defendant. Sentence of imprisonment for 14 years with a lower than normal non-parole period fixed at 9 years; declaration that 497 days be reckoned as time already served (Coldrey J at [161], [164]).
Key principles
Where a jury convicts an accused of murder on the basis that, at the time of inflicting the fatal wound, the accused intended to cause 'really serious bodily injury' rather than...
In sentencing for murder the judge must balance the gravity of the offence, the sanctity of human life and the need for general and specific deterrence against the individual...
Provocation or confrontation initiated by the deceased, absence of premeditation, defensive purpose in obtaining a weapon, limited impairment of judgment from voluntary cannabis...
Issues before the court
Whether the jury's finding that the accused intended to cause really serious bodily injury (as distinct from an intention to kill) is consistent...
What sentence is appropriate for a murder committed without premeditation, arising from a brief confrontation initiated by the deceased, where the...
What weight should be given to voluntary intoxication (cannabis) and to expressions of remorse that are qualified by partial denial of...
Plain English Summary
Coldrey J sentenced Farren Badenoch to 14 years' imprisonment with a nine-year non-parole period for the murder of his sister. The judge accepted the jury's finding that Badenoch intended to cause really serious bodily injury rather than to kill, and, after weighing substantial mitigating factors including that the deceased initiated the confrontation, absence of premeditation, a defensive motive, limited cannabis impairment, remorse and strong rehabilitation prospects, fixed a sentence at the lower end of the murder range and credited 497 days already served.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
1,722 words · generated 17/07/2026
What happened
Farren Deacon Badenoch was tried by jury and convicted of the murder of his younger sister, Amalie Margaret Badenoch, arising out of a violent confrontation at the Sun Siesta Caravan Park in Mildura on 1 March 2000. The fatal event followed a sequence of escalating incidents. On 29 February 2000 there had been an altercation in a supermarket during which Amalie reportedly head-butted Farren and a violent exchange ensued ([29]–[35]). On the evening of 1 March Amalie drove to the caravan park, struck Mrs Badenoch's parked car and stalled her own vehicle; the accused, awakened by the disturbance, armed himself with a large bladed knife and went outside ([50]–[59]). After removing car keys from the Kingswood and walking away to seek assistance, the accused was pursued by Amalie and her son. A confrontation occurred some 44 metres from the Kingswood, where the accused and the deceased struggled. In the course of that struggle the accused inflicted a single penetrating abdominal wound which split the splenic vein and produced fatal haemorrhage ([71]–[74]). The jury found that the accused had stabbed the deceased (the judge accepted the jury's finding) and convicted him of murder; the judge at sentence accepted that the jury must have found the accused intended to cause really serious bodily injury rather than to kill ([77], [83], [86]).
Cited legislation
No linked legislation citations have been extracted yet.
At the sentencing hearing Coldrey J received an extensive body of evidence relating both to the deceased's background (drug abuse, psychiatric treatment, propensity for violence and prior threats) and to the accused's background (difficult childhood, apprenticeship, stable family life, community support, prison conduct). The Crown conceded that the offence fell within the lower spectrum of murder ([92]). After weighing the aggravating and mitigating features Coldrey J fixed a sentence of 14 years' imprisonment with a reduced non-parole period of 9 years, declaring 497 days as already served ([161], [164]).
Why the court decided this way
Two interrelated matters drove the court's decision at sentence: first, the jury's factual finding about the accused's mental state at the time of the stabbing; and second, the judge's assessment of mitigation and sentencing principles.
Mens rea: Coldrey J accepted the jury's verdict as a finding that the accused's intention at the time of inflicting the wound was to cause really serious bodily injury, not to kill ([86]). The judge treated that finding as significant for sentencing, placing the offending in the lower range of murder. The Crown likewise accepted this characterisation ([86], [92]).
Sentencing principles: The judge stated the conventional sentencing objectives, the gravity of murder, sanctity of human life, and the need for both specific and general deterrence, and noted that the circumstances of murder vary widely and require individualized assessment ([89]). The Sentencing Act's objectives (punishment, deterrence, rehabilitation) informed the balancing exercise ([144]).
