DPP v Brown [2023] VSC 311

2 The maximum penalty for the offence of murder is life imprisonment. It is a Category 1 offence and a standard sentence offence.

3 You were born on 31 March 1982 and were 40 years old at the time you murdered your wife. Ms Cheng was 35 years of age. She was born in Nanchang, China and later completed her studies at a university in Shanghai, graduating in environment and art design. Later, she moved to Australia to further her studies, completing that study in construction management at Melbourne University. You met when she was studying in Australia, in 2016. You were married in Nanchang, China in 2017.

4 At the time of your wife's death you were living together with your son, who was aged two years old, at your home in Patrick Avenue, in Croydon North.

5 Your son's birth in February 2020 was difficult for Ms Cheng and she took 12 months leave from her job as a truss detailer at a company in Richmond. At the time of her death you were working then as a Senior Lecturer in digital media at Deakin University.

6 Ms Cheng's mother, Min Liu, came to Australia to be present for the birth of your son and remained until 15 March 2020 to assist her daughter. While residing in the family home, Ms Liu began to witness arguments between you and Ms Cheng. She observed you raise your voice and speak in a fierce manner, while Ms Cheng would remain quiet.

7 Min Liu came to believe the marriage was an unhappy one, and maintained this concern upon her return to China. As a result of her concern, she decided to communicate with her daughter on a more regular basis, almost daily, via WeChat video calls so she could better monitor her welfare.

8 In February 2021 Ms Cheng returned from maternity leave to resume her employment, however resigned unexpectedly after only a few days. Due to the unexpected resignation and other concerning behaviour, you sought assistance from medical professionals for your wife. You contacted the Maroondah City Council Maternal and Child Health Service. As a result of advice received, you took Ms Cheng to the Maroondah Hospital Emergency Department for a mental health assessment. She was admitted as an inpatient at the Maroondah Hospital Psychiatric Unit between 15 and 24 March 2021, where she commenced treatment. Ms Cheng was diagnosed with Brief Psychotic Disorder. These circumstances put a strain on your relationship.

9 On 24 March 2021, Ms Cheng had commenced treatment with psychiatrist Dr Raju Lakshmana. She continued treatment with Dr Lakshmana, which included consultations with you, throughout 2021. Ms Cheng was initially prescribed medication including Olanzapine and Mirtazapine.

10 On 7 April 2021, Ms Cheng had also commenced treatment with the Murnong Continuing Care team, which continued until 18 November 2021.

11 By early 2022, Ms Cheng was assessed by Dr Lakshmana as symptom‑free and functioning well. By March 2022 her use of Olanzapine had completely ceased. She was discharged by Dr Lakshmana from treatment on 6 April 2022, just a few weeks before her death.

12 Over a period of time Ms Cheng had gradually returned to work for one day a week, which increased to three days a week by January 2022. She was doing well at her workplace, prior to her death, and had received a positive work appraisal and an associated increase in her remuneration.

13 On 25 June 2021, you had commenced treatment with psychologist Cathy Fowler. You participated in three counselling sessions with Ms Fowler, with your last appointment being on 17 November 2021. Your anger and its expression was a topic of discussion in these sessions. You evidently had some residual stress and anger about how you and your wife were communicating with each other. These sessions with Ms Fowler provide evidence of your awareness of problems in your relationship and the difficulties being experienced by Ms Cheng's unfortunate mental health issues, your levels of anger, and how these issues might be managed.

14 On 15 September 2021 Ms Cheng had also commenced treatment with psychologist Susan Haertel. She participated in six counselling sessions with Ms Haertel. Topics of discussion included your apparent anger, your relationship, and parenting issues. However, by 30 March 2022 there was no need for further counselling.

15 I note that during the COVID-19 pandemic, you predominantly worked from home and also had to re‑apply for your job at Deakin University in 2020, due to staffing cut‑backs. You successfully retained your employment with Deakin University.

16 You and Ms Cheng used Platypus Junction Childcare Centre in Croydon for your son's childcare from January 2021 until the time of her death.

17 You, Ms Cheng, and your son were all at home in Croydon North on the night of Ms Cheng's death. Your wife spoke to her mother on WeChat at approximately 5:28pm for approximately three minutes. You had gone out to purchase dinner for the family. Later Ms Cheng took another WeChat video call from her mother, which lasted some 77 minutes. You had dinner with your family during this call, but were not in view during the call, nor did you speak with Ms Liu.

18 You spoke to your sister, Abbie Helt, on the phone at around 7:30pm for 10 minutes. Ms Helt did not find anything unusual about you during this call.

19 By around 9:30pm, the first loud sounds from Ms Cheng were heard from your unit. These sounds were heard by several neighbours and were intermittent. They were also captured by CCTV.

20 Between approximately 9:46pm and 10:00pm, Ms Cheng could be heard again, with the volume and concern in her voice appearing to escalate. She was heard screaming and crying, while uttering the words "help", "please stop", "please help me" and "I'm sorry" on multiple occasions.

21 A neighbour heard a male voice say assertively, "stop", or "get down", or "shut up" from inside his home. The male voice was yours.

22 At approximately 10:02pm, another neighbour exited her home after hearing a female voice screaming. Yet another neighbour went outside after hearing the sounds. The two met in the communal driveway. One of them approached your unit and knocked on a glass panel, yelling your name.

23 That neighbour also heard a voice she recognised as Ms Cheng's yell, "help me, help me, he's trying to kill me". The other neighbour immediately phoned triple zero to request police attendance. Both heard Ms Cheng's screams, first coming from inside the house, and then moving to the backyard where the screaming stopped. Multiple neighbours also heard a female screaming. One of them attempted to call Ms Cheng.

24 At approximately 10:14pm, you phoned triple zero.

25 Many of your neighbours approached and banged on the garage door to your unit. You opened the garage door allowing entry to them. Three of them entered and observed your wife lying in the backyard. You told the neighbours that you and Ms Cheng had stabbed each other.

