Prosecution v Accused

1 Rebecca Payne, on 15 March 2023 you were found guilty by a jury of the murder of your husband, Noel Payne, who died sometime between 1 and 2 September 2020. The maximum penalty for murder is life imprisonment. It now falls on me to sentence you.

2 My task is to determine the facts consistent with the jury's verdict, apply the principles of law concerning sentencing and determine in the exercise of my discretion what is a proportionate and appropriate sentence in the circumstances.

3 The verdict establishes that the jury found you murdered Mr Payne, who died from a drug overdose, or from suffocation. You caused his death by acts which were conscious, voluntary and deliberate and were done with the intention to kill Mr Payne or with the intention to cause him really serious injury. The verdict establishes those basic facts but there were facts before the Court which are relevant to the question of sentence and which are not necessarily established by the verdict. They include matters of premeditation, planning, opportunity, and aggravating and mitigating circumstances, including the family violence that you were subjected to.

4 As the judge presiding at your trial, I have had the opportunity to consider the evidence and form an opinion as to the credibility of witnesses and my own view of the facts.

5 You gave evidence in this case. By and large, there was no real dispute to the evidence given by other witnesses. Your credit is challenged by the prosecution. In reaching my conclusion as to the facts consistent with the jury's verdict, the matters which are adverse to your interests and which are not inherent in the verdict must be established beyond reasonable doubt.

6 On the other hand, if there are circumstances which I can consider in your favour, it is enough if those circumstances are proven on the balance of probabilities.[1]

Circumstances of the offence, nature and gravity of offending

7 I first need to set out the circumstances of the offending. You were born on 21 June 1979 and were 41 at the time of the offending. Mr Payne was born on 5 April 1952 and was aged 68 at the time of his death.

8 You were married in South Australia on 17 July 2006. You had two children together born in 2006 and 2007. Your son, Brock, from a previous relationship, also lived in the family home for a time.

9 You and Mr Payne moved to Walpeup in December 2007. Walpeup is a small remote rural town situated in far west Victoria. You were living at Walpeup in the family home at the time of these events.

10 For reasons I will go into detail later, you and Mr Payne experienced marital problems over the years. The principal issue underpinning the marital problems and the two occasions you left the family home was the family violence inflicted on you by Mr Payne.

11 During one of the periods of separation, [redacted] moved in with Mr Payne. [redacted]'s name was previously [redacted], but she changed it to [redacted] after she moved in. [Redacted] continued to live at the Walpeup home after you and Mr Payne reconciled and was still living there at the time of Mr Payne's death. [Redacted] is now 35 years old. She has a cognitive impairment, that is, an intellectual disability and an acquired brain injury.

12 You were prescribed temazepam by your doctor and nurse practitioner for insomnia. Evidence of prescriptions dated 6 May, 25 May, 8 July, 15 July and 21 August 2020 was before the Court at trial.[2]

13 On 29 August 2020, you contacted Brooklyn Treloar, Brock's school friend, by text message and asked her for the recipe for lemon biscuits you had previously eaten at Ms Treloar's house. You made a batch of biscuits in the afternoon of 30 August 2020.

14 On 1 September 2020, you made a second batch of biscuits. You crushed up some of your temazepam tablets using a mortar and pestle and put them into the icing of a biscuit. You set the biscuit aside to give to Mr Payne. Mr Payne was last seen alive outside the family home in the carport at approximately 1:30pm on Tuesday 1 September 2020.

15 During the evening of 1 September 2020, you gave Mr Payne a biscuit which contained at least seven temazepam tablets.

16 After he became unconscious, you wrapped his body in a blanket, knotted the ends and sealed them with duct tape. I accept that it was your belief that Mr Payne was dead when you wrapped him in the blanket.

17 You then moved his body outside and placed it into a chest freezer which was on the back veranda. The freezer was not operating. You sealed the freezer door with two tie down straps and moved the freezer using a trolley to the back end of the backyard.

18 During the day on 2 September 2020, you left the family home with [redacted] and your two children. You visited friends and went shopping in Mildura.

19 You told lies about Mr Payne's whereabouts, actions and movements to a number of people and you fabricated a text message supposedly from Mr Payne to you and showed this message to a number of people. You deliberately attempted to conceal the true circumstances of Mr Payne's disappearance.

