R v Barrett [2008] VSC 234

3 In the car-park of the police station you said to the police present, "I am going to miss her, we've been together for years. I didn't mean it, just like the last time. I thought she would get better. You know, my mum's a nurse, you know, I just get jealous."

4 You were subsequently conveyed to the offices of the Homicide Squad and later on that day, after you had slept, you were seen by a forensic medical officer, Dr Marginean. You were cautioned in her presence and you told her you had suffered from a drug induced psychosis for 13 years, that your current medications were Xanax, Mogadon and Buprenorphine and that you had ceased taking Respiridone a fortnight beforehand. You reported that you had last taken amphetamines some time before the weekend and that you had had "a couple of caps of heroin yesterday".

5 Dr Marginean determined that you were not then suffering from any psychosis nor did you appear drug affected and you were therefore fit to be interviewed. Consequently, you were interviewed by the police and in that interview you denied inflicting injuries causing Ms Brodhurst's death (Q. 268). You stated that you and your mother nursed her for a couple of days, three or four days, (Q.270) and when asked why you called an ambulance you replied, "Because I kept asking Jenny in the prior days, 'should I call an ambulance', she wasn't able to talk but she was able to nod and every time I asked her she said no" (Q.105, 106). You also told the police that you were taking various medications and that you had taken Xanax just before you were arrested.

6 At approximately 9.30 a.m. on 11 June 2003, a pathologist, Dr Matthew Lynch, went to your house and there examined Ms Brodhurst. He was able to determine that she had been dead "more or less a day, probably around a day". It follows then, that when you called the ambulance Ms Brodhurst had last been alive somewhere around mid-morning the previous day.

7 Dr Lynch performed an autopsy on Ms Brodhurst at 2 p.m. that day. He established that she weighed 47 kilograms with a height of 147 centimetres. Dr Lynch observed evidence of acute left-sided subdural haematoma, numerous injuries to the body of varying appearances which could be seen both with the naked eye and microscopically and some of these injuries showed early healing changes and some had the appearance suggestive of superimposed infection. The subdural haematoma showed no evidence of healing and thus represented an injury sustained in the period shortly before death.

8 There were injuries on the scalp which appeared both recent and of a slightly older age, he opined of some days. It was not possible to determine specifically which of the more recent injuries were associated with the subdural haematoma.

9 There were injuries to the forehead, neck, both cheeks and chin, two of which were covered with a dressing. There were injuries to the chest. There were injuries to the forearms comprising bruises and abrasions. There were two bite marks.

10 There were recent healing fractures of the right and left fourth ribs, a recent fracture of the left index finger and a healed fracture of the left little finger. The two rib fractures he opined would have required significant compressive force to produce those injuries and they appeared to have different healing times.

11 There was a haemorrhage to the pancreas which could be related to the injury to the abdomen and could be produced by punching. The intracranial haemorrhage, he opined, would have been caused by blows to the left handed side of the head which he said would have occurred about a day from when the deceased had died, and would have been occasioned by a significant blow.

12 He looked at 22 different injuries, three to four of which had the appearance of being present for a few days, but most of the injuries he observed had occurred within one or two days of death. Kidney analysis indicated kidney failure possibly caused by dehydration and/or muscle damage as a result of injury, and toxicological analysis detected the stimulants methylamphetamine and amphetamine which he said had the potential to cause cardiac arrhythmia. The narcotic analgesic, Tramadol, which was seen in levels which exceeded the normal therapeutic use; the toxic side effects of which included respiratory depression and the sedative, Oxazepam.

13 Dr Lynch opined that the ultimate cause of death was problematic. Ms Brodhurst had evidence of multiple injuries, including a significant head injury, and there were also significant results as disclosed by toxicological and biochemical analysis. The cause of death he determined should properly be attributed to a combination of factors and that death in these circumstances would have been protracted.

14 A forensic examination of the house was undertaken and a search located a piece of blood stained timber and a blood stained knife in the main bedroom, and a second section of blood stained timber located in a green wheelie bin. Samples of blood were taken from the laundry, toilet, bathroom, main bedroom and two other bedrooms, the hallway, and from a number of items in the house and also from your motor vehicle.

15 Cleaning equipment and household cleaning products evidently purchased at 2.35 pm on 9 June 2003 were also located.

16 A forensic scientist attended at the house at 8.45 am on 11 June 2003. He observed and interpreted apparent blood stain patterns on various surfaces within the main bedroom, the en suite bathroom and the hallway immediately outside the bedroom.

