R v Barrett [2005] VSC 176

2 Your relationship with Ms Brodhurst had been marked by violence on your part towards her, motivated or occasioned in large part by an attitude described by one of the psychiatrists who gave evidence in your trial as "morbid jealousy". It was also this morbid jealousy that led you to attack a male friend, resulting in your being sentenced to a term of imprisonment in May 2001. Upon your release from prison on parole you resumed your relationship with the deceased, and resumed your violent attacks upon her. During the 12 months prior to the fatal attacks the deceased sought medical treatment as a result of injuries inflicted on her by you on numerous occasions. The deceased sought crisis accommodation during that 12 month period on nine separate occasions and at one point obtained an interim intervention order.

3 In September 2002 you were seen by a forensic psychiatrist, Dr Lester. In your trial, Dr Lester gave evidence that at that time he formed the view that you were suffering from morbid jealousy. You reported to him that you had severely assaulted Ms Brodhurst over ten years, at times severely enough to place her in hospital. You also reported to him that your jealousy increased with amphetamine use. He found that you had insight into the relationship between your amphetamine use and your violence towards your partner. He observed that although you had reached the point of having insight into this relationship you had not been willing or able to take the next step of doing something about it, most significantly by eliminating amphetamine use. In cross-examination Dr Lester said you did not present in a psychotic state but that he had no evidence to make him doubt the possibility of a drug-induced psychotic episode in the past. At your trial evidence was also given by your mother who gave an account of drug-induced psychotic episodes beginning at approximately the age of 16, and of her attempts to get you effective treatment. At one point you were admitted to the Heatherton Hospital and you also saw a psychiatrist in San Remo.

4 Your fatal assaults on the deceased began some time after 4.30 am on Saturday 7 June 2003. The expert medical and scientific evidence given at your trial reveals an horrific scenario. By the early hours of Wednesday 11 June 2003 when an ambulance attended, the deceased was suffering from bruising and abrasions to her entire body. She also had two broken ribs and a broken finger. She had numerous lacerations to her head. Most of her injuries were the result of blunt force trauma. Two of her injuries had been inflicted with a sharp object. Several marks on her were consistent with human bite marks. Police found a knife and two broken parts of a stick. These objects were stained with blood, and testing revealed DNA on each object very likely to have been sourced from you and the deceased. Notwithstanding some cleaning which had obviously been done in the house, there were bloodstains in the main bedroom, the en suite bathroom, the hallway, and in your son's bedroom. The place where the deceased was found lying dead had bloodstains surrounding her including "spatter" stains. Spatter stains are the result of the application of force to an existing source of blood. Spatter stains were also located on the opposite side of the bedroom on or near the television cabinet.

5 Two forensic pathologists gave evidence at your trial. They agreed that the various injuries were of different ages, some being up to three days old, some approximately one day old, and, according to the forensic pathologist called on behalf of the defence, Dr Collins, some inflicted only a few hours prior to death. The most serious physical injury was a subdural haemorrhage which had been caused by trauma to the head. Neither forensic pathologist could identify the particular trauma that caused that injury. Toxicology analysis revealed the presence of methamphetamine in the deceased's system and a very high level of the pain killing drug tramadol.

6 I am bound to sentence you on the basis of conclusions on the facts which are consistent with the jury's verdict. In the circumstances I must proceed on the basis that you are the one who inflicted the physical injuries on the deceased and that the acts by which you inflicted those injuries were a substantial and operating cause of her death. The prosecution's primary case on intention was that you intended to cause really serious injury, but the prosecution also put to the jury that the case might properly be characterised as reckless murder. On the plea, your counsel submitted that I should proceed on the basis that the crime was reckless murder. In considering sentence, in relation to matters adverse to you I must be satisfied of those matters beyond reasonable doubt, but I may take into account matters in your favour which are established on the balance of probabilities.[1]

7 I am satisfied beyond reasonable doubt that the deceased was attacked by you on more than one occasion on and between Saturday 7 June 2003 and Wednesday 11 June 2003. I am satisfied that you attacked her when she was already injured and that that is the explanation for the spatter stains. I am satisfied that you used weapons on her including the stick, found in pieces by the police, and the knife. In the circumstances I am not satisfied that you are responsible for the high level of tramadol in the deceased's body in the sense that I am not satisfied you administered the drug to her, although I am satisfied that the reason why either the deceased or some other person, probably your mother, administered the drug was because of pain as a result of the injuries you inflicted.