Mitigation: Coldrey J enumerated and weighed a substantial set of mitigating facts: the deceased initiated events that night and had earlier assaulted the accused in a supermarket; the accused took the knife with a protective, defensive purpose; he left the immediate scene intending to seek police; the stabbing was a single, spur-of-the-moment blow without premeditation; his judgment may have been affected to some extent by cannabis; he sought assistance for his sister immediately after the wound; he expressed remorse (though qualified by denial about the knife); he had a record of having overcome adversity, stable family ties, employment history and community support; and he demonstrated good conduct in custody ([62], [83], [86], [131], [134], [137], [147]). The Crown conceded that these factors placed the offence in the lower spectrum ([92]).
Outcome: Balancing the weight of those mitigating factors against the gravity of the offence, Coldrey J concluded that a 14-year term with a nine-year non-parole period was appropriate. The judge expressly fixed a lower than normal non-parole period in light of the mitigation, and declared the period already served ([161], [164]).
Before and after state of the law
This judgment applies established sentencing principles rather than enunciating a novel legal proposition. Two points of law as expressed in the reasons are noteworthy:
Mens rea for murder: Coldrey J treated a jury finding of intention to cause really serious bodily injury (as opposed to a specific intent to kill) as a valid basis for a murder conviction and as a material factor in determining the sentencing range ([86]). That approach reflects longstanding common-law principles recognising that an intention to cause grievous bodily harm which results in death may support murder.
Sentencing balancing: The decision exemplifies the orthodox balancing exercise under the Sentencing Act and common law: determining where within the spectrum of murder an individual case falls by reference to objective gravity, the offender's culpability, and personal mitigating and aggravating features ([89], [144], [161]).
The judgment does not purport to change the law; rather it applies established doctrines to facts where the Crown itself conceded the case sat in the lower range ([92]). The sentence, including the reduction of the non-parole period, illustrates how mitigatory circumstances can materially affect parole eligibility even where the ultimate conviction is murder.
Key passages with plain-English translation
Passage: "I am also satisfied that at no stage did you intend to kill your sister. Consequently, I take the jury verdict to be a finding that at the time of the infliction of the fatal wound your intention was to cause Ms Badenoch really serious bodily injury." ([86])
Translation: The judge accepted that the jury meant the accused wanted to cause very serious injury, not to kill her, and this mental state is what the court relied on when assessing punishment.
Passage: "The stabbing of Ms Badenoch was without any premeditation. The single blow was the result of a momentary expression of exasperation and anger on your part, generated by the immediately preceding actions of your sister." ([83])
Translation: The judge found the killing was impulsive, not planned, occurring in the heat of a sudden confrontation brought on by the deceased.
Passage: "Accordingly, balancing as best I can the principles of sentencing ... I have concluded that the appropriate sentence in your case is that you be imprisoned for a period of 14 years. ... That period is nine years." ([161])
Translation: After weighing the seriousness of murder and the mitigating factors, the judge set a 14-year term but reduced the minimum time to be served before parole to nine years.
Passage: The eleven-point summary of mitigation (set out at [147]).
Translation: The judge explicitly listed the facts he considered mitigating, including the deceased's initiation of events, defensive purpose, lack of premeditation, possible cannabis impairment, immediate assistance sought, remorse (qualified), and the offender's good character and rehabilitation prospects.
What fact patterns trigger this precedent
This decision is directly relevant where:
A murder conviction rests on a finding the accused intended to cause really serious bodily injury rather than an explicit intention to kill; the sentencing judge may treat that mental state as placing the offence in the lower spectrum of murder ([86], [92]).
The fatal event arose from a brief, escalating confrontation initiated by the deceased, particularly where the accused obtained a weapon for defensive reasons and delivered a single blow without premeditation ([62], [83], [147]).
There is evidence of partial voluntary intoxication (cannabis) that may have affected judgment, but only to a limited extent, this can be allowed as limited mitigation ([131]).
The accused has demonstrable prospects of rehabilitation, substantial community support and good prison conduct; those features can justify a reduced non-parole period ([122], [137], [141], [144], [161]).
Practitioners should note that this judgment is an exercise of judicial discretion in sentencing; similar fact patterns may receive different outcomes depending on the severity of the wound, number of blows, clarity of defensive motive, and strength of character evidence.