26 Two neighbours, one being a registered nurse, commenced CPR on Ms Cheng. One of them saw a stab wound to Ms Cheng's side. They continued CPR until police arrived.

27 Your triple zero call lasted approximately 11 minutes. During the call, you said you had attempted CPR prior to calling, that you and Ms Cheng had had an argument, and that she had attacked you. You stated that you had never seen her like this before, that she had come at you with a knife and that you had both stabbed each other.

28 The police arrived at 10:26pm. Ms Cheng was lying in the grass in the backyard with a neighbour performing CPR. You were arrested at the scene and said to police that Ms Cheng and you had both been armed with knives and that she had been trying to assault you whilst claiming you were the attacker. Once you were in custody, paramedics entered the scene and attempted to revive Ms Cheng, which efforts were unsuccessful. She was declared deceased at 10:40pm.

29 In the early hours of 1 May 2022, police conducted a forensic examination of the crime scene at your home. Extensive blood staining was observed on the ground floor, including the kitchen, living area, rear deck and backyard.

30 Various items were seized by the police, including a blood stained "Kramer" brand knife from the grass area of the backyard, and a blood stained "Masterchef" brand knife from the kitchen floor. Two mobile phones were also seized, along with extensive blood swabs of the house and deck areas.

31 Many of these items were the subject of fingerprint and DNA analysis including the knives and the mobile phones and their associated SIM cards. DNA profiles consistent with both you and Ms Cheng were located on the handles, bases and tips of the blades of both knives.

32 A post-mortem on Ms Cheng's body was conducted on 1 May 2022, at the Victorian Institute of Forensic Medicine by a forensic pathologist. The cause of death was found to be "stab wounds to the neck and chest".

33 The examination revealed sharp force injuries comprising three stab wounds to areas of the upper body, approximately 11 incised wounds to other parts of her body, and multiple linear abrasions. All the sharp force injuries were found to have been caused by the application of force with a sharp‑edged implement, in this case, a knife.

(a) a stab wound to the right upper chest, being 11.5 cm in depth and 5.5 cm in length. The wound track travelled through the fourth rib, the right lung and the rear chest wall;

(b) a stab wound to the left side of the neck. This wound was 9 cm deep and 3.7 cm in length. There was perforation of the left jugular vein, the internal and external carotid arteries and thyroid cartilage; and

(c) a stab wound to the right side of the neck. This wound was 1.5 cm deep and 1.2 cm in length. No vital structures were perforated.

35 In addition to these stab wounds, described as above, further incised wounds were identified. These are wounds that are greater in length than depth. These wounds were located on Ms Cheng's chin, neck, both arms, her left hand, and right hand. Linear and irregular abrasions were also identified on the anterior of the neck and upper chest. The incised wounds on Ms Cheng's hands were clearly suggestive of defensive wounds.

36 It was not possible for the forensic pathologist to establish in which order the wounds were inflicted. It is hard to be definitive about when and how these injuries were sustained. Based on blood spatter analysis, however, it appears that the wound to the carotid artery was inflicted in the kitchen before a struggle continued into the backyard.

37 A non-toxic level of an anti-depressant was also detected in Ms Cheng's blood.

38 You were interviewed under caution by police at Ringwood and Melbourne West Police Stations on 1 and 2 May 2022. In the interviews you stated:

(a) You and Ms Cheng had had a conversation that devolved into an argument surrounding kindergarten arrangements for your son. You said "she just started to raise her voice and get angry. And - yeah, it just went from there".

(b) At some point, Ms Cheng spat in your face and commenced beating you around the ears. In response, you said "I did sort of try to restrain her, hands on, push - push her away a little bit and - and - yeah, she wasn't in - interested in kind of talking or not talking. And then I literally got beaten around the head many times. This was upstairs". This continued downstairs.

(c) Once in the kitchen, Ms Cheng armed herself with a knife from the knife block, which resulted in you doing the same. An altercation ensued, which resulted in both ending up on the floor in a struggle, with extensive blood staining in the kitchen area resulting. You said you were bitten on the arm by Ms Cheng during the altercation. You said:

But - yeah, she came downstairs, went in the kitchen and I actually thought she was trying to redo something she'd done a year ago, tried to do, when she grabbed the knife and I grabbed it and that brought back a lot of shitty memories. But I figured out pretty quickly, she wasn't actually trying to stab herself.

And it felt like that was coming back. In - and it's not the first time it's felt like that but there is - she's - I thought we were through the worst and - and I don't think it was the same, but I've seen so much instant change and just - just the way she would look at me or talk to me, and it just turned into something tonight and just - what I remember seeing so much blood in the kitchen, and she's - she's - she's panicking, obviously. She's actually - she did yell out a few times and I think she was cut, at that point. I don't know exactly. We were grappling with two knives. She's got these stupid sharp knives in the kitchen for ages. Thank God, we were gunna get to 'em but - we were basically at each other with knives and I think it was in the - I think it was when she bit me. She was sort of try - I'm trying to restrain her and she bit me really hard, and I've just tried to - to get free.

...

And she was - you know, this was when she - she yelled a few times, like, "Adam's trying to hurt me. Adam's trying to stab me," or something, and I think there was - I can't remember how - I think there was - I don't know how - well, with - and the - there's a kitchen and we got outside. I don't remember exactly how all that happened, but she's yelling that. I'm saying, "Please put down the knife," and actually still trying to stay - I don't know how - I mean, it was just, you know, out of body kind of thing.

