R v Williams
[2023] VSC 280
•19 May 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0113
| THE KING | Crown |
| v | |
| RICKY JOHN WILLIAMS | Accused |
---
JUDGE: | CHAMPION J |
WHERE HELD: | Wangaratta |
DATE OF HEARING: | 28 February 2023 |
DATE OF SENTENCE: | 19 May 2023 |
CASE MAY BE CITED AS: | R v Williams |
MEDIUM NEUTRAL CITATION: | [2023] VSC 280 |
---
CRIMINAL LAW — Sentence — Murder — Reckless murder — Standard sentence offence — Plea of guilty — Accused stabbed de‑facto partner in abdomen and chest three times — Mid‑range of seriousness — Remorse — Offending objectively very serious — Complex diagnosis, involving an acquired brain injury, borderline personality disorder, anxiety, depression, Meniere’s disease — Verdins — Issues with lack of expert evidence, causal connection, realistic connection as to whether impairment played a role in offending conduct — Prospects of rehabilitation guarded — Extensive criminal history — Sentence of 24 years’ imprisonment with non‑parole period of 18 years — Sentencing Act 1991 (Vic), ss 5, 5A, 5B, 6AAA, 11A.
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | J Johnston | Office of Public Prosecutions |
| For the Accused | D Price C Williams | Geoff Clancy |
HIS HONOUR:
Introduction
Ricky John Williams, on 22 November 2022, you pleaded guilty to the reckless murder of Carmen Niklaus, at Everton Caravan Park on 6 December 2021.
The maximum penalty for the offence of murder is life imprisonment. It is a Category 1 offence and a standard sentence offence.
Background
In 2021, you were living in Wangaratta and receiving housing assistance through the Salvation Army Outreach Service. You had a housing assistance worker and, in late 2021, she had arranged accommodation for you at the Everton Caravan Park.
At the time of her death, Ms Niklaus was also living in Wangaratta, although she was homeless. Ms Niklaus was in an on‑again‑off‑again relationship with another man. Ms Niklaus and you had previously been in a de‑facto relationship, but in 2021 you were not living together.
In January 2021, the Wangaratta Magistrates’ Court made orders for the protection of Ms Niklaus, which prohibited you from contacting her in any way. Despite the orders, you were in contact with Ms Niklaus by telephone, and from time to time she would visit you at your home to obtain assistance with accommodation or food.
Circumstances of the offending
On 6 October 2021, you moved into the Everton Caravan Park on a six‑week booking that was due to expire on 17 November 2021. This accommodation was provided to you via a rental assistance package. You did not wish to go to the caravan park for two reasons, namely you did not wish to be seen there by Ms Niklaus, who had stayed there in the past, and you did not want your son to know you were living in a caravan park. Your housing assistance worker had contacted the caravan park on several occasions on your behalf to have the booking extended.
As at 6 December 2021, the booking at the caravan park was due to end on Wednesday, 15 December 2021. Attempts were being made to find you alternative accommodation. It appears you were unhappy at the caravan park, unable to find alternative accommodation and afraid of becoming homeless, which you conveyed to the service in a telephone call during the morning of 6 December 2021. During that call, you said words to the effect of “[o]n Monday, the first person I see, I’m going to do whatever I have to do”. After this call, your housing assistance worker began calling colleagues and police to try to get a welfare check completed and to find you alternative accommodation.
You were also in receipt of the assistance of a social worker. Later the same morning at 11:40am, your social worker collected you from the caravan park and took you to Wangaratta to do shopping and go to the bank. You both returned to the caravan park at about 2:00pm and spent some time chatting at the table next to your cabin.
During the afternoon of the same day, Ms Niklaus and her partner, Mr Johnson, went to Junction Support in Wangaratta to seek assistance with accommodation and food. They were provided with a swag and food which they took to Merriwa Park, but Ms Niklaus did not want to stay overnight in the swag. Mr Johnson saw Ms Niklaus on the phone and overheard a conversation from which he believed she was on the phone to you. He argued with Ms Niklaus about the call and she then left. Mr Johnson attempted to locate her by driving around with his mother, but was unable to find her.
At around 4:40pm that day, Mr Johnson went to the Wangaratta Police Station and told a police officer that Ms Niklaus had gone missing and asked him to call her mobile, which he did without success. Mr Johnson told the officer that she might have gone to see “Rick” from the caravan park, meaning you.
The police officer told Mr Johnson that Ms Niklaus might have wanted time and space by herself and that the police would keep an eye out for her. At around 4:30pm that afternoon, a taxi driver picked up Ms Niklaus in Wangaratta and drove her to the Everton Caravan Park to meet you. The taxi driver had, on a previous occasion, driven Ms Niklaus to the same caravan park and the fare was paid by you.
The taxi driver saw that Ms Niklaus had passed out in the back of the taxi at some point during the trip. On arrival at the caravan park, you paid the taxi fare and helped her out of the vehicle. CCTV from the caravan park shows Ms Niklaus arriving with you at your cabin at 4:43pm.
At some time between 4:43pm and 6:57pm, you stabbed Ms Niklaus three times with a kitchen knife. At 6:57pm, you rang your social worker and you told him you had stabbed “Carmen”. You asked the social worker to come and pick you up but he refused, telling you instead to call an ambulance. You did not call an ambulance at that point or at any point.
A short time later you came out of the cabin holding a phone to your ear, and ran in the direction of the office, saying “I’ve got to deal with RJ”. You went back to the cabin a short time later, still on the telephone and saying, “can you find him off Facebook”.
CCTV shows that you again came out of the cabin and walked briskly in the direction of the office, still on the mobile phone. You knocked on the door of the office before returning to the cabin once more.
Around this time you also called your son, and that call lasted for about five minutes. Your son recalls you saying something like, “[b]uddy something really bad has happened. Carmen’s on my living room floor. She has been stabbed”. The CCTV also shows you again coming out of the cabin around this time, again on the phone and walking in the direction of the office.
A neighbour living in a nearby cabin went outside his house after hearing some yelling and saw you standing on the dirt track. You said “someone’s been stabbed” then ran back towards the cabin. You returned to your cabin shortly after and could be heard saying “I’ve got a bloke who is going to find you on Facebook, his name’s Nick, he is my worker, you talk to him and correspond with him, alright”.
CCTV then shows that the same neighbour arrived at the cabin just after 7:00pm. The neighbour’s wife can be seen arriving, and she called triple zero. A few minutes later you called your social worker.
When the neighbour went into the cabin, he saw Ms Niklaus lying on the floor, next to the couch. She was naked, covered in blood, and still alive. He tried to stop the bleeding. He could hear you coming in and out of the cabin and talking on the phone.
