Crown v Accused

2 On 14 December 2021, I heard an opening on behalf of the prosecution, victim impact statements and submissions from your counsel Mr Nathwani and Ms Churchill on behalf of the Director of Public Prosecutions as to the appropriate sentence to be imposed on you.

3 As is well known, the maximum penalty for murder is life imprisonment.[1] In addition, murder is a standard sentencing offence under the scheme established by s 5 of the Sentencing Act 1991 (Vic). Under that scheme, the standard sentence for murder is 25 years' imprisonment which means that under that Act, 25 years imprisonment is the sentence that, taking into account only the objective factors affecting the relative seriousness of that offence, is legislated to be in the middle of the range of seriousness. It is established by authority that the standard sentence is to be taken into account in the synthesis of factors leading to the imposition of the sentence on you.[2] It is not a mandatory sentence.

4 It is now my responsibility to sentence you for this very serious offence.

5 You are now 65 years of age. Ms Melzer-Head was 63 years of age at the time of her death. You and she first met as students at Doveton High School and had a brief relationship. Ms Melzer-Head was later married to Roderick Head and that marriage lasted for sixteen years until their separation in 2001. You were married to Jennifer Kingdon for 38 years but had separated by October 2018. That separation related to the relationship you were having with Ms Melzer-Head.

6 In May 2018, you and Ms Melzer-Head reunited at a high school reunion. You later started a relationship and lived together in Western Australia and on the Mornington Peninsula, before moving to a property owned by a friend of Ms Melzer-Head at [redacted], Bendoc, which is in East Gippsland ('the Bendoc property'), in April 2020.

7 On Saturday, 9 May 2020, John Osborne, a close friend of yours, visited you at the Bendoc property and stayed with you there. On the night of 11 May 2020, you shared a meal prepared by Ms Melzer-Head, consumed some alcohol, and played a board game. Mr Osborne went to bed between 9:00pm and 10:00pm. After this, according to his evidence, he heard you and Ms Melzer-Head arguing in low tones for a couple of hours, however at no point did he consider that the situation sounded violent.

8 At the time you were dealing with the settlement of your marital affairs and had exchanged text messages with your estranged wife Jennifer Kingdon about your joint property on 11 May 2020. The prosecution opening notes there was a considerable desire by Ms Melzer-Head for you to settle this matter and, as noted in the report of Mr Patrick Newton filed on your behalf, Ms Melzer-Head was frustrated with the delay and took it as a sign of prevarication about your commitment to her.[3] It was submitted by Mr Nathwani of counsel on your behalf that this issue led to an argument on the night of Ms Melzer-Head's death. At the time Ms Melzer-Head had a blood alcohol content of about 0.14% and you had consumed beer and wine, although you claim not to have been intoxicated.[4]

9 Between 10:43pm and 11:19pm, text messages were sent from Ms Melzer-Head's phone to you indicating that the relationship between you was over. She also called you multiple times between 11:10pm and 3:02am, only some of which were answered.

10 At some point after her last call was placed at 3:02am on 12 May 2020, you stabbed Ms Melzer-Head with a kitchen knife resulting in eleven stab wounds. At the time of doing so, according to Ms Churchill on behalf of the prosecution, your intention was to cause really serious injury rather than to kill. I will sentence you on that basis.

11 Shortly before 3:18am, having stabbed Ms Melzer-Head, you entered Mr Osborne's bedroom and told him 'I think I've killed Mandy'. You also said something to him about your car which caused Mr Osborne to think that Ms Melzer-Head had damaged your Holden Calais. That appears to be true.

12 Mr Osborne went to the kitchen and observed Ms Melzer-Head motionless on the kitchen floor with stab wounds. He saw a kitchen knife on the table and a smashed platter of fruit on the floor. He called 000 at 3:18am and performed CPR compressions for over two hours, following the directions of emergency services. You did not do anything to assist Mr Osborne or Ms Melzer-Head. You claim to have been in a state of shock at what you had done, which your counsel submitted was a reason for your lack of assistance prior to emergency services arriving at the scene.

13 You were arrested by police at 6:00am, having made no attempt to flee or in any way conceal your role in the stabbing. Ambulance paramedics arrived shortly after and were unable to find any sign of life in Ms Melzer-Head.

14 You were later interviewed at Bairnsdale Police Station and answered "no comment" to questions asked in your record of interview. You were charged and remanded in custody where you have remained.

