Hill v The Queen [2020] VSCA 220

1 As this Court said in Hogarth v The Queen, home invasion is 'a particularly nasty form of criminal conduct'.[1] The present case illustrates, yet again, just how devastating a home invasion can be. The applicant armed herself with weapons - a length of pipe and a knife - and smashed a window to gain entry to a house occupied by her ex-husband (Paul Hill) and his new partner ('S'). The applicant's daughter ('AD') was also present. Once inside, the applicant attacked S first and then Mr Hill, stabbing them both.

2 In the view of the sentencing judge, this was 'a very serious example of [aggravated burglary]'.[2] His Honour described the offending as 'an act of anger and punishment' directed at Mr Hill and S.[3] He considered that the forced entry and the 'relentless' knife attacks would have been 'an absolutely terrifying experience for those involved'.[4]

3 The applicant, having pleaded guilty to four charges, was sentenced as follows:

9 years and 6 months, with a non-parole period of 6 years

4 In seeking leave to appeal, the applicant disputed the judge's characterisation of the offending as 'purposeful and grievance-driven'. According to the submission, the true explanation for the applicant's conduct lay in the history of violence inflicted on her by Mr Hill during the marriage. Instead of aligning the case with those involving male-to-female violence following a relationship breakdown, it was said, the judge should have viewed the applicant's conduct as reflecting the 'very different psychological pathway' which results from protracted domestic violence.

5 For reasons which follow, that submission must be rejected. His Honour was quite correct to treat this as a case of violent offending against a former domestic partner following a relationship breakdown. As this Court has made clear, general deterrence is a very important consideration in sentencing for offences of this kind. That is true whether the perpetrator is male or female. There was no sentencing error and the sentences were moderate in the circumstances.

6 As defence counsel properly conceded on the plea, there was simply no evidence to establish a link between this offending and violence experienced by the applicant during the marriage. On the contrary, all of the evidence before the sentencing judge - including the expert evidence called by the defence - supported the conclusion his Honour reached. Tragically, what drove this very serious offending was the applicant's distress at having been 'abandoned' by Mr Hill and her anger towards S for 'taking' her husband.

7 The applicant was 54 years at the time of the offending and 55 years old at the time of sentence. She had no relevant prior convictions. She married Mr Hill in 1990. Their daughter (AD) lived in a house owned by the applicant's mother.

8 The couple had separated seven months before the offending occurred, when Mr Hill formed a relationship with S. After the separation, the applicant and Mr Hill exchanged numerous text messages regarding their relationship. The applicant regularly accused Mr Hill of infidelity and made disparaging comments about S. Mr Hill asked the applicant repeatedly to leave him and his partner alone.

9 During this period, the applicant was staying with AD. The applicant would occasionally threaten to kill Mr Hill and his partner, but AD did not take these threats seriously.

10 The applicant and Mr Hill owned a house together, which at the time of separation had $86,000 owing on the mortgage. In September 2017, a dispute arose between the applicant and Mr Hill over the making of mortgage payments.

11 On 18 October 2017, Mr Hill found that the regular mortgage payment had not been debited. He contacted the bank and reversed the applicant's changes to the payments and left her a message to let her know. At around 7:00 pm the applicant went to the home of S's father. She yelled from the front of the home. S's father came outside and saw the applicant standing at the bottom step, struggling to stand.

12 AD picked her up and took her to hospital for a voluntary mental health assessment. Whilst at the hospital the applicant left several abusive messages for S and Mr Hill. At around 11:00 pm the applicant was discharged from hospital and AD drove her home.

13 At around 1:00 am on 19 October 2017 the applicant became aggressive and threw things at her daughter, including an aerosol can and a lamp, which struck her head and caused her to bleed. AD was taken to hospital and the police were notified. Mr Hill and S picked AD up and brought her back to their residence. AD told S that the applicant had said she was going to kill S, then Mr Hill, and then herself.

14 On 19 October 2017, the applicant was charged with assault occasioning actual bodily harm. An Apprehended Domestic Violence Order was made against the applicant to protect her daughter.

15 At 6:00 pm the applicant called Mr Hill's next-door neighbour, sounding upset and angry. The neighbour said that he was 'staying out of it' and she replied, 'I have a bullet for each of them and one for you too' (Charge 1). He hung up and sent the applicant a text message telling her not to contact him again. He rang Mr Hill and told him what she had said.

16 At around the same time, the applicant set off to drive to the house where Mr Hill and S were living. The drive would take several hours. She had consumed a number of Valium tablets and was - as the judge found - in a state of 'self-inflicted intoxication'.[5] She took with her a metal pole and a knife.

