Crown v Accused

2 The maximum penalty for murder is life imprisonment.[2] Murder is a standard sentence offence,[3] and a category 1 offence under the Sentencing Act 1991 ('the Act).[4]

3 There have been unfortunate delays in the finalisation of your plea and sentence. I will not discuss the reasons for these delays now but will footnote the circumstances in these reasons.[5] I have had regard to the evidence led at trial and the materials tendered by the Crown at the plea hearing[6] including the victim impact statements.[7]

4 I have also had regard to the materials tendered on your behalf[8] and to the written[9] and oral submissions advanced during your plea hearing.

5 You met Noeline in 2002 at a hotel in Carrum and became involved in an on again and off again relationship with her over many years. You had three children together. I will not refer to the children by name.

6 At the time of your offending, your eldest daughter was aged 16, your son was aged 15 and your younger daughter was aged 13.

7 In recent years you attracted frequent police attention involving the imposition and breach of family violence interventions orders (FVIO's) in respect of Noeline. You appeared before local Magistrates' Courts on several occasions for this behaviour. At your plea hearing, the prosecution tendered police summaries setting out the behaviour that led to those court appearances.[10]

8 A FVIO made on 21 November 2018 was in place at the time of Noeline's death. Nevertheless, the evidence before Court was that Noeline had tolerated you continuing to reside at the family home since around Christmas 2019 on the basis that you had nowhere else to live. Of course, your continued residence there was in breach of the court orders put in place to protect Noeline and therefore was in breach of the law.

9 In the six months before her death, Noeline had been exchanging calls and text messages with an old school friend, Mr Blain. A romantic interest developed on her part, in circumstances where she regarded her relationship with you as over.

10 You called Mr Blain on 1 February 2020, on Noeline's phone and told him that you were no longer in a relationship with Noeline and that Mr Blain should hook up with her. You also told your friend Daniel Ryan on that same day that you thought Noeline was with someone new.

11 On 2 February 2020, you phoned Mr Blain again. This time, your attitude had changed to anger and you threatened him, saying that he was dead.

12 You also spoke to your neighbour, Michael Fortune, that day and complained about Noeline's involvement with another man, saying that you would kill the man if he did anything to Noeline.

13 On 3 February 2020, Noeline sent a text message to Mr Blain implying that she was angry that you had contacted him, and that she wanted to see him soon.

14 At 2:40pm on 4 February 2020, the day of the offending, you phoned Mr Blain again. During that call, you apologised to Mr Blain. At around this time also you made several calls to your friend Daniel Ryan. Mr Ryan said that you sounded angry and frustrated and seemed upset and stressed about the direction your life was taking. He said you were questioning whether your life was worth living.[11]

15 That afternoon, you were present with Noeline at the family home in Seaford. At around 3:30pm, your children arrived home from school. When they arrived, they found you and Noeline arguing. You yelled at Noeline that she was cheating on you. Noeline was crying. You continued yelling at Noeline for up to an hour. Noeline tried to move away from you, but you followed her around the house, abusing her.

16 Your son yelled at you to stop and told you to leave the house. At some stage you had a knife in your hand which you swapped to a pair of scissors. You removed the scissors from your pocket and put them on top of the fridge. Your younger daughter took them and hid them in a drawer.

17 You then armed yourself with a large kitchen knife,[12] and approached Noeline, who was sitting in the loungeroom. You held the knife against her throat while threatening her. You elder daughter yelled at you to stop and to let her mother go.

18 Noeline tried to get up, but you blocked her with your arm and yelled at her to sit down. She waited for you to move, and then walked away from you, down the hallway towards the bedrooms. You followed her while still holding the knife. Your son and your elder daughter went after their mother and pushed her into your son's bedroom, to protect her from you. You pursued Noeline into the bedroom. Your younger daughter saw you pause before entering the bedroom. You sat on a wooden chest near the entrance to the room for a short time. Then you got up and barged into the room, forcing Noeline to retreat into the corner. Your elder two children put themselves between you and Noeline. Your younger daughter entered the room after the rest of the family.

19 You threatened to kill Noeline and tried to get past your children to get at her. Your son pushed you to try and keep you away. Noeline had her back to the cupboard in the corner of the room, with the two older children in front of her and the younger child off to the side. Your children were yelling and screaming at you to stop. Your son tried getting the attention of neighbours by banging on the window.

20 Suddenly, you reached over the top of your children, and stabbed Noeline once to the left side of her neck with the knife you were wielding. Your son tackled you to the floor and you dropped the knife. Noeline fled from the room, out the front door and over the road towards Michael Fortune's house. Your son ran after his mother and helped her when she began to falter because of the knife wound.

