R v Carolus [2011] VSC 583

2 You and Sherry Robinson began a relationship around 1999. At the time, Ms Robinson was living in a house at Pimelia Court, Frankston, with her two sons from a previous relationship, Sabastian and Nikki-Lee ("Nik") Hipwell. You were living over the road, with your parents.

3 Your relationship with Sherry Robinson was a turbulent one. You would stay at her house for a few days or weeks, then return to your parents' house after a fight. Sometimes you would go into a violent rage and damage the house or its contents, and she would have to flee the house with the children. On some occasions, she and the children would sleep in a car, because they were frightened of going home. During this relationship, your son Nathan was born in March 2000.

4 Your on again-off again relationship with Ms Robinson came to an end around 2004, when - in another violent rage - you damaged her house so extensively that she was unable to continue living there. She and the three boys moved to Wittenberg Avenue in Frankston.

5 Sherry Robinson had obtained an intervention order against you, which was still in force at the time of her death. You had, in fact, breached that intervention order a number of times before this incident, when you had gone to her home and damaged her property.

6 After the relationship ended, you had access to Nathan every alternate weekend. Access visits were arranged through your parents.

7 In 2005, Ms Robinson met James Lewis on the internet. He lived in America. After getting to know each other over the internet and by phone, they met in person in America. Sherry Robinson and the two oldest boys subsequently visited Mr Lewis there, and he made trips to Australia to visit her and her family.

8 In 2007, Ms Robinson asked you to consent to Nathan getting a passport, so he could accompany her to visit Mr Lewis. You refused your consent; apparently you were concerned that if Nathan went to America, he might not return. Ms Robinson applied to the Federal Magistrates' Court for an order allowing Nathan to get a passport without your consent. In April 2009, her initial application was refused.

9 In early 2010, Mr Lewis and Ms Robinson became engaged. She renewed her court application for a passport; it was heard on Wednesday, 26 May 2010. You were present in court and opposed her application. After the magistrate indicated that Nathan would be able to get a passport, you left the court and went home.

10 That afternoon, your mother came to your place. She found you enraged, damaging the house and threatening to harm yourself. Your mother called the police, who came and arrested you under s 10 of the Mental Health Act 1986 and took you to Frankston Hospital. Initially, you were too intoxicated even to be assessed. You told staff you had drunk 16 cans of beer, as well as taking your prescribed medication of Seroquel (a mood stabiliser). A blood sample, taken a couple of hours after you were arrested, showed a blood alcohol level of 0.108%.

11 Later that evening, after you had rested, you were assessed by a psychiatric nurse. You told the nurse you had been angry, because the court had allowed your son to get a passport. You said you had got very drunk and angry in the afternoon, and made threats to harm yourself, your mother and your ex-partner. You told the nurse that the threats were just stupid talk. The nurse believed that you were embarrassed by your conduct - which you attributed to alcohol - and remorseful. When the nurse assessed you at 11.10 pm that evening, you were calm and settled. The psychiatric nurse did not believe you were displaying any symptoms of mental illness. You were discharged from hospital shortly after midnight on the morning of Thursday, the 27th.

12 Sherry Robinson spent the night of Friday, 28 May at home with her middle son, Nik. Sabastian was staying at a friend's place, Nathan was at your parents' home. Both Nik and his mother were in bed by midnight. Around 3.00 am, you entered the house through the unlocked front door. Nik was awoken by noises in the kitchen, which was near his bedroom.

13 You took a 32 cm carving knife from the cutlery drawer and went to Ms Robinson's bedroom, where you found her asleep in bed. You repeatedly stabbed her with the knife. Her screams caused Nik to run into her bedroom, where he found you on top of her, holding a knife raised in the air, with the blade pointed down. Nik, who was only 16 at the time, very bravely rushed towards you and pushed you off his mother, causing you to fall against the bedroom window.

14 As the two of them ran out of the house, Nik grabbed a phone from the kitchen on the way out. Ms Robinson was just behind Nik, as they went through the front door. Nik ran down the driveway. When he got to the gutter, he looked back and saw that his mother had fallen down in the driveway and was calling for help. By this time, you were coming down the driveway after her. Nik hid behind a car and called 000 to get help. While he was behind the car, he could hear you continuing to attack his mother.

