R v Cahill

Supreme Court of NSW|2018-11-01|Before: Johnson J, Mr J

The Present Offence

The Offender, Cathrina Ann Cahill, has pleaded guilty to an indictment charging an offence of manslaughter - that, between 17 and 18 February 2017 at Padstow in the State of New South Wales, she did unlawfully kill David Walsh. The maximum penalty for this offence is imprisonment for 25 years.
On 18 February 2017, the Offender was charged with the murder of Mr Walsh.
The murder trial of the Offender was listed to commence in this Court on 22 October 2018. On that day, the parties requested the Court to stand the proceedings over to the next day and, on 23 October 2018, the Offender was arraigned on a fresh indictment which charged manslaughter only, to which she pleaded guilty.
The Crown indicated to the Court that this course had been taken based upon the Crown's acceptance that the partial defence of substantial impairment by abnormality of mind under s.23A Crimes Act 1900 arose in this case, with the consequence that the Crown had determined not to proceed at all on the murder count, but to arraign the Offender afresh upon an indictment charging manslaughter only.

The Sentencing Hearing

The sentencing hearing proceeded on 1, 2, 9 and 13 November 2018, on which date the Court remanded the Offender for sentence today.
The Crown bundle on sentence (Exhibit A) was received in evidence together with a range of other documents. Included in Exhibit A was a document entitled "Agreed Facts", to which I will return shortly.
As will be seen, the present offence occurred against the background of a volatile relationship between the Offender and Mr Walsh which had extended over a period of two years. Incidents of violence occurred in that relationship in which each of the Offender and Mr Walsh acted aggressively towards each other. A number of these events were referred to in the "Agreed Facts".
In addition, the Crown called Isobel Jennings to give evidence at the sentencing hearing with respect to events concerning the Offender and Mr Walsh, which occurred in October and November 2015.
The Offender gave oral evidence at the sentencing hearing as did her father, Daniel Cahill. In addition, a number of documents were tendered in the defence case.
The Offender's plea of guilty constitutes an admission of the elements of the offence of manslaughter: GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22 at 211 [30]. Any facts beyond those necessarily involved as an element of the offence must be proved by evidence admitted formally or informally: GAS v The Queen at 211 [30].
There are a number of areas of factual dispute arising from the sentencing hearing. In resolving disputed issues of fact, the Court may only make a finding which operates to aggravate the offence if satisfied beyond reasonable doubt of that fact. On the other hand, if there are matters which the Offender seeks to rely upon to reduce penalty, it is enough if those matters are proved by the Offender on the balance of probabilities: Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at 69-71 [64]-[66].
It is appropriate to observe, however, that some disputed issues of fact may not be capable of resolution in a way that goes to increase or decrease the sentence that is to be imposed. There may be issues which the material available to the Court will not allow to be resolved in that way: Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 at 636 [19]. In addition, it must be recognised that not every matter urged on a sentencing Judge has to be, or can be, fitted into categories of aggravating or mitigating circumstances. The Court may be unpersuaded as to matters urged in mitigation or in aggravation. Of course, the absence of persuasion about a fact in mitigation is not the equivalent of persuasion of the opposite fact in aggravation: Weininger v The Queen at 638 [24].

The Offence of Manslaughter in this Case

In the circumstances of this case, the Offender's plea of guilty involves admissions that she caused the death of Mr Walsh by the commission of an act which was accompanied by an intention to kill or (at least) an intention to cause grievous bodily harm to him.
The Crown's acceptance of a plea of guilty to manslaughter based upon substantial impairment involves an acceptance by the Crown that the Offender has proved, on the balance of probabilities, that she should be convicted of manslaughter (and not murder) under s.23A(4) Crimes Act 1900, by establishing the elements contained in s.23A(1), which provides: "(1) A person who would otherwise be guilty of murder is not to be convicted of murder if: (a) at the time of the acts or omissions causing the death concerned, the person's capacity to understand events, or to judge whether the person's actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition, and (b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter."
The term "underlying condition" is defined in s.23A(8) as meaning "a pre-existing mental or physiological condition, other than a condition of a transitory kind".
If a person was intoxicated at the time of the act causing death as a result of self-induced intoxication, the effects of that self-induced intoxication are to be disregarded for the purpose of determining whether the requirements of s.23A(1) are made out: s.23A(3).
The psychiatric evidence relating to the Offender was furnished by two eminent forensic psychiatrists, Dr Stephen Allnutt (for the Offender) and Dr Jonathan Phillips (for the Crown). Reference will be made to the medical evidence a little later in these remarks.
Against this background, I will proceed to make findings of fact for the purpose of sentence.