How later courts have treated it
This judgment itself does not report or record later appellate treatment. Coldrey J applied established law and the Sentencing Act principles in a fact-specific exercise ([89], [144], [161]). The reasons do not cite superior authorities as determinative precedent, nor do they indicate an intention to create a binding novel rule. Therefore, as a district-level sentencing decision it primarily serves as persuasive authority on assessment of mitigation where murder is founded on intent to cause serious injury rather than intent to kill. To determine subsequent judicial treatment or citation of R v Badenoch one must consult case citators and reported appellate decisions; such subsequent treatment is not recorded within the judgment itself.
Still-open questions
Extent of mitigation from voluntary cannabis use: Coldrey J accepted limited mitigation from recent cannabis use ([131]). The precise analytical boundaries, when voluntary intoxication will materially reduce culpability for murder sentencing, remain fact-specific and unresolved as a general rule in this judgment.
Weight to be accorded to incomplete remorse where the accused maintains some denials: The judge regarded remorse as incomplete while the accused denied the knife was in his hands ([134]). How strongly denial of a key factual matter should diminish credit for remorse will vary; this judgment illustrates one approach but does not fix a general rule.
Quantification of 'lower spectrum' sentences for murder: Coldrey J fixed a 14-year term with nine years non-parole in these circumstances ([161]). The decision exemplifies a sentencing outcome for a particular constellation of mitigating facts; however, the precise calibration between years of imprisonment and non-parole period remains discretionary and dependent on comparative sentencing authorities that are not exhaustively canvassed in this judgment.
Interaction between community background (indigenous status, community support) and sentencing: The judge gave weight to the accused's role and support within the Aboriginal community ([137], [141]). How such factors interact with principles of parity and deterrence across different cases is a continuing area for judicial clarification.
In all these areas the R v Badenoch judgment is a careful, fact-driven sentencing exercise reflecting accepted principles. It is most valuable as a worked example of how a sentencing judge may systemically identify and weigh mitigation where a murder conviction is based on an intention to cause really serious bodily injury rather than an intention to kill. Practitioners should treat it as persuasive guidance for similar factual matrices and consult appellate authorities and the Sentencing Act for binding principles and comparative ranges.
SENTENCE - Murder - Confrontation initiated by deceased - Intention to cause really serious bodily injury not to kill - Large number of mitigating factors - Offender sentenced to 14 years' imprisonment with lower than normal non-parole period of 9 years.
[3]
Farren Deacon Badenoch, you have been found guilty by a jury of the murder of Amalie Margaret Badenoch on 1 March 2000 at Mildura South. I should make it clear at the outset that, although it was open to the jury to find you guilty of the alternative charge of manslaughter, I am bound by the jury verdict of murder.
[4]
That verdict was announced in October last year, and the delay in passing sentence upon you has been caused by a number of factors, but principally by your dispensing with the services of your counsel and thereafter, your understandable desire for preparation time before presenting your plea in person. Ultimately, the plea of mitigation was undertaken by Ms McNiff of counsel and I acknowledge the assistance I have derived from her comprehensive submissions on penalty.
[5]
In order to sentence you, it is necessary to briefly outline the circumstances surrounding the commission of this offence.
[6]
Amalie Badenoch was your younger sister. She had led a sadly troubled life, aspects of which it is necessary to mention. This is not for the purpose of denigrating her but in order to place these events in context.
[7]
Records from the Department of Psychiatry at the Mildura Base Hospital record Ms Badenoch's treatment for multiple drug abuse and a diagnosis of her as an inadequate personality at the age of 15. In October 1995, five months before her death, she was admitted to the Mildura Hospital, having behaved bizarrely in public and having threatened to kill people. A history of violence was noted and a diagnosis of major depression and drug abuse was made. Ms Badenoch was prescribed antidepressant medication.
[8]
Subsequent to her discharge she reported frequent feelings of anger and aggression to her case manager. In November 1999, Ms Badenoch ceased medication because of a possible pregnancy. Thereafter, a failure by her to keep appointments resulted in the cessation of the monitoring activities which had been undertaken by the Mildura Hospital Department of Psychiatry.
[9]
Ms Badenoch's propensity for violent behaviour, including the use of weapons, particularly when she was affected by alcohol or drugs, was detailed by a number of witnesses in your trial, including the mother of you both, Mrs Dale Badenoch-Maltby; by friends of the deceased; and by professional personnel who had contact with her. There was evidence that prescription drugs such as Serepax, (and indeed Valium), which she abused, could trigger such violence.
