his neck. Mr Power was distressed saying, ‘I’m going to die, I’m going to die’.
Before the police could stop you, while Mr Power was lying on the couch in the lounge room, you had stabbed him once to the right side of the neck, using a Wiltshire brand paring knife.
Mr Power was immediately taken to the Swan Hill Hospital. He had no palpable pulse, recordable blood pressure or oxygen saturation and attempts to resuscitate him were unsuccessful. He was pronounced dead at 8.29 pm.
You were arrested at the scene and later charged with the murder of Michael Power. You did not give an interview. Attempts were made to speak with you, but you were agitated and assessed as not fit to be interviewed. The medical officer who saw you said you were displaying paranoid and aggressive behaviours.
A post mortem examination established the cause of Mr Power’s death to be a stab wound to the neck. The wound was 3 centimetres long and 9 centimetres deep. It incised the right internal jugular vein, the right common carotid artery and penetrated the bone of the fourth cervical vertebra. The forensic pathologist found that the amount of force required to inflict the wound was appropriately considered as ‘at least moderate’, on a scale of ‘mild, moderate and severe’. The pathologist did not find any evidence of sharp force injury to Mr Power’s upper limbs that could be considered an injury from defending himself.
Michael Power was 31 years of age at the time of his death, having been born in Swan Hill on 24 June 1985. He was the youngest of Adrian and Bernadette Power’s two sons. He grew up in a loving family, first on the family farm nearby and then in Swan Hill. Following completion of his VCE studies at Swan Hill College in 2003, Mr Power undertook an apprenticeship as a builder and went to trade school at Sunraysia TAFE. He retained close friends from high school and was described as a kind and caring friend.
In 2008, Mr Power was involved in a serious car accident. He suffered a number of injuries including a broken femur, which required the insertion of a metal rod. He spent time in Melbourne, first in hospital and then in rehabilitation. Due to his injuries, he was unable to work for a number of years and suffered chronic pain. He was in debt and a longstanding relationship came to an end. He developed an addiction to the prescription painkiller OxyContin. He later also used opiates, including heroin, and started injecting other drugs. During the course of his relationship with you, he used ‘ice’, including intravenously.
The prosecution filed victim impact statements from Mr Power’s father, Adrian Power, and his mother, Bernadette Power. Mrs Power read her statement in court. It is clear that despite the travails in the last years of his life, Mr Power was a much loved son, brother and uncle. His parents speak of the shock of his unexpected death. Despite the strain of the car accident, his drug use and the more limited contact that they had with him over the course of his relationship with you, his parents very much miss him. His mother emphasised the impact his death has had on their wider family, including his young nephews who miss their uncle deeply. Mr Power’s parents also speak of the distress of being unable to say goodbye to their youngest son before his death. The traumatic manner of his death causes them continuing anguish and sadness.
The prosecution also filed a victim impact statement from Mr Power’s friend, Jeremy Hansen. Mr Hansen describes Mr Power as his best mate. He regrets that he was unable to help Mr Power and says he has recurring thoughts about the distressing way that Mr Power died. He speaks of the sadness and anger that he feels following Mr Power’s death and the impact that this has had on his wife and friends.
Mr Power died in terrible and terrifying circumstances, through a deliberate violent act on your part. You told the police what you were going to do and then proceeded to do it, before there was any chance of stopping you. Mr Power was lying on the couch at the time and apparently had no idea what was coming. He did not defend himself. In my view, this is a particularly serious case of manslaughter.
Your moral culpability for this offending must be assessed in the context of your personal circumstances, which I now turn to consider. Your barrister took time and care in setting out the details of your difficult life. His account is largely consistent with the histories that you gave Dr Helen Driscoll and Dr Danny Sullivan, two psychiatrists who assessed you. Dr Sullivan’s report was tendered on the plea by the Crown.
Your personal circumstances are relevant not only to your moral culpability generally, but to the sentencing considerations that arise when sentencing persons from particularly disadvantaged backgrounds. They are also relevant to considerations of general and specific deterrence and to your prospects of rehabilitation.