20 On the morning of 4 September 2020, you called your neighbour and said that your freezer had broken down and was full of rotten meat. You asked your neighbour if you could leave it in their backyard and said that someone would be coming to collect it. That same day, your neighbour's son became suspicious, opened the freezer, and discovered Mr Payne's body.

21 You were arrested on 4 September 2020 for the murder of Mr Payne.

22 As I have discussed, by its verdict, the jury was satisfied, beyond reasonable doubt, that when you gave Mr Payne the biscuit laced with temazepam, you intended to kill him or at least cause him really serious injury.

23 In this case it is not necessary to make a finding about whether you intended to kill Mr Payne or intended to cause him really serious injury, as moral culpability is determined with reference to the conduct and nature of the killing, rather than intent.[3]

24 You prepared the biscuit with the temazepam contained in it at some time on 1 September 2020 and I accept that you gave Mr Payne the biscuit in the evening. As Mr Payne's wife you were in a position of trust, and Mr Payne had no reason to suspect there was anything untoward with the biscuit.

25 The prosecution urged me to find that the administration of the temazepam was planned and that what you did required determination and a significant amount of thought and planning. The prosecution submits that your acts were planned in advance and that you went to the doctor and nurse practitioner to get scripts to build a stockpile you could use. It is true that you used the temazepam prescribed for you to kill Mr Payne. However, there is no evidence that you were stockpiling the medication. Your acts are not demonstrative of any careful planning. It was not a sophisticated plan and you used a substance that was not intrinsically lethal. Even though you asked for the biscuit recipe the day before, I'm not satisfied that you necessarily had a plan in place by this stage. I accept that most likely your plan was formed on the day you crushed the tablets and put them into the biscuit. You gave Mr Payne the biscuit with two of your children and [redacted] in the house. Your concealment of Mr Payne's body had all the hallmarks of someone in a disorganised and panicked state of mind. You placed Mr Payne's body in a disused freezer in your backyard, moved it to your neighbour's backyard and made inconsistent statements to people in the days after, about what had happened. It does not follow from the evidence that the administration of the temazepam must have been premeditated to any great extent.

26 When asked to explain your actions on the day in question, you maintained that you wanted some time out - a short period - where Mr Payne would be sedated. The jury verdict necessarily reflects a finding that, at the time you gave Mr Payne the biscuit you intended to kill him or cause him really serious injury. It involves no necessary finding as to your state of mind before that time. Given the profound impact of the family violence and living under the added restrictions of COVID-19, I am not satisfied that the offence involved any real degree of premeditation or significant planning.

27 I will now turn to the victim impact statements. I have received and considered four victim impact statements.

28 These were from Tracy Payne, Mr Payne's daughter; Joy Hann, Mr Payne's sister in-law; Margaret Hann, Mr Payne's niece; and [redacted] who lived in the family home from 2012. They are moving documents. The victim impact statements of the family talk about the impact Mr Payne's death has had on their lives. They all speak one way or another, of the heartbreak of the family as a result of your actions, and the life changing effect Mr Payne's death has had on them. Joy Hann spoke of feeling deceived by you and that she now has difficulty sleeping. Margaret Hann talks about the ongoing pain you have caused her and that she has lost confidence in people and finds it difficult to remain positive. Tracy Payne continues to have nightmares and sleepless nights. She talks about losing not only a father but her 'best mate'.

29 [Redacted]'s victim impact statement is disturbing on many levels. It provides a snapshot of her life in a dysfunctional and dangerous home marred by family violence perpetrated by Mr Payne and the impact of the family violence on her at the time and subsequently. In the context of the victim impact statement, it reflects the fear and distress she experienced because of your conduct.

30 I will now turn to your moral culpability - that is your personal subjective responsibility - for Mr Payne's murder. The presence of family violence is very significant and intrinsically intertwined with your offending and moral culpability. The issue of family violence informs and underpins your moral culpability.

