Victoria

Supreme Court

  • R v Margolis [2021] VSC 341 (15 June 2021) – Victorian Supreme Court
    Murder’ – ‘People affected by trauma’ – ‘People with disability and impairment’ – ‘Sentencing’ – ‘Strangulation

    Proceedings: Sentencing.

    Charge: Murder.

    Facts: The male offender killed the female victim, his domestic partner of one week, by applying force to her neck by holding her in a chokehold. A jury convicted him of murder following a trial in which the issues were whether the victim was killed by a conscious, voluntary and deliberate act and, if so, whether the offender had murderous intent. The offender was diagnosed with long-term Post Traumatic Stress Disorder and alternately borderline or severe personality disorder by psychiatric experts. There was evidence he had mental health issues dating from his teens. He argued he killed the victim in the course of a flashback provoked by the behaviour of the victim, in pushing and haranguing him in the course of an argument which extended over a number of hours. Following the murder, the offender sent text messages to the victim’s family purporting to be from the victim. The offender had no prior history of violent offending and alleged he had been a victim of abuse as a child.

    Held: Sentenced to 23 years imprisonment with a minimum term of 17 years. It was noted that this was less than the standard 25 year head sentence to take into account the offender’s prior good character and Verdins principles.

  • Re Charlton [2021] VSC 342 (11 June 2021) – Victorian Supreme Court
    14 year gap between alleged offence and laying of charge’ – ‘Alleged murder of partner’ – ‘Bail’ – ‘Exceptional circumstances’ – ‘No relevant criminal history’ – ‘No unacceptable risk posed by applicant’ – ‘Poor mental and physical health of the applicant’ – ‘Separation

    Matter: Application for bail.

    Facts: The applicant is alleged to have killed his female domestic partner in 2007, approximately 6 months after they had commenced residing together in her unit. He was arrested but released the day after his partner’s death. A coroner found the applicant likely contributed to the death of the deceased in 2011 but the applicant was not re-arrested until 6 January 2021 and has been in custody since then. There is some evidence of a history of violence by the applicant towards the deceased, including an incident where he drove dangerously with the deceased in a vehicle in the days prior to her death which allegedly was a source of arguments between them. There is evidence the deceased asked the applicant to move out of her apartment the day of her death.

    Issues: Unacceptable risk and exceptional circumstances.

    Held: Bail granted. The fact the applicant remained in the jurisdiction for the many years before he was charged, including while being dealt with for earlier historic offending, and failed to reoffend went a long way to establish that there was no unacceptable risk posed by a grant of bail. The applicant’s counsel’s assertion the prosecution case was weak was rejected, but exceptional circumstances were established by the passage of years and the good behaviour of the applicant during the delay, his lack of relevant prior offending or breach of bail, his serious physical and mental health issues and the effect of incarceration thereon, the conditions he would likely spend remand in, the likely future delay in reaching trial, his stable relationship and accommodation, and the availability of substantial surety.

  • R v Dellamarta [2021] VSC 220 (4 May 2021) – Victorian Supreme Court
    Impact of covid 19 pandemic’ – ‘Imprisonment’ – ‘Manslaughter’ – ‘People with disability and impairment’ – ‘People with mental illness’ – ‘Sentencing

    Charges: Manslaughter.

    Proceedings: Sentencing.

    Facts: The female offender, who had an intellectual disability, pleaded guilty to the manslaughter of her male partner. She stabbed her partner once to the upper chest during the course of an argument. She admitted to stabbing the deceased but was unable to say why she had done so. She said that she had never been scared that he would physically hurt her, but that he had called her abusive and hurtful names.

    Issues: Sentence to be imposed.

    Decision and reasoning: A sentence of 7 years and 6 months imprisonment was imposed, with a non-parole period of 5 years.

    The following factors were relevant to objective seriousness: First, the offender deliberately stabbed the deceased with a large kitchen knife. Second, the deceased was her partner, and the offence took place in her home. Third, she grossly overreacted to whatever feelings of hurt and anger she was experiencing in the face of the deceased’s aggression. Fourth, she immediately attempted to revive the deceased, called for help and assisted police.

    The offender’s moral culpability for the offending, and the relevance of general deterrence, were somewhat reduced by her intellectual disability and depressive disorder (notwithstanding the lack of a causal link established by expert evidence). Specific deterrence was also modified by her personal factors (genuine remorse, ability to manage the limitations of her intellectual disability and fair prospects for rehabilitation). The guilty plea was also taken into account.

    Finally, the court recognised the burden of prison on her at [45]:

    “I accept that your deficits mean that your will find prison more burdensome than a person without your disability. Mr Newton described you as a vulnerable prisoner at risk of victimisation and other negative attention in the custodial environment. It seems that this risk has, in fact, materialised. Mr Newton further stated that there is some risk that the intensity of your depressive symptoms will increase as a result of your incarceration. I accept these opinions. I also accept that your experience of custody to date has been difficult given the lack of physical visits between March and December 2020 consequent upon the COVID-19 pandemic.”

  • Re Dinatale [2021] VSC 104 (9 March 2021) – Victorian Supreme Court
    Animal abuse’ – ‘Bail application’ – ‘Breach of protection order’ – ‘Children’ – ‘Exceptional circumstances’ – ‘Impact of covid-19 pandemic’ – ‘Strangulation’ – ‘Threats to kill’ – ‘Unacceptable risk’ – ‘Weapons

    Charges: Numerous family violence charges and protection order breaches.

    Proceedings: Application for bail.

    Facts: The applicant was charged with numerous family violence offences and intervention order breaches over multiple years, but principally in 2019 and 2020, in respect of his wife (the complainant) and their 2 young children. The alleged offending involved physical violence (including use of weapons and strangulation), exposing the children to family violence, animal abuse, threats to kill (including if the complainant failed to revoke a protection order), and repeated breaches of intervention orders. Due to the delays brought about by the COVID-19 pandemic, there was a real prospect that the applicant’s trial would not proceed until 2023.

    Issues:

    1. Whether exceptional circumstances existed to justify the grant of bail.
    2. Whether there was an unacceptable risk.
    3. Whether there would be a risk that the applicant would commit family violence if released on bail, and whether such risk might be mitigated.

    Decision and reasoning: Application for bail was allowed on strict conditions.

    At the outset, counsel for the respondent informed the court that “the children of the applicant are apparently petrified of him, and that Child Protection have indicated an intention of stepping in should the applicant make any attempt to have contact with them. She pointed out that the two children are eye witnesses to some of the offending, and that the risk of interference with them as well as with the complainant herself is a live concern.

    Further, counsel for the respondent emphasised that the applicant’s conduct while incarcerated “showed his malevolence towards his wife and aggression towards some other individuals which would itself raise concerns about the safety of his family and others.” The charges were serious, “notwithstanding that no serious injuries had been caused. This was more by good luck than good management, and there was still the risk of psychological harm and ongoing consequences for the children. The seriousness of the offending was amplified by the constant undertone of family violence, encompassing control and actual violence.”

    Exceptional circumstances existed. In particular, the possible period of remand due to the COVID-19 delay (2-3 years) would highly likely exceed any term of imprisonment. The obvious risk of the applicant endangering the safety and welfare of any person or committing an offence while on bail could be mitigated by stringent bail conditions so as not to be an unacceptable risk noting: “Any attempt to contact in any way, much less, harm, his wife or children, would have the inevitable consequence that he would be taken again into custody, with little hope of release until the resolution of the charges he faces.”

  • Re Application for Bail by Wilson [2021] VSC 22 (29 January 2021) – Victorian Supreme Court
    Application for bail’ – ‘Covid-19’ – ‘Exceptional circumstances’ – ‘Female perpetrator’ – ‘Mild traumatic brain injury’ – ‘Murder’ – ‘No unacceptable risk’ – ‘People affected by substance misuse’ – ‘People affected by trauma’ – ‘People with mental illness’ – ‘Support services

    Charge: Murder.

    Proceedings: Application for bail.

    Facts: The female applicant killed her male domestic partner by stabbing him in the back during the course of a domestic dispute. At trial, the applicant intended to argue that she acted in self-defence and that she did not intend to cause death or really serious injury. The applicant had a history of drug addiction, mental illness, and had been in a car accident a few weeks prior to the offending, potentially resulting in a mild traumatic brain injury.

    Decision and reasoning: The applicant was granted bail.

    There were sufficient matters to establish exceptional circumstances. The two central issues that would arise at trial (self-defence and intent) were “live” and needed to be finely judged, in combination with the delay in the matter (which in itself would not be sufficient) and the circumstances of detention due to COVID-19 (unable to receive visits with her mother or daughter) ([45]-[48]).

    The respondent had not demonstrated that the applicant was an unacceptable risk of endangering the community, offending whilst on bail or failing to answer bail. The applicant had a criminal record but this included relatively minor offences and the more serious conviction had no particular resonance in relation to the present offending. There was evidence that she would receive support with accommodation, and in relation to any ongoing problems of drug addiction and mental health from Women’s Housing Ltd. The applicant had further motivation in restoring her relationship with her mother and re-engaging with her young daughter, supported by the Department of Health and Human Services ([50]-[56]).

  • Re Chambers [2020] VSC 758 (17 November 2020) – Victorian Supreme Court
    Application for bail’ – ‘Compelling reason’ – ‘Misuse of alcohol or drugs by perpetrator’ – ‘Past domestic and family violence’ – ‘Pregnancy of victim’ – ‘Protection orders’ – ‘Strangulation’ – ‘Stringent bail conditions’ – ‘Unacceptable risk

    Charges: Reckless conduct endangering life x 2; Aggravated assault of a female x 6; Contravening a family violence intervention order (FVIO) x 1; Recklessly causing injury x 1; Making a threat to kill x 1.

    Proceedings: Application for bail.

    Facts: The applicant man and complainant woman were in a domestic relationship, and she was 3 months pregnant with their child. The applicant was subject to two FVIOs, one involving his ex-wife and child, and one involving the complainant. The charged offending involved the application of pressure to the complainant’s neck until she lost consciousness on the first occasion, and until she sustained a fractured larynx on the second occasion. The applicant owned his own business, had no criminal history (but been the subject of a number of reports of family violence), and had a history of depression/anxiety and substance abuse issues.

    Issues:

    1. Whether the applicant had demonstrated a “compelling reason” to justify the grant of bail.
    2. Whether the respondent had demonstrated that there was an “unacceptable risk”.

    Decision and reasoning: The applicant was granted bail.

    First, on “compelling reason”, the offending alleged was very serious. It involved a man in the context of an ongoing intimate relationship applying pressure on 2 occasions to the neck of his pregnant partner rendering her unconscious and fracturing her larynx. The case against the applicant was of reasonable strength in view of the objective evidence ([50]-[51]).

    Nevertheless, his Honour was satisfied that a compelling reason existed to justify the grant of bail ([53]). The applicant had no prior convictions or adverse bail history, stable employment and accommodation, and the situation of the offending had ended. There was no evidence to suggest he would further attack the complainant, with a traumatic period in custody being a strong disincentive to do so. The applicant was seeking treatment for his drug problem. He also stood to spend significant time in custody in difficult circumstances in the absence of bail ([52]).

    Second, the court was not satisfied that the risk posed by the applicant (that he would contact and possibly harm the complainant) was unacceptable. This was in light of the very stringent bail conditions imposed to mitigate the risk including a curfew, requirement to comply with a full FVIO that had been put in place concerning the complainant, prohibition on drug use (including testing), requirement to undergo drug treatment, and a broad geographical exclusion to further protect the complainant ([54]).

  • OP v XY [2020] VSC 754 (16 November 2020) – Victorian Supreme Court
    18-year period for protection order’ – ‘Coercive control’ – ‘Culturally and linguistically diverse (cald) people’ – ‘Judicial review’ – ‘Protection order’ – ‘Unborn child added to protection order’ – ‘Whether child in utero at the time of offending is a child who has been 'subjected to family violence'

    Proceedings: Application for judicial review.

    Facts: In protection order proceedings in the County Court, XY (female partner) claimed that her husband OP (male partner) had committed numerous instances of family violence during their relationship. This ranged from physical violence and unwanted sex to psychological manipulation and humiliation.

    [28] XY alleged that, over the course of the marriage, OP emotionally controlled her, isolated her (from others), and continually abused her — for example, by writing on a whiteboard numerous ways in which she was a bad wife and stepmother. She claimed that OP made her sleep on the floor, limited her food intake and gave her no money. XY said that she felt pressured to have sex and that she could not say no as OP would say that she was a bad wife. She said she made numerous attempts to leave the relationship, but that OP would contact her and manipulate her to return. XY alleged that OP physically assaulted her on several occasions. He also ejected her from the home numerous times, including without shoes. He abused her for being selfish and using money on herself instead of the children. [Also see paragraphs [47]-[51] and [57]].

    While OP denied these claims, and made his own against XY, he ultimately consented (without admissions) to a protection order. OP’s claims against XY included ‘falsified and exaggerated claims of being assaulted by her’ [29], also see [79]-[80]. The magistrate made mutual protection orders against OP and XY for a period of two years. OP filed a notice of appeal against the protection order made against him. XY did not appeal the order made against her. On appeal, her Honour extended the length of the DFV protection order against OP from a two-year term to one of 18 years’ duration. Her Honour also added XY’s child to the order on the basis that the child had been subjected to family violence in utero. OP now applies to this court for judicial review of the judge’s decisions and orders.

    Decision and reasoning: Application for judicial review dismissed.

