R v Sawyer-Thompson

IN THE SUPREME COURT OF VICTORIA

Not restricted

AT MORWELL

CRIMINAL DIVISION

S CR 2015 00070

Between:

THE QUEEN
-and-
BONNIE KATE SAWYER-THOMPSON	Accused

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JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATES OF HEARING:	10 November 2016 (re-arraignment); 17, 21 & 22 November 2016 (plea); 9 February & 10 March 2017 (mentions); 16 March 2017 (further plea)
DATE OF SENTENCE:	20 April 2017
CASE MAY BE CITED AS:	R v Sawyer-Thompson
MEDIUM NEUTRAL CITATION:	[2016] VSC 767

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CRIMINAL LAW – Sentence – Defensive homicide – Accused, aged 19, killed deceased, aged 23, by striking numerous blows to head, face and neck with mattock and knife – Accused believed, but without reasonable grounds, that, if she did not kill deceased, her boyfriend would kill her family – Accused originally charged with murder and proposing to rely on (complete) defence of duress – Offer to plead guilty to defensive homicide accepted by DPP on second day of trial and on unique basis – Objectively grave example of offence – Accused previously subjected to violence and humiliation by boyfriend – Low intelligence, PTSD, depression, anxiety and dependent personality – Judgment impaired – Admissions – Plea of guilty – Accused provided statement to police implicating boyfriend and undertook to assist in his prosecution but DPP declined to prosecute – Whether such assistance/offer is a mitigating factor – Remorse – Limited criminal history – Youth – Delay – Reasonable/good prospects of rehabilitation – Sentence of ten years’ imprisonment with non-parole period of seven years – But for plea of guilty, provision of statement and offer and undertaking to assist authorities, sentence of fifteen years’ imprisonment with non-parole period of eleven years – Crimes Act 1958 (Vic), ss 9AC-9AH; Parker (a pseudonym) v The Queen [2016] VSCA 101; Sentencing Act 1991 (Vic), ss 5, 6AAA, 11, & 18.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C. Thomson with Ms A. Cannon	John Cain, Solicitor for Public Prosecutions
For the Accused	Ms R. Sleeth	Victoria Legal Aid

HIS HONOUR:

Overview

On the afternoon of Friday 20 June 2014, while with his girlfriend Bonnie Kate Sawyer-Thompson at her flat in Morwell, Phillip Mifsud tried to kill Jack Brian Nankervis. It is not clear why Mr Mifsud wanted Mr Nankervis dead. Indeed, it seems odd, given that Mr Mifsud had provided his girlfriend’s flat as a hideout for Mr Nankervis after he (Mr Nankervis) had committed an aggravated burglary earlier the same day. Nevertheless, whatever his motive, Mr Mifsud first tried to force Mr Nankervis’s hand into an electric toaster. At this time, Mr Nankervis was in a stupor effected in part by Mr Mifsud’s slipping him the drug “GHB” against his will and in part as a result of his own voluntary drinking and drug-taking. When that failed, Mr Mifsud, who was also drug-affected, tried to shove a coin down Mr Nankervis’s throat. That too was useless.

Once these desultory attempts failed, Mr Mifsud turned sinisterly to his girlfriend and ordered her to kill Mr Nankervis. He had tried to involve her in his earlier behaviour. But, now, he threatened Ms Sawyer-Thompson that, if she did not kill Mr Nankervis, he (Mr Mifsud) would kill her family. He retrieved a mattock from his car and told her to hit him with it. He also told her to claim later that Mr Nankervis had tried to rape her. He then left the flat, leaving her to carry out this monstrous task.

During their relationship, Mr Mifsud had subjected Ms Sawyer-Thompson to serious violence and humiliation. She had witnessed his violence to others. She believed him to be dangerous, and took his threat seriously. It was against this background that, despite the fact that Mr Mifsud’s absence from the flat presented an opportunity to do something else (such as go to the police, who were just down the street, or simply run away), Ms Sawyer-Thompson, in a drug-addled state of terror and submission, resolved instead to do as she was told.

And so it was that she took to Mr Nankervis with the mattock, and then a knife, while he laid on her bed, completely defenceless. She struck and stabbed him repeatedly to the head, face and neck. He suffered about 70 separate injuries, including seventeen knife wounds. Plainly, she meant to kill him, and she did. But the attack went much further than that: it was merciless, grisly and disturbing. Mr Nankervis’s face was caved in to the point that he was unrecognizable.

Later that night, after returning to the flat and finding Mr Nankervis’s body, Mr Mifsud vomited in the gutter. Then, after driving Ms Sawyer-Thompson to two separate places, Mr Mifsud reported his discovery to police. He did not, however, admit to any involvement in the death of Mr Nankervis. He had created an alibi of sorts.

Ultimately, Ms Sawyer-Thompson was arrested while walking towards her sister’s home. Consistently with Mr Mifsud’s instructions, she had told others, and repeated to police, that Mr Nankervis had tried to rape her (which she later admitted to be a lie). She also told police variously that men called “Bobby” and “Adam” told her to do it and that they threatened that her family would be killed unless she did so. Loyal to a fault, she was adamant that Mr Mifsud was not there at the time of the killing and had nothing to do with it. Unsurprisingly, police then charged her with murder.

When the matter reached this Court, Ms Sawyer-Thompson, through her counsel, foreshadowed that, at trial, she would rely on the statutory defence of duress.[1] Earlier, she had told a psychologist of Mr Mifsud’s abusive behaviour and of his threat to kill her family unless she killed Mr Nankervis. Prior to trial, the matter even went to the Court of Appeal on a case stated to determine the finer points of the elements of duress.[2] Further, at a pre-trial hearing, in order to narrow the issues in dispute between the parties before a jury, the Court heard evidence from psychologists potentially relevant to the issue of duress. Had the defence of duress succeeded, Ms Sawyer-Thompson could not have been found guilty of any crime, whether murder, defensive homicide or manslaughter.
[1]See s 9AG of the Crimes Act 1958 (Vic) (as in force between 23 November 2005 and 31 October 2014), now replaced by s 322O of the same Act (which provision is in similar but not identical terms).
[2]See Parker (a pseudonym) v The Queen [2016] VSCA 101.

After a jury was empanelled, however, on the second morning of the trial, Ms Sawyer-Thompson abandoned her defence of duress. Counsel indicated that both parties now accepted that Ms Sawyer-Thompson intentionally killed Mr Nankervis in the belief that it was necessary to do so to defend her immediate family from being killed, albeit that she had no reasonable grounds for that belief. This state of affairs explained the Director’s decision to accept Ms Sawyer-Thompson’s plea of not guilty to murder and her plea of guilty to defensive homicide[3] instead. Upon re-arraignment, those pleas were entered.[4]
[3]Contrary to s 9AD of the Crimes Act 1958 (Vic) (as in force between 23 November 2005 and 31 October 2014).
[4]The jury were advised of the decision of the parties to settle the matter and then discharged without verdict. Ms Sawyer-Thompson was then re-arraigned. See further below.

While the statutory crime of defensive homicide was abrogated from 1 November 2014, it still existed at the time of Mr Nankervis’s killing and therefore was capable of application in this case. Putting aside unsolved homicides during the nine-year period the offence existed,[5] this is likely to be the last time a person will be prosecuted for defensive homicide.
[5]The relevant period was from 23 November 2005 to 31 October 2014.

It now falls to this Court to sentence Ms Sawyer-Thompson for that crime.

This particular instance of defensive homicide is both unique and very grave. It is unique because the threat did not emanate from the person killed but from another who, ultimately, was absent at the time of the killing. As I have said, Ms Sawyer-Thompson could have gone to the police – they were just down the street. Those facts also contribute to the gravity of the offence. That the attack was ghastly in its execution and that Mr Nankervis was utterly defenceless make it all the worse. At only 23, Mr Nankervis has lost his life in horrible circumstances, and, inevitably, his family and friends are devastated.

On the other hand, Ms Sawyer-Thompson was only 19 at the time, had suffered serious violence and psychological abuse at the hands of Mr Mifsud, was easily led or pressured by him, is of low intelligence, suffers from post-traumatic stress disorder (“PTSD”), depression and anxiety, has pleaded guilty, has sought to assist the authorities in the investigation and potential prosecution of Mr Mifsud, is sorry for what she has done and has reasonable to good prospects of rehabilitation.

These and other competing considerations make this a particularly difficult sentencing task.

Procedural history

Introduction

Before turning to a more detailed summary of the surrounding circumstances, the various sentencing considerations and the imposition of sentence, I shall explain the procedural history of this matter, as well as some aspects of the crime of defensive homicide and its relationship to duress. I shall also explain in more detail the circumstances in which the plea of guilty to defensive homicide came to be offered and accepted.

Duress

As I have indicated, initially, Ms Sawyer-Thompson’s principal defence to the charge of murder was going to be duress, based on the threat made to her by Mr Mifsud. Ms Sleeth, who appeared for Ms Sawyer-Thompson, had made it clear that, at trial, she would call her client and forensic psychologist Jeffrey Cummins to give evidence in support of that defence. In particular, it was going to be argued that Ms Sawyer-Thompson carried out the killing under duress because, in the circumstances that faced her, she reasonably believed: (a) that Mr Mifsud’s threat to kill her family would be carried out unless she killed Mr Nankervis; (b) that that was the only reasonable way that the threatened harm could be avoided; and (c) that killing was a reasonable response to the threat.

Reliance was also going to be placed on the family violence provisions that govern the admissibility of evidence and the directions that must be given to a jury where family violence is alleged, as here.[6]

Self-defence and defensive homicide

[6]See s 9AH of the Crimes Act 1958 (Vic) (as in force between 23 November 2005 and 31 October 2014) and Part 6 of the Jury Directions Act 2015 (Vic). See also Parker (a pseudonym) v The Queen [2016] VSCA 101.

While it had also been made clear that Ms Sawyer-Thompson disavowed her complaint to police and others that Mr Nankervis had tried to rape her, both Ms Sleeth and Mr Thomson, who appeared with Ms Cannon for the Director, agreed that it would be necessary to leave, for the jury’s consideration, the defence of self-defence, and therefore also the alternative verdict of defensive homicide.[7] This was necessary because of the possibility that the jury might reject Ms Sawyer-Thompson’s account of Mr Mifsud’s threat but accept or fail to reject the truth of her original and repeated assertions that she was defending herself from an attempted rape by Mr Nankervis.

Another basis for defensive homicide

[7]Also, the jury would have to consider whether the accused was to be acquitted outright, which verdict would have to be returned if the jury accepted, or could not exclude the reasonable possibility, that the belief in the need for self-defence was based on reasonable grounds.