21 In possession of a second knife,[13] you followed Noeline and your son out of the house and across the road.

22 Your elder daughter picked up the bloodied knife used in the offence, went outside and threw it on to the front lawn. Then she ran after her younger sister who was chasing the family dog down the street.

23 Mr Fortune was in his driveway when he heard screaming from Noeline's home. He saw Noeline stumbling across the road towards him, helped by her son. As they came closer, he saw that Noeline's shirt was covered with blood. He heard your son yell 'call the cops'... 'she's been stabbed'.[14]

24 Mr Fortune was about to call triple 0, when you approached him brandishing the second knife and told him not to call the cops.[15] He retreated into his house and locked the front door. Minutes later,[16] displaying considerable courage he went back outside to offer help in response to the unfolding commotion. By then, Noeline was lying down in the driveway. You were at Noeline's side and agreed for Mr Fortune to call an ambulance. He called triple 0 at 4:38pm.[17] The operator gave first aid instructions over the phone. During the call, Noeline stopped breathing, and the operator instructed Mr Fortune to perform CPR.[18] You assisted with CPR for a time although you stopped when another neighbour, Mr Pavlov, approached, at which point you got up and tried to walk away. Mr Pavlov blocked your path and ordered you back, and you complied.[19] You then resumed helping with first aid until police arrived. In the meantime, your son found the second knife and hid it in the bushes.[20]

25 Once police ascertained your role, you were placed on the ground and searched. Paramedics arrived and attempted to save Noeline's life, but she died at the scene.

26 You were arrested and taken into custody and you have remained in custody ever since.

27 At autopsy on 5 February 2020, forensic pathologist Dr Sarah Parsons, found that the cause of Noeline's death was a tension pneumothorax and blood loss, resulting from a stab wound to the left side of her neck between the mid portion of the scapula and clavicle.[21]

28 You were committed for trial to this Court on 31 July 2020 through the Court's fast-track process. The indictment was filed on 28 January 2021,[22] and preliminary argument took place on selected dates across several months.[23] Your trial was delayed due to COVID-19 and courtroom availability.[24] On 24 November 2021, a jury was empanelled and the trial proceeded over seven days. The only issue at trial was murderous intent and the trial was conducted very economically on your behalf.

29 On 7 December 2021 a jury found you guilty of murder.

Victim's circumstances and victim impact statements

30 Noeline was 49 years old when she died.[25]

31 The victim impact statements speak of the grief that her death has caused her children and the loss felt by her wider family. Her children, who are also your children, spoke of their deep emotional pain on losing their mother.

32 Your elder daughter is frustrated, hurt and angry, and has trouble sleeping since the offence. She has suffered panic attacks which have required medical treatment. Daily life is a struggle for her without her mother's support.

33 Your son tries not to think about the day his mother was killed and tries to keep a positive outlook. He is sad, frustrated and hurt when he thinks of a future without his mother.

34 Your younger daughter experiences ongoing sadness, anger and frustration. Life is hard for her without her mother. She is upset in the knowledge that her parents will not be there for big occasions in her life such as birthdays, her first job, marriage and children.

35 Your actions will continue to rebound on your three children in the years to come. There is an enormous hole left in their lives by the loss of their mother.

36 Three young lives forever changed by your despicable violence.

37 Noeline's brother Malcolm, and his wife, Jenny,[26] have taken on the role of caring for the two younger children, despite the sacrifices involved in doing so at their stage of life. Since the murder, Malcolm has suffered health problems and insomnia. Jenny explained how your actions have changed her experience of family life. She has needed ongoing counselling and takes medication to cope. She is sad that your children will grow up without their mother.

38 Mr Fortune, and Mr and Mrs Pavlov, who attended the unfolding incident, were exposed to trauma during their efforts to assist.

39 I have taken account of each victim impact statement in sentencing you, as well as the effects on all who have been touched by the murder of Noeline.

40 As submitted by the Crown, there are aspects of your offending that worsen the objective gravity of your offending. You stabbed Noeline in front of your three children while they tried to deter you and protect their mother. As a smaller woman faced by a larger man armed with a knife, Noeline had no chance of escaping or defending herself. Your children contrived a dog walk to get Noeline out of the house, but you had armed yourself with a knife, and kept her under your control, refusing to let her leave the house.

41 Although this behaviour was not protracted, I accept the Crown's submission that the stabbing was also not wholly spontaneous. You were following Noeline around the house before the incident and pursued her into the bedroom, before reaching past and over your children to stab her. You had a chance to desist but chose not to.