    The County Court judge’s reasons for extending the DFV protection order to 18 years’ duration and including the child in the order are set out at [221]. The applicant (self-represented) made submissions with respect to, but was unable to demonstrate, actual or apprehended bias, a denial of procedural fairness, inadequacy of the judge’s reasons, Wednesbury unreasonableness, illogicality or irrationality in the judge’s decision, and a failure to apply the Briginshaw test to the serious claims of DFV made against him [373].

    [17] The difficulty for OP, however, is that this application is not an appeal of the kind in which I am entitled or required to substitute my views on the evidence for those of the County Court judge. Instead, this Court’s jurisdiction on an application for judicial review is merely supervisory, not appellate, and is strictly confined in consequence. In exercising this jurisdiction, I am not to assess the merits of the decision, but must consider only whether the court below exceeded its jurisdiction and whether it observed the law in reaching the relevant decisions. Perhaps counter-intuitively, as I have already intimated, even if the judge below erred, but did so within jurisdiction, still there would be no relief by way of judicial review.

    [18] In my opinion, while aspects of the judge’s decision are very close to being afflicted with Wednesbury unreasonableness, illogicality or irrationality, in the end, those high hurdles for relief are not cleared. Nor am I satisfied that OP’s claims of actual or apprehended bias are established, whether examined with or without the fresh evidence. Instead, I am persuaded by [counsel for the complainant] that the asserted errors (except perhaps one) are not established or are otherwise within jurisdiction. While it is, I think, plain that the judge exceeded her jurisdiction by including the child in the order by reliance on a power that was not available on the evidence, that order is supported by another power which turns upon OP’s lack of opposition, and the consent XY implicitly gave, at the hearing.

    [449] I do not accept that, for the purposes of the first limb of s 77(2) (or its later equivalent), it can be said that the child [in utero] “has been subjected to family violence”. While, as I have said, strictly, I need not decide whether there ever could be a case in which a child-to-be in utero may come within the provision, I very much doubt it. Indeed, given that a “child” is “a person who is under the age of 18 years” and that the words “has been subjected to family violence” connote the present tense, I think it is extremely unlikely that the definition of family violence in s 5(1)(b) could extend to behaviour directed at or experienced solely by the mother when the child-to-be is in utero.

  • Application for bail by LP [2020] VSC 764 (16 November 2020) – Victorian Supreme Court
    Attempts to dissuade victim’ – ‘Bail application’ – ‘Exceptional circumstances’ – ‘History of abuse’ – ‘Misuse of alcohol or drugs by perpetrator’ – ‘Perpetrator interventions’ – ‘Perverting the course of justice’ – ‘Protection orders’ – ‘Unacceptable risk

    Charges: Four groups of charges, including alternative charges. Group 1: Reckless conduct endangering serious injury x 1; Unlawful assault x 1. Group 2: Intentionally causing injury x 2; Recklessly causing injury x 2; Unlawful assault x 2. Group 3: False imprisonment x 1; Intentionally causing injury x 2; Recklessly causing injury x 2; Theft x 1; Unlawful assault x 2; Unlawful assault with a weapon x 1. Group 4: Common law assault x 1; Common law charge of attempting to pervert the course of justice x 1.

    Proceedings: Application for bail.

    Facts: The applicant man was charged with a number of family violence offences against the female complainant. The charges related to a series of incidents in November 2017 and subsequent text messages aimed at dissuading her from pursuing the complaints. At the time of the bail application, there were three Family Violence Intervention orders (FVIOs) in force (protecting the complainant, another former intimate partner, and the applicant’s further former partner/children). The applicant had expressed a desire to change submitting evidence of, inter-alia, the support of his sister and rehabilitative programmes undertaken in custody.

    Issues:

    1. Whether exceptional circumstances existed to justify the grant of bail.
    2. Whether there was an unacceptable risk.
    3. Whether, if the applicant were released on bail, he would pose a risk of committing family violence and whether that risk could be mitigated by the imposition of bail conditions or the making of a FVIO.

    Decision and reasoning: Bail refused.

    While the matter was finely balanced, the applicant met the threshold of exceptional circumstances through a combination of factors namely, the death of his mother whilst in custody and deferral of her funeral until his release, the likely delays in the matter proceeding to trial, the legitimate criticism levelled at aspects of the prosecution case, and the overall delays in the matter being prosecuted which were not attributable to the applicant (at [78]-[80]).

    Nevertheless, there was an unacceptable risk that that the applicant would endanger the safety or welfare of a person, commit offences on bail, interfere with a witness (the complainant), or fail to answer bail. The applicant’s most recent conduct on bail showed that despite awaiting court for family violence charges (including those alleged by the complainant) he was prepared to engage in very similar conduct towards another partner (at [81]-[84], [88]).

    Further, the risks the applicant posed not only of committing further family violence but also of trying to dissuade the complainant from proceeding with her complaint could not be mitigated by FVIOs or additional bail conditions. The court noted: “Preventing family violence in the community can be difficult because victims are often reluctant to come forward and/or may be easily dissuaded from pursuing complaints” (at [86]). Risks could not be ameliorated with bail conditions given the applicant’s poor history of compliance with previous bail orders, CCOs, and other court orders, his family violence history committed against different partners and his persistent drug use and offending (at [87]).

  • Re Busari [2020] VSC 572 (7 September 2020) – Victorian Supreme Court
    Application for bail’ – ‘Breach of protection order’ – ‘Child’ – ‘History of abuse’ – ‘Misuse of alcohol’ – ‘People with mental illness’ – ‘Strangulation’ – ‘Unacceptable risk

    Charges: Reckless conduct endangering life x 1; Reckless conduct endangering serious injury x 1; Aggravated assault x 1; Common law assault x 1; Unlawful assault x 1.

    Proceedings: Bail application.

    Facts: The complainant is the male applicant’s female partner. It is alleged that the present charges occurred against a background of long-term, largely unreported domestic violence by the applicant against the complainant. In March 2018, the applicant is alleged to have threatened to burn down the family home resulting in the issuing of a protection order (the applicant is alleged to have breached the DFV protection order on numerous occasions, but these breaches were not reported at the time). In June 2020, the applicant is alleged to have been aggressive and verbally abusive. In July 2020, the applicant is alleged to have verbally abused the complainant. Later, he is alleged to have become increasingly aggressive and assaulted the complainant in front of their child, including pulling chunks of her hair out before allegedly strangling her. After a ‘prolonged period of strangulation’, the complainant managed to free herself and escape. The applicant is alleged to have been intoxicated during the various offences. Bail was previously refused on the basis that the applicant posed an unacceptable risk of committing an offence while on bail.

    Issues: Whether risk can be mitigated by imposition of condition.

    Decision and reasoning: Bail granted.

    [56] There is no question that the applicant does pose a risk of contacting the complainant, and interfering with her as a witness and exposing her to danger. The question is whether there are conditions of bail which could be imposed so as to mitigate that risk so that it is not unacceptable.

    [60] Taking into account all of the surrounding circumstances of this case, I am not satisfied that the applicant poses an unacceptable risk of any of the matters prescribed in s 4E of the Act. He does certainly pose a risk but I believe that the risk can be ameliorated to an acceptable level by the imposition of the stringent conditions [including residential requirements, curfew, prohibition against drugs or alcohol, mental health care plan, no-contact order for the protection of the complainant and their daughter and compliance with an interim DFV protection order].

  • R v Sturt [2020] VSC 317 (10 June 2020) – Victorian Supreme Court
    - people affected by substance misuse’ – ‘Cannabis-induced psychosis’ – ‘Controlling behaviour’ – ‘History of sexual violence’ – ‘History of abuse’ – ‘Mitigating and aggravating circumstances’ – ‘Murder’ – ‘Non-fatal strangulation’ – ‘People with mental illness’ – ‘Personality disorders’ – ‘Physical violence and harm’ – ‘Strangulation’ – ‘Suffocation

    Charges: Murder x 1

    Case type: Sentence

    Facts: The accused murdered his long-term intimate partner by suffocating and strangling her while he was in a cannabis-induced psychosis. He surrendered himself to police the same day as the killing, made a full confession and pleaded guilty to murder at the first available opportunity. The offence was not an isolated instance of domestic violence, as the accused had been physically and sexually violent towards the deceased in the past. He had also been previously admitted to a psychiatric unit, on which occasions the deceased reported that his mental state had deteriorated in the context of substance abuse, and that he had tried to strangle her in her sleep. He also assaulted the deceased in 2010.

    Issue: Whether the voluntary drug taking was an aggravating circumstance; whether his Schizotypal Personality Disorder was a mitigating circumstance.

    Held: After an assessment, a forensic psychiatrist made several observations about the accused, including that he used various coercive behaviours, such as violence and threats of violence and suicide, to mitigate the persistent likelihood of the deceased abandoning him. It appeared that the fatal attack was motivated by delusional beliefs. The psychiatrist also found that notwithstanding his prior history of domestic violence, the killing would not have occurred in the absence of the psychotic episode ([26]). In the police interview, the accused described his childhood as "troubled". His stepfather physically and emotionally abused his mother, and the accused used cannabis for many years, and has "dabbled" with other drugs ([52]-[58]).

    The Court did not accept the prosecution’s submission that the accused’s cannabis use was an aggravating feature, as it could not be established beyond reasonable doubt that he knew that he was likely to become violently psychotic from the cannabis use during the relevant period ([27]-[30]). Further, his moral culpability was not reduced by his psychosis at the time of the offending, because he had voluntarily taken the cannabis in the knowledge that it might make him violently psychotic ([32]). His forensic psychiatrist considered that his Schizotypal Personality Disorder indirectly contributed to his offending because (1) his problems with social anxiety and depression predisposed him to the heavy use of cannabis, and (2) it lowered the threshold for developing psychosis following ingestion of psychotogenic substances ([37]). The defence counsel’s submission that his personality disorder was a mitigating circumstance was also rejected by the Court ([40]). Cannabis was not the only way to deal with his anxiety. The accused should have undertaken a drug rehabilitation program instead, particularly since he was aware that cannabis might cause him to become violently psychotic ([39]).

    Aggravating circumstances included the fact that the deceased was the accused’s long-term intimate partner, she was murdered in her own home, and the offence was not a "one-off instance of domestic violence". The fatal conduct, however, was not motivated by the same considerations which led to the earlier domestic violence instances, and was not planned ([45]-[50]). Mitigating circumstances included the accused’s cooperation with authorities, remorse, and his reasonable prospects of rehabilitation, given his excellent insight into his psychological issues and his positive response to medication while in custody ([65]-[71]). Consequently, he was sentenced to 22 years’ imprisonment, with a non-parole period of 16 years.

  • R v Cameron [2020] VSC 334 (5 June 2020) – Victorian Supreme Court
    Controlling behaviours’ – ‘Drug misuse’ – ‘Murder’ – ‘Non-fatal strangulation’ – ‘People with mental illness’ – ‘Sentencing’ – ‘Suicide threats by perpetrator’ – ‘Weapon

    Charges: Murder x 1

    Proceedings: Sentencing

    Facts: The male offender and female victim had been in a relationship for three months and lived together. The couple argued in the days leading up to the offending and the victim appeared nervous and scared to those she met. She told several friends that she could not leave, even though the offender had choked her. On the night prior to the offending, the victim visited her friend after a fight with the offender. The victim received text messages from the offender saying that he would kill himself if the victim did not come back. The offender went to the friend’s house and spoke to the victim, but the victim said she was not ready to come back home now but would come soon. The offender left the house and travelled to the house of a friend. On the way, he slashed his right forearm repeatedly; the friend wrapped the offender’s arm in a tea towel. In the meantime, the victim returned home but did not find the offender there, so she texted her friend, indicating that she thought she would be okay. A text message exchange then occurred between the offender and the victim in which the offender asked the victim if he could come home and told her that he loved her, but the victim said she did not want to talk and that "If you love someone you would not harm them and control them". The victim exchanged text messages with other people but these ceased abruptly around 4:55am.

    At this time, the offender returned home and stabbed the victim numerous times to the face, scalp, neck and arms with a kitchen knife while she was on her bed. She died quickly after this attack. The offender tried to clean the scene with bleach and hid the body and bloody sheets under the bed. He then tried to burn down the house by lighting a fire in a cabinet next to the bed, but this only smouldered as the cabinet was closed and the fire was starved of oxygen. The offender went to his friend’s place and told him that he had killed the victim, but only because she had attacked him in his sleep. He repeated this account of events to police, claiming that the victim had attacked him when he refused to get her more ice.

    Judgment: The judge sentenced the offender to 29 years’ imprisonment, with a non-parole period of 23 years. His Honour noted that the offender’s "crime of murder is a very serious example of that always serious crime" [118]. In addressing the offender, his Honour emphasised the aggravating features of the offending: "In the context of an ongoing domestic relationship which left your partner strongly fearing you, at least in the days leading up to her death, for reasons which have not in any honest way been explained by you, you took to her with a dangerous knife while she was in the sanctuary of her own bed in her own home … You ignored her futile and desperate attempts to ward off your blows. Having killed her, you showed your lack of regard for her by hiding her under her bed, conducting a cursory clean-up, then setting the fire in the cabinet intent on burning the crime scene. Then you left her, dead on the floor, covered in blood" [118]. And further, "Yours was a sustained and outrageously violent attack upon a helpless woman," such that his Honour held that the lack of planning or premeditation "said nothing about its seriousness" [121]. His Honour further stated that "You were in a position of trust where she was concerned. She should have been able to look to you for love and protection. You chose, however, to kill her by extravagant, protracted and shocking acts of violence. Each single act of stabbing her entailed serious danger to the welfare of your helpless victim. You carried out many such individual acts" [123] and that "Your breach of trust and lack of normal human decency are simply stunning" [140].