15 During the examination of the scene, police located your car, a Holden Calais, parked on the gravel path with damage to the bonnet, front grill, and right bumper, as well as a branch lodged in the front. It appeared to investigators that the car may have collided with a tree in the front yard and a post further down the driveway. The front number plate was found at the base of a tree in the front yard and the keys were next to some broken pot plants. The branch lodged in the front of the car was matched by a botanist to a sample taken from a tree in the front yard.

16 A post-mortem carried out on Ms Melzer-Head's body at the Victorian Institute of Forensic Medicine determined that she sustained eleven stab wounds in your attack on her and the cause of her death was multiple stab wounds to the chest and back, which resulted in injury to the lungs and penetration of the heart, with resulting blood loss.

17 The charge of murder laid against you proceeded to a committal mention on 19 August 2020 at Bairnsdale Magistrates' Court, following which you were committed to stand trial in this Court via the 'fast-track' procedure which has been adopted in response to the COVID-19 pandemic to assist in the expeditious disposal of matters in the Court.

18 After some hearings in this Court, including 2 days of examinations under s 198B of the Criminal Procedure Act 2009 (Vic) in February 2021, you were arraigned and pleaded guilty to a charge of murder on 31 August 2021.

19 Six victim impact statements were filed with the Court:

(a) Georgia Head - daughter of Ms Melzer-Head

(b) Alexandra Head - daughter of Ms Melzer-Head

(c) Roderick Head - ex-husband of Ms Melzer-Head

(d) Nicholas Prehn - partner of Alexandra Head

(e) Jodi Woodward - cousin of Ms Melzer-Head

(f) Susan Hardie - friend of Ms Melzer-Head

20 These statements expressed in graphic detail the impact of your crime on Ms Melzer-Head's friends and family. Those statements, some of which were read in open court, eloquently express the lifelong impact of your actions and the severe effect they have had on those closest to Ms Melzer-Head. I have taken those statements into account in determining the sentence that I shall impose on you.

21 You were born in Wales in January 1956. You are the third of six children, with three younger brothers and two older sisters. You migrated to Victoria with your family at age six and attended school in Doveton. You experienced bullying in primary school which you attribute to your strong accent.

22 You failed your year 12 exams and left school for employment. You have thereafter either been engaged in education or employment, primarily as an accountant or mortgage broker, until your retirement in 2019. Since your remand you have undertaken the limited courses available in custody and gained employment in prison.

23 You moved with your family to Western Australia around 1975, aged 19. You married Jennifer Kingdon in 1980, and there are two children and four grandchildren.

24 Your relationship with Ms Melzer-Head and your relocation to Victoria put a strain on your relationship with your children, however they remain supportive of you. Your geographical location in Victoria, in addition to the pandemic and its impact on prisoners, has limited your contact with them.

26 You were assessed in June and September 2021 by clinical and forensic psychologist, Mr Patrick Newton, for the purposes of the plea. As set out in Mr Newton's report dated 28 September 2021, your symptoms meet the diagnostic criteria for major depressive disorder of moderate severity.[5] Your depression had its onset in 2018 in the context of worsening problems in your marriage, and at that time you sought some medical and brief psychological care.[6] On your account, low-level symptoms persisted throughout your relationship with Ms Melzer-Head, 'growing more intense as the difficulties concluding [your] marriage persisted and caused strains in the new relationship'.[7] Mr Newton opines that 'while [your] depression provides a context for understanding [your] poor judgement, there is no nexus between [your] depression and the violence [you] manifested'.[8] You had severe reactive depression after your arrest, and you continue to experience significant depressive symptoms.[9]

27 The outcome of a risk assessment conducted by Mr Newton using the HCR-20 version 3, a professional judgment instrument, assessed you as a 'low risk' of further violent offending.[10]

28 In a written outline of submissions filed on 22 November 2021, Mr Nathwani of counsel accepted that the only sentence available is a lengthy prison sentence. However, it was submitted that the appropriate sentence is one much less than the standard sentence for murder, as the offending is objectively less serious than the standard sentence, in addition to the other mitigating factors that apply as follows.