At 7:09pm, you again called your son. During this call you said “I am so sorry buddy. I am going to be away for a long time”.
You called your social worker again at 7:20pm, and your son again a couple of minutes later. You told him you were sorry, and that you loved him.
Ambulance officers arrived at 7:26pm. Ms Niklaus was pronounced dead shortly after their arrival.
Police investigation
Arrest and interview
You were arrested at the scene and taken to the Wangaratta Police Station for interview, which took place later that night. During the interview you made various statements, including the following:
(a) “Today at 2:30, I went out the front of my cabin, checked my phone and there was messages from Carmen and missed calls, I corresponded with her, she wanted to come and she was in tears …, she got a taxi and then came about 4 … she couldn’t even stand, we had a shower together, it woke her up … then she was punching herself and she wanted to go, ‘well you just got a taxi Carmen, 50 more fucking dollars and you wanna go … I lost me shit, too many fucking lies, she wasn’t there to be with me, she just had no where else to go … we were going to watch a movie, she was sitting on the bed, I got up to get a cigarette off the bench and she started punching herself in the head and I just had flashbacks of 18 months, that’s it, I just grabbed the knife and stuck it in her, she sat on the bed and said ‘don’t hurt me’, I said ‘I don’t wanna hurt ya, I didn’t get you out here to hurt you’, and then I stabbed her again, I think 5 times”;
(b) “… then I picked her up and carried her and cradled her to the floor, I leaned her up and just looked at her, then I put my shorts on and called Nick, I said ‘Nick, I’m in trouble, I stabbed Carmen’, he said ‘go and get help quick’, so I ran up there and that’s it”;
(c) “[after the shower we were] talking about lots of things, me kid. I wanted to know why she sent that message to me kid”;
(d) “Then I went to the kitchen to get a smoke and she stood up and just said ‘I’m just gonna fucking go, fuck this’ and that was it … the knife was in the block, I pulled the middle one out and I was thinking as soon as I heard it one more that that ‘I’m gonna go’ it just, it was instantly in my brain that she doesn’t love me, she lied for a year and a half. She doesn’t know anything … It was all just lies … the word lie just went through my head and I’ve just grabbed it and spun and bang, I just snapped”;
(e) “… Then she said ‘don’t hurt me’ and I don’t remember nothing after that. All I remember is being lied to for a year and a half”;
(f) “I stabbed her two more times and I stood back and I didn’t see any blood then I moved her and seen the wound”; and
(g) “She really did believe that she loved me but I didn’t believe her … She used all me money, ‘no one’s got ice, I can suck a dick … for ice Ricky. And Ricky will feed me, Ricky will give me cigarettes, Ricky will give me nice things, Ricky will say nice things, and then I’ll get paid again and I’ll run away from Ricky and get on the ice again and I’ll spend all my money in 2 days and I’ll ring Ricky again’. Yeah, I done it because I enjoyed her company. With me she was a good person, off the ice. Cooked me some mad mash potato, you know. I’ve seen a different Carmen. I didn’t see the street Carmen”.
In short, you admitted to stabbing Ms Niklaus multiple times, after she had started punching herself and threatening to leave the caravan park.
Post‑mortem investigation
A forensic pathologist carried out a post‑mortem examination of the body of Ms Niklaus on 8 December 2021. The following injuries were identified:
(a) stab wound to the left lower chest associated with injury to the skin, chest wall, bony part of the left rib, left collapsed and perforated lung, and incision (cut) of the anterior gastric serosa (outermost layer of the stomach wall). This wound was measured to be greater than 10 cm deep and is directed from front to back;
(b) stab wound of the left flank associated with injury to the skin, lateral abdominal wall, bony part of left rib and bleeding into the colon;
(c) stab to the left lateral abdomen (side of abdomen) associated with injury to the skin, abdominal wall and internal haemorrhage and a cut of the small bowel;
(d) the left flank and left lateral abdomen wounds caused massive internal bleeding, affecting the internal organs which were described as showing signs of violence or injury (liver, mesentery colon, jejunum and ileum, stomach and peritoneal cavity). Both of these wounds were measured to be 20 cm deep and directed from left to right upwards;
(e) cut to the right middle finger associated with injury to the skin tendon and bone (defensive injury); and
(f) cut to the right and left thumbs associated with injury to the skin and layer beneath the skin (defensive injury).
The cause of death was ruled as stab wounds to the chest and abdomen.
Procedural history
On 7 December 2021, you were charged with the murder of Ms Niklaus.
You pleaded guilty following committal, a section 198B hearing that took place on 22 and 23 August 2022, and the listing of the matter for trial.
You were arraigned before this court on 22 November 2022 and again pleaded guilty to the offence of murder.
Victim Impact Statements
I received four Victim Impact Statements, being from Ms Niklaus’ father, Donald Niklaus, and her brothers Christopher Niklaus, John Niklaus and Paul Niklaus, all of which I have carefully considered. Ms Niklaus’ family members have, understandably, been profoundly affected by her death. Your actions have caused immense suffering to Ms Niklaus’ family, the reverberations of which will be felt for a long time.
Donald Niklaus, Ms Nikaus’ father, notes that the loss of a loved child will haunt him for the rest of his life. He stated that he has nights without sleep, days without eating, and has lost weight as a result of his daughter’s death. He feels he did not do enough to protect Ms Niklaus from the lifestyle she chose.
Christopher Niklaus told the court through his statement that he worries for his father, as his family lost their mother some 15 years ago and now have to face the overwhelming grief associated with the loss of their sister. He remembers receiving the initial phone call on the night of his sister’s death, and the difficulty of having to deal with social media, the media and the public during such a traumatic time. He notes these events have affected his ability to manage life’s challenges.
John Niklaus stated that the loss of Ms Niklaus has affected him in his professional and intimate relationships, and in every aspect of his life. He notes his closeness with his sister and misses her presence. Both John and Paul Niklaus express that Ms Niklaus’ death has also made them angry, as they struggle to comprehend how someone could murder their sister.
Paul Niklaus notes that his sister’s death has left him struggling to focus and function, being diagnosed with depression and requiring counselling and medication. He found it difficult to stay as close with his sister in the years immediately prior to her death, given her struggles with substance use. He wonders if he should have done more to help Ms Niklaus get the assistance she needed and whether life could have been different for her.
It is evident from these Victim Impact Statements that Ms Niklaus was loved by her family, despite and throughout challenging periods of her life. Her family members have been through significant grief as a result of her death.
Personal circumstances
You were born in Wangaratta in 1978, the eldest of four siblings. You have had a difficult life at times, but a generally good upbringing, and are from a caring family. You suffered an Acquired Brain Injury [‘ABI’] as a teenager when you were knocked unconscious in a fight, which caused you to fall and hit your head on the ground. You describe that everything changed then and you felt more angry and rebellious afterwards.