Facts of the Offence

What follows constitutes my findings of fact made for the purpose of sentencing the Offender. The foundation for these factual findings arises largely from the "Agreed Facts", together with findings made by reference to the oral evidence of Ms Jennings and the Offender including areas of factual dispute. Backgrounds of the Offender and Mr Walsh
In February 2017, the Offender was 25 years old. At that time, Mr Walsh was 29 years of age. Both were citizens of the Republic of Ireland who were residing in Australia on working holiday visas. Mr Walsh had come to Australia in 2012 and the Offender by (at least) 2013.
The Offender said in evidence that she had met Mr Walsh in Ireland on one occasion (T125) although they did not come to know each other well until they met again in Australia in 2014, at a hotel in Bondi Junction. They commenced an intimate relationship in late 2014. In due course, on 31 December 2016, they became engaged to marry.
As will be seen, the relationship between the Offender and Mr Walsh was a volatile one, marked by incidents of violence on both sides of the relationship.
The Offender and Mr Walsh lived together in different premises, including houses at Rosebery, Matraville and Padstow between 2015 and 2017. At different times, other Irish nationals would share premises with the Offender and Mr Walsh. The Offender, Mr Walsh and Others Reside in Matraville
In September 2015, the Offender and Mr Walsh moved into a four-bedroom house in Blaxland Street, Matraville. Isobel Jennings and Jonah Summers shared the premises with them as housemates. The Offender and Mr Walsh shared one bedroom. Other persons, including Amy O'Shaughnessy and Grace Keegan, also resided there at various times.
To assist an understanding of the volatile relationship between the Offender and Mr Walsh, it is necessary to refer to a number of incidents of violence which occurred in 2015. These earlier incidents of violence shed light upon the relationship between the Offender and Mr Walsh, the state of mind of the Offender at relevant times and the atmosphere which existed between these two persons at different times, including the time of the manslaughter offence: R v Toki (No. 3) (2000) 116 A Crim R 536; [2000] NSWSC 999 at 540-541 [23]-[30]; R v Merrick (No. 2) [2016] NSWSC 164 at [97]. I make clear, of course, that the Offender is to be punished only for the offence of manslaughter and not these earlier incidents, one of which had already been dealt with by a sentencing court. An Incident on 13 September 2015
On 13 September 2015, police attended the Matraville residence after a phone call to "000" was made by a female. The Offender denied calling police. The Offender and Mr Walsh had been at the Matraville Hotel earlier that evening and both were observed by police to be significantly intoxicated. Both parties had injuries to their noses. The Offender told police that she had a verbal altercation with Mr Walsh that turned physical and that Mr Walsh had assaulted her to the face and she had punched him back in the face.
The Offender and Mr Walsh both declined to give statements. As neither of them would provide a statement and both had injuries, no domestic violence charges were preferred by police.
However, police took out an apprehended domestic violence order ("ADVO") against Mr Walsh for the protection of the Offender, which contained mandatory orders, including a condition that Mr Walsh not approach the Offender within 12 hours of consuming intoxicating liquor or illicit drugs. Another Incident on 3 October 2015
A further incident occurred on 3 October 2015, as to which there is a factual dispute between the versions of Ms Jennings and the Offender.
At about midnight on 3 October 2015, Ms Jennings was upstairs in her room at Matraville with Mr Summers.
The Offender and Mr Walsh were arguing in the adjoining bedroom, commenting about each other's family. They both sounded upset.
Ms Jennings came out of her bedroom, opened their bedroom door and said to the Offender "Tina, will you come downstairs and have a cigarette?". According to Ms Jennings, the Offender replied "No darling, I'm grand". The Offender denies saying these words. I prefer the evidence of Ms Jennings on this aspect and am satisfied that the Offender used words to this effect.
Ms Jennings went back to bed. The shouting between Mr Walsh and the Offender continued. In the course of the argument, Mr Walsh said words to the effect "Your dad steals from charities". Ms Jennings heard the bedroom door open and someone run downstairs. She got out of bed again and saw Mr Walsh sitting on the upstairs sofa about three metres away from her. He had his head in his hands and he appeared upset.
What happened next was the subject of particular dispute between Ms Jennings and the Offender. According to Ms Jennings, the Offender walked up the stairs with her hand behind her back (apparently holding a knife). Ms Jennings again asked her to come out for a cigarette, with the Offender replying "No darling, I'm grand". The Offender denies this aspect of the incident. Once again, I prefer the evidence of Ms Jennings on this aspect.
According to Ms Jennings, the Offender then walked over to Mr Walsh and struck him to the back of the head four times with a knife, before she dropped the knife and walked away.
The Offender denied that this occurred. According to the Offender, Mr Walsh had the knife (which had been in their bedroom) and had brandished it towards her, cutting the back of her hand. She then took hold of the knife and followed Mr Walsh out of the bedroom. Whilst he was sitting on the upstairs sofa and facing away from her, she struck him to the back of the head several times (T143). In evidence, the Offender could not explain why she did this to him (T143). It was common ground that the knife used in this incident was depicted in a photograph (Exhibit G). It may be described as a large kitchen knife.
Ms Jennings stated that, soon after the Offender struck Mr Walsh with the knife, he screamed at the Offender "Tina, what the fuck, you fucking stabbed me …" and the Offender responded "No I didn't". At this point, Ms Jennings stated that Mr Walsh was bleeding from cuts, one to the back of his neck and three to the back of his head. The Offender and Mr Walsh continued to scream at each other and eventually the Offender accompanied Ms Jennings and another house member outside for a cigarette.
According to Ms Jennings, the Offender said words to the effect "You just don't say things about people's families. I just wanted to kill him. I just wanted to kill him". The Offender admitted the first part of this, but denied the second and third sentences. Once again, I accept the evidence of Ms Jennings on this aspect, noting that it is clear that the Offender was in an agitated state at the time and that the words attributed to her by Ms Jennings reflected the Offender's then upset state. I am not satisfied that the Offender actually intended to kill Mr Walsh at that time. If that had been the case, far more severe injuries would have been occasioned to him.
Mr Walsh told Ms Jennings not to contact police because the Offender had not meant to hurt him. Ms Jennings put frozen peas on the back of Mr Walsh's head and he slept downstairs with the Offender sleeping in her own room that night.
According to Ms Jennings, during the next evening, the Offender was cutting something using the same knife and Ms Jennings asked her "Do you want a glass of wine?" and the Offender responded "No thanks, I don't want to stab anyone". The Offender gave evidence that she did not say this to Ms Jennings. Once again, I prefer the evidence of Ms Jennings on this aspect, although this finding adds little to the factual narrative.
With respect to this incident on 3 October 2015, I am satisfied that the Offender obtained a knife from the kitchen which she used against Mr Walsh to inflict minor injuries, in the course of a drunken argument between the two of them in which they exchanged verbal abuse. The Offender did not intend to inflict significant harm to Mr Walsh although, even at the hearing, she could not really explain why she attacked him with a knife. A Further Incident on 12 November 2015
On the evening of 12 November 2015, Mr Walsh and the Offender started arguing loudly in their bedroom at the Matraville premises. Once again, I am satisfied that they were both intoxicated.
The Offender yelled out "That's my phone". Mr Walsh and the Offender were talking loudly. Banging noises were reported. They continued arguing with raised voices and the sound of something smashing was heard.
Ms Jennings got out of bed and ran towards the bedroom of the Offender and Mr Walsh. She went to open the door but Mr Walsh suddenly opened it. He was crying and his forehead was bleeding profusely. There was a big flap of skin hanging open from his forehead.
Mr Summers and the others stayed with Mr Walsh for about 45 minutes trying to convince him to go to hospital. A towel was pressed to Mr Walsh's head during this time with the heavy flow of blood continuing. At some point, Mr Walsh moved the towel and Mr Summers observed blood flowing from his head.
Mr Walsh did not want the police called. Eventually, the Offender and Mr Walsh drove towards the hospital. As Mr Walsh's condition deteriorated, the Offender pulled over and called an ambulance which came to the roadside.
Police attended and spoke to the Offender and Mr Walsh on the roadside. The Offender told police that, when Mr Walsh came home from the hotel, he already had the injury.
Ms O'Shaughnessy received a call from the Offender who said she was in the car outside. Ms O'Shaughnessy sat with the Offender, who was on the phone to someone else. She heard the Offender say "David threw a candle at me and I threw it back". She also heard her say something about David being "mad".
The Offender told Ms O'Shaughnessy that Mr Walsh had thrown the candle at her and it hit her on the shoulder. The Offender then told her that she threw the candle at Mr Walsh and the candle hit him in the face. Ms O'Shaughnessy could not recall the exact words she used. She told her that she did not mean to hit him in the face and that she "couldn't do it anymore".
Ms Jennings walked upstairs to the bedroom of the Offender and Mr Walsh. She saw that one of the glass candle holders that was usually on the window sill was missing, and that there was broken glass and blood on the pillow.
Police located a large amount of blood and a candle encased in glass with the top of the glass broken.
The Offender participated in a recorded interview with police on 13 November 2015. The Offender told police that she had a heated argument with Mr Walsh. She said that Mr Walsh was seated on the bed in their bedroom and, as she walked towards the bathroom, he threw a large candle at her which hit her in the back. The Offender said she picked up the candle and, with her back turned, threw it over her shoulder. The candle struck Mr Walsh to the right side of his forehead causing three deep lacerations and rapid blood loss.
Arising from this incident, the Offender was charged with reckless wounding of Mr Walsh. She was convicted in her absence at Waverley Local Court on 26 April 2016. An annulment application was refused by the Local Court and the Offender was sentenced to a two-year bond under s.9 Crimes (Sentencing Procedure) Act 1999, which included a condition that she complete domestic violence rehabilitation. This bond was current at the time of the manslaughter of Mr Walsh on 17 February 2017.
As a result of this incident, police took out an ADVO against the Offender which contained the mandatory conditions for the protection of Mr Walsh. On 26 April 2016, that order was made final for a period of 12 months.
Mr Walsh was also charged with common assault as a result of this incident (on the basis of the Offender's statement that he first threw the candle at her) and contravening an ADVO (for returning to the residence under the influence of alcohol).
On 4 July 2016, Mr Walsh pleaded guilty to contravening the ADVO and received a $300.00 fine. No evidence was offered on the common assault charge which was dismissed.
With respect to this incident on 12 November 2015, I make findings of fact in accordance with the Statement of Facts tendered at the Waverley Local Court on 26 April 2016 (as reflected in [46]-[56] above). Once again, the Offender and Mr Walsh were arguing whilst intoxicated. Mr Walsh threw the glass candle holder at the Offender and she threw it back at him, striking him on the head causing significant injury.
The net result was that, after 26 April 2016, the Offender was subject to a good behaviour bond for two years and also an ADVO designed to protect Mr Walsh from her. Mr Walsh was subject to an ADVO designed to protect the Offender from him. This state of affairs had come about as a result of violence manifesting itself during their drunken and fractious relationship. The Offender and Mr Walsh Become Engaged
In what, certainly with the benefit of hindsight, could be considered an extraordinary development, Mr Walsh proposed to the Offender on 31 December 2016 and they became engaged to marry. Events on 17 February 2017
By February 2017, the Offender and Mr Walsh were residing with other Irish nationals (Ms Keegan and Melissa Sinnott) in rented premises in Watson Road, Padstow.
At that time, the Offender was employed as a traffic control manager. Mr Walsh was working as a carpenter.
On 17 February 2017, the Offender left for work at about 6.45 am. Mr Walsh left for work at about 6.30 am. During the day, they had phone and SMS contact. Events at the Cock 'N' Bull Hotel, Bondi Junction
The Offender finished work in the late afternoon and joined Ms Sinnott and Ms Keegan at the Cock 'N' Bull Hotel in Bondi Junction. Ms Sinnott, Ms Keegan and the Offender each had an alcoholic drink after the Offender arrived at the hotel. The Offender drank one or two pint glasses of Magners cider (T165). Mr Walsh and the Offender exchanged a number of text messages between 4.13 pm and 4.24 pm.
Mr Walsh arrived at the Cock 'N' Bull Hotel shortly afterwards and joined them. They stayed at the Cock 'N' Bull Hotel for about half an hour longer, after which they left and walked to the Offender's car.
Ms Sinnott said that whilst they were at the Cock 'N' Bull Hotel, Mr Walsh (who was intoxicated) continued to interrupt the Offender whilst she was speaking. She knew that this aggravated the Offender and Mr Walsh appeared to be doing it deliberately.
There was tension between the Offender and Mr Walsh. The Offender drove with Mr Walsh in the front passenger seat and her female companions in the back. During this time, Mr Walsh was complaining. He was speaking loudly and was not in a good mood. Mr Walsh said that he needed to go to the toilet and asked the Offender to stop the car. The Offender told him she would stop at the Doncaster Hotel on Anzac Parade, Kensington. Events at the Doncaster Hotel, Kensington
They arrived at the Doncaster Hotel at 5.57 pm.
At the Doncaster Hotel, they went to the bathroom before meeting in the bar. They sat down at a table and had some alcoholic drinks. The Offender had two bottles of Strongbow alcoholic cider at the Doncaster Hotel (T165).
Mr Walsh and the Offender argued. Ms Sinnott made a comment concerning how good looking a former boyfriend of the Offender had been. Mr Walsh became angry and started to aggravate the Offender. Mr Walsh called the Offender a "bike". The Offender became angry and told Mr Walsh to "fuck off".
Mr Walsh said "How many exes have you had, you slut?" and the Offender responded "Cop on Davey and don't talk to me like that". Mr Walsh said "fuck this" and walked off towards the door, leaving the Doncaster Hotel at about 7.10 pm.
The Offender walked outside to smoke a cigarette. Mr Walsh approached her and they continued to argue.
The Offender and Mr Walsh came back inside. Mr Walsh appeared annoyed and frustrated and said he was going home. He got up from his seat and said "Fuck this", before walking off towards the door leading to the street.
The Offender told Ms Keegan and Ms Sinnott to hurry up and finish their drinks and they followed him out. The Group Leave the Doncaster Hotel
Mr Walsh walked ahead. The Offender yelled out "Davey come on, Davey come on" and all three women yelled out "Come on, we're going". The Offender, Ms Keegan and Ms Sinnott got into the vehicle and drove to Padstow, without Mr Walsh.
When they were in the car driving, Mr Walsh called the Offender's mobile phone. There were two calls which were answered by Ms Keegan as the Offender was driving.
Ms Keegan told police that Mr Walsh asked where they were and she said "We're on the way home". She could not remember if it was in the first or second phone call, but Mr Walsh said "Oh does she think it's funny leaving me here and going home?". Ms Keegan responded "We shouted at you to get in the car and you kept walking". Ms Keegan hung up on the first phone call. When Mr Walsh called the second time, he said "Oh being smart hanging up the phone". She did not respond. He said "Oh you must be nearly home are youse?" and she said "Yeah". Mr Walsh then terminated the call.
Phone records compiled from Cellbrite downloads of the Offender and Mr Walsh's phones show three phone calls made from Mr Walsh to the Offender's work phone at 7.27 pm, 7.29 pm and 7.36 pm.
Between 7.12 pm and 8.25 pm, text messages and calls were exchanged between Mr Walsh, the Offender and Ms Sinnott including the following: Time Sender Recipient Text 19:12:23 Mr Walsh Ms Sinnott Fuck you ok trampled she is 19:13:22 Ms Sinnott Mr Walsh What the fuck did I do now 19:25:25 Ms Sinnott Mr Walsh What's up with you 19:26:19 Mr Walsh Ms Sinnott On with youse bye night out on the town is in deed girl I hate her 19:34:38 Mr Walsh Ms Sinnott Fuck of yay left me here yay sound girl DI so much for that cunt 19:38:37 Mr Walsh Ms Sinnott Fuck the 3 of youse mean it I haven't $3 to my name left me here Tramp hate if I have rob a car I will fuck youse trains 19:40:04 Mr Walsh Ms Sinnott Funny girl pair of youse we see sure 11:42:09 Ms Keegan Mr Walsh Makes no sense 19:42:43 Mr Walsh Ms Sinnott Yay thanks get the duck your creep 19:47:15 Ms Sinnott Mr Walsh What? 19:48:17 Mr Walsh Ms Sinnott Fuck the 3 of yay we c send few snaps k 19:49:00 Ms Sinnott Mr Walsh Go way u 19:49:45 Mr Walsh Ms Sinnott Fuck your and that Trank 19:50:03 Ms Sinnott Mr Walsh You wish 19:50:54 Mr Walsh Ms Sinnott [emoticon - thumbs up and three knives] 19:51:20 Mr Walsh Ms Sinnott No worries I bet the of This fool 19:51:23 Ms Sinnott Mr Walsh [accompanied by emoticon of three knives] 19:51:53 Mr Walsh Ms Sinnott Hope it's funny to all youse youse cos it's not to me tramps 19:52:03 Mr Walsh Ms Sinnott C when I get home c 19:53:48 Ms Sinnott Mr Walsh Will you stop taking it out on me it's not me you have a problem with so zip it 19:54:50 Mr Walsh Ms Sinnott It's all good got some my wages good luck c youse Monday tramos

