R v Baxter [2009] VSC 180

Supreme Court of Victoria|2009-05-15|Before: FORREST J

CRIMINAL LAW - Sentence - Murder - Deceased wife stabbed brutally on multiple occasions in the family home with children present - Mental impairment defence rejected by jury - No remorse - No acceptance of responsibility - Offender's depressive condition - Offender assessed by treating psychiatrist prior to offence - R v Verdins considerations.

1 On 11 March 2009, after a ten day trial, a jury convicted you of the murder of your wife, Linda, on 2 August 2006. The jury rejected the defence you proffered pursuant to s 20 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).

2 At your family home in Lara, whilst your children slept, you brutally stabbed Linda to death with repeated blows to her face, neck and chest. She was defenceless and had done nothing to provoke your extraordinarily vicious attack.

3 The maximum penalty for the offence of murder is life imprisonment, and the most serious cases of murder attract penalties of 25 years' imprisonment or, in some cases, life imprisonment.

4 You were born on 26 November 1957 and were raised in Reservoir. You are now 51 years of age. The deceased, Linda Baxter, was born on 13 January 1964. In 1984, you met on a holiday and you were married in July 1985. You have two children, a daughter who is now aged 14, and a son who is now aged 11. You and Linda initially lived in Belmont and then, for approximately 12 years, at 7 Dixon Court, Lara.

5 You were a very good student and your subsequent work record was exemplary. For 25 years you were employed by FrontLine Defence Systems, rising to the position of Chief Financial Officer. When that company relocated to Queensland, you left its full-time employment in 2002. In 2003, Linda obtained employment with Rapp Australia and within a relatively short period had become the production manager for that company. In July 2004, you obtained employment as the General Secretary for the Australian Red Cross Society.

6 The evidence disclosed that you and Linda had a relatively happy marriage, although, I am satisfied, your domineering personality eventually took its toll on Linda. She sought solace initially on a confidante basis from Brian Stevens, who was a friend of your family. In 2003, Brian Stevens' relationship with Linda became intimate and she continued a relationship with him up until the time of her death in August 2006. Neither she nor Brian Stevens disclosed this to friends or family or to you.

7 It is clear that your relationship with Linda became increasingly rocky in the years leading up to 2006. I do not attribute this necessarily to Linda's relationship with Brian Stevens. Rather, that was part and parcel of Linda's unhappiness with a relationship that you controlled and dominated.

8 Linda has been described in a number of the Victim Impact Statements as a devoted and caring mother and a warm and gentle woman, loved by her family and friends. Many described her as the driving force of the family and a vital part of the Lara community. On what I heard during the course of the trial, I have no reason to doubt any of these matters. Indeed, notwithstanding that your marriage was collapsing, she was prepared to remain with you and provide support for you after your release from the Geelong Clinic in late June 2006. I will return in a moment to the events that led up to that hospitalisation.

9 In April 2006, you and Linda took the family on an overseas trip for five weeks with the hope that it would rekindle your relationship. Sadly, it did not, and it became clear shortly after your return home that Linda still intended to separate.

10 From about 9 or 10 June 2006, your world, as you perceived it, commenced to disintegrate. You became suicidal and, on 15 June, were admitted to the Geelong Clinic and diagnosed as suffering from severe depression. You spent a fortnight in the clinic and, notwithstanding your unfounded accusations about Linda's hostility, she visited you regularly and spoke often to Dr Singh, your treating psychiatrist.

11 I am satisfied that from 18 June onwards, you had convinced yourself that Brian Stevens and Linda were having an affair.

12 You were discharged on 30 June 2006 and continued to see Dr Singh on a regular basis, attending on some 11 occasions prior to 2 August. You could not return to work owing to your psychological state, and were taking anti-depressants at a fairly high dosage. Despite this, you were still functioning at a reasonable level and were able to engage in a number of financial transactions affecting superannuation entitlements, alterations to your Will and the purchase of a property, all related to the impending separation from Linda.

