Stensholt v The Queen

[2014] VSCA 171

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0064

LEAH MARIE STENSHOLT
	Applicant
v
THE QUEEN	Respondent

- - -

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE
PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

- - -

JUDGE:	REDLICH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 July 2014
DATE OF JUDGMENT:	1 August 2014
MEDIUM NETURAL CITATION:	[2014] VSCA 171
JUDGMENT APPEALED FROM:	R v Stensholt (Unreported, Supreme Court of Victoria, Justice Curtain, 24 March 2014)

DETERMINED ON THE PAPERS

- - -

CRIMINAL LAW – Sentence – Murder – Sentence of 20 years’ imprisonment with non-parole period of 16 years – Whether manifestly excessive – Applicant broke into victim’s home and killed her in context of domestic custody dispute with victim’s son – Intention to kill formed at point of entry into house – Applicant made taunting phone call to victim’s son in aftermath of murder – Limited weight to be given to remorse – Offending at upper end of lowest category of seriousness for the offence – Leave to appeal refused.

- - -

NO APPEARANCES BY LEAVE OF THE COURT	Counsel	Solicitors
For the Applicant	Victoria Legal Aid
For the Crown	Mr C Hyland Solicitor for Public Prosecutions

REDLICH JA:

1. The applicant seeks leave to appeal her sentence for one count of murder.  The victim was the applicant’s former mother-in-law.  The offence took place in the context of an ongoing dispute about custody of the applicant’s children, who were the victim’s grandchildren.

2. Following a plea in mitigation, the applicant was sentenced to 20 years’ imprisonment, with a non-parole period of 16 years.  The sole ground of appeal is that the sentence imposed was manifestly excessive, having regard to the applicant’s plea of guilty, other evidence of her remorse, the numerous matters available to her in mitigation and the range of appropriate sentences, as indicated by current sentencing practices.

   Circumstances of the offending

3. The victim, Carol McDonald (‘McDonald’) was the mother of the applicant’s former partner, Paul.  Paul and the applicant had three children together.  They had formally separated in 2008, though no court orders had been made in regard to custody of the children, and the custody arrangements between the two appeared to have been relatively cooperative and amiable.

4. In 2012, all three children lived with their father, with the younger two spending every second weekend with their mother.  This arrangement changed in early 2013, when the younger two began to reside with their mother on a permanent basis, visiting their father every weekend.  The new arrangement, though instigated by the applicant, was accepted by Paul.  The eldest child lived at all times with her father and his new partner.

5. The relationship between the applicant and Paul had commenced in 1999, and had pursued a somewhat volatile course, marked by Paul’s heavy drinking and a number of separations and reconciliations, until the formal separation.  When the applicant was pregnant with the first child of the relationship, McDonald and her husband (since deceased) loaned the couple $10,000 as a deposit for the purchase of a home.  Their concern about losing this deposit subsequently compelled them to place a caveat over the property in question – a matter which apparently became a source of considerable resentment for the applicant.  The $10,000 was ultimately paid back by the applicant at the time of the financial settlement attending the breakdown of the relationship.

6. In May 2013, the applicant was living in regional Victoria with her eldest daughter, who was the child of an earlier relationship, and the latter’s husband, along with the two youngest children of the relationship with Paul.  The house in which she lived was less than half a kilometre from the house in which McDonald resided.  McDonald had lived there for over 27 years, and had been living alone there since the death of her husband in 2006.

7. On Saturday 4 May 2013, following the arranged handover of the two youngest children to their father the day before, Paul contacted the Department of Human Services and the local police, seeking advice about custody.  It would seem that the two youngest children had expressed a preference to remain with him full-time, as they were ‘better looked after’ at his home.  As a result of the advice received, Paul contacted the applicant and informed her that he would be retaining the children, and seeking court orders the following Monday.  This angered and upset the applicant, who told Paul that he would suffer financially and that there would be consequences.  She then sought advice from the local police, and became increasingly angry and upset upon discovering that in the absence of formal court orders, Paul could not be forced to return the children.  Text messages were subsequently exchanged in which Paul reiterated the message that the children would not be returned.  The applicant told police that she woke on Sunday morning feeling ‘pretty angry’.

8. On Sunday evening at around 5:00 pm, the applicant arranged to meet a friend of hers, a man with whom she had recently commenced a relationship, at his house.  She arrived in a teary and upset state, informing her friend that she had had the ‘shittiest weekend ever’ and that she was angry that Paul had not returned the children.  After drinking six or seven stubbies of full-strength beer, she appeared to calm down and, having spent some time together with her friend, she departed at 8:30 pm. The applicant appeared to her friend to be fine, and not intoxicated, despite having consumed some alcohol.

