DPP v McDermott [2016] VSC 489

3 You killed Fiona at the shopping precinct in Sunshine at approximately 12.20 pm on 16 April 2014.

4 She was only 34 at the time of her death. You had shared a de facto spousal relationship for 18 years and had had four children together.

5 At the time of Fiona's death, your eldest daughter, [name redacted], was 15; your second daughter, [name redacted], was 10; your youngest daughter, [name redacted], was 8; and your youngest son, [name redacted], was only 5 years of age.

6 You have a child from a previous relationship, Dylan, who was aged 18 at the time of the murder. Tragically for him, he was with you at the Sunshine shopping precinct when you murdered Fiona, and, therefore, became a witness to the events that took place that day.

7 Fiona had largely been occupied with caring for the home and family during the years of your relationship, but she had recently obtained part-time work at a local bakery.

9 The family resided at a home in Melton, which had been purchased in 2011. The older children attended local schools and [name redacted] went to kindergarten.

10 You do not have an extensive criminal history,[1] but there had been family violence in the past triggered by your drinking.

11 An occasion in 2010 led to a criminal conviction. I will say more about that matter later.

12 On 15 February 2014, your behaviour at a family party in Bendigo triggered Fiona's decision to separate from you.

13 On that occasion, after drinking to excess and outstaying most of the guests, you became abusive, and when you realised that the car keys had been hidden from you, you reacted by smashing one of the windows to Fiona's car and kicking in a front panel. Police were called and they initiated an application for a family violence intervention order ('FVIO') against you in favour of Fiona and the four children.

14 An interim FVIO was made on 17 February 2014 at the Sunshine Magistrates' Court and you consented to the order without admissions.

15 That order permitted you to remain in the family home.[2] Therefore, although separated, you remained under the one roof with Fiona and the children until 24 February 2014, when you moved out of your own volition to live with your parents in Sunshine North.

16 You decided that the house in Melton would be sold, and the sale was quickly arranged. It had been purchased solely in your name.

17 Your children faced significant upheaval in the wake of the separation and anticipated departure from the family home. It appears that you blamed Fiona for these problems.

18 Your subsequent actions led to a series of overlapping appearances at the Sunshine Magistrates' Court and the Federal Circuit Court, with the last appearance at the Sunshine Magistrates' Court on 16 April 2014 directly before the murder.

19 After you had moved out of the house, Fiona did not bar you from having contact with the children, and, in fact, facilitated child contact arrangements.

20 But you took advantage of this and, on 12 March 2014, you decided not to return the three younger children after dinner as had been agreed. [Name redacted], the eldest, had declined to go with you that afternoon.

21 You kept the children until ordered by a court to return them on 24 March 2014.

22 During that period, you sent [name redacted] and [name redacted] to another school, but only for a day. You limited their contact with their mother and elder sister, causing Fiona to worry about their welfare.

23 This prompted her to apply for an urgent Federal Circuit Court order for the return of the children.

24 On 24 March 2014, you and Fiona were separately represented at the Federal Circuit Court. After hearing evidence, the Federal Circuit Court made an order for the children to be returned to their mother at 5 pm that day at the Sunshine Police Station. The order also permitted you to have access to the children. You complied with the order, and handed over the children that afternoon.

25 During the period that the three younger children were in your custody, [name redacted] and [name redacted] witnessed you making a threat that you would kill their mother with a pocket knife that you kept in the car ('the knife threat').

26 Your counsel submitted that I should not find that you had made the knife threat,[3] and he adopted the arguments put forward to the jury in your trial.

27 He referred to the fact that you denied making the knife threat in your evidence at trial. You gave an implausible explanation that the children had overheard and misinterpreted what was said when you and Dylan were discussing a violent video game.

28 Your counsel's cross-examination of [name redacted] and [name redacted] at a Basha inquiry, which was played to the jury at trial, was designed to discredit the veracity of the disclosures made by [name redacted] and [name redacted].[4]

29 But I am satisfied beyond reasonable doubt that you did make the knife threat in their presence.

30 Whilst [name redacted] and [name redacted] provided slightly different details about when and how it was said, both children reported the knife threat to Fiona and her brother, Joshua Warzywoda, very soon after the return of the children in the late afternoon on 24 March 2014. [Name redacted] and [name redacted] also told their sister, [name redacted], of the knife threat later that same day.