29 You accept your guilt and have done so since confessing to Mr Osborne in the immediate aftermath of the offending. It was submitted that you stabbed Ms Melzer-Head in the heat of the moment against a background of mental turmoil and pressure in the context of:

(a) your depression, caused by the breakdown of your marriage that overlapped with your relationship with Ms Melzer-Head, which was exacerbated by your deteriorating relationship with your children;

(b) financial pressures and dealing with the division of funds as part of the end of your marriage;

(c) you wanting those proceedings to be as amicable as possible, which in turn caused friction with Ms Melzer-Head who perceived delay by you as a lack of commitment towards her. This friction resulted in arguments between you, often with Ms Melzer-Head becoming increasingly aggressive;

(d) Ms Melzer-Head and you were arguing about this on the night of her death, during which Ms Melzer-Head threw items at you, crashed your car and said hurtful things about your son's recent unsuccessful suicide attempt.

30 It was submitted that this offence is objectively less serious than the hypothetical mid-range murder offence as:

(a) The offending was not planned but was opportunistic;

(b) The prosecution accepts that you did not intend to kill Ms Melzer-Head;

(c) You did not carry a weapon to the scene;

(d) You acted in response to a degree of provocation;

(e) You did nothing post offence to hide your offending; and

(f) Ms Melzer-Head was not vulnerable.

31 As will become clear, as to the fourth of those matters, I regard your reaction to the so-called "degree of provocation" as being perhaps explanatory of your conduct but not mitigatory.

32 You are a man of previous good character with no prior convictions. You have relied on a number of character witnesses' letters which were produced on the plea to demonstrate aspects of your good character, including that you have never previously resorted to violence and have contributed significantly to the local community and charitable work.

33 You are 65 years of age. That was argued to be significant because:

(a) you may die in prison depending on your sentence;

(b) you will find prison more burdensome than a younger offender due to your age and mental health; and

(c) given your age and previous good character, you are unlikely to offend again, and will present less of a risk to the community as a consequence.

34 After limited hearings pursuant to s 198B of the Criminal Procedure Act 2009 (Vic), you indicated your plea of guilty to murder, having made admissions at the scene. Your plea was argued to carry utilitarian value and warrant a significant moderation of sentence.[11] That is obviously correct and not in contention. There is clear authority supporting the proposition that a plea of guilty to a charge of murder warrants a significant discount, particularly in times of pandemic as we have now.[12]

35 It was submitted that you have demonstrated significant remorse due to your plea of guilty and presentation after Ms Melzer-Head's death. Your explanation for not assisting Mr Osborne after incident is that you were in shock and aware that Ms Melzer-Head had already passed away, having told Mr Osborne that you thought you had killed her.

36 The report of Mr Newton details what is described as your genuine contrition for Ms Melzer-Head, her family and your own:

[10] Mr Kingdon presented for each consultation in a downcast and distressed manner. He was frequently tearful when discussing his offending and its consequences, and manifested clear and persistent signs of depressive mood disturbance.[13]

...

[35] Mr Kingdon's dialogue is intensely self-punitive...While Mr Kingdon's shame for his offending is almost palpable and seems to encompass a genuine empathy for the suffering he has caused others together with an appreciation of the gravity of his crime, it is also clear that such ideation is intensifying his depression.[14]

...

[36] Mr Kingdon reported that he felt emotionally "devastated by this". He described a profound sense of shame and guilt for his conduct which at times seemed so intense that it borders on self-loathing.[15]

37 There is no reason not to accept Mr Newton's observations about your remorse.

38 Conditions in custody have been onerous during the pandemic, which was submitted to be particularly relevant as this represents your first time in custody. You have been affected in most, if not all, of the ways recognised by case law as examples of how COVID-19 has impacted prisoners. This is exacerbated by your age and increased vulnerability to serious infection.[16] Further, to date, you have apparently accrued in excess of 250 emergency management days, evidencing the time you have been locked down in custody.

39 It was submitted that your plea of guilty should attract greater weight and a more pronounced reduction of sentence than had it been entered at a different time. I have already indicated my agreement with that submission.

General and specific deterrence, denunciation and just punishment

40 Mr Nathwani acknowledged general deterrence, denunciation and just punishment are relevant in this case but made no further submissions on those factors.

41 On specific deterrence, he submitted this should be moderated by your remorse and self-punitive internal dialogue, which evidences that the knowledge of your actions continues to punish you daily, such that it acts as a specific deterrence.