42 I accept that Noeline was only stabbed once, but you dropped the knife only after your son tackled you. It also counts against you that you followed Noeline and the children out of the house whilst in possession of a second knife.[27]

43 It is not clear when you gained possession of that second knife, but you brandished it at Mr Fortune to deter him from using his phone. This action was driven by self-preservation. However, I accept that minutes later when the gravity of Noeline's condition became clear to you, you agreed to Mr Fortune calling an ambulance and you began rendering assistance to Noeline.

44 I regard it as a further aggravating factor that you flouted the intervention put in place to protect Noeline. She was killed in her own home, where she was entitled to feel safe. You attacked Noeline for the self-centred reason that she had rejected you in favour of someone else.

45 It appears likely that you were affected by alcohol in the lead-up to the offending. Your children were familiar with the changes in your presentation when you had been drinking, and referred to this in their VAREs.[28] Whilst police did not think you appeared drunk, you seem to have built up a tolerance for alcohol as described by Daniel Ryan in his evidence at trial. In the past you have tended to abuse substances when emotionally disturbed, and your erratic phone calls to Daniel Ryan and to Mr Blain show you that you were emotionally disturbed by Noeline's interest in Mr Blain. My finding that you were probably intoxicated at the time of the stabbing is not mitigatory as such. It simply provides context to your offending. As will be discussed later, you have battled with alcohol and other drugs for most of your life consistent with the Bugmy factors referred to on your plea.

46 The objective features of your offending that I have just outlined make this a serious example of intimate partner family violence murder.

47 You are now aged 47. You are the only child of your parents' union, having been born in the South-Eastern suburbs of Melbourne. Your parents split up when you were an infant and your mother raised you on her own. Your mother's lifestyle was transient and she moved house frequently. You describe your mother as a bad alcoholic, who also abused cannabis and amphetamines. You have said that both sides of your family have been afflicted by alcoholism for generations, including both parents and extended family.

48 Your mother had several partners throughout your childhood and was married three times. You were often frightened of your mother's partners and recall being physically hurt by them. At the age of 16, you spent six months living with your father because your mother could not house you. Your father was an imposing person who abused alcohol and amphetamines. You were exposed to direct violence from him and also saw him assault his partner. You had to stop living with him when he was gaoled for family violence offending.

49 In subsequent interactions with your father he was violent towards you. Even after you had formed a family with Noeline in 2002, your father caused trouble for you. On a visit with your family in 2003, he seriously assaulted you by putting your head through a cabinet and hitting you with a coffee table while drunk. You were taken to hospital after that attack. You broke off communication with him and did not see your father again before his death eight months later. You remain haunted by not having reconciled with him before his death. You have also referred to trauma caused by sexual abuse by a female relative in your childhood.

51 You started drinking alcohol in the park with friends in your early teen years, but believe your drinking became a larger problem by about 23 years of age. By then, you were using alcohol to escape from your problems. You have battled with alcoholism throughout your life, and have tried to stop drinking on occasions. The Court heard from Daniel Ryan,[29] who testified that you were wanting to change your life and seek help with your drinking. He believed you had been taking steps to deal with your drinking problem in the period leading up to the offence.

52 You attended school to part way through Year 11. You worked as a paperboy and then at a fruit shop in Frankston while still in your teens. After leaving school you undertook labouring and manual work for a few years, and then obtained work installing heating and cooling systems for about 18 months. You commenced a plumbing apprenticeship, but did not complete it, instead doing unqualified plumbing work for another three years. You obtained work for a company installing plumbing in motorhomes. You undertook other varied jobs, and your last employment involved you working as a tiler intermittently over a period of ten years in between periods out of work caused by your alcoholism.

53 During your time on remand for the current offence you have been held in a protection unit, due to the nature of the offending. You therefore do not have access to the fuller range of programs that might otherwise be available, although you have worked as a billet in assembly of nuts and bolts for the past few years and this work is important to you.

54 You have completed a program of counselling sessions with a counsellor through Caraniche, to address anxiety, relationships and past substance addiction. You have also gained certificates from some short courses offered to you. Since being on remand you have not received any visits from anyone, although you have had occasional phone contact with your mother.

55 You have prior convictions dating back to the 1990s, but I will focus on offences for violence that are more relevant to sentencing in this case. In 2006, you were convicted for recklessly causing injury and fined. The following year, in 2007, you were convicted for recklessly causing serious injury and sentenced to 14 months' imprisonment. The 2007 offending followed a drinking bout that lasted all day and into the night with a close male friend. An argument erupted and you stabbed your friend in the back so that he required surgery for a serious injury. You successfully served a period of parole after being imprisoned for that offence.