17 When she arrived at Mr Hill's house at about 8:30 pm, she started banging on the kitchen window with the metal pole. All three in the house - Mr Hill, S and AD - believed the sounds were from gun shots and fell to the floor to take cover. The applicant smashed the window, tore the flywire with the knife and entered the premises. S saw the metal pole and, believing it was a shotgun barrel, screamed out: 'She's got a gun' (Charge 2).

18 The applicant ran directly towards S, held the metal pole to her chest and used her other hand to drive the knife into her upper ribcage, penetrating the lung. S rolled to her side and used her arms and hands to defend herself whilst the applicant continued to stab her. This caused injuries to her hand, fingers and right wrist. When S yelled, 'Stop, stop', the applicant replied, 'I will never stop' (Charge 3).

19 Mr Hill intervened, placing himself between the applicant and S. The applicant repeatedly swung the knife at him. She struck him to the jaw, stomach, chest and finger (Charge 4). He grabbed the applicant's arms and wrestled the knife away, begging her to stop. Mr Hill yelled for someone to go and get the neighbour. He said, 'You fucking killed me' and the applicant responded, 'Don't die on me'.

20 Their neighbour heard screaming and ran towards the house. When he arrived Mr Hill screamed, 'Please help me. I'm dying'. The neighbour tackled the applicant and restrained her.

21 The neighbour told AD to call 000 as he administered first aid to Mr Hill and S. The applicant was screaming abuse at Mr Hill including, 'Is your precious fucking [S] dying, is she?'

22 The police attended and an ambulance took S and Mr Hill to the hospital. They were discharged on 21 October 2017. Their injuries did not require surgical treatment; having had their wounds closed with sutures.

23 The applicant was arrested and interviewed by police on 20 October 2017. She told the police that she had knocked on the door and 'they didn't answer because they were all playing the happy family type of thing'. She said it was a blur. She essentially said that she could not remember what had happened but acknowledged that she had had the knife.

24 The principal ground of appeal contends that the sentencing judge erred in:

(a) failing to find, on the balance of probabilities, that the applicant had experienced protracted family violence; and

(b) finding, in effect, that the offending was purposeful and grievance-driven and therefore that hers was a 'very serious example' of aggravated burglary.

25 According to the written case, the evidence before the judge sufficiently established the fact of prior family violence by Mr Hill against the applicant. The history of family violence was said to be a relevant factor because

it bore on how the applicant came to offend; on her intention; on whether offending of the kind she engaged in could properly be described as prevalent; on the weight to be given to general deterrence, and on the weight to be given to mercy.

26 On the plea, counsel for the applicant (who did not appear in this Court) contended in his written outline that the offences were committed whilst the applicant was 'struggling with the breakup of a long, but abusive marriage'. In oral submissions, counsel acknowledged that the applicant had 'a high degree of anger and animosity' towards Mr Hill, which had been heightened by the dispute over the mortgage.

27 Counsel referred to the applicant's description of 'a long history of family violence perpetrated against her'. This, he submitted, was the explanation for her continuing to be 'extremely bitter and extremely angry' towards Mr Hill. The judge responded by saying that the documentation on which counsel was relying was 'totally self-serving'. His Honour asked whether counsel had any independent evidence, such as reports of hospital admissions. Counsel confirmed that he had no material of that kind.

DEFENCE COUNSEL: [B]ut if Your Honour thinks that I'm about to embark on a lengthy exposition of that history, I'm not, because this is not a - I say this plainly. This is not a case of battered woman's syndrome or something of that nature. The explanation that Dr Aaron Cunningham gives for the causation of this offence from a psychological perspective, Your Honour might think is closer to the mark.

HIS HONOUR: Yes.

DEFENCE COUNSEL: But what it does explain, in a broad sense, the context of the relationship, the complicated nature of her attachment to the relationship, and perhaps puts a deeper understanding on the traumatic impact on her of the separation of it. Because that's what Dr Cunningham says. He says that the loss of control, the complete disinhibition that occurred on 19 October is as a consequence of a traumatic response to the situation as it was then.

So that's what I say about it, Your Honour. It is a matter that looms large in the material. It is a matter that is important to personal history. In certain cases, I think I footnoted credit in the submissions. It might enliven the prerogative of mercy, but I acknowledge that - - -

HIS HONOUR: Well, I can't do that with no - - -

DEFENCE COUNSEL: I acknowledge that we haven't got the - - -

HIS HONOUR: You can't say that to me. I mean, I can't. With no evidence other than self-serving material, you can't say that to me.

DEFENCE COUNSEL: There is more than no evidence, Your Honour, but I accept there is not the sort of evidence that will be required.

