Victoria

Supreme Court

  • Re Kele [2018] VSC 159 (10 April 2018) – Supreme Court of Victoria
    Application for bail’ – ‘Breach of protection order’ – ‘Exposing children to domestic and family violence’ – ‘Perpetrator interventions’ – ‘Physical violence and harm’ – ‘Show cause

    Charges: Contravention of family violence intervention order x 1; Intending to cause harm or fear x 1; Unlawful assault x 2; Home invasion x 1; Aggravated burglary x 1; Theft x 2.

    Case type: Application for bail.

    Facts: The applicant was arrested for a family violence incident and an unrelated home invasion ([1]). The family violence incident occurred between the applicant and the victim, who were in a relationship for 4 years and had a 22-month-old son ([7]). The applicant accused the victim of changing his Centrelink account details and cheating on him. He grabbed the victim by her arms, pushed her to the ground, and hit her face, head and hands. The victim left the house and called for help with a payphone ([8]-[9]). The applicant pleaded guilty to one charge of assault and one charge of breaching a family violence intervention order.

    Issues: Whether bail should be granted. Because the home invasion charge involved the use of an offensive weapon, the applicant was required to show cause why his detention in custody is not justified, pursuant to s 4(4)(c) of the Bail Act 1977 ([23]).

    Decision and Reasoning: Bail was granted.

    Champion J considered the following factors in favour of the applicant:

    • the applicant’s youth, being 21 years old ([44]);
    • the applicant’s relative lack of criminal history ([45]);
    • limited instances of domestic violence ([46]);
    • the defence submitted that the likely penalty for the family violence incident would be higher than the time the applicant has already spent in custody ([48]);
    • the likely of up to 12 months delay in having the matter heard in the County Court ([50]);
    • the victim had moved to a secret location ([54]); and
    • if the applicant was remanded in custody, he would not be able to access a men’s behaviour change program ([54]).

    Champion J considered the following factors against the applicant:

    • the prosecution submitted that the penalty for the breach of domestic violence order would include imprisonment, because it was a serious breach and occurred in front of their child ([56]); and
    • the applicant did not have accommodation ([61]).

    Champion J considered that the applicant has shown cause why his detention in custody is not justified ([62]). His Honour remarked that while the level of violence towards the victim was unacceptable, it did not involve the use of a weapon, threats to kill or the infliction of significant physical injury ([64]).

  • Director of Public Prosecutions (Vic) v Walker [2018] VSC 83 (28 March 2018) – Supreme Court of Victoria
    Imprisonment’ – ‘Manslaughter’ – ‘People affected by substance misuse’ – ‘Perpetrator a battered woman’ – ‘Physical violence and harm’ – ‘Sentencing

    Charges: Manslaughter x 1.

    Case type: Sentence.

    Facts: The defendant and deceased were in a relationship for 2 years. There was a history of arguments, physical violence and cannabis and methylamphetamine use ([2]-[7]). On the day of the offence, the defendant and deceased argued for 3 hours, during which the defendant tried to leave the house, and the deceased dragged her back inside ([9]). The defendant stated in later interviews that the deceased would not let the defendant leave and goaded her into stabbing him ([25]). By the time the police attended, the defendant had stabbed the deceased ([11]-[12]).

    Issues: Sentence to be imposed.

    Decision and Reasoning: Hollingworth J imposed a head sentence of 7 years’ imprisonment with a non-parole period of 4 years ([50]).

    Her Honour had regard to the fact that the defendant had a limited criminal history and displayed some evidence of post-traumatic stress disorder and major depressive disorder ([40]). Her Honour also reduced the sentence for the defendant’s early guilty plea: the defendant was charged with murder but pleaded guilty to manslaughter a month before her trial was due to begin ([43], [50]). The defendant displayed remorse for her actions ([45]) and had begun counselling in custody ([46]).

  • Re Williams [2018] VSC 76 (23 February 2018) – Supreme Court of Victoria
    Application for bail’ – ‘Challenge to complainant's evidence’ – ‘Physical violence and harm’ – ‘Show cause’ – ‘Word-on-word case

    Charges: Intentionally causing injury x 3; Recklessly causing injury x 5; Unlawful assault x 3; Contravening family violence intervention order x 3.

    Case type: Bail application.

