DPP v Walker [2018] VSC 83

3 In 2014, you and your two young children moved in to live with Mr Johnston at his house in Pakenham. Due to financial difficulties, the house had to be sold the following year, and you and Mr Johnston became homeless for a while. Your children went to live with their father at that time.

4 You and Mr Johnston relocated to the Bendigo area at the end of 2015, initially living with your mother. Your children came back to live with you and Mr Johnston for a short period in 2016. After your children returned to live with their father, he obtained an intervention order, which prevented you from having contact with them, in order to protect them from witnessing the family violence between you and Mr Johnston.

5 In September 2016, an incident occurred which led to Mr Johnston being remanded in custody for about one month. After drinking a large amount of alcohol, he had been driving so erratically that you feared for your safety and tried to stop the car. When the police attended, he was charged with a number of driving and property offences, as well as resisting police. You later told some family members, and your psychologist, that on that occasion he had picked up a brick or a stone and threatened to cave your head in with it. You did not tell the police of that incident, as you loved Mr Johnston and did not want him to get into trouble over it.

6 After being evicted from a rental property for failing to pay rent, the two of you spent some months "couch surfing" at the homes of friends. At the time of the offence, you were staying with a friend at a DHHS property in Kangaroo Flat, near Bendigo.

7 In the days leading up to these events, your friend had been staying with her boyfriend, so you and Mr Johnston had been alone in her house. The two of you had been arguing for several days about your plans for Christmas Day.

8 Around noon on 24 December, you went out and bought some groceries and alcohol; Mr Johnston was still in bed asleep at the time. You returned home around 2:00 pm, and woke him up about 45 minutes later. After Mr Johnston got up, the two of you argued again about your plans for Christmas; the argument escalated and continued over the course of the next three hours.

9 During that period, a number of neighbours heard the sounds of a man and woman yelling, screaming and swearing at each other, coming from your house. They also heard numerous doors being slammed. It was difficult to hear exactly what was being said, although several people heard a woman yelling words to the effect of "give me my phone back." Someone heard a man calling someone "a stupid bitch." Some of the neighbours also saw you and Mr Johnston coming and going from the house. On several occasions, you tried to leave the house, but Mr Johnston followed you out onto the street, and either told you to come back inside, or dragged you back inside. Once, you left and returned to the house voluntarily. Another time, as you were walking out the front door, your head appeared to suddenly snap back, as though somebody had grabbed your hair from behind.

10 Shortly after 5:30 pm, one of the neighbours called the police to report that there was a "domestic" going on at your house. A short time later, you left the house with blood on your arms, legs and clothes. You appeared hysterical, and were asking for someone to call an ambulance.

11 When the first police officers arrived, around 6:00 pm, they found the front door open, and you sitting in the hallway. You were crying and waving at police. As they approached the front door, they saw Mr Johnston lying on his back on the hallway floor. The carpet around him was soaked with blood, and he was cold to touch.

12 When one of the police asked you what had happened, you replied "I was trying to get out of the house and I stabbed him, is he ok?" You said you had used a small knife, and were not sure where it was. Asked where you had stabbed Mr Johnston, you replied by pointing to the left side of his chest. You said you had stabbed him about 30 minutes earlier, and he had then walked around for a bit before he collapsed.

13 Despite attempts at resuscitation by the police and paramedics, Mr Johnston was unable to be revived. The cause of death was acute external and internal blood loss, as a result of the single stab wound to the upper left chest.

14 You were arrested and taken to the Bendigo Police Station. You were hysterical, and constantly asking whether Mr Johnston was okay. Upon arrival at the station, due to your apparent level of intoxication, you were given time to rest. You told police at the scene that you had drunk two bottles of wine over the previous six hours.

15 A recorded interview was conducted in the early hours of the following morning. During the interview, you said that you and Mr Johnston would often have verbal arguments, which had occasionally escalated to physical fights, involving "push, shove, verbal... but not so much physical"; you said "we don't beat the crap out of each other". However, later in the interview, you said that there had been "massive punch-ons" between the two of you in the past.

16 You said that you had been arguing for two or three days before the offence, and the argument was "starting to get physical". You said that Mr Johnston wouldn't let you leave the house, and that he "kept locking the door, getting in my way, pushing me away, pushing me over, restraining me, threatening to hurt me". You said you were crying and "scared shitless again". You said that at some stage he took your phone, but he later gave it back to you.