39 I have read the police interview in full, and the extracts quoted above are a limited example of a much larger and broad-ranging series of questions and answers. In short, however, you said that a verbal argument began upstairs over kindergarten arrangements for your son, moved to the ground floor, where knives were taken up. During the course of this insults and recriminations were exchanged between you and your wife about aspects of your relationship, with the events escalating further, moving from the kitchen area to the backyard, where you said both of you ended up on the ground, struggling over a single knife. It was during this struggle that you said you realised Ms Cheng had sustained serious injuries. During the interview you did not offer any specific explanation or mechanism by which she received her injuries.

40 A medical examination of your injuries was also conducted by a doctor from the Victorian Institute of Forensic Medicine. The examination identified small red lesions behind your right ear, bruising around the chest and arms, a possible bite mark on your left forearm, and incised wounds to the hands and left calf.

41 The court received four Victim Impact Statements, all of which I have carefully considered. Ms Cheng's family members and colleagues describe the understandably profound effect her death has had on them.

42 Ms Cheng's mother, Min Liu, told the court in her Victim Impact Statement that her daughter's murder was like a spear piercing her heart. She wrote that she has become fearful at night‑time, and struggles to sleep. Ms Liu described her daughter as strong and considerate, diligent in her studies, and the pride of their entire extended family. She told the court she has struggled with illness since Ms Cheng's death.

43 Ms Liu also wrote that she is afraid of going out and seeing relatives and friends. She cannot believe her beautiful daughter was murdered in what Ms Liu considers should have been the safest of all places - her home.

44 Hao Chen is Ms Cheng's step-sister. Her father is married to Ms Cheng's mother, that is, Ms Liu. Ms Chen stated in her Victim Impact Statement that she had observed a change in Ms Liu since the death of Ms Cheng. She also described the horror of having to view Ms Cheng's body at the Coroner's Court. Ms Chen stated that the experience has made her more irritable and angry, with an extreme sense of sadness.

45 Ms Chen also described Ms Cheng as a good person and a loving mother. She worries that, in the absence of his mother, Ms Cheng's young son will not maintain connection with his maternal family and culture.

46 Li Liu is Ms Cheng's aunt. In her statement, she told the court that the news of Ms Cheng's death had profoundly affected her and her daughter (being Ms Cheng's cousin). Ms Li Liu stated she could not relieve her sorrow. She said it was "beyond words" for her to describe "our love for [Ms Cheng], and the torture we experienced losing her".

47 Ms Li Liu remembers Ms Cheng as a kind-hearted girl who was ready to help others, and had a lot of friends. Ms Li Liu said she blames herself for not being able to help Ms Cheng more.

48 Mr Wallace was a work colleague of Ms Cheng's. In his statement, he described Ms Cheng as a happy, kind person, and stated that her death had devastated her entire workplace. She is missed by her colleagues, who have gone to the effort of memorialising her through regular donations to domestic violence charities.

49 It is clear from these statements that your actions have had a devastating impact on Ms Cheng's family and friends. Ms Cheng's death has shattered their sense of normalcy and left them traumatised, angry and profoundly sad. The consequences of your actions will no doubt continue to impact them for many years to come.

50 You are the oldest son of Graham and Vicki Brown. Your younger brother, Luke, died at the age of 34 from a heart attack. You had a stable and happy childhood in Kyneton, Victoria. You remain close with your family. Your sister, Ms Helt, resides on the Gold Coast with her husband and two children, and is also now the full-time guardian of your son.

51 You performed well at school and attended Deakin University, Geelong receiving a Bachelor of Arts with First Class Honours in Literature and History. You have since obtained the qualification of Doctor of Philosophy.

52 You have been employed at Deakin University since 2005, and became a full‑time lecturer in 2011 in the School of Communication and Creative Arts in the Faculty of Arts and Education. It has been said of you that you were a skilled lecturer capable of inspiring students through an innovative and engaging teaching style. Your counsel also told the court that you have been involved in community work at the Jewish Holocaust Centre throughout your life. In assessing the appropriate sentence to be passed in your case, I have had regard to the likely burden placed on you due to the inevitable loss of your academic career, and all that goes with that, at the same time acknowledging that this has occurred as a result of your own actions.

53 You are a teetotaller and have never had issues with drugs or alcohol.

54 You have no prior convictions and come before the court with previous good character.

55 It was submitted on your behalf that, during the compulsory examination of your treating psychologist, Cathy Fowler, Ms Fowler gave evidence that you were experiencing anxiety, anger, sadness and grief centred around the traumatic birth of your son. She also described that your anxiety increased as Ms Cheng's anxiety increased. Ms Fowler gave evidence during the compulsory examination that you were emotionally and mentally worn down, and that you felt that your relationship with Ms Cheng had transitioned from husband and wife to you becoming Ms Cheng's carer. You also told Ms Fowler that you were interested in pursuing formal anger management. I note that your three sessions with Ms Fowler took place from June to November of 2021.

56 I will not deal with these sessions in detail, and note the content of your discussions during these sessions was not characterised by the prosecution as an aggravating factor.

57 You were diagnosed with arthritis in 2021, and this condition has caused you significant pain. In February 2022, you commenced arthritis treatment with medication in the form of chemotherapy, that is, methotrexate. You are in otherwise good physical health.

58 It was submitted that, in the lead up to your offending, your responsibilities at home increased as Ms Cheng's mental health issues developed. It appears evident that there was interpersonal conflict between you and Ms Cheng and that you had, on occasions, become angry at the situation, resulting in instances of loud arguments.

59 Associate Professor Andrew Carroll, a forensic psychiatrist at the Victorian Institute of Forensic Mental Health and Associate Professor (Adjunct) at Swinburne University of Technology, provided the court with a detailed report dated 6 February 2023. He stated he had examined you three times, and gave evidence to this effect during the hearing.