    Facts: The applicant and the complainant had been in a relationship for 10 years and had 2 children ([2]). The complainant alleged three events forming the basis of the charges. First, the applicant kicked and punched her, drove her to the hospital, dragged her from the car and left her at the entrance. Second, the applicant chased her in his car, dragged her out of her car, and punched her. Third, the applicant forced his way into her house, urinated on her, and punched her ([14]-[22]).

    Issues: The applicant was required to ‘show cause why his detention was not justified’, under s 4(4)(ba)(i) of the Bail Act 1977 (Vic).

    Decision and Reasoning: Bail was refused.

    The applicant argued that he was entitled to bail because he had stable accommodation, was willing to comply with strict bail conditions, and that the prosecution case was not strong because it relied mostly upon the complainant’s evidence. The applicant intended to challenge the credibility of the complainant ([24]). The prosecution argued that the applicant had a lengthy criminal history including violence, has shown disregard for previous family violence intervention orders, and has committed offences while on bail ([47]-[48]).

    Justice Champion at [57]-[59] discussed the applicant’s contention that the prosecution case is weak because it relies on the complainant’s evidence:

    … the prosecution points out that cases involving family violence frequently involve ‘word on word’ evidence and that this is often the very nature of these types of cases. The prosecution submits that this circumstance does not of itself warrant the prosecution case as being regarded as weak, or without merit.

    It is clear enough that the case will be strongly defended, and that there are arguable issues to be decided. That said, it was not submitted to me that the case should be regarded as inherently weak.

    From what I have been able to glean in this application I cannot conclude that the prosecution case is weak.

  • Director of Public Prosecutions v Paulino (Sentence) [2017] VSC 794 (21 December 2017) – Supreme Court of Victoria
    Current sentencing practices’ – ‘Post-separation violence’ – ‘Protection order’ – ‘Sentencing’ – ‘Stalking’ – ‘Threats to kill’ – ‘Victorian systemic review into family violence deaths unit’ – ‘Women

    Charges: Murder x 1.

    Appeal type: Sentence.

    Facts: The defendant and victim were estranged. The defendant made open threats to kill the deceased, slut-shamed her to her family and friends, nuisance-calling her at work, and following her and her new boyfriend. The deceased took out a protection order against the defendant. Shortly before a Family Court hearing, she was stabbed by the defendant, and was found dead by her sons ([7]). At a pre-trial hearing, relationship evidence was admitted (see DPP (Victoria) v Paulino (Ruling No 1) [2017] VSC 343 (17 June 2017)) After a jury trial, the defendant was found guilty.

    Justice Bell referred the case to the Victorian Systemic Review into Family Violence Deaths unit at the Coroners Court. The function of the unit includes identifying risks associated with deaths resulting from family violence. His Honour highlighted features of this case, including that:

    • the murder was preceded by threats to kill, assassination and blaming directed towards the deceased that were open and persistent;
    • there was an intervention order on foot, which was not a sufficient deterrent;
    • Family Court proceedings, initiated by the deceased, had reached a critical stage;
    • the parties had separated; and
    • the deceased had expressed a fear that her husband would kill her.

    Issues: Sentence to be imposed.

    Decision and Reasoning: The defendant was sentenced to a period of 30 years with a non-parole period of 25 years.

    Justice Bell placed importance on the fact that current sentencing practices being more condemnatory of men murdering women ([25]), the circumstances of stalking and breaches of intervention orders leading up to the murder ([27]), and the murder was premeditated ([29]).

  • Re Kumar [2017] VSC 742 (6 December 2017) – Supreme Court of Victoria
    Bail’ – ‘Bail conditions not sufficient’ – ‘Bail refused’ – ‘Immigration detention’ – ‘Past breaches of protection orders’ – ‘Protection orders’ – ‘Show cause

    Charges: Contravention of a family violence safety notice intending to cause harm or fear for safety x 1; Destroying or damaging property x 1; Aggravated burglary x 1; Attempted murder x 1; Intentionally causing serious injury x 1; and Recklessly causing serious injury x 1.

    Case type: Bail application.

    Facts: The applicant attended the house of his former partner and her new partner (the victim), and forced his way in by breaking the window ([7]-[8]). The applicant stabbed the victim’s head and hands with a piece of broken glass, leaving him with permanent injuries ([9]).

    Issues: The applicant was required to ‘show cause why his detention was not justified’, under various sub-sections of s 4(4) of the Bail Act 1977 (Vic). For example, the appellant was charged with contravening a family safety notice in which he was alleged to have used violence and, in the previous 10 years, had been found guilty of the same charge (s 4(4)(ba)(i)) ([12])..