HIS HONOUR: Well, there isn't any. I'm simply pointing out to you, it's self-serving. That's all I'm saying to you.

29 The references to Dr Cunningham were to a report prepared by Dr Aaron Cunningham, a forensic psychologist, for the applicant's solicitors. The report included the following history provided by the applicant:

Ms Hill stated that Paul was always violent and abused drugs and alcohol. She stated that he was controlling and possessive. She stated that he put her into intensive care on one occasion, but she did not report the incident due to being afraid of losing custody of [her daughter]. Paul ended the relationship in March 2017 and began a relationship with his ex-girlfriend. Ms Hill stated that she pled [sic] with Paul to continue the relationship.

In my opinion, Ms Hill presents with dependent personality traits and significant anxiety. In my opinion, Ms Hill was predisposed to the development of these personality traits by the instability in her childhood environment. She stated that she was sexually abused without receiving support or acknowledgment. She felt ashamed and embarrassed at her family and lacked a sense of emotional nurturance. She left the family home to live in Queensland with an ex-partner. She returned once the relationship ended then moved to live with Paul.

Ms Hill described Paul as abusive and domineering. However, it appears that she clung to the relationship and formed a dependence on Paul. She reacted in a traumatic manner to the sudden separation from Paul. Despite stating that she had been abused and controlled by Paul, she pled with him to continue the relationship. She could not cope with being alone and abandoned and her mental health deteriorated. Just prior to the offence, Ms Hill had had a falling out with her daughter resulting in [the daughter] staying with Paul. This presented as a second significant abandonment for Ms Hill. In my opinion, Ms Hill presents as a dependent individual who relies on others for a sense of stability and self. She experienced a psychological crisis in the absence of these connections to others. She abused Valium to attempt to cope with her symptoms. Her anger at being abandoned erupted following her conflict with [her daughter]. In my opinion, Ms Hill's abuse of Valium would have significantly aggravated her emotional response and the ability to inhibit her behaviour. She presents with limited remorse for her behaviour. She continues to perceive herself as a victim in the offending. In my opinion, this is a reflection of Ms Hill's personality dysfunction.

Ms Hill would likely continue to experience mental health problems and traits of dependence in the community. She struggles with being alone and would likely experience escalating symptoms of depression and anxiety. She continues to experience distress related to the end of her relationship. She continues to feel angry and abandoned by Paul.[6]

31 The submission on the plea was that Dr Cunningham's report provided the explanation for the offending. Counsel submitted that the applicant's 'personal history' was relevant to the judge's 'assessment of the impact of the breakdown of the relationship upon Ms Hill, her animosity towards Mr Hill.'

HIS HONOUR: See, when this occurs and a male attacks a female partner that's separated from, this is aggravating.

DEFENCE COUNSEL: Upon separation?

HIS HONOUR: Yes.

DEFENCE COUNSEL: Yes.

HIS HONOUR: It's an aggravating feature. So it's just a bit difficult when - and I'm not saying I'm finding there was no family violence. That's not what I'm doing at all. You understand that. And I certainly won't be sentencing today, that's for sure. But what did - - -

DEFENCE COUNSEL: Cunningham, Your Honour?

HIS HONOUR: Yes, sorry, where's his - I read it just as I was walking in, so I haven't really had a - the second last paragraph. Sorry, I'll just read that to myself again.

DEFENCE COUNSEL: Yes.

HIS HONOUR: Look, if she just - and I know, you know, you and I [indistinct] nothing in this sort of scenario, but if she'd just gone him, all this is understandable. But the going of [S] is what, in the male concept, if it was a male doing it, would be regarded as seriously aggravating. Why does she have to stab her repeatedly and say, 'I'm not going to stop'? That's your problem with it.

I am not going to buy into the family history leading up to all this. There has been a fair amount of material placed before me in terms of domestic violence. As I pointed out to your counsel, there is little objective evidence to support that but in these circumstances I am certainly not saying that it did not occur.