13 During the period after your discharge from hospital, you, on a number of occasions, told friends and work colleagues of your belief that Linda was having an affair and at times ruminated to others about killing her. I do not, however, believe that this constituted any true premeditation of your crime, rather it reflected your growing sense that you could not control Linda's determination to leave. On at least two occasions you described her as a "slut", and I am satisfied this was a direct reference to your belief that she was involved in an affair. Your statements on oath that you did not believe or suspect that Linda was having an affair were, I can confidently infer, rejected by the jury.

14 On 30 or 31 July 2006, you found Linda's mobile phone records, which included details of phone calls and text messages between her and Brian Stevens whilst you were overseas. You searched the house and found another set of mobile phone records and also a document, called "42 Questions", drawn up by Linda in relation to the impending separation. You then compiled a spreadsheet of Linda's phone calls to Brian Stevens with, I am sure, the intent of confronting Linda with this material.

15 On 2 August 2006, you received a number of setbacks. Your workers compensation claim in relation to your psychological condition being related to work was rejected and your solicitor advised you that it would be difficult to pursue an appeal. On that day, you were told by your family law solicitor that there was little prospect of you obtaining 50/50 joint parenting of the children once the separation occurred.

16 Notwithstanding this, when you saw Dr Singh on that afternoon, he thought that you were composed and had "a steely resolve". He could not detect any major change in mood or evidence of irrational or psychotic behaviour. He was of the opinion that you could contemplate a graduated return to work. Your condition was treated by the use of anti-depressants. Barbara Tilden, a psychologist who had seen you and Linda previously, spoke to you by telephone at about 5.00pm and she also could not detect any sign of irrational thought, delusion or hallucination.

17 You went at about 7.30pm to your friends, Mark and Sharon Melvin's house and spent an hour with them. They detected no irrational thought or unusual behaviour; you were keen to discuss Linda's phone records, the spreadsheet and the 42 Questions document. I do not accept your statement that the Melvins were keen to discuss with you Brian Stevens' relationship with Linda; rather, I think it was the converse: You wished to share with them your thoughts about Linda. I am confident that the jury accepted Sharon Melvin's evidence both as to your previous statements threatening to kill Linda as well as your statement on that night: "I should kill her". You had again called Linda a "slut" in conversations with the Melvins.

18 When you returned home, you confronted Linda with the material that you had taken to the Melvins. I accept, and I think that the jury accepted, that this was not, as you said, a discussion but rather a monologue in which Linda refused to participate. I have little doubt that this caused you further frustration, notwithstanding that any discussion would have been dominated by your accusations concerning Linda's relationship with Brian Stevens.

19 Linda went to the bedroom and you followed her. She told you to get out of the bedroom. You say that you have no recollection as to what occurred after that until you saw Linda lying on the floor, although you later recalled Linda uttering the words "Robert, I'm dying".

20 Subsequent to Linda's death, on several occasions you recounted to others that you had murdered Linda and on one occasion specifically told a doctor that you had stabbed Linda multiple times. I am unable to say whether your lack of specific recollection is feigned or whether it is true amnesia related to the horrific events of that night.

21 In any event, I accept the evidence of your daughter that she heard you shouting, Linda screaming and you calling Linda a "bitch" and a "slut". It is abundantly clear that you must have taken a knife from the kitchen and then, in a rage, stabbed Linda with incredible ferocity and violence some 30 times whilst your children were in the adjacent bedrooms.

22 You saw Linda die and exhibited no remorse for your actions; you showed her no mercy. You then took the children by car to the Melvins' house, stopping on the way at the Lara Police Station, where you compiled a note in which you stated, in part, that you murdered Linda for her affair with Brian Stevens. I am sure that the jury took the view that the contents of the note provided an accurate account of your motive.