17 He also collected a clump of human hair attached to the wardrobe handle and later determined that that hair had been forcibly removed, although he did not further analyse its provenance. He opined that some of the blood that he observed had an aged appearance, although the majority of it appeared fresh.

18 His examination suggested that Ms Brodhurst was repeatedly struck and, in one area of the main bedroom, forcefully so. The place where the deceased was found lying had bloodstains surrounding her and blood on the ceiling, indicating that something had been wielded in a fashion that had caused blood to cast off it and strike the ceiling, indicating forceful blows. He observed also bloodstains adjacent to the cupboard door and on the wall above and beyond the mattress where she lay. After conducting the necessary analysis, he determined that the blood from the cupboard doors and the east wall matched the DNA profile of Ms Brodhurst. In his opinion, the presence of discrete areas of blood spatter-staining, together with what appeared to be cast off bloodstains, indicated that repeated blows may have occurred in at least two different areas within the bedroom.

19 The possibility of some bloodstains having an aged appearance was suggestive of at least two events, separated by a considerable length of time and the presence of what appeared to be diluted blood deposits, suggested the possibility of attempts at removing the bloodstains. Further, deposits on the surfaces underneath the mattress and behind the wardrobe door suggested forceful events involving injury to Ms Brodhurst prior to the positioning of her body on the mattress. DNA analysis of the knife and the two broken parts of timber and a motorbike helmet determined that they were each stained with blood, likely to have been sourced from you and the deceased.

20 It is not known how or precisely when these injuries were inflicted on Ms Brodhurst. She was seen in your company alive and uninjured by a police officer in St. Kilda at 4.30 am on Saturday 7 June 2003. A friend, Mark Hepburn, visited your house on that Saturday and Sunday and did not see Ms Brodhurst. Another friend, Paul Harding, rang you at 1.11 pm on Monday 9 June. In that telephone conversation you said, "Something's happened here. I'm waiting for my parents to come over." You then said either, "I've done something to Jen" or "I've done something again."

21 I am satisfied that some time between 4.30 am on 7 June 2003 and 1.11 pm on 9 June 2003, Ms Brodhurst was assaulted by you. As to the way in which she was injured, you told Doctor Jager, forensic psychiatrist, that you had argued with Ms Brodhurst when you got home from St. Kilda and that Jenny had lunged at you with a knife. You then hit her with a motorbike helmet and she hit her head on the bed. You hit her legs with the blunt edge of a knife but you stopped when you had gone too far and apologised to her. Your counsel, Mr Morrissey, however, conceded that this is not an entire account of your actions and indeed such explanation does not fit with the objective evidence.

22 Having due regard to the totality of the evidence placed before me, I am satisfied beyond reasonable doubt that your assault upon Ms Brodhurst was not confined to striking her with the motorbike helmet and hitting her on the leg with the blunt end of a knife. Indeed, the evidence of the various sites and nature of bloodstains and the nature, number, age and location of the injuries sustained by Ms Brodhurst satisfy me that she was the victim of a savage assault on more than one occasion prior to her death, although it cannot be established how the head injury was caused, and that she was struck with the knife, bike helmet and piece of timber. It is not known the circumstances in which Ms Brodhurst ingested the drugs and I make no finding in respect of that.

23 You are 35 years old, you commenced a relationship with Jenny Brodhurst in 1992 when you were 19 and she was 18. That union produced a son, Bradley, now aged 12, and in June 2003 you were both living at 16 David Avenue, Cranbourne, although your son had been removed from your custody by the Department of Human Services and was placed in the care of your mother.

24 Your relationship with Ms Brodhurst was marked by many instances of serious violence inflicted by you upon her. Your violent abuse is well documented in the notes recorded by various doctors and agencies where Jenny Brodhurst sought treatment and intervention.

25 The Crown detailed 24 specific episodes between 1992 and 2003 when Ms Brodhurst was the victim of your violent behaviour. In particular, in the 12 month period leading up to her death, Ms Brodhurst sought medical treatment for injuries inflicted by you on numerous occasions and she sought crisis accommodation during this period on nine separate occasions. On 20 March 2003, Ms Brodhurst took out an interim intervention order against you which subsequently lapsed.

26 You have admitted 22 prior convictions from ten court appearances, none of these prior convictions involved offences against Ms Brodhurst, for although there was police involvement on a number of occasions when you were violent towards her, Ms Brodhurst either declined to lay charges or did not nominate you as the offender and on one occasion withdrew the charges. However, four of your prior convictions include offences of violence and, in particular, in May 2001, you were sentenced to three years' imprisonment with a non parole period of 12 months for the offences of aggravated burglary and intentionally causing serious injury. These offences related to a violent attack upon a male friend whom you erroneously believed had been intimate with Ms Brodhurst, thus you were on parole when you committed this offence.