60 In his report, Associate Professor Carroll wrote that your personality style is marked by distinctive personality features which include a strong work ethic and some "obsessional" features. Associate Professor Carroll observed that these traits have a potential "dark side", one that ultimately rendered you vulnerable to significant psychiatric difficulties when faced with immense and sustained stress. In his opinion, you were under such stress from 2018 onwards, particularly following the death of your brother, the death of a close friend, the loss of two pets, a miscarriage, Ms Cheng's mental health struggles, the traumatic birth of your son, and increased demands at work. Associate Professor Carroll suggested that by late 2021 at the latest, and as a result of the above stressors, you were diagnosable with a psychiatric condition, being an "Adjustment Disorder with Depressed Mood",[1] as evidenced by your depressed mood and some impairment of social functioning.

61 Associate Professor Carroll opined that, at the time of the murder, it appears your coping mechanisms broke down. As a result of your psychiatric condition and the trigger of the "humiliating, possibly fear inducing" altercation you had with Ms Cheng upstairs, you were in a state of high sympathetic arousal (that is, the "fight or flight" reaction, which is associated with adrenalin release). Associate Professor Carroll gave evidence that this state "acutely impairs cognition", such that "the capacity for 'higher order' reflective thinking, good judgement and prudent inhibitory self‑control is abruptly lost". In his view, the "combination of acute stress and the pre‑existing Adjustment Disorder, was associated with a transient state of pathological 'depersonalisation'", which temporarily (but severely) impaired your mental functioning.

[T]he transient episode of depersonalisation and, by extension, the underlying psychiatric condition (Adjustment Disorder), therefore directly and powerfully contributed causally to the offence. But for the condition, I consider it very unlikely that the offending would have occurred; the condition was a necessary causal factor.

63 In oral evidence, Associate Professor Carroll was examined and cross-examined on the contents of his report.

64 In terms of the events on the night in question, Associate Professor Carroll gave evidence that it was clear to him, from what you had told him in his sessions with you, that Ms Cheng was not the aggressor. In his view, Ms Cheng had not initially attacked you with a knife nor attacked you downstairs. I note that your counsel highlighted that you have made this concession despite the evidence not pointing in a particular direction on this point.

65 Associate Professor Carroll suggested in evidence that he would estimate that the various stressors in your life reached levels of a diagnosable mental disorder fairly soon after the traumatic birth of your son, and subsequent events involving the mental ill health of Ms Cheng.

66 In terms of your highly aroused state, and state of depersonalisation that was said to be triggered, Associate Professor Carroll said:

(a) the state of depersonalisation lasted less than one hour but longer than minutes;

(b) higher-order thinking was no longer available to you at the time of the offence. Associate Professor Carroll explained what he meant by this, as follows:

Now, when we're in a highly aroused state of rage, you know, very severe anger, the frontal cortex, those executive functioning parts of the brain, don't work so well, and what takes over tends to be the more - so‑called more primitive areas to do with emotions and to do with so‑called fight or flight. So this is the sympathetic nervous system going into overdrive, causing the dry mouth, leading to a fight‑or‑flight reaction; in this case, obviously, leading to a fight reaction, a state - ah, an uncharacteristic, very, you know, fatal aggression.

(c) the Adjustment Disorder was the "background necessary factor" to this state of hyperarousal. In reaction to this state, some people flee, whereas others may stay and "fight". Associate Professor Carroll did not offer a view on why you may have chosen to "fight".

67 When asked whether you suffer from a persistent Adjustment Disorder, Associate Professor Carroll stated:

He does, but the stressors have changed, the relevant stressors are clearly different now. It's facing up to the gravity of what he's done, and the implications of that for his family and his son and his wife's family, ... which is the stressor. I mean clearly imprisonment is a stressor as well, but I don't think that's the main one.

68 Dr Douglas Bell is a consultant forensic psychiatrist and was your treating psychiatrist from the point of your post-arrest remand at the Melbourne Assessment Prison until his retirement in 2022. Dr Bell provided the court with a brief psychiatric report.

69 In Dr Bell's view, you presented as a "deeply traumatised man" and "clearly deeply remorseful". Further, Dr Bell stated:

There has not been any indication of symptoms of a depressive illness, psychosis, post-traumatic stress disorder or other form of mental disorder. There has been no indication thus far for any form of pharmacological treatment. He will however remain vulnerable for the foreseeable future to the development of depression and I envisage that he will continue to receive for the time being some form of psychological care while he is in prison and possibly beyond this ...

70 Dr Bell did not give oral evidence at the plea hearing.

71 Dr Butler is a psychologist at the Melbourne Assessment Prison who has been treating you since the retirement of Dr Bell. Dr Butler's views echo Dr Bell's; she has found you to be bereaved, confused, and overwhelmed by the circumstances around Ms Cheng's murder. Dr Butler states that you have never appeared to excuse or justify your actions. Since your sessions with Dr Bell,

symptoms of major depressive disorder have emerged for Mr Brown. These include depressed mood and persistent feelings of sadness, lack of pleasure in all or most activities, problems falling and staying asleep, fatigue or loss of energy, and feelings of worthlessness, and hopelessness. In addition, there are anxious features which include feelings of constantly being on edge, restlessness, and worry. These symptoms have progressively developed since October 2022. At present, they appear stable and do not appear to be intensifying.

72 You have not sought a referral to pursue the option of medication to treat these symptoms. Dr Butler did not give oral evidence to the court.

73 I accept, based on Associate Professor Carroll's evidence, that you were in a state of "depersonalisation" that meant higher-order thinking and reasoning was no longer available to you during the episode where you killed Ms Cheng. It is difficult to say exactly what triggered this episode, but the evidence suggests that the result was that your cognition was impaired during the altercation that led to Ms Cheng's death.

74 Further, it appears that since then, you have exhibited some indicators of depression during your time on remand, but that they do not appear to be worsening.