56 Seven years later in 2014, you were placed on a CCO for recklessly causing injury and associated offences.

57 You have been dealt with on five occasions for breach of FVIO's put in place to protect Noeline. On two other occasions you were dealt with for family violence offending but no order was in place at the time. All of this conduct occurred over the years between 2013 and 2019. The common thread for most of the breaches was your attendance or presence at the family home when intoxicated and your refusal to leave when asked, or engaging in verbal or other harassment or threats short of physically assaulting Noeline. It is not clear from the summaries provided that you were drunk or substance affected on every occasion, but this was the case on most occasions, according to the records.

58 Evidence was given at your trial of three family violence incidents that occurred in the lead-up to the fatal stabbing of Noeline.[30] The first incident occurred in November 2018 when you were drunk and verbally abusive and threatening towards Noeline leading to a FVIO being made by Frankston Magistrates' Court. You were then dealt with in June and September 2019 for breaching that order by attendances at the family home. The offence before the Court occurred within months of you completing a gaol term imposed on 6 November 2019 for breach of the FVIO.[31]

59 In mitigation of sentence your counsel relied on the fact that you pleaded not guilty to murder but guilty to manslaughter in the presence of the jury, showing acceptance of responsibility for causing Noeline's death.[32] The trial on the charge of murder was on a limited basis, with very confined questioning of your children who had witnessed the event. Only two of your children were questioned at trial. I accept that these matters are relevant to sentencing.

60 Defence Counsel at your plea hearing emphasised that the fatality in this case resulted from a single stab wound and you assisted Mr Fortune in providing CPR as described earlier. The provision of first aid was relied on as an indication of a degree of contrition. These matters do reduce the objective gravity of the crime when compared with other cases involving more protracted violence and worse post offence conduct.

61 Whilst the Crown had originally conceded that there was some evidence of remorse, that concession was withdrawn while your plea was part-heard because of certain comments made by you in letters written to each of your children. The letters were not given to the children but were tendered by the Crown and relied on as showing a lack of genuine remorse.

62 Whilst I accept that the letters portray a failure to take proper responsibility for your crime, I am cognisant of the way in which psychological dysfunction impacts on your capacity to express full contrition at this point in time. In those letters you did say you were sorry for causing the children to lose both their parents, but you also sought to shift blame in an inappropriate way. Similar sentiments were expressed to the psychologist who assessed you for your plea. The importance of this material should not be overstated. Ultimately, I accept that there are aspects of your conduct since the offending that suggest some remorse, although you have much psychological work to do before you can be seen to be truly remorseful.

63 Also, in mitigation, your counsel relied on the hardship you have endured on remand throughout the current pandemic and the efforts you have made towards self-improvement despite these hardships. It appears that you have settled into life in custody determined to make the best of your lot. I acknowledge that you have worked consistently as a billet while in prison and you have pursued counselling and such other self-improvement courses as have been available to you as a remand prisoner.

64 I take into account the impact of the current pandemic on you as a remand prisoner, including the additional restrictions imposed by Corrections throughout the last few years. I was told that you became ill with COVID-19 in January this year and were managed in isolation during your illness.

65 A further matter of importance advanced on your behalf was the submission that formulation of your sentence should take account of matters personal to you, in particular your personal history of profound deprivation and trauma, marred by early exposure to substance abuse and violence.[33] The psychological report of Gina Cidoni was relied on as enlivening both Verdins[34] principles and Bugmy[35] principles. I accept that the Cidoni report does provide a basis for that submission.

66 Ms Cidoni assessed you as having borderline intellectual capacity with a history of severe childhood trauma and instability affecting your development in your teenage and young adult years. She diagnosed you with Borderline Personality Disorder, Generalized Anxiety Disorder with depressed mood, Post-Traumatic Stress Disorder and Alcohol and Stimulant Use Disorder (in enforced remission).[36]

67 She found that childhood deprivation, parenting instability and exposure to family violence and trauma during your upbringing have left you with profoundly damaged psychopathology increasing your tendency towards antisocial behaviour. Ms Cidoni took note of past family violence related behaviour by you including threats to Noeline and property damage. She found that you suffer from paranoia and psychopathy traits. She opined that your personality disturbance, clinical conditions and intoxication would have impaired your ability to make rational judgments or control your behaviour at the time of the offending. Factors underlying your complex clinical profile and disordered personality include impulsivity, emotional volatility, intense feelings of inadequacy and hopelessness, paranoid symptoms, poor self-regulation, hyper-arousal and affective instability, all of which are said to have undermined your ability to think clearly and respond calmly.