23 Having dropped the children at the Melvins, you then travelled by car to the Geelong Road and drove your vehicle into several trees. You suffered some significant injuries, including a broken hip, as a result of this accident. I am unable to conclude one way or another whether this was a genuine suicide attempt.

24 When interviewed by members of the Homicide Division at the Alfred Hospital on 8 August 2006, you exhibited no remorse whatsoever for your actions. To the contrary, you blamed others - Linda, Brian Stevens - for your predicament. That approach did not change when you gave evidence before the jury.

25 At the trial, your counsel put two arguments to the jury. First, that your mental state was such that you did not possess the requisite intent necessary for the charge of murder to be made out. Secondly, that the defence of mental impairment was made out on the basis that you did not know the nature or quality of your actions, alternatively that you did not know that they were wrong. [1]

26 Whilst all the psychiatrists were agreed that you were suffering from a psychological disturbance at the time you killed your wife, there was a difference in their opinions as to the degree of severity of those symptoms and the classification of them.

27 The opinion of Professor Burrows and Dr Sullivan, forensic psychiatrists, was that you suffered from an obsessive compulsive personality disorder. Dr Singh preferred a diagnosis of obsessive compulsive traits, rather than personality disorder. I have little doubt, after hearing all the evidence, that a diagnosis of obsessive compulsive personality disorder was appropriate.

28 It is difficult to determine whether your associated psychological condition at the time of your wife's death was a major adjustment disorder or a depressive condition. To some extent, the label is irrelevant, as it is clear that you were in a psychologically affected state prior to 2 August and on that day.

29 I accept that the finding of the telephone records, the 42 Questions document, the rejection of the WorkCover claim, the adverse advice as to both the WorkCover claim and the shared parenting and the understandable "cold shoulder" of Linda contributed to you suffering a considerable degree of stress on 2 August.

30 Having said that, it is clear that the jury rejected the suggestion that in some way your rational state was so affected that you did not know the nature and the quality of your conduct, or that it was wrong. The jury's decision on this issue was patently correct. There was no evidence of any irrational thoughts, delusions, hallucinations or strange behaviour on your part either prior to or after the violent attack on Linda. Neither Dr Singh, who saw you during the afternoon of the 2nd, nor Dr Jenkins, the consultant psychiatrist at the Alfred Hospital who saw you on the morning of the 3rd, could detect any disturbance in your thoughts. Dr Sullivan, who reviewed a large amount of relevant material two years later, did not accept that you were suffering from such an impairment. His conclusion, which I accept for the purpose of sentencing, was expressed in the following terms:

"There is no suggestion that he was unaware of the nature or quality of his conduct at the time, if the events as alleged are taken as true. Nor is there any indication that his judgment was impaired substantially in confronting his wife about infidelity, whether or not this has occurred or not. Despite a clear state of emotional arousal in the context of the culmination of a series of perceived and potential losses, I do not believe that Mr Baxter has available a defence of mental impairment, as his prior and subsequent actions demonstrated an intact grasp of reality and clear evidence of reasoning with sense and composure."

31 Only Professor Burrows was prepared to say that you were so irrational so as to not understand the nature and quality of your acts and/or determine right from wrong. Clearly, the jury rejected his opinion.

32 In summary, at the time you killed your wife, I accept that you were depressed and had experienced a number of stresses during the day. None of this explains why you attacked her in such a violent fashion.

33 It is hard to imagine a more callous and savage attack than that perpetrated by you upon your defenceless wife in the family home. At the time, your two children were asleep in adjoining bedrooms. Whilst I accept that you were in a low mood and had a degree of frustration about your wife's failure to respond to your questions about the phone records, none of this provides even a glimmer of an explanation for your behaviour. I think that your actions flowed not only from your rage about your wife's affair, but more importantly from the fact that you could not control the unfolding of the impending separation.

