Crown v Accused

2 The maximum penalty for murder is life imprisonment and the standard sentence is 25 years' imprisonment.[1]

3 You met Ms Vang online in January 2018. You were living by yourself in California Gully, a suburb of Bendigo. She was living in Wallan with family.

4 Ms Vang stayed with you for a couple of days in mid-February and moved in with you on 18 February 2018.

6 It appears that, on the night of 24 to 25 February 2018, there was a protracted argument between the two of you at your home. It culminated in you applying a choke hold to her, your arm around her neck. She died from neck compression.

7 The issues at your trial were whether you killed her by a conscious, voluntary and deliberate act and, if so, whether you had murderous intent. The jury's verdict means they were satisfied of those matters.

8 After killing Ms Vang, you did a number of things, including the following: first, you made out that Ms Vang was still alive by sending messages, purportedly from her, in response to messages from her sisters; second, you composed a lengthy email titled "I HAVE KILLED A WOMAN AND COMMITTED SUICIDE", which you arranged to be sent on a seven-hour time delay to three men that you knew from a church group. I will refer to this email hereafter as your suicide note. One of your primary concerns in your suicide note was that someone look after your cats; third, you tried to kill yourself - initially, by gassing yourself in your car (which attempt you aborted because your cats became distressed) and, later, by taking an overdose of pills.

9 One of the recipients of your suicide note dated 26 February 2018 called police, who attended your home late the same night. They found you in the lounge room, barely conscious. When police asked if there was anyone else in the house, you said "in there", indicating one of the bedrooms where they found Ms Vang's lifeless body. You were passing in and out of consciousness from your overdose and were taken to Bendigo Hospital where you spent several days in the Intensive Care Unit.

10 You allege that during the protracted argument with Ms Vang which culminated in her death that she was denigrating you and assaulting you and even urging you to kill yourself. You claim that this caused you to experience intense flashbacks of the abuse which you allege you suffered as a child at the hands of your stepfather and mother. You allege that Ms Vang was deliberately triggering these flashbacks. You claim that it was when you were in the grip of the most intense flashback you have ever experienced, that you must have grabbed hold of her and applied the choke hold unconsciously. You maintain that you did not deliberately kill her, or even try to injure her. You claim that when you came out of the flashback, and realised you had her in a choke hold, that she was already dead.

With her hostility only increasing, with almost the ENTIRE night gone (this went on for at least 6 hours), I was beyond exhausted and becoming more and more suicidal. He[r] behavior was so disturbing [and I was in so much pain now], that I both needed resolution, and was getting completely lost in my flashbacks. She had overtly assaulted me so many times now (including hitting me a few times), that I was losing control and explicitly warned her to stop (directly in context of my flashbacks).

Instead of doing so she continued to run into me [whilst yelling baseless insults], and I blacked out to then find myself on the floor with her in a choke hold.

Her immediate struggling and fighting made it clear she truly thought I was trying to kill her (negating all assertions of trust and love), and whilst I know in my soul that I loved her, found myself facing two choices:

A) Let her go and have her hysteria explode to something involving screaming, giving the police an ideal chance to perpetuate their abuses (when I was beyond vulnerable emotionally) OR

B) Continue and end my life after (as I was already pushed to that point)

I will not say anything further about this other than to say that I feel more dirty than I ever have in my life, and that I was continually saying "I'm sorry" whilst it happened. I also did everything humanly possible to minimize her suffering (cutting off the blood rather than suffocation).

12 This passage was relied on by the prosecution at trial as a confession that you had deliberately choked Ms Vang to death, intending to kill her. The prosecution also alleged that you confirmed this confession in what you told police in your recorded interview on 2 March 2018[2] and in what you told two psychiatrists, Dr Zimmerman and Associate Professor Carroll, who were engaged by your lawyers, primarily to determine whether you had a viable defence of mental impairment.

13 In your testimony at trial, you claimed that the relevant passage in your suicide note was a false confession. You claimed that you made a false confession because, in your sleep deprived and overwrought state, you thought that if you did so, accepting full responsibility for Ms Vang's death, the recipients of your suicide note would be more likely to look after your cats. You denied that you adopted the false confession in what you told police. You claimed that you only adopted the false confession in what you told psychiatrists Dr Zimmerman and Associate Professor Carroll because your lawyers told you to "stick to the script" to maximise your chances of the psychiatrists supporting a defence of mental impairment.