31 [Name redacted] told her schoolteacher about the knife threat almost immediately upon her return to her usual school on 26 March 2014.

32 [Name redacted] and [name redacted] also separately recounted the threat to Ms Manuela Galvao, an experienced family consultant, at the Federal Circuit Court on 14 April 2014.

33 They each narrated the knife threat to police when they participated in Visual and Audio Recordings of Evidence ('VAREs') conducted the day after their mother had been killed.

34 [Name redacted]'s presentation during the VARE and under cross-examination was of a child who well understood the importance of the information she was disclosing. She denied being coached by others to lie or that she was mistaken about what she had heard.[5]

35 Although [name redacted] was never cross-examined about her evidence given in the VARE, it appeared that she, too, was aware of the important nature of what she was saying, in light of what had just occurred.

36 [Name redacted], in her VARE and cross-examination, also spoke of being told of the knife threat by [name redacted] and [name redacted].

37 Whilst you may have experienced homicidal thoughts in the period leading up to the murder, I am not convinced that, when you made the knife threat in the presence of your children, you had, in fact, formulated an intention to kill Fiona with a knife, as distinct from verbally giving vent to your emotions.

38 But your children were alarmed by your conduct, and became fearful.

39 This, in turn, created a greater obstacle to child contact arrangements.

40 On 26 March 2014, two days after the Federal Circuit Court appearance, you and Fiona returned to the Sunshine Magistrates' Court, where Fiona had applied to vary the conditions of the interim FVIO.[6]

41 The conditions of that order were amended and the protective conditions strengthened. The new conditions included that you were not to contact or communicate with Fiona or the four children, or attend within 200 metres of where they lived, worked or attended school. You were not to approach or remain within five metres of Fiona or the children, or attempt to locate them.

42 Although you consented to the variation to that order, the more restrictive terms of the order were undoubtedly a cause of resentment.

43 The matter was adjourned until 16 April 2014.[7]

44 On 2 April 2014, Fiona made an urgent application to suspend the child contact conditions of the Federal Circuit Court order which had been in force since 24 March 2014. This was done to align with the interim FVIO.

45 It is likely that Fiona was guided by the advice of police, professional counsellors and her own family law solicitors because of the concerns provoked by your unstable behaviour.[8] These decisions were also made by her with knowledge of the 2010 incident that I mentioned earlier.

46 In 2010, you had pleaded guilty to reckless conduct endangering serious injury and threat to destroy or damage property and were placed on a suspended sentence.[9] The offence occurred at 2.15 am on 28 March 2010 when you were drunk and grabbed Fiona by the throat, pushing her to the floor. After she escaped with Dylan and your four other children, you took a petrol container and splashed it around the house, and you then went after her and threatened to burn the house down.

47 It is, therefore, not surprising that concerns were held for the safety of family members when matters came before the Federal Circuit Court and the Sunshine Magistrates' Court in 2014.

48 The hearing of the application to suspend the child contact conditions was set down for 14 April 2014 in the Federal Circuit Court.

49 In the meantime, you had lodged cross-applications in both courts. Fiona consented to vary the conditions of the FVIO so that you could attend the family home in order to prepare it for sale. She and the children had by that time moved out of the house and were preparing to relocate to Bendigo where other family members resided.

50 On 14 April 2014, you and Fiona were separately represented at the Federal Circuit Court. An independent children's lawyer was appointed to represent the interests of the children.

51 On that day, the court ordered that a 'child inclusive family conference' take place the next day with a family consultant, Ms Galvao, who would then report to the court.

52 Ms Galvao interviewed Fiona, you, and each of the children separately.[10] She was told by Fiona, [name redacted] and [name redacted] about the knife threat.

53 When questioned by her about the knife threat, you denied it and gave the 'video game' explanation that you later re-iterated to the jury.

54 Ms Galvao recommended against you having time with the children until certain preliminary steps had been undertaken. These steps had the paramount purpose of protecting the children from harm.

55 On 15 April 2014, the Federal Circuit Court formally ordered the cessation of your contact with the children pending a psychiatric assessment and report to the court, and approval by the independent children's lawyer.

