R v Edwards [2008] VSC 297

2 On the following day, 29 May 2008, I was informed that the prosecution intended to file a new presentment charging you with defensive homicide, contrary to s 9AD of the Crimes Act 1958 and that you intended to plead guilty to that charge. The new presentment was filed and you did plead guilty. I then made an order staying the presentment containing the murder count. On 4 June 2008 I heard a plea on your behalf. I heard further submissions on the operation of ss 14, 15 and 16 of the Sentencing Act 1991 on 29 July 2008.

3 The offence of defensive homicide was introduced by the Crimes (Homicide) Act 2005. The maximum penalty for the offence is 20 years' imprisonment. The presentment alleges that you killed Barry Allan O'Neill in the belief it was necessary to carry out the conduct which killed him in order to defend yourself from the infliction of death or really serious injury in circumstances where you did not have reasonable grounds for that belief.

4 You killed Mr O'Neill on Sunday 4 June 2006 at about 7.10 pm at his home in Sunbury in the presence of his then domestic partner, Kim Martin, and in the presence of your son Kevin Edwards Junior. Kim Martin had been your domestic partner and she is the mother of Kevin Edwards Junior.

5 In the mid 1990s you and Kim Martin formed a relationship. The two of you lived together at a house in Coolaroo. She fell pregnant to you with Kevin Junior in about April 1997. On 3 September 1997 you and an accomplice carried out an armed robbery on a post office. You were apprehended and were on remand until sentenced on 15 December 1998 in the County Court. You were sentenced to a total effective sentence of nine years six months' imprisonment with a non-parole period of seven years six months. The period of pre-sentence detention was 469 days.

6 Kevin Junior was born while you were in jail. Ms Martin and Kevin Junior visited you in jail from time to time.

7 The deceased Barry O'Neill lived opposite Ms Martin's house in Coolaroo. Whilst you were in jail Ms Martin formed a relationship with Mr O'Neill.

8 You were released on parole in December 2004 and initially went to live with your mother in Glenroy. After a time you took over as the primary caregiver for Kevin Junior. Kevin Junior would visit his mother and Mr O'Neill every second weekend. Eventually Mr O'Neill and Ms Martin moved to a house in Sunbury, the place where Mr O'Neill was killed.

9 The depositional material includes statements from persons dealing with the animosity which you felt towards Mr O'Neill and Ms Martin. On the plea your counsel told me that there was a degree of discomfort and animosity upon your release, and that you had difficulty accepting that your relationship with Ms Martin had broken down. He submitted that over time relations had improved and during the period immediately prior to Mr O'Neill's death those improved relations subsisted. Counsel for the prosecution submitted that I should proceed on the basis that there was a degree of background animosity between you and Mr O'Neill and that this was not a position where the fatal incident occurred between people who otherwise had had no history of problems between them. The position taken by counsel for the prosecution and your counsel were consistent with each other, and I proceed on that basis.

10 Kim Martin has children from a relationship prior to her relationship with you. One of those children is Kristy Martin. On Friday 2 June 2006 at your request Kristy Martin drove you and Kevin Junior to the Sunbury house of Mr O'Neill and Ms Martin. You stayed at that house on Friday night and on Saturday night. Both you and Mr O'Neill were drinking a good deal during that period. An autopsy performed on the deceased revealed a high concentration of alcohol in his blood, and the presence of other drugs including methamphetamine, amphetamine, valium, alprazolam (often known by the trade name Xanax), and cannabis. The levels of methamphetamine, amphetamine, and the substance indicating cannabis use were very low, and probably were a result of use more than a day or two previously. The deceased's high blood alcohol concentration and his high level of alprazolam would have been sufficient in the opinion of the forensic physician who undertook the analysis to induce "a state of severe intoxication". Tests were not done on your own blood alcohol concentration. On your plea I was told that both you and the deceased were drinking heavily over that weekend, and I accept that that was the case.