27 You were well aware of your propensity for violence directed towards Ms Brodhurst and that it was motivated by jealously. In September 2002, some eight months before Ms Brodhurst died, you were seen by Dr Grant Lester, consultant psychiatrist. You admitted to him that over the years you had "assaulted Jenny many times, sometimes sufficiently to put her into hospital." You stated also that the precipitant for many of these assaults was your ongoing suspicion and that your suspicion and jealous behaviour increased when using amphetamines.

28 You reported to Dr Lester a history of drug and alcohol abuse over the years which moderated after the birth of your son, but nonetheless you continued to use amphetamines sporadically.

29 You attended the Heatherton Psychiatric Hospital as an out-patient where you were diagnosed as having a form of drug induced psychosis and you were prescribed anti-psychotic medication.

30 Dr Lester reported as follows: "Mr Barrett appears to suffer from morbid jealousy which has preoccupied him for the last ten years. He has severely assaulted over those ten years his partner Jenny, and states at times the assault has been so severe as to place her in hospital. Mr Barrett stated that he continues to be preoccupied with his fear that she was unfaithful in the past and that she has been unfaithful since. Mr Barrett notes that when he is using amphetamines his morbid jealousy increased markedly. While Mr Barrett appears to have some insight into the damage which his jealousy is doing, both to himself and to his partner, it appears that this insight does not carry much power. Mr Barrett represents a significant risk of physical harm to his partner Jenny. This harm would significantly increase if he were to abuse amphetamines and to be unsupported psychologically."

31 Dr Lester also reported as follows: "Mr Barrett said that he is now even more aware of his potential for harm to his partner and to others, and that he actually wanted psychological help to change." I accept, therefore, that you were well aware that you had a propensity of violence towards Ms Brodhurst, borne of what Dr Lester described as your morbid jealousy and that this was increased markedly when using amphetamines and that this was the situation that you placed yourself in some time after 4.30 a.m. on Saturday 7 June 2003.

32 The case against you is put on the basis of reckless murder, that is, you knew by reason of the repeated and forceful nature of the injuries you inflicted on Ms Brodhurst that it was probable that your actions would result in really serious injury causing death, and yet you continued to assault her. It is not put that you had the specific intention to kill or cause really serious injury, and in this way the case is different, but in my view no less serious than that which Whelan J dealt with when he sentenced you after jury verdict to 25 years imprisonment with a non-parole period of 20 years.

33 The Crown submit that this is a serious case of reckless murder, that it must be placed in the context of ten years of serious violence directed towards Ms Brodhurst, which violence was escalating, and that you were well aware of your propensity for violence when you were drug affected.

34 Mr Tehan QC, who together with Ms McNiff, appeared for the Crown, submitted that the tragedy of this case is that you did continue to abuse drugs and to a large extent failed to seek the appropriate treatment. Although it is not disputed that in the weeks and months leading up to 7 June you did engage in counselling and supervision as required by your parole, your counsel nonetheless described your efforts in this regard as "floundering". Indeed when you and Ms Brodhurst were seen by a counsellor on 22 May 2003, some fortnight or so before her death, Ms Brodhurst was observed to be pale, her face battered and her top lip swollen. Such was your behaviour at this time that your father contacted your case worker to express his concerns.

35 Dr Lester Walton, consultant psychiatrist, gave evidence on your plea and his reports dated 21 May 2001 and 17 March 2005 were tendered in evidence as Exhibit 3. Dr Walton expressed the opinion, which the Crown does not dispute, that you were probably psychotic at the time you assaulted Ms Brodhurst, but he said it is very difficult to clinically diagnose whether the psychosis was the result of amphetamine or other drug induced psychosis, or an illness of a paranoid psychotic type, probably schizophrenia, aggravated by drug use. At the very minimum Dr Walton described you as suffering a drug aggravated psychosis. The precise diagnosis he said, is elusive.

36 Dr Walton's reports detail your antecedents which I accept. You reported to him a long history of substance abuse dating back to childhood, but your principal drug of abuse was amphetamine, which you commenced using in the 1990s and which use escalated to quite marked proportions.

37 You reported to Dr Walton that you had been using "crystal meth" and had been awake continuously for about a week prior to 7 June, and you described becoming very paranoid. Indeed when you were received into prison you were prescribed anti-psychotic medication.