8 Your attack on a person who you claim to have loved was not only fatal, it was vicious, repeated, and cruel. Over several days you bashed your partner to death. When she was already injured you resumed your attacks on her.

9 In your record of interview you indicated that you and your mother, Mrs Florence Barrett, had nursed the deceased for several days. Your mother was at one time a registered nurse. She gave evidence at your trial but refused to answer most questions about the events between 7 June and 11 June on the ground of the privilege against self-incrimination. In your record of interview you indicated that the deceased had said she did not want an ambulance called. In your record of interview you said "we [referring to yourself and your mother] made the wrong decision, and so did Jenny." It seems that in your mind Jenny Brodhurst is to bear partial responsibility for her own death. Dr Collins gave evidence to the effect that all of the injuries suffered by the deceased were "salvageable". If you had got the deceased the medical treatment she so obviously and desperately needed she probably would not have died from the injuries you had inflicted upon her.

10 An ambulance and the police attended the house in the early hours of the Wednesday morning. Their attendance was prompted by a 000 call by you. In that call you falsely maintained that the deceased's injuries were the result of an assault by someone other than you. You denied being responsible for the deceased's injuries to Senior Constable Hully who attended the scene with Constable Logan. You denied being responsible for the deceased's injuries in the record of interview. You did make comments amounting to admissions of your guilt to police from the Homicide Squad in conversations which were not recorded but which were led in evidence at your trial with your consent.

11 On 15 April 2005 I heard a plea on your behalf. Ms Randazzo SC made submissions in three parts. She dealt with the psychiatric evidence which had been presented in the trial and relied upon further psychiatric material. She made submissions in relation to your culpability. Finally, she dealt with some additional matters put forward in mitigation.

12 In relation to the psychiatric evidence Ms Randazzo submitted that you suffer from a genuine psychiatric condition. The conclusion which she submitted ought to be drawn from all of the psychiatric evidence is that that condition is a psychotic disorder secondary to polysubstance dependence. She submitted that both the psychotic disorder and the morbid jealousy were features of, and a consequence of, your drug use. She submitted that this mental illness was a genuine condition whether "self-induced or otherwise". She submitted that drug use was not an excuse, but that a longstanding drug addiction in your case had produced a condition of psychosis. In this respect she relied upon the report of Dr Lester in the depositions and upon his oral evidence in the trial, upon two reports of Dr Jager tendered as Exhibits 1 and 2 on the plea and upon evidence he gave in the trial, upon evidence given on a voir dire during the trial by Dr Maloney, upon reports of Dr Walton tendered as Exhibits 3 and 5 on the plea, upon the sentencing remarks of Judge Nixon in relation to an earlier matter, and upon a report of Dr Hogan which was tendered as Exhibit 6 on the plea. I accept on the balance of probabilities that you do suffer from a psychotic disorder secondary to polysubstance dependence.

13 The second area addressed by Ms Randazzo concerned your culpability. She submitted you should be dealt with on the basis that you were guilty of reckless murder. In this respect she referred to Aiton v R.[2] She acknowledged that it was not correct to assume that the commission of a reckless murder would necessarily attract a lesser penalty, but submitted that the following factors in this case reduced your moral culpability:

1. Your longstanding drug-induced psychosis.
2. The fact that that is a mental illness.
3. Even though your mental condition is secondary to polysubstance dependence, your dependence is "still just that", an addiction.
4. Your morbid jealousy is also a result of your psychosis.
5. Your psychosis is caused by drug use.
6. Your attack or attacks were spontaneous and not planned.
7. You did attempt to obtain some help for the deceased from your mother and she did give the deceased some treatment.
8. One of the reasons why an ambulance was not called was that the victim did not want an ambulance called.
9. It is clear that you did love the deceased Jennifer Brodhurst.