You left school in Year 8 and were ultimately ejected from the family home around the age of 14, due to your worsening behaviour. It is understood that you developed a fractured relationship with your family over the course of your life and have been largely estranged from them in adulthood.
You spent periods of time in Queensland in your adolescent years, later returning to the Wangaratta area. You committed burglaries as a teenager and ended up in custody at Parkville. You were later detained at Malmsbury, and then in prison at Pentridge, at age 17.
You have been employed in various roles for short periods of time, including building sheds with a local builder, cleaning houses, fruit picking and landscaping. You have also worked at a butcher shop and a service station. Your longest period of employment was for 12 months as a baker’s assistant in Western Australia. You have three children from a previous relationship and one grandchild.
You have Meniere’s disease, which affects your balance and hearing, and which worsens when under stress. Otherwise, you are in good physical health and report not being a heroin or ice user, but frequently smoking marijuana. I will more closely consider your mental health later in my judgment.
You presently work as a horticultural billet, undertaking gardening maintenance, at Ravenhall Correctional Centre. You have expressed a desire to work on your relationship with your children and to learn to control your emotions and anger levels.
Criminal history
You have a substantial criminal history spanning many years. Your criminal offending has occurred across three states, and includes a number of offences involving violence or threats of violence. You have served many terms of imprisonment. Briefly, some of the more relevant of your offences are these:
(a) In respect of charges relating to physical violence:
(i) charges of intentionally or recklessly causing injury in 1996, 2012, and 2014;
(ii) two charges of assault occasioning actual bodily harm in New South Wales in 2017;
(iii) charges of unlawful assault, in 1996, 2001, 2007 and 2012; and
(iv) a charge of common assault in New South Wales in 2014;
(b) In respect of charges involving threats of violence or stalking/intimidation:
(i) making threats to kill in 2011, 2012, and 2014;
(ii) threat to inflict serious injury in 2004, 2006 and 2014;
(iii) a charge of stalking and intimidating intending to cause fear, physical harm, in a domestic setting in New South Wales in 2017; and
(iv) a charge of using a carriage service to threaten in New South Wales in 2017; and
(c) Charges involving contravention of Family Violence Intervention Orders, both for persistently contravening a Family Violence Intervention Order in 2014, and for breaching a Family Violence Intervention Order in 1996, 2001, 2006, and 2012.
I note for completeness that you have committed:
(a) nine offences for criminal damage and eight offences for wilful/intentional damage to property or making threats to damage property;
(b) various non‑violent offences spanning many years, including burglary, trespass to property, breaking and entering, theft, bail offences, driving offences and minor offences; and
(c) thirteen offences for breaches of suspended sentence orders, as well as one offence respectively for breach of an intensive corrections order, failure to comply with an undertaking and breach of an adjournment order.
I note in particular the numerous prior convictions for breaching family violence orders and the propensity for violence you have demonstrated over the span of decades.
Your counsel conceded that your criminal history increases the weight to be given to specific deterrence in the sentencing exercise. It is also relevant to protection of the community and an assessment of your prospects of rehabilitation. However, your counsel noted that your previous offences do not approach the level of seriousness of this offence, noting that the longest sentence you have received is an aggregate sentence of 18 months’ imprisonment.
Medical reports
Occupational therapy reports
At the time of the present offence, you were approved for a National Disability Insurance Scheme [‘NDIS’] plan on 1 December 2021. As part of this plan you have total funded supports worth $92,962.27. You met the criteria to access the NDIS given your diagnosis of a traumatic ABI. The National Disability Insurance Agency has provided the court with documentation in relation to your service use.
The court was also provided with an occupational therapy functional assessment report completed by Mike Harris, dated October 2020. Mr Harris is an occupational therapist. The report notes that your primary diagnosis is an ABI suffered at age 14 when you were knocked unconscious in a fight at school and fell, hitting your head, and your secondary diagnosis is Meniere’s disease. Mr Harris assessed your current functional capacity, including capacity to perform daily living skills at home and in the community. Mr Harris noted:
Due to the combination of Ricky’s head injury (changes in personality, emotional and impulse regulation) and his exposure to threatening environments in prison, he is in a chronic state of fight/flight, struggling to control his impulses to protect himself from perceived threats.
Further, Mr Harris stated that the damage you sustained to your pre‑frontal cortex as a young man has resulted in you becoming “impulsive, reactive and ‘unfiltered’; often leading to confrontation and relational instability”. Mr Harris noted that you had a number of formal supports, including an NDIS coordinator, Careers Coach and Mr Harris himself. At the time of writing his report, Mr Harris recommended in‑home organisational support, community access, transport funding, fortnightly psychosocial occupational therapy, fortnightly appointments with an ABI and attachment/trauma‑informed Clinical Psychologist, plan management of your NDIS funds and the assistance of a Support Coordinator to ensure access to appropriate services and support. Mr Harris also stated:
Ricky presents as neuro‑typical from an intellectual perspective, though he has never completed a cognitive assessment. When in a stable emotional state (not hyper‑aroused/anxious/reactive) he is able to maintain focused attention, organise himself, use the features of his mobile phone, seek out and process information effectively.
Ricky is able to solve practical difficulties in his daily life; however he struggles to resolve social difficulties, often becoming irritable, socially inappropriate, passive aggressive (blocking a number), verbally or physically aggressive (see ’Social Interaction’).
Mr Harris also provided a progress report dated 29 November 2021, having engaged with you from September to November 2021 under the auspices of the NDIS. According to this report, in Mr Harris’ view, although you continued to present as motivated towards change, your behaviour indicated you were overwhelmed or not receptive to positive behavioural change at that point. It appeared to Mr Harris that you were using the sessions to vent and ruminate on accommodation, relationships and legal issues. Mr Harris noted that you disclosed a previous diagnosis in 2017 of Emotional Dysregulation Disorder, also known as Borderline Personality Disorder. Mr Harris observed “strong traits reflective of this diagnosis” and believed at the time of writing that “the diagnosis of an ABI, Meniere’s Disease and Anxiety/Depression does not fully capture [your] complex presentation and personality disorder traits”.
I note that Mr Harris’ reports were not prepared for court purposes, but in relation to your NDIS assessment.
Psychological reports
A report by psychiatrist Dr Susette Sowden dated 16 November 2021 has also been provided to the court. Again, this letter was not prepared for court purposes, but to support your application for further funding of your NDIS plan for psychological services, prior to your offending. Dr Sowden reported that as at the date of her letter, you had attended two sessions with her through the auspices of the NDIS. She stated:
I am of the opinion that he would benefit from educational & developmental and screening neuropsychological psychological assessment for an ABI and for his cognitive functioning and nature and severity of his functional impairment.