75 I note that Ms Cheng faced her own mental health struggles prior to her death.

76 In oral evidence, it was briefly noted that Ms Cheng appeared to suffer a brief psychotic disorder after your son's birth, leading to a short-term period of inpatient treatment at a hospital in March 2021. There is material before the court, including medical records and statements from Ms Cheng's psychiatrist, Dr Lakshmana, and treating psychologist, Susan Haertel, surrounding this.

77 It is unnecessary to canvass Ms Cheng's mental health issues in any detail, beyond saying that she continued to have mental health treatment up until around early April 2022. By then, her mental health issues appear to have largely been under control, and she was taking medication.

78 I do not doubt that this took a toll on you, and that you played a significant role in caring for her and your son during this period of time. I also do not doubt that these factors were an additional stressor on you at that time.

79 I note that this is of otherwise limited relevance, and is not appropriate to traverse in detail. It was emphasised by your counsel at the hearing that you also wish for Ms Cheng's memory to be preserved respectfully.

80 Turning first to the nature and gravity of the offence, it was submitted by your counsel that when looking at the objective factors, the seriousness of the offence you committed fits within the hypothetical mid-range of seriousness. Your counsel sought to distinguish your actions from a situation where someone has carried out a brutal attack with pre-meditation, or planning, rather it was emphasised your offending was spontaneous.

81 With respect to the issue of your moral culpability, your counsel submitted that the state of arousal you were in during the incident, as Associate Professor Carroll outlined, led to a catastrophic breakdown of sorts. This caused you to act in a completely out‑of‑character manner by stabbing Ms Cheng.

82 It was argued by your counsel that Verdins[2] considerations apply in this case. In particular, it was submitted that consistent with Associate Professor Carroll's evidence, I should consider that the first principle of Verdins has been enlivened, in that your moral culpability for the offending conduct should be reduced on the basis of your mental impairment.[3]

83 I note at this point that the prosecution accept that this limb is engaged, but that any moderation to be afforded to you should be given limited weight.

84 Your counsel also advanced oral submissions in relation to the final two principles of Verdins, which relate, respectively, to:

(a) the consideration that a custodial sentence would weigh more heavily upon a person with a mental impairment than it would a person in normal health (principle five); and

(b) the consideration of whether there is a serious risk that imprisonment would have a significant adverse effect on an individual's mental health, and cause their mental state to deteriorate (principle six).

85 It was put forward that there is evidence that you are suffering from depression. You have engaged with treating psychiatrists and psychologists for this, but at the date of your plea hearing, it was indicated that your treatment with Dr Butler had concluded. Your treatment future is uncertain.

86 Further, in written submissions, your counsel emphasised that you have no criminal history, the offending was unplanned, and you did not make any attempts to flee the scene or dispose of Ms Cheng's body. Your counsel submitted you are an intelligent man with no history of drug or alcohol abuse, with excellent family support and a consistent employment record. They contend it is unlikely you will experience any difficulty complying with all programs in custody.

87 With respect to the gravity of your offending, it was submitted by the prosecution that the following are relevant factors:

(a) that there were three stab wounds to Ms Cheng's neck and right upper chest, as well as multiple incised wounds. There were also linear and irregular abrasions (constituting sharp force injuries) to her head, neck and chest. Bruising from multiple blunt force injuries was found to Ms Cheng's lip, neck, forehead, left arm (including wrist and hand), right arm, both legs and back;

(b) additionally, there were two incised wounds on the inner aspect of Ms Cheng's left hand and four incised wounds on the inside of her right hand. All of these incised wounds are suggestive of defence‑type injuries;

(c) Ms Cheng was vulnerable through her physical size difference to you, given you are taller and heavier than she was;

(d) the murder took place within the family unit, constituting a gross breach of trust;

(e) you stopped her from calling the police by preventing her from using her phone or iPad in the course of the attack; and

(f) the attack was a sustained one, taking place inside the unit, onto the rear deck and into the backyard.

88 On this basis it was submitted that the murder can be assessed as being at least mid‑range.

89 It was also emphasised that the killing of Ms Cheng was an example of a killing of a woman at the hands of her male partner, which is regrettably a common crime that is particularly damaging to our society. General deterrence is always a relevant sentencing consideration in such cases.

90 In terms of your moral culpability, it was submitted that your Adjustment Disorder does, to a degree, reduce your moral culpability, but not to a very significant extent.

91 In terms of your mental health and the medical evidence, in cross‑examination, Associate Professor Carroll expanded further on your mental state on the night in question, stating that:

[T]he attack upstairs I suspect was the actual trigger, the kind of humiliating possibly fear inducing trigger, that then precipitates the highly aroused state and then we get the fight. ... now he was ... in a state of rage, that was clearly directed towards the victim. So, you know, I think it ... still fits with a fight or flight kind of formulation for why this happened.

92 The prevalence of violence in those diagnosed with Adjustment Disorders was also the subject of cross‑examination. Associate Professor Carroll opined that "if we looked at the broad population of people diagnosable with an adjustment disorder, violence would be uncommon".

93 When asked whether you were capable of knowing that what you were doing was wrong at the time you murdered Ms Cheng, Associate Professor Carroll replied:

He was certainly not deprived of the capacity to know that. He was deprived of the capacity to reflect on his behaviours, but he would've still known. He wasn't suffering from any delusional condition or anything of that nature that would've deprived him of that knowledge.

94 In short, the prosecution queried the degree to which the Adjustment Disorder affected your state of mind at the time of your offending.

95 The prosecution accepts that your plea was made at an early stage.

96 As murder is a Category 1 offence,[4] an order for imprisonment is mandatory.[5]

97 Section 5(2) of the Sentencing Act 1991 ['the Act'] sets out a series of factors which a court must have regard to when sentencing an offender.