It is apparent that Mr Walsh was heavily intoxicated and very agitated at this point of the evening. This conclusion is fortified by his behaviour as the evening continued. Events at the Padstow Park Hotel, Padstow
The Offender, Ms Sinnott and Ms Keegan arrived at the home in Watson Road, Padstow, shortly after 8.00 pm. They changed into casual clothes, locked the house and walked to the Padstow Park Hotel, about nine minutes' walk from their house.
The Offender, Ms Sinnott and Ms Keegan arrived at the Padstow Park Hotel in Padstow at 8.37 pm. They went to the bar and ordered drinks. They sat inside before moving to the smoking area at 8.47 pm. During the time at the Padstow Park Hotel, the Offender drank five 500 ml bottles of Strongbow alcoholic cider (T165).
At the Padstow Park Hotel, the group met Matthew Hyde, who had arrived at the hotel about 5.45 pm. Mr Hyde socialised with the women after he walked past them and asked "Excuse me, can I get through". The Offender asked him "Are you Irish?" and he explained he had Irish/English heritage. He introduced himself, bought them a round of drinks and joined them for the rest of the evening. He told police he was "keen" on Ms Keegan. Incident Involving Mr Walsh at the Coach and Horses Hotel, Randwick
There is incomplete evidence of Mr Walsh's movements after he left the Offender, Ms Keegan and Ms Sinnott in Kensington.
It is clear that Mr Walsh made his way to the Coach and Horses Hotel in Randwick by 8.33 pm where he had more to drink.
Mr Walsh became involved in an altercation with an Irish national, Richard Lindsay, who had arrived at the Coach and Horses Hotel at about 7.00 pm with friends, Trevor Ruddy and Donal Molloy.
Mr Walsh became aggressive and tried to fight Mr Ruddy. Mr Walsh then walked over to the table where Mr Lindsay, Mr Ruddy and Mr Molloy were sitting. He asked Mr Molloy "Where in Ireland are you from?" and Mr Molloy replied "Mayo". Mr Walsh responded "Nothing but faggots from there".
Mr Lindsay asked Mr Walsh to leave but he did not answer. Mr Lindsay asked him to leave three more times but Mr Walsh refused.
Mr Lindsay told police that he noticed Mr Walsh's fists clenched and thought he was going to hit him, so he hit Mr Walsh in the face. Mr Walsh fell backwards and tried to hit Mr Lindsay. Mr Lindsay grabbed him first so he could not hit him. All of a sudden, Mr Lindsay felt himself being hit in the face by Mr Walsh, with blood pouring down Mr Lindsay's face.
Security attended and separated the two men, before escorting Mr Walsh from the hotel.
Mr Lindsay noted a laceration to his left cheek and to the back of his head. He attended the Emergency Department at the Prince of Wales Hospital at Randwick where he received four stitches to his face and four stitches to the back of his head. Telephone Communication from Mr Walsh from 10.07 pm on 17 February 2017
Whilst the Offender, Ms Keegan and Ms Sinnott were at the Padstow Park Hotel with Mr Hyde, they received telephone calls and text messages from Mr Walsh. These commenced at about 10.07 pm.
Some time after they arrived at the Padstow Park Hotel, the Offender's phone started to ring. Ms Keegan answered the call and told Mr Walsh that the Offender was in the bathroom. She told him that they were in Padstow. When she got off the phone, Ms Keegan told the others that Mr Walsh asked her lots of questions about where they were and who they were with.
The Offender received a number of calls from Mr Walsh which she did not answer. Ms Sinnott also received a number of text messages from Mr Walsh which she started to read before her phone ran out of battery.
Calls and text messages between Mr Walsh, the Offender and Ms Sinnott between 10.07 pm and 11.38 pm included the following: Time Sender Recipient Text 10:09:25 Mr Walsh The Offender Send few snaps hope you always have your girls ah pick you up drew c 10:09:45 The Offender Mr Walsh Wat 10:10:08 Mr Walsh The Offender Wi ex tramo 11:08:05 Mr Walsh The Offender We c make for Ok or ne yay 11:12:46 Mr Walsh The Offender Yay urbdeadccoenwkone 11:15:32 Mr Walsh Boy one youse getting into Monday hous 11:15:38 Mr Walsh Tram 11:16:38 Mr Walsh The Offender We c could of luck bye trimalp 11:16:59 Mr Walsh The Offender We c trampled

The messages sent by Mr Walsh were becoming even more incoherent, no doubt reflecting his heavy state of intoxication. It is clear that Mr Walsh had made his way from the hotel in Randwick (from which he had been ejected) to the home in Watson Road, Padstow.
Soon after, Ms Keegan received text messages from Mr Walsh. He also sent her three photographs. The first photograph was black. The second photograph was of glass and blood on the floor and the third photograph was similar to the second, showing broken glass and blood.
Mr Walsh did not have a set of keys to the Padstow home. It is clear that he had broken into the house to gain entry.
Text messages, calls and photographs sent between Mr Walsh and Ms Keegan between 11.39 pm and 11.42 pm included the following: Time Sender Recipient Text 11:39:53 Mr Walsh Ms Keegan Photograph - black only 11:40:08 Mr Walsh Photograph - blood and tissue on tiles 11:40:12 Mr Walsh Photograph - blood and tissue on tiles 11:40:23 Mr Walsh Ms Keegan Photograph - black only 11:40:41 Mr Walsh Ms Keegan Thanks diner cnnek home 11:41:12 Ms Keegan Mr Walsh What? 11:41:17 Mr Walsh Photograph - blood, tissue and broken glass on tile 11:41:33 Mr Walsh Ms Keegan Do g cimrhi R Trank Son 11:42:09 Ms Keegan Mr Walsh Makes no sense 11:42:21 Mr Walsh Ms Keegan C when your horn