56 The court also ordered that, once permitted, your time with the children be conducted at a supervised contact centre in Bendigo, at times nominated by the contact centre. The proceeds of the sale of the family home were also to be held in a joint account until final orders were made.[11] The formal orders made by the Federal Circuit Court included permission for Fiona to relocate to Bendigo with the children.

57 The events surrounding your appearance at the Federal Circuit Court on 15 April 2014 were a prelude to what occurred the following day.

58 You were aggrieved by the Federal Circuit Court proceedings, and in particular by the denial of access to your children.

59 CCTV footage obtained from security cameras at the Federal Circuit Court shows you displaying your anger that afternoon. Your agitation was also noticed by one of the lawyers who attended that day.[12]

60 You refused to attend inside the courtroom for the final stage of the hearing. Later in the afternoon, as you walked out of the building, your exasperation attracted the notice of a security guard, Mr Mohammed, who was standing near the security entry and exit point.

61 He became an important witness for the prosecution. He gave evidence of the behaviour of an aggressive male who attracted his notice late on 15 April 2014 on the ground floor.

62 He said that he saw the man walking out of the court building late in the day and overheard the man say, 'I'm going to slice her.'

63 Although he did not know you, he gave a description of you and the people accompanying you and described your conduct in detail.

64 The CCTV footage is generally supportive of his description.

65 The CCTV footage depicts your emotional state that afternoon, with your brother physically grabbing, hugging and restraining you more than once, in between your discussions with the lawyers involved in the hearing.

66 You did not deny in your evidence at trial that you were seen to be angry and upset in that footage, but you denied saying the words attributed to you.

67 Although you denied making the threat, and your brother gave evidence that he did not hear it, I am satisfied that it was said by you, in response to your frustration at what was occurring at court that day.[13]

68 It is likely that you were still very angry and upset the next day, when you were required to attend the Sunshine Magistrates' Court for the return of the FVIO proceedings.

69 There was a combination of evidence showing what happened at the Sunshine Magistrates' Court that morning, including witnesses who interacted with Fiona and you, CCTV footage, and your own testimony at trial.

70 The evidence revealed that Fiona had attended the family violence counter early that morning before you arrived, and had expressed her fear of you to registry staff at the counter. The registry staff advised her to speak to the court protective service officers (PSOs) about her concern. She did so, and was advised by the PSOs to seat herself within view of their office.

71 At some later stage, after you arrived at the court, you walked past Fiona and said, 'You're fucked.'

72 Fiona reported this threat to the staff at the family violence counter as well as mentioning it in text messages sent to Joshua and to a close friend. Later, she reported the threat to her solicitor.

73 The registry staff advised her to report the threat to the PSOs, but it seems that Fiona did not do so. She had good reason to presume that they were already keeping an eye out for her safety whilst she was at the court complex.[14]

74 Your counsel submitted at your plea hearing that I should not be satisfied that this threat was uttered at the Sunshine Magistrates' Court that day.[15]

75 In my view, the evidence is convincing that you did in fact make that threat.

76 In relation to each of the three threats, your counsel referred to them as disputed sentencing facts.

77 If I were to regard those threats, or any of them, as being evidence of a settled intention or plan to murder Fiona,[16] those facts might be of greater significance than otherwise.

78 I do not consider that the threats aggravate the sentence I should impose.

79 However, for reasons which will become obvious from the facts that I am about to narrate, the objective features of your crime do involve circumstances of aggravation.

80 That morning on 16 April 2014, the Sunshine Magistrates' Court made final the FVIO, confirming the restrictive conditions that had been in place since 26 March 2014. The purpose of the final FVIO was to protect Fiona and your four children from harm.[17]

81 You left the Sunshine Magistrates' Court shortly before midday, together with your son, Dylan, who had accompanied you to the hearing at your request.

82 Fiona left the building shortly after you and drove to the Sunshine shopping precinct. She parked her car on Devonshire Road, near the intersection of Devonshire and Hampshire Roads. She then walked to her solicitor's office at 213 Hampshire Road.[18]

83 You also drove your car to the Sunshine shopping precinct, parking on Devonshire Road near the Granary Cafe. Your car was, therefore, parked on the opposite side of the road, but not far from Fiona's car.