    Decision and Reasoning: Bail was refused.

    The applicant had argued that because he has been given notice that he is an unlawful non-citizen, he would be put straight into immigration detention and therefore would not pose a risk of committing another offence ([14]).

    Priest JA held that there was an unacceptable risk that the applicant would commit further offences against his former partners. Most importantly, the applicant had a history of breaching family violence orders ([20]). Therefore, the risk of the applicant committing further violence could not be mitigated by strict bail conditions ([21]). Furthermore, there was no guarantee that the applicant would be put straight into immigration detention ([17], [20]).

  • Re Easson [2017] VSC 565 (20 September 2017) – Supreme Court of Victoria
    Bail’ – ‘Firearms’ – ‘Kidnapping’ – ‘Show cause’ – ‘Strangulation’ – ‘Strict conditions’ – ‘Threats

    Charges: Intentionally causing injury x 1; Recklessly causing injury x 1; Unlawful imprisonment x 1; Unlawful assault x 3; Unlawful assault using an instrument x 2; Unlawful assault by kicking x 1; Threatening to inflict serious injury x 1; Unlawful assault with a weapon (a steak knife) x 1; Making a threat to kill x 2; Kidnapping x 1; Common law assault x 2; Reckless conduct placing a person in danger of death x 1.

    Case type: Bail application.

    Facts: All charges related to one 12-hour period, where the applicant allegedly assaulted his wife by: banging her head on the floor and striking her with an iron; punching, kicking and strangling her with a lamp cord; and threatening to take her somewhere to be raped, and threatening to kill her while holding a steak knife ([6]).

    Issues: Since the applicant was charged with an indictable offence involving the use of a weapon, the issue was whether he could ‘show cause’ why his detention was not justified (s 4(4)(c) Bail Act 1977 (Vic)) ([3]).

    Decision and Reasoning: Bail was granted, with strict conditions. Significant factors against granting the applicant bail included: the charges are serious; and it could not be said granting bail would pose no risk to the complainant ([14]). On the other hand, significant factors in favour of granting bail to the applicant were: he had no criminal history; and the risk to the complainant could be ameliorated by strict conditions such as requiring him to reside with his mother, engage in drug treatment, and removing his access to firearms ([14], set out in full at [17]). Justice Beach stated: ‘There is considerable merit (and potential benefit for both the applicant and the wider community) in addressing the applicant’s drug, and any mental health, issues now rather than later’ ([15]).

  • Director of Public Prosecutions (Victoria) v Turner [2017] VSC 358 (23 June 2017) – Supreme Court of Victoria
    Respect of women’ – ‘Role of sentencing

    Charges: Manslaughter x 1; Breach of domestic violence order x 1.

    Case type: Sentence.

    Facts: The defendant and deceased had been in a relationship. After consuming alcohol and methamphetamines, the defendant beat the deceased in their home with punches, kicks, and hit the soles of her feet with a hammer ([5]). The deceased was discharged from hospital, but died of internal bleeding the next day ([8]-[9]). The defendant pleaded guilty to manslaughter.

    Issues: Sentence to be imposed.

    Decision and Reasoning: Bell J imposed a sentence of 12 years’ imprisonment, with a non-parole period of 9 years. His Honour considered that the contravention of a domestic violence order made it a serious example of manslaughter ([32]).

    Bell J at [33]:

    “Denunciation and specific and general deterrence are sentencing principles through which the law gives effect to the fundamental purpose of protecting individuals and the community from crime. Ms Cay and all other women have an inviolable human right to life, to equality – not just the appearance of equality but to real equality, to physical and emotional integrity, to respect for their dignity and personal autonomy, to loving relationships with children and others, and to freedom from fear of physical or mental harm. They look to the law for protection from men who would perpetrate crimes of assault or homicide upon them in a domestic setting by reason of failing to control their anger, aggression and rage. While the police cannot be present in every home on every occasion of risk, the values and standards of human behaviour that the criminal law demands are omnipresent. The courts must respond appropriately through the sentencing process when those standards are severely or seriously breached, as they have been in this case, for this vindicates the individual interests of victims in seeing that perpetrators are brought to justice, as well as the general interests of the community in seeing that justice is so done, and also performs the important educative function of positively influencing how the community, and especially men, value, respect and treat women.”