Just prior to empanelment of the jury, it became apparent to the parties that what was thought to be the foundation for the proposed defence of duress – namely, the threat[8] to kill Ms Sawyer-Thompson’s family – also raised the defence of defence of another which, in turn, raised another basis for leaving defensive homicide.[9]
[8]At that point in the discussion, it was thought that Mr Mifsud’s threat included a threat against Ms Sawyer-Thompson (as well as against her family), which in turn raised the question of self-defence and defensive homicide on that additional basis as well. Since that allegation did not feature in the ultimate settlement of the matter, I shall confine myself hereafter to discussion of defence of another.
[9]Again, this also raised the possibility of an outright acquittal, if the jury could not exclude the reasonable possibility that the relevant belief was based on reasonable grounds.

During the relevant period, ss 9AC and 9AD of the Crimes Act 1958 (Vic) provided as follows:

Section 9AC – Murder – “self-defence”

A person is not guilty of murder if he or she carries out the conduct that would otherwise constitute murder while believing the conduct to be necessary to defend himself or herself or another person from the infliction of death or really serious injury.

Section 9AD – Defensive homicide

A person who, by his or her conduct, kills another person in circumstances that, but for section 9AC, would constitute murder, is guilty of an indictable offence (defensive homicide) and liable to level 3 imprisonment (20 years maximum) if he or she did not have reasonable grounds for the belief referred to in that section.

While defence of another is usually raised in a situation where the accused kills the person who utters the threat, the foregoing statutory versions of the defence do not appear to have been so limited. Instead, they appear to be capable of extending to the killing of someone other than the person who uttered the threat.

Counsel agreed with this construction of ss 9AC and 9AD and with the view that defence of another and defensive homicide would have to be left to the jury on this additional basis in Ms Sawyer-Thompson’s trial.

Potential importance of alternative basis for defensive homicide

In the course of discussion, it became apparent that the availability of this aspect of the defence could be important to the outcome of the trial, for at least the following reasons.

At one end of the spectrum of possibilities, while the jury may well accept that Ms Sawyer-Thompson was or might have been threatened, by Mr Mifsud, that, if she did not kill Mr Nankervis, her family would be killed, and that she did believe or might have believed this to be true, they might not accept or be prepared to entertain the reasonable possibility that killing him was reasonably believed by her to be either the only reasonable way that the threatened harm could be avoided or a reasonable response to the threat. Put simply, a jury may baulk at the idea of acquitting Ms Sawyer-Thompson outright on a claim of duress and may well be likely to decline to do so on the basis of the absence of a reasonable belief, as opposed to a mere belief, in that which is necessary to enliven the defence.

On the other hand, an acquittal on murder and a conviction on defensive homicide do not require any reasonable grounds for an accused’s belief that her family would be killed or really seriously injured. Rather, ignoring the burden and standard of proof for the moment, all that s 9AC requires is that there be a belief by the accused that “the conduct [was] necessary to defend … another person from the infliction of death or really serious injury”. Thus, another possible outcome at trial was that, if Ms Sawyer-Thompson had such a belief, but had no reasonable grounds for it, and the other elements of murder were otherwise established, she would be not guilty of murder but guilty of defensive homicide.

At the other end of the spectrum of possibilities was this. If Ms Sawyer-Thompson did have reasonable grounds for that belief, or such a view could not be excluded as a reasonable possibility, she would be not guilty of both murder and defensive homicide (and, for that matter, manslaughter as well[10]). In other words, she would be found guilty of no crime at all.
[10]See s 9AE of the Crimes Act 1958 (Vic) (as in force between 23 November 2005 and 31 October 2014), which provided: “A person is not guilty of manslaughter if he or she carries out the conduct that would otherwise constitute manslaughter while believing the conduct to be necessary – (a) to defend himself or herself or another person; or (b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person – and he or she had reasonable grounds for that belief”.

There was, of course, the forensic hurdle that Mr Mifsud was not present at the time of the killing and that Ms Sawyer-Thompson’s family were elsewhere in Morwell. But the same – or a similar – forensic hurdle must be cleared in the case of duress. On the other hand, the very same provisions on family violence that apply to duress apply to defence of another and defensive homicide.[11]
[11]Again, see s 9AH of the Crimes Act 1958 (Vic) (as in force between 23 November 2005 and 31 October 2014) and Part 6 of the Jury Directions Act 2015 (Vic). See also DPP v Parker [2016] VSCA 101.

Thus, for the parties, there were factual, evidentiary, legal and forensic considerations pulling in all directions.

Plea of guilty to defensive homicide

Following these discussions, on the first day of the jury trial, Ms Sawyer-Thompson offered to plead guilty to defensive homicide on the basis of a belief that her family would be killed unless she killed Mr Nankervis. The next morning, Mr Thomson advised the Court that the Director accepted that offer. The jury were advised of this development and discharged without verdict. Ms Sawyer-Thompson was re-arraigned on the indictment charging murder. She pleaded not guilty to murder but guilty to defensive homicide. Mr Thomson indicated that the Director accepted those pleas.

On a subsequent occasion, Mr Thomson filed over an indictment charging defensive homicide. The charge reads as follows:

The Director of Public Prosecutions charges that Bonnie Kate Sawyer-Thompson at Morwell in Victoria on the 20^th day of June 2014 carried out conduct which killed Jack Brian Nankervis in the belief that it was necessary to carry out the conduct which killed [him] in order to defend her immediate family from the infliction of death or really serious injury in circumstances where she … did not have reasonable grounds for that belief.

Again, Ms Sawyer-Thompson pleaded guilty to that charge.

Sentencing facts

I turn now to a more detailed summary of the background to and circumstances of the offence. Since there is a dispute about some facts, I shall set out summaries of the following:

a) first, the prosecution opening;

b) second, some aspects of Ms Sawyer-Thompson’s sworn viva voce evidence on the plea;

c) third, some aspects of Ms Sawyer-Thompson’s recent written statement to police;

d) fourth, some aspects of the evidence given by Mr Mifsud at the committal and in a subsequent statement; and

e) finally, my findings on the disputed facts.

Some of my findings will be apparent already from the overview I gave at the commencement of these reasons.

Prosecution opening

So, now, first, to a summary of the prosecution opening. This summary (in substance) was read to the Court by Mr Thomson.[12]

Overview

[12]The summary became Exhibit 1 on the plea in mitigation.

Just after 10:00 p.m. on Friday 20 June 2014, police went to Ms Sawyer-Thompson’s residence at Unit 4, 47 Tarwin Street, Morwell. They discovered the body of Mr Nankervis. Ms Sawyer-Thompson had killed him when they were alone in the unit between about 4:50 p.m. and 5:40 p.m. that day. She had struck him about 70 times to his head, neck and chest with a mattock and a knife.

Ms Sawyer-Thompson was 19 at the time. She suffered from PTSD, depression and anxiety, and had a dependent personality and an IQ of about 70.

The Director accepted that Ms Sawyer-Thompson believed that someone threatened her that, if she did not kill Mr Nankervis, her immediate family would be killed, but that there were no reasonable grounds for this belief.

Mr Nankervis was 23 at the time of his death. He grew up in the Morwell area. He had been living with his mother in recent times. About two years earlier, Mr Nankervis and Stacey Patton had a son called Lleyton. Mr Nankervis and Ms Patton were living separately at the time of the killing.

An aggravated burglary

At about 3:30 a.m. on Friday 20 June 2014, Mr Nankervis went to the home of Noel Patton, Stacey’s father. Mr Patton was in bed when Mr Nankervis forced open the back door. He woke up and saw Mr Nankervis enter his bedroom. He got up and asked Mr Nankervis what he was doing. Mr Nankervis pushed him back on the bed and told him to get Lleyton back there by morning. Mr Patton calmed Mr Nankervis down. Mr Nankervis then apologized and left.

Mr Patton did not call the police. Instead, he called his ex-wife, who called Stacey Patton, who in turn called police. The police attended at Mr Patton’s house shortly after Mr Nankervis left.

A place to lie low

Mr Mifsud had known Mr Nankervis for about seven years. He had driven him to Mr Patton’s house that morning. Mr Nankervis needed a place to lie low for a while after the break-in. So Mr Mifsud drove him to Ms Sawyer-Thompson’s unit.

Mr Mifsud and Mr Nankervis arrived at the unit early in the morning. Ms Sawyer-Thompson had not previously met Mr Nankervis.

Mr Nankervis tried to burn the clothes he had worn to Mr Patton’s house so that they could not be used to incriminate him in an aggravated burglary. He put them in the kitchen sink in Ms Sawyer-Thompson’s unit and set them alight. Ms Sawyer-Thompson put out the fire as it threatened to burn down the kitchen. Mr Mifsud lent Mr Nankervis some of his clothes to wear.

Drugs consumed and sold

Mr Mifsud, Mr Nankervis and Ms Sawyer-Thompson all consumed drugs together that day at the unit. The drugs included alcohol, methylamphetamine (“ice”), cannabis, gamma-hydroxy-butyrate (known as “GHB”) and Valium.

Mr Mifsud went to and from the unit several times to sell drugs.

Earlier observations at the unit

Around 9:00 a.m. that morning, Luke Bayer visited the unit. Ms Sawyer-Thompson met him at the door. Mr Bayer walked in and saw Mr Mifsud on the bed in the front room and another male sitting in a chair drinking a beer. Mr Mifsud introduced the male to him as “Tom”. Mr Bayer later identified the male in the chair as Mr Nankervis from a photograph.

According to Mr Bayer, Ms Sawyer-Thompson’s pupils were huge and she appeared to be drug-affected. He saw a homemade .22 firearm in the room and asked what it was. Ms Sawyer-Thompson told him it was a two-piece .22 and that she had tried to fire it but that it did not work. Mr Bayer stayed at the unit for about half an hour.

At about 9:30 a.m., CCTV footage at the nearby liquor store records Mr Mifsud buying a dozen stubbies of beer and four cans of whisky and cola. The clothing Mr Mifsud wears in the footage is the same clothing he is wearing when he attends at Morwell Police Station later that evening to report that the body of Mr Nankervis was on the bed in Ms Sawyer-Thompson’s unit.

Ms Sawyer-Thompson’s mother, Kym Sawyer, visited the unit at about 1:00 p.m. on her way to Melbourne. She saw her daughter, Mr Mifsud and a male who was introduced to her as “Ben”. Ms Sawyer later identified “Ben” as Mr Nankervis from a photograph. Ms Sawyer was at the unit for only a short time.

Movements of Mr Mifsud and Ms Sawyer-Thompson from 2:01 p.m.

At 2:01 p.m., the CCTV camera at the Morwell RSL recorded Mr Mifsud being dropped off in Elgin Street by an unknown person in a blue Hyundai Excel after a drug transaction. The RSL is on the corner of Tarwin Street and Elgin Street and is just over a block away from Ms Sawyer-Thompson’s unit. The footage shows Mr Mifsud walking around the corner into Tarwin Street and heading in the direction of Ms Sawyer-Thompson’s unit.