15 A neighbour heard you repeatedly saying "Sherry, I told you I wanted you to die. I told you I will kill you." And "No one's going to fuck with me". At one stage, you said to Nik "I'm only going to get 7 or 8 years for this, you know, I will be out again, so don't mess with me. Have I got my point across?" In order to placate you, Nik told you that you had made your point loud and clear.

16 You were waiting out the front of the premises, with the knife stuck in the ground near Ms Robinson's body, when the police arrived at 3.12 am. You were taken back to the police station, where a forensic medical officer later assessed you as being unfit to be interviewed. No formal record of interview was conducted.

17 According to the pathologist who performed the autopsy, Sherry Robinson had 25 incised injuries, including 6 to the chest and 12 to the abdomen. She had incised injuries to her heart, lungs, colon and right kidney. She had defensive-type wounds to her right hand. There was also a fracture of the thyroid cartilage, consistent with some type of compressive force being applied to her neck. Sherry Robinson was 38 when she died.

18 Before I consider your personal circumstances, I want to say something about the impact your actions have had on others.

19 Sherry Robinson was a loving mother, daughter and fiancée, who always put her children and family before herself. She was studying for a diploma in welfare, at the same time as raising three children on her own. Your actions have profoundly affected her loved ones, particularly her parents, Carole and Geoffrey Robinson, her sons, Sabastian, Nik and Nathan, and her fiancé, James Lewis. In their victim impact statements, they have spoken in very moving terms about the devastating and ongoing effects of losing Sherry, particularly in such terrible circumstances, and without any opportunity to say good-bye. Quite understandably, they have all suffered a range of emotions, including pain, grief and anger.

20 You not only deprived Sherry Robinson of her most precious right, her right to life, but you also deprived those who loved her of their mother, daughter and fiancée.

21 Her three sons now live in separate homes, and are having to make their way in life without their mother. Although they are very fortunate to have the love and support of their grandparents, nothing can replace their mother.

22 It is clear from his victim impact statement that Sherry's son, Nik, blames himself for her death. He feels he should have done more that night, to protect her from you. He has been punishing himself, both physically and mentally, from a misplaced sense of guilt. In fact, Nik's actions that night - in physically confronting a knife-wielding attacker, helping his injured mother out of the house, and calling the police - were very brave. They were brave actions for an adult, let alone a 16 year old. Given the nature of your attack, there is nothing else he could reasonably have done that might have saved her life. I hope that, with the passage of time, Nik will come to realise that he is not, in any way, responsible for his mother's death.

23 I turn to consider your background and personal circumstances.

24 You were born in August 1971, in South Africa, to parents who were both teachers. You were an only child for 13 years. As a child, you were aggressive, moody and lonely, with few friends. You frequently repeated grades at school, apparently due to suffering from ADHD and dyslexia. By the age of 8, you had been prescribed Ritalin, to calm you down.

25 Your family moved to Australia when you were 17. You started working at a supermarket, where you worked for almost 5 years. Since then, you have worked at various jobs, although have had trouble holding most of them down for more than about 6 months.

26 By your early 20s, you had developed serious problems with alcohol abuse. When drunk, you have frequently damaged your own and other people's property.

27 As an adult, you have been diagnosed as suffering from bipolar affective disorder. You were admitted to Thomas Embling Hospital around 2005, although the circumstances of that admission are not known to me.

28 You have attempted suicide on several occasions.

29 In the case of Verdins[1], the Court of Appeal held that impaired mental functioning, whether temporary or permanent, may be relevant to sentencing in a number of ways. The so-called Verdins principles require a sentencing judge to consider an accused person's mental state at the time of offending, and at the time of sentencing. Unfortunately, the evidence as to your precise mental condition at the time you killed Sherry Robinson is not entirely satisfactory.