    His Honour thought that the defendant had good prospects of rehabilitation, but the defendant’s efforts to stop drinking was not a mitigating factor ([27-[28]).

  • DPP (Victoria) v Paulino (Ruling No 1) [2017] VSC 343 (17 June 2017) – Supreme Court of Victoria
    Admissibility’ – ‘Relationship evidence

    Charges: Murder.

    Case type: Pre-trial hearing.

    Facts: The defendant and deceased had been in a relationship, and had two children ([3]). They separated acrimoniously in 2010 ([3]). The defendant was accused of murdering the deceased. The prosecution wished to lead evidence relating to the relationship between the accused and deceased ([4]) in order to establish that the accused’s enmity and hatred towards the deceased was the motive for the murder ([5]). The evidence included: threats made by the defendant; relationship evidence; the fact that the accused had an intervention order taken out against him by the deceased; and the accused’s actions in relation to a pornographic video allegedly depicting the deceased.

    Issues: Whether the ‘relationship evidence’ should be admitted.

    Decision and Reasoning: Justice Bell set out the relevant principles in relation to the Court’s mandatory duty to exclude evidence where the probative value is outweighed by the danger of unfair prejudice to the accused (see [33]-[36]). In this context, evidence of a poor relationship between the accused and deceased has been admitted where that evidence may be relevant to whether the accused killed the deceased and whether the accused had a motive to do so ([37]).

    Threats

    The deceased’s statements about her fear of the accused (for example, that if something happened to her, it would be because of the accused) were not admissible. In deciding the admissibility of a victim’s fear of the accused perpetrator, the issue is ‘whether the evidence of the deceased’s fear of the accused was relevant to the probability of the existence of a fact in issue, usually whether the accused had a motive for killing, and actually did kill, the deceased’ ([57]). However, the statements were merely evidence of her subjective state of mind, not the accused’s ([70]). Further, the content and volume of evidence would be highly prejudicial to the accused ([71]).

    By contrast, evidence of threats made by the accused to kill the deceased and her family were admissible, because it was relevant to the accused’s state of mind towards the deceased ([76]).

    Relationship evidence

    Evidence of the defendant’s feelings of hatred and enmity towards the deceased was admissible ([42]-[43]). However, most the evidence of the state of their marriage before 2010 was not relevant ([41], [51]). Bell J held that the jury should be told generally that the marriage was unhappy ([85]-[87]), but not the precise details of the aggressive behaviour of the accused ([88]).

    Intervention order

    Evidence of the intervention order was admissible as a feature of the relationship leading up to the death of the deceased ([91]). There was a danger of unfair prejudice to the accused, but that could be mitigated by proper instruction ([92]).

    Pornographic video

    The accused had alleged that the deceased had participated in a pornographic video, and had shown his colleagues and the deceased’s family ([94]). Evidence of the video and the accused’s actions were admissible to demonstrate the extremely negative attitude of the accused towards the deceased ([96]).

  • DPP v McDermott (Rulings Nos 10 & 11) [2016] VSC 822 (27 April 2016) – Supreme Court of Victoria
    Anti-tendency warning’ – ‘Murder’ – ‘Prejudicial evidence’ – ‘Propensity evidence jury discharge

    Charges: Murder.

    Case type: Application to discharge jury.

    Facts: The defendant was on trial for stabbing his former partner. His son gave evidence that the defendant usually carried a knife. Defence counsel applied to discharge the jury on the ground that the ‘propensity evidence’ was highly inflammatory and could not be cured by a direction ([2]). The next day, a newspaper article was published about the son’s evidence ([35]-[36]).

    Issues: Whether the jury should be discharged.

    Decision and Reasoning: Jane Dixon J declined to discharge the jury ([31], [45]). Her Honour considered that any prejudice to the accused could be cured by a direction to the jury ([31]). Her Honour gave two anti-tendency warnings ([35], [43]), and intended to give another curative direction in her Honour’s final address ([44]).

  • The Queen v Cook [2015] VSC 406 (19 August 2015) – Supreme Court of Victoria
    Denunciation’ – ‘Deterrence’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Sentencing

    Charges: Murder.

    Hearing: Sentence.

    Facts: The victim was the male offender’s de facto wife. After drinking 15 beers at their house party, the offender started punching and pushing the victim. A friend tried to intervene but was pushed away. He then picked up a steel-framed chair and hit the victim with such force that that one of the legs went through her skin and bone and penetrated her brain.