Dr Sowden stated that you were likely to have a clinically significant anxiety disorder and noted that you admitted to multiple experiences and symptoms suggestive of obsessive‑compulsive disorder. Moreover, in her view, you demonstrated an elevated level of suicidal ideation that, in combination with your mood disturbance, put you at increased risk for suicidal or self‑damaging behaviour.
Dr Sowden also observed in her letter that your clinical scale elevation “suggests that [you are] experiencing a moderate to severe level of psychiatric distress and impairment in one or more areas”. Further, she stated that “[t]his distress appears to be manifested in mood disturbance, anxiety, somatization, character pathology, paranoia, and psychotic symptoms”. Despite this, Dr Sowden does not give a formal diagnosis in her letter.
I note that the authors of these reports were not called to give evidence at the hearing of your plea. Updated reports or expert materials post‑dating your offending and speaking as to any compromised mental health considerations were not provided.
Verdins and mental impairment
I accept, as was submitted, that at the time of committing the offence, you were under great strain due to pending homelessness and the loss of your NDIS‑provided case worker. I also accept that you suffer from an NDIS‑recognised disability of a traumatic ABI that on some level impacts your mental functioning.
Reliance on R v Verdins[1] was advanced on your behalf in light of these circumstances. I therefore turn to a consideration of the applicability of the principles in that case. The six propositions are:[2]
[1](2007) 16 VR 269.
[2]Ibid 276 [32] (Maxwell P, Buchanan and Vincent JJA) (emphasis added).
Impaired mental functioning, whether temporary or permanent (‘the condition’), is relevant to sentencing in at least the following six ways:
1.The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2.The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3.Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4.Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5.The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6.Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.
Defence submissions on Verdins
Your counsel submits there are unique circumstances pertaining to you that are relevant to the assessment of your level of culpability. It was implicitly submitted that on the basis of the NDIS assessments canvassed above,[3] your diagnosis of a traumatic ABI constitutes a “mental disorder or abnormality” or “impairment of mental functioning” within the scope of “the wide variety of conditions” as contemplated in Verdins.[4] Further, your counsel argued that the opinion of your NDIS practitioners was that there was perhaps not only an ABI, but also factors such as depression, stress and anxiety, and a personality component to your presentation.
[3]See [46]-[54] above.
[4](2007) 16 VR 269, 271 [5]-[7] (Maxwell P, Buchanan and Vincent JJA).
Specifically, and as has been noted, your counsel relied on material that existed prior to the commission of the offence rather than preparing and filing a report subsequent to the offence. It was stated by your counsel during the plea hearing:
And to summarise what the debate is or the disagreement is, is that the material that we rely on before you in support of the engagement of Verdins type analysis, is the material that existed prior to the commission of the offence rather than the commission of a report subsequent to the offence. Nonetheless, in my submission, these are the matters, that is the matters that pre‑existed almost within a week or so of the commission of the offence provide an understanding and insight as to what was going on in Mr Williams’ mind.
In essence, it was submitted that based on the weight of the material, there was an undeniable connection between what occurred during the evening of 6 December 2021 and your alleged mental impairment, particularly given the comments, observations and inferences about you in the NDIS assessments were made or formed in the period immediately preceding the offending. Your counsel contended that I can be satisfied on the balance of probabilities that the psychiatric or psychological factors, as canvassed by Dr Sowden and in the NDIS documentation, existed at the time of the offending, and on that basis your traumatic ABI was likely to have significantly impacted you at the time of the offending.
In the written submissions filed on your behalf, it is submitted that principles one, three, four and five of Verdins are therefore engaged. Your traumatic ABI is said to be relevant to sentencing in that it may:
(a) reduce your moral culpability for the offending conduct, thereby impacting on the punishment that is just in all the circumstances and reducing the relevance of denunciation (principle one);
(b) moderate the weight to be given to general deterrence (principle three);
(c) moderate the weight given to specific deterrence (principle four); and
(d) consider that a custodial sentence would weigh more heavily upon you than it would a person in normal health (principle five).
Principles one and five were expanded upon in oral submissions. Counsel also raised principle six by submitting that the court should consider whether there is a significant risk that imprisonment would have a substantial effect on your mental health problems, and cause your mental state to deteriorate. In short, it was submitted that your level of disability is severe with respect to your ability to get along with people and participate in society. It was also submitted that you are socially isolated, and the brain damage that you sustained results in you becoming impulsive, reactive, and unfiltered, often leading to confrontation and relational instability, and thus requiring personalised and lifelong assistance.
I was invited to rely on the suite of materials before me, which purportedly evidence a decline in mental health, particularly in circumstances where you have a “hair‑trigger response” in situations of stress, a history of poor interpersonal skills, problems in relation to self‑control and difficulty in social interaction. Counsel submitted it would “be almost an absurdity” for these issues to not have some kind of nexus or bearing on the offending that lead to Ms Niklaus’ death.
Your counsel noted that:
… even if I fail to convince Your Honour that those provisions are engaged, my submission is the information that I submit and the materials before you, are nonetheless informative of the sentencing exercise.
Prosecution submissions on Verdins
The prosecution submitted that the materials before the court do not provide a sufficient evidentiary foundation to enliven principle one, and arguably principles two, three and four of Verdins.
The central reason advanced for the above submission was that the evidence provided about your state of mind in the weeks and months prior to the offence does not constitute “expert evidence to be rigorously scrutinised by the sentencing court”, as described by the Court of Appeal in Brown.[5] In the prosecution’s submission, the extent to which an offender’s mental functioning was relevantly impaired at the time of an offence should, as that case stands for, be determined on the basis of such evidence.
[5]Brown v The Queen [2020] 62 VR 491 [6] (Maxwell, Niall, Forrest, Emerton & Osborn JJA).
It was noted that Dr Sowden’s report is limited, given she was not consulted subsequent to the offence and was therefore unable to provide an opinion on how your degree of mental impairment and diagnoses had manifested and potentially contributed to your decision to murder Ms Niklaus. The prosecution submits there is a lack of expert evidence as to the causal connection between your level of mental impairment at the time of the offence and your decision to engage in the offending conduct. In written submission it was said that even if I were to find that the first limb was enlivened, the court may consider that the extent to which any allowance ought be made in that regard is largely offset by the offender’s substantial and relevant criminal history, and the corresponding need for community protection from a violent offender whose mental functioning is impaired.