30 Your treating psychiatrist at the time of the murder, Dr Jeremy Stone, noted that you were not willing to take any medication for your bipolar disorder in December 2009. But, by late February 2010, Dr Stone reported that you had started taking Seroquel in the "past month or two", which had made a difference in helping stabilise your moods and preventing irritability.

31 In his forensic report dated 30 August 2010, Dr Stone said you had a "likely bipolar affective disorder", possible alcohol abuse problems, and "almost certainly had personality issues which may have been somewhat antisocial in nature." He noted that you had been admitted numerous times to the psychiatric inpatient ward at Frankston Hospital, "usually for suicide attempts or for feelings of suicidality." Dr Stone noted that the nature of bipolar disorder is that people can be relatively well between episodes of depression or mania, and symptoms can be present one week and not another.

32 Dr Stone said that he was "unable to determine what [your] mental state would have been at the time of the offence." On the one hand, the stress of the court hearing two days before the murder may have triggered off an episode of your bipolar disorder. On the other hand, he noted that the psychiatric nurses who assessed you at Frankston Hospital on the 26th had found you not to be in the midst of a psychotic or manic episode. On the limited material before him, Dr Stone said he would be "uncertain as to whether the bipolar disorder itself contributed to this offending behaviour." He noted that it was "possible that [you] also had an alcohol problem and may have been intoxicated at the time of the alleged assault and therefore this may [have] contributed to the ... offence as well."

33 Dr John Giannakakis, the forensic medical officer who examined you at 8.10 am on the morning after the murder, formed the opinion that you were unfit to be interviewed at that time. Unfortunately, the evidence does not indicate whether he thought you were unfit for physical or mental reasons.

34 You have been assessed by Dr Anthony Cidoni, a psychiatrist, in connection with this offence. His supplementary forensic report, dated 1 November 2010, was produced to the court. His initial report, dated 12 September 2010, which apparently contained the history which he took from you, was not tendered in evidence; that made it difficult to assess to what extent Dr Cidoni was relying on his interview with you on 25 August 2010 - as opposed to other materials provided to him - as the basis for his opinions.

35 In his supplementary report, Dr Cidoni noted the following "context of the offence". After discussing the court dispute about Nathan's passport, he noted that you were concerned that Ms Robinson might not return from the USA, even though she had said she would. He said that appeared to be a reflection of your fears of losing your son, rather than some sort of delusional belief. He then said the following:

In terms of mental state at the time of the offence, Mr Carolus believed that he may have been high at the time of the offence but was unable to clearly describe symptoms of mania at this time. He wondered if he was hearing something at the time of the offence but was unable to recall any details of this. He denied any previous thoughts of harming his ex-partner or stopping her from going. I note that Dr Giannakakis ... reported that Mr Carolus had had thoughts of harming her for the past 3 months.

The statement of Ms Hipwell, Ms Robinson's 16 year old daughter, who was present during the offence, reported that Mr Carolus had been saying that he was going to get her eventually and that it was payback. There is no indication in her statement that Mr Carolus was psychotic.[2]

Mr Carolus had been drinking heavily on the night of the offence and has taken excess amounts of his prescribed quetiapine.[3]

1. Mr Carolus' psychiatric history is consistent with diagnoses of bipolar disorder type 2 and alcohol dependence.

2. Mr Carolus also has had difficulties with anger management, which may be exacerbated by his bipolar condition when in manic relapse, and are also reflective of his personality. In relation to the offence, his anger appears to have been exacerbated by his Family Court loss. His bipolar disorder, in my opinion, would make it more difficult to cope with significant stressors like this, and more likely to increase his alcohol abuse, and exacerbate his anger.

3. I do not believe that Mr Carolus's bipolar condition was particularly active at the time of the offence. In terms of ranking, the numerous factors operating at the time of the offence, in descending order of importance were: alcohol intoxication, anger/difficulty adjusting to the Family Court decision, and bipolar disorder. ...

4. In terms of intent, there was no indication from Mr Carolus at interview that he had harboured thoughts of harming or killing his ex-partner prior to the offence. Mr Carolus disputes the statements of Dr Giannakakis and Ms Hipwell. In any event, these statements were made around the time of the offence, when he was clearly intoxicated. Whilst it is clear that Mr Carolus was angry at his ex-partner, and fearful that she may not return from the USA with their son, this falls far short of forming intent to kill.