31 This was not a case of self-defence and you have never suggested that what you did was in self-defence. You did not give evidence that you believed your conduct was necessary and reasonable in the circumstances as you perceived them.[4]

32 The prosecution submits that Mr Payne's behaviour towards you is relevant to your moral culpability and his behaviour over the course of your relationship 'goes some way towards ameliorating the aggravating factor of a breach of trust'.[5] However, the prosecution also submits that these considerations can only go so far given the lack of any legal justification for killing Mr Payne and given the sanctity of each and every human life.[6] Further, the prosecution submits that you had the option to leave and that your conduct, including putting Mr Payne's body in the freezer, reflects your determination to kill him.

33 You were living in intolerable and inescapable circumstances. I reject the prosecution's submission that you had options and could have left. You did not feel under threat of death from Mr Payne at the time you killed him. However, given his controlling and coercive behaviours, the existing court orders stopping you from taking the children, your limited financial means, and the fact you were residing in a remote and isolated part of Victoria during COVID-19 lockdowns, you had no realistic option to leave. This does not provide a legal excuse for murdering Mr Payne. However, it provides a necessary explanation as to why your moral culpability is at the lower end.

34 The prosecution submits that the Court should treat with caution your evidence about the history of family violence and abuse in your relationship with Mr Payne. It is conceded by the prosecution that there is support for some of your assertions, from [redacted], Brock Payne, legal documents and to an extent some of the people who knew you and Mr Payne and who lived in Walpeup.[7]

35 Before discussing your relationship with Mr Payne, it is relevant to set out your personal history and early experiences of family violence perpetrated by your father.

36 You were born in Auburn, New South Wales and have one younger brother.

37 You had a difficult childhood and upbringing and witnessed family violence inflicted by your father on your mother. Your father also inflicted family violence on you. You told Dr Andrew Carroll, psychiatrist, who assessed you on 25 November 2022, that your father was in and out of gaol and you describe being scared of him when you were a child.

38 You finished school at the end of year 10 when you had your first child, Jayden. You were 16 years old at the time. Understandably, you found it hard to raise a baby at such a young age and without the support of the child's father.

39 In January 2000 at 20 years of age, you had your second child, James. When both children were young, your mother took over care and responsibilities for them.

40 You subsequently had a long-term relationship prior to your marriage to Mr Payne. You had two children in this prior relationship: the first in May 2002; and the second in August 2003. This relationship had its difficulties. Your partner's mother appears to have cared for these children and eventually retained long term custody of the eldest and you took over custody of the younger, Brock, who lived with you and Mr Payne.

41 You met Mr Payne in 2005 in South Australia and you were married on 17 July 2006. He was 27 years older than you. You gave birth to two further children; a son in 2006 and another son in 2007. You, Mr Payne and the three children moved to Walpeup in December 2007. Noel junior, Mr Payne's son from a previous relationship, also lived with you.

42 In late-December 2007, you took an overdose in a suicide attempt. You separated from Mr Payne in early January 2008 and obtained an intervention order. You gave evidence at trial that you were 'verbally, physically and sexually abused' during that month.[8] Mr Payne would physically assault you and spit on you.[9] Mr Payne sexually abused you, including anally when you were menstruating.[10]

43 In September 2008, orders were made by consent in the Magistrates' Court of Victoria granting you and Mr Payne equal shared parental responsibility of your two shared children and your son Brock.[11] The three children were to live with Mr Payne. You were unrepresented at Court when these orders were made.[12] You eventually reconciled with Mr Payne and returned to the family home in Walpeup.

44 In January 2012, you left Mr Payne and took the three children with you. You obtained an intervention order against him; however, you were forced to return the children to Mr Payne because of existing court orders. During this second period of separation, [redacted] moved into the family home with Mr Payne.

45 You returned to the family home in Walpeup in October 2012.

46 In June 2017, your eldest son, Jayden, was murdered. Mr Payne did not allow you to attend Jayden's funeral.[13]

47 The evidence before the Court about the extent and nature of the family violence comes from different sources. I heard your oral evidence in court.[14] Additionally, oral evidence from [redacted],[15] Brock Payne[16] and people who lived in Walpeup and knew you and Mr Payne.[17] I have had regard to documents tendered.[18] Importantly, I have seen photographs and videos taken by Mr Payne of you and [redacted] exhibited in your trial.[19]

48 It is true that the jury did not accept all of your evidence and concluded that you were not truthful in some matters. I have assessed your evidence in relation to the family violence bearing in mind the jury found you to be untruthful in some matters. Having heard your evidence and considering the corroborating evidence,[20] I consider you were truthful in your account of the ongoing, extreme and prolonged physical, sexual and emotional abuse and coercive control that you were subjected to over many years by Mr Payne.