14 Given the importance the prosecution attached to the alleged confession in your suicide note, I directed the jury (with the prosecution's agreement) that they had to be satisfied beyond reasonable doubt of the truthfulness of that confession. Consistently with the jury's verdict, I proceed on the basis that it was a true confession to murder.

15 You will have noted above, when I was discussing your account of the protracted argument between you and Ms Vang, that I described how you alleged this and that against her. Let me make it clear that the fact I mention those allegations does not mean I accept them as facts. I did not find you to be a credible or reliable witness at your trial. Neither did the jury: they clearly rejected your testimony that the confession in your suicide note was a false confession. In the absence of corroboration, I am wary of relying on your self-serving statements.

16 The prosecution submitted that there were a number of aggravating circumstances to your offending. First, you kept pursuing Ms Vang, who was much smaller than you, from room to room in your house, even though you realised you were losing control and posed a danger to her. Second, the killing was an instance of domestic violence: you and Ms Vang were living together in an intimate relationship, albeit one of short duration. Third, you killed her, intending to kill her. Fourth, you sent false messages to Ms Vang's sisters and left her body on the floor for an extended time.

17 The fact that this killing was an instance of domestic violence is certainly a circumstance of aggravation, as is the fact, established by your suicide note, that you actually intended to kill. As for the other matters, I consider that your thought processes were so clouded by your mental health problems (which I discuss below) that it would be inappropriate to treat them as circumstances of aggravation.

18 Ms Vang's family have been devastated by her violent and untimely death. She was only 26 years of age.

19 Victim impact statements were made by her father, Lat, mother Xee Moua, brother Seng and sisters Mai Seng and Pa Houa.

20 Her father writes that he and his wife have been "locked in depression" since her death. He apologises for having been unable to protect his beloved daughter.

21 Her mother writes "My dear daughter ... Do you know I miss you a lot? When I found out about your death, the world has become dark, you left me behind ... I wish next lifetime, we can become mother and daughter".

22 Seng Vang writes that he feels like he failed in his duty to protect his little sister. He writes "I don't hate Mr Margolis but I do hate what he had done to my sister and the lifetime of pain and suffering he has inflicted on me and my family".

23 Mai Seng writes that Ms Vang supported her "in every step of her life's journey". She also says that she now lives her life "with emptiness and sorrow".

24 Pa Houa Vang writes how Ms Vang was her children's "second mum and loved them as much as they loved her". She desperately yearns for her sister. She had to break the news of her sister's murder to the rest of the family.

25 No sentence that I can impose can right the wrong you have done to Ms Vang and her family.

26 You sacked your lawyers after losing your trial and chose to represent yourself on your plea.

27 You filed the following materials in support of your plea in mitigation:

• Letter to me dated 17 May 2021;
• Outline of submissions for plea and sentence dated 17 May 2021;
• Final submissions dated 26 May 2021; and
• Letter to me dated 7 June 2021.[3]

28 I have taken all these materials into account, as well as your oral submissions at the plea hearing.

29 In your last letter to me, you provided two YouTube links that you wanted me to look at by way of background about you. One was called "PTSD video" and the other "Professional History Video". I have watched the two videos as requested.[4]

30 You were born in Sydney on 18 February 1980, making you 41 now.

31 You are the son of Joel Margolis and Margo Honeyman, who married in 1976 and divorced in 1990 when you were nine or ten. It was your father's third marriage and your mother's second. By your own account, your childhood was a happy one until your parents separated and your mother re-partnered. Thereafter, your life became more and more troubled.

32 Both your parents have died, your father in 2006 and your mother in 2019. You have a brother who is three years younger and with whom you are still in contact. You also have a much older half-sister from your father's first marriage.

33 You revere your father. He was a medical scientist specialising in haematology. An obituary co-authored by your mother and published in the Sydney Morning Herald in 2006 titled "The man with a thousand ideas" described your father as "one of Australia's most innovative but least heralded researchers in medical science".

34 After your parents separated, your father remained in Sydney and your mother took you and your brother to live in Melbourne. You had limited contact with your father from that point on. Your mother got married again, to a man for whom, on her own admission,[5] she had left your father.

35 You allege that you were physically and sexually abused by your step-father. You allege that your mother turned a blind eye to the abuse as well as neglecting you and abusing you emotionally. You despise both of them. In your submissions dated 17 May 2021, you call your mother "a sociopath" and stepfather an "unadulterated psychopath" who tried to kill you on two occasions, once by driving off at great speed when you were on the roof of a removal truck and once by trying to drown you when scuba-diving.