68 She considered that your insight remains clouded by distress about your actions and the outcomes of your actions.

69 Ms Cidoni found that you present with several characteristics associated with an increased risk of violence and fall within the high-risk category for such behaviour. However, she also observed that the primary factors that elevate your risk profile are amenable to treatment, and that appropriate intervention through the establishment of continued abstinence, and voluntary acceptance of psychological and drug and alcohol treatment would reduce future risk.

70 The report of Ms Cidoni articulates the basis of her opinion in a careful and considered way, and I accept her key findings regarding your psychopathology at the time of the offending and at the present time. I am prepared to give modest weight to Verdins 1, 3 and 4, putting to one side the finding of intoxication referred to by Ms Cidoni but focusing on your personality disturbance arising from your Borderline Personality Disorder and the other clinical conditions which she considered would have impaired your ability to make rational judgments or control your behaviour at the time of the offending.

71 I also accept that Bugmy principles are enlivened in your case as a result of your unstable upbringing and early life. While you are now a person of mature years, it must be remembered that the effects of profound childhood or developmental deprivation do not diminish over time and you remain impaired by those experiences.[37]

72 I consider that your moral culpability is somewhat reduced because of your experience of childhood deprivation and trauma, affecting your development into adulthood. Your psychological and personality dysfunction have likely contributed to your prior violent offending, including the 2007 offence, as well as your pattern of family violence offending towards Noeline and the commission of the offence before the Court.

73 I accept that both Verdins factors and Bugmy factors operate to reduce your moral culpability for the offence to some degree, whilst recognising an interrelationship between the two. Ms Cidoni has explained how your experiences of childhood deprivation and trauma have contributed to the development of impaired mental health. In turn, your impaired psychopathology is the trigger for Verdins principles.[38]

74 Regarding Verdins 5, I accept that the combined effect of your clinical conditions will make custody weigh more heavily for you than for a person without those impairments, given that prisons are inherently high stress environments.[39]

75 I accept Ms Warren's submission that the threshold for Verdins 6 is not met, because although there is some risk of decline in your mental health from your conditions in custody, you appear to be managing reasonably well and are accepting of treatment and you are away from the damaging substances that have been so destructive of your mental health when in the community.

76 Mr Waters, who appeared for you at your part heard plea, conceded that any reduction in moral culpability and need for general and specific deterrence must be balanced against the significance of community protection as a sentencing consideration. I acknowledge that rehabilitation and reformation will be a hard task for you, evoking consideration of community protection. However, this aspect is of lesser significance given your current age and the fact that murder is a crime that attracts a very lengthy sentence. You will spend many years in custody with limited access to drugs or alcohol with ample time to reflect on the poor choices you have made in the past.

77 Under the Sentencing Act 1991 (Vic) I must have regard to the maximum sentence for murder, referred to earlier, and pursuant to 5(2)(ab) of the Act. I must also have regard to the standard sentence for murder, which is 25 years.[40]

78 Section 5A(1) of the Act provides:

If the Act that creates an offence, or prescribes the maximum penalty for an offence, specifies a period as the standard sentence for the offence, then -

(a) the offence is a standard sentence offence; and

(b) the period specified as the standard sentence for the offence is the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.

79 Pursuant to Section 5A(3) of the Act:

For the purposes of subsection (1)(b), objective factors affecting the relative seriousness of an offence are to be determined―

(a) without reference to matters personal to a particular offender or class of offenders; and

(b) wholly by reference to the nature of the offending.

80 The Court of Appeal in Brown v The Queen[41] held that the principles to be applied to the standard sentencing regime include that:

[A] judge when sentencing for a 'standard sentence offence' must 'take the standard sentence into account as one of the factors relevant to sentencing'. This requirement: i) is to be treated as a 'legislative guidepost', having the same function as the maximum penalty; ii) does not affect the established 'instinctive synthesis' approach to sentencing; iii) does not require or permit 'two-stage sentencing'; and iv) does not otherwise affect the matters which the court may, or must, take into account in sentencing.

81 The Court of Appeal also said that: 'Judges sentencing for standard sentence offences should continue to assess offence seriousness in the conventional way taking into account both objective gravity and moral culpability'.[42] Further, that, 'Just as judges have always had in mind a notion of the worst possible case, they must now have in mind a notion of an offence in the middle range of seriousness'.[43]

82 Therefore, I must take into account the standard sentence as one of the factors relevant to sentencing you, although the standard sentence scheme does not otherwise change the sentencing exercise and I must not give too much weight to it.[44] Further, I note that pursuant to s 5B(2)(b) of the Sentencing Act I am precluded from having regard to sentencing practices for murder that pre-dated the introduction of the standard sentence provisions.