    Decision and Reasoning: Elliot J sentenced the offender to 21 years and six months imprisonment with a non-parole period of 17 years and six months. In passing this sentence, His Honour made some general observations on domestic violence at [28]-[30]:

    ‘The courts clearly recognise that they must forcefully condemn domestic violence (See, e.g., R v Earl [2008] VSCA 162, [23]). When domestic violence manifests in murderous conduct, that conduct must be denounced in the strongest terms (Felicite v The Queen (2011) 37 VR 329, [20]; Portelli v The Queen [2015] VSCA 159, [30]).

    Moreover, general and specific deterrence have special significance in cases involving domestic violence. In such circumstances, general deterrence is more important as “[t]he victims of such violence are often so enveloped by fear that they are incapable of either escaping the violence or reporting it to the authorities” (Pasinis v The Queen [2014] VSCA 97, [57]).

    Also, specific deterrence is often more important, as it is in this case, because “women who are killed by their husband, boyfriend or de facto partner have frequently been assaulted by them many times previously”’ (Pasinis v The Queen [2014] VSCA 97, [53]).

  • DPP v Williams [2014] VSC 304 (27 June 2014) – Supreme Court of Victoria
    Aggravating factor’ – ‘Defensive homicide’ – ‘Emotional and psychological abuse’ – ‘Evidence’ – ‘Expert evidence - academic’ – ‘History of violence’ – ‘Lack of disclosure of family violence’ – ‘Mitigating factors’ – ‘Physical violence and harm’ – ‘Sentencing

    Charges: Defensive Homicide.

    Hearing: Sentence.

    Facts: The defendant was charged with murdering her de facto partner but was found guilty of defensive homicide. She struck the deceased to the head 16 times with an axe. She buried the deceased’s body in the backyard and lied about his whereabouts to family and friends for more than four years, claiming that he had gone interstate. The defendant gave an account of a violent fight which led to the deceased’s death which included the deceased taunting and goading the defendant. She attested to a long history of family violence by the deceased.

    Issue/s: The appropriate sentence to be imposed.

    Decision and Reasoning: The defendant was sentenced to 8 years’ imprisonment, with a non-parole period of 5 years. In finding the defendant guilty of defensive homicide, the jury had to be satisfied that the killing took place in the context of a serious history of family violence. Hollingworth J noted at [20] that, while there was no evidence that the defendant or her children had ever complained about family violence, this is not uncommon.

    The deceased was the dominant person in the relationship. He had a long history of violence and drank heavily. His behaviour towards the defendant ‘over many years, was abusive, belittling and controlling, and involved both physical and psychological abuse’ ([26]). Her Honour noted, ‘The final act or acts of the deceased may well be relatively minor, if looked at in isolation; but what happens in such cases is that the victim of family violence finally reaches a point of explosive violence, in response to yet another episode of being attacked. In such a case, it is not uncommon for the accused to inflict violence that is completely disproportionate to the immediate harm or threatened harm from the deceased’ ([32]).

    The Court heard (largely unchallenged) expert evidence from Professor Patricia Easteal regarding the complex dynamics of family violence, the reasons why women often do not leave violent partners and the use of weapons by female victims of family violence against male partners ([33]-[34]). Given this evidence, Her Honour noted that while ordinarily, striking 16 blows with an axe in response to a minor physical and verbal attack by an unarmed attacker would seem disproportionate, this may not be the correct conclusion in family violence cases involving a female offender ([36]). However, aggravating factors included the defendant’s deceit and a lack of remorse. Her offending had a large impact on the deceased’s family.
  • DPP v Bracken [2014] VSC 94 (12 February 2014) – Supreme Court of Victoria
    Emotional and psychological abuse’ – ‘Evidence’ – ‘Expert evidence’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Self-defence’ – ‘Social framework evidence

    Charges: Murder.

    Proceeding: Pre-trial hearing.

    Facts: The defendant was on trial for the murder of his de facto partner. He argued that he shot his de facto partner in self-defence. He alleged that his partner perpetrated psychological and physical violence against him over the course of the relationship. He successfully argued that the killing was in self-defence and was thus acquitted.

    Issue/s: One of the issues concerned whether evidence of family violence or ‘social framework’ evidence within the meaning of the then s 9AH of the Crimes Act 1958 (Vic) was admissible.