34 For reasons that I find impossible to understand, you have continued to blame others for the predicament you find yourself in. In particular, you blame Brian Stevens and Linda. Whilst it is true that Brian Stevens and Linda were in a relationship, to a large extent this was due to your own inability to understand your wife's needs, which was reflected by numerous aspects of the evidence led during the course of the trial. Neither Brian nor Linda, of course, played any part in the situation in which you now find yourself. Only one person is responsible for the callous and brutal murder of your wife, and that is you.

35 Your culpability is high. I acknowledge, as the law requires,[2] that your moral culpability may be diminished by your psychological state at the time of the killing of your wife. I also accept that this appears to be the one occasion upon which you showed any form of violence towards her, although a number of witnesses spoke of the psychological impact your behaviour over the years had upon her. I take into account the fact that at the time of the killing of your wife you were in a depressed state, caused by a number of adverse events over the past few days, which lowered your already damaged self-esteem and mood. At the time you were on a significant dosage of anti-depressant medication. You had, however, in the weeks prior to this and on the day, continued to function reasonably well and your treating psychiatrist could, on the day, detect no major mood disturbance, nor could Dr Jenkins on the day afterwards when she saw you at the Alfred Hospital. The evidence does not disclose that your ability to exercise appropriate judgment, to make calm or rational choices, to think clearly or to appreciate the wrongfulness of your conduct was impaired.[3] I do not accept that your mental condition was such as to reduce significantly your moral culpability or the need for a sentence which reflects elements of both specific and general deterrence.

36 You have shown no remorse whatsoever for your actions. You do not seem at all concerned that you have ended the life of a loving and caring mother who was, to her ultimate cost, prepared to support you after your discharge from the Geelong Clinic. Your lack of remorse and inability to come to grips with your own actions is a matter of considerable significance.

37 The Sentencing Act 1991 requires me to take into account the impact of the offence on any victim of your crime.[4]

38 In the course of the sentencing hearing, Linda's mother, Rosalie Stevens, and her sister Jenny Stevens, read their Victim Impact Statements.

39 The impact upon Linda's immediate and extended family and friends has been extraordinarily severe. Statements[5] have been filed by many members of the family and by a number of her friends. I have read them all.

40 It is hard to imagine a crime that could have had a greater effect upon your children than that committed by you. By your actions on that evening, you have deprived your children of both a father and a mother. Your daughter's Victim Impact Statement and that of your sister-in-law, Jenny Stevens, demonstrate the manifest psychological distress that your actions have caused. How they will cope in the future is unclear. It cannot be gainsaid that the effect upon your children has been one of extraordinary severity.

41 In relation to Linda's family, there is a constant theme of anguish, despair, loss, emptiness and anger, all of which has persisted to the present time and, in a number of cases, required either counselling or psychiatric intervention. There has been a secondary effect in relation to Linda's death, namely the stress that has been placed on the relationships of family members with their spouses or partners. This is particularly so with those members of the family who have selflessly and generously taken over the guardianship and raising of the children. One other matter stands out in relation to the impact that your actions have caused, and that is your inability to accept responsibility or show remorse for the death of Linda. This has, understandably, caused great angst to members of the family.

42 I hope that I do no disservice to others who have filed Victim Impact Statements when I read only from those of three members of the family. All are important.

"I have lost my eldest daughter. She was a beautiful, caring and loving woman who did not deserve to die, and it leaves an emptiness in my heart that cannot be filled."

"After my mum passed away there has been a massive hole inside me because I didn't just lose my mother I lost my best friend and the only person in the whole world that I could talk to about anything. I feel like I have no-one to talk to that wouldn't judge me for what I have to say. I hate that I heard her scream on the night she died and I didn't do anything to help her. I feel that massive amount of pain every day."

45 A member of the extended family said as follows:

"We can never get over something like this - this murder. No-one learns to live with it ... the brutality ... the callousness ... the absolute lack of remorse or regard for anyone else. This has changed all of us forever ... This has been a completely life-altering event for myself and my family."