49 You gave evidence that Mr Payne first became violent towards you approximately three years into your relationship with him.[21] The abuse began before you moved to Walpeup.[22]

50 You were subjected to physical violence during the marriage including being pushed, shoved, punched, spat on, and choked when you refused to have sex. You were subjected to degrading verbal abuse most days.[23] You were subjected to sexually coercive behaviour of various kinds, such as being forced to engage in sexual activity with [redacted] while Mr Payne filmed it[24] and being repeatedly raped by Mr Payne when you declined his requests for sex.[25] You explained in your evidence, that Mr Payne would do this 'really whenever he felt like it because if I said no, he'd just take it and do it anyway'.[26] For example, you gave evidence that there were 'times when the kids would be in their room and he'd want sex and I'd say, "no", so he'd just push me down and rape me, and then as soon as he heard ... the boys coming down, he would stop'.[27]

51 Mr Payne exerted a high level of control over the minutia of your day-to-day life. You were not allowed to speak to any of your family or friends.[28] You were not allowed to shower alone, go for a walk or even check the mail by yourself.[29] Mr Payne exerted his power over your body such as wanting you to be a certain weight and taking photos of you to track your weight.[30] He would not allow you to go out on your own and required you to repeat housework if there was any aspect that was not done to his satisfaction.[31] You had to 'cut, file, shape and moisturise his feet and get the dead skin off his feet and lay his clothes out'.[32] Your mobile phone was in Mr Payne's name so that he could control the billing and monitor your communications.[33] Mr Payne had control of the household finances. He accompanied you to doctors' appointments and would wait in the waiting room and then interrogate you immediately afterwards.[34] He did not allow you to have any ongoing contact with your parents or broader family and, as I have said, did not allow you to attend your son's funeral.

52 After a second period of separation from Mr Payne, in 2012, you lived in a women's shelter for about four months.[35] When you returned to the home, [redacted] had moved in.[36]

53 About a month or so after you returned, you and Mr Payne had an argument in relation to his control over the finances.[37] Mr Payne took you to a gravel road, near the cemetery. He dragged you out of the car by your hair. He kicked you in the ribs while you were on the ground and spat on you. When you returned to the house you were too scared to go inside, so you stayed outside until Mr Payne went to sleep.[38] [redacted] gave evidence that on that day she saw dirt on your arms, and on your clothing.[39]

54 You have Mr Payne's name tattooed on your body 18 times, including across your neck, in between your legs, across your tailbone, bottom, hip, pelvis, shoulder blades and four times across both breasts.[40] Your evidence was that Mr Payne 'wanted his name tattooed all over [your] body because who would want someone who had someone else's name tattooed all over [them]'.[41]

55 Before [redacted] moved into the home, she had no tattoos. [redacted] now has Mr Payne's name five times on her body, in 'places you can only see if [she is] naked'.[42] [Redacted] has Mr Payne's name tattooed underneath her breast and on her right thigh.[43] [Redacted] said in her victim impact statement that Mr Payne 'made [her] get these because he wouldn't let [her] find someone else'. In describing the impact of this, [redacted] told the Court, they 'can't be removed they are very dark and thick writing - he wanted to keep me all for himself'.[44]

56 Mr Payne would take sexual images of you at least four or five times a week.[45] Mr Payne would often force you and [redacted] to stand together naked, in various degrading positions while he took photos and videos.[46]

57 Mr Payne would also make you and [redacted] dress up in costumes, lingerie or identical dresses, for the purpose of taking sexual photos of you both.[47]

58 The Court was shown only a limited number of the images and photographs of you and [redacted] found on Mr Payne's phone. The photos and videos shown during the trial depicting the sexual abuse of you and [redacted] were so depraved and distressing that it is difficult to capture the horror of such abuse with words.