[10]
You had been close to your sister Amalie and, according to your mother, you had endeavoured to assist her with the problems stemming from her drug addiction when you returned to live in Mildura in the latter months of 1999. Initially you, together with your wife, Natalie Dawes and your three children, lived for a short period of time at the home of Ms Badenoch at San Matteo Avenue, Mildura. According to Ms Badenoch's de facto husband, Douglas Gray, there was a dispute when Amalie stated she was sick of cooking for your family. Whatever the cause may have been, you then took up residence in the Sun Siesta Caravan Park.
[11]
Nonetheless, the families visited each other's homes thereafter. At the caravan park there were barbecues from time to time and the families used the swimming pool in the park. These activities continued until a period variously estimated as January to mid February 2000, when the relationship between you and your sister ultimately ruptured following an argument about Ms Badenoch's drug taking. In your interview with investigating police, you described an incident where Ms Badenoch called you a "dog", being a well-known term of abuse, and you spat on Ms Badenoch's doorstep. You told police that this action was significant in that it symbolised your intention not to walk over her doorstep again.
[12]
The culmination of this phase of your relationship occurred on the evening of 29 February 2000 at Woolworth's supermarket, Central Plaza, Mildura. You encountered your sister, who you later told investigating police had headbutted you. Although this was not specifically observed by eye-witnesses called by the Crown there was evidence from some of Ms Badenoch's friends and a police officer that she admitted this had occurred.
[13]
Assuming this to be so, your sister's action triggered a violent response from you, which included slamming her head against the supermarket trolley and punching her and kicking her with your bare feet after she fell to the floor. According to witnesses, the incident concluded with each of you threatening to get the other.
[14]
You told a Senior Constable Anthony Parr, who attended the scene, that you had kicked Ms Badenoch to stop her getting up and coming back at you. You also sought information from the police about obtaining an intervention order against your sister.
[15]
No charges were laid as a result of this episode but it was to have tragic consequences.
[16]
On the following day, (1 March) Ms Badenoch telephoned a number of her friends. She told Kerryn Donnell of the supermarket incident and, in a conversation which was characterised by her aggressive approach and slurred speech, she said she was going to kill her brother. Leanne McNulty also gave evidence of a death threat made by the deceased against you in the course of a telephone conversation on the fatal evening.
[17]
Earlier in the day Ms Badenoch had spoken to Jillian Brennan, a Koori educator at Mildura, Primary School, about the fight at Woolworth's store. In essence, Ms Badenoch said that she would get you and that one of you would die. Ms Brennan described the deceased as being very angry and determined to get revenge.
[18]
The evidence of the deceased's son Sandawarra Sibley, was to the effect that it was his mother's express intention to go to the caravan park to ram your car, an intention she communicated by phone to another friend, Elizabeth Cheyne.
[19]
It is highly likely that the deceased's state of mind fluctuated during that day. What is clear, however, is that she drove her son, Sandawarra, to the caravan park some time between 8.00 and 9.00 that evening. There was evidence from caravan park residents of Ms Badenoch driving a white Kingswood vehicle at a dangerous speed around the caravan park and skidding to a stop just short of striking the annexe to your caravan. She then reversed, before ramming the offside front of the Sigma vehicle owned by your wife, which was parked alongside the caravan. Ms Badenoch then swiftly reversed the Kingswood into a tree, causing the vehicle to stall.
[20]
Prior to these events you had been in bed asleep. You told police that earlier that day, at about 4.30 p.m., you smoked some marijuana and were a bit stoned.
[21]
Having been awakened by this incident and observed your sister and another person sitting in the vehicle, and having heard your wife, Natalie, call out, "She smashed my car", you put on a pair of shorts and armed yourself with a large bladed knife.
[22]
Initially you denied to police that you ever had that knife in your possession. You claimed that a knife later found in the caravan belonged to the deceased and that you first saw and handled it when you found it on the grass. You even suggested that the deceased may have stabbed herself with it. Subsequently, your explanation to the police for not telling the truth about the knife was that you feared that you would be wrongly charged with murdering your sister. These lies may well have been a factor in the jury's rejection of your ultimate account of how Ms Badenoch sustained her fatal injury.