98 The legislation does not state that any factor has dominance over another. Indeed, it is well understood that the weight and emphasis given to any one factor by a sentencing court will vary according to the facts and circumstances of each case.[6]

100 The matter proceeded by way of straight hand‑up brief to the Magistrates' Court. You pleaded guilty at the earliest possible opportunity, at the first committal mention on 13 September 2022. Further, I accept that you had indicated this intention to plead guilty from the very start, after having briefed your counsel, even before their receipt of the hand‑up brief. There is significant utilitarian value to the courts, and to the family of Ms Cheng, in avoiding the need for a trial by your plea of guilty and your approach to this matter. These circumstances have been given due weight in the sentencing calculus, and must be clearly acknowledged.

101 It is of course relevant that your act of violence was against your intimate female partner, though I must also note that this was the first reported incident of violence or assault committed by you against Ms Cheng. I note also that the killing of your wife took place when your infant child was also present in the house.

102 Intimate partner violence, predominantly perpetrated by men against women, is tragically all too common in this state and country. The abhorrent nature of taking a domestic partner's life cannot be overstated, and has been emphasised by this court as capable of undermining "the foundations of personal relationships and family trust upon which our society rests".[7]

103 The stab wounds you inflicted were large, and multiple, and in at least two instances, deep, with one deep wound being to the throat of your victim. The weapon you used was sizeable. Ms Cheng also sustained defensive wounds that suggest she was trying to fight back against you during what I conclude was a sustained attack. On any view, there is a clear disparity between the catastrophic, and multiple, injuries she received compared to those that occurred to you. Your wife was smaller than you in stature and physique, alone, and clearly in a more vulnerable situation. In my opinion the multiplicity and degree of injuries strongly suggests an attack took place rather than injuries occurring as a result of a struggle over the possession of knives. Indeed, to be clear, your plea of guilty to the charge of murder carries with it the necessary admission that you intended to kill or cause really serious injury to your victim when you attacked her.

104 Whilst I accept that there was an argument that took place where voices were raised, and which became physical, contrary to what you said in the interview with police, I do not conclude that Ms Cheng initially attacked you with a knife. Your counsel conceded this, and it is consistent with what you told Associate Professor Carroll. You were therefore not defending yourself, nor do I consider it likely that you feared for your life. In the circumstances of your attack and the defensive injuries, Ms Cheng fought for her life, against your attack on her and doubtless, she was terrified at what was occurring. There is no excuse for what you did. You committed a savage and sustained attack on a physically smaller woman who should have instead expected support and compassion from her intimate partner.

105 Whilst the blood spatter suggests that Ms Cheng's major carotid artery was severed in the kitchen, I am also satisfied that the assault on her continued and the events moved to the backyard where neighbours could hear your wife yelling and screaming. However, based on the evidence and submissions of counsel before me, I cannot conclude whether the assault moved into the backyard because Ms Cheng was trying to escape or because a struggle between the two of you was continuing.

106 Nevertheless, the presence of the knife and significant amounts of blood in the backyard suggest that further injuries are likely to have been inflicted against Ms Cheng in that location, though the precise order of such events is unable to be said with certainty. I accept, however, that this was not a premeditated attack by you.

107 I also note that this occurred in the context of a relationship that was, at times, attended by anger. Your counsel submitted this anger must be viewed in its appropriate context, namely a very difficult time in both the lives of both you and Ms Cheng. I further accept that a history of domestic violence is not alleged here.

108 Your counsel submitted that this offence should be regarded as falling in the mid‑range of seriousness for this type of offending. The prosecution responded by submitting that the offending should be assessed as being at least in the mid‑range. Somewhat consistently with those submissions, in my opinion the offending should be regarded as falling within the mid‑range for this type of offence.

109 You have pleaded guilty to an extremely grave offence that was constituted by a serious and sustained attack on your wife. Some of the knife wounds she suffered were deep and others were numerous. You, on the other hand, sustained only minor defensive wounds on your hands.

110 As I have already stated, I do not consider it likely that you were genuinely fearful for your life. I accept that the incident may have begun as an argument, where emotions and tensions were running high. I also accept that you were likely both, at one point, holding knives. However, given your size disparity and the fact that at some point the second knife was disposed of, I do not accept that your life was in danger.

111 It is clear that you had an opportunity to stop, put the knife down, and walk away from the argument. You might have tried to de-escalate the situation. Instead, you engaged in what you knew to be morally abhorrent behaviour. As we have heard, you were not deprived of the ability to know what was wrong at the time.

112 Further, you prevented Ms Cheng from using her phone or iPad. You have also expressed insight into the situation in the early stages of the altercation, knowing it was unfolding poorly and that it would have been favourable to seek triple zero assistance.

113 Despite this, it is submitted on your behalf that based on the evidence of Associate Professor Carroll, but for your Adjustment Disorder and the stressors that led to it, your offending likely would have not have occurred. I accept that the first principle in Verdins is therefore enlivened, given your impaired psychopathology at the time of the murder.

114 However, the effect of this can only reduce your moral culpability to a limited degree. I conclude limited degree for the following reasons. As noted in Verdins, the court's assessment of culpability will, of course, "vary with the nature and severity of the condition, and with the nature and seriousness of the offence".[8]

115 Whilst it is accepted that Associate Professor Carroll's evidence establishes a causal connection between your psychiatric illness and the commission of the offence, the prosecution relevantly asked Associate Professor Carroll questions surrounding Adjustment Disorders and the commonality of violence in those diagnosed with such a mental impairment. Associate Professor Carroll acknowledged that Adjustment Disorders are an "enormously ... common phenomenon", and agreed that not everyone with such a diagnosis go on to stab another person to death.

116 In my opinion, this mental impairment clearly did not involuntarily cause or lead you into this violent act, or mean that you were unable to understand the nature of your actions and their likely effect. I do not quarrel with the suggestion that, but for this psychotic episode and period of "depersonalisation" (which may have lasted up to an hour), you would likely not have committed this crime. However, this is quite a distinct proposition from a suggestion that this psychotic episode in some way caused or explains such reprehensible violence. It does not. You were still very much responsible for your actions and capable of choosing to step away or call for assistance. In my view, your moral culpability is lessened to only a limited degree.