14 Finally, Ms Randazzo put forward the following further matters in mitigation:

1. Your child, Bradley, who is now in the care of your mother, visits you regularly. The fact that he will grow up without either parent imposes an additional punishment, in effect, on you.
2. She submitted that you did make admissions to the police and that your denials in the record of interview were equivocal and half-hearted.
3. She submitted that the trial was run on what were essentially legal issues, causation and lack of intent, and that no member of the deceased's family was put through the trauma of cross-examination. She submitted that the cross-examination of your sister, Michelle Johns, in the trial did not add to her trauma.
4. She submitted that attempts had been made by your father and others to alert appropriate personnel, and in particular your parole officer, to your continuing drug use and your violent tendencies but that they and you were "let down by the system".

15 At the time of her death Jenny Brodhurst was 29 years of age. She was one of two children. She left high school at Year 8. Her relationship with her family declined over a number of years. She remained in Melbourne when the rest of her family moved to Queensland. Her brother died of a drug overdose. During the last few years prior to her death she had recommenced some contact with her father. She formed a close relationship with your sister, Michelle Johns.

16 A victim impact statement has been filed by Michelle Johns. The prosecutor, Mr Leckie SC, submitted that some of the matters referred to in that statement were outside the proper ambit of victim impact statements. He submitted that I should simply ignore those portions and pay regard to the portions of the statement where she details the effect of this murder on her and her family. Ms Randazzo agreed that that was an appropriate course.

17 Ms Johns says in her statement that not one hour goes by without her thinking about the horror that Jenny went through. She says the incident has covered her whole world in sadness, pain and anger. Her first thought in the morning and her last thought at night is of Jenny. Having heard the evidence in this case I can understand the terrible impact which knowledge of what Jenny Brodhurst must have gone through would have on anyone genuinely close to her.

18 You were born in England, the second of three children. You came to Australia at the age of three months and grew up in Clayton. You left school during Year 10 and worked for a time as a cabinet maker. You ceased work in 1992 at the age of 19 and went on a disability pension two years later, at the age of 21, for "drug-induced psychosis". You are now 32 years of age.

19 You have a history of convictions for drug offences and other matters between 1993 and early 1999. In that period you have a conviction at the Magistrates' Court at Colac on 5 August 1996 for an offence of causing injury intentionally or recklessly (which I will presume to be reckless) and an offence of possession of a prescribed weapon, for which offences you were sentenced to be released on an intensive correction order. You also have a conviction in that period for an offence of assaulting a police officer or person acting in aid of a police officer, which was recorded at the Magistrates' Court at Dandenong on 7 January 1999.

20 On 31 August 1999 you were convicted at the Magistrates' Court at Dandenong of the offences of damaging property with intent, causing injury recklessly, and assault with an instrument. You were sentenced to be released on an intensive correction order for an aggregate period of five months. On your plea I was told that the incident which resulted in these charges involved an attack by you on a former girlfriend and a male friend of hers, the property that was damaged being the male friend's car. This incident is referred to in some of the psychiatric reports.

21 On 29 May 2001 you were convicted at the County Court at Melbourne on charges of causing serious injury intentionally and aggravated burglary. You were sentenced to a total effective term of three years' imprisonment with a minimum of 12 months to be served before being eligible for parole. This was the offence to which I previously referred where you attacked a friend as a result of your belief that he was, or had been, involved in a relationship with the deceased. Judge Nixon's sentencing remarks, to which I referred earlier, dealt with these offences. The matters put in mitigation on that occasion are similar to the matters that have been put on your behalf before me.

22 On 13 September 2001 you were convicted at the Melbourne Magistrates' Court of the offence of making a threat to kill. You were sentenced to a term of imprisonment of six months with two months to be served concurrently with the sentence you were then undergoing and that sentence was reimposed on appeal to the County Court. On your plea I was told the circumstances of this offence were that a threat was made over the phone to a friend of the deceased with whom the deceased was staying at the time.