Shortly afterwards, Riccardo Richard, who lived in a neighbouring unit, saw Mr Mifsud and Ms Sawyer-Thompson standing outside the unit and then go inside.

Text messages and telephone calls

Throughout the day, Mr Mifsud and Mr Nankervis sent text messages to Adrian Turra about a debt Mr Mifsud believed Mr Turra owed him. These messages were sent from Mr Mifsud’s Optus mobile phone and saved in Mr Turra’s phone. Mr Mifsud also had a Telstra mobile phone that he used for drug dealing. In some of the messages, Mr Nankervis says he is using “Cutty’s” phone. (“Cutty” is Mr Mifsud’s nickname.) The text messages demanded that Mr Turra ring them, but he ignored most of the messages.

Mr Nankervis also sent many text messages on his mobile phone to Stacey Patton about their relationship and their son Lleyton.

At 2:22 p.m., Mr Turra received a message from Mr Mifsud’s telephone saying, “Please call me ASAP bro whats his name just got killed fucken call.” It is unclear what this meant. (I break from the prosecution summary to observe that, in light of subsequent events, this message obviously gives rise to a reasonable suspicion that Mr Nankervis may have been killed by this stage.)

At 2:30 p.m., Mr Turra had a long telephone conversation with Mr Mifsud that was recorded in part on Mr Nankervis’s phone. They did not discuss the content or meaning of the text message at 2:22 p.m. They discussed the rumour that Mr Turra was a police informer, which he denied. The conversation ended amicably. Ms Sawyer-Thompson is heard briefly speaking during the call.

Movements of Mr Mifsud and Ms Sawyer-Thompson from 3:01 p.m.

At 3:01 p.m., the CCTV camera at the Morwell RSL shows Ms Sawyer-Thompson smoking a cigarette on the corner of Elgin and Tarwin Streets. Mr Mifsud’s red Corolla approaches the corner, and Ms Sawyer-Thompson waves towards the car, directing it to turn into Tarwin Street and to head towards her unit. Mr Mifsud had been transacting another drug deal.

At 4:55 p.m., the RSL CCTV camera records Mr Mifsud’s car going north through the intersection of Tarwin and Elgin Streets, away from Ms Sawyer-Thompson’s unit. He was heading to an assignation at Crinigan Road Bush Reserve with another woman involving sex in return for drugs.

Time of killing

The prosecution position is that the killing occurred soon afterwards. (Ms Sleeth did not dispute that – although she maintains that Mr Mifsud deliberately created an alibi for himself so that he could not be accused of killing Mr Nankervis while Ms Sawyer-Thompson did what she was ordered to do.) Mr Thomson conceded, however, that the prosecution was not in a position to refute the possibility that Mr Nankervis was killed before Mr Mifsud’s text message at 2:22 p.m. I think it is unnecessary to decide the point, as Ms Sawyer-Thompson accepts that she killed Mr Nankervis while alone with him some time during that afternoon.

Mr Mifsud returns to the unit

At some time later that afternoon, Mr Mifsud returned to the unit with his cousin, Wayne Mifsud. Wayne did not go into the unit but he saw his cousin do so. Phillip Mifsud came out soon afterwards and vomited in the gutter. He then drove Ms Sawyer-Thompson and Wayne to the latter’s house, where he dropped them off. Mr Mifsud then drove to his ex-partner’s house before returning to Wayne’s house to pick up Ms Sawyer-Thompson.

Ms Sawyer-Thompson stayed at Wayne’s house for some time and spoke to his daughter, Lara Mifsud. They spoke about a falling out they had had recently, but Ms Sawyer-Thompson did not mention anything about Mr Nankervis.

After Mr Mifsud picked up Ms Sawyer-Thompson from Wayne’s house, he dropped her off near her mother’s house.

Mr Mifsud then went to report the death of Mr Nankervis at the Morwell Police Station at about 9:50 p.m.

Police find Mr Nankervis’s body

Immediately thereafter, police went to Ms Sawyer-Thompson’s unit and found Mr Nankervis’s body on the bed. There were multiple injuries to his head and upper body and a bloodied mattock and knife nearby. The police secured the flat as a crime scene and started to look for their suspect.

Ms Sawyer-Thompson’s utterances to others before arrest

Ms Sawyer-Thompson spoke to several others after the killing and before her arrest.

She told her mother that she had killed someone and that the body was in her bed. She was hysterical. She put another layer of clothes over what she was wearing because her tights and singlet had blood on them. She had thrown her black Volley shoes over the fence of the house next to her mother’s place. After her daughter left, Ms Sawyer went to the unit and saw police everywhere.

Ms Sawyer-Thompson next went to the house of a friend, Courtney Reiss. Also at the house were Trent Moloney, Taylor Lawrence and, later, Drew Bunker. Ms Sawyer-Thompson told them that she had killed someone and that the body was in her unit. She pointed out blood on her clothing. She told them that she hit him with an axe to defend herself. She told Ms Reiss that he was holding her down on her bed by the wrists, so she grabbed an axe that was beside her bed and hit him with it, and that there was blood everywhere. She told Mr Moloney that he forced his body onto hers and she hit him with the wrong end of the axe. The axe went through his brains and blood splattered all over the walls. Mr Bunker remembers Ms Sawyer-Thompson telling him she thought that the person she killed had done something of a sexual nature to her before she hit him.

Ms Sawyer-Thompson then left Ms Reiss’s house and walked towards her sister’s house.

Arrest

At about 12:40 a.m. the next morning, Saturday 21 June 2014, local police arrested Ms Sawyer-Thompson as she was walking along Hourigan Road in Morwell towards her sister’s home. She had cannabis and ice in her possession at that time.

First formal interview

The police took Ms Sawyer-Thompson back to the Morwell Police Station, where she was interviewed first from 2:20 a.m.

Early in the interview, Ms Sawyer-Thompson told Detective Raymond Coles that she was coming off her anti-depressants. She said she only met Jack that day when he was dropped off at her unit. He “was pretty cool” and she “got to know him”. But he “kept pulling his penis out” and then he was “pushing [her] on top of him”. He was “getting smart in [her] own house” and “talking about drugs”. She said that “he was getting mouthy on the phone to this other chick” (who must have been Ms Patton). He was “trying to push [her, Ms Sawyer-Thompson,] on top of him and [she] got ‘aggro’ and hit him with the wrong end of the axe”. He got up and she was scared he was going to do it again. She “freaked out”. She said, “I thought he was gunna get up again and he hit me a few times because I got told that if I kept him like that he was gonna come after my family and – yeah.”

She covered him up, said sorry and kept apologizing to him. She said that she “couldn’t handle [her] anger and [she’d] gotten off [her] tablets, and right now [she was] not well … and the doctor knows that and [she] missed [her] appointment because [her] cat got hit”. She said that “he was being real smart to [her]” and she “can’t … stand high pain tolerance where he just walks in [her] house and starts pulling down his pants thinking he can rub his doodle on [her] vag[ina]”. She was “joking round with him for a bit”. Then she said, “chips are ready”; and he “started pushing [her] on top of him and [she] told him to stop it, and that’s when [she] did it”.

Ms Sawyer-Thompson now concedes this account – involving a response to an actual or attempted sexual assault – was a lie. To be sure, when police arrived, there was a pile of chips next to the bed, but Mr Nankervis had his pants on with the zip done up and his penis inside his pants.

Ms Sawyer-Thompson said to police that Mr Mifsud told her afterwards that she should go to the police station. She wanted to do this but she had to walk around a bit to calm down. She went to her mother and asked for a pair of shoes. She had put her shoes in a plastic bag next door. Then she walked down to her sister’s place.

Examination by forensic medical officer

Local police contacted the Homicide Squad, who arrived after the first interview and then took over the investigation.

Detective Jennifer Booth, who became the informant, asked forensic medical officer Dr Sanjeev Gaya to determine if Ms Sawyer-Thompson was fit for further interview. Dr Gaya examined Ms Sawyer-Thompson at Morwell Police Station at 7:35 a.m. He found that she was not fit for interrogation at that time because of the effects of fatigue, drug use and impaired cognitive abilities. He recommended she sleep for an indeterminate period and be assessed further before another interview. Ms Sawyer-Thompson was then left to sleep.

Later that afternoon, police transported her to the Melbourne Custody Centre.

Informal interview

At about 10:10 a.m. the next day, Sunday 22 June 2014, Detective Booth spoke to Ms Sawyer-Thompson during her transfer from the Melbourne Custody Centre to the St Kilda Road Police Complex. The conversation was recorded, but is audible only in part.

Ms Sawyer-Thompson said, “Someone told me to [do it] … and I did it. … I don’t even remember his name.” Later, she said there were “a lot of drugs in his system because he passed out on my bed … And then he got up and kept – ‘cause I – I - I was worried about him so I kept pulling him up … his pants were hanging down … I said, ‘Geez, do you want me to take off my knickers’…”. The detective asked, “Why were you two alone? Wasn’t Phil there?” Ms Sawyer-Thompson then said that “Phil wasn’t there”.

Later, she said she was still traumatized by the death of her cat. She said that her medication “makes me see things … bad, bad things and sometimes I do actually hear people … this is the first time that something … actually really bad has happened”.

Second formal interview

Detective Booth then tried to arrange for a forensic medical officer to examine Ms Sawyer-Thompson, but was told that a doctor was not available. As her superiors were concerned that the reasonable time for holding Ms Sawyer-Thompson was running out, Detective Booth arranged for an independent third person to attend at the St Kilda Road Police Complex to oversee an interview. The interview commenced at 3:32 p.m. on the Sunday afternoon.

In that interview, Ms Sawyer-Thompson at first said Mr Nankervis “was passed out on my bed … he kept going back down and pulling me on top of him. … I asked him … if he wanted me to take off my knickers or my pants and he smiled so he was still with it. And a few minutes after that, I walked in and hit him on the head”.

In the same answer, Ms Sawyer-Thompson then said, “I think I got more fear that I know that something could happen if I – if I say the wrong thing and if other people hear I’ve got … it’s just what’s going on in my head at the moment. I just got more stress of what I say, like, I don’t – I want to say what I want to say but I don’t want it coming back into someone’s ear and going out to the wrong mouth.”