In relation to principles two, three and four, the prosecution submitted it would be similarly difficult for me to make a finding that your illness should have a bearing on the kind of sentence that is imposed, or that the considerations of general and specific deterrence should be moderated given your level of impairment:
The reasons for that, I think, are largely borne out in what I’ve said about the application of the first limb, in that the evidentiary foundation for what we know about the offender now is insufficient and secondly, Your Honour, there is a degree of clarity in the offender’s presentation and explanation for what he’s done in the body worn camera footage of the Victoria Police member that first responded and in his interview later that night and that’s really the purpose for the Crown specifically tendering those materials as exhibits to be received on the plea, because in my submission, again, putting in the context that what I say is the insufficiency of the expert evidence about it, from what Your Honour can see as the finder of fact on plea, in my submission, highlights the need for further expert evidence and that is, he, the offender, appears to be lucid.
His words to the attending Victoria Police member were, ‘Murder. I killed her.’ He is not - and I’m not purporting to express an expert opinion from the Bar table, Your Honour, but I would submit that on any objective observation, he is not a man that was floridly psychotic in those moments. As to the application of the fifth limb, noting again that … the currency of the evidence as to the offender’s mental health is limited, Your Honour may consider that the fifth limb has some application on the totality of the evidence.
However, the prosecution conceded in written submission that it is open to me to find that the fifth principle of Verdins is enlivened here.
I will deal with the principles of Verdins in turn.
Analysis
Principle one
In Bausch v The Queen,[6] which concerned an appeal against the applicant’s sentence following a plea of guilty to one charge of dangerous driving causing serious injury and one charge of driving with an illicit drug present in his blood, the nature of the applicant’s ABI was discussed in the context of the first principle of Verdins. It was accepted, based on expert evidence, that the cognitive deficits resulting from the applicant’s ABI would have affected the applicant at the time of the collision, and that the failure to see the car in question could be attributed in part to this factor. The Court of Appeal held that this had diminished the applicant’s mental insight into his actions and thus, to some extent, his moral culpability for the collision.[7] I accept that in such circumstances, and with such evidence, the first principle in Verdins would clearly be enlivened in the case of an offender with an ABI.
[6](2019) 280 A Crim R 11.
[7]Ibid [39] (Ashley and Osborn JJA).
On the basis of the evidence before the court, I accept that you suffer from an ABI, and that this is a mental impairment that is capable of falling within the scope of principle one of Verdins. However, the inquiry under this limb does not stop there.
In O’Connor v The Queen,[8] Maxwell P stated (Priest JA agreeing):[9]
None of the Verdins sentencing considerations can apply unless there is specific evidence from an expert about:
(a)the nature of the impairment of the offender’s mental functioning;
(b)how the impairment affected, or was likely to have affected, the offender at the time of the offending; and/or
(c)how the impairment was affecting the offender at the time of sentence, or was likely to affect him/her in the future.
[8][2014] VSCA 108.
[9]Ibid [65] (Maxwell P, Weinberg and Priest JJA).
In R v Vuadreu,[10] the Court of Appeal emphasised that Verdins will not apply unless the evidence establishes a realistic connection between an offender’s mental condition and their offending.[11] Further, in R v Zander,[12] the Court of Appeal explained that cogent evidence of the posited connection is necessary:[13]
The principles of Verdins do not dictate the automatic mitigation of sentence in an offender simply because he or she has suffered or is suffering from a mental illness, however severe. Rather, Verdins requires scrutiny and assessment, based on cogent evidence, of the relationship between the mental disorder and the offending and other relevant matters.
[10][2009] VSCA 262.
[11]Ibid [37] (Ashley and Weinberg JJA), affirmed in Sikaloski v the Queen [2012] VSCA 130, [30] (Weinberg JA and Cavanough AJA).
[12][2009] VSCA 10.
[13]Ibid [29] (Nettle JA, Dodds-Streeton JA), affirmed in Sikaloski v the Queen [2012] VSCA 130, [31] (Weinberg JA and Cavanough AJA).
I note, therefore, the significant limitations of the materials provided by the defence in support of the application of the principles of Verdins generally.
I also refer to the following passage from Romero:[14]
A logical explanation for relevant conduct is unlikely to satisfy the burden of proof that it is a mitigating fact if there are other logical explanations available and no evidentiary material which renders one more likely than another. That is why cogent evidence, normally in the form of an expert opinion, is ordinarily necessary if the principles in Verdins are to be enlivened. A logical hypothesis advanced from the Bar table is not a satisfactory alternative. It would have been no more than guesswork to conclude that his conduct was materially affected by his disability.
[14]Romerov The Queen (2011) 32 VR 486, 491 [18] (Redlich JA, with whom Buchanan and Mandie JJA agreed).
Furthermore, specifically in relation to the first principle, in Langton v The Queen,[15] the Court of Appeal stated:[16]
The application of these principles demands a rigorous examination of the evidence. Where reliance is placed on the first principle, concerning moral culpability, the question for the Court is whether the evidence establishes on the balance of probabilities that the impairment of mental functioning contributed to the offending in such a way as to render the offender less blameworthy for the offending than would otherwise have been the case. This is generally (but not always) treated as an issue of causation, namely whether there is a causal link or connection between the impairment of mental functioning and the offending. But it may also be sufficient that there is a realistic connection between the two, without necessarily establishing causation.
[15]Langton (a pseudonym) v The Queen [2022] VSCA 79.
[16]Ibid [33] (Maxwell P, McLeish and Macaulay JJA) (emphasis added).
In the absence of reports that speak to the nexus between your mental impairment and your offending on 6 December 2021, and given the general requirement for an offender’s mental condition to be causally or realistically connected to the commission of the offence, I am unable to find that principle one of Verdins applies. In my opinion the court would be engaging in a form of guesswork to conclude, without such cogent evidence, that your conduct was causally connected to your disability, or, to meet the lesser threshold, that there was a “realistic connection” between the two. I am not satisfied that there can be any substantial reduction of your culpability owing to your impaired mental functioning, on the basis of the limited nature of the evidence placed before the court.
Further, I note that you appeared lucid following the events, and identified that your actions constituted murder for which you were likely to go to jail. This, along with your demonstrations of insight and statements since the offending conduct, also strengthens my view that you largely understood (and continue to understand) the consequences of your actions. Predominantly, however, I am unable to engage in further scrutiny and assessment of any such connection, without cogent evidence post‑dating your offending.
Principles two, three and four
I agree with the prosecution’s submission that there are similar difficulties with making a finding that principles two, three and four of Verdins are enlivened.
In terms of whether your mental impairment may have a bearing on the kind of sentence to be imposed and the conditions in which it should be served, whilst I note Dr Sowden’s view that you are at an increased risk for suicidal or self‑damaging behaviour, I do not consider that significant weight can be given to this factor such that it might change the nature of the sentence to be imposed.