23 The prosecution submitted that in the light of your conviction for causing serious injury intentionally in May 2001, you are a "serious violent offender" within the meaning of s 6B of the Sentencing Act 1991 and that pursuant to s 6D of that Act in determining the length of the term of imprisonment you should now serve for this offence I must regard the protection of the community as the principal purpose for which the sentence is imposed, and I may, in order to achieve that purpose, impose a sentence longer than that which is proportionate to the gravity of the offence considered in the light of its objective circumstances. In my view this submission is correct. I must proceed to sentence you on that basis. I accordingly proceed to do so and I direct that the fact that I am sentencing you as a serious offender be entered in the records of the Court pursuant to s 6F of the Sentencing Act.

24 The issue of your psychiatric condition and drug use was at the forefront of the matters addressed in the plea. A serious psychiatric illness not amounting to insanity is relevant to sentencing in a number of ways. It may reduce moral culpability where the disorder is clearly explained and related to the offending conduct. It may mean that considerations of general deterrence need to be sensibly moderated. Mental illness is not solely a mitigating factor. It may render the offender a greater danger to the community. Evidence of a psychiatric condition must be assessed in the light of the evidence of the offender's conduct in the commission of the crime.[3]

25 The psychiatric evidence, to which I have already referred, does reveal that you suffer from a psychiatric condition and that you suffered from it at the time of these terrible events. Your counsel on the plea adopted Dr Jager's description of this condition, being "psychotic disorder secondary to polysubstance dependence".

26 Of the psychiatric material, the report which appears to me to be of most assistance is that of Dr Lester A Walton dated 17 March 2005. Dr Walton first saw you in 2001 in relation to the assault matter dealt with in the County Court. He has since assessed and treated you in his role as a treating psychiatrist at Port Phillip Prison. His report is more helpful than the others because Dr Walton reveals a more detailed understanding of the offence, and an understanding which is more consistent with the evidence of the forensic pathologists and the crime scene investigator given at your trial. Dr Walton expresses the opinion that you are suffering from "a longstanding paranoid psychosis". In terms that reflect Dr Jager's diagnosis as well, he elaborates upon this opinion saying "Mr Barrett is afflicted by a protracted drug induced psychosis particularly related to his amphetamine abuse". Dr Walton indicates that, as was the case in relation to the previous violent incident dealt with in the County Court, in his opinion your mental disturbance has made a very direct contribution to the offence.

27 Dr Walton's final conclusion is important and I quote it in full:

"Mr Barrett was exposed to a model of violence as a method of attempting to solve interpersonal problems within his home environment. He has embraced that maladaptive behaviour himself, those tendencies being inflamed by his drug abuse and the resultant psychotic disturbance. On the one hand, Mr Barrett is properly described as suffering from a serious mental disorder. On the other hand, the condition has been substantially self-inflicted. Precisely how this situation should be weighed for sentencing purposes, I leave to the sentencing judge. Mr Barrett has proved to be a recidivist aggressor. It is sometimes observable that in persons with such a history, those tendencies do tend to ameliorate from the early 30s, but, as yet, any favourable trend in that direction is not discernible with this man. That does not preclude the possibility that Mr Barrett may mature further psychologically in the future, but it is simply impossible to provide long-term prediction of what his future conduct may be, given, as I imagine is inevitable, he awaits a lengthy further custodial disposition."

28 It is necessary for me to assess these opinions in the light of your conduct in the commission of the crime. I will not repeat my description of the terrible injuries you inflicted upon the deceased over a protracted period. In relation to the extent of any psychiatric disturbance which you may have experienced during that period, I must have regard to the fact that you were observed on a number of occasions during the relevant period and there is no evidence of you having exhibited signs of any serious psychiatric disturbance, much less any sign of psychotic behaviour. The evidence in that regard was given by:

¾ Your friend, Mr Hepburn, who spoke to you on the phone three times on Friday 6 June, who spoke to you on the phone once and who visited you on Saturday 7 June, who spoke to you three times on the phone and visited you on Sunday 8 June, and who spoke to you on the phone in the evening of Tuesday 10 June 2003, and who said you seemed normal. (T 301-305)

¾ The police officer who spoke to you and the deceased at St Kilda in the early hours of Saturday 7 June who observed nothing abnormal in your behaviour. (T 287-290)

¾ The 000 operators to whom you spoke in the early hours of Wednesday 11 June, when you retained sufficient presence of mind to lie about who was responsible for the assault. (Exhibits 10-11 on the trial)

¾ The police who attended your house in the early hours of Wednesday morning in response to your 000 call who found you to be lucid and responsive. (T 315)

¾ Dr Marginean, the forensic medical officer, who examined you on the Wednesday morning and observed no evidence of psychosis nor any evidence of you being badly affected by drugs. (T 254-255)

29 Looking at all the evidence it seems to me that the following conclusions are to be drawn:

1. You did suffer, and do suffer, from a serious psychiatric condition which has been caused by, and is precipitated by, your drug use.
2. Your mental disorder and your drug use did play a direct role in your violent and sustained attack on the deceased, but you were not in a psychotic or significantly disturbed state throughout the period when your attacks took place.
3. Your mental disorder is substantially self-induced.
4. You had been aware of the relationship between your mental disorder, your drug use and your violence for some time prior to this offence.

30 It seems to me that your psychiatric condition is such as to require some sensible moderation of the aims of general deterrence. In this respect the longstanding character of your psychosis is important. General deterrence is not eliminated here, however, given the self-induced character of your psychiatric condition and your insight into your condition. It is also appropriate to admit some reduction in your moral culpability for what, in an entirely normal person, would be aptly described as a sadistic murder. But your psychiatric condition, in the light of your history and the circumstances of this crime, also means that you are, in my view, a greater danger to the community than would be the case if you did not suffer from this psychiatric condition.

31 It seems to me that there is a pressing need to protect the community from you. You have five prior convictions for matters involving violence or threats of violence, three of which were most serious. The evidence in your trial revealed a long and violent history towards the woman who you eventually murdered. That murder was characterised by both violence and cruelty. There is no present indication of any amelioration of your violent tendencies. A long-term psychiatric prediction of your future conduct cannot be provided.

32 Whilst, as I have indicated, some sensible moderation of the aims of general deterrence needs to be made in your case given your longstanding psychiatric condition, there remains a very important issue of general deterrence. You were in a relationship with a woman considerably weaker than yourself. You have murdered her in the most shocking circumstances, motivated by, and giving effect to, your morbid jealousy. The resort to violence in domestic circumstances, and in response to issues in a relationship such as jealousy, is a matter which this society cannot tolerate.

33 Returning then to the matters put forward in your favour by Ms Randazzo, I have dealt with her submissions in relation to your psychiatric condition.

34 I cannot accept her submission that this crime should be treated as a reckless murder. Whilst I do accept that you may not have intended to kill the deceased, I am satisfied beyond reasonable doubt that you intended to inflict really serious injury upon her. In any event, consistently with Aiton v R,[4] I do not think proceeding on the basis of reckless murder would alter the outcome here.

35 Whilst your attack was spontaneous and not planned, as Ms Randazzo submitted, there are, as the prosecution submitted, countervailing aggravating factors, being the savage and brutal nature of your attack, the fact that the attack was over a protracted period, and the significant disparity in size between you and the deceased.

36 In relation to Ms Randazzo's submission that you did attempt to obtain some help for the deceased and that one of the reasons why an ambulance was not called was that the victim did not want one, in my view, the prosecution's submission that your conduct in this regard was in fact an aggravating factor is correct. As the prosecution submitted, you did little or nothing to help the deceased and in fact continued to assault her.

37 In relation to Ms Randazzo's submission that you did love the deceased, it seems to me that what is more relevant is the history of your relationship with the deceased. You have the most shocking history of violence and abuse towards her over many years. The character of your relationship is an aggravating factor, not a mitigating one.