42 Given Mr Newton found no direct nexus between the your depressive symptoms and the offence, it was not submitted that Verdins principles 1-4 apply.[17]

43 Mr Nathwani submitted that Verdins principles 5 and 6 do apply as you will find prison more onerous due to your diagnosis of major depressive disorder with symptoms that are more severe than is common in those imprisoned for the first time, and that you will likely internalise the punitive aspects of sentencing, coupled with your age and demographic divergence from most other prisoners.[18]

44 It was submitted that you have excellent prospects of rehabilitation due to:

(a) your previous good character;

(b) your expressed shame and remorse to the extent you are self-punitive;

(c) engagement in courses and employment in custody;

(d) prison being a salutary experience;

(e) strong support from your family and friends;

(f) your mental health issues are now known, and you are prepared to seek mental health assistance during your sentence; and

(g) there is a low risk of reoffending as evidenced by the report of Mr Newton.

45 Murder is a category 1 offence under s 3 of the Sentencing Act 1991 (Vic). Under s 5(2G), a term of imprisonment must be imposed for this offending. As I have already said, this was not in issue between the parties.

46 Ms Churchill on behalf of the Director of Public Prosecutions made the following submissions.

47 The prosecution did not accept that the offending occurred in the 'heat of the moment'. Ms Churchill did not argue that the murder was planned or pre-meditated, but submitted that it could be distinguished from an attack where someone is stabbed in the heat of the moment once or twice before ceasing. As I have already said, the evidence establishes that you stabbed Ms Melzer-Head 11 times.

48 Further, the prosecution did not accept that the offending in this case is 'objectively less serious than the hypothetical mid-range murder offence', and submitted its objective gravity places it at least in the mid-range for this type of offending, pointing to the following factors:

(a) the offending occurred in the context of a domestic relationship and in Ms Melzer-Head's own home, where she was entitled to feel safe. The gross breach of trust in this case is self-evident;

(b) the physical evidence is indicative of a brutal attack involving the use of a bladed weapon;

(c) whilst not planned or pre-meditated, you still reached for an available weapon, and the number of stab wounds (11) demonstrate the attack did not involve a single reactive action. The repeated stabbing action should have given you time to reflect before inflicting the next wound;

(d) you did not assist Ms Melzer-Head or call emergency services. While it was accepted that Mr Osborne was capable of assisting, it was submitted that this aspect is hard to reconcile with your claim of immediate remorse. As I have already noted, your counsel submitted that the reason you failed to assist Mr Osborne was because you were in a state of shock at the time and were aware that Ms Melzer-Head had already passed away; and

(e) to the extent it was submitted there was a degree of provocation, the provocation was not so great as to warrant a reduction in moral culpability or to reduce the overall objective gravity of the offending. Your response to any argument was submitted to be too disproportionate to allow for such a reduction.

49 Further, Ms Churchill argued that while it seems irrefutable there was some disagreement between you and Ms Melzer-Head, I should be cautious about accepting your account of the incident as outlined at paragraph [33] of the report of Mr Newton. This was submitted to be at odds with some of the objective evidence, particularly that there was no known history of violence between the two of you, the statement of Mr Osborne and the crime scene photographs. Further, you appeared to have 'gaps' in your recollection of the actual attack.

Previous good character, age, remorse and prospects for rehabilitation

50 The prosecution accepts you may well have good prospects of rehabilitation, and as such community safety assumes less significance, and there is demonstrable evidence of remorse. No issue was taken with the submissions regarding your previous good character, family support and low-risk of reoffending. It was also accepted that your advancing age is relevant.

51 The prosecution noted that your plea was not entered at the earliest possible opportunity, occurring after the cross-examination of some witnesses pursuant to s 198B of the Criminal Procedure Act 2009 (Vic). However, the prosecution accepted that your plea, particularly during the pandemic, should attract an appreciable discount on the sentence. I would accept that the delay in entering the plea of guilty was an aspect of you receiving and following various pieces of legal advice as to how the matter should be conducted, and that your plea of guilty was entered at the first appropriate opportunity if not at the very outset of the criminal proceeding against you.

52 Ms Churchill took no issue with your counsel's submissions regarding the applicability of the 5th and 6th limb of Verdins.