[23]
However, I accept your assertion that initially you believed the passenger in the vehicle may have been your sister's de facto husband, Douglas Gray, and that the pair may have been about to take further action against you. Certainly, from your perspective, the vehicle remained at the scene and the state of anger and aggression energising the deceased on this evening, may be gauged by her apparent willingness to damage her own vehicle in the course of ramming your car. I also accept that at the time you obtained the knife you were intent on protecting yourself and your family. Your concern for your family is vividly reflected in the police interviews.
[24]
There is considerable conflict in the accounts of witnesses as to what occurred after you emerged from the caravan. This is not surprising, given the state of the lighting in the caravan park and the speed and unexpected nature of the events which followed. In my view, however, the jury would have been satisfied that you approached the Kingswood vehicle, reached in the window and removed the car keys from the ignition. Abusive language and threats were exchanged between you and the deceased but, having ascertained that the other person in the car was Sandawarra Sibley and not Douglas Gray, you walked away from the scene towards the office of the caravan park management. I accept that it was your intention to ask for the police to be contacted.
[25]
Ms Badenoch, and indeed her son, commenced to run after you. The preponderance of evidence is that she was yelling and swearing at you and was demanding the return of the car keys. Prior to pursuing you, Ms Badenoch had taken one of her shoes from the Kingswood vehicle. It is not clear why she did so. If it was to be used as a weapon, it was an insubstantial one. Your wife called out, "Look out, she's got a bottle." Either Ms Badenoch or her son called out, "It's a shoe". But I am prepared to accept that your belief, as expressed in the police interview, was that Ms Badenoch may well have been armed with a bottle. You were also well aware that she had attacked people with such objects in the past.
[26]
There are various versions of the incident in which Ms Badenoch was fatally wounded. I am satisfied that you turned around and confronted your sister, who was approaching you aggressively. The forensic evidence indicates that this confrontation occurred some 44 metres from the Kingswood vehicle. A struggle ensued, which ended when you and the deceased fell to the ground. The jury was satisfied that, in the course of that encounter, you stabbed Ms Badenoch once in the abdomen.
[27]
According to the pathologist, Dr Shelley Robertson, the wound penetrated directly backwards into the abdomen and slightly downwards to a depth which was difficult to quantify, but was several centimetres in depth and was sufficient to split the splenic vein. This resulted in haemorrhaging which caused Ms Badenoch's death. It was Dr Robertson's evidence that the infliction of that wound required moderate force.
[28]
In finding that you had stabbed the deceased, the jury rejected your account to police that you had the knife on the right side of your shorts held by the band with the blade pointing upwards and that the knife somehow penetrated Ms Badenoch's abdomen when you both fell to the ground. No doubt the jury took into account the tardiness of your advancing such an explanation after your earlier false accounts, the lack of any injury to your own body from this weapon, the evidence of Sandawarra Sibley of you having something in your hand, the evidence of your wife that you told her, "I did it ..." and the evidence of Mr Robert Sedgley, a park resident, that you told him, "I think I've gone too far this time, I think I've killed her".
[29]
There is a body of evidence that after the stabbing you were extremely distressed and concerned about Ms Badenoch's welfare. You sought assistance for her through the agency of James and Jennifer Baxter, the managers of the caravan park.
[30]
I am satisfied on the material that the stabbing of Ms Badenoch was without any premeditation. The single blow was the result of a momentary expression of exasperation and anger on your part, generated by the immediately preceding actions of your sister.
[31]
I am also satisfied that at no stage did you intend to kill your sister. Consequently, I take the jury verdict to be a finding that at the time of the infliction of the fatal wound your intention was to cause Ms Badenoch really serious bodily injury. I note that the Crown, (through Mr Leckie), also expressed that view.
[32]
The sentences imposed by courts for the crime of murder must reflect the gravity of this offence as well as upholding the sanctity of human life and seeking to deter persons who may contemplate the use of fatal violence to resolve domestic and other problems. Of course, the circumstances in which this crime was committed and the situation of the individual perpetrator will vary widely.
[33]
In the present case the Crown, through Mr Leckie, has very properly conceded that the offence falls within the lower spectrum of penalties for the offence of murder.