17 You said that all that you could recall was the two of you arguing, and Mr Johnston blocking you and preventing you from leaving the house. You said he put a knife in your hand and said "Fuckin' do it". He handed you the knife "sharpways" (meaning with the blade pointing towards you) and "it got turned over, bang, and I walked". You swung your arm with the knife to get him away from you, and didn't even look at him when you did so. You said you did not intend to hit him with the knife.

18 You were asked several times to demonstrate how you stabbed him. Using your right hand, you gestured a swinging motion, to the right side of your body and backwards, with the knife held around the height of your upper arm or shoulder. It is not clear from what you said in the interview precisely how the two of you were standing in relation to each other, or whether the knife was being held horizontally or vertically, when you stabbed him.

19 The pathologist, Dr Dodd, described it as a somewhat obliquely-oriented single stab wound to the upper left chest, immediately behind the middle of the left collarbone. The blade entered the left chest cavity to a depth of about 40 to 50 mm, and cut part of the left upper lobe of the lung and the subclavian vein, leading to external blood loss and a large collection of blood within the left chest cavity.

20 Having regard to the features of the stab wound, Dr Dodd said that it could have been inflicted in a number of ways, depending on how Mr Johnston's body was positioned at the time. Dr Dodd was not able to say from the wound itself how Mr Johnston had been standing. However, he said that if Mr Johnston was bent at the waist and leaning forward at the time of stabbing, the injury could have been inflicted in the manner demonstrated by you; given the state of the evidence, I cannot exclude that as a reasonable possibility.

21 In your interview, you also said that after you stabbed Mr Johnston he sat down briefly in the lounge room, then went to the bedroom. You said that he lost consciousness about 10 minutes after he had been stabbed, and you tried to give him mouth-to-mouth or CPR. There was extensive blood-staining throughout the house, consistent with Mr Johnston having moved around after being stabbed.

22 A blood-stained knife, about 27 cm long, was found in the family room; this was later shown by forensic testing to have been the weapon you used.

23 Post-mortem toxicology results showed that Mr Johnston had alcohol, ice and cannabis in his blood stream. The alcohol was equivalent to a result of around .02 or .03. However, there is no evidence as to how much ice or cannabis he had consumed, or what, if any, impact such substances had on his behaviour that afternoon.

24 By accepting a plea of guilty to manslaughter, the prosecution accepted that you did not intend to kill Mr Johnston or cause him really serious injury. However, your actions were dangerous, in the sense that a reasonable person in your position would have realised their actions were exposing Mr Johnston to an appreciable risk of serious injury.

25 As far as the seriousness of the offending is concerned, you inflicted a single, spontaneous, stab wound, in the following circumstances. That afternoon's fight was the continuation of several days of mostly verbal argument, in which you both seem to have played an active part. You were fearful and wanted to get out of the house for a little while, to diffuse the tension; he kept preventing you from leaving. Mr Johnston introduced the knife into the fight, handing it to you and goading you to "Fuckin' do it". You took the knife and swung your arm in his general direction, to get him away from you, not looking at where your arm was actually going. This occurred in the context of a long history of family violence and mutual substance abuse.

26 Before I consider your personal circumstances, I want to say something about the effect your actions have had on others.

27 Matthew Johnston was 37 years old when he died. Victim impact statements were provided to the court by his parents, Susan and Warwick Johnston, and his only sibling, Jessica Johnston. Matthew grew up in a loving and close-knit family, and remained in regular contact with his immediate family, even after they moved interstate. His parents urged him to get professional counselling, and tried to help him in various ways, when it became apparent that he was battling with numerous problems. They all feel guilt that they were unable to do more to help him. They continued to love him dearly, even though he made some poor decisions in his life.

28 They miss Matthew enormously, and have lost their interest and enjoyment in life. Their grief has been exacerbated by a lack of understanding and support from some family members and friends, who seem to have written Matthew off.

29 Matthew's immediate family received the news of his death in the early hours of Christmas Day. What should be a happy day will forever be a day of great sadness for them, reminding them of their loss.

30 Matthew had one son, who was 8 years old and living with his mother at the time of Matthew's death. Although Matthew had not seen his son for some time - due to an intervention order which had been taken out against him by his former wife - his son misses him, and is sad he will never get to know his father properly.

31 There is nothing this court can say or do that will bring back Mr Johnston, or heal his family's grief and pain. The sentence I am going to impose is not a reflection of the worth or value of Mr Johnston's life; rather it is a reflection of the large number of factors which judges are required by law to take into account, only one of which is the victim impact statements.