The fact of the matter is, though, that the circumstances were that you were clearly very angry and the things that you have said, the fact that you have made threats essentially to kill both your husband and [S] previously, indicates that, in my view, you went there to hurt them. I am not arguing with concepts about domestic violence. I do not know whether the people who have counselled you in regard to that have access to the hand-up brief or not but it seems fairly clear that the physical separation had been at this point in time of some six or seven months' duration and the offending has occurred in a situation of anger and I suspect very much punishment.[7]

34 After referring to the Cunningham report, his Honour continued:

Whilst all domestic violence plays a part in all this, it seems to me that it is an act of anger and punishment which has brought it all about or is certainly the most operative aspect of it coming about. In those circumstances, in my view, there is little to be said to actually mitigate it. I have already indicated I think it must have been an absolutely terrifying experience for those involved and it is just fortunate that you are not in a very different jurisdiction facing a very much more serious charge or charges.[8]

35 According to the appeal submission, his Honour here found that the applicant had behaved 'purposefully to carry out acts of anger and punishment'. In effect, it was said, this was a finding that the offending conduct was 'grievance-driven,' in the sense used in this Court's discussion of aggravated burglary in Hogarth.[9] The submission was that, given the expert evidence of the applicant's 'psychological crisis,' it was not open to make a finding of purposeful, grievance-driven conduct.

Protracted domestic violence causing or contributing to the development of pathological dependent personality traits and anxiety which, following the experience of abandonment, brings on psychological crisis is a very different psychological pathway towards violence offending from motivations of possession and control. The epidemic of male violence towards female victims justifying the elevation of general deterrence as a sentencing factor for 'intimate relationship/confrontational' aggravated burglaries can hardly have the same effect when sentencing a woman whose offending occurred against the background of domestic violence perpetrated against her.

Moreover, the applicant's psychological crisis was a reaction not just to [her husband's] departure, but to his continued interaction with her following the conclusion of their relationship.

Violence by women toward former partners and their new partners is not prevalent. It might be said to be uncommon or even rare. Women who offend for reasons other than those which make this offending prevalent among males ought not bear the increased weight accorded to general deterrence. The explanation for why an otherwise loving and caring woman who attained the age of 54 with no relevant prior convictions should behave in a manner so out of character lay in her psychological state. Her psychological state was informed by her experience as the child of a drunken father; as the victim of sexual abuse by a male neighbour; and as the victim of domestic violence by her husband. Her offending was a function of her dependence rather than an assertion of possession and control.

The finding, by the sentencing judge, that the offending was for the purpose of anger and punishment was not open in all the circumstances. This characterisation of the offending led to an over-estimate of its gravity and treatment in a manner consistent with graver offending.[10]

37 As will be apparent from the extracts we have set out, the appeal submission on the applicant's behalf was powerfully expressed and clearly articulated. In the present context, the reference to 'an epidemic of male violence towards female victims' draws attention to the decisions of this Court in Filiz v The Queen[11] and Director of Public Prosecutions v Meyers.[12] In each of those cases, a male offender had committed violent offences, including aggravated burglary, against a former partner following a relationship breakdown. On both occasions, this Court emphasised that such offending would be severely dealt with. For example, in Filiz, the Court said:

Senior counsel for the applicant rightly conceded that general deterrence is a significant sentencing factor in this case, not only in relation to aggravated burglary generally, but most particularly in relation to violent offending against a former domestic partner.[13] ... Offending of this nature is too often perpetrated by men whose response to the breakdown of a relationship is one of possessive, violent rage. It goes without saying that such a response, to what is a common human situation, is utterly unacceptable. This Court has made it clear that such offending will attract serious consequences ...[14]

38 In the present case, the offending was perpetrated by a female against her former male partner (and his new partner). But, in our respectful view, the judge was quite correct to view it as falling into the same category of post-separation, anger-driven violence. The expert evidence of Dr Cunningham, on which defence counsel expressly relied, confirmed what was apparent from the uncontested facts: the applicant was hurt and angry at being 'abandoned' by Mr Hill. That was why she was distressed about his new relationship with S and why she had repeatedly expressed hostility towards S.

39 In our view, no other conclusion was reasonably open on the material before the Court but that it was that anger - directed both at Mr Hill and at S - which was the driving force behind this offending. This was well illustrated by the applicant's having said to S that she would 'never stop' stabbing her. It may be accepted that the applicant was not making 'an assertion of possession and control'. But that seems to us to be immaterial. What matters is that, seemingly unable to accept the fact of the separation, the applicant gave vent to her anger and distress by this appallingly violent invasion of Mr Hill's home.

40 The position would have been entirely different had there been any evidence before the sentencing judge that prior violence (or threats of violence) by Mr Hill towards the applicant had so affected her as to provide an explanation for the offending. 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.[15]

41 But that was not this case. As defence counsel properly conceded on the plea, there was no such evidence. There was no suggestion, for example, that the applicant had been driven to act in this way by things done to her during the marriage. On the contrary, all the evidence showed that what prompted this attack was the ending of the marriage and Mr Hill's commencement of a relationship with another woman.