[34]
In the course of the plea on your behalf, your counsel, Ms McNiff, mentioned a number of matters personal to you which are relevant to any sentence to be imposed. However, before discussing these matters, I should say something more about Ms Badenoch. Amalie Badenoch was only 34 years old when she died. Although she had a number of problems in her life, it is also clear from the evidence that she had a number of loyal friends. She was also the mother of three children, Jindalee, Sandawarra and Maralinga. Jindalee, who was in her early teenage years when her mother died, was apparently living away from home at that time. One of Ms Badenoch's close friends, Ms Elizabeth Cheyne, now has custody of the three children. It is to her credit that she is endeavouring to provide a stable and loving lifestyle for them. In her Victim Impact Statement, Ms Cheyne writes of the loss of a person she describes as "a sister and best friend who was priceless to me". She also describes the pain experienced by the children at the loss of their mother. That feeling of loss is also expressed in a Victim Impact Statement from Sandawarra Sibley, who has had to undergo counselling from a psychologist, and whose friendships and schooling were totally disrupted by this traumatic event. The tragic and untimely death of Amalie Badenoch is something from which her children and close friends will never fully recover.
[35]
Farren Badenoch, you are presently aged 37, having been born in Adelaide in December 1964. You were part of a family of six children by several fathers, but you and your sister Amalie, (who was 16 months younger than you), are the children of Kevin Badenoch, a Scotsman. He deserted the family when you were about two years old, shortly after your sister was born. Your early life was often traumatic and frightening, as you witnessed violence and alcoholism among a number of your close relatives in circumstances where you sometimes had to obtain help. However, your mother, Mrs Dale Badenoch-Maltby, who gave evidence on your behalf in the course of the plea, spoke of your assistance to her in those early years. She described you as "her little man of the house". On occasions you would obtain the pension cheque in an endeavour to ensure it was not spent inappropriately. In your early years you also did a paper round and mowed lawns to earn income for yourself. Insofar as your relationship with your brothers and sister was concerned, Mrs Badenoch-Maltby said you were always very close to Amalie.
[36]
Just before you turned 13 you were made a ward of the State and when you were 15, following a Children's Court appearance for theft of a motor car and burglary, you were placed on probation, a condition of which was that you had to reside with your father and his new family at Werribee. Your step-mother (Mrs Peggy Badenoch) spoke very highly of you in this court. According to her evidence, you bonded well with her own children and she observed your love for your sister. Unfortunately, you did not get on with your father, who was described by her as a moody person and someone who was continually putting you down. Ultimately, after about a year, you ran away from home and for a period of time you lived on the streets. It says something about your capacity to form relationships that, over 20 years later, Mrs Peggy Badenoch professes her love and support for you and your family.
[37]
You were educated initially at Mildura Central Primary School, then Mildura Central School and then Mildura High School until Year 9. When you were sent to Werribee you attended Werribee High School but left school before completing Year 10. Finding yourself homeless in Melbourne consequent upon your disturbed background, your future appeared bleak. However, you were endowed with higher than average intelligence, (as the Forensic Psychologist Mr Michael Crewdson reported to the court), as well as a strong work ethic. The encouragement of an Aboriginal worker in Fitzroy, together with your own determination and persistence, resulted in you being offered an apprenticeship as a painter and decorator. You commenced your apprenticeship with McKinnon's Painting Services Pty Ltd in April 1982. You completed that apprenticeship in June 1985. In the course of it, you were awarded a bronze medallion for your work as a painter and decorator. A bundle of references was tendered to the court, both from firms that had employed you and from clients praising the work you had done. You were described as a true craftsman and a hard worker with a passion for excellence. References was also made to your loyalty, conscientiousness and artistic and technical skills. Through much of the 1990s you were self-employed as a painter and decorator but in 1998 you endeavoured to formulate a business management plan designed to train long-term unemployed young people in the painting and decorating trade. This scheme had the enthusiastic support of Premium Painting Pty Ltd, a company with which you had been associated in the late 1980s and in which you had risen to the position of foreman overseeing a group of tradesmen. The scheme was also supported by the Member of Parliament for Dandenong North. Whilst it does not appear to have come to fruition, it is indicative of your desire to help others.