Regarding any potential moderation to the considerations of general and specific deterrence under principles three and four, it is unclear how your impairment materially diminished your ability to reason and understand the wrongfulness of the conduct. Whilst it is not necessarily a precondition to the application of the third or fourth principle that there be established a nexus between the mental impairment and the offending,[17] I am not satisfied on the basis of the evidence before the court that your impairment makes you an inappropriate vehicle for either specific or general deterrence.
[17]A person suffering from a serious psychiatric illness or a mental impairment or abnormality is generally not an appropriate vehicle for general or specific deterrence, whether or not the illness played a part in the commission of the offence: R v Tsiaras [1996] 1 VR 398, 400; R v Verdins (2007) 16 VR 269, 271 [5].
Accordingly, I do not consider that the sentencing objectives of general and specific deterrence should be moderated or limited to any significant degree based on the evidence before the court. Despite this, I have considered your mental impairment as part of the broader mosaic of factors put to the court in mitigation.
Principles five and six
Consistently with the fifth and sixth Verdins principles, particular consideration must be given to the effect of any custodial sentence on a person with a mental health condition.[18] When there is a serious risk that a term of imprisonment will have a significant detrimental effect on an offender’s mental health, this will be a relevant factor when determining the appropriate sentence.
[18]See, for example, Atanackovic v The Queen (2015) 45 VR 179, 218 [154] (Weinberg, Kyrou and Kaye JJA).
Again, I emphasise that no contemporary evidence was put before me as to whether there is a serious risk of imprisonment having a significant adverse effect on your mental health. Nevertheless, the prosecution conceded in written submission that it is open to me to find that the fifth principle of Verdins is enlivened here.
I acknowledge that a custodial sentence may have a more burdensome effect on you than someone that does not live with a traumatic ABI, or the other mental health conditions Dr Sowden traverses in her letter, which are likely to interfere with your adjustment and functioning within a facility. I have taken her opinions and conclusions into account to a limited degree in moderating the sentence to be imposed.
Discussion
Sentencing factors
Section 5(2) of the Sentencing Act 1991 [‘the Act’] sets out a series of factors which a court must have regard to in sentencing an offender.
It is well accepted that the weight and emphasis given to any one factor by a sentencing court will vary according to the facts and circumstances of each case.[19]
[19]See Wong v The Queen (2001) 207 CLR 584, 612-613 [77]-[78] (Gaudron, Gummow and Hayne JJ); Markarian v The Queen (2005) 228 CLR 357, 373-375 [37]-[39] (Gleeson CJ, Gummow, Hayne and Callinan JJ); Muldrock v The Queen (2011) 244 CLR 120, 128-129 [18]-[19] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).
Maximum penalty
The maximum penalty for murder is life imprisonment. As a Category 1 offence, a sentence of imprisonment is mandatory unless any of the statutory exemptions in section 5(2GA) of the Act apply.[20] It was submitted by the prosecution, and I accept, that none of the circumstances relied upon in this case that would enliven any of the statutory exceptions.
[20]The Act, s 5(2G).
Standard sentence
Section 5(2)(ab) of the Act provides that a court must have regard to the standard sentence, if any, for the relevant offence.
The offence of murder is a standard sentence offence.[21] The standard sentence for murder is 25 years’ imprisonment.[22] Further, the court must fix a non‑parole period of at least 70 percent of the head sentence, unless it is in the interests of justice not to do so.[23]
[21]Ibid ss 5A-5B.
[22]Crimes Act 1958 (Vic), s 3(2)(b).
[23]The Act, s 11A(4).
The standard sentence represents “the sentence for an offence that, considering only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness”.[24] Section 5A(3) of the Act further provides:
(3) For the purposes of subsection (1)(b), objective factors affecting the relative seriousness of an offence are to be determined―
(a) without reference to matters personal to a particular offender or class of offenders; and
(b) wholly by reference to the nature of the offending.
[24]Ibid s 5A(1)(b).
I note, of course, that the standard sentence is but one of the factors relevant to sentencing that I must take into account,[25] and should not be prioritised or given more weight than other sentencing factors, but considered a legislative guidepost.[26]
[25]The Act, s 5B(2)(a).
[26]R v Brown [2018] VSC 742, [65]-[68] (Champion J).
In R v Brown,[27] I concluded that the correct approach to take under section 5A(3) of the Act is for a sentencing judge to make an assessment of what objective factors causally affect the relative seriousness of the offence, complying with the prescribed language and structure of the legislation.[28]
[27]R v Brown [2018] VSC 742.
[28]Ibid [99].
In this case, I am also of the view that no matter personal to you is so causally connected to your offending such as to become an objective factor affecting the relative seriousness of the offence. Whilst it is relevant that you have a traumatic ABI and likely other diagnoses, such as Borderline Personality Disorder,[29] Meniere’s disease and anxiety/depression, I do not find these factors have such a causal connection to the offending that they may be viewed as fundamental qualities of the offence, such that they should be considered in assessing its objective seriousness. I reach this conclusion given the lack of evidence dating after the incident that speaks to your mental state at the time of the offending.
[29]In Brown v The Queen [2020] 62 VR 491, Maxwell, Niall, Forrest, Emerton and Osborne JJA held that a person diagnosed with a personality disorder should be treated as in no different position from any other person who seeks to rely on an impairment of mental functioning as mitigating a sentence in one or other of the ways identified in Verdins.
The seriousness of the offending
Murder is the most serious offence brought before the courts. The following discussion concerns how your offending fits within a wider range of offences of this kind. In making conclusions about this matter, I do not seek to diminish the tragedy of Ms Niklaus’ death.
It should be noted, as a primary factor, that the prosecution accepts that you acted recklessly in killing Ms Niklaus. Your counsel concedes, nevertheless, that your offence remains very serious when its objective factors are considered.
The prosecution submits that your offending ought to be assessed as falling above the middle of the range for the offence of murder. This is asserted on the basis of various factors, namely:
(a) the nature of the relationship between you and Ms Niklaus at her time of death — you were previously in a de‑facto relationship and continued to have a relationship involving a degree of trust and intimacy;
(b) a Family Violence Intervention Order made in favour of Ms Niklaus in January 2021, in which you were the named respondent;
(c) Ms Niklaus’s state at the time of the offence — namely that she was vulnerable, drug‑affected and defenceless, having previously passed out in the taxi, and then having showered and being naked with you on the bed;
(d) there was no physical altercation precipitating the stabbing and conversely it appears that the circumstances resulting in the violence appear to be rooted in your frustration with Ms Niklaus over the course of your relationship with her and her perceived “lies” and threats to leave the caravan park;
(e) the kitchen knife used in the murder was around 20 cm length and Ms Niklaus was stabbed three times to her lower left chest, left flank and left lateral abdomen. Two of these stab wounds were measured to be 20 cm deep;
(f) you had the opportunity to stop the attack after it began;
(g) Ms Niklaus’ death was not instant, but somewhat protracted; and
(h) you did not attempt to render aid to Ms Niklaus.