    His Honour held that rehabilitation would have little part to play in the sentence, because the offender’s prospects of rehabilitation were "exceedingly dim," given he had not honestly acknowledged his crime nor dealt with his drug and other issues [131]. Instead, just punishment, denunciation, general deterrence, specific deterrence and protection of the community were important to the sentence [141]. His Honour noted that "The sentence of this Court must make it perfectly clear that the Court deplores violent crimes of this sort, especially against a domestic partner" and that "the sentence I pass must bring it clearly home to any person who might be minded to inflict extreme violence upon a domestic partner, for whatever reason, that such conduct will be met with strong punishment" [141]. His Honour was satisfied beyond reasonable doubt that the physical altercation did not commence as the offender claimed and that his account was a complete fabrication; that is, it did not begin with the victim attacking the offender because the victim was evidently very scared of the offender and "would have known that to [attack the offender] would only serve to inflame [the offender] and might trigger a violent reaction from a person of whom she was in fear" [50], [51], [55]. In rejecting the offender’s claim, his Honour held that there was no explanation for the shocking crime [56].

    His Honour rejected that the plea of guilty was made at a reasonably early stage, having been made 16 months after the offending [59], but noted that there was still a significant utilitarian benefit to the plea, which would constitute a mitigating factor [61]. His Honour also rejected that the offender was remorseful [64], taking into account his conduct after the offending (in attempting to clean the scene and hide the body), his false assertions of the victim attacking the offender first, and his obvious sorrow for his own position, not the death of the victim. His Honour accepted that the offender had a substantial history of methylamphetamine use, and that the offender was using that drug at the time of offending [80]. However, his Honour also noted that the offender had an extensive criminal history for matters of violence, dishonesty, weapons and driving, and that he had been imprisoned numerous times and received numerous community-based dispositions which were frequently breached [83]. His Honour was not convinced that the offender actually suffered from PTSD and noted that even if he did, this would not result in any term of imprisonment weighing more heavily on the offender than a person in normal health [102]. His Honour therefore held that the principle enunciated in the fifth limb of R v Verdins [2007] VSCA 102 did not have any application in this case [103].

  • Re Brzezowski [2020] VSC 294 (28 May 2020) – Victorian Supreme Court
    Animal abuse’ – ‘Bail application’ – ‘Compelling reasons’ – ‘Past domestic violence’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Relevance of covid-19 pandemic’ – ‘Sexual assault’ – ‘Strangulation’ – ‘Unacceptable risk

    Offences: Common assault x 2; Unlawful assault x 2; Sexual assault x 2; Criminal damage; Threaten to commit a sexual offence; False imprisonment; Contravention of a Family Violence Intervention Order (FVIO) x 4; Persistent contravention of a FVIO; Committing an indictable offence whilst on bail; Contravening condition of bail.

    Proceedings: Bail application

    Issue: Whether compelling reasons exist justifying the grant of bail.

    Facts: The applicant and complainant commenced a ‘romantic’ relationship in August 2019. The applicant moved into the complainant’s home which she shared with her 23-year-old daughter. On the day of the offending, the complainant came home from work and found the applicant intoxicated. They argued before the applicant told the complainant to join him in the shower. The complainant initially refused but eventually agreed to appease the applicant who appeared angry. The applicant suggested they have sexual intercourse but the complainant refused. The applicant became violent towards her, pushing her into the shower door. The complainant tried to leave the shower but the applicant pushed her onto the bed, held her wrists above her head and thrust his knee into her thigh. The complainant kicked the applicant in the genitals. The applicant then punched the complainant in the abdomen about ten times. The applicant left the house but came back shortly later, yelling "Right, time for round two". The complainant attempted to leave in her car but was initially blocked in by the applicant’s car. She managed to leave but returned to the house to collect her dogs as she was fearful the applicant would harm them.

    The complainant went to the toilet when she arrived but found the applicant in there. The applicant rubbed faeces over the complainant’s face and hair, then pushed her up against a wall using his forearm under her chin. She broke free and called 000, while the applicant began hitting things in the house. The applicant grabbed the complainant, threw her onto the bed, pushed his forearm to her throat and punched her in the abdomen, stating he was going to give her anal with his clenched fist. The applicant got off the complainant when she grabbed his genitalia with her fingernails. She cancelled the police request but asked her sister to come and help her. The complainant’s sister and daughter arrived, followed by police.

    A full and final non-contact FVIO was granted after this incident which the applicant breached by texting and calling the complainant. On one occasion though, the complainant visited the applicant at a motel room for about five minutes.

    Judgment: The judge granted bail on the applicant’s own undertaking with strict conditions (including he: provide a $3000 surety, reside at his parent’s residence, abide by a curfew, comply with the FVIO, not contact any prosecution witness, not enter the suburb the complainant lives in, not consume alcohol or drugs), finding that the applicant had established that a compelling reason exists to justify the granting of bail, despite the offending being "serious and distasteful" [65]. The applicant argued that the following were compelling reasons to justify bail: the applicant’s limited criminal history (he has only come before court twice); his first time in custody; weakness of the prosecution case (the complainant’s credibility is likely to be successfully challenged); delay (one year on remand); implications of the COVID-19 pandemic (lockdowns and the possibility the virus could enter prisons); availability of stable accommodation with the applicant’s parents; his ties to the jurisdiction, including his parents and children; $3000 surety from his mother; other conditions to reduce the magnitude of risk (for example, imposition of a curfew) [32].

    His Honour noted that the applicant conceded that the offending was serious, finding that "the offending alleges multiple acts of family violence committed by a more powerful male upon a relatively vulnerable female who would have been entitled to look to him for protection, rather than physical violence and threatening conduct" [49] and that the applicant "flagrantly breached requirements" of the FVIO [50]. While his Honour did accept that the complainant’s credit "will be subject to strong and justifiable attack", he found that the prosecution case could not be described as weak due to other things supporting the complainant’s account [52]-[53].

    His Honour further found that the applicant’s criminal history included a finding of guilt for an assault upon a previous domestic partner and that the applicant had "deliberate and flagrant disregard" for previous grants of bail. As such, his Honour held that there was a "real concern as to [the applicant’s] willingness to abide by conditions of bail" that might be imposed in the future [57]. Furthermore, his Honour noted the existence of the FVIO and that the complainant was very frightened of the applicant and dreaded his release on bail [60].

    His Honour accepted that a full year on remand would be a significant period of time for a case which would remain in the summary stream [61] and that such a period would be particularly significant in light of the onerous conditions as a result of the COVID-19 pandemic [62]. Additionally, his Honour held that the applicant was likely to receive a sentence lower than the period of time he would spend on remand if not bailed [63]. In considering the "unacceptable risk" test, his Honour noted that there was a legitimate concern that the applicant would try to contact the complainant again, but that, since his arrest, the applicant had not attempted to contact the complainant and had not been violent towards her. His Honour considered that the risk posed by the applicant could be ameliorated with imposition of strict bail conditions.

  • Re Mazzitelli [2020] VSC 288 (21 May 2020) – Victorian Supreme Court
    Bail application’ – ‘Covid-19 pandemic’ – ‘Exceptional circumstances’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Pregnancy of victim’ – ‘Protection order’ – ‘Separation’ – ‘Substance abuse’ – ‘Threats to kill’ – ‘Unacceptable risk’ – ‘Weapons

    Offences: Intentionally cause injury x 3; Common assault x 8; Making a threat to inflict serious injury x 2; Attempt to pervert the course of justice x 2; Being a prohibited person in possession of an imitation firearm x 2

    Proceedings: Bail application

    Issues: Whether exceptional circumstances exist justifying the granting of bail; Whether there is an unacceptable risk that the applicant would reoffend or endanger the community if released.

    Facts: The male applicant and female complainant were in a relationship from November 2017 until September 2018, during which there were a number of separations and reconciliations. From February 2018, there were numerous instances of violence by the applicant towards the complainant. These included: using a chain like a whip to hit the complainant; pushing her out of the car; splashing hot wax on her hair, face and arms; tasering her; hitting her on the back of the head; throwing drinking glasses at her; kicking her hard in the stomach when she was pregnant; burning her on her back with a blow torch; and hitting her with a metal pole. The applicant also made several threats towards the complainant, including: a threat to cut her hands off; threatening to kill her (while holding a gun); threatening to shoot different limbs; threatening her so that she would recant her testimony to police. The applicant’s sister told the complainant that she had to tell police that she made up the allegations, and the complainant later made a statutory declaration to this effect. However, she maintained the allegations at the committal hearing and explained why she made the statutory declaration.

    Judgment: The judge refused the bail application, holding that the applicant failed to establish exceptional circumstances existed that justified the granting of bail and even if this had been established, the risk posed by the applicant of reoffending or endangering the community if released would be unacceptable. The applicant relied on the following matters as proof of exceptional circumstances: delay (about two years from arrest until trial), onerous nature of remand due to the COVID-19 pandemic, weakness of the prosecution case, absence of any contact with the complainant while on bail, availability of support through CROP (a drug intervention program), family support and stable accommodation, modest criminal history (no convictions for violence), first time in custody, no pending matters other than the trial, and the applicant’s medical condition [43]-[44].

    His Honour found that the applicant did not challenge the proposition that the offending was serious, noting that "Whilst not anywhere near the higher end of the range of seriousness of offences of family violence, the alleged attacks by the applicant upon his then partner were repeated, nasty, and had some disturbing elements to them, including the use of weapons and the infliction of a kick to the abdomen of a pregnant woman" [58]. His Honour considered that the complainant was scared of the applicant and a FVIO was in place with her as a protected person [71].

    His Honour also found that the prosecution case was not weak, the applicant’s criminal history "reveal[ed] some signs of a lack of respect by the applicant for the orders of the court", and the applicant had already been imprisoned in the past for failing to answer bail. His Honour noted that the applicant’s conduct in respect of bail "paint[ed] a picture of a person who is entirely unwilling to comply with the requirements of bail when they do not suit him" and that this was an important consideration when assessing exceptional circumstances [67].

    While his Honour accepted that the applicant had an extensive history of illicit drug use as a form of pain relief for an accident the applicant suffered eight years ago, his Honour held that it was completely unacceptable for the applicant to do this, particularly where the applicant knew this would breach his bail conditions [69]. Furthermore, his Honour held that the provision of family support was "not an important matter in the overall mix of circumstances in this case" where the applicant had family support in the past but still offended [70]. His Honour noted that the applicant was likely to spend 17 months on remand before trial, but that this "is not, on its own, or in combination with other factors, exceptional" [72]. In any event, any sentence imposed was likely to exceed this period anyway [73].

  • Re Sepehrnia [2020] VSC 247 (6 May 2020) – Victorian Supreme Court
    Bail application’ – ‘Controlling behaviours’ – ‘Extensive criminal history’ – ‘Firearm’ – ‘History of abuse’ – ‘Non-fatal strangulation’ – ‘Physical violence and harm’ – ‘Rape’ – ‘Relevance of covid-19 to bail application’ – ‘Separation’ – ‘Step-children in home’ – ‘Substance abuse’ – ‘Threat to kill’ – ‘Weapon

    Offences: Rape x 2; Infliction of injury; Threats; Damaging property.

    Proceedings: Bail application

    Issue: Do exceptional circumstances exist justifying the grant of bail; does the applicant pass the unacceptable risk test.

    Facts: The male applicant threatened to kill and physically harm his female ex-partner, MZ, on multiple occasions, including by pointing a firearm at her and threatening to throw acid in her face. Following an argument between the couple, the applicant punched MZ in the face and kicked her in the middle of her back, before pushing her on the bed, covering her face with a pillow and stating that he was going to rape her. He removed the pillow and grabbed MZ around the throat before raping her. The assault lasted several minutes before the applicant left MZ alone at his house. MZ reported the assault (but not the rape). When the applicant learnt of this, he threatened to kill MZ’s family. A Family Violence Intervention Order (‘FVIO’) was issued to protect MZ.

    The applicant also threatened to kill and physically harm another female ex-partner, SB, and her children, and frequently damaged her property. On a number of occasions, the applicant slapped, spat on, choked, scratched, pulled SB’s hair and threw her to the ground. He also physically assaulted SB’s 16-year-old daughter and one of SB’s friends, and detained SB in her home on one occasion. SB ended the relationship, but the applicant continued to abuse her until he was remanded for other matters. After his release, the applicant attended SB’s house, forced her onto her bed, threatened to kill her if she was ever with another guy, and raped her.

    The applicant applied for bail twice in relation to the charges arising out of these events, but both applications were refused as the applicant failed to establish exceptional circumstances and there was an unacceptable risk of further offending.

    Held: The judge refused to grant bail as the applicant failed to establish that exceptional circumstances existed justifying bail and if the applicant were released, there was a high risk that he would endanger the safety of the public, commit offences while on bail, interfere with witnesses and/or fail to answer bail. The applicant contended that various matters, when considered together, constituted exceptional circumstances. These included: delay (his trial was unlikely to occur until next year because of the COVID-19 pandemic and he already spent 252 days in custody); the onerous circumstances of his custody (he has been held in protection due to physical attacks upon him and receives no visitors due to COVID-19 restrictions); lack of strength of the prosecution case; his criminal history occurred in the context of drug use; he has used his time in custody well (by completing courses and maturing); the availability of stable residence, employment and family supports; and the availability of a surety of $500,000 [33].