Detective Booth then said, “[I]f your family or you are in danger, you’ve got to tell us so that we know – we can make an assessment.” Ms Sawyer-Thompson responded: “I got introduced to this guy as Bob, Bobby …”. Then she started talking about being off her depression tablets. She then explained that “Bobby” is “the guy that told me to hit him”. She then explained that her cat was attacked on Thursday and that she “met Bobby … that night”. She said, “He’s been to gaol before and he was gunna do it … kill him … Jack. … Bobby was gunna hit him and stuff at my house but then he’d gone and it was me and I was trying to help Jacko but I just done the wrong thing by hitting him first in the first place.” Later, she said, “[I]t just went really head fucked and that guy was meant to come back but he didn’t and all I know is that he didn’t like the guy and they had beefs together and stuff but I did try to help Jacko.” (I note that, at that point in the interview, it appeared to Detective Booth that Ms Sawyer-Thompson was going to vomit.) When asked, “[W]ho was Bobby with?” she said, “[T]he Adam guy.”

She was asked about what she had told the detective in the earlier informal interview in the car, and said, “That I’d get hurt if it got out, the wrong name, I mentioned names.” The detective asked, “So what you’re telling me is two people, complete strangers that you don’t know, have come to your house and asked you to kill a third person who you also don’t know who was [lying] on your bed?” Ms Sawyer-Thompson responded, “And they’ve threatened me saying that if I told anyone or if it got out to anyone, that my family, my two-year-old nephew ... .”

At that point, there was a break in the interview. When it recommenced, Ms Sawyer-Thompson was asked again what happened, and she responded in this way: “With the axe I hit him in the head and there’s blood and I covered him up and I told him how sorry I was and I went blank in the head. It was like doing something but it wasn’t me doing it”. When asked where they were when this happened, she said that, when she hit him, she was standing and he was sitting up and then he fell back. She said she hit him as soon as she walked out of the kitchen but could not remember how many times she hit him.

Later, she said, “[I]f I don’t take my right medication or something, I’ve been in fights before and I hit someone with an egg flip and I just kept going and going at ‘em and then I realized and everything just went back to normal.”

She was asked if anyone else was there and repeated, “No, that’s why I wish there was ‘cause then it probably wouldn’t have happened. … It would have been alright … I did walk out the house though ‘cause it was playing … in my head with what that guy told me to say and I was worried because they had left and he could have gone to my mum’s, they could have gone to my sister’s, so that’s when I done it and I was only meant to hit him once but I hit him more than once and just took over and I didn’t know what I was doing.”

When asked about Mr Mifsud, she said that she loves him, that he was not there when it happened and that he did not have anything to do with it.

When asked how Jack got to her house, she said, “I’m pretty sure Phil did drop him off though then he left but then Bobby and Adam had rocked up and – yeah, but Phil did nothing. He didn’t – normally, he took me out, like it’s a bit hard because he’s got a girlfriend but … I want to be with him but I can’t. Then I met this guy … Jacko even said that he’d hurt me and put gun to my head and stuff … He said that he would … he had way too many drugs in his system.”

She also said that “Phil and Wayne had dropped me off at Mum’s because they were gunna take me to the cop shop”.

Charge

At the end of the interview, police advised Ms Sawyer-Thompson that she would be charged with murder.

Crime scene examination

On 21 June 2014, crime scene examiner Mark Gellatly attended Ms Sawyer-Thompson’s unit. He observed Mr Nankervis’s body supine on a double-bed in the main room. There were numerous bleeding injuries to his head, neck and chest, and a towel and a pillow were covering his face. He also observed a mattock leaning against a bedpost and a knife on the floor. Both were bloodstained. There was blood on the southern and western walls in the main room, as well as on the pillow, the towel, the doona and the bed-sheet.

He formed the opinion that Mr Nankervis was struck at least once, and possibly on multiple occasions, while positioned close to or where he was positioned when found. Further, there was no bloodstaining that would suggest that Mr Nankervis received an injury which caused significant blood loss while located elsewhere in the flat, or that he was in a sitting or standing position while he was bleeding.

Mr Gellatly also examined the clothing the police seized from Ms Sawyer-Thompson at the time of her arrest. The clothing consisted of a singlet, a pair of leggings, a negligee and underpants. He examined each item for signs of recent damage but could not find any. He observed spattered blood staining on the singlet and the leggings.

Post-mortem

Dr Joanna Glengarry, a forensic pathologist, conducted a post-mortem examination on the body of Mr Nankervis on 21 June 2014. She observed at least 70 individual wounds. Those wounds were mainly to Mr Nankervis’s head, neck and chest. At least seventeen of those wounds were consistent with being stab wounds caused by a knife, such as the bloodstained knife the police seized from the unit. The remaining injuries were penetrating injuries that could have been caused by a heavier and less sharp weapon. Dr Glengarry’s opinion was that some of those injuries were consistent with being caused by a weapon such as the mattock. She concluded that death was caused by multiple injuries to his head, neck and chest.

Dr Glengarry also considered the degree of force that would be required to inflict the wounds observed. She considered that, on a three-point scale of severe, moderate and mild, severe force would have been required to inflict some of the injuries to Mr Nankervis’s head, while moderate force would have been required to inflict some of the injuries to his chest.

Dr Glengarry also observed injuries to Mr Nankervis’s left and right hands. In her opinion, they were consistent with being inflicted while he was alive and trying to defend himself against being struck with a weapon.

Mr Thomson pointed out that it is likely that Mr Nankervis died – or was at least unconscious – very soon after the first blow was struck.

Dr Glengarry took a sample of Mr Nankervis’s blood which was subsequently analyzed to determine the presence of drugs. The following drugs were detected:

· ethanol (alcohol) – 0.09 g/100mL;

· methylamphetamine (“ice”) – 0.2 mg/L;

· Diazepam – 0.2 mg/L; and

· Nordiazepam – 0.1mg/L.

No GHB was recorded in the body of Mr Nankervis.

Summary of the Director’s position

Mr Thomson explained that the Director’s position is that, while it was accepted that Ms Sawyer-Thompson believed, albeit not on reasonable grounds, that she had been threatened that, if she did not kill Mr Nankervis, her immediate family would be killed, it is not necessarily accepted that such a threat was made or that Mr Mifsud was the maker of such a threat. Instead, her belief may have resulted from something she misunderstood, in her drug-addled state, about Mr Mifsud’s words or behaviour.

No motive

Mr Thomson submitted that Mr Mifsud had no motive to kill Mr Nankervis. Mr Mifsud drove Mr Nankervis to and from Mr Patton’s house. He gave him clothes to wear. Mr Nankervis used Mr Mifsud’s phone to send text messages to Mr Turra. They were jointly trying to interrogate Mr Turra about being a police informer. Mr Thomson submitted that it makes no sense for Mr Mifsud to order Ms Sawyer-Thompson to kill Mr Nankervis in a unit with which he was closely associated and with a weapon that would leave such a mess.

Mr Thomson also pointed out that the police searched high and low to find “Bobby” and “Adam” but without success. He submitted that they do not exist.

He also submitted that the suggestion that Mr Nankervis owed money to bikies – to which I shall return later – is without substance.

Family Violence

Mr Thomson accepted that there is no doubt that Mr Mifsud and Ms Sawyer-Thompson were in a short-term abusive sexual relationship in which Mr Mifsud exploited her. For example, he cut her hair at a party. He put firecrackers down her top. He threw a can of pet food at her head. He ripped off her top at a party.

He submitted, however, that many of the other allegations raised by Ms Sawyer-Thompson’s mother were not true. For example, Ms Sawyer said her daughter told her that Mr Mifsud burnt her with cigarettes on the arms. But Dr Gaya found no such injuries. He did, however, find injuries consistent with self-mutilation with a sharp instrument.

Mr Thomson submitted that, while there is some substance to the allegations of family violence, this is not a case of “battered woman’s syndrome”. Rather, this was a short-term, off-and-on liaison accompanied by occasional violence. In his submission, this was not a case of a husband beating his wife and causing serious injuries over years.

Ms Sawyer-Thompson’s evidence on the plea

I turn now to a brief summary of Ms Sawyer-Thompson’s sworn viva voce evidence on the plea about her relationship with Mr Mifsud and the circumstances of the offence.

Relationship

Ms Sawyer-Thompson met Mr Mifsud about twelve months before the killing. They had a sexual relationship. They would take drugs together. He introduced her to the use of “ice”. He was involved in dealing drugs, and would have her assist him in that endeavour on occasions.

He was violent to and humiliating of her at times. He used a cigarette to burn her back and a lighter to burn her arm. While she used some drugs voluntarily, he also injected her with a syringe against her will. When they stayed together with Anthony Talerico, on occasions, Mr Mifsud would make her sleep outside. He forced her to watch “snuff” films. He punched and choked her. He forced her to swallow a drink containing nutmeg, which made her ill. He forced lit firecrackers down her top. He hit her across the head with a bottle, dragged her by the hair and then cut off her ponytail. He pushed her down some stairs. He made her sniff petrol and snort “dexies” with nail polish remover. Under threat of being hurt if she revealed the truth, he made her part of his drug deals when he sold “fake” drugs. She saw him assault another man and threaten him that, if he told police, he would come to his house. He ripped off her dress in front of others, exposing her bra and shorts underneath for all to see. He controlled what she was to say to others. He had put a gun to her head to make her break into a house. He forced her to swallow bullets. He threw a can of cat food at her head.

“Bobby” and “Adam”

While I found the next aspect of her evidence hard to follow, I understood Ms Sawyer-Thompson to say that, on a night or nights prior to the killing, Mr Mifsud had “Adam” and/or “Bobby” at her unit. On one occasion, she overheard Mr Mifsud offering “Bobby” money. They were in the lounge and she was in the kitchen. She was not allowed in the lounge. When she went to say Jack’s name, Mr Mifsud pulled her into the kitchen and told her she was not allowed to say that name.

The killing of Mr Nankervis

I turn to Ms Sawyer-Thompson’s account of the killing.

Mr Nankervis came to her unit the morning of the killing as he needed a safe house. He burned his clothes, which Ms Sawyer-Thompson put out. They drank alcohol and used ice, cannabis and GHB during the afternoon. They were all “pretty much out of it”. Mr Nankervis, who was lying on the bed and “out of it”, appeared suspicious that Mr Mifsud had put GHB in his drink.

At some point, Mr Mifsud went out to his car and returned with a toaster, in which he tried to put Mr Nankervis’s hand. He also told Ms Sawyer-Thompson to shove money down his throat. Mr Mifsud put a 50-cent piece in his mouth.

Subsequently, Mr Mifsud threatened Ms Sawyer-Thompson that, if she did not kill Mr Nankervis, he (Mr Mifsud) would kill her family and hurt her. She was to kill him by hitting him with the mattock he had retrieved from the car. (Later forensic testing revealed that the mattock contained Mr Mifsud’s DNA on it.) He also told her to tell the police that Mr Nankervis sexually assaulted her.

She was in fear of what Mr Mifsud would do to her family if she did not comply, so she hit Mr Nankervis with the mattock.

She did not think she hit him as many times as alleged. She thought it might have been five or so times.

