Edwards v The Queen [2020] VSCA 339

1 The applicant ('E')[1] pleaded guilty to a single charge of manslaughter. She was sentenced to 9 years' imprisonment, with a non-parole period of 6 years and 9 months. She now seeks leave to appeal against sentence on the following grounds: (a) the judge erred in finding that her moral culpability was not lessened in any way by the violence perpetrated upon her; (b) the judge erred in finding that her moral culpability was high; and (c) the sentence was manifestly excessive.

2 For reasons which follow, leave to appeal must be refused. In our view, it was well open to her Honour to find that E's moral culpability was high and was not lessened by her experience of family violence. That being so, it is not reasonably arguable that the sentence imposed was outside the range.

3 E stabbed the victim ('P') in the neck. He died as a result of the injuries inflicted. E was initially charged with murder, to which she pleaded not guilty. She was subsequently arraigned on a charge of manslaughter and pleaded guilty.

4 E was 35 years old at the time of the offending and 38 years old at the time of sentence. She had experienced significant disadvantage. At the time of her conception her parents were only 16 years old. Her mother was an Aboriginal woman of the Taungurong people. Her father was almost totally absent from her life. As a child, E was exposed to drug abuse and was the victim of neglect and violence perpetrated by her mother, who used methamphetamine and was physically abusive towards her. When E was three years old, her mother entered into a relationship which was characterised by family violence. That relationship lasted until E was six years old. From an early age she was required to look after her siblings.[2]

5 The only constant person in E's life was her grandfather. He had been removed from his family at the age of 10 and was a member of the Stolen Generation. He was a respected member of the Aboriginal community. He was also dealing amphetamine. E attempted suicide in Year 7, which she attributed to the pressure of home life.[3]

6 When E was 14, she entered into an emotionally abusive and controlling relationship, which lasted until she was 20. During this relationship she was introduced to cannabis. Excessive use of cannabis persisted throughout the relationship. E was also sexually exploited. She gave birth to a daughter four days after she turned 17. Further dysfunctional relationships followed, involving drug use and - in at least one case - systematic physical violence towards her. Two of these relationships produced children. E's two older children have been raised by their respective fathers.[4]

7 E and P had been in a relationship for just over 12 months at the time of P's death. Both had substance abuse issues. As discussed further below, there was evidence that each of them had been violent towards the other. Both E and P took out intervention orders against the other three months prior to the offence.

8 In February 2016, after E obtained public housing, P moved in with E and her 18 month old daughter. In the lead up to the offence, E was wanting P to leave the house. His continued presence was a source of frustration to her. E also expressed concern for her safety and felt threatened by P.

9 On 21 November 2016 E told building contractors at her house that she was not safe and wanted a male removed from the property.[5] She also expressed concern to friends that P had threatened to stab her.[6] She telephoned police and told them that P had breached an intervention order but that she was at a safe address and would make a statement to police the next morning.[7]

10 On 22 November 2016 builders returned to E's residence and heard her telling someone to 'get out'.[8] That afternoon, two men attended at the house and asked what was happening. E was heard to say, 'By tonight I'll either be in gaol or dead'.[9]

11 E later attended Swan Hill Magistrates' Court and spoke to Ms Bannam and Ms Calvino. She asked Ms Bannam to witness a statutory declaration to sign over the care of her daughter to E's sister.[10] E told Ms Calvino that P would get a look in his eye like he wanted to kill her. Ms Calvino observed E to be agitated and behaving erratically. E told her that she had not slept in days and had been on a 'massive bender on drugs'.[11]

12 At approximately 4:40 pm on 22 November 2016, E purchased a paring knife and returned home. At approximately 7:44 pm she telephoned police. She stated that she was going to stab P and advised police to attend, saying 'I hope he does not bleed out before you get here'.[12]

13 P was lying on the couch in the lounge room when E approached him and stabbed him with a knife to the right side of his neck. Police attended and E was observed standing in the doorway before she returned to the unit. Shortly thereafter she walked out the door and ran towards the officers holding a knife. E was directed to drop the knife. She complied but continued to advance on officers and was subsequently sprayed with OC foam and arrested.[13]

14 At the same time P ran out of the unit, holding his hand to the right side of his neck and yelling, 'She stabbed me'. He made it to the end of the driveway where he collapsed and fell on the ground. He was assisted by police and taken to hospital but died that evening as a result of the stab wound.[14] E was arrested at the scene and later charged with murder.