    His Honour held that the offending was very serious [47], the cases against the applicant were not weak [48], his criminal history (violence, dishonesty and weapons offences, breaches of FVIOs, failing to answer bail) rose questions as to his character and ability to abide by any court orders [49], he had previously been convicted for failing to answer bail [50], at the time of offending he was already subject to bail and CCOs [51], he was very unlikely to be willing and able to comply with any bail conditions [52], there were already several FVIOs against the applicant [53], the proposed living arrangements if he were to be released were unsatisfactory as the applicant has committed family violence against his mother and sister in the past (with whom it was proposed he should live) [54], there was no evidence he had taken major steps towards dealing with his drug issues [55], both victims were frightened of the applicant [56], and he would receive a much longer term of imprisonment if convicted for even one rape offence than he would on remand [57].

    His Honour also noted the implications of the COVID-19 pandemic, but approved Re Tong [2020] VSC 141 in which the court held that the pandemic is "simply part of the surrounding circumstances required to be taken into account in a consideration" of steps in the bail process. His Honour therefore was "far from satisfied that the applicant … discharged the onus resting on him to establish the existence of exceptional circumstances" [59].

    Even if the applicant had established exceptional circumstances, His Honour concluded that the risk of the applicant harming the victims and/or their families was so high that His Honour would have refused bail in any event [62].

  • Re Bertucci [2020] VSC 88 (2 March 2020) – Victorian Supreme Court
    Bail application’ – ‘Children present’ – ‘Contravention of protection orders’ – ‘History of domestic violence’ – ‘No exceptional circumstances’ – ‘Physical violence and harm’ – ‘Separation’ – ‘Uncharged acts

    Charges: Various offences, including contraventions of FVIO, recklessly causing injury, unlawful assault, failing to answer bail and committing an indictable offence on bail

    Case type: Application for bail

    Facts: On 19 April 2019, the applicant man was charged with contravention of a FVIO and persistent contravention of a FVIO (‘the informant Sidorovska matter’). He was released on bail, however, after failing to appear in the Sunshine Magistrates’ Court, an order was made forfeiting his bail and a further bench warrant was issued for his arrest. On 2 October 2019, the applicant was charged with recklessly causing injury, unlawful assault (x 2), contravention of a FVIO, failing to answer bail and committing an indictable offence on bail (‘the informant McKay matter’). The applicant had been refused bail twice in the Sunshine Magistrates’ Court in relation to both sets of charges.

    The applicant and complainant woman were in a relationship and have 3 children together. At the time of the relevant alleged offending in the informant Sidorovska matter, the applicant and complainant were separated and a final no-contact FVIO was in place against the applicant, listing the complainant and the children as the affected family members. In relation to the informant McKay matter, the applicant allegedly assaulted the complainant woman by striking her to the leg with an implement, as well as to the head. This occurred in contravention of a FVIO and in close proximity to the children.

    Issue: The issue for the Court was whether exceptional circumstances existed to justify bail and whether the previous history of family violence towards the complainant not resulting in findings of guilt should be taken into account.

    Held: The Court refused bail as the applicant failed to discharge the onus to prove the existence of exceptional circumstances to justify his release on bail ([64]). In considering the submissions for a finding of exceptional circumstances, the Court found that:

    • the decision on bail would not interfere long-term with the prospects of the family being reunited ([49]);
    • allowing the applicant to live with the complainant and children would do nothing to mitigate the risk of reoffending as such a living environment was ‘far-from stable’ ([50]);
    • the applicant’s two-months of part-time employment leading up to the date of the contested hearing was relatively insignificant ([51]);
    • the prosecution’s case in respect of the two sets of charges was not weak ([52]);
    • the multiple breaches of the intervention order indicated a deliberate disregard and lack of respect for the court order imposed to protect his partner and children from him ([53]); and
    • striking a female with an implement cannot be described as trivial offending ([54]).

    Although the applicant’s criminal history was not lengthy, it was deemed highly significant. For example, he had previous convictions for persistent contravention of a FVIO, and had previously acted with violence towards another female partner, both of which resulted in imprisonment ([57]). This indicated that he had not been adequately deterred and showed a lack of regard for court-imposed sanctions and for the importance of bail ([63]). There had also been a number of alleged incidents of family violence towards the complainant, which did not result in findings of guilt. The Court considered these matters as relevant to whether the applicant posed a risk of future endangerment to the complainant and her children ([58]-[59]).

  • R v Eckersley [2020] VSC 22 (30 January 2020) – Victorian Supreme Court
    Children exposed’ – ‘Controlling behaviour’ – ‘Domestic homicide’ – ‘Guilty plea’ – ‘Misuse of drugs and alcohol’ – ‘Mitigating circumstances’ – ‘Moral culpability significantly reduced by psychosis’ – ‘Murder’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Verdins principles

    Offences: Murder

    Proceedings: Sentencing

    Issue: Appropriate sentence

    Facts: The male offender and female victim had been in a domestic relationship from 2001 until the victim was killed in July 2018. They had three children together. There was a history of controlling behaviour by the offender towards the victim. The offender’s mental health had deteriorated in the lead up to the offence, with his GP recording that the offender was "struggling with depression due to a loss of income and employment, and that [he] had been self-medicating with alcohol and cannabis but had stopped consuming these substances" [9]. The GP did not observe any homicidal ideations or psychosis symptoms at the time.

    The morning of the offence, the neighbours heard a large argument ensuing within the offender’s home. The offender threw food and cleaning products into the rubbish and damaged items in the kitchen with a hammer before suddenly attacking the victim by punching her in the face. The victim fell to the ground and was kicked by the offender before he grabbed a knife and stabbed her in the head, neck, chest and upper body. The attack was witnessed by two of their children, one of whom unsuccessfully tried to stop the attack. The offender then proceeded to set fire to a near-by fabric couch and applied the lighter flame to the older daughter’s shoulder. He then forced the children and family dog into a car and drove away. Police later found the offender and children unharmed.

    The offender suffered from ‘severe, acute and transient’ drug-induced psychosis at the time of offending [62]. The offender’s psychosis meant that his degree of moral culpability was of significant dispute.

    Held: Eckersley was sentenced to 22 years’ imprisonment with a non-parole period of 18 years.

    The judge provided that ordinarily, "a drug-induced psychosis does not commonly result in the application of the Verdins principles and a mitigatory outcome" [88]. However, as the offender was prescribed the drug by his GP and was not aware that they could cause psychotic symptoms, the judge was satisfied of the offender’s low moral culpability [92]. This lower culpability lessened denunciation and deterrence as sentencing factors, however the judge noted that this did not "take away from the fact that the killing of an intimate partner is an inherently terrible act" [108]. The judge also noted that while the murder did not occur in the context of a history of family violence, "the killing of an intimate partner is a most serious form of offending which must again be tragically emphasised by the Court" [112].

    In sentencing Eckersley, Justice Champion considered the children witnessing the offence, the offender’s destruction of the victim’s body and fleeing the scene as aggravating factors. The unreasonable delay in sentencing was also accounted for.

  • Re Rodgers [No 2] [2019] VSC 760 (20 November 2019) – Victorian Supreme Court
    Bail’ – ‘Delay’ – ‘Emotional and psychological abuse’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Strangulation

    Charges: 33 offences, including strangulation

    Case type: Bail application

    Facts: The applicant was charged with 33 offences, 32 of which arose out of incidents alleged to have occurred over 3 days. The other charge involved the contravention of an undertaking given to the Magistrates’ Court. The primary complainant was the applicant’s wife, however, the alleged offending also involved the complainant’s children. It was alleged, among other things, that the applicant grabbed the complainant’s throat and pushed her head through a wall, while threatening her that he would ‘drain’ their bank account and take their daughters to the United States ([6]).

    The applicant was refused bail in August 2019, and applied for bail again ([3]-[4]). The applicant contended that a compelling reason to justify a grant of bail could be established based on his personal and financial circumstances, the strength of the charges against him, the likely delay until determination of the charges, and the lawful sentencing range open to the sentencing court. He also submitted that, without being granted bail, he was likely to spend a significantly longer period of time on remand ([11]-[12]). On the issue of unacceptable risk, the respondent pointed to the applicant’s ‘history of contravention of court orders’ and his addiction to illicit substances which appeared ‘to be linked to his offending and violence against the complainant and [her] children’ ([17]-[21]).

    Issue: The issue for the Court was to determine whether a ‘compelling reason’ existed in favour of bail.

    Held: The applicant was admitted to bail on strict conditions. In the Court’s view, bail conditions, such as daily reporting to police, prohibition from approaching the vicinity of the complainant’s residence and curfews, would sufficiently mitigate any risk posed by the applicant ([33]). The applicant was 33 years of age, and had a limited prior criminal history and no prior criminal history involving violence. He had no prior convictions for breaching court orders, however, he previously admitted to breaching a family violence order ([26]-[27]). The applicant ran a trucking business, which would likely suffer financially if he was not granted bail. Factors militating against the applicant included the seriousness of the allegations of strangulation and the fact that the complainant was afraid of him. Nevertheless, the Court found that the applicant had established a compelling reason to justify the grant of bail, given his lack of a negative bail history, the modesty of his criminal history, his personal and financial circumstances, the time already spent in custody, the period of any likely sentence and the material and recommendations in the CISP Remand Outreach Program (CROP) report ([30]).

  • The Queen v Karatzas [2019] VSC 658 (26 September 2019) – Victorian Supreme Court
    Depression’ – ‘Evidence’ – ‘Mitigating factors’ – ‘Murder’ – ‘Past domestic violence’ – ‘People with mental illness’ – ‘Remorse’ – ‘Sentencing’ – ‘Strangulation

    Charges: Murder

    Proceedings: Sentencing

    Facts: The accused and victim were married. After an argument with the victim, the accused strangled her with an electrical extension cord until she collapsed and fled the scene. Expert evidence that the accused was suffering from a major depressive episode at the time of the offence ‘which may have clouded [his] thought processes and [his] appreciation of the consequences of [his] actions’ [24] was accepted at trial along with evidence that the accused loved his wife and had been violent to her before.

    Issues: Appropriate sentence

    Decision and reasoning: The accused was sentenced to 16 years’ imprisonment with a fixed non-parole period of 11 years.

    The court accepted that the fact the accused was suffering from a major depressive episode significantly reduced the accused’s moral culpability [24]. Beale J said ‘[d]omestic violence murders are often upper range examples of the offence of murder, particularly where there has been a history of domestic violence. This is not your case. The fact that you killed your wife of nearly 50 years was a gross breach of trust which elevates the seriousness of your offending but, having regard to all circumstances, and particularly your mental illness, I find that yours is a mid-range example of the offence of murder’ [25]. The other mitigating factors considered by his Honour include the accused’s: remorse; previous good character; excellent prospects of rehabilitation; age; and ‘the punishment [the accused will] continue to experience knowing you killed your beloved wife’ as other mitigating circumstances [54].

  • The Queen v Bufton [2019] VSC 621 (13 September 2019) – Victorian Supreme Court
    Controlling, possessive, jealous behaviour’ – ‘Female perpetrator’ – ‘Lack of remorse’ – ‘Murder’ – ‘Protection order’ – ‘Separation

    Charge: Murder

    Proceedings: Sentencing

    Facts: The female offender was found guilty following trial of the murder of her male domestic partner, her various offers of a guilty plea to negligent manslaughter, then dangerous driving causing death (following the death of the sole living witness to the offence), and then again negligent manslaughter having been rejected. The pleas offered appeared to relate to the Crown’s perceived prospects of proving their case with the evidential difficulties occasioned by the death of the witness.

    The offender and victim had a turbulent relationship involving many arguments and periods of separation from January 2016 until his death in October 2017. The victim was attempting to remove his caravan from the offender’s property when the offender became verbally abusive and refused to let the victim move it. The victim walked away to call police for assistance but was followed by the victim in her car and struck by the vehicle. The call to 000 remain connected during the accident and picked up the ensuing conversation between the offender and a witness in which the offender claimed that the victim jumped in front of her car and she was unable to avoid him. This false story was later repeated to police.

    The offender was 68 years of age and had no prior criminal convictions. She had been diagnosed with cancer. She was subject to an intervention order prohibiting the commission of family violence against the victim at the time of offending.

    Held: Bufton was sentenced to 24 years’ imprisonment with a non-parole period of 18 years.

    The Court treated this protection order as an aggravating feature along with the use of a dangerous weapon and noted that the ‘crime occurred in the context of [Bufton] having been in a domestic relationship with [the victim], and of [Bufton] having acted out of anger and frustration at the state of the relationship [36]. Her persistence in the false account of events and the fluctuating pleas were considered to be indicative of a lack of contrition or remorse[46-52]. Assistance rendered by the offender to the accused was conduct which could be explained by the crime being carried out in full view of the witness[53]. The judge said at [52]:

    "For completeness, I make it clear that you are not to be punished for your refusal to admit what you had actually done, or for pleading not guilty to murder. Rather, these facts point to the absence of a possible mitigating feature of your crime which would have existed were you to have been willing to accept the true criminality of your conduct."

    Just punishment, denunciation and general deterrence were treated as the most important sentencing purposes, with the significance of specific deterrence being reduced in light of Bufton’s age and cancer diagnosis.