    Decision and reasoning: The evidence was admitted. Maxwell P held that family violence was alleged as required by the section. As such, evidence such as ‘the cumulative effect, including psychological effect, on the person or a family member of (family) violence’ was relevant in determining whether self-defence was made out. Significantly, his Honour held that, ‘There will be no basis for an objection on grounds of relevance…’, though there could be other available grounds of objection (see at [16]).
  • DPP v Neve [2013] VSC 488 (13 September 2013) – Supreme Court of Victoria
    Criminal damage’ – ‘Denunciation’ – ‘Deterrence’ – ‘Intentionally causing injury’ – ‘Make threat to kill’ – ‘Physical violence and harm’ – ‘Reckless conduct endangering life’ – ‘Sentencing

    Charge/s: Criminal damage, make threat to kill x 2, reckless conduct endangering life, intentionally causing injury.

    Hearing: Sentence hearing.

    Facts: The offender and the complainant were married. After an argument, the offender fatally shot the complainant’s dog. He then reloaded the rifle and began chasing the complainant as she ran towards the road yelling, ‘I’m going to fucking kill you…You’re fucked’. The complainant stopped running and tried to negotiate with the offender. She managed to grab hold of the gun and forced the applicant to fire both of the shots from the rifle. The offender then pushed her over and started punching her repeatedly in the head and chest, trying to reach other cartridges he had in his pocket. The complainant managed to get up and flag the attention of a passerby.

    Decision and Reasoning: The offender was sentenced to a total effective sentence of four years imprisonment, with a non-parole period of two and a half years. In passing sentence, Bell J noted at [67]:

    ‘Denunciation of your crimes and general deterrence are powerful sentencing considerations in your case, leading to an immediate sentence of imprisonment. Ms Fuller was your wife. You are guilty of committing appalling domestic violence towards her. Many of your actions were not only violent but calculated to belittle and demean her and place her in abject fear. The double barrel shotgun was a common feature of all five charges and it was loaded when the first four offences were committed. This criminal conduct deserves the strongest condemnation of the court. Others must be made to appreciate the consequences of committing crimes of this nature’.

  • DPP v Huynh [2010] VSC 37 (19 February 2010) – Supreme Court of Victoria
    Denunciation’ – ‘Deterrence’ – ‘Forcible confinement’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Violation of trust between husband and wife

    Charge/s: Intentionally causing serious injury.

    Hearing: Sentence hearing.

    Facts: The offender and the victim, his wife, came to Australia from Vietnam on tourist visas. After the offender became suspicious the victim was seeing another man, he stabbed the victim multiple times in the chest and abdomen.

    Decision and Reasoning: In sentencing the offender, Curtain J took into account the offender’s plea of guilty, his lack of prior criminal history, the fact that the offender would be separated from his children for a number of years, and that the offender was remorseful and distressed by his conduct. Her Honour also accepted that the offender’s prospects for rehabilitation were favourable. However, in opposition to these factors, Curtain J held at [42]-[43]:

    ‘Against these matters stand the nature and gravity of the offence here committed. This is a serious example of a serious offence. It involves the infliction of serious violence upon your wife which is a gross breach of the trust which reposes between husband and wife. I take into account also the need to pass a sentence which will act in denunciation of your conduct and serve to punish you and also give due weight to special and general deterrence.

    Although such considerations are to be sensibly moderated, nonetheless, the sentence imposed must signal to the community that acts of violence, including domestic violence, are not tolerated and warrant condign punishment’.

    In the circumstances, a sentence of seven years imprisonment with a non-parole period of five years was appropriate.

  • R v Gojanovic [2005] VSC 97 (27 January 2005) – Supreme Court of Victoria
    Murder’ – ‘Physical violence and harm’ – ‘Relationship killings’ – ‘Sentencing

    Charge/s: Murder.

    Hearing: Sentence hearing.

    Facts: After being in an ‘on and off relationship’ for some years, the male offender and the female victim separated. One evening, the offender entered the victim’s home and battered her repeatedly on the head with a rubber headed mallet. He then took a dressing gown cord and strangled her to death.