59 Brock gave evidence about Mr Payne's family violence. He stated that he witnessed Mr Payne physically push [redacted] onto the ground, kick her, call her a 'filthy slut' and smash her phone.[48]

60 Brock's evidence also corroborated the physical and verbal abuse you endured. Brock gave evidence that 'Mr Payne would just abuse [you] over the most petty sort of things'.[49] Brock described an incident where he saw you sitting on your bed in your 'night-time clothes' with a 'blood nose, and some blood coming out of your mouth'.[50] He said he did not say anything because if he did say something he 'would have been next'.[51] Brock gave evidence that he had been physically assaulted by Mr Payne 'a couple of times'.[52] Brock further stated that he saw you bleeding approximately three times.[53] Brock recounted a time where you were sitting on the front veranda, bleeding, and another occasion where Mr Payne took you away in the car and did things to you and when you returned, Brock observed that you were bleeding.[54] Mr Payne did not permit you to have contact with Brock after he left Walpeup.

61 The level of coercive control perpetrated by Mr Payne towards you was also observed by neighbours and others in your community in Walpeup. For example, Alison Thorne gave evidence that she formed a belief that Mr Payne was controlling of you.[55] Leanne Bullock gave evidence that Mr Payne would not allow you to shower alone; that he would always come in and sit down.[56]

62 Rodney Bullock gave evidence of an incident where Mr Payne inexplicably lost his temper at him. He said that Mr Payne had become 'a very nasty person'.[57] Mr Bullock described a tense atmosphere in the home you shared with Mr Payne, stating that 'it was like walking on eggshells' and that he and his wife 'just stopped' visiting.[58]

63 The nature and severity of the emotional and physical abuse inflicted on you by Mr Payne was graphically shown in the videos and photographs tendered into evidence.[59] I reject the prosecution's submission that the videos and photographs of you do not reflect abuse by Mr Payne on you. The abuse was insidious. The videos depict you engaging in demeaning and cruel acts and I accept your evidence that you were not a willing participant. He made you perform sexual acts, including having sex with him and recording the acts on video. I accept that these were done without your consent. You were trapped in an abusive, violent and cruel environment for over a decade. In addition to your own circumstance of family violence, you were also subjected to witnessing family violence perpetrated by Mr Payne on your children and [redacted].

64 Mr Payne's abhorrent behaviour is highly relevant to your moral culpability. In Hill v R, the Court of Appeal acknowledged that:[60]

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.[61]

65 The jury did not accept your explanation that you 'just wanted a break' and thought that giving Mr Payne the biscuit would merely give you a reprieve from the verbal and physical abuse for that night. Nonetheless, on the evidence, I consider that your conduct and regrettable decision to kill Mr Payne cannot be disentangled from your circumstances and the family violence you endured at his hands.

66 Your evidence of family violence provides the context necessary to understand your perceptions, experiences and choices.

67 While I accept that your actions were in the context of considerable emotional, sexual and physical abuse and you were entitled to be distressed, overwhelmed or even angry, you were not entitled to deliberately kill Mr Payne by administering the temazepam in a biscuit to him. You had no legally justifiable reason to kill Mr Payne.

68 I have had regard to a written report by Dr Carroll, psychiatrist, dated 1 December 2022. Dr Carroll described the family violence you were subjected to as 'intolerable and inescapable'.[62] I accept Dr Carroll's description of the extent of the family violence. Dr Carroll further considered that at the time of the offending you were suffering with a persistent depressive disorder (with anxious distress) known as dysthymia and that you developed post-traumatic stress disorder after your remand. Dr Carroll considered your mental health provides limited understanding of your conduct. He could find nothing to suggest that your dysthymia is a necessary element of any explanation of your conduct.[63]

69 Your counsel submits that your dysfunctional upbringing, which was tainted by violence enlivens the Bugmy principle.[64] Your counsel submits that the effects and dysfunction and trauma you experienced during your developmental years act to reduce your moral culpability in the offending.

70 The prosecution submits that the asserted connection between your upbringing and offending is not clear. Dr Carroll said the following:

[Rebecca Payne] reports a developmental history that is notable for very significant levels of emotional and physical abuse: she witnessed domestic violence inflicted by her father on her mother and spent her childhood living in fear of her father and anxious for her mother's wellbeing. Sadly, as is common in persons who have experienced such developmental trauma, this appears to have established the template for her subsequent intimate relationships with men.

Arising from her developmental adversities, she appears to have suffered with low self-esteem and had a weakened sense of personal agency and autonomy from childhood onwards.