38 I accept that you were suffering a psychosis at the time you committed this offence, although it cannot be determined whether the psychosis was drug induced or arose from underlying schizophrenia or both. The principles enunciated in R v. Tsiaras[1] and R v. Verdins[2] are therefore relevant, but are to be qualified in their application. This is so because you had a long history of violent abuse towards Ms Brodhurst, you had insight into your morbid jealousy and its interaction with drugs, specifically amphetamines, yet you continued to abuse drugs and on this occasion go onto brutally assault Ms Brodhurst with fatal consequences. Further Dr Walton has expressed the view that there is a moderate risk of your recidivism.

39 In these circumstances, while considerations of general deterrence and just punishment are to be moderated by reasons of your psychotic state, nonetheless specific deterrence and the protection of the community are to be accorded due weight. Having said that, I acknowledge that I am sentencing you only in respect of this offence of murder and the sentence imposed is not increased by your previous violence directed towards Ms Brodhurst.

40 Your counsel has submitted that you are now remorseful for your conduct, which in my view stands in contrast to the belligerent and uncaring attitude you adopted at times throughout your interview with the police. Doctor Walton, in his report of 2005, recounted your expressions of remorse such as they were then but in evidence before me on the plea, he stated that over the seven years he has known you he has observed that you have matured psychologically and that you are now capable of making a clear expression of remorse such as is reflected in your plea of guilty. You are remorseful not only for what you have done but that by your actions you have robbed your son of his mother and yourself of the woman you professed to love. Your remorse is also evident in your written statement to the court, tendered as Exhibit 1. I accept also that your plea of guilty entered despite obtaining a retrial upon a successful appeal is also indicative of your remorse and that you are entitled to have the discount for your plea of guilty placed in that context.

41 In your written statement to the court, you expressed the hope that you can be rehabilitated and become a better person. You acknowledge that your drug use has, in your words, "Caused a huge trail of destruction" in your life and those around you and that you would never go back to using drugs. In my view, such resolve is absolutely imperative to ensure that you do not re-offend and that the community is accordingly safe from you.

42 Your parents and younger sister Jodie continue to support you, and Jodie, in her testimonial tendered as Exhibit 5, states that they will continue to support you upon your release into the community. Your elder sister, Michelle Johns, had over the years formed a deep bond with Ms Brodhurst, whom she regarded as a sister. It is evident from her statements that she deplored your abusive conduct towards Ms Brodhurst. In her victim impact statement, tendered as Exhibit C, Ms Johns speaks eloquently of the pain, sadness and anger she has endured as a result of Ms Brodhurst's death.

43 In sentencing you, I take into account your plea of guilty. The fact that in so pleading you have foregone a retrial to which you were entitled. I take into account also that you are remorseful for your conduct and that such remorse is genuine and is reflected in your plea. I take into account also that you have saved the community the expense of a trial. I take into account also that you were suffering a psychosis at the time you killed Ms Brodhurst and that you are now resolved to be drug free and to that end, you have gained insight into your offending conduct. I take into account also that you have the continued support of your parents and one of your sisters.

44 By reason of your previous conviction for causing serious injury intentionally, you are to be sentenced in respect of this offence as a serious, violent offender and that fact is to be noted in the court records. As a sentence of imprisonment in respect of this offence is justified, in determining the length of the sentence, I must and do have regard to the protection of the community from you as the principal purpose for which the sentence is imposed but do not consider that it is necessary, in order to achieve that purpose, to impose a sentence which is longer than that which is proportionate to the gravity of the offence committed, considered in light of its objective circumstances because the sentence I propose to impose will achieve that purpose.

45 I must also take into account the nature and gravity of the offence here committed. You killed the woman you said you loved, the mother of your son, in a most callous, savage and brutal manner. She was violently assaulted by you more than once and although she was seriously injured and therefore in a vulnerable position, you continued to assault her. There can be little doubt that Ms Brodhurst endured a cruel death. I agree with the characterisation of your offending as a serious example of reckless murder and accordingly, even allowing for all matters which go in your favour and the applications of the principles of Verdins' case, nonetheless a substantial period of imprisonment is called for.

46 As you committed this offence while you were on parole, I must be cautious in considering whether you would benefit from a lengthy period on parole as your counsel submitted. In fixing the appropriate sentence of imprisonment, I have in the interests of justice had regard to the period you have spent in custody as a result of the revocation of your earlier parole.

47 Accordingly, for the murder of Jenny Lorraine Brodhurst, you are convicted and sentenced to 21 years' imprisonment, with a non parole period of 17 years. And I declare that you have already served, by way of pre-sentence detention, a period of 1124 days. I have signed today an order pursuant to s.464ZF ordering the retention of the saliva samples.

[1] [1996] VicRp 26; [1996] 1 VR 398

[2] (2006) 16 VR 269