Once again, the degree of Mr Walsh's intoxication is illustrated by these strange messages accompanied by disturbing photographs. Departure from the Padstow Park Hotel
Mr Hyde, Ms Keegan, Ms Sinnott and the Offender left the Padstow Park Hotel shortly before it closed at midnight. The Offender said in evidence that she was "fairly intoxicated" by this time (T165). Mr Hyde accompanied the Offender, Ms Keegan and Ms Sinnott as they proceeded on foot from the hotel to Watson Road, Padstow. Events in the Padstow Home Leading to the Fatal Stabbing
The group arrived at the Padstow home and Mr Hyde was invited inside.
The glass panel on the upper half of the front door was smashed and the front door was open. There was blood under the front door and a trail of blood leading from the hallway to the kitchen floor and into the sitting room. There was glass on the floor around the front door. Mr Walsh was lying on a couch inside the family room, either asleep or partially asleep.
Mr Hyde patted Mr Walsh lightly and said something like "Hey mate, are you okay?". Mr Walsh's eyes opened and he mumbled something. One of Mr Walsh's wrists was cut (from his forced entry to the house), but it was not bleeding profusely. Mr Hyde left Mr Walsh on the couch and followed the women upstairs. He said they were upstairs for a minute or two before returning downstairs. Mr Walsh Attacks Mr Hyde
Mr Hyde walked through the living room and followed the women into the kitchen. When they were inside the kitchen, Mr Walsh hit him from behind. Mr Walsh yelled out "Who the fuck are you?" and hit Mr Hyde several times to the face and head with closed fists. Mr Hyde said "What the fuck! What's your problem?".
Mr Walsh stood in front of Mr Hyde, about an arm's length away. He grabbed Mr Hyde who fell to the floor and ended up on his back with Mr Walsh on top of him. Mr Walsh punched Mr Hyde repeatedly.
Mr Walsh grabbed Mr Hyde by the hair and tried to smash his head into the floor. He bit Mr Hyde to the left side of the jaw breaking the skin and causing it to bleed. Mr Hyde eventually managed to push Mr Walsh away.
Mr Hyde said that one or more of the women tried to pull Mr Walsh off him. After a few seconds, he was off him and Mr Hyde stood up. Mr Walsh was standing in front of him. The Offender Becomes Involved in the Altercation
At that time, the Offender was to Mr Hyde's left. Both Mr Walsh and the Offender were about an arm's length away from Mr Hyde and each other.
Everyone was yelling. Mr Hyde described it as "chaos". Mr Walsh was irate and his body language was aggressive. Someone yelled "Stop" and "Just calm down".
The Offender was standing no more than a metre away from Mr Hyde. She was screaming out "Stop it Davey, get off, get off. Cop on. He's with Grace". The Offender tried to get a grip of Mr Walsh's arm and Mr Walsh swung his arm back. The Offender fell to the ground.
Ms Sinnott was standing at the corner of the kitchen bench whilst Mr Walsh, Mr Hyde and the Offender were all within a metre of each other in the kitchen.
The Offender moved towards Mr Walsh and punched him in the face with a closed fist. Mr Walsh pushed the Offender again. Ms Keegan saw Mr Walsh try to punch the Offender in the face, but did not know if he hit her.
Mr Hyde started shouting out "What the fuck! Hitting a girl!". Mr Walsh started punching Mr Hyde once again. The Offender Gets a Knife from the Kitchen
The Offender was holding her head as she got up. She walked a short distance to the cutlery drawer in the kitchen. As she walked, she stopped holding her head and did not seem injured.
The Offender was crying hysterically and was described as being "all over the place". Ms Keegan and the Offender shouted "Call the police". The Offender stood beside Ms Sinnott near the sink. Ms Sinnott repeatedly told the Offender to "calm the fuck down". The Offender opened and closed the cutlery drawer quickly, taking out a large sharp bladed knife.
Ms Sinnott said to the Offender over and over again "Put it back". This was said quietly so the others would not hear. The Offender replied "No, he needs to be taught a lesson it's not fair, look at poor Matthew.'
Ms Sinnott went upstairs to call the police and locked herself in the bathroom. After Ms Sinnott headed upstairs, Mr Walsh released his grip on Mr Hyde. Ms Keegan pushed Mr Walsh back up against the kitchen wall.
Mr Walsh had his right hand in a fist which was pulled back near his shoulder. He was facing the Offender who was standing in the kitchen area near the fridge.
With her full weight and force, Ms Keegan pushed Mr Walsh (as hard as she could) right back into the wall with her left forearm against his chest. She used her right arm to grab Mr Walsh's left arm to try and hold him, and turned her body to the side so she was facing the Offender which allowed her to press harder against Mr Walsh. Ms Keegan managed to keep Mr Walsh against the wall despite him trying to break free of her by twisting his chest against her arm. The Offender Stabs Mr Walsh in the Neck
The Offender walked quickly towards Mr Walsh with the long bladed knife, described by others present as being "fixated on Davey". She had the knife in her right hand angled slightly upwards, with the long blade of the knife facing the ground. The Offender had the knife at shoulder height and her arm was folded backwards, near her chest.
Ms Keegan said "Tina!" and something else, but she could not remember the words she used.
Mr Walsh did not move because Ms Keegan had him pushed against the wall. Ms Keegan tried to push the Offender back as she thought she was about to stab Mr Walsh. Ms Keegan tried to push the Offender away but she kept coming towards them. Ms Keegan struggled to keep the Offender and Mr Walsh apart.
The Offender moved forward towards Mr Walsh and Ms Keegan. She was about an arm's length away. The Offender stabbed Mr Walsh in the neck in a fast slightly elevated forward motion. The knife hit Mr Walsh in the left side of the neck, causing a cut under his jawline about four centimetres long, starting under the middle of the left jaw line and going down to his collar bone.
The Offender (later said) that she took two or three steps and "it all happened so fast". Mr Hyde described the Offender moving towards Mr Walsh, and he saw her jab the knife penetrating Mr Walsh's neck going quickly forward and immediately back. Mr Hyde described the jab as having no back swing and, in his opinion, it did not appear to have a lot of force behind it.
The Offender did not say anything. She pulled the knife out straight away and dropped it on the floor.
The wound started to bleed profusely with blood coming out of Mr Walsh's mouth. Ms Keegan placed a tea towel on the wound. Mr Walsh took hold of the tea towel and was saying "Call an ambulance, call an ambulance". Ms Keegan ran upstairs to Ms Sinnott, who was on the phone, saying "Get a fucking ambulance, quick".
Mr Walsh stumbled away in a daze out of the front of the house. The Aftermath of the Stabbing
The first "000" call was made at 12.19 am on 18 February 2017. Ms Sinnott handed the phone to Ms Keegan, who remained on the phone for about six minutes until police arrived. She told the "000" operator that Mr Walsh was bleeding from the neck, but said that she did not know how the injury was inflicted.
When Ms Sinnott went downstairs, she observed the Offender sitting on the ground in the kitchen with her legs crossed and with her hands on her head shaking, rocking back and forward non-stop. Ms Sinnott asked her what happened because she had not witnessed the stabbing. The Offender said "He's gone mental, Melissa. I can't cope no more. I can't believe what I just done". The Offender said "What have I done, I'm so sorry". Ms Sinnott did not know what she was talking about at this point. She observed blood all over the kitchen. Ms Keegan was upstairs at this time.
Police arrived at the Padstow home at 12.23 am. They observed Mr Walsh on the ground being held in the recovery position by Mr Hyde. The Offender was crying and sobbing, kneeling about two metres away from Mr Walsh.
Police asked what happened and the Offender said "They were fighting [indicating Mr Hyde and Mr Walsh] and he [Mr Walsh] grabbed a knife and came at him [Mr Hyde]. I stepped in to help and stabbed him [Mr Walsh]. I stabbed him". This account was not truthful as it had been the Offender who obtained the knife from the kitchen.
Shortly after, police noted that Mr Walsh had stopped breathing. They commenced CPR. Ambulance officers arrived shortly after and attempted to revive Mr Walsh with the assistance of police.
Mr Walsh was pronounced dead by ambulance offers at the scene at 12.55 am on 18 February 2017. Arrest of the Offender
The Offender was arrested and cautioned and conveyed to Bankstown PoliceStation, where she arrived shortly after 1.00 am on 18 February 2017. She was directed to the charge counter and was heard by the Station Supervisor Sergeant Sowinski to say "He's dead. Tell me, he's dead isn't he". Sergeant Sowinski smelt alcohol on her, noting blood shot eyes and that she was highlyemotional. ERISP with the Offender
The Offender participated in an electronically recorded interview with police some hours later, at 10.10 am on 18 February 2017.
In brief, the Offender said that when they entered the house after returning from the Padstow Park Hotel, Mr Walsh "came out of nowhere" and attacked Mr Hyde. She said Mr Walsh was "shoutin" and "givin' out" and "then he just went for Matthew". She said he was probably accusing her of being with Matthew because he always accused her of cheating.
The Offender told police she must have gone upstairs to get changed because she was in different clothes, but she could not recall doing so. She said she could not remember coming back downstairs and could not remember being in the house at all.
When asked for more detail about Mr Walsh attacking Mr Hyde, the Offender said she had "visions of it happening", but did not know what happened after that. She recalled Ms Keegan and Ms Sinnott shouting, telling Mr Walsh to stop with Mr Hyde being on the ground with Mr Walsh "all over him". The Offender could not remember what Mr Walsh or Mr Hyde were saying. She said she thought Mr Walsh was trying to hit Mr Hyde but she did not know if he did.
She was asked by police what happened next and said "My mind went blank. My mind has gone blank the last, the only thing I remember is sitting out the front shoutin' telling Grace 'Call the ambulance, please call the ambulance, please'". She then said that she was sitting there screaming "please, please save my baby". She said she saw blood on Mr Walsh, but could not remember from where he was bleeding. She told police she thought she went into shock.
The Offender said she could not remember if she tried to stop the fight. She was shown a picture of the knife seized by police and asked if she recognised it. She said it was a kitchen knife. Police asked her if she saw that knife the previous night and she said "I can't recall seeing that knife last night. I just wish my memory was better but it's actually not".
Police asked her if she or Mr Walsh had touched the knife the night before and she said "I can't recall. I dunno". She said the last time she saw it was when she made dinner with it a previous evening. She said she could not recall if anyone had that knife the night before. She said she literally could not remember anything and did not even remember speaking to police the night before.
The Offender was asked if she had any injuries and she told police that she would "probably have a black eye tomorrow" because "Davey probably hit me yesterday evening, I get used to it now, it's happened, it happens so often now that it doesn't even faze me anymore". She said that although she could not remember anything, he must have hit her because her jaw was sore.
The Offender told police she had bite marks the previous week from when Mr Walsh bit her arm, and that he would tell her she was a "useless piece of shit". She said her life had been "hell" with Mr Walsh for the past six months, that he never stopped calling her names and that she often wished she was not alive so she would not have to deal with him. She said he was not the kind of person you could ask to leave because he would not.
The Offender was charged with the murder of Mr Walsh and was refused bail. She has remained in custody since 18 February 2017. Examination of Crime Scene
Crime Scene Officers attended and examined the Padstow residence on Saturday 18 February 2017.
The knife used in the stabbing of Mr Walsh was seized from underneath the lounge in the family room. A fingerprint lifted from the handle of the knife was compared with a fingerprint sample from the Offender and was found to be a match. Results of Autopsy
Dr Rianie Janse Van Vuuren conducted an autopsy on Mr Walsh. Sheidentified a stab wound, measuring 45 mm opposed, on the left side of theneck on the jawline. The wound had sharp edges and extended from superolateral to inferomedial. The inferior aspect had a fishtail (split) appearance and measured 7x3 mm. The anterior sections of the wound showed subcutaneous tissue, whilst the posterior aspects showed undercutting.
The wound was positioned 100 mm from the anterior midline, 45 mm anterior to the left ear and 140 mm superior to the suprasternal notch.
The track of the wound extended through the soft tissue of the neck, through the omohyoid, sternohyoid and thyrohyoid muscles, the internal jugular vein, the left thyroid vein into the membrane between the hyoid and thyroid cartilage and ending on the inner mucosa of the right hyoid vein.
Dr Van Vuuren also observed a number of other old injuries to Mr Walsh and evidence of medical intervention by treating ambulance officers.
Toxicology results revealed that Mr Walsh had a blood alcohol concentration of 0.214 g/lOOmL and an alcohol level present in urine of 0.296 g/lOOmL. There were no illicit drugs detected.
Dr Van Vuuren expressed the opinion that the direct cause of death was the stab wound to the neck, with no other antecedent causes or other significant conditions contributing to the death.