Ms Sawyer-Thompson confirmed that her initial allegation – that Mr Nankervis had tried to rape her – was false and that she simply had told others what Mr Mifsud had told her to say.

Ms Sawyer-Thompson’s written statement to police

I turn now to Ms Sawyer-Thompson’s written statement made to police on 13 February 2017.[13]
[13]The statement became Exhibit 22.

While some of the detail differed from, and had not been raised in, her viva voce evidence, and while the narrative was rather rambling in nature, Ms Sawyer-Thompson’s account of the crucial events in her statement was substantially the same as she had given in evidence.

In particular, she repeated that Mr Mifsud threatened her that, if she did not kill Mr Nankervis, he (Mr Mifsud) would hurt or kill her family (and her). She also referred to the hand-in-the-toaster and the coin-in-the-mouth incidents, albeit the detail was a little different. Further, she repeated her recollection of hitting Mr Nankervis about five times with the mattock. She said that Mr Nankervis was unconscious and did not fight, move or struggle.

Other features of Ms Sawyer-Thompson’s statement include the following. First, she maintained the existence of “Bobby” and “Adam” but seemed to be just as vague on their role in this sordid affair.

Secondly, she said that she had an epileptic fit during the day before the killing and spoke of her interaction with a friend called Hope. Mr Thomson submitted that this was new information. However, as Ms Sleeth pointed out in a subsequent note, Ms Sawyer-Thompson had told her psychologist back in 2015 that she suffered some sort of fit after ingesting too much cannabis.

Thirdly, she said that, about a day or two before the killing, Mr Mifsud bought a gun from Mr Nankervis; that Mr Mifsud told her that Mr Nankervis held a gun to his head and that he needed to get him back; and that Mr Mifsud and his cousin spoke about dumping a body.

Finally, she said that, on the morning of the day of the killing, Mr Mifsud held a loaded gun to her head when they were in a car.

Mr Mifsud’s account

I turn now to Mr Mifsud’s account.

In his initial statement to police, on 26 June 2014, Mr Mifsud said that, on the day of his death, Mr Nankervis was “real horny and touching himself and saying that he would fuck anything at the moment”. He was saying dirty things to Ms Sawyer-Thompson and flirting but “never actually did anything”. Mr Mifsud said he left them together at the flat at about 4:30 p.m. Both were drug-affected. Upon his return at about 5:30 p.m., Ms Sawyer-Thompson was out the front of the flat with tears in her eyes. She said that Mr Nankervis had tried to rape her. He went inside and found him dead on the bed. Ms Sawyer-Thompson was saying, “He tried to rape me, I’ve killed him, I’m pretty sure he’s dead.” She said she hit him with the mattock and a knife.

At the committal hearing, on 13 May 2015, Mr Mifsud gave completely unsatisfactory evidence. He feigned lack of knowledge or memory of numerous matters and lied about several other things. He claimed to remember nothing at all of his past other than the last two months. When it was suggested to him that he told Ms Sawyer-Thompson that she had to murder Mr Nankervis, he said, “I didn’t say that at all. No. I can’t remember.” Later, when asked whether he remembered threatening that, unless she killed Mr Nankervis, she and her family would be killed, he said, “No, I do not.”

On 11 April 2016, Mr Mifsud made a further statement to police. As to his committal evidence, he said he should have told the court that the allegations being made to him were untrue. At that time, however, he “felt it better and safer to say ‘I don’t remember’”. He said, “I did this because I got advice from an independent lawyer before I gave evidence, and he told me I didn’t have to say anything. I just took his advice and now I wish I hadn’t.” He went on to deny asking Ms Sawyer-Thompson to murder Mr Nankervis. He also denied many of the allegations of violence or abuse towards her that were raised with him. He accepted that there may have been an incident concerning firecrackers, but did not think she was hurt. He accepted that her hair was cut but, in his view, she was “having fun” and “hardly any” of her hair was cut.

Findings on disputed facts

I turn now to my findings on the disputed facts.

Did Mr Nankervis owe money to bikies?

I indicated earlier that Mr Thomson had submitted that the suggestion that Mr Nankervis owed money to bikies is without substance. This suggestion had come from Ms Sawyer, who gave evidence at the committal to the effect that, when she attended the flat the day of the killing, her daughter said to her, “See that guy in there? Don’t tell anyone, but Phil wants me to kill him, because he owes bikies money.”

In her sworn evidence, Ms Sawyer-Thompson said that she told her mother simply that “Phil wanted Jack dead”. She made no mention of anything about bikies. Ms Sawyer-Thompson also said that her mother left without commenting on this remark.

In those circumstances, while her mother’s failure to comment on her daughter’s remark seems rather odd, I am prepared to accept that Ms Sawyer-Thompson did tell her mother that “Phil wanted Jack dead”, or something similar.

However, I am not satisfied that she told her mother anything about Mr Nankervis owing money to bikies.

“Bobby” and “Adam”

This is a convenient point at which to turn to the elusive “Bobby” and “Adam”.

Ms Sleeth’s instructions are that “Bobby” and “Adam” do exist, that they came to Ms Sawyer-Thompson’s flat, and that she witnessed a conversation in which Mr Mifsud was talking about having them kill Mr Nankervis. Indeed, Ms Sawyer-Thompson referred to them in her evidence on the plea and again recently in her statement to police.

While I cannot be certain that “Bobby” and “Adam” are fictional, I found Ms Sawyer-Thompson’s evidence and her statement unclear and unsatisfactory on this issue. True it is that she made references to them in her police interviews, and to the psychologist, but I found her account of their role very hard to follow, even then. Further, I did not understand her evidence before me to include an allegation that she heard a conversation in which Mr Mifsud was talking about having them kill Mr Nankervis. In the end, on the evidence before me, while I consider these things to be reasonably possible, I am not satisfied, on the balance of probabilities, that ”Bobby” and “Adam” exist or that any such conversation occurred.

While I make no finding on the matter, it may be that, in the immediate aftermath of what she had done and when still in a drug-fuelled haze, Ms Sawyer-Thompson may have concocted these characters in an attempt to cover for Mr Mifsud, but that, now, she has convinced herself of their existence, despite her preparedness to tell the truth about Mr Mifsud’s involvement.

It is, perhaps, not without significance that, in her second police interview, Ms Sawyer-Thompson says it was “Bobby” who was going to kill Mr Nankervis but he then left and could have been heading to her mother’s or her sister’s place; and, at the same time, she dutifully excludes Mr Mifsud from being involved. Yet, later, to the psychologist, to this Court in evidence and in her recent statement, she nominates Mr Mifsud as the one who did those things or similar.

Threat by Mr Mifsud

As for Ms Sawyer-Thompson’s evidence of Mr Mifsud’s threat to her, while there are some inconsistencies between the account she gave in evidence, that which she gave the psychologist and that which appears in her statement, and while she gave unsatisfactory accounts of some other matters, I am satisfied (albeit only just), on the balance of probabilities, that the substance of her account about the threat is true. In particular, I am satisfied that Mr Mifsud threatened her to the effect that he would kill her family unless she killed Mr Nankervis, and that she feared that that is what he would do. Her evidence before me and in the statement on this issue was comparatively clear and straightforward. When tested in cross-examination, she maintained her position in a convincing manner. Further, Mr Thomson did not seek to cross-examine her on any aspect of her recent statement, which, as I have said, included the same allegation.

In accepting her account, I have had regard to the potential motive for Ms Sawyer-Thompson to implicate Mr Mifsud and deflect blame away from herself and that she suffers many potential afflictions as a witness.

I am also acutely aware of the fact that Mr Mifsud has denied the allegation in a written statement and that I have not had the benefit of hearing or seeing him give evidence about the matter. I have, however, had regard also to his unsatisfactory evidence at committal and his explanation for that evidence in his subsequent statement. I found that explanation unconvincing, to say the least.

Motive

In accepting Ms Sawyer-Thompson’s account of the threat, I have also had regard to the fact that I am not satisfied about any motive Mr Mifsud may have for wanting Mr Nankervis dead.

Earlier, I mentioned that, in her recent statement, Ms Sawyer-Thompson said that Mr Mifsud told her that Mr Nankervis held a gun to his head and that he needed to get him back. While Mr Thomson did not seek to cross-examine Ms Sawyer-Thompson on the statement, and while I accept that it may be true, I find myself unable to accept that aspect of her account on the balance of probabilities in the absence of further sworn evidence specifically about that topic.

In any event, the absence of any finding, on the civil standard of proof, on what might have been Mr Mifsud’s motive makes no difference to the sentence I am about to impose.

Extent of abuse by Mr Mifsud

Having seen and heard Ms Sawyer-Thompson give evidence of these matters, and having considered the depositional material, the evidence of the psychologists and Mr Mifsud’s statements and evidence, I am satisfied, on the balance of probabilities, that Mr Mifsud subjected her to cruel, humiliating and violent acts of the type disclosed in her evidence.

That he might behave in such a way is also supported, in part, by Mr Mifsud’s history of violence towards others. He has a substantial criminal history.[14] On 27 March 2015, he was sentenced in the County Court to eighteen months’ imprisonment for recklessly causing serious injury to a 73-year-old man. He viciously bashed the victim with two co-accused. It was said at his plea he had been diagnosed with a personality disorder with anti-social features. Two days prior to the commission of this offence, he was convicted of firearms offences and assault. He has many other convictions including another for recklessly causing serious injury and others for assault and possessing controlled weapons.
[14]Mr Mifsud’s LEAP Criminal Record became Exhibit 13.

In December 2012, three people made statements that Mr Mifsud had threatened them with a gun, pointing the barrel to the window of their car. In February 2010, Simone Hopkinson, the maternal grandmother of Mr Mifsud’s children, told police that she is afraid of him and does not know what he is capable of. He had thrown a skateboard through her window and threatened to kill her and her daughter.

Number of blows

As I indicated earlier, Ms Sawyer-Thompson gave evidence that she did not think she hit Mr Nankervis as many times as alleged but that it might have been five or so times. I sensed that she gave that evidence more in hope than in a firm belief or memory as to what she did. She repeated the claim in her recent statement.

Having regard to the medical evidence and to her account about the absence of Mr Mifsud at the time of the killing, I am satisfied, beyond reasonable doubt, that Ms Sawyer-Thompson did in fact strike Mr Nankervis in the order of 70 times with the two weapons. At least seventeen of the resulting wounds were inflicted by use of the knife, and at least a large part of the balance must have been caused by use of the mattock.

Mr Nankervis’s ingestion of GHB

In the prosecution summary, it was said that no GHB was recorded in the body of Mr Nankervis. On the other hand, the same summary notes that GHB was one of the drugs all three consumed that day.