84 You denied that you had observed Fiona's car, or that you had parked nearby her car on purpose.[19]

85 In my view, there is no reasonable doubt that you purposefully took up a position close to where Fiona had parked her car.

86 At around the time you got out of your car, you began to formulate a plan to stab and kill Fiona.

87 You took off on foot at a fast pace, with Dylan tagging along, and were captured on CCTV cameras passing through or near a number of shops.

88 I do not accept that it was at Dylan's behest that you went looking in the shops at that time.[20]

89 The CCTV footage shows you leading the way for most of the time that you are both visible, with you, rather than Dylan, taking interest in items on display. You were captured on CCTV cameras walking very quickly and then jogging across the carpark between the back of the TAC supermarket and the vicinity of the Spare Change bargain shop.

90 I am satisfied that, at that time, you had made up your mind to obtain a knife to use as a weapon to attack Fiona, and that you were hurrying to get back to the vicinity of her car before she did.

91 I infer that, at that time, you were driven by extreme anger, and held Fiona responsible for the court outcomes in the Federal Circuit Court and the Sunshine Magistrates' Court.

92 It was the Crown case that you purchased the knife used to kill Fiona at the Spare Change bargain shop. The Crown produced a cash register printout for the sale at 12.10 pm of a knife of the same exact description and make as the one used in the murder.

93 Your counsel sought to persuade me at the plea hearing that you did not purchase the knife at Spare Change in the period allowed for by the gap in the available CCTV footage.

94 He argued before the jury that you did not bring the knife to the confrontation, and that Fiona must have had the knife. You gave evidence to that effect.

95 Your son, Dylan, was cross-examined by your counsel in an effort to support that proposition. Dylan was an unsatisfactory witness whose significant witness statement was played in evidence after I had ruled that the Crown could cross-examine him.[21]

96 The jury were invited by your counsel to acquit you of murder on the basis that you were not seen on CCTV footage or by eyewitnesses to conceal the knife or to produce the knife from your clothing before the confrontation, so that it was open to conclude that it was Fiona who was armed with the knife before she was fatally stabbed.

97 Since this disputed fact as to whether you had armed yourself with the knife could aggravate your sentence, your counsel submitted I would need to be satisfied of that fact beyond reasonable doubt.[22]

98 I am so satisfied. My finding on this matter is consistent with the jury verdict convicting you of murder, and rejecting the reasonable possibility that you reacted in self-defence to the production of a knife by Fiona. It is also consistent with the way the Crown put their case, although neither the conviction for murder nor the rejection of self-defence by the jury were wholly dependent on that finding.[23]

99 My finding also means that I give no weight, in mitigation, to your offer prior to the trial to plead guilty to murder on the basis that you did not bring the knife. The offer was wholly inconsistent with the evidence and the Crown was obliged to reject it.[24]

100 In my view, the evidence that you took the murder weapon with you to the confrontation was overwhelming.[25]

101 I find that you purchased the knife at the Spare Change bargain shop shortly before the murder and that you returned with Dylan to the Granary Cafe to await Fiona's return to her car. I infer that you disguised the knife in your clothing before you approached Fiona.

102 CCTV footage shows you watching out from the alcove outside the Granary Cafe, and then from a seated position at the outdoor furniture. You purposefully selected that vantage point. The CCTV footage shows you jumping up suddenly and moving quickly towards Fiona as she crossed Devonshire Road after having left her solicitor's office.

103 You were seen by some witnesses running towards her. Although you were not seen to produce the knife from your clothing, you were seen to viciously attack Fiona. A number of witnesses saw you rain blows down upon her, although only some witnesses noticed the flash of a knife.

104 In the course of a ferocious attack, you stabbed Fiona six times, continuing the attack when she was already falling to the ground.

105 You stabbed her in the neck, the head and the body. Two of the impacts penetrated her chest and were fatal.[26]

107 The nature and severity of the attack, the location of the stab wounds and your behaviour afterward are demonstrative of an intention to kill Fiona.

108 Bypassers yelled at you to stop and you then fled to your car, pursued by outraged witnesses.

109 You drove away quickly in your car and concealed the murder weapon in a trench behind a pipe at a nearby road excavation site.[27]

110 Fiona Warzywoda, the mother of your four children, was left lying on the footpath, fighting for her life whilst members of the public tried desperately to help her.