15 E contends that the judge erred in finding that her moral culpability was not lessened in any way by 'the violence perpetrated upon her'. The finding in question was in the following terms:

The question of who was violent towards whom arises as a result of the submission made on your behalf that your moral culpability for killing [P] is reduced by reason of it being a response, properly understood in the context of what is known about responses to family violence, to violence inflicted on you by [P]. I do not accept that submission. I find that the killing of [P] occurred in the context of a dysfunctional relationship characterised by heavy drug use and the disorder and conflict generated by drug use of that kind. In this context, there were instances of violence perpetrated by each of you against the other, but more especially by you against [P]. I do not consider that [P]'s violence towards you provides an explanation for your actions.[15]

16 A finding as to an offender's moral culpability is a finding of fact.[16] As E's counsel accepted, appellate intervention would therefore only be justified if we concluded that the judge's finding was not reasonably open on the evidence before her. In our respectful view, her Honour's conclusion was well open on the evidence, for the reasons she gave.

17 As her Honour noted, the evidence established that there were instances of violence perpetrated by each against the other. But her Honour also recorded that:

The account that you gave to your barrister and that he presented to the Court about [P]'s violent acts towards you was strongly challenged by the Crown. The Prosecutor referred the Court to materials in the depositions indicating that you were most often the aggressor. Your conduct towards [P] was observed to involve frequent verbal abuse and, at times, physical violence. It was described as controlling and overbearing, as well as financially exploitative. In contrast, [P] was described by a number of witnesses as gentle, placid and forgiving and protective of you.[17]

18 Her Honour found that the offending had taken place in the context of heavy methamphetamine use.[18] In her reasons, the judge said that:

I accept that you carry trauma as a result of your terrible childhood and the controlling and abusive relationships that you have had with a number of men. I also accept that your relationship with [P] had become dysfunctional and that it was volatile and sometimes violent. However, I consider that your offending should be characterised as taking place principally in the context of heavy methamphetamine use, rather than principally in the context of family violence. You were strung out on drugs, you had not slept for days and your thinking was utterly disordered. [P] was the victim of this disordered thinking and the hyper-aroused state you were in as a result of drug use.[19]

19 Her Honour accepted the expert evidence of Dr Danny Sullivan, a consultant forensic psychiatrist, who had prepared a report at the request of the prosecution. Dr Sullivan's opinion was that the descriptions of E's behaviours in the period preceding the alleged offence were suggestive of:

intoxication with methamphetamine and possibly benzodiazepines. These substances are associated with disordered behaviour including aggression, impaired judgement and poor recall of events occurring while intoxicated.[20]

20 Had there been evidence of a causal link between E's stabbing of P and his acts of violence towards her, the sentencing considerations may have been quite different. As this Court said in Hill v The Queen:

The profound and long-lasting psychological effects of domestic violence are well-established and, where a proper evidentiary basis is established, can have a very significant impact on the court's view of the culpability of an offender and may even preclude criminal responsibility.[21]

21 There was, however, no such evidence. Dr Sullivan noted that E's life history included childhood trauma, 'abusive and inconsistent parenting' and 'recurrent reciprocally abusive and violent, tumultuous and chaotic relationships'. The effect of that history, he considered, was 'to render her behaviour impulsive and aggressive, to predispose her to engaging in volatile and abusive relationships, and to predispose her to substance use problems'. He noted that substance abuse appeared to have been a feature of many of her previous relationships.

22 For its part, the defence relied on a psychiatric report from Dr Helen Driscoll, a consultant child and adult psychiatrist. The report recorded at some length E's description of her 'many brief relationships with adult men'. Dr Driscoll's opinion should be set out in full:

Diagnostic Formulation****:

[E] has suffered and continues to suffer with C.PTSD (complex posttraumatic stress disorder) with a high level of dissociation consistent with a dissociative disorder.

The aetiology of her C.PTSD is Developmental Trauma Disorder (DTD) as a consequence of major adversity in childhood.

This adversity was global, with attachment deprivation, neglect, emotional abuse, physical abuse and strong indications of early childhood sexual abuse.

The traumatic sexualization of [E] as a young child would indicate either / and inappropriate exposure to sexual behaviour. This traumatic sexualization also formed a basis for her seeking attention from others, as well as acting out either some of what she was exposed to, or had directly experienced by acts of commission of childhood sexual abuse.