Maria Pricone, a toxicologist and pharmacologist, gave evidence at the committal hearing. She said that no test was done for GHB in Mr Nankervis’s system. She also said that GHB has a short half-life and cannot be detected in the body after a short period of time.

Michael Heywood gave evidence at a pre-trial hearing. He said that, the day before the killing, he supplied Mr Mifsud with about ten millilitres of GHB. He also said that Mr Mifsud asked how much of the drug is required to make someone unconscious. Finally, he said that Mr Nankervis was against the drug GBH and would not have consumed it voluntarily.

When regard is had to Ms Sawyer-Thompson’s account and the foregoing evidence, I am satisfied, on the balance of probabilities, that Mr Nankervis was given GHB by Mr Mifsud in order to stupefy him.

Victim impact statements

I turn now to the victim impact statements made by members of Mr Nankervis’s family.

Mr Nankervis’s mother Ann-Maree Nankervis, his sister Kathleen Lee Nankervis, his mother-in-law Susan Patton and his partner Stacey Patton all made victim impact statements.[15]
[15]The victim impact statements became Exhibit 2 (Ann-Maree Nankervis); Exhibit 3 (Kathleen Lee Nankervis); Exhibit 4 (Susan Patton); and Exhibit 5 (Stacey Patton).

I listened carefully when those statements were read in Court, and I have read them again in chambers. Among the many things said, Mr Nankervis’s family spoke of the unbearable grief and heartbreak that they and others in their family feel at the loss of their loved one, and of how they miss him terribly, including his laughter, his smiling face, his kindness, his caring nature and his lovable presence.

The victim impact statements are extremely powerful and moving documents.

I have taken their contents into account in sentencing.

Nature and gravity of offence; culpability and degree of responsibility

I turn now to the nature and gravity of the offence, as well as Ms Sawyer-Thompson’s culpability and degree of responsibility.[16]

Nature and gravity of offence

[16]See ss 5(2)(c), (d) and (daa)-(db) of the Sentencing Act 1991 (Vic).

Defensive homicide can be a very serious offence. A person commits the offence if she kills another with murderous intent while believing, albeit without reasonable grounds, the conduct to be necessary to defend herself or another from the infliction of death or really serious injury. The offence carries a maximum penalty of twenty years’ imprisonment.

Mr Thomson submitted that this was a “bad” example of defensive homicide, one falling towards the upper end of the range of seriousness. Ms Sleeth submitted that it falls towards the lower end of that range. In substance, I accept Mr Thomson’s submission.

In particular, in my view, for reasons that follow, this is a very grave example of defensive homicide. First, Ms Sawyer-Thompson’s behaviour has taken the life of a young man in the most horrendous of circumstances. Her behaviour has deprived a mother of her son, a sister of her brother, a wife of her husband and a son of his father. Mr Nankervis’s family will never be the same.

Secondly, the threat did not emanate from Mr Nankervis. Instead, he was completely innocent of any threat towards Ms Sawyer-Thompson or her family.

Thirdly, while the threat came from Mr Mifsud, he was absent at the time of the killing. Thus, while the essence of the offence is that, even in his absence, Ms Sawyer-Thompson believed her conduct to be necessary to defend her family, that she had the opportunity to go to police or a neighbour or simply run away makes her actions both difficult to fathom and all the more serious.

Fourthly, the attack was ghastly and disturbing in its execution. Mr Nankervis was hacked and stabbed repeatedly and well beyond the point that was necessary to kill him.

Fifthly, a related point is that his facial injuries were so grave that he was rendered unrecognizable. This must be a terrible thought for Mr Nankervis’s family.

Sixthly, Mr Nankervis was in a drug stupor and completely defenceless at the time, which Ms Sawyer-Thompson knew.

Culpability and degree of responsibility

Absent the following factors, which reduce Ms Sawyer-Thompson’s culpability and degree of responsibility somewhat, I would regard this offence as being close to the worst, if not within the worst, category of defensive homicide. First, the killing was not Ms Sawyer-Thompson’s idea. Rather, she was driven to it because of the threat by Mr Mifsud.

Secondly, Ms Sawyer-Thompson was vulnerable to the threats of Mr Mifsud because he had subjected her to serious violence and humiliation in the past and, in her mind, had a fearsome reputation for violence towards others.

Thirdly, she was suffering the effects of PTSD, depression and anxiety, is of low intelligence, was addled by drugs, and was rather submissive to and dependent upon Mr Mifsud, all of which are likely to have impaired her judgment at the relevant time.

These findings are supported by the psychological evidence led by both the defence and the prosecution.[17] Ms Sawyer-Thompson’s lawyers had her assessed in August and September 2015 by forensic psychologist Jeffrey Cummins. His tests showed that Ms Sawyer-Thompson has a full scale IQ of only 70 – which is just one point above a diagnosis of mild intellectual disability. In Mr Cummins’s view, Ms Sawyer-Thompson presents as being of borderline intellectual functioning, but adds that some aspects of her presentation are more indicative of her functioning at a level of mild intellectual disability.
[17]Mr Cummins’s report became Exhibit 8. Dr Gee’s report became Exhibit 7.

Mr Cummins was also of the view that she presents with a very dependent personality style and has some characteristics of dependent personality disorder. In his opinion, she is likely to be led easily and her will is likely to be overborne easily.

Ms Sawyer-Thompson also presented as moderately to severely depressed and as moderately anxious. Mr Cummins noted that she had been diagnosed with symptoms of depression and anxiety while residing in Cobden in 2012, at which time she attempted to hang herself.

Finally, Mr Cummins diagnosed her with PTSD. He considered that it is likely that, while that condition resulted initially from the sexual abuse she suffered as a child, it would have increased in severity as a result of her abusive relationship with Mr Mifsud.

Ms Sawyer-Thompson was also examined by forensic psychologist Dr Dion Gee at the instance of the Director. While Dr Gee considered that Ms Sawyer-Thompson’s intellectual functioning might not be as low as the testing revealed, particularly given her depression and anxiety at the time of that testing, he reached essentially the same conclusions as Mr Cummins. I shall read two particular passages from Dr Gee’s report. The first is that he opined that:

it is reasonable to suggest that at the point of the offence she was labouring under an untreated major depressive disorder, generalized anxiety, post-traumatic symptomology and possible substance use disorder. Moreover, her emerging personality pathology, psychosocial/interpersonal difficulties, and reduced cognitive capacities (albeit not intellectually disabled) would have all acted to … impair [further] her mental functioning.

Second, as to the nexus between the offending and her impaired mental functioning, Dr Gee said that:

there would seemingly be a significant association mediated through her presenting psychopathology, whereby her symptomology arguably impacted on her social-moral reasoning, consequential thinking, insight and judgment. That is, Ms Sawyer-Thompson’s deficits in autonomy, limited social connectedness and maladaptive self-regulation would predispose her to seek – and blindly attempt to maintain – intimacy and social connection through whatever means possible. Further, her trauma history (both her own experiences of abuse and exposure to past domestic violence), limited self-esteem, minimal self-worth and impaired sense of identity would have set up an interpersonal platform of submission, compliance and subjugation. Within this type of context, it would be exceptionally difficult for [her] to resist the requests of those in positions of influence over her. As a result, and being unable to repel the influences of those she becomes psychologically dependent on, [she] would similarly be unable … physically [to] escape such influence; as to do so would likely retrigger those experiences of past physical and psychological threat. In all likelihood, this sense of psychological ‘trapped-ness’ (both through fear and dependence) would have acted to reinforce what seemingly became [her] unwavering submissiveness and compliance within a highly dysfunctional, exploitative and at times somewhat sadistic relationship with Mr [Mifsud]. [Her] minimal coping resources, lack of assertiveness and dysfunctional self-regulation, together with her increased social marginalization (from her family supports) would have further instilled pervasive distress that acted to overwhelm her emotional coping. …

Dr Gee went on to say that it would appear that Ms Sawyer-Thompson “was not in a position to make reasoned and ordered judgments, nor maintain complete control over her faculties”.

I accept the opinions of the two psychologists, which were not challenged by either party on the plea.

Conclusion

Nevertheless, balancing all of these considerations, I still regard this as, objectively, a very grave example of defensive homicide. It falls towards the upper end of the range of seriousness and would be far worse but for the mitigating considerations evident in the opinions of the psychologists.

Other mitigating factors

I turn now to the other factors in mitigation on which Ms Sawyer-Thompson is entitled to rely.

Background

Before doing so, I shall set out in some detail Ms Sawyer-Thompson’s background as outlined by Ms Sleeth on the plea and in some of the other materials before me.

Ms Sawyer-Thompson was born on 12 July 1994. She is 22 now but was only 19 at the time of the offence.

Her parents separated when she was very young. She was told that the cause of the separation was her father’s aggression and heavy drinking. He now works as a saw-mill manager. When young, she witnessed domestic violence between her father and her step-mother.

Her mother has been in a relationship for the past ten years. Ms Sawyer-Thompson does not get on well with her mother’s partner.

Her paternal grandfather committed suicide in 2011. Ms Sawyer-Thompson was close to him and his death had a significant impact upon her.

Ms Sawyer-Thompson has two older sisters, neither of whom has been in trouble with the law. One is aged 27 and a single mother of two young children. The other, to whom Ms Sawyer-Thompson is very close, is 25, and has a partner and a child.

After attending primary school at Yallourn North, Ms Sawyer-Thompson commenced Year 7 at Deer Park Secondary College. She then relocated to Morwell with her mother and her mother’s current partner. She attended Kurnai College in Year 8 and then left at the start of Year 9, as she was bullied for being overweight. She found it very difficult to read and write at school, and also had speech difficulties.

Ms Sawyer-Thompson left home at 16 and lived with her sisters in Morwell. She did a hairdressing course. Earlier, while at school, she had worked at KFC in Churchill for about twelve months. Later, she worked in Cobden with her sister, as a dairy hand, for eighteen months. At some point during her time in Cobden, Ms Sawyer-Thompson became so depressed that she tried to hang herself. She returned to Morwell about two years prior to her incarceration, during which time she was in receipt of a Disability Support Pension.

When she was a teenager, Ms Sawyer-Thompson was involved in a school-yard fight with another girl, which resulted in her being charged with assault. Ultimately, she received a bond, without conviction.

Ms Sawyer-Thompson suffered sexual abuse as a child at the hands of three different perpetrators. She was sexually abused by her step-father’s seventeen-year-old son when she was about six. He would touch her when in her bed and when in the bath. When she was about ten, her mother’s former boyfriend would rub up her leg inappropriately when in the car. When she was fourteen, her older sister’s former boyfriend sexually assaulted her and her younger sister at knife-point. Her mother took her to the police but she was too scared to make a statement.

Ms Sawyer-Thompson began drinking alcohol in her mid-teens and smoking marijuana regularly from age seventeen. When she met Mr Mifsud, she was introduced to amphetamines and LSD by him.