She fell pregnant at an early age. By her mid-20s she had four children and was involved in a turbulent relationship with Christopher who was emotionally, although not physically, abusive to her. She became involved in some property crime and was struggling with bringing up her young children in stressful circumstances. It was in that context that she was initially drawn to Noel Payne who was over 20 years older and appeared to offer something of a way out from her problems.[65]

71 The impact of disadvantage is complex and not easily measured. While this is not a case where there is a direct causal relationship between your disadvantage and the offending, the High Court has recognised that serious childhood deprivation is likely to make an offender less morally culpable than an offender whose formative years were not damaged in that way. As Dawson J said in Postiglione v the Queen: 'Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them.'[66] To what extent social disadvantage warrants a reduction in moral culpability in a particular case falls to be assessed by reference to the nature and circumstances of the offence, the nature and severity of the disadvantage suffered and whether the effects of disadvantage could be seen to be in any way explanatory of the offending.[67]

72 I consider that your exposure to family violence from a very young age and the circumstances of your offending make you less morally culpable than an offender whose formative years were not marred in that way. Your traumatic childhood experiences contributed to your entrapment in an abusive relationship with Mr Payne and most likely impacted upon your consequential decision-making.

73 You are a person of good character and this was reflected by the evidence of your neighbours and friends. Your character references depict your character and echo sentiments of your leadership role, nurturing and support.

74 The standard sentence for murder is 25 years imprisonment.[68] The standard sentence is intended to represent the sentence for an offence 'in the middle range of seriousness', considering only the objective features of the offence. The standard offence, like the maximum penalty, is one factor I must take into account.[69] The seriousness of the offence must still be assessed in the conventional way, by considering both the objective gravity and moral culpability.[70] The judge's obligation to assess the seriousness of the subject offence, remains a necessary part of the process of instinctive synthesis and it is not constrained by the legislative definition of 'objective factors.'[71]

75 Particularly relevant to this case is McHugh J's explanation of the instinctive synthesis in Markarian v the Queen:[72]

Critics of the instinctive synthesis method place too much emphasis on the "instinct" and too little on the "synthesis". The use of the word "synthesis" in the context of sentencing identifies the very last part of the process. It recognises that, where a variety of considerations, often tending in opposing directions, operate in the context of a statutory maximum, there must finally be a quantification of the sentence to be imposed. There must be a synthesising of the relevant factors. In that process, greater and lesser weight will be allocated to some factors depending on their relevance to the person convicted and his or her crime. Ultimately, community and legal values are translated into a number of years, months and days. That process must involve an instinctive judgment...

76 I have had regard to the standard sentence for murder as one of the matters to be considered in arriving at the appropriate sentence for you by the process of instinctive synthesis. In doing so, I have applied the law as explained in the Court of Appeal decision of Brown v The Queen.[73] I am required to have regard to the nature and gravity of the offence and degree of responsibility for the offence.[74]

77 Your counsel provided a table of murder sentences, imposed in cases where the standard sentencing regime applied. Your counsel submits that these cases are of little assistance in that none of them have the unique features of your case and as such are not comparable cases.[75] Having reviewed the cases in the table, I found the decisions of limited assistance.

78 For the purpose of the standard sentence scheme the Court must consider where the offending sits on the spectrum of sentencing for murder.

79 Your case is unique in that it has occurred in the context of you being a victim of family violence at the hands of the person you killed but not in the context of self-defence which provides a legal excuse for the killing. The medical evidence suggests that Mr Payne was unlikely to have suffered a protracted death nor did it involve the infliction of violent force, and so to some degree, limits the extent to which your mode of killing aggravates your offending. You did not have a conniving motive to kill Mr Payne. I have spoken in detail about the impact and role that family violence has played in your offending. I cannot overstate this feature of your circumstances and offending.

80 Ultimately, I consider the objective seriousness of your offending falls within the lower range of objective seriousness for murder, and given the unusual circumstances, it is unhelpful to attempt further classification.