83 The prosecution has submitted that your offending falls towards the upper end of the mid-range of seriousness for intimate partner family violence murder. The Defence disputed this on the basis that despite the aggravating factors relied on by the Crown, a single stab wound was inflicted and some efforts were made to resuscitate Noeline after the stabbing. Of course, for the purpose of the standard sentence scheme the Court must consider where the offending fits on the spectrum for murder sentencing, overall intimate partner violence being just one kind of murder which, depending on the individual circumstances of the case, may be more or less serious than a different kind of murder.

84 Ultimately, I consider that the objective seriousness of your offending falls within the mid-range of objective seriousness for murder overall and that it is unhelpful to attempt further classification. Family violence offending involves a breach of trust, and I have already mentioned key factors of aggravation present in this case, being the commission of the crime in the presence of the children and in breach of an intervention order. Other factors relevant to the assessment of objective seriousness are that the offence, while not protracted, was not wholly spontaneous, but ultimately only a single stab wound was inflicted, and efforts were made to provide first aid after the stabbing. Features present in more serious examples of murder have included and will include[45] more protracted and horrific violence, greater planning or premeditation, more conniving motives and worse post offence conduct, such as mistreatment of the body of the deceased.

85 The Court's attention was drawn to some recent examples of intimate partner murder where sentencing has occurred under the standard sentence scheme. As has often been observed by the Court of Appeal, when approaching sentencing no two cases are ever truly alike and sentences in other cases are not precedents to be applied or distinguished. However, case comparisons can provide some guidance, including in assessing where a crime fits on the spectrum of objective gravity.

86 R v Margolis[46] involved a sentence after trial for intimate partner family violence murder where the offender killed his partner after pursuing her around the house during an argument at their home. The offender choked the victim to death and then sent false messages to her sisters and left her body on the floor for an extended time. The objective gravity appears somewhat comparable to the offending in your case.[47] Mitigatory factors personal to that offender included an absence of criminal history and Verdins factors, including a severe personality disorder and PTSD.[48]

87 R v Kingdon[49] involved intimate partner family violence murder committed by an older offender who inflicted eleven stab wounds to his de facto wife. The event occurred in the family home, and the offender did not help provide CPR to the deceased although another visitor did. The objective gravity appears somewhat comparable with your case.[50] Regarding other aspects of sentencing, the offender pleaded guilty with high utilitarian value during the pandemic and had good prospects for rehabilitation. However, unlike you, the offender's upbringing and psychological condition was not marked by dysfunction and trauma in the way that I have found applies to you.[51]

88 In R v Robertson,[52] the offender suspected his partner was being unfaithful to him. He engaged in unwarranted acts of surveillance of her. The murder was committed in the family home when his partner was planning to leave him. Multiple severe and destructive blows were inflicted with a dumbbell bar. The couple's young child was asleep in the next room, and the offender took the child from the house without having made any effort to render assistance to the victim. Once again, I consider the objective gravity to be somewhat comparable to your case.[53] Other matters taken into account included that the offender pleaded guilty, was of prior good character and had good prospects for rehabilitation.[54]

89 A more recent sentence for intimate partner family violence was DPP v Gonzalez.[55] The offender was an older man in ill health who became incensed when his former girlfriend took up with someone else. He engaged in stalking behaviour prior to the offence and obtained a shotgun and ammunition from his gun safe in advance of the crime before entering the victim's home by stealth and shooting her twice in the neck at close range. The victim's daughter arrived at her mother's home shortly afterwards and discovered her mother's body. I consider that the objective gravity of the offending in that case was worse than in your case.[56]

90 Family violence murders are a scourge on our community and must be strongly denounced. Noeline's death followed from previous breaches of intervention orders by you that were dealt with by way of fines and custodial sentences. Those sanctions were not effective in deterring you from inflicting fatal violence on the mother of your children. On the day of this incident, even the desperate attempts of your children to distract you did not deter you.

91 Far too often Victorian courts are confronted with offenders who kill their partner or former partner in response to rejection. No one should have to fear for their life when they end a relationship or start a new relationship.[57]

92 The tragic legacy of your crime is that your three children have effectively lost both parents as a result of your actions.

93 Just punishment, denunciation and specific and general deterrence are all important in sentencing you, although I have allowed for some moderation by reference to Verdins principles and Bugmy factors.