You were 35 years old at the time of the offending, having been born on
26 November 1980 in Swan Hill. Your father was of Maltese/Welsh background and your mother was a Taungurong woman. You were the only child of your parents relationship, conceived when they were only 16. The relationship did not last much beyond your conception. Your father was almost totally absent from your life.
You mother had a subsequent relationship that produced two children. This relationship was characterised by violence. As a young child, you lived with constant yelling and screaming. You witnessed physical assaults on your mother. Your mother struggled with addiction to alcohol and amphetamines and, from an early age, you were required to look after your siblings. Your mother was distant and physically abusive.
Your maternal grandfather was the strongest father figure in your life and he was of the Stolen Generation. He was a respected member of the Melbourne Aboriginal community but was also a dealer in amphetamines. He had been removed from his family at the age of ten and placed in a Ballarat orphanage with his four siblings. Your barrister told the Court that the removal of Aboriginal children from their families resonates strongly with you.
You grew up in Swan Hill, attending local schools, with a brief interlude living with your grandfather and attending school in Melbourne. By the time you reached high school, the increasing friction that you were experiencing at home led to behavioural problems. You tried to commit suicide in Year 7 by slashing your wrist, which you attribute to the pressure of your home life. You moved to Melbourne to escape it but in Melbourne, you were exposed to your grandfather’s drug dealing. You returned to Swan Hill where you were suspended and eventually expelled from high school, finishing your secondary education halfway through Year 9.
Your first relationship began at the age of 14 with a man called Bob who was then aged 21. You had your first child when you were just 17 years old. You reported that Bob was psychologically and emotionally abusive to you. He would abuse you verbally although not physically. He was extremely possessive and controlling and you became very isolated from your friends and family. Bob was also sexually abusive in that he had a significant interest in pornography and would force you to act out what was on screen. You were young and naïve so you complied even though you disliked it. Bob introduced you to drugs in the form of cannabis. You left that relationship when you were 20 and escaped to a hostel for backpackers in Northcote with your child.
I accept that the relationship with Bob was exploitative and harmful to you in the longer term. You were a child when it began and you were exposed to abusive and controlling behaviour that must have been difficult to bear and impossible to comprehend. You were denied the protection of family and community that a young person needs and is entitled to expect. Like your difficult childhood, the relationship with Bob has marred your adult life.
After Bob, there followed a series of dysfunctional relationships, all of which involved drug use, most of it serious drug use, and at least one of which involved systematic physical violence directed at you. Two of these relationships produced children.
Because of your circumstances, you were and currently are unable to care for your children. Your two older children have been raised in the custody and care of their respective fathers.
I will not recite the detail of all of your relationships. Seven highly dysfunctional relationships are described in your submissions on the plea based on the account that you have given to your barrister. This account is largely consistent with the accounts given to Dr Driscoll and Dr Sullivan and I consider it, in general, to be reliable.
There was some dispute as to whether your relationships before Mr Power involved actual physical violence. The Crown submitted that although you have a history of taking out intervention orders, there was little, if any, evidence of physical violence in those relationships other than as reported by you. However, it was not disputed that those relationships were dysfunctional and destructive. They invariably involved drug use and often controlling, sexually exploitative behaviour by your partner. One of these relationships was very violent and kept you in constant fear for your life. Your relationships with men were of a kind often associated with women who are vulnerable and sad. It is no surprise that by the time you embarked on the fourth of these relationships, you described yourself as ‘damaged goods’, ‘anxious’ and ‘scarred’.
Your relationship with Mr Power did not repeat this pattern, at least not at the outset. Mr Power had no history of violent relationships and was reportedly patient and caring towards you and your daughter. However, the two of you embarked on a lifestyle involving the heavy use of drugs, notably ‘ice’, and this inevitably created destructive tensions in your relationship.