The Offender's Subjective Circumstances

The Offender was 25 years old at the time of the offence and is now 27 years of age.
The Court was informed that the Offender has no criminal history in Ireland.
Whilst in Queensland in 2013, the Offender appeared at the Holland Park Magistrate's Court on 11 March 2013 for offences of common assault, being drunk or disorderly in licenced premises and failing to leave licenced premises, in relation to which no convictions were recorded and she was ordered to complete 60 hours of community service.
The Offender appeared before the Waverley Local Court on 17 November 2015 on a charge of resisting police in the execution of duty, in relation to which she was placed on a 12-month good behaviour bond under s.10 Crimes (Sentencing Procedure) Act 1999.
As noted earlier, the Offender was dealt with at the Waverley Local Court on 26 April 2016 for an offence of reckless wounding upon Mr Walsh (arising from the incident on 12 November 2015). The Court placed the Offender on a two-year good behaviour bond under s.9(1) Crimes (Sentencing Procedure) Act 1999, upon conditions that she be of good behaviour and accept Community Corrections Service supervision for as long as considered necessary and to obey all reasonable directions concerning counselling, educational development or drug and alcohol rehabilitation and that she complete domestic violence rehabilitation. The Offender was directed to report to the City Community Corrections Office within seven days (Exhibit B).
The present offence was committed in breach of conditional liberty granted by way of this bond.
A Specific Purpose Assessment Report dated 7 November 2018 was furnished by Community Corrections, who informed the Court of what occurred during the period of the good behaviour bond between 26 April 2016 and the arrest of the Offender on the present offence on 18 February 2017. That report (Exhibit J) confirmed that the Offender had reported as directed on 5 May 2016, when she stated that she had no concerns regarding her own or Mr Walsh's safety. She was referred to a psychologist to engage with anger management and domestic violence intervention.
On 9 May 2016, Community Corrections administered a Level of Service Inventory-Revised (LSI-R) and Community Impact Assessment to determine the level of supervision and intervention required in her case. The Offender was assessed as T1/Low Risk of Reoffence.
On 17 May 2016, the supervision component of her good behaviour bond was terminated early given her low-level risk, and the Offender was so informed by letter dated 25 May 2016. The Offender was not required to maintain any further contact with Community Corrections after termination of her supervision. The Offender attended one psychology session with Welbe Counselling and Psychology Practice on 30 May 2016. The Offender confirmed that she had attended one session of relationship counselling with Mr Walsh during that time (T117-118).
The Offender's father, Daniel Cahill, gave evidence at the sentencing hearing and confirmed that the Offender would return to live with her parents in Ireland upon the completion of her sentence for this offence. Mr Cahill said that his daughter was a hard-working young woman and that they "never had any trouble whatsoever" with her in Ireland (T172). He said that the family had great support from their local community, to the point that the local community in Ireland had contributed money to fund the Offender's legal defence in this case (T176).
Statements of James Mernagh and Shane Fitzgerald were tendered in the defence case on sentence (Exhibits 12 and 13). Mr Mernagh and Mr Fitzgerald had been in relationships with the Offender in Ireland, and each spoke highly of her work ethic and her character.
Also tendered in the defence case on sentence were reports of Dr Stephen Allnutt dated 11 December 2017 (Exhibit 1) and 6 November 2018 (Exhibit 11). As will be seen, Dr Allnutt diagnosed the Offender as suffering, at the time of the offence, from post-traumatic stress disorder ("PTSD") arising from her abusive relationship with Mr Walsh.
Reports of Delphine Bostock, forensic psychologist, dated 14 June 2016 (Exhibit 3) and 29 October 2018 (Exhibit 2) were also tendered in the defence case. Ms Bostock noted that Victims Services NSW offer counselling to inmates across several custodial centres who meet the criteria for having been a victim of violent crime in New South Wales. In this capacity, the Offender was referred to Ms Bostock on 3 April 2017, having been granted approval for counselling based on her experience of a violent domestic relationship.
Between 10 April 2017 and 29 October 2018, the Offender had attended a total of 55 sessions with Ms Bostock. Ms Bostock explained the therapeutic approach adopted in her treatment of the Offender. She observed that, prior to meeting Mr Walsh, the Offender "appeared to be a well adjusted and happy young woman" and that "having no prior experience of interpersonal violence, and perhaps with some naivety", she "found herself in a relationship that involved extensive interpersonal violence". Ms Bostock considered that the Offender had made "solid progress" and Ms Bostock believed that the Offender's prognosis was good.
Ms Bostock said that the Offender had "demonstrated motivation and engagement in therapy", had no prior mental health difficulties and no ongoing substance use disorders and that she also has a "demonstrated number of protective factors including strong family and community support in Ireland". Ms Bostock considered that the Offender's "prognosis would be much improved upon her eventual reunification with her family" (Exhibit 2, page 9).
Ms Bostock suggested that the Offender may benefit from two custodial programs conducted by Corrective Services NSW - the EQUIPS addiction program and the "Out of the Dark" program for women who have experienced domestic and family abuse as victims.
The Offender informed the Court that she had undertaken the EQUIPS program at the Mary Wade Correctional Centre and the "Seasons for Growth" program to deal with grief and loss as well as completing a work, health and safety course and drug and alcohol sessions (T121-122).
The Offender stated that she expected to be deported from Australia upon release from custody and would return to live with her family in Ireland (T123-124).