9. After leaving her friend’s house, the applicant drove directly to McDonald’s residence, a distance of approximately 15 km. She arrived there at approximately 9:00 pm and knocked on the front door.  McDonald refused to let her in, so the applicant, according to her account to police, threw a small statue through a glass panel of the front door and then went to walk away.  She returned, however, entering through another door on the verandah and grabbing McDonald around the throat, pushing her down the hallway to the kitchen.  She forced her to the floor of the kitchen, and searched two kitchen drawers before locating a 20 centimetre Wiltshire Staysharp knife.  McDonald struggled with the applicant, attempting to get hold of the knife and severely wounding her hands in the process.  The applicant told police that McDonald cried out, ‘Please don’t,’ and ‘What have I ever done?’, and that the applicant replied, ‘Don’t fuck with me, you bloody evil bitch’.

10. The applicant stabbed McDonald once through the throat as she held her to the ground.  She withdrew the knife, washing the blood from it and leaving it in the kitchen sink, and then left, driving directly to her own home.

11. A neighbour, Anthony Bradshaw, heard yelling, crashing and screaming coming from McDonald’s house.  He came outside and saw a Rav 4 drive away.  He called 000 as he walked towards the house and, upon entry, discovered McDonald lying in a pool of blood on the kitchen floor.  He fetched a neighbour, Karen Rose, who was trained as a nurse.  The latter administered CPR for 25 minutes until the ambulance arrived, whereupon it was established that McDonald was dead.

12. In the interim, the applicant had returned home, covered in blood, and screaming, ‘I killed the fucking witch.  Nobody thought I would do it, but I did.  Fuck them, I hate the McDonalds’.  In reply to her eldest daughter’s question, ‘How could you do this?’, she replied, ‘I slit her throat like a lamb’.  At 9:04 pm, the applicant’s eldest daughter rang the police and asked them to attend.  The applicant then rang Paul and left a message for him, saying, ‘You’d better answer your phone, I’ve got some news for you. Answer.’  She then called again, saying, ‘I’ve just killed your fucking mother and you’re next.  I’m coming for you’.  She taunted him, saying, ‘Ring your mother.  You won’t get her, I’ve just killed her’.  Paul did indeed attempt to call his mother, and upon receiving no response called the police and informed them of what the applicant had said.  When he attempted to ring his mother again, the phone was answered by Karen Rose, who informed him that McDonald was dead.

13. The applicant also phoned the police and advised them that she had killed McDonald.  She contacted two friends, one an off-duty policeman, Senior Constable David Cosgriff.  She told him what had happened, and he later came to the house.  Another friend, Jillian Marshall, also came to the house.  The applicant told her that she had killed McDonald with a knife; when asked if she had gone to her place with the intention of doing so, she answered, ‘No, no’.  At approximately 9:47 pm, police attended.  The applicant admitted to them that she had killed McDonald and showed them the clothing she had been wearing at the time.  She was placed under arrest and conveyed to the police station, where she was interviewed shortly after midnight.  She again admitted that she had killed McDonald, telling the police that she had knocked on the door, initially received no answer, and then suggested, when McDonald appeared, that the two of them have a cup of tea together.  When McDonald refused, the applicant told police that she became angry and threw a statuette through  the door, then entered through another door on the verandah and grabbed McDonald by the throat.  There is no need to describe, again, what occurred thereafter.

14. In the police interview, the applicant said that she had gone to McDonald’s house because, ‘She’s the one that started it years ago, making out that I was crazy’.  She went on to give the police an account of what had happened over the years:  that her husband had been an alcoholic, that she had lived in a half gutted house with no money and that she had repaid the $10,000 – despite all of which, Paul was still able to take the children.  She told the police that she had tried to play fair, but that she was an ‘absolute sucker’.  She told police in a subsequent interview that as she drove to McDonald’s house she was thinking that she was going to kill her, although she could not say what had caused her to come to the decision.  She later resiled from this statement.[1]  When asked if McDonald had done anything to provoke her, she answered, ‘No, just her little laugh’.  She emphasized, in both police interviews, the sense of grievance that she felt towards the deceased and her ex-partner.  She also said that she was sorry for ruining the children’s lives, and the many other lives that would be affected by her actions.

    [1]R v Stensholt (Unreported, Supreme Court of Victoria, Curtain J, 24 March 2014) (‘Reasons’) [37].