The account that you gave to your barrister and that he presented to the Court about Mr Power’s violent acts towards you was strongly challenged by the Crown. The Prosecutor referred the Court to materials in the depositions indicating that you were most often the aggressor. Your conduct towards Mr Power was observed to involve frequent verbal abuse and, at times, physical violence. It was described as controlling and overbearing , as well as financially exploitative. In contrast, Mr Power was described by a number of witnesses as gentle, placid and forgiving and protective of you.
Nevertheless, there is evidence of Mr Power behaving violently towards you. I have already referred to the incident in August 2016 described by Jessica Wilson. There is also evidence that Mr Power boasted to Mr Bettinelli that he had given you ‘a hiding’ because you were a ‘slut’.
The question of who was violent towards whom arises as a result of the submission made on your behalf that your moral culpability for killing Mr Power is reduced by reason of it being a response, properly understood in the context of what is known about responses to family violence, to violence inflicted on you by Mr Power. I do not accept that submission. I find that the killing of Mr Power occurred in the context of a dysfunctional relationship characterised by heavy drug use and the disorder and conflict generated by drug use of that kind. In this context, there were instances of violence perpetrated by each of you against the other, but more especially by you against Mr Power. I do not consider that Mr Power’s violence towards you provides an explanation for your actions.
Dr Driscoll opined that fear of losing your third child to welfare fuelled your distress at not being able to have Mr Power leave your house so that you could return with your child, and the escalation of your distress and helplessness culminated in the act that resulted in the death of Mr Power. While not discounting this thesis, it must also be viewed in the context of your drug use at the relevant time.
You have a long history of substance abuse. You used cannabis from the ages of 13 to 21, when you briefly stopped, but you recommenced using it during your relationship with Liam Malone in your early 20s. You first used speed at the age of 21 and started using ‘ice’ when you were 23 or 24. You also first used heroin at the age of 21 and developed a habit which lasted six months. For a period of time you were maintained on Buprenorphine, an opiate substitute. After that you only used heroin intermittently. However, you reported to Dr Sullivan a pattern of using ‘ice’ for periods of time before trying to cease injecting then abusing prescription drugs and alcohol before relapsing into substance abuse with injecting. You also reported the use of prescription pills, predominantly benzodiazepines but also opiates, including Oxycodine, fentanyl and morphine in various formulations.
Dr Sullivan reported that you had a longstanding diagnosis of polysubstance abuse or dependence, involving variously alcohol, cannabis, opiates, benzodiazepines and stimulants.
According to Dr Sullivan the descriptions of your behaviour in the period leading up to the stabbing of Mr Power suggest intoxication with methamphetamine and possibly benzodiazepines. These substances are associated with disordered behaviour including aggression, impaired judgement and poor recall of events occurring while intoxicated. On the basis of the information provided, Dr Sullivan considered it likely that substance use influenced your behaviour at the time of the offending. I accept this evidence.
I am satisfied to the requisite standard that when you killed Mr Power you were in a drug affected state. You were either high on drugs, most likely ‘ice’, or coming down off drugs. You reported that you had not slept for a number of nights. You were highly agitated and your thinking was chaotic.
Your barrister explained your offending, as I have said, as a response to violence at the hands of Mr Power against a backdrop of other relationships involving family violence and in circumstances where you felt unable to rely on help from the police.
I accept that you carry trauma as a result of your terrible childhood and the controlling and abusive relationships that you have had with a number of men. I also accept that your relationship with Mr Power had become dysfunctional and that it was volatile and sometimes violent. However, I consider that your offending should be characterised as taking place principally in the context of heavy methamphetamine use, rather than principally in the context of family violence. You were strung out on drugs, you had not slept for days and your thinking was utterly disordered. Mr Power was the victim of this disordered thinking and the hyper-aroused state you were in as a result of drug use.
No doubt your traumatic childhood and dysfunctional relationships have had a profound impact on you, and the severe disadvantage that you have experienced diminishes your moral culpability for your offending to some extent. However, based on the opinion expressed by Dr Sullivan, I find that your drug use heavily influenced your behaviour at the time of the offending.