112 Your attack on her was targeted and deeply punitive.

113 It was committed in contempt of court orders made only that morning.

114 If you had obeyed those orders, your children would still have a mother and a father to guide them through their childhood and adolescence.

115 Along with taking the life of the person you said you loved, you have irretrievably damaged the happiness and stability of all of your children and ruined your own future. All of that could have been avoided by adopting a degree of patience and restraint in the process of separating from your partner.

116 The criminality of your conduct is aggravated by the manner in which it was carried out. I do not know whether you intended for your actions to attract widespread attention, but your public defiance of court orders, which were designed to protect your former partner and family, is a reminder to all that it is because of the destructive actions of the few that the need for protective legislation has steadily increased in recent decades. The role of the judiciary is to ensure that those who flout court orders devised for the protection of families are left in no doubt as to the gravity with which their conduct will be marked.

117 Whilst I am not convinced that you had formed a concrete plan to kill Fiona until that morning at the Sunshine shopping precinct, you allowed your anger and resentment to fester in the days and weeks beforehand. In the end, you made the conscious choice to express those ugly emotions in a way that has left a lasting and disturbing impression on all who witnessed it.

118 Sadly, you have not demonstrated any remorse,[28] other than the modest concession that your three daughters did not need to be cross-examined at the trial before the jury.[29]

119 The trial in this matter was lengthy and involved a large body of witnesses who directly witnessed the murder. The horror of what they saw plainly made a lasting impression and traumatised each of them to a degree.

120 One of those witnesses was so disturbed that she spoke, in her victim impact statement, of having ceased work as a result.[30]

121 But the people most affected by your criminal actions are those who loved and cared for Fiona Warzywoda - her children; her brothers and sisters; and her friends.

122 The victim impact statements conveyed the grief and despair of the adult family members at the loss of a good woman, and a loving and caring mother. But they also conveyed the determination of the extended family and friends to do for the four children what their mother would have done, and provide the love she would have given.

123 Joshua Warzywoda is prominent among those who now fulfil that role. As a witness who was required to give evidence in the trial, he conducted himself with dignity and composure.

I am reminded of Fiona every day when I wake up with her children. Seeing her in them kills me inside. Even when I get upset trying to keep it in and be strong for the kids, it is so hard sometimes, when we know nothing we do will bring Fiona back.[31]

125 Jolene Warzywoda, Fiona's sister, said in her statement that Fiona played a massive part in her life and that she misses her sister more than words can convey.[32]

126 Paul Judge, Fiona's brother, said, 'You were supposed to love her. Because of your actions, she will never see her four children grow up and that is not right.'[33]

When I think about the future, I think about all the events ... that I will have to experience without having my mother to share them with. I have already had my 16th birthday without my mum and it was really sad. ... I feel really angry that these things have been taken away from me.[34]

128 [Name redacted] said, 'When the crime first happened, mainly I felt very sad.' She also said, 'I enjoy living with my uncle Josh but I miss my mum.'

129 [Name redacted] said, 'I feel sad and angry. I felt like I was furious because of what Craig did. I wondered why he would do something like that. I just want my mum back.'

130 [Name redacted] said, 'Life at home is good living with uncle Josh but I miss my mum.'

131 Victim impact statements from Phillip Young and Susan Hayes were also tendered.

132 Your counsel argued that your crime was relatively spontaneous. I accept that the plan to purchase a knife and kill Fiona was made after leaving court that morning. However, I do not accept your counsel's argument that this finding places your crime in the mid-range of objective seriousness.

133 You committed a brazen and deadly attack on an unarmed woman, when the knowledge that you were prohibited by law from approaching her must have been in the forefront of your mind. The flagrant breach of court orders put in place to protect the deceased promotes the objective seriousness of your crime to a high level.

134 The public manner of the crime also aggravates the gravity with which it must be viewed. That is not to diminish the gravity of lethal family violence committed out of the public eye. Each case ultimately turns on its own facts.