117 Your very early guilty plea, it is accepted, is evidence of remorse, which is relevant to the sentencing calculus.[9] You pleaded guilty to the charge of murder in this court five months after you killed your wife. The prosecution does not cavil with the suggestion that you are genuinely remorseful for your actions. Whilst what you told police in your record of interview very shortly after Ms Cheng's murder was not entirely accurate, you have expressed what I accept is genuine and deep remorse. You appear to have fully accepted responsibility for Ms Cheng's death. In concluding this, I also take into account that you did not attempt to cover up your crime, or leave the scene. You did not seek to deface or defile her body and I am prepared to accept that you were likely to have been almost instantly remorseful for doing what you did, once you fully appreciated the enormity of your actions.

118 The offence of murder is a "standard sentence offence". The standard sentence for murder is 25 years.[10] I have taken this into account, as I am obliged to do, as one of the factors relevant to sentencing.[11] It is clear the standard sentence for an offence should be viewed as a "legislative guidepost" as to the middle range of objective seriousness of that offence.[12]

119 Further, I am required to state the reasons for imposing the appropriate sentence with reference to the standard sentence. I state those reasons in the following discussion, having regard also to the matters already discussed in these reasons, and explain how the sentence imposed relates to the standard sentence.

120 In doing so, I must have regard only to sentences previously imposed for murder as a standard sentence offence. I may, of course, have regard to the principles laid out in sentencing decisions prior to the introduction of the standard sentence regime and the introduction of this regime is not intended to affect the approach to sentencing known as "instinctive synthesis".[13]

121 I have had regard to a number of past sentencing decisions in determining your sentence for this offence. In particular, I have considered those raised by your counsel in written submissions.

122 These include the matters of R v Kingdon[14] and R v Robertson.[15] In Kingdon, as with this case, multiple stab wounds were inflicted on the deceased by her partner in the family home. The offender pleaded guilty and was sentenced to 23 years' imprisonment with a non‑parole period of 16 years and three months. Notably, he was an older man. In Robertson, a man in his twenties that was of previous good character also murdered his intimate partner in the family home, after forming suspicions of unfaithfulness. However, in that case, the attack was brutally committed with a dumbbell whilst the couple's child slept in the next room. The offender was sentenced to 24 years' imprisonment with a non‑parole period of 19 years.

123 Director of Public Prosecutions v Fairhall,[16] Director of Public Prosecutions v Gonzalez[17] and R v Cameron[18] were also cited in written submissions, and also involved the murder of women by their domestic partners. However, in those cases, there was evidence of family violence or coercive and stalking behaviour prior to the murder.

124 Some of these cases also involved Verdins considerations, whilst others did not. I note in Fairhall that modest weight was given to principles one, three and four, on the basis of a diagnosed personality disturbance arising from Borderline Personality Disorder and other clinical conditions. The expert witness considered these conditions would have impaired the offender's ability to make rational judgments or control their behaviour at the time of the offending.[19]

125 In oral submissions, your counsel also discussed the case of R v Eckersley.[20] In that matter, the offender pleaded guilty to the stabbing murder of his partner. The offender had overdosed on a particular anti-depressant drug that effectively rendered him liable to a psychotic episode. The drug triggered a psychotic reaction in circumstances where the individual did not have foreknowledge regarding this potential effect, such that the resultant impairment of mental capacity might be regarded as involuntary, notwithstanding that the taking of the drug was a voluntary act. The resulting impairment constituted a significant mitigating factor under the first principle of Verdins.[21] In my opinion, this case bears a lesser degree of comparative assistance to your case.

126 Of course, none of these cases are perfectly comparable to the circumstances of this matter. Nevertheless, I have taken them all into consideration.

Verdins principles five and six (effect of sentence and risk of imprisonment)

127 Regarding Verdins principle five, I accept that the effect of your present clinical conditions will make any given sentence weigh more heavily on you than a person without those impairments, given that prisons are inherently high stress environments.[22]

128 I also accept that Verdins principle six is enlivened, and applies to a limited degree. There is some risk that your mental health will decline as a result of your conditions in custody, particularly given there appears to be limited appropriate treatment presently available to you. This is supported by Associate Professor Carroll's observations that most male prisoners in Victoria do not have ready access to psychological treatment, and that in the longer‑term it is likely that your mental health care will be limited to periodic reviews by psychiatric nurses with referrals to a psychiatrist if needed.

129 These considerations have been taken into account and have moderated to a limited degree the sentence I will impose.

General deterrence, denunciation and just punishment

130 It is uncontroversial that general deterrence is a primary sentencing purpose in situations where an intimate partner is murdered in a domestic setting. The nature of this offence is utterly reprehensible, and the community at large must be deterred from similar actions.

131 The nature and gravity of your conduct must be emphatically denounced as completely unacceptable. Further, you must be justly punished for your offence. Your actions have deprived your wife's family of a beloved daughter, sister, niece and cousin, and, tragically, have essentially deprived your son of both his parents at his young age. You have permanently impacted the lives of many people and caused tremendous pain that will not be lessened by the passing of the sentence to be imposed.

Community protection, specific deterrence and rehabilitation

132 In terms of specific deterrence, you will spend many years in custody with ample time to reflect on your actions. Given your lack of criminal history, and the circumstances of your offence, particularly relating to your psychology at the time, I consider there is only minimal need for specific deterrence in the sentencing calculus.

133 Your actions have destroyed your family unit and have affected many people, not the least of which is your own child who will grow up having to grapple with the enormity of your conduct towards his mother. Being an intelligent man you are acutely aware of what you have done. The prosecution concedes that you have good prospects of rehabilitation. This is your first offence, and you appear deeply remorseful, which I accept. You have reported this to the professionals that treat you, and others. You have continued to work, be treated, and engage in educational opportunities whilst in custody. Associate Professor Carroll considered your remorse to be genuine.