81 You have a limited criminal history which has no relevance to this case.

82 I regard your prospects of rehabilitation to be excellent. You have participated in numerous educational programs since your incarceration. I have considered the many certificates provided to me at the plea hearing. You have voluntarily undergone counselling with the Specialist Trauma Service of WestCASA and completed The Living Free From Violence program. You have made significant inroads in your recovery and healing as a victim of family violence. You were isolated and alone at the time of the offence. You now have the extraordinary support of the organisations I have just mentioned. This augers extremely well for your prospects of rehabilitation.

83 In mitigation of your sentence, your counsel relied on the fact that you pleaded not guilty to murder but guilty to manslaughter in the presence of the jury, showing acceptance of responsibility for causing Mr Payne's death. I accept this is relevant to sentencing.

84 I have had regard to the letter you have provided to the Court. In that letter you recount that during your incarceration you have spent countless hours and sleepless nights reflecting on the gravity of your actions and the irreparable damage you have caused Mr Payne's children to suffer. You also stated that during your time in custody you have worked hard to ensure you leave a better person than when you arrived, undergoing significant counselling and completing several programs to eliminate the risk of re-offending. You conclude by stating:

I cannot begin to express how deeply remorseful I am for the pain I have caused, I can only give an assurance that I will spend the rest of my days trying to make amends.

85 I accept that you are remorseful for your offending. You have said consistently that you continue to love Mr Payne. As such, you are burdened with the knowledge that because of your conduct, your young children as well as Mr Payne's other children are now fatherless. Furthermore, as a result of your conduct you now face the prospect of being away from your children during their adolescence and early adulthood. You have likewise deprived your adult children of your presence in their lives. I acknowledge that this extra-curial punishment will weigh heavily on you as a mother who clearly loves her children.

86 You were remanded on 4 September 2020 during the pandemic. Your experience of custody has been affected by COVID-19. Visits have been limited, the availability of programs has been restricted and there have been occasional lockdowns within the prison to contain the spread of the virus. Even though restrictions in the community are no longer, conditions of incarceration remain more restrictive and difficult because of efforts with the custodial setting to contain the virus.

87 In Surtees v The King,[76] the Court of Appeal stated that the period in custody is likely to continue to be 'significantly more punitive than its numerical equivalent before the onset of the current pandemic'.[77]

88 I have read the letter your son, James, provided to the Court. James has relocated from Western Australia and assumed responsibility for his younger brothers, now aged 16, and 15, respectively. One of the reasons you were unable to leave the violent relationship with Mr Payne was because you could not take your children with you. It is a sad irony that your incarceration means that that situation is now realised. I accept that this, alongside your justifiable concerns about the wellbeing of your children, makes the burden of imprisonment greater for you.

General deterrence, specific deterrence and denunciation

89 For an offence of this nature, general deterrence and denunciation play important roles in the sentencing exercise. However, the prosecution accepts that Mr Payne's behaviour towards you is relevant to your moral culpability. In this way, I consider that denunciation is less likely to be a relevant sentencing objective.

90 The prosecution also accepts that specific deterrence should be given little weight in this case. I do not consider specific deterrence plays any real role in this case. Equally, the prosecution conceded that you do not pose an ongoing risk to the community, such that the protection of the community is of any particular moment in sentencing you.

91 Similarly, as far as general deterrence is to be considered, I do not consider this is a case in which general deterrence has a substantial part to play in light of the effect of the family violence at the time of your offending.

92 I regard this as an unusual case and the sentence I will impose needs to reflect the circumstances. This is a case that calls out loudly for the exercise of the discretion of mercy, to reflect the underlying sense of humanity which guides proper sentencing. I think that an element of mercy is due to you because of the circumstances in which you offended.

93 I consider the discretion of mercy an important factor in your case. The Court of Appeal has recently emphasised the importance of the role played by mercy in DPP v Snow.[78] The Court of Appeal stated:

The existence of this discretion has been criticised, on the ground that its exercise is idiosyncratic and unpredictable. In our view, this criticism is unjustified. What is of vital importance about the discretion of mercy, in our view, is that its exercise is an expression or embodiment of the essential humanity of the sentencing process. It is a reminder that, in passing sentence on an offender, the judge is making a moral judgment on behalf of the community, within the framework of legal principle, as to the appropriate sentence for the individual offender, based on the judge's assessment of the particular circumstances of the offending and of the offender's own particular circumstances. Viewed in this way, the exercise of mercy is not qualitatively different from the other elements of the sentencing process, in which the judge has to evaluate and weigh up a whole range of considerations and where, as sentencing law accepts, reasonable minds can differ on the ultimate conclusion.[79]

94 You were subjected to repeated acts of abuse, violence and humiliation at the hands of your husband. The fact that you murdered Mr Payne rather than flee can only be understood through the lens of the sustained family violence you had experienced. This was not an ordinary example of murder. This was not a dispassionate execution by a practised killer.