135 Priest JA recently commented in DPP v Daing,[35] when reviewing sentencing practices for murder of domestic partners, that the question might be raised as to 'whether current sentencing practices adequately reflect the seriousness with which such cases generally ought to be viewed.'[36] However, his Honour also said that '[i]f there is to be an increase in the prevailing sentencing standards ..., it must occur incrementally.'[37]

136 Nettle JA, as long ago as 2008 in R v Margach,[38] made the point that sentencing in domestic homicides must give great weight to general deterrence. He adopted the words of Osborn J in R v Davey:[39]

It is necessary that a continuing message be sent to persons in emotional relationships that the resort to violence against a partner will not be accepted either by the community or the Court. The sentences of this Court must reflect both the sanctity of human life and the total unacceptability of weak and vicious behaviour towards persons said to be objects of love.[40]

137 In Felicite v The Queen,[41] the Court of Appeal said:

The taking of a domestic partner's life undermines the foundations of personal relationships and family trust upon which our society rests. The sentence must reflect both the sanctity of human life and society's abhorrence of violence towards vulnerable and trusting partners who could legitimately have expected the offender to be the protector from, not the perpetrator of violent abuse.[42]

... [T]he principles of general deterrence, denunciation and just punishment will ordinarily be given primacy in sentencing for the murder of a partner in a domestic setting even where there are present circumstances of provocation or great emotional stress.[43]

139 These pronouncements apply to your crime. Although you murdered your former domestic partner outside the home, it was done in the context of a family break up. It was done without any provocation, although under emotional stress.

140 I have given consideration to comparable cases mentioned at your plea hearing, as well as those reviewed and discussed in DPP v Browning,[44] DPP v Daing,[45] Delich v The Queen[46] and McPhee v Queen.[47]

141 In Meade v The Queen,[48] the DPP unsuccessfully appealed against the sentence of 23 years' imprisonment, with a non-parole period of 19 years, on the grounds of manifest inadequacy. That was also a case of murder of a former partner for child contact-related reasons. There were three young children from the marriage. The offender in that case demonstrated no remorse, and he was found guilty after a lengthy trial. The crime in that case was committed by an educated and intelligent man who had embarked on a lengthy and calculated plan before carrying out his crime, including preparing an alibi for himself. The offender had no prior convictions.

142 The high degree of planning by the offender in Meade distinguishes it from your case as an aggravating factor,[49] but other aspects of your offending mark it as a very serious example of the crime of murder.

143 As to the adequacy of the sentence in Meade, the Court of Appeal said 'that the sentence imposed was low in the circumstances of this case but it was not at variance with current sentencing practice.'[50]

144 As Croucher J said in R v Freeman,[51] when considering sentencing practice in the context of a relationship murder:

... [I]n sentencing, it is almost always difficult usefully to compare other cases. No two cases are ever truly alike. And, in any event, sentences are not precedents to be distinguished or applied.[52]

146 You grew up in Sunshine, Victoria, and had a largely negative peer group at secondary school. You were bullied at school because of your small stature.

147 You completed Year 10 and formed a relationship with Dylan's mother when you were both teenagers, but this was short-lived.

148 You then met Fiona who was living with her family in Bendigo and after she moved to Melbourne you started a family with her.

149 You are now 40 years of age. You have a solid work history, having worked as a security officer for several years, a part-time cleaner and car detailer and, from 2007 onwards, as a postman with Australia Post. Testimonials received from your parents and two of your co-workers speak of your commitment to provide for your family by taking on extra cleaning work to supplement your income as a postman.[53]

150 They have spoken positively of your participation in family life before the breakdown of your relationship with Fiona.

151 It appears that your role as a husband and father was central to your identity and self-esteem.[54] However, your family relationships and overall functioning were marred by alcohol abuse over the years.[55] Sadly, your inability to overcome this problem meant that the incident in February 2014 was the final straw in your relationship with Fiona.

152 There is evidence before me that you did make an effort to participate with the court processes between February and April 2014, and your parents referred to some of the measures you took to respond to the crisis in your personal life brought about by the separation.[56] As it happened, your circumstances changed very rapidly over the span of those two months in 2014.

153 Although there was no forensic psychiatric or psychological assessment conducted for the purpose of sentencing, I was assisted by information received from Dr Danny Sullivan during the trial.