Ms Sawyer-Thompson met Mr Mifsud on Facebook and became involved with him about twelve months prior to this offence. He had another girlfriend with whom he had two children. It is apparent that he used Ms Sawyer-Thompson for various purposes. He used her home to deal in drugs. He experimented on her with combinations of drugs. He even made her overdose on nutmeg on one occasion, which caused her mother to call an ambulance.

As I have indicated earlier, I am satisfied that Mr Mifsud also engaged in a litany of other violent and humiliating behaviour towards Ms Sawyer-Thompson. I will not rehearse that behaviour here again.

I turn now to the other factors in mitigation.

Admissions to police

First, there are Ms Sawyer-Thompson’s admissions to police.[18]
[18]See s 5(2)(g) of the Sentencing Act 1991 (Vic).

While I have already mentioned Ms Sawyer-Thompson’s initial (false) assertions of sexual assault, and while some aspects of her accounts to police were hard to follow, it is plain that she never shirked from admitting that she was the one who killed Mr Nankervis.

Plea of guilty

Secondly, Ms Sawyer-Thompson’s plea of guilty is a very important mitigating factor,[19] in several ways.
[19]See s 5(2)(e) of the Sentencing Act 1991 (Vic).

First, while the plea that was accepted came at a very late stage, Ms Sawyer-Thompson previously had offered to plead guilty to defensive homicide, well before trial, albeit on a different basis.

Secondly, the guilty plea that was ultimately offered and accepted has avoided what would have been a stressful trial and has spared the witnesses the ordeal of reliving these events and being cross-examined about them. This is particularly so given that, as I have explained, had there been a trial, it would have been necessary to leave to the jury the assertion of attempted rape by Mr Nankervis as a basis for self-defence, which in turn might have ended up being the basis for an outright acquittal. Similarly, if there had been a verdict of guilty of defensive homicide, it might have formed the factual basis on which I had to sentence. Thus, by pleading guilty on the basis agreed between the parties, Ms Sawyer-Thompson has ensured that there can be no doubt about the falsity of her earlier assertion about Mr Nankervis’s behaviour.

Thirdly, the plea of guilty involves an acceptance by Ms Sawyer-Thompson of legal responsibility for her actions and a willingness to facilitate the course of justice.

Fourthly, the plea was entered despite the possibility that the defences of duress, (reasonable) self-defence and/or (reasonable) defence of another might have succeeded, in which case, as I have said, there would have been a complete acquittal. There might be thought to be a fine line between whether a belief is held and whether it is held on reasonable grounds. To be sure, as is commonly the case, this plea of guilty reflects a compromise by both parties. But, because she has foregone what, in my judgment, was at least some chance of an outright acquittal, Ms Sawyer-Thompson’s plea of guilty is all the more worthy in mitigation.[20]

Assistance to, and offer and undertaking to assist, the authorities

[20]See, e.g., R v De Macedo (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, 4 February 1992) at 5-7 per Phillips CJ (with whom Beach and Gobo JJ agreed).

The third matter in mitigation concerns Ms Sawyer-Thompson’s assistance to, and offer and undertaking to assist, the authorities in the investigation and potential prosecution of Mr Mifsud.[21]
[21]See ss 5(2)(g), (2AB) and (2AC) of the Sentencing Act 1991 (Vic).

Ms Sawyer-Thompson has sought to assist the authorities in the investigation and prosecution of Mr Mifsud by providing a statement on 13 February 2017.

The statement came about after I inquired of Mr Thomson, at a mention on 9 February 2017, whether, in light of Ms Sawyer-Thompson’s sworn evidence to the Court implicating Mr Mifsud in a murder, the police or the Director would be investigating or prosecuting him. Part of my concern was that, if such a course were to be taken and Ms Sawyer-Thompson were to assist in that investigation and/or prosecution, that should be a matter taken into account in sentencing. Mr Thomson then asked that the matter be adjourned for a month so that a statement could be taken from Ms Sawyer-Thompson and a decision could be made about the police and the Director’s course in the matter. I acceded to that application.

Upon the return of the hearing on 10 March 2017, Mr Thomson advised that Ms Sawyer-Thompson had made the statement and that the materials had been reviewed. He also advised that the Director’s office had determined that there will be no further investigation and no prosecution of Mr Mifsud, and that Ms Sawyer-Thompson will therefore not be called upon to give evidence against him.

On 16 March 2017, despite that indication from the Director, Ms Sawyer-Thompson nevertheless gave sworn evidence adopting the truth of her statement and an undertaking to assist the authorities in the investigation or prosecution of Mr Mifsud, if called upon further to do so. Mr Thomson did not seek to cross-examine Ms Sawyer-Thompson on the contents of the statement. I then heard submissions on whether the provision of the statement and the undertaking to assist should be regarded as a mitigating factor.

Before addressing that question, I should explain that, when considering these reasons for sentence, it is important to understand that the Director’s function and mine are quite separate and involve different considerations and the application of different standards of proof. While the Director has accepted that Ms Sawyer-Thompson had a belief (albeit not based on reasonable grounds) that her family would be killed unless she killed Mr Nankervis, he has also taken the view, based on all of the available evidence, including Ms Sawyer-Thompson’s viva voce evidence and statement, that, if Mr Mifsud were charged and tried, there is no reasonable prospect that a jury would find him guilty. In coming to that view, the Director must consider that, for a prosecution to succeed, a crime must be capable of being proved beyond reasonable doubt – the highest standard of proof our law knows – on evidence admissible against an accused person.

On the other hand, when I am asked to make findings of fact in favour of an offender in mitigation of sentence, which facts assert that another is involved in a crime, I am required to apply the much lesser standard of proof that applies in civil matters – namely, proof on the balance of probabilities. Further, what is admissible in favour of an offender on a plea in mitigation might not be admissible against an accused person on a trial before a jury.

Thus, it follows that it is quite possible that, when hearing a plea in mitigation, a court may find, on the balance of probabilities, that a person engaged in behaviour that suggests he has committed a crime, the Director quite reasonably could take the view that, on the tests and considerations he must apply, that person should not be prosecuted for that alleged crime. That is what has happened in the present case.

Nevertheless, the question remains whether there is any mitigation in the provision of the statement and the undertaking to assist the authorities. Further, Ms Sawyer-Thompson offered such assistance as long ago as the committal hearing.

I make the following findings about these matters. First, while I do not accept, and cannot make a finding about the truth or accuracy of, some aspects of Ms Sawyer-Thompson’s account in evidence and in her statement, I am satisfied that the substance of her account of Mr Mifsud’s involvement in ordering her to kill Mr Nankervis, and of his ill-treatment of her, is both full and frank.

Secondly, I am satisfied that Ms Sawyer-Thompson’s offer and undertaking to assist, and the provision of her statement, reflect contrition and a genuine desire to bring a person to justice but also a hope of obtaining the potential sentencing benefit that might flow from such behaviour.

Thirdly, while I accept the substance of her account on the balance of probabilities, I can well understand how it is that the Director has come to the view that there is no reasonable prospect of a conviction based on her evidence. Plainly, she is a witness who suffers from many afflictions and might not be believed on the criminal standard of proof. Indeed, without more supporting evidence, I would not be prepared to act on her account if I were required to apply the (much higher) criminal standard of proof. Thus, I accept Mr Thomson’s submission that, at least at this point, the practical value of her offer, statement and undertaking amounts to nought.

Fourthly, I accept that it is likely that, while in prison and perhaps beyond, Ms Sawyer-Thompson will suffer at least some odium, and in any event may well fear reprisals, from cowardly types who regard informers as fair game. I note that, at the time of the last hearing, Ms Sawyer-Thompson was in protective custody.

It is for these reasons that I consider that some weight – but moderate rather than substantial weight – should be given in mitigation to Ms Sawyer-Thompson’s assistance to, and offer and undertaking to assist, the authorities in the investigation and potential prosecution of Mr Mifsud, even though the Director has declined to take the matter any further. I have given this factor less weight than otherwise on account of the fact that, at least at present, it is reasonable to conclude that there is no practical value in her offer, statement and undertaking. But the other features of her attempt and offers to assist mean that at least moderate weight must be given to this factor. By way of comparison, in the circumstances of this case, the weight I have given this factor, while still significant, is somewhat less than that which I have given to the plea of guilty.

Remorse

The fourth matter in mitigation concerns Ms Sawyer-Thompson’s remorse.

Ms Sleeth submitted that I should be satisfied that Ms Sawyer-Thompson has a significant level of remorse for her offending.[22]
[22]See s 5(2)(g) of the Sentencing Act 1991 (Vic).

Mr Thompson submitted that I should regard the fact that the ultimate offer to plead guilty was made at a relatively late stage, and the fact that there appear to be no expressions of remorse in her telephone conversations made from gaol,[23] deprived the plea of remorse. Further, he submitted that, in those circumstances and given the manner in which Ms Sawyer-Thompson gave evidence on the plea, I should regard her written apology to Mr Nankervis’s mother and her evidence as nothing more than “crocodile tears”.
[23]See Exhibit 25.

I do not accept those submissions. On the contrary, for reasons that follow, I am satisfied that Ms Sawyer-Thompson is genuinely sorry for her involvement in the killing of Mr Nankervis and the terrible grief it has caused his family.

First, her admissions to police are evidence of remorse. It is plain that she was distressed when telling police what she had done.

Secondly, as long ago as August 2015, Ms Sawyer-Thompson, when speaking to the psychologist Mr Cummins, “spontaneously cried” and said, among other things, that she “can’t live with this guilt” and that it is “so upsetting when you know you’ve taken a kid from [his] father”. Further, Mr Cummins offered the opinion that she “presents as being riddled with guilt, remorse and shame concerning causing Mr Nankervis’s death”. I accept that opinion.

Thirdly, Ms Sleeth tendered a letter of apology to Mr Nankervis’s mother. In the letter, Ms Sawyer-Thompson wrote of thinking, every day, about what she did, about Mr Nankervis’s son growing up without a father and of her disbelief at what she had done. She apologized to Mrs Nankervis, her family, Mr Nankervis’s son and her own family. She said that she will take the consequences of her actions but hopes that, one day, she might be forgiven. While the letter was written recently, Ms Sawyer-Thompson first asked, very early in her incarceration, if she could write to Mr Nankervis’s mother, but was told that it was not an appropriate time to do so.

Fourthly, Ms Sawyer-Thompson gave sworn evidence of her remorse. She said that, after hearing Mr Nankervis’s family’s victim impact statements, her letter of apology “isn’t good enough”. Every day, she still thinks about what she has done. She accepted that she had done wrong and wished she could change things now or somehow help Mr Nankervis’s family, but said she knows that “it’s just not going to be good enough”. I accept that evidence.

