R v Browne [1999] VSC 282

Supreme Court of Victoria|1999-07-01|Before: Hampel J

CRIMINAL LAW - Sentencing - Murder - Husband stabbed wife - Provocation based on build up of tension - Offence not premeditated - 64 years of age - No prior convictions - Good character - Considerations applicable.

Ian Leslie Browne, you may be seated thank you, Mr Browne.

At your trial for the murder of your wife on 1 June of last year, the jury found you guilty. It rejected the defence of provocation based on a build up of tension within the relationship and a loss of self-control as a result of an abusive comment or comments by your wife. The facts at the trial were not really in dispute. It is the conclusion as to what occurred and what the state of your mind was at the time of the stabbing which was in issue.

You met the deceased in 1973 and married in 1975. This was your second marriage. You had three adult children from your previous marriage and two children, Dean and Beau, from your marriage to the deceased. They are now aged about 11 and 14. Your wife was 51 years of age and you are now 64 years of age.

Initially, this was a loving and devoted relationship which was described as a relationship in which you idolised and doted on each other, and that seemed to persist for a long time. However, over the period of approximately two years or thereabouts before June of last year, this relationship had clearly deteriorated and began to break down. It deteriorated much more and broke down, I think, virtually completely following the discovery by you in December of 1997 of some love letters which were written by your wife to a man by the name of Andrew. A second batch of such letters, a much greater number, were discovered by you some weeks before 1 June.

These letters had not been sent, but they evidenced a romantic fantasy by your wife and spoke of contact with the man, Andrew, by telephone. I think you accepted that these were apparent fantasy letters and I think significantly the letters were written to the man, Andrew, who was your eldest daughter's de facto partner of many years. I think this had a profound effect on you because although this was not a real affair, you felt alienated and what appeared to have been a loving relationship, although it had its problems, had clearly broken down by this, albeit imaginary, affection of your wife for another man.

You gave the originals of these letters to your solicitor. You decided to cut your wife out of your will, and despite your obvious love for your work as a court reporter, you resigned during this period. It seems that you did not want to have the possible beneficiary of your wife's affections having any access to your money. At the same time, it was clear that your wife was contemplating separation in the context of the breakdown of the relationship, and also concerned about her own life and the financial affairs following separation. That and many other things seemed to have become a source of arguments and fights between you.

At the trial, your family members, your wife's friends and you in your account to the police, gave accounts of the events which occurred during this breakup period particularly. The relationship described is one of mutual verbal abuse and constant criticism and criticism of you by your wife, some occasional physical confrontations, complaints about money, putting down of you publicly, causing embarrassment, to the extent where to use your words, you felt totally and utterly denigrated.

Friends and family urged on both of you to seek counselling and help, and as late as Sunday, 31 May, the day before this, your neighbour attempted to get you to counselling but unfortunately that did not happen. It seems that neither of you were prepared to walk away from the marriage, possibly because there was some affection left between you, but also probably because of the financial consequences, and so this destructive relationship between you, particularly in the last six months, continued until this day.

Apparently on the Sunday evening there was an argument between you and you wrote on the wall, "The constant horrific abuse and denigration that she pours out at me because of her affair", and added eventually, "retaliate". I think those words reflect your perception of what was occurring. You, on 1 June, posted a letter enclosing copies of the letters from your wife to Andrew and your own notes, detailing the abuse and what you described as the degrading treatment which you had experienced and said that "eventually I will blow up".

At about 3.15 on that day your wife rang your solicitors in an upset state, seeking to get some notes or letters back. It seems clear, and I think this emerged during the trial, that there was an argument going on or continuing between you on that day, and your son, Beau, who came home at about 3.50, also heard argument and ultimately the words by the deceased, "Don't hurt me", and ultimately a scream before you came out, having obviously stabbed your wife. You then called the doctor, ambulance, police. You were obviously distressed and agitated. You were concerned about your wife's condition and that reaction continued for some time.