46 As I have said, the impact of your actions is not confined to Linda's extended family. Several of Linda's close friends have been significantly affected by your crime. They too have suffered considerable loss and anguish in relation to Linda's death. Some continue to experience psychological symptoms related to Linda's death and have required counselling and psychiatric treatment. The husband of one of Linda's closest friends said as follows:

"....................... but nothing could compare to my not being able to help my wife ... through her crisis, unable to make the nightmare go away. The pain, suffering, arguments and tears on every visit to the psychologist's or counsellor's. I was in constant fear that she may harm herself. During this time my functioning on a day to day basis, especially at work when I was not with her, very difficult. ... All the time taken off work initially to be with family and friends grieving and then our numerous visits to doctors, psychologists and counsellors contributed to putting a huge stress upon myself ..."

47 I wish to say something about a number of those friends and family who filed Victim Impact Statements. Some attended most days, if not every day, of the trial. Several of them, and particularly Sharon Melvin, appear to think that they in some way are responsible for Linda's death, or could have done something to avoid it. They are wrong and should put this exercise in hindsight to one side. Nobody could have foreseen that you would have acted in the manner you did, notwithstanding the threats you made. Your behaviour was, I accept, totally outside your known character up to that day. It is important that those who loved and supported your wife know that the only person responsible for her death is you.

48 You have never been charged with a criminal offence. You are of previous good character and you have never exhibited physical violence to any member of your family. On many occasions you spoke of your love for Linda and your children. The references tendered on your behalf reveal a totally different man to that who returned home from the Melvins on 2 August 2006.

49 I accept your counsel's submission that it is unlikely that you will re-offend when released from custody.

50 I have also taken into account that you are currently 51 years of age and will not be eligible for release until you are in your 60s.

51 You still suffer from depression and your underlying obsessive compulsive personality disorder is permanent. Dr Sullivan said that your personality disorder is relevant to your depression in two ways. First, it predisposes you to the development of anxiety and depression when your own coping strategies are unable to adapt and, secondly, it limits your ability to deal with changing circumstances. You still take a strong dose of anti-depressants and will, I anticipate, continue to need treatment whilst incarcerated.

52 Your psychological condition at the time of the killing is relevant to issues of deterrence and moral responsibility for your actions, although in my view your mental functioning was only slightly affected by your lowered mood or depressive state. I take it into account, as I do the fact that gaol may be somewhat harder for you than other prisoners, given that condition. In the context of the circumstances of this crime, I do not regard it as having any real bearing on the principle of general deterrence. Your age, lack of prior convictions and previous good character are, of course, in your favour. On the other hand, the circumstances of this crime, your lack of remorse and abrogation of responsibility are salient factors, as is the need for society's condemnation of your actions, particularly given the circumstances of your wife's death and the presence of your children in adjoining rooms at the family home.

53 I have determined that the appropriate sentence is 20 years' imprisonment.

54 Your prospects of rehabilitation are good, although I doubt that you will ever accept responsibility for your wife's death. Outside a relationship I think it highly unlikely that you will re-offend. Given your age and psychological condition, an appropriate non-parole period is 16 years.

55 I convict you for the murder of your wife, Linda. I sentence you to 20 years' imprisonment and order that you serve a minimum sentence of 16 years' imprisonment prior to being eligible for release.

56 I direct that as at this date the period reckoned to be already served under the sentence I have imposed is 1017 days to 15 May. I direct that that be noted in the Court's records.

[1] Section 20 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.

[2] R v Verdins, R v Buckley, R v Vo [2007] VSCA 102; (2007) 16 VR 269 [32], R v Tsiaras [1996] VicRp 26; (1996) 1 VR 398, R v Howell [2007] VSCA 119; (2007) 16 VR 349 [20].

[3] R v Puc [2008] VSCA 159, [31].

[5] 17 Victim Impact Statements were filed.

Crimes (Mental Impairment and Unfitness to be Tried) Act 1997(Vic)

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