42 It is, of course, well-established that a victim of domestic violence may be unable or unwilling to leave the family home and may wish the relationship to continue notwithstanding the risk of further violence. Whether that is so in a given case depends on the evidence. In this case, the applicant contended that the judge was in error in not accepting the fact of domestic violence. On that account we have already referred to the evidence before the judge. The plea submissions advanced on behalf of the applicant were decidedly ambivalent and recognised the inadequacy of the evidence. The judge's conclusions on the facts fairly reflect the quality of the evidence.

43 Importantly for present purposes, Dr Cunningham's report accepted the account given by the applicant of a history of abuse. Notwithstanding the acceptance of that history, however, Dr Cunningham's expert opinion did not support the submission now advanced that prior violence caused dependency that, in turn, led to the offending. In other words, the submission does not have a foothold in the evidence, even were we to accept that the judge ought to have found a history of serious domestic violence.

44 It is entirely understandable that the applicant was devastated by the marriage breakdown. The couple had been together for more than 25 years and had raised a daughter together. As Dr Cunningham said, the applicant's emotional trauma was exacerbated by her dependent personality.

45 What this Court sought to emphasise in Filiz[16] and Meyers,[17] however, was that there is no room for an aggrieved party, however distressed by a relationship breakdown, to take violent action against the former spouse/partner. That is true whether the aggrieved party is male or female. As the Court said in Meyers:

Those who might, in a mood of anger or frustration or bitterness, contemplate this kind of violent entry into the home of a former spouse or partner must realise that, if they do so, they will almost certainly spend a long time in prison.[18]

46 It follows, in our view, that ground 1 fails. The second ground - manifest excess - also rested substantially on the contention that the judge had mischaracterised the offending, about which we need say nothing further. Nor is there any substance to the contention that the judge failed to take proper account of the applicant's 'psychological crisis'. The decisions relied on in support of that contention - Suckling v The Queen and _Collier v The Queen - _ involved quite different circumstances and altogether different expert opinions.[19] Moreover, in each of those cases the offender was able to call in aid one or more of the sentencing considerations elucidated in R v Verdins.[20] No such submission was advanced in the present case.

47 It is not reasonably arguable, in our view, that the sentence imposed on the applicant for the aggravated burglary was outside the range. Since Hogarth, this Court has consistently emphasised the need for sentences for aggravated burglary offences of this kind to reflect both their objective seriousness and the need for general deterrence, appropriate regard being had to the very high maximum penalty of 25 years. For the reasons we have given, those considerations applied with full force in this case.

48 As defence counsel properly acknowledged in his written submission on the plea, this case exhibited a number of the aggravating features identified in Meyers: entry at night, with weapons, with intent to assault, and in the knowledge that the intended victims were inside.[21] His Honour was clearly correct to describe it as a 'very serious example' of aggravated burglary. In the circumstances, the sentence of 4 years' imprisonment was moderate, in our view. Ground 2 also fails.

[1] [2012] VSCA 302; (2012) 37 VR 658, 659 [1]; [2012] VSCA 302 (Maxwell P, Neave JA and Coghlan AJA) ('Hogarth').

[2] DPP v Bloom (a pseudonym) [2019] VCC 223, [22] ('Reasons').

[9] [2012] VSCA 302; (2012) 37 VR 658, 672 [54]; [2012] VSCA 302 (Maxwell P, Neave JA and Coghlan AJA). See also DPP v Meyers [2014] VSCA 314; (2014) 44 VR 486, 495 [37]; [2014] VSCA 314 (Maxwell P, Redlich and Osborn JJA).

[11] [2014] VSCA 212 ('Filiz').

[12] (2014) 44 VR 486; [2014] VSCA 314 ('Meyers').

[13] Felicite v The Queen [2011] VSCA 274; (2011) 37 VR 329, 333 [20] (Redlich JA); Pasinis v The Queen [2014] VSCA 97, [53] (Neave JA and Kyrou AJA).

[14] [2014] VSCA 212, [21] (Maxwell P and Redlich JA).

[15] See, eg, Sawyer-Thompson v The Queen [2018] VSCA 161, [11]-[14] (Maxwell ACJ and Tate JA); R v Bracken (Ruling No 12) [2014] VSC 351.

[16] [2014] VSCA 212.

[17] (2014) 44 VR 486; [2014] VSCA 314.

[18] Ibid 498 [46] (Maxwell P, Redlich and Osborn JJA).

[19] [2013] VSCA 278; [2018] VSCA 47.

[20] (2007) 16 VR 269; [2007] VSCA 102.

[21] [2014] VSCA 314; (2014) 44 VR 486, 498 [48]; [2014] VSCA 314 (Maxwell P, Redlich and Osborn JJA).