5. In relation to the principles in R v Verdins, the alcohol intoxication would undoubtedly have impaired Mr Carolus's ability to exercise appropriate judgment and make calm and rational choices, and think clearly. It is likely to have had a disinhibiting effect; that is, acting as the precipitant to the offence. I find it unlikely that the offence would have occurred in the absence of actual intoxication.

6. It is my conclusion that, given the above issues, Mr Carolus did not have the requisite ability to form intent to murder.

7. In relation to the sentencing considerations of R v Tsiaris, I believe that Mr Carolus will experience incarceration as more difficult by virtue of his bipolar disorder. His ability to cope in custody will be affected, and his moods are likely to be unstable. He is a risk of suicide.

36 I make several comments in relation to Dr Cidoni's supplementary report. First, the fact that you have pleaded guilty to murder means that you accept that you did, in fact, have the necessary murderous intent.

37 Secondly, your counsel urged me to accept some parts of Dr Cidoni's report, but not others. He argued that I should accept Dr Cidoni's opinion that your bipolar disorder would make incarceration more onerous for you; that I should find that Dr Cidoni's report left open the possibility that your bipolar condition was active at the time of offending; but should reject Dr Cidoni's opinion that you were intoxicated at the time of the murder. I will deal with each of those matters in turn.

38 It is not disputed, and I am satisfied, that your bipolar disorder (including likely mood swings and suicidal ideation) is likely to make imprisonment more onerous for you than for a person in normal health. That is a relevant mitigating factor, in accordance with the Verdins principles, which I have taken into account in sentencing you.

39 However, your counsel's other arguments in relation to Dr Cidoni's supplementary report are more problematic. His report did say that your bipolar condition would make it more difficult for you to cope with significant stressors like the court loss, thereby making you more likely to increase your alcohol use and exacerbate your anger. But, Dr Cidoni did not believe your bipolar condition was "particularly active" at the time of the offence, and placed it as the least important factor (after intoxication and anger or difficulty adjusting to the court decision) operating at the time of offending. And the only one of those three factors which Dr Cidoni suggested would attract the Verdins principles, in relation to your conduct at the time of offending, was your intoxication.

40 But your counsel argued that there was no evidence before the court that you were intoxicated at the time you killed Sherry Robinson. He urged me to reject Dr Cidoni's opinions in relation to intoxication, and to find that you were not intoxicated at the time.

41 The prosecution could not point to any evidence that you were in fact intoxicated when you killed Ms Robinson. As mentioned earlier, it is not clear whether Dr Giannakakis found you unfit to be interviewed due to intoxication, or for some other reason. I have carefully read the depositional material, and can find no evidence that you were intoxicated at the time, other than in Dr Cidoni's report. Indeed, the statements made by the police officers who attended the scene very soon after the murder described you as polite and co-operative, and contained no suggestion of intoxication.

42 Your counsel argued that while the evidence left open the possibility that your bipolar disorder had some impact on your offending, he was not suggesting that the Verdins principles were engaged by reason of your mental state at the time of offending. In particular, it was not suggested that there should be any reduction in moral culpability, or in the need for specific or general deterrence, by reason of your bipolar disorder.

43 This is a serious example of the crime of murder, although it is not at or near the top of the sentencing range for that crime. You engaged in a sustained attack with a knife on a defenceless, sleeping victim, in her own home - where she should have been able to feel safe. You attacked and killed her in the presence of her teenage son.

44 You had reacted very angrily to the Federal Magistrates' Court decision, two days earlier, going on a drinking binge, damaging your own house and threatening harm to yourself and others. You had sobered up and calmed down by the time you left Frankston Hospital, later that evening.

45 Nevertheless, it appears that you continued to be very unhappy about the court's decision, and were fearful that your son might go to America and never return. I accept that you were in a highly emotional state at the time you attacked Sherry Robinson, and that your actions were spontaneous and not premeditated.