[38]
You have been in a relationship with Natalie Dawes for 11 years and you have three children from that union, the eldest being 10 and the youngest 4. Sadly, a fourth child died shortly after birth, at a time when you were remanded in custody for sentence. Ms Dawes described you as an excellent Dad and said that your children adore you. She also described you as an excellent worker. This theme is repeated in the voluminous character references tendered to this court. In this material you were described as a good father and husband, a hard-working person and a person prepared to help others. You were also described as a non-violent person, although one episode in 1997, when you pushed your wife into a wall during a time of stress, was frankly revealed to the court. You were shocked by this incident and immediately attended at the Aboriginal Health Service seeking anger management counselling.
[39]
When you were 23 years old you went to Queensland to see your sister, Amalie. At that stage she had two children and was living with a man named Sam Sibley. Unfortunately, during this period of time you, your sister and her partner were involved in a considerable number of offences of burglary and attempted burglary. As a result you were sentenced to five years' imprisonment with a minimum of eighteen months before eligibility for parole. In fact, because you had been in prison for 19 months before your sentence, you actually served 37 months in prison.
[40]
While in prison in Brisbane you used your time advantageously, obtaining a very high achievement award in Year 10 mathematics from the School of Distance Education, a qualification in Painters Estimating from the Department of Technical and Further Education of Western Australia and qualifications in such disparate areas as keyboard and introductory welding from the Ipswich College of TAFE.
[41]
You were released on parole in 1991 and, returning to Melbourne, you established yourself as a self-employed painter and decorator and formed the stable and ongoing relationship with your wife, Natalie, to which I have referred. Until the present incident you had not been in any further trouble with the police. I have already detailed your employment history during the 1990s. Even when you returned to Mildura in 1999, and were no longer working as a painter and decorator, you were quite prepared to work as a fruit picker rather than seek unemployment benefits.
[42]
In your early years in Mildura, and later in your life when you were living in Melbourne, you had experienced racist attitudes and in fact you were forced to disassociate yourself from your identity and family background. In 1999 you decided to return to Mildura. Your driving ambition was to reunite with your family and reclaim your Aboriginal heritage. Your yearning to recapture your cultural heritage is the subject of a letter from Mr George O'Neill, an Aboriginal tour guide and family friend.
[43]
In the course of your plea, Mr Peter Hanson, a Correctional Officer assigned as your personal officer, gave evidence of your exemplary conduct within the prison system. His assessment is supported by the Victorian Prison Service individual management file. Your commitment to your job as a maintenance worker is praised, as is the assistance you have given to other Koori prisoners. Recently this has involved support and encouragement for two young aboriginal exhibitors in an art exhibition held to celebrate NADOC week in the prison. The file also indicates your desire to seek University qualifications. Further, the court was informed that you have applied to become a stabilizer at the Marlborough Unit for intellectually disabled persons within the prison. Your qualifications for this role include the successful completion of the Prisoner Unit Support Scheme program and the Peer Support Group program conducted at Port Phillip Prison.
[44]
I have also had the benefit of the evidence and report of the psychologist and psychotherapist, Mr Michael Crewdson. Mr Crewdson expressed the opinion that you were not suffering from any major psychological or psychiatric illness. However, he agreed with the opinion expressed by Dr Stanesbury of the Aboriginal Health Service that you were suffering from an adjustment disorder with mixed anxiety and depressed mood following the death of your sister.
[45]
In his evidence Mr Crewdson deposed that psychological testing placed you outside the normal range in the area of emotional reactivity and vulnerability. Mr Crewdson sees this as reflecting your upbringing and childhood experiences.
[46]
Mr Crewdson also expresses the view that your use of cannabis may have influenced your judgment on the night of this incident. An analysis of your blood detected carboxy THC at a relatively high level, consistent with the recent use of cannabis. Dr Odell, a forensic physician with the Victorian Institute of Forensic Medicine, stated that it was impossible to quantify the amount of cannabis used. He agreed that the ingestion of cannabis may in some individuals affect their thinking process. Indeed, Mr Leckie, on behalf of the Crown, very fairly put it that there was some limited scope for taking into account in mitigation the possibility that your ability to think clearly and make judgments may have been affected by ingestion of marijuana. This, as I have said, occurred on 1 May in the privacy of your own premises at a time when you did not expect to leave those premises again that evening. I agree with Mr Leckie's submission.