  • Re Rodgers [2019] VSC 553 (20 August 2019) – Victorian Supreme Court
    Bail’ – ‘Children’ – ‘Intervention order’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Unacceptable risk

    Charges: Multiple charges of causing injury intentionally and recklessly, a charge of recklessly causing serious injury, charges of reckless conduct endangering life and endangering person, a charge of making a threat to kill, drugs charges, a charge of criminal damage, and numerous breaches of Family Violence Intervention Orders (FVIO)

    Case type: Bail application

    Facts: The applicant applied for bail on a number of charges, which arose out of family violence related incidents. The complainants include his former wife and children.

    Issue: The issue for the Court was to determine whether a ‘compelling reason’ existed in favour of bail.

    Held: The Court refused the bail application as there would be an unacceptable risk that the applicant would endanger the safety and welfare of the complainant and her children, or commit further offences while on bail ([65]). The nature and seriousness of the offending was considered to be the most important matter for the Court. Tinney J described the offending as ‘quite disturbing, with a significant and worrying risk of causing serious injury or death’ ([51]). Some of the alleged violence occurred in the presence of one or more of the children, and occurred in the family home ([54]). Although the applicant’s criminal history was limited, he had been found guilty of assaulting the complainant in the past. Further, he was on an adjourned bond for that assault ([56]), and was also subject to a FVIO at the time of the alleged offending ([57]).

    There were many personal circumstances favourable to the applicant. For example, he had a supportive family and was the operator of a company which, in his absence, struggled financially ([58]). According to Tinney J, the applicant’s prolonged drug use had a significant impact on the alleged offending, and would increase the risk of failure to comply with his bail conditions ([59]). The complainant’s attitude to bail was also a relevant consideration. She was afraid of the applicant and did not want him to be released on bail ([60]). His Honour concluded that there were sufficiently compelling reasons to deny the applicant a grant of bail ([63]).

    Additional matters of concern included ([64]):

    • The applicant allegedly repeatedly and violently assaulted his wife;
    • The offending allegedly occurred in the context of ongoing drug use by both the applicant and the complainant;
    • The offending occurred despite there being an intervention order in place and the fact that he was subject to an adjourned bond for a previous assault on the complainant; and
    • If bail was granted, the conditions imposed on the applicant would not have sufficiently reduced the risks to a level where they would be acceptable.

    Note: An appeal against this decision to refuse bail was rejected by the Victorian Court of Appeal - Rodgers v The Queen [2019] VSCA 214 (26 September 2019)

  • The Queen v Solmaz [2019] VSC 530 (12 August 2019) – Victorian Supreme Court
    Arranged marriage’ – ‘Denunciation’ – ‘Domestic violence’ – ‘Expert evidence’ – ‘Lack of remorse’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘People with mental illness’ – ‘Physical violence and harm

    Charges: 1 x murder

    Case type: Sentence

    Facts: The offender pleaded guilty (shortly before the trial was due to commence) to the murder of his former wife, with whom he entered into an arranged marriage when he was 18 years of age. They had 2 children. The murder occurred in the context of an unhappy relationship which had subsisted for many years leading up to her death. The offender claimed that the deceased attacked him with a broken leg of a table and that he took the piece of wood from her and hit her repeatedly. He then used an extension lead to strangle her ([10]). In the aftermath, the offender left the deceased dead on the floor and went to his step-sister’s home where he confessed to the killing. He then fled Melbourne, and was intercepted by Queensland police two days after the killing.

    Issue: The issue for the Court was to determine the appropriate sentence for the offence.

    Held: The Court sentenced the offender to 25 years’ imprisonment with a non-parole period of 20 years. The offender was 60 years of age and was born in Bulgaria. He had one prior conviction of unlawful assault, but this had limited significance to his case ([33]). Medical evidence indicated that he was diagnosed with Adjustment Disorder, and was likely depressed at the time of the deceased’s death. One expert considered that his Adjustment Disorder contributed to his offending by diminishing his ability to reason and make sound judgment ([45]). The Court, however, noted several deficiencies in this expert’s evidence, such as the fact that he heavily relied on the truthfulness of the offender’s account to him about his relationship with the deceased and that it conflicted with other expert evidence ([86]-[94]). Consequently, the Court did not accept this expert evidence and rejected the defence’s submissions in respect of the Verdins principles to reduce the sentence, other than for the purpose of the hardship of imprisonment ([95], [99]). According to the Court, the offender’s conduct could not be connected to any defect in his reasoning abilities or be characterised as an impulsive crime. He inflicted multiple, forceful blows to the deceased. The ‘shocking and protracted nature of the crime’ indicated that any impairment to mental functioning was not causally connected to the offending, and that he intended to kill her ([96]-[97]). The crime was described as one of ‘extravagant and drawn-out violence committed against a physically weaker person whom [the offender] apparently detested and who had offered some provocation to [him] by striking [him] with the leg of the table’ ([97]).

    While the offending was not premeditated, the Court considered it to be at the high end of the range of seriousness. The crime was an extreme overreaction to modest provocation by the deceased and the challenges of their ‘sad and troubled relationship’ ([102]). The Court also found that the offender had not exhibited true remorse ([111]). His prospects of rehabilitation, however, were found to be good ([117]).

    Relevant sentencing principles included just punishment, denunciation and general deterrence. The Court found it necessary to make ‘perfectly clear’ that it deplores violent crimes of this nature, particularly those committed against domestic partners. The deceased’s life was ‘precious’, and was brutally and deliberately taken away by the offender as a result of his anger, resentment and frustration. He had full knowledge of the severity and criminality of his actions ([121]-[122]).

  • R v Stone [2019] VSC 452 (12 July 2019) – Victorian Supreme Court
    Exposing children’ – ‘Female perpetrator’ – ‘History of abuse’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Sentence’ – ‘Separation

    Offences: Murder

    Proceedings: Sentencing

    Issue: Appropriate sentence

    Facts: The male victim and female offender (Stone) had been married for 22-years and had five children together. Evidence tendered during trial was that the male victim had reported an incident of the offender chasing him from the house with a knife. Neighbours also reported sounds of arguing and physical violence coming from the home prior to the incident that lead to the victim’s death. There was evidence that the victim told members of his extended family that he intended to leave the relationship the day of the incident that lead to his death.

    The Crown case was that Stone doused the victim with highly flammable enamel thinner and set him on fire. While none of the children saw the victim committing the offence, one of the daughters saw their father engulfed in flames and heard him say that he was going to die. Another daughter saw the trail of debris left by the victim as he ran to the bathroom after being set alight.

    The victim was found conscious by paramedics despite sustaining burns to 95% of his body, including his airways. He was placed on life-support and interviewed but did not recover. Both the victim and Stone gave false versions of the events, claiming that the victim had been attacked by three men. Stone provided the names of the alleged offenders but failed to identify them during police interviews and was subsequently arrested herself.

    Held: The accused was sentenced to 34 years’ imprisonment with a non-parole period of 28 years. The Court provided that murder is "the ultimate act of family violence", with the offender’s ‘vicious and barbarous’ conduct constituting a "a violation of the security of the sanctity of the home and a massive breach of trust" [32]. With the offender’s conduct being ‘a most serious example of murder’, the Court found the objective gravity of the offence and offender’s moral culpability to be ‘extremely high’. As such, denunciation and deterrence were the primary sentencing considerations along with protection of the community [42].

    Note: Subsequent applications for leave to appeal against conviction (on grounds that the trial judge erred in finding the applicant’s alleged lies were reasonably capable of amounting to ‘incriminating conduct’; (2) the verdict was unsafe and unsatisfactory or cannot be supported having regard to the evidence; and (3) a substantial miscarriage of justice occurred because of the failure of the prosecution to disclose telephone records); and sentence on the ground that the sentence was manifestly excessive were dismissed: Stone v The Queen [2021] VSCA 186 (24 June 2021) – Victorian Court of Appeal.

    See also R v Stone (Ruling No 1) [2018] VSC 625 (19 October 2018) – Victorian Supreme Court and R v Stone (Ruling No 2) [2018] VSC 626 (19 October 2018) – Victorian Supreme Court.

  • R v Willis [2019] VSC 398 (20 June 2019) – Victorian Supreme Court
    History of family violence’ – ‘Murder of parent’ – ‘People with mental illness’ – ‘Sentencing’ – ‘Verdins

    Charges: Murder x 1.

    Case type: Sentence.

    Facts: The offender pleaded guilty to the murder of his mother. The case raises important community issues and the connection between drugs, mental health and family violence. The evidence showed that the offender and his mother had significant mental health issues, which strained their relationship and ultimately led him to stab her to death ([2]). The offender admitted to killing his mother to police, and made further admissions to his father and former partner. Lasry J described the murder as ‘grave and tragic’. The victim was vulnerable and defenceless in the face of the attack, and her death was the culmination of a lengthy history of hostility and family violence between them ([17]).

    Issue: The Court determined the appropriate sentence for the offence in the circumstances.

    Held: Lasry J noted the offender’s personal circumstances at [21]-[25], and the issue of mental health and substance abuse at [26]-[33]. He started using drugs as a teenager, however remained drug free for several years. His deteriorating mental health and increasing drug use led to the breakdown of his relationship with his former partner and the loss of his job. The offender had also been diagnosed with Delusional Disorder and subject to various treatment orders. A forensic psychiatrist gave evidence of the offender’s long history of major mental disorder and substance misuse, but noted that he had no history of being violent or anti-social other than when he was psychotic or affected by drugs. The offender also suffered from paranoid schizophrenia which was likely precipitated by his cannabis use and aggravated by his methamphetamine use.

    The offender pleaded guilty at a relatively early stage of the proceedings. An element of remorse was identified in his post-offence conduct; however his Honour noted that the offender’s hostility towards his mother had not completely abated ([41]-[43]).

    Further, the offender had no criminal history and made efforts to improve himself while in custody through education and work opportunities. Lasry J was satisfied that there was some evidence that he was capable of leading a law-abiding and productive life, and that his prospects of rehabilitation depended on his compliance with treatment for his mental health and substance misuse ([44]-[45]).

    Lasry J was satisfied that the principles arising from Verdins meant that the offender’s moral culpability was significantly reduced. Community protection was not a significant sentencing consideration provided that his serious mental health issues were properly managed ([53]). The offender was sentenced to 20 years’ imprisonment with a non-parole period of 14 years.

  • R v Considine & Anor [2019] VSC 386 (31 May 2019) – Victorian Supreme Court
    History of abuse of accused’ – ‘People affected by substance misuse’ – ‘People with disability and impairment’ – ‘Sentencing’ – ‘Strangulation

    Charges: Murder x 1.

    Case type: Sentence.

    Facts: The offender pleaded guilty to murdering the victim. The offender’s partner of around 9 years, Hogan, pleaded guilty to assisting him. The relationship between the offenders involved homelessness, drug use and domestic violence. In 2015, while the offender, Considine, was serving a term of imprisonment, Hogan and the victim met on Facebook and commenced an intimate relationship. When the offender was released from prison, Hogan and the victim ended their relationship, but resumed social media communication in 2017. The offender, Considine, became aware of this relationship. Considine and Hogan arranged a threesome with the victim. The offender became jealous of the sexual activity between Ms Hogan and the victim, and strangled the victim to death. Ms Hogan assisted the offender to dispose of the body.

    Issue: The Court determined the appropriate sentence for the offence in the circumstances.

    Held: The offender, Considine, began consuming alcohol and taking drugs as a teenager. A forensic psychiatrist diagnosed the offender with Borderline Personality Disorder and believed that he likely had an acquired brain injury (ABI). He therefore concluded that it was likely the offender was experiencing severely impaired impulse control at the time of the offending due to his intoxication with multiple substances and Borderline Personality Disorder and probable ABI ([49]). Champion J accepted this opinion at [71]. The offender also had an extensive criminal history, however very few of his convictions involved violence ([52]). The offender’s moral culpability was reduced by various factors, including his intellectual impairment and personality disorder ([71]). The offender’s guilty plea showed a willingness to accept responsibility for the victim’s death and spared the victim’s family and friends from the traumatic effects of a contested trial ([73]). His Honour also accepted that the offender was remorseful for having killed the victim, even though this took some time to develop ([76]). The offender was sentenced to 21 years’ imprisonment with a non-parole period of 16 years ([115]).

    Ms Hogan also commenced using drugs at an early age and had a minor criminal history ([56]-[57]). It was submitted that her role in the offending could not be separated from the nature of her relationship with the offender which was ‘marred by domestic violence, control and drug use’. It was also submitted that these circumstances reduced her culpability ([86]). Champion J considered that her experience of domestic violence was a factor relevant to the establishment of her state of mind, and mitigated the circumstances of her offending to some extent ([90]). She also decided to cooperate with the police and offered to plead guilty at an early stage ([94]). His Honour accepted that she was genuinely remorseful for the victim’s death ([96]). Ms Hogan was sentenced to one year and 10 months’ imprisonment ([118]).

  • R v Davsanoglu [2019] VSC 332 (24 May 2019) – Victorian Supreme Court
    Children’ – ‘Imprisonment’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Suicide pact

    Charges: Murder x 1.

    Case type: Sentencing.

    Facts: The accused ‘[inflicted] his will on a woman [the deceased] by the use of fatal violence in her home’. They had maintained a relationship over several years, which ended as a result of her family’s disapproval. The deceased later remarried and had a child. The accused and the deceased later re-established their relationship, but it was ‘marked by periods of instability’ [8]. In 2017, the deceased became engaged to another man. On 13 July 2017, the accused visited the deceased’s residence, where they ‘apparently had a sexual encounter’ while her child was asleep [10]. The accused killed the deceased by holding her underwater in a bath. The accused then removed her body from the bath, partially dressed her in clothes, and placed the body in his car. He drove the deceased’s body from Melbourne to South Australia, as he intended to deposit it in the ocean. He also purchased 2 knives and inflicted superficial incisions to his wrist. The accused decided to return to Melbourne where he deposited the body in the garage of an unoccupied property that he had previously leased. He confessed to killing the deceased to his friends and family, but said that she had told him to kill her and that he had tried to kill himself. At the police station, the accused gave conflicting evidence on his feelings about the deceased’s relationships with other men.