In a long record of interview with the police, you described the history of the marriage and the breakdown and described what you said occurred on 1 June. You said in effect that you were in the bedroom when your wife used words like, "I don't know why I married you, I don't know what I saw in you". Earlier you had said that she had also referred to you as a dirty old man, and although you did not have a precise memory of those words, you told the police that it was that abuse that in the context of your argument, caused you to go to the kitchen, which was at the other end of the house, pick up a carving knife and then return to the bedroom where your wife was brushing her hair. You then inflicted two deep fatal stab wounds to her chest and other more superficial injuries. As a result of the two deep stabs she died at the house.

During the trial the Crown put its case on the basis that this was a premeditated decision to kill your wife and of course in considering what sentence should be imposed I have to determine what view I take of the facts, consistently with the jury's verdict.

Mr Brustman submitted this morning that I should take the view that this was not such a killing, but rather a killing in which the jury simply did not accept provocation on the basis of the second objective test in it, or possibly also not the loss of self control. Although the Crown did not address me on that aspect of the case for the purpose of the plea, I take it that the Crown's position at trial is not departed from.

To find that this was a premeditated decision to kill would of course be a very significantly aggravating factor in your sentence, and consequently I would have to be satisfied beyond reasonable doubt that that was the position. I am not so satisfied for the purpose of sentencing. Consistently with the jury's verdict I find that your actions were the result of a build up of stress and tension in this failing relationship in which you felt denigrated and alienated, and that the stabbing occurred in the context of an argument during which some words may have been used which I think caused you to become angry, lose judgement and perhaps some degree of control. I do not find that this was a premeditated decision to get rid of your wife by killing her.

You are now 64 years of age. You have an excellent work record as a court recorder for over 40 years. You have been described by a number of witnesses this morning, and indeed during the trial, by a number of people as a highly respected and well regarded person. You have been described this morning as a true gentleman, you are in fact a cultured, thoughtful person and it is a great tragedy that your life has come to this. It is of course also a great tragedy that a person has lost her life in these circumstances.

Dr Walton's report sets out your background. It is exhibited. He speaks of your past medical history which involves a condition of asthma for which you have been hospitalised on a number of occasions. In the early 70s you suffered from a viral encephalitis which is a type of brain infection, and the evidence suggests that since then you have been significantly affected particularly in the loss of memory, and that I think has been supported by evidence from witnesses during the trial.

The assessment by Dr Walton is that you exhibit what he calls an obsessional personality, and I think that is also borne out by what I have heard about your background and your character. Dr Walton is impressed by what he calls uncomplicated remorse. He describes your current state as one of a degree of depression which requires some anti-depressant medication and counselling, which you are apparently receiving.

A therapist, Mr Thompson, in his report describes you as a person who is making every attempt to resolve your shame, guilt and trauma over your wife's death, and the loss of contact with your children. I have no reason to doubt the correctness of those perceptions.

The killings in these domestic circumstances vary in their nature, but of whatever kind they I think do reveal a significant community problem. And the tragedy that is caused is quite evident in the victim impact statements, and what is obvious as great suffering and trauma produced by this sort of tragic event. There is nothing the court can do to undo all that, but given the problem that it is I think when a jury convicts a person of murder in these circumstances the court must respond by imposing a significant sentence.

At the same time, each crime of this kind is very much dependent on its peculiar facts, and in your case I take into account your age, the fact that you have no previous convictions and are a person of good character. You have been described as a non-violent person and I accept that, and such degree of physical violence which was displayed was the result of the stress and tensions within the relationship. It is certainly not a case of a man who - as some cases are of men who exhibit extreme and continuing cruelty and battery upon their partners.

I take into account your remorse and the unlikely re-offending, which I think means in this case that the sentence need not have a significant specific deterrence component. I also take into account the fact that you will lose all effective relationship with your two young boys.

Balancing all those considerations as best as I can, I think in your case the appropriate sentence should be one of fourteen and a half years imprisonment. I fix a period of nine and a half years before which you will not be eligible for parole. I declare that 399 days be reckoned as having been served pursuant to this sentence, and this order should be recorded in the court records. And in my discretion I refuse to make the order sought for a forensic sample because, I think, of your age and the term of imprisonment which you are about to serve.

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