[47]
In terms of remorse, your step-mother, Mrs Peggy Badenoch, indicated that you had expressed a sense of loss at your sister's death. You told this court that you were deeply sorry about your sister's death and asked the community to forgive you for the way things turned out. Observing your highly emotional state at that time, I have no doubt that you feel great regret for what occurred. Consequently, I am prepared to accept that you feel a level of remorse for your sister's death. I must, however, treat that remorse as incomplete while you continue to deny that the knife which caused that death was ever in your hands.
[48]
Finally, in reviewing the material placed before the court, I wish to refer to the affidavit of Glenn Milne. Mr Milne is a social worker who has spent the last 15 years working with homeless people and the Aboriginal community. Among other positions he is a Director of Lower Murray Water and President of the Mallee Accommodation Support Program. Mr Milne has known your family since 1985. He comments on the long period that you and Natalie have remained a couple and describes your family as a close unit with the children being cared for in a loving and secure environment. He describes your return to Mildura as being driven by a desire to see your siblings reunited and rehabilitated so as to allow them to function as a family again. Mr Milne expresses the view that the Aboriginal community were well aware of your generosity and genuine good intentions towards your sister in spite of her often violent responses to you and other family members. He states that you retain the support of the Aboriginal community. Mr Milne also comments:
[49]
"Farren has the ability to be a strong leader in the Aboriginal community, he has a strong sense of family, he has the ability to achieve, his family are a settled, strong unit, well-mannered, well-behaved, much loved by all those around them in the Aboriginal community and the general community."
[50]
This is impressive material and I give it considerable weight.
[51]
In any sentence imposed, regard must be had for the gravity of the offence itself and the principles of specific and general deterrence must be appropriately reflected. Likewise, your prospects of rehabilitation must be taken into account. Your achievements, after a difficult and deprived start in life, including your qualification as a tradesman and your capacity for hard work, your role as family man, and even the use you have made of your time in prison, indicate to me that your prospects of rehabilitation are excellent. In the odyssey of your life you have achieved a great deal in the face of adversity and have the potential to achieve more.
[52]
The offence of murder is, as I have said, a grave one, but there are a number of mitigating factors in your case. These may be summarised as follows:
[53]
1. The incident giving rise to the fatal stabbing was initiated by the violent action of the deceased directed at your property at a time when you and your family were in bed in your caravan;
[54]
2. You obtained the knife which caused the deceased's death in order to protect yourself and your family from the possibility of attack;
[55]
3. When you formed the view that no immediate threat existed you left the scene to request the caravan park authorities to notify the police;
[56]
4. You were then subjected to abuse by your sister who approached you aggressively and who you believed may have been armed with a bottle that she was capable of using as a weapon;
[57]
5. The stabbing occurred on the spur of the moment without any premeditation at a time when you were exasperated and angry at your sister's conduct;
[58]
6. At the time of the incident your own judgment may have been affected to some extent by your earlier ingestion of marijuana;
[59]
7. Your intention in stabbing your sister was not to kill her but to cause really serious bodily injury;
[60]
8. Immediately after the stabbing had occurred you sought assistance for your sister;
[61]
9. You genuinely regret the death of your sister, albeit you are unwilling to fully confront your responsibility for it;
[62]
10. In the face of considerable adversity in your life you have achieved trade qualifications, demonstrated a capacity for hard work and contributed to the upbringing of a stable and closely knit family. This history, together with your current conduct in prison, indicates that you have excellent prospects of rehabilitation; and
[63]
11. You have the ongoing support of your family and of the local Aboriginal community.
[64]
Accordingly, balancing as best I can the principles of sentencing enunciated in the Sentencing Act, including punishment, specific and general deterrence and rehabilitation, I have concluded that the appropriate sentence in your case is that you be imprisoned for a period of 14 years. However, in the light of the factors to which I have referred, I will fix a lower than normal period before you become eligible for parole. That period is nine years.
[65]
Further, I declare that the period to be reckoned as already served under the sentence is 497 days inclusive of today's date. I direct that there be noted in the records of the court the fact that this declaration was made and its details.
Parties
Applicant/Plaintiff:
R
Respondent/Defendant:
Badenoch [2002] VSC 340
AI Analysis
Outcomedefendant
Disposition:
Sentence of imprisonment for 14 years with a lower than normal non-parole period fixed at 9 years; declaration that 497 days be reckoned as time already served (Coldrey J at [161], [164]).