    Issue: The Court determined the appropriate sentence for the offence in the circumstances.

    Held: Lasry J inferred that the appellant’s self-inflicted injuries were not a genuine attempt to suicide, but a means of explaining his involvement in the killing by reference to a ‘suicide pact’ ([14]). By reference to Ron Felicite v The Queen [2011] VSCA 274, his Honour noted that the seriousness of the offending required the imposition of significant punishment ([27]). It represented the accused’s endeavour, through the use of fatal violence, to control the deceased, and to overpower her rejection of their relationship ([23]). Relevant sentencing principles included general deterrence, denunciation and just punishment. His Honour also noted aggravating circumstances, including the fact that the killing occurred in the deceased’s home while her child was asleep in the nearby room, and that he abandoned the child when he drove off with the deceased’s body ([26]).

    Lasry J also considered the peculiarity of the accused’s guilty plea. It was given in circumstances which made it difficult for his Honour to determine whether it was a sign of genuine remorse over the deceased’s death. The accused would have derived a greater benefit had he pleaded guilty at an earlier time ([31]-[34]). Personal circumstances of the accused were also considered. He was born in Turkey, raised in an environment of domestic violence, lived in foster homes, did not receive any formal education in Australia, maintained employment since the age of 18, and had no prior convictions for violence ([35]-[37]). The accused’s steady employment throughout his adulthood and lack of prior criminal convictions indicated positive rehabilitation prospects ([38]). The sentence was also determined in light of victim impact statements ([28]-[30]).

    His Honour sentenced the accused to 23 years’ imprisonment with a non-parole period of 18 years ([42]). He allowed some discount for the accused’s guilty plea. As his Honour was not satisfied that the accused’s guilty plea reflected significant remorse or acceptance of responsibility for his conduct, only a small discount was made ([44]).

  • DPP v Jensen [2019] VSC 327 (17 May 2019) – Victorian Supreme Court
    Attempted murder’ – ‘Binge drinking’ – ‘Intentionally causing serious injury’ – ‘Sentencing

    Charges: Attempted murder x 2; intentionally causing serious injury x 1.

    Case type: Sentence.

    Facts: The offender had maintained an incestuous relationship with his sister since he was 17 years old, and they have a child together. While they were still living together, but after their relationship ended, his sister began an intimate relationship with the first victim. The offender, while intoxicated, entered the first victim’s house which he shared with his mother. The offender found the first victim and his sister asleep in bed together, and stabbed them both repeatedly and also stabbed the first victim’s mother who intervened. The offender pleaded guilty to 3 offences: the attempted murder of the first victim (charge 1) and his own sister (charge 2), and intentionally causing serious injury to the first victim’s mother (charge 3).

    Issue: The Court determined the appropriate sentence for the offences in the circumstances.

    Held: Beale J sentenced the offender to 19 years’ imprisonment, with a non-parole period of 14 years. The offender was sentenced as a Serious Violent Offender on charges 2 and 3 pursuant to the Sentencing Act 1991.

    Notwithstanding the offender’s relative youth, good work history, limited prior convictions and guilty plea, his Honour could not accept the submission that the offender had good prospects of rehabilitation. The violence was extreme and sustained, and the offender had a history of binge drinking. Even though his intimate relationship with his sister had ended, his ability to cope with any future relationship difficulties and to control his drinking was uncertain ([48]).

    The offender’s personal history is discussed at [29]-[41]. He was born in the Cook Islands and raised by his grandparents after his parents abandoned him as an infant. He moved to Australia in 2009 with his parents and his sister. Beale J noted the possibility that he would be deported from Australia at the end of his sentence. This was a relevant factor in determining the sentence ([52]).

    The mitigating factors of the case were summarised at [56]-[64]. The offender had a difficult childhood which partly caused him to develop an incestuous relationship with his sister. A lack of parental supervision when they were teenagers was also found to be a contributing factor. The offender pleaded guilty at a relatively early stage, showed remorse, is relatively young, and has a limited criminal history and no violent antecedents.

    Aggravating circumstances, noted at [65]-[70], were that the offending involved a ‘terrifying’ home invasion; the attack with knives was not momentary, but sustained; the offending against his sister was an instance of domestic violence given their long-term incestuous relationship; the injuries inflicted on his sister and the first victim were life-threatening; and the offender had a prior conviction for incest, which clearly did not lead him to end his intimate relationship with his sister.

    A useful table of summaries of various sentencing cases in respect of attempted murder is also annexed to the judgment. In addition to these cases, his Honour also had regard to the Judicial College of Victoria Sentencing Manual’s attempted murder case collection and the Court of Appeal overview regarding intentionally causing serious injury ([54]).

  • DPP v Gibson [2019] VSC 328 (16 May 2019) – Victorian Supreme Court
    Dementia’ – ‘Guilty plea’ – ‘Life expectancy’ – ‘Murder’ – ‘No prior convictions’ – ‘People with mental illness

    Charges: 1 x murder

    Case type: Sentencing

    Facts: The accused pleaded guilty to the murder of his wife to whom he had been married for 44 years. The accused was 65 years old and had retired. He had four children with the victim, as well as grandchildren. The accused regarded his relationship with the victim as having ‘broken down’. He shot her twice in the head and then attempted to kill himself. The accused’s sister and their grandson were present at the time of the offending.

    Issue: The issue for the Court was to determine the appropriate sentence for the offence.

    Held: To determine the appropriate sentence, Coghlan JA took into account the accused’s personal circumstances. He suffered from depression and anxiety since he was a teenager ([27]). He had stopped working a few years prior to the offending, and experienced financial difficulties ([28]). He was resentful of the amount of time his wife was spending with her parents ([6]), and over time, he started to scrutinise her spending habits, including the cost of caring for their grandchildren and her parents ([29]). Further, the accused and victim had made significant contributions to their local community ([30]-[31]).

    The accused’s mental health was a major consideration for the Court. There was medical evidence indicating that he suffered recurrent depressive disorder of moderate severity ([38]), and that aspects of his processing speed, working memory, complex new learning skills, executive and language skills, and impulse control had deteriorated ([40]). There were suggestions by medical professionals that he might have suffered from either frontotemporal dementia or Alzheimer’s related dementia. Another expert suggested that his frontal lobe might have been damaged as a result of his attempted suicide ([43]). It was important to determine the precise cause of the brain damage as his life expectancy differed depending on his diagnosis ([45]). His Honour sentenced the accused on the basis that he had been diagnosed with frontotemporal dementia, which had a life expectancy of 8 years ([51]). This diagnosis affected the weight to be attributed to sentencing principles, such as just punishment, denunciation and deterrence ([52]). As a result of the accused’s ‘complex medical condition’, there was a significant delay in sentencing ([2]), which was also taken into account ([3]).

    Coghlan JA was satisfied that the accused’s mental condition would render his prison sentence more onerous than it would for a prisoner without his condition ([54]), and that his moral culpability and the need for denunciation, general and specific deterrence were reduced ([53]). The accused pleaded guilty, had no prior convictions and was found to have led a ‘worthwhile and…blameless life’ ([56]). Taking into account all relevant matters, the accused was sentenced to 15 years’ imprisonment with a non-parole period of 10 years.

  • R v Eustace [2019] VSC 189 (26 March 2019) – Victorian Supreme Court
    Factors affecting risk’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘Physical violence and harm’ – ‘Sentencing

    Charges: Murder x 1.

    Case type: Sentence.

    Facts: The offender and victim met while visiting Australia from India, and eventually married. Three months later, the offender killed the victim in a knife attack in their shared home ([3]). On the night of the murder, the offender and victim argued, which ultimately resulted in the offender obtaining a knife and stabbing the victim ([9]-[14]). She suffered 12 wounds to her chest, abdomen, arm and leg. The offender’s actions were described as ‘sustained, purposeful and ruthlessly determined’. Even after the offender was restrained in a head lock and dragged from the bedroom by a man with whom they lived, he returned to the room to resume the attack ([15]).

    Issues: The Court determined the appropriate sentence for the offence of murder in the circumstances.

    Decision and reasoning: Taylor J took into account the offender’s personal circumstances at [26]-[31]. He was 43 at the time of the offending and his work history showed him to be ‘a man of industry’ ([29]). However, his father was an aggressive alcoholic ([28]). Prior to meeting the victim, he had been in two significant relationships, one of which was an arranged marriage ([31]).

    The offending was found to be ‘self-evidently extremely serious’, as the killing of a domestic partner violates a fundamental principle underpinning society, namely, that all persons have the right to safety, respect and trust in intimate relationships. Whether or not the marriage was one of convenience, his Honour noted that the offender had voluntarily entered into a relationship in which he owed the victim kindness and safety. Rather, the offender betrayed her trust and the expectation that, even where issues in family relationships arise, violence is not tolerated. Even if the offender was fearful, angry, intoxicated or frustrated, he should have just walked away ([33]). Women should not fear or suffer physical harm because their partner loses their temper. The offender’s actions were found to be at the extreme end of the scale of ‘abominable acts’ ([34]). Aggravating circumstances included the fact that the victim was his wife, that she was murdered in their home, that a knife was used, and that despite the number of wounds already inflicted, the offender continued his attack, even after being physically restrained by another person ([35]-[36]). The public has an interest in matters involving family violence. Principles of general deterrence, denunciation and just punishment are relevant to sentencing ([35]). The objective gravity of the offending and the moral culpability of the offender was also found to be very high ([38]).

    The offender pleaded guilty after the committal hearing, demonstrating a willingness to facilitate the course of justice ([39]). He also surrendered himself to the police station and admitted the killing. His remorse was further expressed in a letter of apology to the victim’s family ([40]).

    Taylor J sentenced the offender to 25 years’ imprisonment with a non-parole period of 20 years ([46]). After the expiry of his sentence, it was noted that the offender would be deported to India. Knowledge of this deportation was said to make imprisonment more burdensome ([41]). Taylor J also noted that the offender would be isolated in custody ([42]). The offender’s prospects for rehabilitation were found to be good, as a result of some positive references indicating his good character and hardworking nature ([43]).

  • DPP v Ristevski (Ruling No 1) [2019] VSC 165 (15 March 2019) – Victorian Supreme Court
    Children’ – ‘Evidence’ – ‘Physical violence and harm’ – ‘Post-offence conduct

    Charges: Murder x 1.

    Case type: Ruling as to evidence.

    Facts: The prosecution alleged that the accused killed the deceased at their home on the morning of 29 June 2016, put her body in the boot of her car and drove it to Macedon Regional Park where he concealed it between 2 logs in a forest. It was discovered approximately 8 months later. The accused and deceased had been married for over 20 years and had a daughter. There was no prior history of physical violence on the part of the accused. However, he admitted to pushing the deceased on occasions if she ‘got in his face’ during arguments ([34]). The prosecution conceded that the evidence at most supported an inference that their financial difficulty was significant and may have fuelled an argument between them ([24]).

    Issue: Whether the prosecution was entitled to rely on evidence of post-offence conduct to prove not only an unlawful killing but also murderous intent.

    Held: Beale J noted some similarities with R v Baden-Clay [2016] HCA 35. However his Honour found that the differences between the two cases were ‘more striking’. At [37], his Honour stated -

    ‘First, there was compelling evidence of a motive for Baden-Clay to kill his wife – a desire to be rid of her so he could be with his lover. Second, the post-offence conduct in that case included lies and other conduct directed at concealing his ongoing extra-marital affair. In other words, the post-offence conduct was intertwined with his motive to kill and thus it is easy to see how the High Court, viewing the post-offence conduct on the basis of the evidence as a whole, reached the conclusion that it did.’

    In the present case, the prosecution submitted that the accused’s post-offence conduct was inconsistent with his having unintentionally killed the deceased, as one would expect him to report the incident, and not bundle her body into the boot of a car, drive to a remote location, conceal the body and lie about the circumstances of her disappearance to family, friends and investigators ([35]). Counsel for the accused submitted that he could well have feared that the unlawful killing of the deceased would attract a substantial prison term and cause permanent damage to his relationship with his daughter ([36]). Beale J found that those submissions made it difficult to see how a jury could properly find that the only reasonable explanation for the post-offence conduct was that the accused was conscious of having killed his wife with murderous intent ([36]).

    Beale J held that while the evidence of post-offence conduct referred to in the prosecution’s amended Notice of Incriminating Conduct could be relied on as evidence that the accused killed his wife, it could not be relied on to prove that the accused did so with murderous intent ([31]–[39]).

  • R v Robertson [2019] VSC 145 (6 March 2019) – Victorian Supreme Court
    Factors affecting risk’ – ‘Following, harassing and monitoring’ – ‘Physical violence and harm’ – ‘Social abuse’ – ‘Technology facilitated abuse

    Charges: Murder x 1.

    Case type: Sentence.

    Facts: The defendant pleaded guilty to murder of his partner (the deceased) with whom he fathered a daughter. After their daughter’s birth, their relationship became strained. The defendant resented the deceased’s change of employment and her being around other men. He became jealous and constantly concerned about possible infidelity. The deceased’s behaviour became more obsessive and paranoid. He even set up a fake Facebook and Instagram account to contact the deceased’s work colleagues under the fake name to establish if anything was happening between the deceased and her male colleagues ([3]-[11]). After a heated argument in which the deceased expressed her desire to end the relationship, the defendant picked up a dumbbell bar and hit her multiple times to her face and head. The blows, forceful and vicious, killed her immediately. After committing the offence, the deceased rang his mother and admitted to his actions. His mother rang the police ([12]-[19]).