134 You have clearly done well in custody thus far. You have no criminal history, and no issues with drugs or alcohol. You are highly educated and well-supported by a loving family, as well as friends and colleagues. I have taken into account a series of six written character references which were tendered on your behalf, including from your father, cousin and others, all of whom attest to your past good character; your past considerate and thoughtful approach to people; your voluntary work and commitment to the Melbourne Holocaust Museum; and referencing the many accomplishments of your academic career. Taking into account all the matters put forward in your favour I do not consider it likely that you will reoffend upon your release. Nor do I consider that you pose a significant danger to the community. Community protection is not, therefore, a significant sentencing consideration.

135 Unless it is not in the interests of justice to do so, I must fix a non‑parole period of at least the length specified in subsection 11A(4) of the Act. Your counsel submitted that I should fix a non‑parole period of less than 70 per cent of your head sentence, on the basis of all the factors put in mitigation.

136 The case of Director of Public Prosecutions v Pan[23] was also raised in this context. In that matter, the Court of Appeal dismissed an appeal against a decision by the sentencing judge to fix a non‑parole period lower than 70 per cent of the head sentence. The judge had fixed a non‑parole period of 66.67 per cent, in light of the respondent's youth, his plea of guilty and the length of the head sentence.

137 The prosecution submitted that the non‑parole period should be 70 per cent in your case. This was submitted on the basis that the case of Pan involved an accused that had just turned 19 when he committed the murder of his friend. He came from a Sudanese refugee background and had experienced a relatively dysfunctional upbringing. It was submitted that the offender's age in Pan was a very significant factor. Notably, I was directed towards the Court of Appeal's comment that:[24]

In our view, the respondent's age was a powerful factor that the judge was entitled to take into account and give great weight to in sentencing him. It meant that the sentence she imposed could be significantly more lenient than would be the case for an older offender.

138 I have considered this case and the arguments. In my view, despite the mitigating factors that have been raised, it is not in the interests of justice to fix a non‑parole period less than 70 per cent of the head sentence.

139 With all matters considered, I sentence you to 24 years' imprisonment. I further order that you serve a period of 17 years and six months' imprisonment before being eligible for parole.

Section 6AAA declaration

140 I am required to declare the sentence that would have been imposed but for your guilty plea.[25] I would have sentenced you to a period of 29 years with a non‑parole period of 23 years' imprisonment.

141 As at today, you have served 395 days in custody (not including this day).

142 The prosecution has applied for the forfeiture of the two knives used in the commission of the offence. I will make the order sought, being satisfied pursuant to section 78(1) of the Confiscation Act 1997 that, having been convicted of the Schedule 1 offence of murder, and being satisfied that the property is of negligible value and was used in the commission of the offence by Mr Brown, that the items should be forfeited to the State and placed in the custody of the Chief Commissioner of Police for testing or analysis and then destruction.

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

[3] Ibid 276 [32] (Maxwell P, Buchanan and Vincent JJA).

[4] Sentencing Act 1991 (Vic) ['the Act'], s 3(1).

[6] See e.g. Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120, 128-129 [18]-[19] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); Markarian v The Queen (2005) 228 CLR 357, 373-375 [37]-[39] (Gleeson CJ, Gummow, Hayne and Callinan JJ); Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, 612-613

[7] Felicite v The Queen [2011] VSCA 274; (2011) 37 VR 329, 333 [20] (Redlich JA, with whom Harper JA and Robson AJA agreed).

[8] Verdins [2007] VSCA 102; (2007) 16 VR 269, 275 [25] (Maxwell P, Buchanan and Vincent JJA).

[10] Crimes Act 1958 (Vic), s 3(2)(b); the Act, ss 5A, 5B and 11A.

[12] R v Brown [2018] VSC 742 [59]-[64] (Champion J); Brown v The Queen [2019] VSCA 286; (2019) 59 VR 462 (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA).

[14] [2021] VSC 858 (Lasry J) ('Kingdon').

[15] [2019] VSC 145 (Champion J) ('Robertson').

[16] [2022] VSC 444 (Jane Dixon J) ('Fairhall'). The offender was sentenced to 25 years' imprisonment with a non‑parole period of 18 years and six months. The matter went to trial, and the offender had prior convictions. A family violence intervention order was also taken out by the deceased against the offender at the time of the murder, and the crime occurred in front of their children. The injury constituted a single stab wound.

[17] [2022] VSC 331 (Fox J). The offender shot his ex‑girlfriend twice in the neck with a double‑barrelled shotgun. The offender was sentenced to 24 years' imprisonment with a non‑parole period of 17 years' imprisonment. The offender was an older man in ill health, who made an early guilty plea and confession.

[18] [2020] VSC 334 (Tinney J). The offender stabbed his domestic partner numerous times to the head and neck. There was evidence that the victim was scared of the offender in the days leading up to the murder. The offender attempted to hide the body and destroy the crime scene and provided a somewhat inaccurate account to police. He was sentenced to 29 years' imprisonment with a non‑parole period of 23 years.

[19] Fairhall, [70] (Jane Dixon J).

[20] [2020] VSC 22 (Champion J).

[22] Associate Professor Carroll opines that "it is more likely than not that by late 2021 at the latest, as a result of the above stressors, he was diagnosable with a psychiatric condition - an 'Adjustment Disorder with Depressed Mood' (DSM-5 309.00), as evidenced by depressed mood and some impairment of social functioning". Associate Professor Carroll notes that the criteria for an Adjustment Disorder with depressed mood continue to be met.

[23] [2022] VSCA 98 (Priest, Niall and Emerton JJA) ('Pan').

[24] Ibid [51] (Priest, Niall and Emerton JJA).