    Decision and Reasoning: Osborn J noted that while the killing was not premeditated and it occurred in a state of high emotion arising out of the disintegration of the offender’s relationship with the victim, there were nevertheless five seriously aggravating circumstances associated with this crime. First, the killing was brutal, protracted and vicious. Second, the killing was selfishly callous. The offender knew he was not only taking the life of another individual but also taking away the mother of four innocent children. Third, the killing took place in what should have been the safety of the deceased’s own home. Four, a substantial penalty was warranted in light of the need for general deterrence. As per His Honour at [31]:

    ‘The Court and the community which it represents cannot tolerate resort to violence, let alone homicidal violence, in circumstances of this kind. The Court must send a clear message to estranged parents that they cannot act as you did and expect to receive other than a penalty which affirms the sanctity of individual human life and condemns in the strongest terms the deliberate taking of another life even in circumstances of strong emotion’.

    Finally, the offender displayed a total lack of remorse for his conduct. The offender was sentenced to 20 years imprisonment, with a non-parole period of 15 years.

    See also R v Gojanovic (No 2) [2007] VSCA 153 (14 August 2007).

  • R v Kibble [2002] VSC 52 (1 March 2002) – Supreme Court of Victoria
    Intentionally cause serious injury’ – ‘Physical violence and harm’ – ‘Relevance of prior relationship’ – ‘Right to leave a relationship’ – ‘Sentencing

    Charge/s: Intentionally cause serious injury.

    Hearing: Sentence hearing.

    Facts: The female victim ended her relationship with the male offender and gave him money to fly back to London, where he was from. Upon returning to England, the offender felt humiliated and angry and decided to return to Australia to punish the victim. He purchased a rubber mallet to break into the victim’s house and a roll of duct tape. When the victim arrived home, the offender started stabbing her with a knife. She managed to fight him off and called the police.

    Decision and Reasoning: This offence was serious. As per Gillard J at [57]:

    ‘A person in a relationship with another has every right to terminate the relationship and walk away without fear of reprisal. Too often, upon the termination of a relationship, the physically stronger person pursues a course of conduct of harassment and violence towards the other person. That is what has happened here. Your conduct was serious and has had a long-lasting, emotional effect upon the victim. The Legislature views any offence under s16 as serious. The circumstances surrounding the commission of this offence supports that conclusion and you are guilty of a high level of criminality’.

    There were a number of factors that aggravated the offending namely that the conduct was premeditated, the offender waited for the victim in her home, his conduct caused the victim terror and fear, and the conduct had a long-lasting emotional effect on the victim. His Honour was satisfied that specific deterrence was not warranted on the facts but that general deterrence was important i.e. the sentence had to send a message to those who are like-minded to use their superior physical strength to punish a partner in a relationship after it has terminated.

    His Honour also took into account a number of mitigating factors namely, the offender frankly admitted his involved, he pleaded guilty at the first opportunity, there was no criminal history, the physical injuries were at the lower end of the scale, the sentence would be onerous because the offender was English, the offence was out of character, it was unlikely he would reoffend, and his prospects for rehabilitation were good. The offender was sentenced to six years imprisonment with a non-parole period of four years.

  • DPP v Williamson [2000] VSC 115 (31 March 2000) – Supreme Court of Victoria
    Murder’ – ‘Parents who kill children’ – ‘Physical violence and harm’ – ‘Relationship killings’ – ‘Sentencing

    Charge/s: Murder.

    Hearing: Sentence hearing.

    Facts: The offender and a young woman, Ms Park, had been in a relationship and had a child together, the victim. This relationship was characterised by the offender’s jealousy and possessiveness towards Ms Park and the victim. Eight months after the victim was born, Ms Park left the relationship. The offender resented his obligation to financially support the child and began to deeply resent Ms Park. Four months before the victim’s death, the offender began telling people he was going to kill himself and his son, to take him away from Ms Park. One night, the offender took the child to a hotel and smothered him. He then wrote a letter to Ms Park telling her he had killed the victim.

    Decision and Reasoning: In sentencing, Cummins J took into account, as mitigating factors, the offender’s poor family situation, the burdensome quality of imprisonment to the offender, his age, his lack of prior convictions and the rehabilitative courses he undertook while in custody. However, His Honour stated at [25]:

    ‘Of all the rights of the child, the most fundamental right of all is the right to life. It is necessary that parents and others in charge of children unmistakably understand that child abuse will be met by the full force of the law. The intentional killing of a child by a person without psychiatric illness or other significantly mitigating factor will ordinarily be met with life imprisonment of the offender’.

    Cummins J also noted the significant importance of condemnation, punishment, general deterrence and specific deterrence. The offender was sentenced to life imprisonment with a non-parole period of 24 years.