However, the prosecution accepts that your offending appears to have been spontaneous and you cooperated with attending police, making no attempts to conceal the murder. These two factors reduce the seriousness of this offending, to a degree.
Your counsel submits that this offence should be regarded as mid‑range for the offence of murder based on the following objective factors:
(a) the absence of any factors pointing to pre‑meditation or planning — Ms Niklaus sought you out on the day through texts and phone calls, resulting in you paying for her taxi and taking her in;
(b) the infliction of the knife wounds does not appear to have been prolonged; and
(c) there were no attempts by you to conceal the crime — you immediately sought assistance for the victim, such as by approaching the caretakers of the caravan park who called an ambulance and provided first aid.
Your counsel has therefore submitted that the objective gravity of the offending is close to the objective gravity of the standard sentence for murder of 25 years.
This is, clearly, a grave offence. I accept that you committed this offence without premeditation, and likely in an angry and frustrated state, and that you appear to have immediately accepted responsibility and complied with police. However, this was a repeated assault; it was not fleeting, and the depth and number of wounds point to the deliberateness of the acts.
Ms Niklaus was highly vulnerable in her state, and it is an aggravating factor that she was your ex‑partner with whom you clearly maintained some relationship and claimed to love. Taking these objective factors into account, I assess your offending as a mid‑range example of the offence of murder.
Your culpability and degree of responsibility
Pursuant to section 5(2)(d) of the Act, a court must have regard to an offender’s culpability and degree of responsibility.
The prosecution submits that you stabbed a defenceless woman, suddenly and deeply, three times in the chest and abdomen, and that you chose to stab her again after stabbing her once, and telling her that you would not hurt her. It was submitted that your culpability, and the degree of recklessness as to the risk of serious injury or death, is objectively of a high order.
Conversely the following matters have been raised in mitigation by defence on your behalf:
(a) you waited for police at the crime scene;
(b) you cooperated fully with police in their investigation;
(c) you made full admissions at the earliest opportunity (being at the scene and in the recorded interview on the night of the offence);
(d) you offered to plead guilty to manslaughter at an early juncture (being prior to the matter being committed to the Supreme Court);
(e) you entered a plea to reckless murder at a relatively early stage in the proceedings, immediately following the section 198B examination; and
(f) you have demonstrated genuine remorse.
As I have discussed,[30] I have not been provided with expert evidence to help explain any causal connection between your diagnosed illnesses and why you experienced a sudden outburst of extreme physical violence.
[30]See [77], [78], [84] above.
This attack was grievously inappropriate and an overwhelmingly disproportionate response to the situation you may have perceived. At the time you stabbed her, you were extremely reckless as to whether you were going to kill or cause a really serious injury to Ms Niklaus, particularly given the number and depth of her stab wounds. I accept that your actions after the offending conduct, however, were relatively cooperative and demonstrate a level of insight into the gravity of your actions. For these reasons, and given my earlier comments surrounding the first principle of Verdins,[31] I find your culpability and degree of responsibility to be within the middle range.
[31]See [70]-[77] above.
Guilty plea
You pleaded guilty following committal, a section 198B hearing and the listing of the matter for trial. As the prosecution has submitted, it is not a plea at the earliest opportunity, but still has considerable utilitarian value. The prosecution concedes that you are entitled to an appropriate reduction in the sentence imposed.[32]
[32]The Act, s 5(2)(e).
I agree that an early guilty plea ensures the police are able to conduct their investigations efficiently, the family of victims are spared the trauma of drawn out proceedings and trial, and the court’s time and resources are saved. It is appropriate that you receive the benefit of that early plea.
Remorse
Remorse is recognised as a mitigatory factor in sentencing.[33]
[33]Ibid s 5(2C).
It has been submitted on your behalf that your remorse for killing Ms Niklaus has been expressed from an early stage in various ways. It is accepted that by virtue of those expressions, your cooperation with police, your admissions in interview, and the plea of guilty, you have demonstrated a degree of remorse.
I also accept that you acknowledged your wrongdoing in your phone calls to both your son and case worker immediately after the incident. I also do not doubt that you genuinely cared for Ms Niklaus, despite the relationship being generally tumultuous.
In another significant way, you have clearly accepted wrongdoing, as evidenced in a letter addressed to the court, wherein you said:
I RICKY JOHN WILLIAMS HEREBY TAKE FULL RESPONSIBILTY FOR THE DEATH OF CARMEN NIKLAUS ON THE SIXTH DAY OF DECEMBER 2021. WITH GREAT SADNESS AND OVERWHELMING GUILT, I CAN NOT EVEN BEGIN TO COMPREHEND THE HURT, PAIN AND TOTAL HEARTACHE THAT I HAVE PUT CARMEN’S FAMILY, FRIENDS AND COMMUNITY THROUGH. THERE ARE NO WORDS THAT I COULD EVER USE TO THOSE WHO KNEW AND LOVED CARMEN TO EXPRESS JUST HOW TRULY SORRY I AM TO CARMEN AND TO ALL THAT HAVE BEEN IMPACTED AND AFFECTED BY MY UNTHINKABLE ACTIONS, FOREVER AND ALWAYS R.I.P. CARMEN
However, it should be acknowledged that your actions immediately after stabbing Ms Niklaus do point to a degree of self‑interest, as opposed to concern about Ms Niklaus’ wellbeing or the gravity of your actions. You were captured on the CCTV footage walking in and out of the cabin repeatedly and making numerous phone calls to your son and the social worker. During those calls, your comments were directed towards your own likely fate; you made comments on the phone to your social worker such as “I’ve got to deal with RJ” and to your son such as “Buddy something really bad has happened. Carmen’s on my living room floor. She has been stabbed” and “I am so sorry buddy. I am going to be away for a long time”. I note in these statements you do not acknowledge your own role in Ms Niklaus’ death or concern for her. You also did not take immediate or prompt action to call the ambulance yourself or to actively assist your neighbours in attempts to care for Ms Niklaus.
I note also in your record of interview with police you are critical about Ms Niklaus, stating that you “lost your shit”, that there were “too many fuckin’ lies. She wasn’t there to be with me; she just had nowhere else to go again” and that she was “just a fuckin’ nightmare of a person”. At the same time, you expressed that you cared for her, closing her eyes after her death and kissing her on the cheek before leaving the cabin. The evidence of your remorse is therefore somewhat mixed.
Current sentencing practices
Section 5(2)(b) of the Act requires me to have regard to current sentencing practices for your offence at the time of passing sentence. I have had regard to current sentencing practices for the offence of murder to which you have pleaded guilty, including the following cases raised by the parties.