Overall, despite the effects of the disadvantage that has been identified, I consider your moral culpability for killing Mr Power to be high.
I turn to your criminal history. You have had two prior appearances in court, neither of which resulted in entry of a conviction. You have no criminal record. Neither of these appearances in court was related to violent offending. Both involved relatively minor property offences.
On the plea your barrister acknowledged that your offending is of a type that the law views dimly, and that it merits a period of imprisonment. Your barrister acknowledged that general deterrence, denunciation of your conduct and just punishment will be central to the sentence that I impose. However, he submitted that your plea of guilty, your contrition and your life of hardship or disadvantage are counterbalancing considerations. I turn to consider each of these factors and how they should affect the exercise of my sentencing discretion.
First your plea of guilty. You offered to plead guilty to manslaughter at a very early stage, prior even to the committal mention. Your plea involves an acceptance by you of your responsibility for Mr Power’s death and a willingness to facilitate the course of justice. I give your plea full weight for its utilitarian value, as well as for the expression of remorse that it represents. Your plea has saved the community the time and expense of trial. It has spared Mr Power’s friends and family, as well as those who would have been witnesses, the ordeal of reliving the events surrounding Mr Power’s death.
Remorse. Your counsel submitted that your early plea is an indication of your remorse and I accept that submission. Your counsellor in prison, Ms Mae Vincent, also attests to your remorse. She reports that you have spoken of and presented with sadness and grief in relation to Mr Power’s death. I accept that you are remorseful for your actions. You have done a terrible thing and you must live with that knowledge for the rest of your life.
Your life of hardship. The High Court of Australia[1] and the Victorian Court of Appeal[2] have recognised that the experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark throughout a person’s life. It becomes a feature of the person’s make-up that remains relevant to the determination of an appropriate sentence.
[1]Bugmy v The Queen [2013] 249 CLR 571, 594–595 [43]–[44].
[2]Marrah v The Queen [2014] VSCA 119, [16].
Your upbringing was marked by an absent father and a substance abusing mother who used amphetamines and alcohol and was physically abusive to you and neglectful. You were engaged in relationships with adult men from the age of 14 that were emotionally, physically and financially abusive and often marked by substance abuse and volatility. You have reported being subjected to physical violence and fearing being assaulted or killed, as well as fearing losing custody of your children. This last fear is particularly acute for you as an Aboriginal person and a descendent of a member of the stolen generations.
I have already indicated that I consider your disadvantaged background reduces your moral culpability for your offending to some extent and this will be reflected in the sentence that I impose.
I turn to your prospects of rehabilitation. You carry the scars of a broken childhood and a dysfunctional adolescence and young adult life. You have sought to address these in the past, unsuccessfully. Prior to being held on remand, you did not fully engage with the drug and alcohol services and the other counselling services that were made available to you. Your attempts to deal with drug issues and relationship difficulties were fragmented and piecemeal. Your traumatic past and your long history of polysubstance abuse makes your rehabilitation challenging. However, there is evidence that you have made real and significant efforts while in custody to address your problems. You have engaged with specialist trauma counselling provided by West CASA since September 2017. A report by your counsellor, Ms Vincent, was tendered on the plea by your barrister. Ms Vincent reports that you have attended fortnightly or monthly counselling sessions, that you have shown a strong dedication to attending and that you have demonstrated a commitment to improving your past coping strategies.
During your time in custody, you have also taken advantage of educational opportunities. You have completed units in a variety of Certificate I and Certificate II courses, including Aboriginal and Torres Strait Islander Cultural Arts. Since 2017, you have been a participant in the Indigenous Art in Prisons and Community Program run by The Torch. You have voluntarily attended weekly art classes and you submitted two works for The Torch’s annual exhibition this year. Your artworks are beautiful, reflecting real talent and an awakening understanding and appreciation of your Aboriginal heritage.
