Victoria

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]).

  • R v Edwards [2019] VSC 234 (12 April 2019) – Victorian Supreme Court
    Aboriginal and torres strait islander people’ – ‘Dysfunctional upbringing’ – ‘Genuine remorse’ – ‘Guilty plea’ – ‘People affected by substance misuse’ – ‘Sentencing’ – ‘Stabbing of domestic partner

    Charges: Manslaughter by unlawful and dangerous act x 1.

    Case type: Sentence.

    Facts: The female offender pleaded guilty to killing the male victim, with whom she had been in a relationship for just over 12 months. By her plea of guilty, she admitted to intentionally stabbing the victim and that she had no lawful excuse for doing so ([2]). The offender and victim were heavy drug users which led to repeated heated arguments about money ([6]). The victim died from a stab wound to the neck in ‘terrible and terrifying circumstances’ ([54]).

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

    Held: Emerton J sentenced the offender to 9 years’ imprisonment with a non-parole period of 6 years and 9 months. Her Honour noted that the offender’s personal circumstances were relevant not only to her moral culpability, but also to her sentencing ([56]). She had a long history of substance and drug abuse, and had previously been in a series of dysfunctional and destructive relationships, all of which involved drug use. Two of these relationships produced children and one involved physical violence ([63]). Her Honour described the offender’s relationships with men as those often associated with ‘women who are vulnerable and sad’ ([66]). Even though the victim and offender were engaged in heavy drug use, the victim had no prior history of violent relationships and was reportedly patient and caring towards the offender and her daughter ([67]). Nevertheless, there was evidence of the victim behaving violently towards the offender, described at [17]-[18].

    Her Honour did not accept the submission that the offender’s moral culpability for the killing was reduced by reason of it being a response to violence inflicted on her by the victim. Her Honour found that the killing occurred in the context of a dysfunctional relationship characterised by heavy drug use and the resulting disorder and conflict ([70]). However, the offender’s disadvantaged background was found to have diminished her moral culpability to some extent ([78], [86]).

    The offender’s upbringing was marked by an absent father and physically abusive mother who was dependant on drugs and alcohol. She had been in relationships with adult men since the age of 14 that were emotionally, physically and financially abusive, and often involved substance abuse. Emerton J recognised that her abusive and dysfunctional upbringing was relevant to the determination of an appropriate sentence. Another important consideration was the fact that the offender is an Aboriginal person and a descendant of a member of the stolen generation ([84]-[85]).

    Emerton J considered the offender’s prospects of rehabilitation to be good, given her work history, remorse, absence of previous offending and efforts she made on remand to ‘turn [her] life around’ ([87]-[92]). Nevertheless, her long history of drug use gave rise to a need for specific deterrence ([95]).

  • 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.

  • 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.
  • 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]).

  • 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.