154 Dr Sullivan was engaged when the Crown case was about to close and you were to be called to give evidence on your own behalf. Your fitness to continue at that time was in doubt.[57]

155 Dr Sullivan assessed you and gave evidence that you were able to continue, and the trial was resumed after one week.

156 You told Dr Sullivan that the support of your family means a lot to you.

157 Dr Sullivan noted that you had no significant past mental health history, although you had received counselling for heavy alcohol use in the past.[58] You were treated with anti-depressant medication in prison but you ceased it in 2015.

158 In Dr Sullivan's opinion, you did not have a significant long-term mental disorder.[59] He considered that your self-harm episodes were reactive to your circumstances at the time. He diagnosed that you were suffering from an adjustment disorder as a result of those factors.[60]

159 He considered that you are at an increased risk of self-harm in the future.[61]

160 In arriving at your sentence I have had regard to the purposes of sentencing set out in the Sentencing Act 1991 (Vic) ('the Act').[62]

161 In consideration of the objective gravity of your crime and your lack of remorse, I must accord significant weight to the principles of denunciation and just punishment. The sentence must also deter others from resorting to lethal violence in disregard for police and court intervention designed to protect family members.

162 In light of the lengthy sentence that I am about to impose, I regard specific deterrence and community protection to be of lesser significance in your case.[63]

163 I am also bound to apply the principle of parsimony in your sentence.[64]

164 I consider that your prospects for rehabilitation upon your eventual release are of a moderate order. I make this finding in light of your extensive work history and lack of serious mental health problems.[65] Other factors include your developing insight into the dangers that alcohol poses for you and the ongoing support that you have from your family of origin.

165 Craig McDermott, on the charge of murder, you are sentenced to be imprisoned for 25 years. I fix a minimum period of 20 years before you are eligible to be released on parole.

166 Pursuant to s 18 of the Act, I declare that, excluding today, you have served 853 days of pre-sentence detention.

[1] Apart from your offences in 2010, your other offences were many years ago.

[2] The initial order was a bare order with limited conditions: Statement of Agreed Facts (Prosecution Exhibit 9) [2].

[3] Transcript of Plea, DPP v McDermott (Supreme Court of Victoria, S CR 2014 0195, Jane Dixon J, 17 June 2016) ('Plea Transcript') 29-33; Transcript of Trial, DPP v McDermott (Supreme Court of Victoria, S CR 2014 0195, Jane Dixon J, 19 May 2016) ('Trial Transcript') 2594-601.

[4] It was agreed by consent that the VAREs for each of [name redacted], [name redacted] and [name redacted], and the Basha inquiry cross-examinations of [name redacted] and [name redacted], would stand in place of further cross-examination before the jury. This was permitted after rulings were made rendering the substance of the evidence admissible.

[5] Transcript of Basha inquiry, DPP v McDermott (Supreme Court of Victoria, J Forrest J, 26 October 2015) 384-5.

[8] Eg, Ms Robertson, Ms Galvao, and Marcou & Associates.

[9] You were sentenced to 70 days' imprisonment, which was suspended for 12 months, with a notation about self-directed rehabilitation and cessation of drinking.

[10] Ms Galvao's interview with [name redacted] was limited.

[11] It should be mentioned for completeness that both parents were required to participate in the provision of a psychiatric assessment and report to the Federal Circuit Court within 3 months and to attend a 'Parenting Apart' post-separation parenting program.

[12] Trial Transcript 687 (Susan Ilias).

[13] Your counsel argued against the reliability of this evidence: Plea Transcript 33; Trial Transcript 2601-10. He pointed to the absence of corroboration, slight discrepancies as to details such as the exact time of day and the fact that Mr Mohammed did not file an incident report about it. But the significance of the threat only resonated with the witness after the news of the stabbing the following day.

[14] There was also evidence that the PSOs became involved in a disturbance at the court that morning, which may have occupied their attention elsewhere for a part of the morning.

[15] Plea Transcript 34-5; Trial Transcript 2615-20. Although your counsel argued that Fiona did not raise the threat with the Magistrate when she went into court, the order was not contested in the court that day. Your counsel also argued that Dylan did not give evidence of hearing the threat and that you denied it on oath. But Fiona's contemporaneous actions are consistent with responding to the threat made by you at court, including informing her solicitor that she intended to report it to police that day after attending the titles office to remove the caveat on the house.

[16] The Crown did not seek to persuade me that they were.