Finally, Ms Sawyer-Thompson offered to assist the authorities at the committal, provided a statement to police in February and recently gave an undertaking to assist in the investigation or prosecution of Mr Mifsud if called upon to do so. As I indicated earlier, I am satisfied that her assistance and offers to assist have been motivated in part by remorse and a desire to do justice and in part by self-interest.

Limited criminal history

The fifth matter in mitigation is that Ms Sawyer-Thompson has only a very limited criminal history.[24]
[24]See s 5(2)(g) of the Sentencing Act 1991 (Vic).

In July 2011 and October 2012, she appeared in the Children’s Court on separate charges of shop-lifting. On the first occasion, she received a good behaviour bond, without conviction; and, on the second, she received a fine – again, without conviction. These matters are irrelevant to sentencing on the present charge.

In February 2012, she appeared in the Children’s Court on a charge of assault. She punched another girl in a fight at school. The magistrate imposed a good behaviour bond, without conviction. A condition of the bond was that she was to seek assessment for grief counselling and anger management. While this matter involved violence, it is at a completely different level of seriousness to the current offending and occurred when Ms Sawyer-Thompson was a student of only 16 or 17. It is therefore a matter of only slight relevance to sentence.

Youth

The sixth matter in mitigation is Ms Sawyer-Thompson’s youth.[25]
[25]See s 5(2)(g) of the Sentencing Act 1991 (Vic).

She was only 19, nearly 20, at the time of the offence; and is 22 now. Further, both Mr Cummins and Dr Gee considered her to be immature for her age.

On the other hand, the extreme gravity of the attack and its disturbing nature are factors that cause me to conclude that her youth does not have the same prominence in sentencing as it might have had in a less serious case of defensive homicide. There are many statements of the Court of Appeal endorsing the view that youth is usually a matter of first importance in sentencing; and others that recognize that, in some cases, including some involving serious violence, youth may have to be subjugated to other sentencing considerations such as general deterrence and denunciation.[26] Despite the fact that she believed her family would be killed unless she killed Mr Nankervis, I think that the extreme and disturbing violence employed by Ms Sawyer-Thompson demand that denunciation and protection of the community are significant considerations in sentencing her, which, in turn, tends to leave less room than otherwise for the mitigating effect of her youth.
[26]See, e.g., the several authorities discussed by Redlich JA (with whom Coghlan and Macaulay AJJA agreed) in Azzopardi & Ors v The Queen [2011] VSCA 372 at [34]-[44] and by the Court (Maxwell P, Neave JA and Kaye AJA) in DPP v Anderson [2013] VSCA 45, esp. at [46]-[52].

That said, Ms Sawyer-Thompson is at an age where her values and attitudes are still being formed. I also accept that she is immature for her age. And one of the great aims of the criminal law – namely, the rehabilitation of younger offenders – still remains an important consideration in her case. As I have said, however, her youth cannot have the same prominence it might have had in a less serious case.

Delay

The seventh matter in mitigation is the long delay between the offending and sentence.

It is now nearly three years since Mr Nankervis was killed. Ordinarily, a homicide case would be completed in a much shorter space of time.

While the unusual delay in the matter has been occasioned by several factors – including the taking of the case stated to the Court of Appeal, the necessity of examining Ms Sawyer-Thompson’s mental state at the time of the killing and the further investigation into Mr Mifsud – none of these causes could be said to be of Ms Sawyer-Thompson’s making.

Delay is relevant in mitigation in two ways. First, I accept that there must have been a considerable strain on Ms Sawyer-Thompson in awaiting her fate. Secondly, however, she has used the time well, by doing courses in prison and, ultimately, by pleading guilty to a serious crime, both of which auger well for her prospects of rehabilitation, to which I now turn.

Reasonable prospects of rehabilitation

Finally, I am satisfied that Ms Sawyer-Thompson has reasonable to good prospects of rehabilitation.[27] I do not say those prospects are very good or excellent, but just reasonable to good. There are four reasons that bring me to that conclusion.
[27]See s 5(2)(g) of the Sentencing Act 1991 (Vic).

First, her admissions, her plea of guilty, her attempt to assist the authorities, her remorse, her limited prior convictions and her youth point toward stronger prospects of rehabilitation.

Secondly, it is promising that Ms Sawyer-Thompson has participated in various courses while in prison, including one about crime prevention and another about the effects of the drug “ice”.

Thirdly, it is important that she enjoys the support of her family.

Fourthly, however, in my view, those prospects are offset somewhat by Ms Sawyer-Thompson’s rather entrenched history of drug use and the particularly disturbing nature of her crime.

Thus, balancing these matters, I consider her prospects of rehabilitation to be reasonable to good.

Sentencing purposes

I turn now to the purposes of sentencing.[28]
[28]See s 5(1) of the Sentencing Act 1991 (Vic).

Section 5(1) of the Sentencing Act 1991 (Vic) provides that the only purposes for which sentence may be imposed are, to use the shorthand, general deterrence, specific deterrence, denunciation, protection of the community, just punishment and rehabilitation.

General deterrence, denunciation, just punishment and community protection

Despite the threat and the belief under which she laboured, I think that the extreme and disturbing violence employed by Ms Sawyer-Thompson to kill a fellow human being demands that general deterrence, denunciation, just punishment and protection of the community are significant considerations in sentencing her.

Specific deterrence

While specific deterrence must be given some weight, Ms Sawyer-Thompson’s plea of guilty, attempt to assist the authorities, remorse, limited prior criminal history and prospects of rehabilitation also suggest that that sentencing purpose should attract less weight than otherwise.

Rehabilitation

Finally, I accept that rehabilitation is an important sentencing purpose in Ms Sawyer-Thompson’s case – again, particularly given her plea of guilty, attempt to assist to the authorities, remorse, limited criminal history, youth and prospects of rehabilitation.

Rehabilitation and protection of the community

The sentence to be imposed requires that Ms Sawyer-Thompson be released eventually. The community will be better served and protected if, when she is released, her chances of reform have been maximized. Such chances are more likely to be improved if she is not crushed by an inordinately long prison sentence but rather is returned to the community at the earliest opportunity consistent with the other purposes of sentencing.

Parsimony

Section 5(3) of the Sentencing Act provides that a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed. This provision reflects the common law principle of parsimony. I have applied this provision and this principle when considering the appropriate sentence in this case.

Current sentencing practices

I turn now to current sentencing practices, to which I must have regard.[29]
[29]See s 5(2)(b) of the Sentencing Act 1991 (Vic).

In order to determine such practices, I have considered such sentencing statistics as exist for this offence.[30] During the period July 2010 to June 2015, sentences imposed for defensive homicide ranged from seven to twelve years’ imprisonment; the median term was eight-and-a-half years’ imprisonment; and the median non-parole period was five years.
[30]See SACStat Higher Courts, Defensive Homicide, July 2010 to June 2015.

Those statistics are, of course, of limited utility, mainly because they do not distinguish cases according to their most important sentencing considerations – such as the seriousness of the particular offence, whether there were significant aggravating or mitigating factors, whether there was a plea of guilty or not guilty, whether or not there were significant prior convictions, and so on. Nevertheless, they do give some guidance.

Counsel also referred me to a range of sentences imposed by this Court and, in some cases, considered by the Court of Appeal for offences of defensive homicide.[31] I have considered those and all other cases of defensive homicide I could find. While no two cases are ever truly alike, none of the cases I considered are quite like this one.
[31]See, e.g., Exhibit 9 – Table of Cases; and Exhibit 12 – Plea Submissions on behalf of Ms Sawyer-Thompson.

Declarations under ss 5(2AB) and 6AAA(1) of the Sentencing Act

Finally, before I impose sentence, I must mention the following matters.

First, s 6AAA(1) of the Sentencing Act requires that, if I impose a less severe sentence on account of Ms Sawyer-Thompson’s plea of guilty, I am to declare the sentence and non-parole period I would have imposed but for that plea of guilty.

Secondly, this is always a difficult task, because of the impact a plea of guilty is likely to have on matters such as remorse, rehabilitation and the weight to be accorded to specific deterrence. The task is complicated by other mitigating factors, such as admissions and assistance to or offers to assist the authorities. It is also complicated by the fact that, in all likelihood, Ms Sawyer-Thompson would have been facing a murder charge had she chosen to plead not guilty.

Thirdly, s 5(2AB) of the Sentencing Act provides that, if, in sentencing an offender, a court imposes a less severe sentence than it would otherwise have imposed because of an undertaking given by the offender to assist, after sentencing, law enforcement authorities in the investigation or prosecution of an offence, the court must announce that it is doing so and cause to be noted in the records of the court the fact that the undertaking was given and its details.

Fourthly, while s 5(2AC) goes on to provide that nothing in s 5(2AB) requires a court to state the sentence that it would have imposed but for the undertaking that was given, I think it is appropriate to do so in a case like the present.

Fifthly, that too is a complicated task, as Ms Sawyer-Thompson not only recently gave an undertaking to assist the authorities in the investigation or prosecution of Mr Mifsud if called upon to do so, but she also sought to assist the authorities by making a statement to police and offered to be a witness against Mr Mifsud as long ago as the committal hearing, and yet these latter features of her offered assistance do not seem to be embraced by s 5(2AB).

Sixthly, when all of these matters are considered, it is extremely difficult – perhaps impossible – adequately to isolate, quantitatively, the impact that each matter has had on sentence. Such an approach might also run counter to the notion that courts should apply an instinctive or intuitive synthesis, rather than a multi-step process, when sentencing.

Seventhly, in those circumstances, I think the preferable approach in a case like this is to make a global declaration of the estimated sentence absent the plea of guilty, the assistance to the authorities and the offer and undertaking to assist the authorities, without attempting to descend into the minutiae of how each factor contributed to the sentence actually imposed.

Accordingly, doing the best I can, had Ms Sawyer-Thompson pleaded not guilty but been found guilty of defensive homicide following a trial, and had she not sought to assist the authorities by providing a statement, nor offered to assist at the committal hearing nor recently given an undertaking to assist in the event that she is called upon to do so, I estimate that I would have imposed a sentence in the order of fifteen years’ imprisonment with a non-parole period of eleven years.

But, of course, since she did do those things, the sentence to be imposed is substantially shorter.

Sentence

So, I turn now to that sentence.

Please stand, Ms Sawyer-Thompson.

Balancing all factors as best I can, for the defensive homicide of Jack Brian Nankervis on 20 June 2014, Bonnie Kate Sawyer-Thompson is convicted and sentenced to ten years’ imprisonment with a non-parole period of seven years.

Pursuant to s 18 of the Sentencing Act, I declare that 1,035 days (including today) be reckoned as served under this sentence.

[2016] VSC 767

20 April 2017