General and specific deterrence, just punishment and denunciation

53 The prosecution submitted cases involving the murder of a partner must be seen as the most extreme example of family violence, and it is well established that principles of general deterrence, denunciation and just punishment will ordinarily be strong considerations in such cases.[19]

54 It was accepted that, given your lack of prior convictions, specific deterrence will assume less significance.

55 The prosecution accepted that you held an intent to cause really serious injury, however, this is not necessarily 'less' serious than an intention to kill. As stated in Walters v The Queen, moral culpability will be determined by the nature of the killing, including the conduct of the accused, rather than the particular intent with which the conduct was carried out.[20]

56 In this case, you stabbed Ms Melzer-Head eleven times with a bladed weapon in her own home at the cumulation of an argument. It was submitted that your moral culpability is high. I agree with this submission.

57 As I am now much nearer to the end of my judicial career than the beginning, this is yet one more example I have seen of fatal violence inflicted by a man on a woman in a domestic setting with a weapon seized from the tools of everyday living - a kitchen knife.

58 It came at the end of what was apparently a pleasant enough evening at least to a certain stage. It also came after the consumption of a significant amount of alcohol, particularly on the part of Ms Melzer-Head. It came after an argument about relationships - perhaps one of the most difficult aspects of human existence and the source of endless bitterness and tension. It came after yet another woman indicated that she wanted to end the relationship she was in and, finally, it culminated with a man, once more, claiming to have lost control of himself, killing someone he professed to have loved. Without being stated by you explicitly, your explanation for your conduct carries the implication, "look what you made me do".

59 People are entitled to leave relationships and, men in particular, who are told their relationships are finished do not have any form of licence, rationale or excuse to then inflict fatal violence as a reaction in order to quell their feelings of rejection.

60 I consider there is a genuine debate to be had about the effect of general deterrence in sentencing but on the other hand a way must be found to stop men from killing women who are almost always utterly defenceless in the face of a weapon such as a knife. General deterrence has an important role to play in this context.

61 This is a very serious offence and deserving of substantial punishment.

62 However, on the other hand, your personal circumstances are of some consequence. You have lived for more than 60 years without criminal conviction and led a good life until now. You had been active in the community for the community's benefit and you raised a family. You have been a person of good character, as the numerous character reference filed on your behalf attest. The change in your life has no doubt shocked you. Now you probably face the bulk of the rest of your life in custody. You have immediately taken responsibility for your actions, and you have pleaded guilty at a time when the utilitarian value of such a plea is very high. Your willingness to plead guilty to the charge of murder is, in my opinion, a powerful way for you to accept full responsibility for what you did, and you are entitled to credit for that. In my view you have done all you can do to atone for what you did. I am sure you are genuinely remorseful about what you have done and you have demonstrated that in a number of ways, including your plea.

63 Several of the cases that I have been referred to, although falling within the standard sentencing scheme, were decided before the COVID-19 pandemic. In my view, your plea to murder in the midst of the pandemic is significant.

64 I have taken the standard sentence into account as I am required to do. It will be seen that the sentence I will impose on you is less than that period for reasons that I consider are obvious from what I have already said.

65 The sentence I will impose on you for the murder of Ms Melzer-Head is a term of imprisonment of 23 years. I am required to fix a non-parole period of at least 70% of that head sentence and I therefore order that you serve a period of 16 years and 3 months before you are eligible to make an application for release on parole.

66 You have been in custody since your arrest on 12 May 2020. Your pre-sentence detention is calculated at 588 days up to the date of this sentence. I declare pursuant to s 18 of the Sentencing Act 1991 (Vic) that 588 days is reckoned as pre-sentence detention and direct that this be entered into the records of the Court.

67 Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), I declare that had you not pleaded guilty to this charge, I would have sentenced you to a period of 28 years imprisonment and fixed a period 22 years before would have been eligible to apply for release on parole.

68 The prosecution sought a disposal order to which your counsel consented on your behalf. I made the disposal order on the hearing of the plea on 6 December 2021.

[1] Crimes Act 1958 (Vic), s 3(1).

[2] Brown v The Queen [2019] VSCA 286, [4] and [44].

[3] Report of Mr Patrick Newton dated 28 September 2021, [24].

[11] R v Duncan (1998) VR 208, 215.

[12] Worboyes v The Queen [2021] VSCA 169, [34]-[35].

[16] R v Madex [2020] VSC 145, [51].

[17] R v Verdins [2007] VSCA 102, [32].

[18] Above n 3, [39], [42] and [51].

[19] Felicite v The Queen [2011] VSCA 274, [20].

[20] [2013] VSCA 164, [7].