15. In sentencing the applicant, the sentencing judge had regard to the fact that, according to one psychiatric assessment, the applicant suffered from a borderline personality disorder, which would have impaired her ability to make rational judgments under stress.[2]  The sentencing judge proceeded on the basis that the Verdins principles applied, to a degree.[3]  She noted also the applicant’s history of self-harm and depressive episodes, her difficult background, and her expressions of remorse for the offending.[4]  Her Honour found that the killing was not planned or premeditated.[5]

    [2]Ibid [32]. See R v Verdins (2007) 16 VR 269, 276 [32].

    [3]Reasons, [37].

    [4]Ibid [43].

    [5]Ibid [37].

    The application for leave to appeal – manifest excess

16. The applicant submits that the sentence imposed is outside the range reasonably open to the sentencing judge.  First, it is argued that the reductions in the head sentence and non-parole period reflecting the applicant’s plea of guilty – reductions of 13% and 16% respectively – do not constitute the ‘significant discount’ to which the applicant is entitled.[6]  It is submitted that this is a case in which a greater than usual discount for the utilitarian benefit of the plea is warranted, because of the ‘other very significant benefit [which] can be seen to flow from the plea’.[7]  This benefit, it is argued, is the fact that the early plea prevented the family of the victim from having to endure the trauma of giving evidence at either a committal hearing or a trial, and from having the resolution of the matter delayed until a trial could be held.

    [6]In accordance with the principles enunciated in Phillips v The Queen (2012) 222 A Crim R 149.

    [7]Ibid 158-9 [36].

17. In her careful sentencing reasons, her Honour noted that a significant discount was appropriate for the applicant’s plea of guilty.[8]  She accepted also that the early plea was indicative of genuine remorse, and facilitated the course of justice.[9]  The sentence reflects that appropriate weight was indeed given to these matters, and an appropriate discount applied.

    [8]Reasons, [39].

    [9]Ibid.

18. It must also be borne in mind that there were a number of aggravating factors present in this case which rendered the sentence imposed appropriate.  The murder – rightly characterized by the sentencing judge as ‘cruel, callous and vindictive’[10] – occurred in the context of a custody dispute in which the victim was not directly involved.  There had been no contact between the applicant and the victim for some years prior to the murder.  Essentially, the victim was killed as a kind of punishment for her son, the applicant’s ex-partner, and as a result of accumulated resentment on the applicant’s part toward her ex-partner’s family.  The applicant forcibly entered the victim’s home, at night, in circumstances where the victim was widowed, living alone, and was physically small of stature, rendering her vulnerable to an attack by the applicant.  Despite the victim’s pleas, she was forced down the hallway and onto the floor of the kitchen, where she was stabbed through the throat with a knife the applicant found in a kitchen drawer.  The victim suffered serious defensive injuries during what must have been a terrifying struggle.  The amount of force necessary to cause the injury which killed the victim was ‘at least severe’.[11]  Further, the phone call to the applicant’s ex-partner, in which she gloated over the murder of his mother and told him that he was next, constitutes a significant aggravating feature, notwithstanding the sentencing judge’s finding that this conduct was at least partially informed by the operation of the applicant’s borderline personality disorder.[12]

    [10]Ibid.

    [11]Ibid [21].

    [12]Ibid [36]–[37], [39].

19. The applicant submits that a more substantial reduction in sentence was necessitated by the genuine remorse exhibited by the applicant.  Although her Honour did make reference, in her sentencing remarks, to the applicant’s immediate acceptance of responsibility, her full and frank admissions, the content of her record of interview and her apology to the McDonald family as evidence of her genuine remorse, her Honour did not refer to the statements that the applicant made to friends of hers in the immediate aftermath of the murder, in which she expressed her remorse for the murder, or to the statements of similar content made during psychiatric assessments.  The applicant suggests therefore that the full extent of the applicant’s remorse was not given adequate weight by her Honour, and that a very substantial reduction in sentence was in fact warranted.

20. The fact that her Honour did not explicitly refer to every single expression of remorse by the applicant does not detract from the fact that she found her to be genuinely remorseful, and sentenced her upon that basis.[13]  Her Honour also correctly found, however, that there was ‘very little by way of expressed remorse in the immediate aftermath of the murder’.[14]  The phone call made by the applicant to her ex-partner in the immediate aftermath of the murder – though informed to a degree, as noted above, by her mental condition – was the very opposite of remorseful.

    [13]Ibid [39], [43].

    [14]Ibid [39].

21. Finally, the applicant argues that the sentencing judge did not give appropriate weight to the mitigating factors present in this case, being that the murder was unplanned and spontaneous, and occurred against a backdrop of mental illness, such that the Verdins principles were enlivened, and a difficult personal background;  that the applicant had only one minor prior conviction; that she immediately accepted responsibility for her offending, making full and frank admissions to police and cooperating entirely with their investigations;  that she has good prospects of rehabilitation, a low risk of reoffending, and was shown, via testimonials from colleagues and friends, to have been seen as a person of good character who was held in high regard; and that her personal circumstances would render imprisonment more burdensome for her.  The applicant refers to a number of cases said to contain comparable sets of facts, with lower sentences attached, in support of the contention that the sentence is manifestly excessive in light of the above mentioned factors in mitigation.