38 I accept that your son, Bradley, will now grow up without either parent and that the circumstances of your son will make your imprisonment additionally burdensome.

39 I do not accept the submission that you have been "let down by the system", as put by Ms Randazzo. You have had opportunities to obtain effective psychiatric help, the significant impediment to successful treatment having been your refusal to stop taking illegal drugs.

40 Indications of genuine remorse on your part are difficult to find. The only indications of remorse which seem to me to be of any credibility are the observations you made to the members of the Homicide Squad shortly after you were arrested. Those early indications of remorse appear not to have lasted, however. You denied being responsible for the deceased's injuries in the record of interview and one of the grounds of your defence in the trial was that the deceased's death was attributable to circumstances other than the injuries you inflicted. I am not persuaded that the evidence establishes genuine remorse for your actions on the balance of probabilities.

41 I am required by the legislation to regard the protection of the community as paramount. You have a violent history. You have never taken effective steps to deal with what you knew was the principal source of that violence, which is your drug use. You have committed a most cruel and violent murder. I sentence you to 25 years' imprisonment for the murder of Jennifer Lorraine Brodhurst. I fix a non-parole period of 20 years. I declare pursuant to s 18(4) of the Sentencing Act that you have already served a period of 710 days in custody.

1. [1] R v Storey [1998] 1 VR 359 at 369; R v Olbrich [1999] HCA 54; (1999) 199 CLR 270; Cheung v R [2001] HCA 67; (2001) 209 CLR 1; and R v Ramage [2004] VSC 508 at [25].
2. [2] (1993) 68 A Crim R 578 at 598.
3. [3] The principal authority is R v Tsiaras [1996] VicRp 26; [1996] 1 VR 398. There the Court of Appeal was considering a sentence imposed on an offender who suffered from an ongoing psychiatric illness, possibly schizophrenia. The Court characterised his condition as being a serious psychiatric illness not amounting to insanity. The Court held that such a condition is relevant to sentencing in at least five ways. It may reduce moral culpability. It may bear on the kind of sentence to be imposed. It may render the offender an inappropriate vehicle for general deterrence. It may render specific deterrence more difficult. It may mean a sentence will weigh more heavily on the offender than it would on a normal person.

Subsequent cases have addressed these issues. The relevant principles include the following:

1. For the Tsiaras approach to apply the "disorder" must be clearly explained and related to the offending conduct so as to explain how the disorder bore upon the moral culpability of the offender in committing the offences: R v Vodopic [2003] VSCA 172 at [28] per Eames JA.
2. Mental illness is not solely a mitigating factor. It may mean the offender, whilst deserving of compassion, is also a greater danger to the community: R v Izzard [2003] VSCA 152; (2003) 7 VR 480 at 483 per Callaway JA.
3. Serious psychiatric illness impacts in a variety of ways, and in a particular case may not exclude general deterrence but rather require considerations of general deterrence to be "sensibly moderated": R v Izzard [2003] VSCA 152; (2003) 7 VR 480 at 483 per Callaway JA; or applied "with limits": R v Maccia [2005] VSCA 20 at [32] per Winneke P.
4. The mere fact of a diagnosis of drug-induced psychosis does not entail an absence or reduction of moral culpability or necessarily require moderation of the aims of personal and general deterrence: R v Semaan [2003] VSCA 163 at [13] per Buchanan JA.
5. An offender may suffer from psychological conditions which, while not amounting to "serious psychiatric illness", may nevertheless reduce moral culpability compared to a person in full command of their mental faculties: R v Shankar [2004] VSC 132 at [21].
6. Evidence of a psychiatric condition or impairment is properly to be assessed in the light of, and weighed against evidence of, the offender's conduct in the commission of the crime: R v Maccia [2005] VSCA 20 at [28]- [32] per Winneke P.
7. A state of mind produced by drugs such as methamphetamine and sleep deprivation may be an aggravating factor rather than a mitigating one: R v McCullagh [2003] VSC 3 at [34], [36], [44].
8. [4] (1993) 68 A Crim R 578.