What to Make of the Offender's Relationship With Mr Walsh

Contemporaneous documentary material tendered in the defence case serves to corroborate aspects of the Offender's account of Mr Walsh's abusive and controlling conduct towards her. A Valentine's Day card given to the Offender by Mr Walsh in February 2016 included the message (Exhibit 8): "Sorry for being a dick for so long but if you give me a chance I'll make it up to you."
Other messages from Mr Walsh on the 2016 Valentine's Day card included "Happy Valentine's Day or if I am your Valentine next there's something better waiting for you" and "Love you forever".
A Valentine's Day card provided to the Offender by Mr Walsh on 14 September 2017 (three days before his death) said (in direct terms) (Exhibit 9): "I no [sic - know] I can be cunt but you I can be a good cunt. Sorry about all. Love Davey xxx"
The Offender gave evidence (which I accept) of Mr Walsh's repeated conduct towards her over many months in which he acted in a jealous and possessive fashion, checking her mobile telephone and following her to work apparently for the purpose of checking as to whether she was seeing other men. At one point, Mr Walsh said the Offender should have a lie detector test to determine if she had been "cheating" on him (T106; Exhibit 10). I accept that Mr Walsh displayed signs of strong jealousy concerning the Offender, no matter how bizarre those thought processes may have been.
The Offender's evidence outlined incidents of violence on the part of Mr Walsh towards other men, of which she was aware. It is not necessary to recount every detail of this evidence. It is sufficient to note that there was sustained conduct of a controlling type on the part of Mr Walsh towards the Offender.
The evidence concerning events on the night of 17-18 February 2017 shows aggression and violence by Mr Walsh towards other men for no good reason - the fight with Mr Lindsay at the Coach and Horses Hotel at Randwick (see [87]-[94] above) and the completely unprovoked attack upon the unfortunate Mr Hyde in the Padstow home based apparently upon his drunken, distorted and jealous belief that Mr Hyde was showing interest in the Offender (see [108]-[118] above).
A clear and solid foundation arises from the evidence of the Offender and other evidence, including contemporaneous documentary evidence, to support her account of controlling and demeaning conduct and words directed to her by Mr Walsh over an extended period.
Despite this pattern of conduct, the Offender said that she "loved and adored" Mr Walsh, so that they became engaged to marry just six weeks before his death (T124). In response to questions from Mr Trevallion, counsel for the Offender, she explained her thought processes in this regard (T124): "Q. You loved him even in February 2017? A. Yes, [I] got engaged to him on my mum's 60th birthday, Darling Harbour, six weeks before. Q. As he was treating you as badly as he was, why did you stay with him? A. I just loved him so much and he told me that no matter what I did, I'd never get away from him and if I ever got with anyone else he'd make their life a hell. Q. Did he ever talk to you about your prospects of meeting somebody else if you separated from him? A. He never talked about us separating, but he said that if I ever did anything wrong with him and end up with anybody else I'd be sorry. Q. Did he ever talk to you about whether or not you were capable of finding someone else? A. No, he used to tell me all the time I was a piece of shit and nobody wanted me."
Later in the Offender's evidence, I asked her some questions on the same topic (T168-169): "Q. I asked you some questions a short time ago about the relationship. You'd become engaged to marry Mr Walsh just a few weeks prior to 17 February 2017. Is that right? A. Yes, that's correct. Q. From what you have described, it doesn't sound like a good long term prospect for a marriage, would you agree with that? A. Yes, that's correct. Q. Why did you agree to marry him? A. I thought he was going to change. Q. Hadn't he told you that before and, from what you said, he didn't change? A. Every time I just thought he was going to change and things would be different. I even agreed to move house. He didn't want me living in the Eastern Suburbs hence why we moved to Padstow; my office was in Bondi Junction. I moved hoping that he would change if I agreed to move out west but it didn't change anything. Q. Well, why did you agree to marry him? A. I honestly thought he was going to change, I just agreed to marry him because he was someone that I did love and adore."
A photograph taken on 31 December 2016 depicting the Offender and Mr Walsh on the night of their engagement (Exhibit M) appears to show a happy couple, looking forward to their life together.
How can this be reconciled with the volatile history of the relationship up to that time, followed six weeks later by the Offender killing Mr Walsh?
A judicial response to the Offender becoming engaged to her suggested domestic oppressor involves an element of puzzlement. However, it is necessary to keep in mind that the experiences of persons who are subjected to intimate relationship violence are individual. The Court should take into account the constellation of factors which affect a person in circumstances where the experiences of a woman, in that position, may be considered generally to be outside the common understanding of the average Judge and juror: R v Malott (1998) 1 RCS 123 at 144 [43]; Hopkins, Carline and Easteal, "Equal Consideration and Informed Imagining: Recognising and Responding to the Lived Experiences of Abused Women Who Kill" (2018) 41 Melbourne University Law Review 1201 at 1235.
Against a background of abuse of the type identified in the evidence, and supported in the opinions of Dr Allnutt, Dr Phillips and Ms Bostock, the events on the evening of 17-18 February 2017 may be characterised as "the last straw" where, once again, Mr Walsh was attacking the unfortunate Mr Hyde upon the mistaken basis that he may have demonstrated some interest in the Offender and the Offender, once again, was confronted with Mr Walsh's rage, to which she reacted with a loss of control associated with the underlying condition from which she suffered thereby giving rise to substantial impairment by abnormality of mind: cf Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75 at 337 [55].
What arose in this case may be seen as an example of a process of "traumatic bonding" which may occur in abusive relationships: Osland v The Queen at 376-377 [167].
The evidence indicates that the Offender is otherwise a young woman who had relationships with young men in Ireland which were not marked by violence or other difficulty. What happened in the course of her relationship with Mr Walsh may be seen as an example of intimate partner violence, albeit with her responding or retaliating violently herself from time to time, including the use of weapons such as a knife (on 3 October 2015) and a glass candle holder (on 12 November 2015).
What is particularly unusual about this case, however, (in ways which do not assist the Offender) is the fact that there were opportunities for her to do something about her troubled relationship with Mr Walsh when she was on a good behaviour bond from April 2016 and (for a period) under Community Corrections supervision. Rather than utilising that opportunity to address the troubling issues in her life, the Offender understated the position, with the consequence that a single counselling session followed.
Thereafter, applying what can only be described as a rose-coloured glasses view to the future, the Offender became engaged to be married to Mr Walsh. His conduct on the evening of 17 February 2017 confirms the view that any plan for marriage was doomed to fail. As it happened, and tragically, events came to a head in the fatal attack on the evening of 17 February 2017.

The Nature of the Substantial Impairment in this Case

On 29 August 2018, the solicitors for the Offender served upon the Crown the report of Dr Stephen Allnutt, forensic psychiatrist, dated 11 December 2017 (Exhibit 1) and gave notice of an intention to rely upon the partial defence of substantial impairment under s.23A Crimes Act 1900 at the then forthcoming trial of the Offender. Thereafter, the Crown retained Dr Jonathan Phillips, consultant psychiatrist, who provided a report dated 16 October 2018 on the substantial impairment issue (Exhibit K).
Dr Allnutt's report of 11 December 2017 contained the opinion that the Offender was suffering from an underlying condition at the time of her killing Mr Walsh in the form of PTSD, arising from her abusive relationship with Mr Walsh. In his report of 16 October 2018, Dr Phillips did not agree with Dr Allnutt's opinion concerning PTSD, but preferred a diagnosis of adjustment disorder, with mixed anxiety and depressed mood.
After the Crown accepted the Offender's plea of guilty to manslaughter upon the basis of substantial impairment, further reports were obtained from Dr Phillips dated 1 November 2018 (Exhibit L) and from Dr Allnutt dated 6 November 2018 (Exhibit 11). These reports were tendered at the sentencing hearing.
The recent reports of Dr Allnutt and Dr Phillips clarify the particular diagnosis expressed by each psychiatrist. Dr Phillips maintained his opinion that PTSD was not the appropriate diagnosis, but expressed his opinion that the Offender was suffering from a major depressive disorder at the time of the killing. Dr Allnutt maintained his opinion concerning PTSD, but noted that the diagnostic variance between the two psychiatrists was such that both would agree that there was "a constellation of depressive and trauma related symptoms causing a diagnosable psychiatric condition" which was an underlying condition (PTSD or major depressive disorder or both), out of which the Offender manifested an abnormality of mind, in the form of an increased vulnerability to react to threats to the safety of herself and others and a propensity for impulsive aggression, with this to be considered by reference to the requirements of s.23A(1) Crimes Act 1900.
The nature of the condition or conditions from which the Offender was suffering at the time of the killing is a matter for the Court to consider, having regard to the totality of the evidence.
However, the Court approaches this issue upon the basis that the Crown, in the exercise of prosecutorial choice, has accepted a plea of guilty to manslaughter upon the basis of substantial impairment by abnormality of mind. The Crown has accepted that the Offender's mental condition was such that she should be liable to be sentenced for manslaughter only.
Operating from this starting point, it seems to me that there is no real or significant difference between the opinions of Dr Allnutt and Dr Phillips on relevant issues. There is no bright-line distinction between PTSD and major depressive disorder, certainly in the context of this case. Both conditions have overlapping features so that the appropriate course is to consider the substance of the condition rather than the particular label to be attached to it.
I am satisfied that the psychiatric evidence supports the existence of significant depression on the part of the Offender at the time of the killing, which arose from the unusual and abusive relationship which had been on foot with Mr Walsh for some time.