94 Despite the gravity of your offending , your prior criminal history, including serious offending in 2007, your prior breaches of intervention orders and lifelong substance abuse, rehabilitation remains an important aim of sentencing. Whilst the Court is guarded as to your prospects, given the age you are now, I leave open that your prospects may improve by the time of your release if intensive supervision follows on from the lengthy sentence I must impose.

95 There is some material before the Court suggesting that when motivated to do so you have been capable of behaving in a useful way in the past. As a result of your current circumstances, you have now been diagnosed by Ms Cidoni with the conditions described by her. This means future treatment can be more targeted. Despite those debilitating conditions you have managed to get by for some periods of your life without physical violence or other offending. The more responsible side of your character when not affected by alcohol was referred to by your eldest daughter in her VARE.

96 Whilst you have tended to blame others when things go wrong, as demonstrated by the letters referred to earlier,[58] you have nevertheless shown a willingness to seek counselling and undergo programs on remand. Your psychological outlook may improve with appropriate treatment. Your prospects of rehabilitation are heavily linked to your capacity to remain abstinent upon your ultimate release. Your participation in drug and alcohol programs and relationship counselling, production of clean drug screens and your work as a billet provide some positive indicators of a desire to reform.

97 Having regard to all of the matters I have discussed and taking into account the comparative sentences I have referred earlier to, I consider that the appropriate sentence in your case is 25 years' imprisonment, which in fact equates with the standard sentence for murder.[59] I have already described the objective factors that have been balanced in arriving at your sentence along with all matters that have been taken into account in arriving at a just sentence.

98 As required by s 5(3) of the Sentencing Act 1991 ('Sentencing Act') I have applied the principle of parsimony to the sentence to be imposed.

99 Mr Fairhall, on the charge of murder, you are convicted and sentenced to a term of 25 years. I fix a non-parole period of 18 years and six months, which, as required, is more than 70 percent of the head sentence.[60]

100 I declare that you have already served 913 days not including today's date, by way of pre-sentence detention, to be reckoned as having already been served for the sentence I have just imposed.

101 I will sign the disposal orders sent through on 17 March 2022.

[2] Crimes Act 1958 s 3(1)(a). The standard sentence scheme applies in this case because the offending occurred after 1 February 2018. The standard sentence for murder is 25 years' imprisonment.

[3] Crimes Act 1958 s 3(2)(b).

[4] Crimes Act s 5(2G): Accordingly, I must impose a term of imprisonment on you for this offence.

[5] The plea hearing commenced on 17 March 2022 after being listed at a time that was to accommodate assessment by a psychologist. An earlier appointment had been arranged for 22 February 2022 but Mr Fairhall was not completed. Another failed appointment had been arranged in the lead-up to the March plea date. The plea was adjourned part heard. Counsel briefed at trial and plea then had their instructions terminated in early June. On 24 June 2022, an application for adjournment of the part-heard plea was granted until 18 July 2022, to allow a further opportunity for psychological assessment and for new counsel to prepare to resume the part-heard plea. The assessment and the plea was completed in mid-July 2022.

[6] Summary of prosecution opening for plea dated 24 February 2022 (exhibit P1); Written submissions dated 15 March 2022, Exhibit P3; Police summaries for prior family violence incidents between you and Noeline that occurred between 2013 and 2019; Exhibit P4.; Letters to Fairhall children filed 15 July 2022; (exhibit P5); further prosecution plea submissions dated 13 July 2022 (exhibit P6).

[7] Exhibit P2, comprising: Zachary Fairhall, dated 6 March 2022, Olivia Fairhall, dated 6 March 2022, Paige Fairhall, dated 7 March 2022, Jenny Dalzell, dated 7 March 2022, Malcolm Dalzell, dated 8 March 2022, Pavel Pavlov, dated 8 March 2022, Christina Pavlov, dated 8 March 2022, and Michael Fortune, dated 9 March 2022.

[8] Report of Gina Cidoni, psychologist dated 15 July 2022 (exhibit D2); Letter prepared by Jenny Hosking, Assistant Commissioner of Corrections regarding Mr Fairhall's management in prison describing him overall as a quiet and compliant prisoner who mixes within his unit and is currently employed (exhibit D4). Also referring the impacts of the pandemic on management in prison and other aspects of Mr Fairhall's time in custody; Letter from Melissa Stoker Caraniche AOD clinician, dated 9 March 2022 (exhibit D5); Certificates of completion regarding AOD programs and relationships program and clear drug screen results (exhibit D6).

[9] Outline of submissions on Plea dated 10 March 2022 and Appendix A which includes an appendix containing all standard sentence murder case; Further Defence submission on plea dated 17 July 2022 (exhibit D3).