46 There is insufficient evidence to enable me to conclude that you were intoxicated, or to what extent, if at all, your bipolar disorder was a contributing factor to your actions that evening.

47 You killed Sherry Robinson in breach of an intervention order requiring you to stay away from her and her home. Not only must courts endeavour to deter persons from seeking to resolve domestic conflict by means of violence, they must also make it abundantly clear that the use of weapons and the resort to violence and flagrant breach of intervention orders will be met with severe punishment. As the Court of Appeal has noted on a number of occasions, intervention orders are a process designed by parliament to provide the protection of the law to vulnerable individuals, usually women and children, who legitimately fear for their safety.

48 You have a long history of prior convictions, going back to 1995. Some of those convictions involve matters such as driving offences, which are not particularly relevant in sentencing you today. However, others are more directly relevant. Your numerous convictions for intentionally damaging or destroying property seem to reflect your ongoing problems with alcohol abuse and anger management, and possibly also bipolar disorder.[4] You have convictions for stalking Ms Robinson, and multiple breaches of intervention orders taken out against you by Ms Robinson, by another former partner, and by your own parents. You have also been convicted on four occasions for breaches of suspended sentences or community-based orders, which had been imposed on you. In your favour, I note that your criminal record does not include a history of violence against other people. However, your repeated disregard for court orders is relevant to your prospects of rehabilitation.

49 Over the years, various courts have ordered you to undergo assessment and treatment for alcohol abuse, and to submit to medical/psychological/psychiatric assessment and treatment. There is no evidence before me as to what, if any, steps you have taken to comply with such orders.

50 After you were committed for trial in this court, your lawyers sought time to consider whether a mental impairment defence might be open to you. In May 2011, you pleaded guilty to the charge of murder. In the circumstances, I accept that your plea was made at a relatively early stage.

51 You are entitled to a discount on the sentence to be imposed upon you in recognition of your plea. Your plea has facilitated the course of justice. The community has, by your plea, been spared the time and cost of a trial. Furthermore and significantly, Ms Robinson's family (particularly Nik) has been relieved of the trauma of a criminal trial.

52 You have expressed remorse for what occurred. I accept that your remorse is genuine, and have also taken that into account in sentencing you.

53 You have some prospects of rehabilitation. Prior to this offence, you had been studying for a TAFE course in information technology, and your life seemed to be improving somewhat. In the period between October 2004 and this offence, you only had one court mention and sentence. And, in spite of all that has happened, you still have the support of your family.

54 Whilst in custody, you have participated in courses on mood and anger management, alcohol abuse, communication skills and problem solving. This is an encouraging start. But it is likely to take a lot more work to address your long history of alcohol abuse and anger management.

55 There is a clear need for both general and specific deterrence in a case such as this, as well as the imposition of just punishment and denunciation of your conduct.

56 I have had regard to the sentences imposed in similar cases, bearing in mind that they can, at best, only provide a general guide or impression as to the appropriate range of sentence.

57 Balancing as best I am able the competing considerations laid down in the Sentencing Act 1991, and having regard to the matters I have just discussed, I have concluded that you should be sentenced to a period of imprisonment of 21 years. I fix a period of 17 years as the period you must serve before becoming eligible for parole.

58 I declare, pursuant to s 6AAA of the Sentencing Act that, but for your plea of guilty, I would have sentenced you to a total effective sentence of 24 years' imprisonment, with a minimum non-parole period of 21 years.

59 Further, I declare that the period to be reckoned as already served under this sentence is 539 days, inclusive of today's date. I direct that there be noted in the records of the court the fact that such declaration was made and its details.

60 I will also make a disposal order, which is not opposed, in terms of the draft order previously provided to me.

[1] R v Verdins [2007] VSCA 102; (2007) 16 VR 269.

[2] Dr Cidoni was obviously operating under the erroneous assumption that "Nikki-Lee" was a girl's name, but nothing turns on that mistake.

[3] Seroquel is a brand name for quetiapine.

[4] The court was only provided with limited information by counsel as to the circumstances surrounding these prior convictions. Your mother's statement seems to primarily attribute your property violence to your alcohol abuse.