Objective Gravity of the Offence

Assessment of the objective gravity of the offence forms a significant part of the sentencing process. It is an essential element of the process of instinctive synthesis, a purpose of which is the imposition of a proportionate sentence which adequately punishes an offender: s.3A(a) Crimes (Sentencing Procedure) Act 1999; Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44 at 473 [46].
It is important for the Court to ensure that the subjective circumstances of an individual offender do not divert the Court from imposing a sentence which has regard to the objective gravity of the offence, and which adequately reflects the part which the law must play in upholding the protection of human life and in punishing those who take it: R v MD (2005) 156 A Crim 372; [2005] NSWCCA 342 at 387 [65].
The objective gravity of the offence of manslaughter is to be determined by the factual findings made by the Court as opposed to the particular variety of manslaughter itself: R v MD at 386 [62].
It is necessary for the Court to recognise that the Offender's mental condition has already played a significant part in her favour, given the acceptance by the Crown of her plea of guilty to manslaughter by way of substantial impairment.
It remains necessary for the Court to take into account the Offender's mental condition on sentence, in circumstances where that condition was linked to the commission of the offence itself. However, the Court must be careful not to double count in the Offender's favour her mental condition in a way which does not properly reflect the fact that the mental condition was critical to the reduction of her offence from murder to manslaughter: R v Tarrant at [163]-[171].
I accept that the Offender was herself fairly intoxicated at the time of these events. It is necessary to exclude the effect of self-induced intoxication for the purpose of making an assessment of the objective gravity of the offence: s.21A(5AA) Crimes (Sentencing Procedure) Act 1999; Tepania v R [2018] NSWCCA 247 at [124]-[127].
The events surrounding the death of Mr Walsh on the evening of 17 February 2017 constituted the culmination of a history of aggression and verbal abuse by Mr Walsh directed towards the Offender. On occasions, the Offender had responded or retaliated herself with violence, including the use of a knife to injure him.
This is not a case where the violence in the relationship proceeded in one direction only. I am satisfied, however, that all of the Offender's acts of violence towards Mr Walsh were triggered by, or responsive to, acts of violence or anger by Mr Walsh directed to her.
However, by 17 February 2017, the Offender was experiencing a serious mental condition in the form of depression and anxiety which resulted directly from the relationship with Mr Walsh. One effect of the condition was that the Offender was likely to overreact significantly in a situation where there was yet another act of violence on the part of Mr Walsh directed towards herself or another person.
That is precisely what happened on the evening of 17 February 2017. During the course of the evening, Mr Walsh was consuming alcohol to considerable excess and was becoming increasingly agitated and violent. He was making demeaning and abusive comments directed towards the Offender and her female companions. He was aggressive towards another man at a hotel at Randwick, before being ejected from those licensed premises.
By the time Mr Walsh arrived back at the Padstow home, he was heavily intoxicated and was agitated and violent in mood. When the Offender and her female companions arrived home with Mr Hyde, Mr Walsh reacted immediately by attacking Mr Hyde in the mistaken belief that he was in some way showing interest in the Offender.
Mr Walsh launched a severe attack against Mr Hyde which was, to an extent, subdued and controlled by the intervention of Ms Keegan. The Offender became increasingly agitated herself at this situation, which involved an assault by Mr Walsh upon her as well.
In the highly charged emotional circumstances of these events in the Padstow home, the Offender obtained a knife which she proceeded to use, in a punitive fashion, against Mr Walsh as he needed "to be taught a lesson". The loss of control evidenced by these acts was linked directly to the mental condition from which she then suffered, but was affected as well by her state of intoxication (which cannot assist her on sentence). The Offender struck Mr Walsh once with the knife. This is not a case of multiple blows being inflicted. Tragically, however, the one blow struck with the knife entered the side of his neck causing a fatal injury.
The immediate response by the Offender was shock and regret as to what she had done.
The killing of Mr Walsh occurred in the place where he usually resided. The fact that the offence was committed in Mr Walsh's home is capable of constituting an aggravating factor under s.21A(2)(eb) Crimes (Sentencing Procedure) Act 1999. That said, it was the case that Mr Walsh was not entitled to be present with the Offender when he was intoxicated (because of the ADVO) and the Padstow home was the Offender's residence as well. It was the case that Mr Walsh broke into the Padstow home on the evening of 17 February 2017 as he had no key to the property. It was Mr Walsh who then attacked the innocent Mr Hyde for no good reason, in a way which ended with the fatal attack by the Offender on Mr Walsh. In the circumstances of this case, I do not consider that the location of the offence operates to aggravate the objective gravity of the offence itself.
The Offender's plea of guilty to manslaughter involves an admission that she acted with (at least) an intention to cause grievous bodily harm to Mr Walsh. I am not satisfied beyond reasonable doubt that the Offender intended to kill Mr Walsh. She struck a single blow with the knife in circumstances where she said that he needed "to be taught a lesson" because of his unwarranted attack upon Mr Hyde. Shortly after the Offender stabbed Mr Walsh, her comments included "I can't believe what I just done … What have I done, I'm so sorry". Statements to this effect are not consistent with an intention to kill. The Offender should be sentenced upon the basis that she intended to cause grievous bodily harm to Mr Walsh.
It is an aggravating factor in this case that the Offender used a weapon, a knife, in the course of the offence: s.21A(2)(c) Crimes (Sentencing Procedure) Act 1999. It does not assist the Offender that she had used a knife before in a violent incident involving Mr Walsh on 3 October 2015.
This is an offence of manslaughter of considerable seriousness. To the extent that a scale of objective seriousness or gravity is useful, I place this offence at about the mid-range of seriousness for manslaughter offences.

Principles Concerning Sentencing Domestic Violence Offenders

The Crown submitted that the Court should bear in mind, and apply principles with respect to the sentencing of domestic violence offenders laid down in cases such as R v Hamid at 192-196 [67]-[88]; Hiron v R [2007] NSWCCA 336 and Browning v R [2015] NSWCCA 147 at [4]-[8].
The offence of manslaughter in this case may be characterised as a domestic violence offence. Further, the Offender was subject to conditional liberty at the time of the manslaughter offence, arising from the good behaviour bond ordered in the Waverley Local Court on 26 April 2016 for the offence of reckless wounding also committed against Mr Walsh on 12 November 2015.
Courts have said that, in sentencing a domestic violence offender, specific and general deterrence are important factors together with the requirement for powerful denunciation by the community of such conduct and the need for protection of the community, together with recognition of the harm done to the victim and the community as a result of crimes of domestic violence: R v Hamid at 195-196 [86].
Where a domestic violence offence is committed at a time when an offender is subject to conditional liberty and orders designed to protect the victim, then a substantial response is required from sentencing courts to reflect the breach of an order made by courts designed to protect the victim: Browning v R at [4]-[8].
On the face of it, these principles have application to the Offender because of the orders to which she was subject at the time of killing Mr Walsh.
However, in the unusual circumstances of this case, it is necessary to place these principles in their proper context. It was Mr Walsh who had been the principal perpetrator of domestic violence, including controlling acts directed to the Offender over a period of time. The Offender had committed acts of violence towards Mr Walsh, which were essentially reactive to circumstances where he had engaged in violent or aggressive conduct.
This is not a case of an aggressor in a domestic violence context who has, yet again, committed offences of violence against the abused victim. Further, it is necessary to keep in mind the volatile context in which the events of 17 February 2017 occurred. It was the heavily intoxicated Mr Walsh who broke into the Padstow home, and then attacked Mr Hyde for no good reason. This attack was still on foot with Mr Walsh being agitated and aggressive at the time when the Offender reached for a knife, before stabbing him fatally.
It is necessary for the Court to keep in mind the principles expressed in cases such as R v Hamid and Browning v R in sentencing the Offender. It does not assist the Offender on sentence that this offence occurred whilst she was subject to conditional liberty for an offence of violence against Mr Walsh, and an ADVO designed to protect Mr Walsh from her.
However, this is a case with some unusual features so that the Court should temper, to an extent, the application of these principles when it comes to sentencing the Offender.

Contrition, Remorse, Risk of Reoffending and Prospects of Rehabilitation

I accept that the Offender expressed almost immediate remorse and contrition very soon after she had stabbed Mr Walsh. As noted earlier (at [133] above), Ms Sinnott observed the Offender sitting on the ground in the kitchen with her hands on her head shaking, rocking back and forward non-stop. The Offender said "He's gone mental, Melissa. I can't cope no more. I can't believe what I just done" and then "What have I done, I'm so sorry".
Nevertheless, I do not overlook the fact that the Offender falsely asserted soon after that Mr Walsh (and not her) had obtained the knife on this occasion (see [135] above).
I accept that the Offender manifested genuine remorse in giving evidence at the sentencing hearing. Her remorse was not based on self-pity and regret at the circumstances in which she found herself. Rather, she was genuinely sorry for taking the life of Mr Walsh and causing harm to his family members as a result of this act. The Offender has demonstrated genuine remorse which I take into account in her favour on sentence: s.21A(3)(i) Crimes (Sentencing Procedure) Act 1999.
The Offender has no criminal history in Ireland. Apart from minor matters which occurred in Queensland in 2013 (see [159] above), her offences in this country have arisen in the context of her stormy relationship with Mr Walsh.
It was the evidence of the Offender, which I accept, that she had not been in an abusive relationship (such as that which existed with Mr Walsh) before. Reference has been made above to the extensive counselling undertaken by the Offender in custody with the assistance of Ms Bostock. I am satisfied that the Offender has benefited substantially from this process of counselling and has also made good use of other opportunities available to her in custody to address areas of need, including alcohol and drug use. She acknowledged frankly in evidence that she had abused alcohol as a "binge drinker" and had used cocaine between 2015 and 2017 (T120-121).
Upon her release from custody, it is expected that the Offender will be deported and return to live in Ireland. It was the evidence of her father, Daniel Cahill, that the Offender can live once again in the family home in New Ross, County Wexford, where there will be significant family and community support for her. The reasonable expectation is that the Offender will return to work in Ireland and seek to make a new life for herself there.
I am satisfied that the risk of reoffending in the case of the Offender is very low indeed. I am satisfied that her prospects of rehabilitation are excellent. I take these matters into account on sentence.