    Issues: The Court determined the appropriate sentence for the offence of murder in the circumstances.

    Decision and reasoning: Champion J sentenced the defendant to 24 years’ imprisonment, taking into account general and specific deterrence, denunciation, rehabilitation and protection of the community. His Honour considered the defendant’s personal circumstances at [39]-43]. The defendant grew up in a close, supportive and loving family. Through his job he was able to buy a home for himself, thus demonstrating his independence and self-sufficiency. Friends and family observed that he became agitated and alienated after his daughter was born.

    Champion J did not accept a complete lack of premeditation even though the defendant committed the offence in a highly emotional state. The ‘savagery’ of the assault affected the sentencing. The act in question was terrible and grossly violent. It was not fleeting and involved multiple deliberate blows to the face and head. His Honour noted the defendant’s intention to kill. An aggravating feature was the fact that she was his intimate partner ([65]-[66]). Champion J therefore concluded that his offending was a grave example of murder and above the middle range of seriousness ([67]). However, it was noted that the extreme violence was out of character as there was no evidence of previous domestic violence incidents ([90]).

    Champion J discussed his culpability and degree of responsibility at [68]-[73]. The offending occurred in the context of the defendant being extremely jealous, possessive and controlling. At [73] Champion J stated: ‘I note that these features of jealousy, the need to possess, and uncontrollable rage associated with extreme violence emerge too frequently in cases of the murder of an intimate female partner.’ The attack was described as grievously inappropriate and a wildly disproportionate response to the situation. Therefore, his culpability and degree of responsibility was within the higher range. A mitigating factor was the fact that the defendant admitted to killing the deceased very soon after the act, and thus his Honour found that it he should receive the full benefit of that early plea as it facilitated the course of justice and relieved the deceased’s family and friends from having to give evidence and endure the trauma of a trial ([76]). With these factors in mind, his Honour accepted that the defendant has positive prospects of rehabilitation.

  • The Queen v Samaras [2019] VSC 120 (1 March 2019) – Victorian Supreme Court
    Firearm’ – ‘Guilty plea’ – ‘Misuse of alcohol’ – ‘Physical harm and violence’ – ‘Sentencing’ – ‘Weapon

    Charges: Manslaughter

    Proceedings: Sentencing

    Facts: Before moving to Australia from America, the victim sent four packages containing firearms to the accused’s parents’ address in Australia. Three of these packages were intercepted by the Australian Border Force. ‘The [female] victim and [male] accused were charged with the importation and possession of firearms and were bailed’ [10]. They decided to ‘go on the run’, packing their belongings and purchasing a caravan to escape in. Arrest warrants were issued after the pair failed to appear in court, but they managed to evade the police [11].

    The couple lived in the caravan for a couple of weeks prior to the incident. On the night of the shooting, both the accused and the victim were intoxicated and were arguing. The accused physically assaulted the victim during the argument while the victim was in possession of the loaded firearm. The two struggled for the weapon, with the accused eventually gaining possession and deliberately pulling the trigger. The accused did not aim the weapon or deliberately shoot the victim, although ‘there is no suggestion the firearm was defective in anyway’ [17].

    The accused later pleaded guilty to manslaughter.

    Issue: The issue for the Court was to determine the appropriate sentence for the offence.

    Decision and reasoning: The accused was sentenced to 11 years’ imprisonment with a fixed non-parole period of 8 years. Relevantly, the sentencing judge observed at [48]:

    The sentence I pass must make it perfectly clear that the Court deplores the use of firearms, all the more so against women in a setting of domestic violence…… The sentence of this Court should bring it clearly home to any person in our community who might be minded to inflict violence of any sort against a domestic partner, particularly with the use of a weapon, that such conduct will be met with strong punishment.

  • DPP v Freeburn [2018] VSC 616 (14 December 2018) – Victorian Supreme Court
    Imprisonment’ – ‘People with disability and impairment’ – ‘Physical violence and harm’ – ‘Women

    Charges: Murder x 1

    Facts: The offender met the deceased, a 29 year old woman with a mild intellectual disability, on an internet dating site. The deceased was particularly vulnerable as she was guarded about her relationships and sometimes did not inform her family as to her whereabouts. Her parents obtained a guardianship order at VCAT because of their concern that she was unable to protect her own interests. The deceased had told her family and friends of the offender’s violent behaviour towards her. The offender often exhibited jealousy, anger and verbal aggression when the deceased interacted with other men. The deceased’s body was found in the offender’s room three days after she was reported missing, with restraint marks on her wrists, bruising to her face and upper body, and a ‘tram track’ mark on her back. She also sustained brain injuries, indicating multiple blows to the head. Her wrists were bound and her neck and face were wrapped in tape. An autopsy revealed that she consumed the drug GHB prior to her death. It was entirely plausible that the deceased was alive, albeit unconscious, when the offender left the premises.

    Issues: Sentencing

    Decision and Reasoning: The offender was found guilty of murder and sentenced to 25 years’ imprisonment with a non-parole period of 20 years. The jury rejected the offender’s defence that the deceased’s death was caused solely by her consumption of GHB. At the time of the incident, the offender regularly abused drugs, and suffered from personalty disorder and long-term anger management problems which may have affected his judgment and ability to make calm and rational decisions ([24]). The deceased was also in a particularly vulnerable position due to her intellectual disability. His Honour considered the offender’s personal circumstances which included his parent’s separation, his upbringing which was characterised by substance abuse and family violence, his experience in several foster placements in which he exhibited violent behaviour, and his diagnoses of ADHD, oppositional defiant disorder and conduct disorder. His involvement in the criminal justice system began when he was a minor, and his violent offending included numerous convictions of assault. Given his history of mental health problems and violent prison incidents, his Honour accepted that he should remain in conditions more restrictive than those of other prisoners.

  • Re Mongan [2018] VSC 638 (24 October 2018) – Victorian Supreme Court
    Bail’ – ‘Breach’ – ‘Children’ – ‘Factors affecting risk’ – ‘People with children’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Unacceptable risk and best interests

    Charges: Charges including false imprisonment, recklessly causing injury, unlawful assault, aggravated burglary, theft and threat to kill.

    Proceeding type: Bail application.

    Facts: The applicant and complainant were married for 13 years and have three children. The complainant claimed that the marriage ended because of the applicant’s controlling and intimidating behaviour. From the time of the separation, a series of interim and final Family Violence Intervention Orders (FVIOs) were in place restraining the applicant from contacting the complainant. The applicant breached many of the FVIOs. It was alleged that the applicant, armed with items intended to incapacitate the complainant, unlawfully entered her premises, interfered with a CCTV camera which might have recorded his subsequent conduct, and then waited for her. He grabbed her from behind, forced her to the ground, sought to bind her wrists and gag her, pushed her into her own home, and again forced her to the ground, binding her ankles. He threatened her in a graphically and frightening manner whilst she was bound and helpless. The children returned home from school and heard the complainant screaming. The complainant eventually escaped ([46]). The applicant submitted that a combination of a number of matters demonstrated a compelling reason that justified a grant of bail (see [34]).

    Issues: Whether bail should be granted; Whether there was a compelling reason why the applicant’s detention in custody was not justified; Whether the applicant presented an unacceptable risk of committing further offences, endangering the safety or welfare of the complainant and interfering with witnesses.

    Decision and reasoning: Section 4AA of the Bail Act 1977 (Vic) sets out circumstances in which a two-step test applies to the consideration of a grant of bail. Step 1 requires the existence of exceptional circumstances and compelling reasons. Step 2 mandates that the Court must apply the unacceptance risk test. In considering whether or not the applicant established compelling reasons that justified the grant of bail, the Court must take into account the surrounding circumstances (see s 4C and s 3AAA of the Act). The Court was required to assess ‘the nature and seriousness of the alleged offending, including whether it is a serious example of the offence’ (see s 3AAA(1)(a)).

    There was no question that the offending alleged was serious. It was pre-meditated and involved the use of equipment to incapacitate the complainant. Only the escape of the complainant prevented a continuation of the offending. The Court found that the applicant’s lawyer’s reliance of an ‘arguable defence’ was ‘somewhat optimistic’ ([48]). The Court also considered the applicant’s criminal history and the extent of compliance with conditions of earlier grants of bail. Although his criminal history was limited and there was nothing to indicate previous breaches of bail, the Court noted two factors, namely, that the applicant failed to accept the breakdown of his marriage, and that he refused to respect the orders of the Magistrate Court in relation to the complainant. A significant matter was the fact that, at the time of the alleged offending, the applicant was approximately six weeks into a six month adjourned bond which he received for his multiple breaches of the FVIOs. Matters pursuant to s 3AAA(1)(g), (j), (k), (l) were also considered.

    At [57], his Honour noted that the risk of further violence or intimidation by the applicant towards the complainant was significant and entirely unacceptable (see s 4E of the Act). The application for bail was therefore refused as the applicant failed to establish a compelling reason that would justify the grant of bail. The circumstances suggested that the applicant should be held in custody pending trial.

  • R v Stone (Ruling No 1) [2018] VSC 625 (19 October 2018) – Victorian Supreme Court
    Evidence’ – ‘Fair hearing and safety’ – ‘Physical violence and harm’ – ‘Relationship, context, tendency and coincidence evidence

    Charges: Murder x 1.

    Proceeding type: Ruling as to the admissibility of evidence.

    Facts: The accused allegedly murdered the victim (her defacto partner) by dousing him with fuel thinner and setting fire to him. Their relationship spanned approximately 25 years. The accused claimed that a Mr Baxter murdered the victim. The question before the Court was whether the accused was the murderer. The prosecution sought to lead evidence from the deceased’s mother as to the nature of the relationship between the accused and the deceased. That evidence included 1) that the mother observed instances of verbal and physical abuse between the deceased and accused over a number of years; 2) that in 2010, the mother observed a particular argument between the deceased and the accused in which the accused physically assaulted the deceased before the deceased’s brother intervened; and 3) that in November 2016, the mother received a phone call from the deceased, claiming that he was fearful for his own life. The prosecution filed a Hearsay Notice with respect to the ‘November 2016 incident’. Sections 65(2)(b) and 66A of the Evidence Act 2008 (Vic) were relied upon as the path to admissibility.

    Issues: Whether the deceased’s mother’s observations of instances of verbal and physical abuse between the accused and the deceased were admissible; Whether the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused; Whether the representations made by the deceased to his mother concerning an earlier incident with the accused are admissible.

    Decision and reasoning: The prosecution argued that the deceased’s mother’s evidence was admissible as relationship and context evidence in that evidence of the poor relationship between the accused and the deceased could rationally affect the assessment of the probability of the existence of the question in issue, namely whether the accused killed the deceased. The accused argued that the relationship evidence was not relevant and that the evidence of the November 2016 incident failed to satisfy the tests specified in s 65(2)(b) and s 66A of the Act ([7]).

    On an analysis of the particular evidence, Taylor J made the following observations:

    • Evidence of the general poor relationship between the accused and the deceased was relevant to the probability of the existence of the question in issue. However, owing to the vagueness of the general relationship evidence, its probative value was low and was outweighed by the danger of unfair prejudice to the accused. Therefore, such evidence was excluded under s 137 of the Act.
    • The evidence of the 2010 incident was irrelevant and was therefore excluded by the operation of s 56(2) of the Act. The lack of relevance was a result of the fact that the accused was claimed to have threatened the deceased’s brother with a knife, rather than the deceased herself.
    • The evidence regarding the November 2016 incident, although hearsay, was admissible pursuant to s 65(2)(b). It was sufficiently proximate to the alleged incident and revealed the state of the relationship between the accused and the deceased, as well as the deceased’s fear of the accused in the months preceding her death. It was ‘extremely unlikely that the representation was a fabrication’ ([31]). The evidence was also admissible pursuant to s 66A of the Act.

    Note: The accused was convicted and sentenced to 34 years’ imprisonment with a non-parole period of 28 years: R v Stone [2019] VSC 452 (12 July 2019) – Victorian Supreme Court.

  • R v Stone (Ruling No 2) [2018] VSC 626 (19 October 2018) – Victorian Supreme Court
    Evidence’ – ‘Fair hearing and safety’ – ‘Incriminating conduct’ – ‘Physical violence and harm’ – ‘Post-offence conduct

    Charges: Murder x 1.

    Proceeding type: Ruling as to the admissibility of evidence.

    Facts: The accused allegedly murdered the victim by dousing him with fuel thinner and setting fire to him. Their relationship spanned approximately 25 years. The accused claimed that a Mr Baxter murdered the victim. The question before the Court was whether the accused was the murderer. The Prosecution filed a Notice, pursuant to s 19 of the Jury Directions Act 2015 (Vic), of its intention to adduce evidence of incriminating conduct, namely, the lies told by the accused in describing the circumstances of the deceased’s death, and the accused’s authorship of a letter purporting to be under the hand of Amanda Thatcher and which implicated Mr Baxter in the death of the deceased.

    Issues: Whether the evidence of the conduct is reasonably capable of being viewed by the jury as evidence of incriminating conduct.