33 You were born in July 1983, and were 33 at the time of the offence. Your parents separated, amicably, when you were in grade 6; you remained living with your father in a country town.

34 After successfully completing your VCE, you worked in several casual or part-time jobs, before completing a certificate in hospitality from Ballarat University. The following year, you were hospitalised with severe pneumonia for almost 5 months. Upon discharge from hospital, you returned to your father's house.

35 It was while you were living in your father's town that you met the man who became the father of your two children. That relationship ended within a couple of years.

36 Between 2010 and 2013, you were looking after your young children on your own, and working part-time.

37 You have been a regular user of cannabis since your mid-teens. However, Mr Johnston introduced you to ice, and the two of you used it regularly together until his arrest in September 2016. It is hard to gauge to what extent alcohol abuse has also been a problem for you, as you clearly downplayed how much alcohol you had consumed on the night of the offence when speaking to Ms Lechner, the forensic psychologist who assessed you for the purposes of the plea.

38 Your two children are now aged 8 and 9. Although you have not had contact with them for some time, you are hopeful of being able to rebuild a relationship with them in the future.

39 You still enjoy the support of both of your parents, and a number of friends; this will be especially important for your eventual release back into the community.

40 According to the psychologist, Ms Lechner, you are experiencing symptoms of both post-traumatic stress disorder and a major depressive disorder. Unfortunately, her report is not entirely clear about whether you have been formally diagnosed with such disorders (or simply show some of the symptoms); it also seems to be based, in part, on an inaccurate understanding of some of the facts. However, it is not necessary for me to consider such matters further, because of the limited use sought to be made of the report by your counsel. The prosecution does not dispute, and I accept, that your symptoms will make imprisonment more burdensome for you than for a prisoner in good health. Your counsel expressly disavowed reliance on any other aspect of the Verdins principles.

41 You have a very limited, relatively minor, history of offending. In June 2016, you were convicted in the Magistrates' Court of some driving, property and drug offences. On that occasion, you were also convicted of assault; that occurred when you kicked a police officer, after police had pulled you and Mr Johnston over and were trying to arrest you. For all of those offences, you were placed on a 12 month community correction order. You were generally non-compliant with the terms of your CCO, regularly missing counselling and supervision appointments, and not performing community work.

42 It is an aggravating feature of the current offending that you committed this offence whilst still on the CCO.

43 You were originally charged with murder. In early February 2018, about one month before your trial was due to begin, you first offered to plead guilty to manslaughter. You formally pleaded on 16 February 2018, after the prosecution accepted your offer.

44 You are entitled to a discount on the sentence to be imposed, in recognition of your plea, and its utilitarian value. Your plea has facilitated the course of justice. The community has, by your plea, been spared the time and cost of a trial. The family and friends of Mr Johnston have been spared what would have been a very traumatic trial.

45 You are genuinely remorseful for what you did. You showed immediate concern for Mr Johnston's wellbeing. You tried to help him, and to get others to help him, at the scene. You remained visibly upset and concerned for his wellbeing after your arrest, and co-operated fully with police. Despite the somewhat abusive nature of your relationship, it is clear that you genuinely loved Mr Johnston, and are devastated at having killed the person whom you regarded as your soulmate.

46 You seem to have a pattern of entering and staying in unhealthy relationships with men who do not treat you well, in the hope that your love and support will somehow rescue or change them. Although there is considerable evidence that Mr Johnston was controlling and aggressive towards you and other people, it seems that you have not learnt appropriate coping skills for such situations. You have begun to face some of these problems in custody, through your participation in programs and counselling.

47 You have reasonable prospects of rehabilitation, which will be enhanced by your addressing the psychological issues that underlie your drug abuse, and your behaviour in intimate relationships, through appropriate counselling and treatment in custody and on parole. There is not a great need for specific deterrence in this case.

48 However, there remains a need for general deterrence and denunciation of your actions.

49 Balancing as best I am able the competing considerations laid down in the Sentencing Act 1991, and having regard to the matters I have just discussed, for the offence of manslaughter, I sentence you to imprisonment of 7 years. I fix a period of 4 years as the period you must serve before becoming eligible for parole.

50 I declare that, but for your plea of guilty, I would have sentenced you to a total of 9 years' imprisonment, with a minimum non-parole period of 6 years and 6 months' imprisonment.

51 Further, I declare that the period to be reckoned as already served under this sentence is 459 days, not including today's date. I direct that there be noted in the records of the court the fact that such declaration was made and its details.