The long history of difficulties that manifested in her having developmental struggles from pre-school age continued into her schooling years with fracturing of her peer relationships, emotional and behavioural functioning and application to learning.

The intergenerational deprivation, with loss of connectedness and poverty of attachments manifested in the history of exploitative abuse relationships commencing in her early teens and throughout her adulthood to date.

The constant fear of being taken away, compounded by her loss of her children, the lack of obtaining any trauma therapy and not safe anchor within the community has been devastating.

On assessment, the context in which she was said to have stabbed and killed [P] by a single wound, was triggered by overwhelming fear of further loss of a child.

The long history of domestic violence contributed to cumulative harm from her childhood. Hence the DTD was compounded predictably by the fractured, insecure relationships from the age of 14 years.

Of course the relationship as a 14 year old, was still when she was still in her childhood.

There are profound traumatic dynamics and loss and grief both personal and intergenerational that has molded [E]'s personality and her physiological, cognitive and hence functional responses to others and the world.[22]

23 As can be seen, Dr Driscoll assessed the 'trigger' for the stabbing as being E's 'overwhelming fear of further loss of a child'. She recognised the impact on E of 'the long history of domestic violence' in her many relationships but did not suggest that E's relationship with P had any particular explanatory force in connection with the fatal stabbing.

24 Ground 2 challenges the judge's finding that E's moral culpability was 'high' notwithstanding her severely disadvantaged background. It is necessary to set out in full the relevant part of the sentencing reasons in order to understand the context in which that finding was made:

According to Dr Sullivan the descriptions of your behaviour in the period leading up to the stabbing of [P] suggest intoxication with methamphetamine and possibly benzodiazepines. These substances are associated with disordered behaviour including aggression, impaired judgement and poor recall of events occurring while intoxicated. On the basis of the information provided, Dr Sullivan considered it likely that substance use influenced your behaviour at the time of the offending. I accept this evidence.

I am satisfied to the requisite standard that when you killed [P] you were in a drug affected state. You were either high on drugs, most likely 'ice', or coming down off drugs. You reported that you had not slept for a number of nights. You were highly agitated and your thinking was chaotic.

Your barrister explained your offending, as I have said, as a response to violence at the hands of [P] against a backdrop of other relationships involving family violence and in circumstances where you felt unable to rely on help from the police.

I accept that you carry trauma as a result of your terrible childhood and the controlling and abusive relationships that you have had with a number of men. I also accept that your relationship with [P] had become dysfunctional and that it was volatile and sometimes violent. However, I consider that your offending should be characterised as taking place principally in the context of heavy methamphetamine use, rather than principally in the context of family violence. You were strung out on drugs, you had not slept for days and your thinking was utterly disordered. [P] was the victim of this disordered thinking and the hyper-aroused state you were in as a result of drug use.

No doubt your traumatic childhood and dysfunctional relationships have had a profound impact on you, and the severe disadvantage that you have experienced diminishes your moral culpability for your offending to some extent. However, based on the opinion expressed by Dr Sullivan, I find that your drug use heavily influenced your behaviour at the time of the offending.

Overall, despite the effects of the disadvantage that has been identified, I consider your moral culpability for killing [P] to be high.[23]

25 As her Honour noted, the High Court and this Court have recognised that:

The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark throughout a person's life. It becomes a feature of the person's make-up that remains relevant to the determination of an appropriate sentence.[24]

An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.[25]

26 As we have noted, Dr Driscoll's opinion was that E's fear of losing her third child to welfare fuelled her distress at not being able to make P leave the house, so that she could return with her child; and the escalation of her distress and helplessness culminated in the stabbing. Her Honour did not discount this thesis but said that 'it must also be viewed in the context of [her] drug use at the relevant time'.[26]

27 Once again, in our view, these findings of fact were well open to her Honour on the evidence before her.

28 We turn finally to address a matter raised in submissions under cover of grounds 1 and 2, namely, that the judge failed to treat E's drug use and drug addiction as stemming from her severely disadvantaged background. According to the submission, it was not open to the judge to conclude that the violence experienced by E could have no bearing on her moral culpability (ground 1) nor was it open for the judge to conclude that E's moral culpability remained high (ground 2).