    Decision and reasoning: The Court held that there was sufficient evidence on which the jury could be satisfied that the accused’s multi-faceted statement as to how the incident took place was deliberately false. The conduct relied on by the prosecution was much more than a bare denial of guilt, and amounted to a detailed account of the deceased’s death. Therefore, the jury could conclude that the only reasonable inference that could be drawn from the evidence was that the accused believed that she committed the offence. Accordingly, the prosecution was allowed to rely on the conduct specified in its notice, namely the lies told by the accused describing the circumstances of the deceased’s death, as evidence of incriminating conduct ([24]-[27]).

    Note: The accused was convicted and sentenced to 34 years’ imprisonment with a non-parole period of 28 years: R v Stone [2019] VSC 452 (12 July 2019) – Victorian Supreme Court.

  • Re application for bail by Roberts [2018] VSC 554 (21 September 2018) – Victorian Supreme Court
    Bail’ – ‘Children’ – ‘Factors affecting risk’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Sexual and reproductive abuse’ – ‘Unacceptable risk and best interests

    Charges: Charges include rape, unlawful assault, contravention a Family Violence Intervention Order, persistent contravention of a Family Violence Intervention Order, attempt to commit an indictable offence, property damage and use a carriage service for child pornography material

    Proceeding type: Application for bail

    Facts: The complainant was the former partner of the applicant. They have three children. The applicant was charged with 64 offences including rape, unlawful assault, contravention a Family Violence Intervention Order, persistent contravention of a Family Violence Intervention Order, attempt to commit an indictable offence, property damage and use a carriage service for child pornography material.

    Issues: Whether bail should be ordered; Whether the applicant discharged his onus of showing compelling reasons why his continued detention is not justified.

    Decision and reasoning: The applicant’s application for bail was refused as he failed to show compelling reasons why his continued detention was not justified. Taylor J noted that if he had been satisfied that a compelling reason existed justifying the grant of bail, he must apply the unacceptable risk test. In considering s 5AAAA(2)(a) of the Bail Act 1977 (Vic), Taylor J considered that there was a risk that, if released on bail, the applicant would commit family violence. His blatant disregard of the court orders and the effect of his behaviour on the complainant, was exemplified by the 1200 text messages he had sent to the complainant between September 2017 and March 2018. His preparedness on two occasions to continue a sexual offence notwithstanding his knowledge that his actions were being audio-recorded further indicated a complete indifference to the complainant, as well as a sense of entitlement ([57]). His prior convictions for matters of family violence demonstrated continuous disregard for the authority of the court and the complainant’s safety and wellbeing. If released on bail, the risk of family violence would not be able to be sufficiently mitigated by the imposition of a bail condition requiring compliance with existing FVIOs ([59]).

  • Smith v State of Victoria [2018] VSC 475 (27 August 2018) – Victorian Supreme Court
    Aboriginal and Torres Strait Islander people’ – ‘Children’ – ‘Duty of care owed by police’ – ‘Family violence’ – ‘Negligence’ – ‘Women

    Charges: Negligence claims.

    Case type: Application for summary dismissal.

    Facts: The plaintiffs, a woman and her three children (who identify as Aboriginal), were the victims of family violence by the children’s father. They alleged that police officers and senior officers owed duties of care to them as victims of family violence, and that they suffered psychological harm as a result of breaches of those duties. The plaintiffs also asserted that the officers acted in breach of the plaintiffs’ human rights and obligations as public authorities under the Charter of Human Rights and Responsibilities Act 2006 (Vic) ([40]). The defendant submitted that the alleged duties cannot arise at law and that the proceedings should be summarily dismissed ([41]). Alternatively, the defendant sought a strike out of the allegations of a common law duty of care pleaded in certain paragraphs of the plaintiffs’ amended statement of claim on the basis that no cause of action had been disclosed ([3]). The plaintiffs contended that the current law in Australia regarding the application of duties of care to police officers is ‘in a state of development’ and that, as a result, the court ought not summarily dismiss the proceedings ([87]).

    Issue: The State of Victoria sought either a summary dismissal of the case or that the Court strike out the claims alleging that a common law duty of care was owed.

    Held: Dixon J dismissed the application, stating that the defendant’s contention that the proposed duties of care have no real prospect of succeeding had not been established ([174]). Dixon J held that a summary dismissal is an ‘extreme measure’ and would ‘forever shut out’ the plaintiffs from seeking to prove their claim at trial ([169]). Although the case was ‘fact rich and fact intensive’, the defendant did not persuade his Honour that no duty of care could arise ([171]).

    Duty of care

    Dixon J stated at [170]:

    ‘Australian common law has not affirmatively recognised that a police officer can never owe a duty of care… In no case has a court determined that no duty of care was owed in circumstances that demonstrate the degree of proximity between the plaintiffs and the police that is likely to be demonstrated on the evidence in this case at trial and in the legislative and policy framework that prevail in respect of domestic violence at the relevant time.’

    As outlined in Kuhl v Zurich Finance Services Australia Ltd [2010] HCA 11, the existence of a duty of care is determined by considering reasonable foreseeability and the salient features of the relationship between the plaintiffs and the defendant ([168]). The plaintiffs argued that the police officers owed them a duty of care to prevent breaches of several Intervention Orders (IVOs) by the father due to the existence of a relationship of proximity between the police officers and the plaintiffs, arising from various salient features, including that:

    • It was reasonably foreseeable that the plaintiffs required protection from breaches of the extant IVOs by the father;
    • The police officers had actual or constructive knowledge of the terms of the extant IVOs;
    • The police officers exercised control with respect to the compliance by the father with the terms of the extant IVOs;
    • The Victorian police represented, through the terms of its family violence policies, that police officers would protect women and children from family violence. As a result of these representations, the plaintiffs relied on the police officers to enforce compliance by the father with the extant IVOs; and
    • There were no countervailing policy reasons that negated the imposition of a duty of care on the police officers to prevent breaches of IVOs ([49]).

    The defendant argued that some of the pleadings in the plaintiffs’ amended statement of claim were too broad. The submission was that these duties were that, ‘every’ police officer owed a duty to ‘every’ affected family member named in any and ‘every’ extant IVO ([53]). In response, the plaintiffs argued that the duties were ‘owed by police officers at stations local to the plaintiffs’ homes, by reason of their status as family violence victims’ or, alternatively, as ‘victims of a recidivist family violence offender known to police’ ([58]). Dixon J accepted the plaintiffs’ submission that the duty was not pleaded in unnecessarily broad terms ([59]).

    Salient Features

    Dixon J noted that as the existence of a novel duty of care was alleged, the court must apply the salient features approach in Crimmins v Stevedoring Industry Finance Committee[1999] HCA 59 ([90]). A determination of the existence of a duty of care requires ‘[a] close analysis of the facts bearing on the relationship between the plaintiff and the putative tortfeasor by reference to the salient features or facts affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury’ ([91]).

    The plaintiffs submitted that the salient features of foreseeability, knowledge, control and responsibility applied ([129]). They challenged the defendant’s reliance on Hill’s Case [1989]AC 53, emphasising that the salient features of proximity, knowledge and control were absent in Hill’s Case. Dixon J held that Hill’s Case was distinguishable, even if it was good law in Australia ([94]-[95]). The plaintiffs also emphasised the dissenting judgment in Michael v Chief Constable of South Wales Police [2015] UKSC 2, which viewed proximity as the determinative factor ([102]). The plaintiffs submitted that NSW v Spearpoint [2009] NSWCA 233 was analogous, and that it was persuasive authority for their submission that the proceedings could not be summarily dismissed ([114]-[115]).

    In relation to the factor of control, Dixon J accepted that the relevant focus was on control of the risk not the offender, and that the issue of control is ‘fact sensitive and a matter for evidence’ ([135]). The plaintiffs suggested that the police officers exercised control by having the father in a police vehicle and dropping him within the zone identified in one of the IVOs ([137]).

  • R v Jones [2018] VSC 415 (31 July 2018) – Victorian Supreme Court
    Battered woman syndrome’ – ‘Manslaughter’ – ‘Pregnant people’ – ‘Sentencing

    Charges: Manslaughter based on an unlawful and dangerous act x 1

    Proceeding type: Sentence to be imposed

    Facts: The female offender was in a relationship with the male victim, with a history of illicit drug use and domestic violence. In April 2015, the victim grabbed the offender around the throat and threatened to harm and kill her. In October 2015, the victim pushed the offender. She armed herself with a knife and returned to the bedroom to confront him. He grabbed her by the throat, and verbally and physically assaulted her. She was pregnant at the time with his child. In December 2016, there had been a heated verbal argument between the parties. She stabbed him in the chest with a kitchen knife. The offender pleaded guilty.

    Issues: Sentence to be imposed.

    Decision and Reasoning: Taylor J took into account victim impact statements ([20]-[21]), and the offender’s prior criminal history ([22]-[26]) and personal history ([27]-[41]). The offender had been sentenced to a term of imprisonment for a charge of recklessly causing injury by punching and stabbing a former partner. She had experienced trauma at an early age as she was raped by two of her brother’s friends. She was diagnosed with post-traumatic stress disorder and excoriation disorder. Her psychological condition did not warrant the application of the principles in R v Verdins [2007] VSCA 102. Her Honour accepted that there had been a history of domestic violence at the hands of the victim and that, on the balance of probabilities, physical violence had occurred the morning of the victim’s death. The gravity of her offending was to be assessed in the context of her history of family violence and her perception of a physical threat. At [48], her Honour stated –

    ‘Family violence is insidious. It need not find expression in physical violence to be described as grave or create a mindset in its victims of fear and helplessness. That mindset arises from all forms of violence experienced by victims and is not triggered only at the time of a physical assault…’

    Her Honour accepted that her plea of guilty was an expression of genuine remorse, and that her time in custody would be more burdensome due to the separation from her children, as well as her diagnosed psychiatric illnesses. Specific deterrence was considered a significant sentencing factor, as well as general deterrence and denunciation. At [58], her Honour acknowledged that ‘This Court must pass a sentence that denounces your behaviour and deters others from resorting to the use of knives or other sharp objects during conflicts.’ The offender was sentenced to nine years’ imprisonment, with a non-parole period of seven years.

  • Re Kele [2018] VSC 159 (10 April 2018) – Victorian Supreme Court
    *Note: this case was decided under now superseded legislation however the case contains relevant statements of principle.
    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]).

  • DPP v Lo (Ruling No 3) [2018] VSC 149 (29 March 2018) – Victorian Supreme Court
    Evidence’ – ‘Evidence issues’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘Physical violence and harm’ – ‘Relationship, context, tendency and coincidence evidence

    Charges: Murder.

    Case type: Ruling on relevancy of evidence.

    Facts: The female accused Lo was charged with murder and perjury. It is alleged that AB shot the deceased and that the accused Lo assisted, encouraged and directed AB in those actions. The accused was a Chinese national living with the deceased prior to the murder.

    The central issue of this trial was whether the evidence provided by a marriage celebrant was relevant. The marriage celebrant provided evidence that he visited the deceased’s home in relation to proposed plans for him and the accused to marry. The Defence submitted that this confused the jury, and that it was counter-intuitive to the Crown’s case. It was also submitted that if the evidence was put before the jury, there would be a risk that the jury would be misled into thinking that the deceased wanted to marry the accused because he loved and cared for her. This would require the Defence to adduce evidence to show an alternative scenario that the deceased had been actively seeking to marry a young Asian woman and had told others of his willingness to facilitate such a person getting an Australian visa through such an arrangement ([3]-[6]). The Defence submitted that consideration of this issue would be time-consuming and distracting for the jury, and the evidence of the marriage celebrant was not sufficiently relevant to allegations of the accused’s complicity in the murder ([7]).

    Issues: The Court was required to determine whether the evidence of the marriage celebrant was relevant.

    Decision and reasoning: Under the Evidence Act 2008 (Vic), evidence is prima facie admissible if it is relevant. In order to exclude the evidence, the defendant bears the onus of showing that the danger of unfair prejudice outweighs the probative value. Dixon J held that the marriage celebrant’s evidence was relevant and admissible as context and relationship evidence ([22]), and that the Defence should be entitled to adduce evidence supporting a counter-narrative that the deceased had been interested in marriages with other women prior to the murder ([27]). Her Honour was of the view that evidence as to the events in the house the night before the murder, and evidence of the complex nature of the accused’s and deceased’s relationship was relevant. Any unfair prejudice arising from the jury learning about a planned marriage of convenience between the accused and deceased did not outweigh the probative value of the evidence ([25]). The marriage celebrant’s evidence was found to have significant relevance to the issues in the trial ([27]), and to be admissible relationship evidence.

  • Director of Public Prosecutions (Vic) v Walker [2018] VSC 83 (28 March 2018) – Victorian Supreme Court
    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) – Victorian Supreme Court
    *Note: this case was decided under now superseded legislation however the case contains relevant statements of principle.
    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) – Victorian Supreme Court
    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) – Victorian Supreme Court
    *Note: this case was decided under now superseded legislation however the case contains relevant statements of principle.
    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) – Victorian Supreme Court
    *Note: this case was decided under now superseded legislation however the case contains relevant statements of principle.
    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) – Victorian Supreme Court
    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) – Victorian Supreme Court
    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) – Victorian Supreme Court
    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) – Victorian Supreme Court
    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) – Victorian Supreme Court
    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) – Victorian Supreme Court
    *Note: this case was decided under now superseded legislation however the case contains relevant statements of principle.
    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) – Victorian Supreme Court
    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) – Victorian Supreme Court
    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) – Victorian Supreme Court
    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) – Victorian Supreme Court
    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) – Victorian Supreme Court
    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.