36 You also allege that the St Kilda police ignored the physical abuse you were suffering at home.

37 It is impossible after all this time for me to determine the truth of these allegations. Your mother is deceased, but there is a statement from her in the depositions dated 3 May 2018 where she denies that you were abused as you allege. She says that you were a troubled youth and that you have false memories. She acknowledges that your brother once confirmed that your stepfather had choked you, but she said she never saw any such abusive behaviour. In the report by Associate Professor Carroll, which I will refer to in more detail later, he notes that you declined consent for him to take a history from your brother but notes that your mental health records indicate that your brother once provided a history which, at least in part, corroborated some of your allegations of childhood abuse.[6]

38 Before leaving this topic, it is worth noting that your mother says in her statement that, in your teens, she took you to a number of psychiatrists, including one who diagnosed you with borderline personality disorder and PTSD.

39 As indicated in your mother's statement, you went back and forth from Wesley College to Elwood Secondary College for your secondary schooling, finally leaving school in Year 11.

40 You moved out of home when you were in your late teens. You allege your mother and step-father put you into a homestay. Your mother claims you moved into a boarding house for Wesley College students and that you appeared happy with the arrangement, although you kept to yourself.

41 After you left school, you moved into a halfway house for homeless youths for a time, then a series of rental properties, living with your girlfriend whom you met at the halfway house.

42 You told Associate Professor Carroll that, when you were 17, you were a psychiatric inpatient at the Albert Road Clinic for a month or two.

43 You made your first suicide attempt at the age of 18.

44 When your father died in your mid-20s, you received a bequest of approximately $500,000. You bought a video store but you sold that business after a couple of years.

45 You moved to the Bendigo region around 2008, purchasing a home in Kangaroo Flat, which you later sold.

46 Over the years, you spent a great deal of money on your musical, animation and programming projects. It seems you had a world-class recording studio in your home at California Gully.

47 For some years now, you have been receiving a disability pension.

48 You have had one long-term relationship of about eight years' duration commencing in your late teens. There have been other brief romantic relationships. A woman with whom you had a relationship in 2009 made multiple allegations of rape which were never substantiated. Some she retracted. You are very bitter about the treatment you received from police in relation to these allegations, which you vehemently deny. The allegations - which, I repeat, were never substantiated - caused you to attempt suicide.

49 You suffer from reflux, severe chronic back pain, ankle problems and poor sleep. There is no evidence that any of these conditions will be aggravated by imprisonment.

50 Of more moment are your longstanding mental health problems. As mentioned, you made your first suicide attempt when you were 18. There have been multiple suicide attempts over the years.

51 You say you will kill yourself if your appeal against conviction fails or you are not acquitted on a retrial. That would be a waste. Whilst you must receive a substantial sentence, you are only 41 and could reasonably expect to live for many years after your eventual release from prison. Even in prison, you could put your intellectual and artistic gifts to good use.

52 Since your late teens, you have been in and out of hospital for mental health related issues, sometimes voluntarily, sometimes involuntarily. You are extremely critical of the public mental health services in Bendigo with whom you have had extensive dealings over the years.

53 Instead of concentrating on the real or imagined failings of Bendigo Health, I consider that there is more utility in turning now to the findings of Dr Zimmerman and Associate Professor Carroll, the two psychiatrists who assessed you in relation to the current proceedings at the request of your lawyers.[7]

54 Dr Zimmerman found that you have a borderline personality disorder and long-term PTSD. Associate Professor Carroll found that you have a severe personality disorder[8] and long-term PTSD, both conditions commencing in your teens and likely to be permanent.

55 I accept the findings of Associate Professor Carroll that you have a severe personality disorder and long-term PTSD. Neither diagnosis was disputed by the prosecution. I find that your mental health problems enliven principles 1, 3, 4, 5 and 6 of the well-known case of R v Verdins.[9] In other words, your moral culpability is somewhat reduced by your mental health issues, which I find contributed causally to the commission of the offence.[10] Because of your entrenched mental health issues, you are not an appropriate medium for giving full effect to general and specific deterrence.[11] Although it seems you are currently feeling well supported by the prison mental health services, it is also likely that the substantial prison term which I must impose on you will exacerbate your mental health issues and make jail harder for you than for prisoners who do not have such issues.