[11] Trial Transcript, 25 November 2021, 103 (Daniel Ryan).

[12] Tendered as Exhibit 10. Senior Constable Andrew Hickman gave evidence that the blade of that knife was 255mm long and 48mm wide, see Trial Transcript, 29 November 2021, 226.

[14] Trial Transcript, 26 November 2021, 174 (Michael Fortune).

[15] Trial Transcript, 26 November 2021, 175 (Michael Fortune).

[16] See Trial Transcript 175, Mr Fortune estimated he was back inside for '10, 20, 30 seconds'.

[17] See Exhibit 5 - Second triple 0 Call of Michael Fortune and transcript.

[19] Mr Pavlov gave evidence that he said words to the effect of "you have to stay until the cops get here", Trial Transcript, 26 November 2021, 200.

[21] The wound was 40mm by 10mm in the unopposed state, and 60mm in length in the apposed state. The wound extended through her skin, subcutaneous tissue, trapezius muscle under her clavicle and first rib, and transecting the subclavian artery and vein.

[22] An indictment was then filed over on 28 October 2021.

[23] Many of these appearances were arranged during the height of the COVID-19 pandemic.

[24] Originally listed to commence on 9 November 2021, but Banco court was damaged in an earthquake leading to delays due to requirement for two courtrooms for the trial to proceed at that time as a result of pandemic restrictions.

[26] Malcom Dalzell and Jenny Dalzell read their victim impact statements aloud in Court.

[27] I am not satisfied you intended to continue the attack on Noeline.

[28] Video and Audio Recorded Evidence.

[29] A volunteer with St Vincent De Paul who befriended and mentored Mr Fairhall.

[31] You were sentenced to 55 days, which was effectively time served regarding the offence committed on 12 September 2019.

[32] The Defence submit that in sentencing an offender a court may have regard to the conduct of the offender on or in connection with the trial or hearing as an indication of remorse.

[33] Defence referred to s 5(2C) Sentencing Act 1991 (Vic).

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

[35] Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571.

[36] Diagnoses based on criteria drawn from the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5).

[37] Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571, 580.

[38] DPP v Herrmann [2021] VSCA 160, [78]-[85].

[39] Ms Warren properly conceded that Verdins 5 has some application to you: see also Cidoni report at [167].

[40] Section 3(2)(b) Crimes Act 1958.

[41] [2019] VSCA 286.

[43] Ibid, [57]. However, the Court also observed that the utility of such a comparison is lessened in the case of the standard sentence due to the narrowness of the definition of 'objective factors' ignorant of a range of matters which the judge will need to take into account in assessing the nature and gravity of the subject offending, and because of the imprecision of the notion of a hypothesized mid-range offence.

[44] McPherson v The Queen [2021] VSCA 53, [31].

[45] These descriptors are not intended to cover the field of circumstances of aggravation in assessing objective gravity.

[46] [2021] VSC 341.

[47] The actual physical act and post offence conduct was worse, but the offending did not involve breach of an intervention order and was not done in the presence of children.

[48] The offender was sentenced to 23 years with a minimum term of 17 years.

[49] [2021] VSC 858 (Lasry J).

[50] The actual physical actions were worse, but the offending did not involve breach of an intervention order and was not done in the presence of children.

[51] The offender was sentenced to 23 years with a non-parole period of 16 years and 3 months.

[52] [2019] VSC 145.

[53] The actual physical violence was much worse and, although not in breach of court orders, followed on stalking behaviour. A child was present in the house although not directly exposed. No effort was made to render first aid. The sentencing judge found that the objective seriousness of the offending fell above the middle range of seriousness as described by s 5A(1)(b) of the Sentencing Act.

[54] The sentence imposed was 24 years with a non-parole period of 19 years.

[55] [2022] VSC 331.

[56] The offender was sentenced to 24 years with a non-parole period of 17 years. He had pleaded guilty, was remorseful and had good prospects for rehabilitation but a reduced life expectancy.

[57] The case of Felicite v The Queen [2007] VSCA 274 underlined the primacy of deterrence and just punishment in sentencing for family violence murder.

[58] The Crown tendered some letters written to each child which expressed a range of emotions but included aspects of 'victim blaming' behaviour.

[59] Section 5B(5) requires the Court to explain how the sentence relates to the standard sentence for the offence.

[60] Under s 11A of the Sentencing Act 1991, the Court must fix a non-parole period that is at least: 70% of the relevant term if the head sentence is a term of 20 years or more unless it is in the interests of justice to do otherwise.