Firstly, your Counsel have highlighted the cases of R v Cameron,[34] R v Robertson,[35] DPP vLedlin,[36] R v Coghlan[37] and DPP v Treasure[38] for my consideration.
[34]R v Cameron [2020] VSC 334.
[35]R v Robertson [2019] VSC 145 (‘Robertson’).
[36]DPP vLedlin [2022] VSC 826 (‘Ledlin’).
[37]R v Coghlan [2019] VSC 543 (‘Coghlan’).
[38]DPP v Treasure [2020] VSC 402.
Cameron involved intimate partner violence, wherein the accused was sentenced to 29 years’ imprisonment with a minimum non‑parole period of 23 years after murdering the victim in her home by stabbing her numerous times with a kitchen knife following a brief relationship. The accused also made attempts to conceal the offence afterwards and provided false accounts to police. I consider this to be, objectively, more grave offending, demonstrating a higher level of violence and lack of remorse compared to the present.
Robertson involved different circumstances to the present. The victim in that case told the defendant their relationship had ended. The defendant became enraged later that night. He went to the loungeroom and picked up a heavy dumbbell, then assaulted the victim whilst she was sitting up in bed. Her blunt force injuries were considered extreme and horrific. The murder was intentional and not reckless. The defendant was sentenced to 24 years’ imprisonment with a non‑parole period of 19 years. Similarly, the offender in that case made early admissions, was cooperative with police and entered an early guilty plea. I regard Robertson as involving a higher degree of violence and lacking the Verdins considerations that are present in this case. I also note that Robertson was still a young man when he committed his offending.
In Ledlin, another young offender (aged 19 at the time of the offence) was sentenced to 22 years’ imprisonment, with a non‑parole period of 16 years’ imprisonment for the stabbing murder of a young male victim, following an altercation where the defendant and his friends set upon the victim in a public place. He did not plead guilty to the offence committed. I consider the facts of this case to be broadly different. You do not have the benefit of being a young man, as he was, and with a very disrupted youth, and that case involved a single stab wound committed quickly during a street affray. There is also of course, the significant aggravating feature present here that you and Ms Niklaus were former partners and, at the time of her death, a final Family Violence Intervention Order was in place against you.
Coghlan also involved very different circumstances, namely two men intending to commit an armed robbery but ultimately stabbing the deceased multiple times. Both received sentences of 20 years’ imprisonment with 14 years non‑parole.
The prosecution has raised the cases of Brown v The Queen[39] and DPP v Pan.[40] I largely agree with the prosecution’s submissions in relation to these cases, namely the facts of Brown v The Queen involve some circumstances of aggravation that are not present in the instant case, including the offender’s intention to kill the victim, the protracted and brutal nature of the killing, the treatment of the victim’s body after her death, and the attempts to cover up the crime. Further, Pan involved the shooting death of an associate of the offender, with the offender being 19 years old at the time of the offence, though with a relevant criminal history.
[39]Brown v The Queen (2019) 59 VR 462.
[40]DPP v Pan [2022] VSCA 98 (‘Pan’).
Whilst none of the above cases are completely analogous to the present circumstances, I have taken them into account in my sentencing decision.
Sentencing purposes
General deterrence, denunciation and punishment
There is no question that considerations of general deterrence, denunciation, and just punishment are primary sentencing purposes in a case concerning the murder of an intimate partner.
The courts must strongly denounce this type of conduct as completely unacceptable within our community. I note the observation of Osborn J in the case of R v Davey,[41] wherein it was said:[42]
It is necessary that a continuing message be sent to persons in emotional relationships that the resort to violence against a partner will not be accepted either by the community or the Court. The sentences of this Court must reflect both the sanctity of human life and the total unacceptability of weak and vicious behaviour towards those said to be the objects of love.
[41]R v Davey [2006] VSC 173.
[42]Ibid [25] (Osborn J).
At the time of her death, you maintained a relationship with Ms Niklaus, and clearly had been in an up‑and‑down intimate de‑facto relationship in the past. It does not appear controversial to say that Ms Niklaus would have expected love, support and compassion from you, particularly given you had offered her assistance in the past. This is further emphasised by her vulnerability at the time, being drug‑affected, and given you were both naked inside a domestic setting, ostensibly settling down for the night to watch a movie. This offending must be strongly denounced.
In terms of general deterrence, this remains important in sentencing you. Individuals, particularly men, must be deterred from losing their tempers and committing heinous acts of violence upon their domestic partners.
In my view, given my finding surrounding Verdins above,[43] the sentencing purposes of general deterrence, denunciation and just punishment are all factors which must be given appropriate weight in the assessment of the sentence to be imposed in your case.
[43]See [77]-[79], [84]-[85] above.
Specific deterrence, rehabilitation and protection of the community
The material placed before the court does not address your prospects of rehabilitation in any significant way. Your extensive criminal history is also indicative of your likely poor prospects of rehabilitation. That observed, I nevertheless do not regard these prospects for rehabilitation as closed.
Whilst it has been submitted on your behalf that, given your ABI and other mental health struggles, you are not an appropriate vehicle for specific deterrence, the prosecution noted difficulties with the evidence that make it troubling for me to moderate the weight I must give to this factor in sentencing you.
The nature of this offending and your extensive criminal history require that I take into account the protection of the community when sentencing you. However, in the circumstances of having committed the offence of murder you will receive a significant sentence of imprisonment as a result of which you will be much older by the time you are released from custody. Whilst the protection of the community is still an important factor in my determination of your sentence, I have also taken this into account.
The principle of parsimony in section 5(3) of the Act must also be applied, and the sentence must not be more severe than is necessary to achieve the purpose or purposes for which it is imposed. In this regard, I accept that limb five of Verdins is enlivened. I have applied a slight moderation of your sentence on the basis that your mental impairments would render you more susceptible to the stress and other rigors of the custodial environment.
Sentence
Ricky John Williams, having taken all of these factors into account, I sentence you to be imprisoned for 24 years.
Taking into account the desirability of giving you a lengthy parole period, I order that you serve 18 years before being eligible for parole.
Section 6AAA declaration
I have imposed on you a less severe sentence than I otherwise would have because you have pleaded guilty to this offence. Pursuant to section 6AAA of the Act, I declare that but for your plea of guilty, I would have sentenced you to 28 years’ imprisonment with a non‑parole period of 22 years.
Pre‑sentence detention
I further declare that that you have served 529 days of pre‑sentence detention, not including this day.
Disposal order
The prosecution has sought a disposal order under section 78(1) of the Confiscation Act 1997 for certain items involved in this offence or found at the crime scene, to allow for their testing or analysis and ultimate destruction. I can indicate that this order will be made and provided to the parties in due course.
0
17
0