22. Each of the mitigating factors referred to by the applicant was referred to, and given due weight, by the very experienced sentencing judge.[15]  Further, contrary to the applicant’s submission, the cases referred to by the prosecutor during the plea hearing involving murder by stabbing without pre-planning do not demonstrate that the sentence imposed in this case was significantly outside the appropriate range, though they do suggest that it sits at the higher end of that range.  This Court has emphasized time and again the limitations on the use of comparable cases for the purposes of establishing an appropriate sentence in any individual case.[16]  Every single human situation is unique, and the sentencing judge’s instinctive synthesis involves a distillation of numerous individual factors into an appropriate head sentence and non-parole period.  There are factors present in this case which explain the somewhat higher sentence than that generally imposed for a spontaneous stabbing involving no pre-planning.  Her Honour, in what could be regarded as a merciful finding, given the evidence that the applicant had previously contemplated killing the victim, accepted on at least the balance of probabilities that the intention to kill was formed at the time that the applicant went to the second door on the verandah, grabbed McDonald by the throat and marched her down the hallway.[17]  The applicant thus had time to reconsider her murderous impulse as she forced her victim down the hallway into the kitchen, but she did not do so.  Nor did she do so when she failed to find a weapon in the first drawer that she searched; instead, she continued the search in another drawer, and used the knife found therein to kill the victim despite the latter’s struggles and entreaties.  As such, the applicant’s offending, while not pre-planned, could not be characterized as entirely spontaneous.[18]  While the lack of pre-planning places it in the lowest category of seriousness for the offence, therefore, it must fall toward the upper end of that category.

    [15]Ibid [23]-[43].

    [16]See Hudson v The Queen (2010) 30 VR 610, 616-9 [27]–[37].

    [17]Reasons, [37].

    [18]Cf, for example, the offending in Romero v The Queen (2011) 32 VR 486, or Bayram v The Queen [2012] VSCA 6, in which the offenders were sentenced to 18 years’ imprisonment with a 15 year non-parole period, and 16 years six months’ imprisonment with a 13 year, six month non-parole period, respectively. In Romero, a young man stabbed another at a party after the latter moved to shake his hand.  In Bayram, a man stabbed his wife during a domestic argument over a property settlement, in which he feared that the family home would be sold.  The other cases cited by the applicant involved a man murdering his lover in bed for reasons which never became known, though his level of mental illness was such that at one stage the prosecution contemplated a consent mental impairment hearing (Dutton v The Queen [2011] VSCA 287:sentenced to 16 years’ imprisonment, with a non-parole period of 12 years);  a man murdering his wife’s new partner after discovering him at the home in which his wife now lived, after he forced her at knifepoint to reveal the address (R v Neacsu [2012] VSC 388:sentenced to 17 years and 6 months’ imprisonment, with a non-parole period of 14 years and six months);  and a man stabbing his wife during an argument because he believed her to be unfaithful (R v Karageorges [2006] VSCA 49: sentenced to 18 years’ imprisonment with a non-parole period of 14 years).

1. It must be remembered that the exercise of the sentencing discretion does not involve the application of a mathematical formula.  Reasonable minds can, and do, differ as to their assessment of appropriate sentences for criminal offences.  For offences such as murder, which, as a matter of course, attract very substantial sentences, the variations between the sentences which might be imposed by different judges will necessarily be greater.  The maximum penalty for murder is life imprisonment. The median sentence imposed during the period 2007–8 to 2011–2 was 19 years.[19]  As such, and recognizing that there is no mathematical rule, one could expect a variance in the order of at least some three to four years in the sentences that different judges would impose for particular offending by a particular offender.  In order for an argument of manifest excess to be successful, the excess must be ‘obvious, plain, easily perceived or understood or unmistakable.  It must be so far outside the range of a reasonable discretionary judgment as to itself bespeak error.’[20]  In light of the circumstances of the offending, and the significant aggravating features present in this case, it is not reasonably arguable that the sentence imposed was manifestly excessive.

   [19]Sentencing Advisory Council, Sentencing Snapshot No 140: Sentencing Trends for Murder in the Higher Courts of Victoria (March 2013), 4.

   [20]Hanks v The Queen [2011] VSCA 7, [22].

2. The application for leave to appeal against sentence is refused.

   - - -