56 I note that in your written submissions you disputed and disavowed the diagnoses of Dr Zimmerman and Associate Professor Carroll that you have a personality disorder. But at your plea hearing, in oral submissions, you were more pragmatic, accepting that it is a matter for me to determine based on the evidence.[12]

57 You have no relevant[13] prior convictions.

58 Two of the men to whom you sent your suicide note[14] gave evidence at your trial. Neither ever saw any signs that you were a violent man, one describing you as a "gentle giant".

59 Although you ran your trial and maintain your innocence, I have no doubt that you are sorry for having caused Ms Vang's death and for the tremendous distress you have caused her family.

60 I am guarded about your prospects of rehabilitation, even though you have no relevant prior convictions. Your mental health problems seem entrenched and I find that there is a significant risk that if you struck up another intimate relationship which turned sour, you could again lose control and act violently. Protection of the community must inform the sentence I impose.

61 I sentence you to 23 years' imprisonment with a minimum term of 17 years.

62 I realise that the head sentence is less than the standard sentence of 25 years, but taking all matters into account - especially your prior good character and the Verdins principles to which I have referred - I consider the head sentence to be appropriate.

63 I declare that you have served 1,202 days of pre-sentence detention, not including today.

[1] In working out an appropriate sentence for your offence, I have had regard to a number of standard sentence cases in relation to murders committed in a domestic violence context: R v Cameron [2020] VSC 334; R v Eckersley [2020] VSC 22; R v Sturt [2020] VSC 317.

[2] Q 151 Just in respect to your words, you did what you did, can you tell me what it is you did?

Q 152 Its just a straight question I just - what did you do ?

Q 154 I wasn't there Adam. I wasn't there so I don't know the specifics.

A Did you or did you not read my email many times, as you said?

[3] The last two documents were sent to me after the plea hearing which took place on 24 May 2021. I forwarded the documents to the prosecution to see if they had any objection to me reading them and, if not, whether they wished to respond to them. Very fairly, they indicated they did not object to me reading them and did not wish to reply to them.

[4] The one titled "PTSD Video" includes recordings of some conversations between you and your brother where he appears to agree with assertions by you that you were physically abused as a child. The one titled Professional History Video includes footage which shows you to be a talented musician, programmer and animator.

[6] You seem to think that your PTSD video, which includes a conversation between you and your brother, proves your allegations against your stepfather. It falls far short of that.

[7] Both considered whether you had a defence of mental impairment and rejected that hypothesis, attaching particular significance to the confession in your suicide note which indicated a conscious choice to end Ms Vang's life and an appreciation of the wrongfulness of your conduct in doing so.

[8] Regarding your personality disorder, Associate Professor Carroll said this in his report:

[240] The most disabling aspect of his personality disorder is his impairment in the capacity to understand other people's perspectives. This has clearly made navigating the adult world very difficult for him and goes a long way to explain the stark disparity between his high intelligence and undoubted talents in certain areas, and his actual achievements.

[241] He has an admixture of personality dysfunctions. Most notably, he has severe narcissistic features, with elements of both 'oblivious' (i.e. being oblivious to the needs and states of mind of other people) and 'hypervigilant' (i.e. being always on the defensive for perceived slights and insults) aspects of narcissism.

[242] He has some paranoid features : a tendency to hold grudges and perceive slights, again consistent with the hypervigilant aspects of narcissism.

• There is a tendency to 'splitting' wherein he sees people (most notably his late father and mother) as either "all good" or "all bad".

• A tendency to severe emotional dysregulation, with suicidal urges, at times of stress - particularly when he feels slighted, humiliated or disbelieved - this is consistent with his narcissistic vulnerability, wherein his self-esteem is fragile and he cannot cope with any degree of challenge.

[9] R v Verdins (2007) 16 VR 269; [2007] VSCA 102.

[10] Principle 1, R v Verdins (2007) 16 VR 269; [2007] VSCA 102. Associate Professor Carroll said this at [256] of his report : "Both his PTSD and his Severe Personality Disorder rendered him liable to a state of emotional dysregulation, with significant diminution in capacity for reflective thinking and calm self-control, in the moments leading up to and including the offence. His PTSD-related flashbacks - the triggering of powerful, intrusive visual memories of previous episodes of distressing interpersonal encounters, likely further exacerbated his distress and emotional dysregulation.

[11] Principles 3 and 4, R v Verdins (2007) 16 VR 269; [2007] VSCA 102.

[13] You have a minor road traffic prior.