[17] The court also adjourned a reciprocal application that you had lodged against Fiona.

[18] She had gone to her solicitor's office in order to update her solicitor about the outcome of that morning's hearing, and to take steps required for the settlement of the house that was to occur later that day.

[19] Dylan gave evidence that he had seen Fiona's parked car on arriving at the Sunshine shopping precinct: Trial Transcript 844-5; See also his second police statement on 24 June 2014.

[20] Dylan gave an unlikely explanation that he wanted to go shopping to look for a potato peeler.

[21] Dylan's role as a witness was awkward for him. At one point, he told the prosecutor, 'If you do not want my evidence I'll leave the court room if you wish me to.': Trial Transcript 1218.

[22] R v Storey [1998] 1 VR 359.

[23] In any event, you knew that you were not to approach within five metres of Fiona.

[24] Your counsel did not have instructions for you to plead guilty with that issue being a contested sentencing fact.

[25] The Crown argued that you would have had to be the unluckiest person alive, if someone other than you had bought the knife referred to on the Spare Change cash register printout that day, given the CCTV footage and the version of events given by Dylan in his significant witness interview on 1 May 2014, which led police to investigate Spare Change as a source for the knife used in the killing. Forensic comparison showed that the knife used in the killing matched the type of knife obtained from Spare Change that was shown on the cash register printout.

[26] Trial Transcript 1892-6 (Dr Jacqueline Lee).

[27] Your movements were witnessed and the knife was recovered by police.

[28] Sentencing Act 1991 (Vic) s 5(2C).

[29] [Name redacted] and [name redacted] were cross-examined on a Basha inquiry. During the first trial before J Forrest J, [name redacted] ran from the room during her cross-examination, leading to the discharge of the jury.

[30] Victim impact statement of Susan Hayes, contained in Prosecution Exhibit 1 on the plea.

[31] Prosecution Exhibit 1 on the plea.

[35] [2016] VSCA 58.

[38] [2008] VSC 255.

[39] [2006] VSC 173.

[40] Ibid [25] (Osborn J), quoted in R v Margach [2008] VSC 255 [33] (Nettle JA).

[41] (2011) 37 VR 329.

[42] Ibid [20] (Redlich JA, Harper JA and Robson AJA agreeing).

[44] [2016] VSCA 153.

[45] [2016] VSCA 58.

[46] [2014] VSCA 66.

[47] [2014] VSCA 156.

[48] [2015] VSCA 171 ('Meade').

[49] Although the sentencing judge was prepared to accept that actual premeditation only occurred in the days before the murder, the factual circumstances in that case were vastly different in terms of the pre-planning in the lead up to the murder: See R v Meade [2013] VSC 682 [63] (Weinberg JA).

[50] [2015] VSCA 171 [240] (Maxwell P, Redlich and Whelan JJA).

[51] [2015] VSC 506.

[54] Your counsel said that you struggled for years in relation to self-worth when you were not in a relationship: Plea Transcript 50.

[55] You described alcohol as being the main substance abuse problem in your life, having started drinking at 14: Plea Transcript 51.

[56] Such as, taking leave without pay from Australia Post and seeking help from support services: Defence Exhibit 1, 2.

[57] You engaged in serious self-harm, and the trial was adjourned to allow you to recover from this crisis and to assess your fitness to continue.

[58] Your counsel indicated that you had several sessions of counselling after the 2010 incident.

[59] The Crown submitted that Verdins principles have no application in your case. Your counsel did not submit otherwise.

[60] Just as you were due to give evidence in your trial, you lost certain privileges as a result of an unrelated Governor's hearing at Port Phillip Prison, including weekend visits from family and being in a single cell, both of which were important coping measures for you. Other stressors noted by Dr Sullivan included that you had spent significant dates like birthdays and Mother's Day in custody, and that you had had limited time for fresh air before night lockdown in prison due to being at court during the day.

[61] You had also engaged on self-harm on one previous occasion in 2000.

[62] Sentencing Act 1991 (Vic) s 5(1).

[63] See, eg, Meade v The Queen [2015] VSCA 171 [228]; R v Constantinou [2013] VSC 474 [10].

[64] Sentencing Act 1991 (Vic) s 5(3).

[65] Whilst in custody, you have also worked as a billet in various roles in prison.