It is encouraging that you have used your time on remand to engage in counselling to address longstanding issues stemming from your childhood and dysfunctional relationships, and that you have engaged with available courses and work opportunities. You have also remained drug free.
You have shown in the course of your life, despite its difficulties, a capacity to hold down employment and to seek to improve your circumstances through employment. From the age of 20, you have worked at various times as an Aboriginal health worker, a cultural heritage awareness officer and a cultural educator in schools. Following the completion of a vocational certificate, you worked as a cultural heritage officer, assisting with archaeological searches. You hope to continue that work when you are released from prison. This is important and demanding work.
Based on your work history, the remorse that you exhibit, the absence of any previous offending and the efforts you have made while on remand to turn your life around, I consider your prospects of rehabilitation to be good.
However, much will depend on your continuing to abstain from drug use upon release from prison. If you fall back into a pattern of drug use, your prospects of leading a purposeful, law abiding life in the community will fall dramatically. For this reason, it is prudent to provide for you to spend a significant part of your sentence on parole. Before being released into the community at the end of your sentence, you need a lengthy period of intensive supervision and support to ensure that you do not relapse into drug use. This is in the interests of the community as a whole, as well as in your interests.
The offence of manslaughter carries a maximum penalty of 20 years’ imprisonment. This recognises that killing a person strikes at the sanctity of life, which is a core value in our community. Manslaughter by unlawful and dangerous act encompasses a broad range of offending. I have found your offending to be a serious example of manslaughter. Your moral culpability is high, but is reduced somewhat by your sad personal history and circumstances.
Just punishment, denunciation of your conduct and general deterrence remain important sentencing considerations. The Court must pass a sentence that denounces your behaviour and deters others from resolving conflict in the way that you chose to do. The use of knives is especially dangerous in situations of conflict, particularly where intoxicants are involved, and others must be deterred from the type of conduct that you engaged in.
Despite the absence of a criminal record and despite your evident remorse for what you have done, I consider that specific deterrence remains an important sentencing consideration in this case. Your long history of drug use gives rise to a need for specific deterrence. Although you have never previously taken steps as drastic as to stab a person, you have a history of responding to things that upset you aggressively, doling out verbal abuse and becoming physically violent.
I have had regard to the matters your barrister has urged on your behalf, including your plea, your remorse, the absence of previous offending and your prospects of rehabilitation. I have had regard to the period of delay in the resolution of this matter and the time that you have spent in custody on remand with a charge of murder hanging over your head. In this context, I also take into account that you were mistakenly treated as a sentenced prisoner for approximately three months due to administrative error.
I have also had regard to your reduced moral culpability as a result of the severe disadvantage that you suffered as a child and young person. The Crown submitted that the recognition of this disadvantage as something that you carry for life gives rise to concern about community safety, making community safety an important sentencing consideration. In your case, I do not accept that to necessarily be so. Whether you present as a danger to the community in the future will largely depend, as I said, on your ability to remain abstinent from drugs. In order to support your abstinence, I propose to structure your sentence to give you the opportunity of a decent period of supervision on parole.
Mr Power’s parents, his brother and his nephews and his friend, Mr Hanson, have struggled to come to grips with what you have done and I must take their suffering — as expressed in the moving victim impact statements — into account, and I do. There is nothing this Court can say or do that will bring back Mr Power or heal his family’s grief or pain. The sentence I am going to impose is not a reflection of the worth or value of Mr Power’s life. Rather, it is a reflection of the large number of factors which I am required by law to take into account in sentencing you.
Stacey Edwards, please stand.
100You have pleaded guilty to killing Michael Power and you stand convicted on that charge. Balancing the relevant factors as best I can, and having regard to current sentencing practices, I sentence you to a term of imprisonment of nine years for the manslaughter of Michael Power. I fix a non-parole period of six years and nine months.
101But for your plea of guilty, I would have sentenced you to a term of imprisonment of 11 years with a non-parole period of eight years and nine months.
102I declare that you have served 871 days by way of pre-sentence detention up to but not including today.