29 On the plea, E's counsel expressly disavowed any causal link between E's drug use and the fatal stabbing. It was instead submitted that her drug use should be viewed as a 'contextual matter rather than a causational matter', contrary to the evidence of Dr Sullivan. As already noted, her Honour did not accept this submission.[27]

30 As this Court has previously observed, arguments that could have been, but were not, advanced on the plea will not be lightly entertained on appeal.[28] It is not, in our view, open to E to contend in this Court that her moral culpability was lessened because her offending was causally linked to her drug use. As we have explained, any causal link with drug use was expressly disavowed on the plea.

31 In any event, the authorities relied on in support of this new contention are not concerned with a case like the present, where a person in a state of drug intoxication commits a crime of violence. They are instead concerned with the case where a person commits an offence to satisfy a drug addiction and with the relevance of that circumstance to an assessment of the moral culpability and rehabilitative prospects of the offender.[29]

32 For these reasons, in our view, it was open to the judge to conclude that E's moral culpability was high. It follows that grounds 1 and 2 must fail.

33 E contends that the sentence imposed was manifestly excessive. It is submitted by E that the offending occurred in the context of helplessness and desperation. E also submits that there are powerful matters in mitigation, including: her very disadvantaged background and having been a victim of crime during her life; the violence perpetrated upon her by P and her fear of him; the plea of guilty at an early stage; remorse; delay; lack of prior convictions; and her efforts towards and prospects of rehabilitation.

34 Her Honour considered all of these factors in sentencing. Her Honour gave full weight to the plea for its utilitarian value, as well as for the expression of remorse.[30] As already noted, the judge accepted that E's disadvantaged background reduced her moral culpability 'to some extent and this will be reflected in the sentence'.[31] Her Honour considered that E had good prospects of rehabilitation but also that this depended on her continuing to abstain from drugs.[32]

35 The judge considered how E's personal circumstances were relevant to sentencing considerations:

Your personal circumstances are relevant, not only to your moral culpability generally, but to the sentencing considerations that arise when sentencing persons from particularly disadvantaged backgrounds. They are also relevant to considerations of general and specific deterrence and to your prospects of rehabilitation.[33]

36 In considering these factors, her Honour concluded that:

I have found your offending to be a serious example of manslaughter. Your moral culpability is high, but is reduced somewhat by your sad personal history and circumstances.

Just punishment, denunciation of your conduct and general deterrence remain important sentencing considerations. The Court must pass a sentence that denounces your behaviour and deters others from resolving conflict in the way that you chose to do.[34]

37 While E's background was an important consideration, it needed to be balanced against the seriousness of the offending. E's offending was planned and deliberate. The knife used in the attack was purchased some hours prior to the offence. As the judge found, E told the police what she was going to do 'and then proceeded to do it, before there was any chance of stopping [her]'.[35] Accordingly, her Honour assessed this as 'a particularly serious case of manslaughter'.[36] That finding was well open, in our view.

38 In our respectful view, the sentencing judge gave proper consideration to all of the relevant features of the offending and the offender in carrying out the sentencing task. As we have said, it was open to the judge to find that E's moral culpability was high. Once high culpability is established, it is not, in our view, reasonably arguable that the sentence imposed was outside the range open to her Honour, given the objective seriousness of the offending, the maximum penalty for manslaughter, and the weight to be given to the sentencing purposes identified by her Honour. The ground of manifest excess therefore fails.

[1] The abbreviation is used for ease of reference not anonymity.

[2] R v Edwards [2019] VSC 234, [57]-[58] ('Reasons').

[16] DPP v Borg [2016] VSCA 53, [57] (Maxwell P, Priest and Weinberg JJA).

[21] [2020] VSCA 220, [40]. See, eg, Sawyer-Thompson v The Queen [2018] VSCA 161; DPP v Bracken (Ruling No 12) [2014] VSC 351.

[24] Reasons [84], citing Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 and Marrah v The Queen [2014] VSCA 119. See also DPP v Snow (a pseudonym) [2020] VSCA 67.

[25] (2013) 249 CLR 571, 595 [44]; [2013] HCA 37 (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).

[28] Romero v The Queen [2011] VSCA 45; (2011) 32 VR 486, 489, [11]; [2011] VSCA 45 (Redlich JA).

[29] R v McKee [2003] VSCA 16; R v Lacey [2007] VSCA 196; Nicholson v The Queen [2017] VSCA 238.