Discount for the Offender's Plea of Guilty

As mentioned earlier, the Offender was charged with murder on 18 February 2017 and, following a plea of not guilty, was to stand trial for murder up until 23 October 2018, when the Crown presented a new indictment which charged manslaughter only. Upon presentation of that indictment, the Offender pleaded guilty.
The Court was informed that the Offender's legal representatives made an offer to the Crown to plead guilty to manslaughter for the first time on about 9 October 2018. At that time, the report of Dr Allnutt dated 11 December 2017, was available, but the Crown did not have the report of Dr Phillips until on or after 16 October 2018.
Following the service by the Crown of Dr Phillips' report, the legal representatives for the Offender made a further offer to plead guilty to manslaughter on 19 October 2018, the last working day before the scheduled date for the commencement of the trial on 22 October 2018.
Although the Crown had the report of Dr Phillips by that time, it remained necessary for the Crown to comply with its statutory obligation to consult with the family of Mr Walsh and investigating police with respect to charge negotiations, for the purpose of s.35A Crimes (Sentencing Procedure) Act 1999. As Mr Walsh's relatives were in Ireland, understandably the Crown required a period to undertake this consultation.
On 23 October 2018, the Crown presented a fresh indictment charging manslaughter, to which the Offender pleaded guilty.
It was common ground at the sentencing hearing that this was a late plea of guilty. It was not until a period shortly before the trial that the first offer was made on behalf of the Offender to plead guilty to manslaughter. By that time, the Crown had undertaken substantial arrangements for witnesses to give evidence at the trial, including a number of witnesses who were to give evidence by audio-visual link from Ireland. These preparations extended beyond the ordinary preparations for trial where local witnesses only were to be called.
The Offender is entitled to have her plea of guilty taken into account on sentence for the purpose of s.22 Crimes (Sentencing Procedure) Act 1999. A calculation of the utilitarian value of a plea of guilty will be determined largely by the timing of the plea so that the earlier the plea, the greater the discount: R v Borkowski (2009) 195 A Crim R; [2009] NSWCCA 102 at 10-11 [32]. Generally, the reason for the delay in the plea is irrelevant because, if it is not forthcoming, the utilitarian value is reduced: R v Stambolis (2006) 160 A Crim R 510; [2006] NSWCCA 56 at 513-514 [11].
It was submitted for the Crown that a limited discount to reflect the utilitarian value of the Offender's plea of guilty should be allowed in the order of 7.5%. It was submitted for the Offender that the Court should allow a discount in the order of 10%-15% for the Offender's plea of guilty.
This is a case where the Offender's offer to plead guilty to manslaughter was made, in effect, in the shadow of the commencement of the trial. Substantial efforts had already been undertaken in preparation for the trial and one witness (Ms Jennings) had actually travelled to Australia. It is the case that the Offender's plea of guilty had the utilitarian value that the trial itself was not required. I note, as well, that the Offender pleaded guilty to a substituted charge of manslaughter.
In all the circumstances, I propose to allow a 10% discount for the Offender's plea of guilty.

Victim Impact Statements by Members of the Walsh Family

The Court received victim impact statements from relatives of Mr Walsh, all of whom reside in Ireland.
Victim impact statements were made by his five brothers - Patrick Walsh, Kelem Walsh, Stephen Walsh, Jonathan Walsh and Barry Walsh. Mr Walsh's sister, Faith Walsh, also made a victim impact statement.
Victim impact statements were also made by two former partners of Mr Walsh (on behalf of their children) and by three daughters of Mr Walsh who were aged nine and 13 years. I will not mention the names of the children in these remarks because of the protection against identification of young persons in s.15A Children (Criminal Proceedings) Act 1987.
The Crown made application, for the purpose of s.28(4) Crimes (Sentencing Procedure) Act 1999, that the victim impact statements given by the family victims be considered and taken into account by the Court in connection with the determination of the punishment for the offence of manslaughter, on the basis that the harmful impact of Mr Walsh's death on the members of the family was an aspect of harm done to the community.
The victim impact statements made by Mr Walsh's siblings, his children and the mothers of the children (on behalf of the children) reflect the enormous loss suffered by each of them resulting from the death of Mr Walsh, and the terrible news of his death received by them in Ireland from a distant land. The distress suffered by each of the family members is clear from their victim impact statements.
The Court acknowledges the sadness and grief on the part of the members of the Walsh family at the loss of a brother and father, as a result of the Offender's crime. That grief is no doubt compounded by the fact that his death occurred in a country far away from their homes in Ireland.
The fact that it has been necessary for the Court to recount negative aspects of Mr Walsh, and his conduct towards the Offender, should not serve to reduce the genuine grief which the members of his family experience because of their loss.
On behalf of the Court and the community, I express condolences to members of the Walsh family for their great loss, which is reflected in the detailed victim impact statements made by the family members.

Determining an Appropriate Sentence

It is appropriate to draw together all the objective circumstances of the offence and the subjective circumstances of the Offender, and to apply principles relevant to the imposition of sentence for this offence. As these sentencing remarks demonstrate, a number of sentencing factors in this case point in different directions: Veen v The Queen (No. 2) (1988) 164 CLR 456; [1988] HCA 14 at 476-477.
All crimes of manslaughter are serious as they involve the criminal taking of a human life: R v Hill (1981) 3 A Crim R 397 at 402. The importance of denunciation in sentencing for manslaughter has been stressed: R v Nguyen [2005] NSWSC 600 at [23].
The Offender killed Mr Walsh by use of a knife against a background where she had, on a prior occasion, used a knife to injure him albeit in different circumstances. I accept that the offence was committed in the heat of the moment, as a sudden response to yet another act of violence by Mr Walsh directed towards Mr Hyde and others in the Padstow home at the time.
The Offender was subject to a significant mental condition at the time of the offence which was the product of her abusive relationship with Mr Walsh. That aspect has been taken into account very substantially in the reduction of the Offender's liability from murder to manslaughter by reason of substantial impairment.
Both the Offender and Mr Walsh had used alcohol to excess regularly, in circumstances which were linked inextricably to their violent acts towards each other. On the evening of 17 February 2017, Mr Walsh was once again heavily intoxicated and the Offender was intoxicated to some extent.
Despite the chequered history of the relationship, the Offender had an unduly optimistic hope for the future, based upon her love for Mr Walsh and her hope that he would honour his promises to her to change.
The moral culpability of the Offender for the crime of manslaughter must be considered against this background and is reduced for the reasons explained in these sentencing remarks.
The response of the law to this crime must reflect as well the fact that the Offender committed this offence in breach of conditional liberty intended by the law to protect Mr Walsh from the Offender.
The Offender's crime is a very serious one, but is to be understood in the unusual and extreme circumstances which then existed in her life.
I am satisfied that the Offender has excellent prospects of rehabilitation and is unlikely to offend again in the future.
Although it is expected that the Offender will be deported to Ireland when she regains her liberty, the prospect of deportation is irrelevant to structuring a sentence: R v Kristensen [2018] NSWCCA 189 at [23]-[27], [34]-[35].
I am satisfied that a foundation exists for a finding of special circumstances by way of the Offender's good prospects of rehabilitation, based on her good record of employment in the community, her lack of significant criminal history, her good record of behaviour in custody and her demonstrated commitment to counselling viewed against the background of the psychiatric and psychological evidence.
It remains the case that the non-parole period to be set as part of the sentence must reflect the criminality involved in the offence, including its objective gravity and the need for general deterrence: R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at 718 [65].
Before application of the 10% discount for the Offender's plea of guilty, a head sentence of imprisonment for nine years is appropriate in this case. After allowing for the 10% discount (with some rounding), the head sentence will comprise imprisonment for eight years. Having made a finding of special circumstances, I am satisfied that a non-parole period of five years is appropriate in this case. This is the minimum period which the Offender should serve in custody, having regard to all factors relevant to the imposition of sentence: R v Simpson at 717 [57], 718 [65].
The sentence will commence on 18 February 2017, the date when the Offender entered custody for this offence.
Although it is unlikely to have any application to the Offender because of her likely deportation, it remains necessary at law for the Court to inform the Offender that, for the purposes of s.25C(1) Crimes (High Risk Offenders) Act 2006, the provisions of that Act apply to her and to the offending which is the subject of these proceedings. I request that the solicitor for the Offender explain the operation of that provision to the Offender after the imposition of sentence.
Would the Offender please stand.
Cathrina Ann Cahill, for the manslaughter of David Walsh at Padstow between 17 and 18 February 2017, you are sentenced to imprisonment for a period of eight years comprising a non-parole period of five years commencing on 18 February 2017 and expiring on 17 February 2022 with a balance of term of three years commencing on 18 February 2022 and expiring on 17 February 2025.
The earliest date upon which you will be eligible for release on parole is 18 February 2022.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 December 2018

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