95 Having weighed all the circumstances of this case, I consider that you are entitled to be afforded a very significant level of mercy consistent with the gravity and severity of your offending.

96 I think your prospects of rehabilitation are excellent and that you are genuinely remorseful. Your claim for mercy is compelling. In the exceptional circumstances of your case, I propose to fix a lower head sentence. I have given full weight to the serious damage suffered by Mr Payne's family, as exemplified in the family victim impact statements.

97 Sentencing you is a difficult task. Notwithstanding the strong mitigating factors, it remains the fact that your actions resulted in the death of a person.

98 I have had regard to s 5(3) of the Sentencing Act 1991 (Vic) ('Sentencing Act') which says 'a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed'. I have considered this section together with the common law principle of parsimony when arriving at an appropriate sentence.

100 Balancing all the factors as best I can, for the murder of Noel Payne you are sentenced to a term of 16 years. I fix a non-parole period of 10 years, which, as required, is more than 60% of the head sentence.[80]

101 Under s 18 of the Sentencing Act, I declare 1000 days up to and including yesterday, 31 May 2023, pre-sentence detention as time already served under this sentence and I direct that this be noted in the records of the Court.

102 I have also made the forfeiture and disposal orders as sought by the prosecution.

[1] R v Cheung [2001] HCA 67; (2002) 76 ALJR 133.

[3] R v Walters [2012] VSC 608, [7], [9].

[4] Crimes Act 1958 (Vic) ss 322K, 322M ('Crimes Act').

[5] Prosecution written closing submissions dated 15 May 2023, [10].

[13] Defence written submissions on plea, dated 9 May 2023, [18].

[16] Trial Transcript T364-367; T371-380.

[17] In particular, Brooklyn Treloar (T164; T172); Dawn Walsh (T219-220); Leanne Bullock (T258-260); Rodney Bullock (T304; T313; T315-316; T318; T321-322); and Janice Winkler (T143-146; T153-154).

[20] Including the evidence of the nature of the relationship from [redacted], Brock Payne and neighbours, Rodney and Leanne Bullock.

[23] Ibid, T321.9-10; 371.15-27; 372.8-374.14; 682.23-27.

[60] Hill v R [2020] VSCA 220, [40].

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

[62] Report of Dr Carroll dated 1 December 2022, [228].

[64] Bugmy v The Queen [2013] HCA 37; (2013) 302 ALR 192; Defence written submissions on plea dated 9 May 2023, [40]-[42].

[65] Report of Dr Carroll, 1 December 2022, [210]-[212].

[66] [1997] HCA 26; (1997) 189 CLR 295, 301.

[67] Sabbatucci (2021) 98 MVR 256, 259 (Maxwell P and Emerton JA); [2021] VSCA 340.

[68] Crimes Act, s 3(2)(b). Pursuant to ss 3 & 5(2G) of the Sentencing Act, murder is also a Category 1 offence and the Court must impose a term of punishment.

[69] Sentencing Act, s 5(2)(b).

[70] Brown v The Queen [2019] VSCA 286; (2019) 59 VR 462, 479 [55].

[73] [2019] VSCA 286; Sentencing Act, ss 5(2)(a), (ab).

[74] Sentencing Act, ss 5(2)(c), (d).

[75] Plea Hearing Transcript T14.12-22.

[76] [2022] VSCA 42.

[78] [2020] VSCA 67.

[80] Sentencing Act, s 11A(4)(c). However, had a higher sentence been appropriate or had Sentencing Act s 11A(4)(b) applied, I would have considered that the interests of justice demanded a lower non-parole period be imposed given the factors in play in this case. Those factors include the context of family violence, the lesser weight to be accorded to specific deterrence and community protection, Ms Payne's prospects of rehabilitation her otherwise good character: see, eg_, R v McStay_ [2022] VSC 268, [119].