11 Mr O'Neill's death occurred in the early evening of Sunday 4 June 2006. Earlier that day the police had had occasion to attend the Sunbury house. They had dealings there with Mr O'Neill who appeared to them to be intoxicated and who behaved towards them in an abusive and aggressive manner.

12 The fatal confrontation between you and Mr O'Neill occurred in the presence of Ms Martin and your son Kevin Junior. Your son was eight years old at the time. A few hours after the incident he gave an account of what had occurred by way of a video taped statement. I have read the transcript of that statement and in the course of the s 400(3) application the tape was played in court.

13 The account given by Kevin Junior of the incident is in substance that Mr O'Neill started the fight by threatening to hit you with a leg off a coffee table. He said that you ripped the leg out of his hand and commenced to bash Mr O'Neill. He said Mr O'Neill was knocked out. He said that as well as hitting him with the leg of the table you hit him with a Jim Beam bottle and you kicked him in the face and "in the rude bit". Ms Martin's account in her statement is that the fight started when Mr O'Neill said something to you that was "a bit smart" and that you then attacked him.

14 On the plea, counsel for the prosecution told me that the Crown accepts the accuracy of the account given by Kevin Junior on the video tape insofar as it differs from that given by Kim Martin. The two accounts differ in relation to how the fight started. Otherwise, the two accounts are consistent. One thing upon which they agree is that you continued your attack on Mr O'Neill after he appeared to be unconscious.

15 Ms Martin and Kevin Junior ran out of the house and went to a nearby public phone where they called for an ambulance. The police also attended and the three of you initially gave the police a false account of what had occurred. When formally interviewed by the police you did not persist with that false account but maintained that what you had done was done in self-defence.

16 The uniform police officers who attended the scene observed that you had a small cut on the crown of your head and also a cut on your right hand. Whilst in police custody you inflicted further injuries upon yourself. You were examined by a medical practitioner. All of your injuries were assessed as being relatively minor.

17 The autopsy on the deceased was performed by Professor Stephen Cordner from the Victorian Institute of Forensic Medicine. His report describes injuries which could only be the result of a most severe and savage bashing. Professor Cordner says the deceased "sustained very substantial and severe damage to his head resulting effectively in the crushing of the face with multiple comminuted fractures of almost all compartments of the face and multiple fractures of the skull". There were also injuries to other parts of his body, including the genitalia. Professor Cordner observes that the injuries were compatible with having been caused by "shod feet and/or blunt objects". He says there were aspects of the injuries which demonstrated patterns probably representative of more than one offending instrument.

18 Forensic tests on objects taken from the scene revealed the existence of the deceased's blood on a broken Jim Beam bottle, a coffee table leg, and two different Galliano bottles. The deceased's blood was also on one of your shoes. The crime scene examiner reached the following conclusion:

"I believe the deceased was struck with multiple blows upon his head and possibly upper body by the use of an implement, possibly the coffee table leg(s) and/or glass bottles, while being positioned low to the ground adjacent to the arm chairs on the east wall. The deceased did not move from the position as found after receiving at least some of these blows."

19 Mindful of the fact that I must be satisfied as to matters adverse to you beyond reasonable doubt, but that I may be satisfied of matters in your favour on the balance of probabilities, the conclusions which I reach in relation to the incident are the following:

(1) There was a background of animosity between you and Mr O'Neill but over time relations had improved.

(2) You and Mr O'Neill engaged in a long drinking session commencing on Friday 2 June and culminating in Mr O'Neill's death in the early evening of Sunday 4 June.

(3) The fatal confrontation began when Mr O'Neill threatened you with the leg of a coffee table.

(4) You overpowered Mr O'Neill, and then bashed him with the coffee table leg and with other objects including bottles, and you kicked him, causing him terrible injuries which resulted in his death. You continued your fatal attack upon him after he had been rendered unconscious.

20 I accept that your conduct which caused Mr O'Neill's death was carried out at a time when you were intoxicated. I also accept that it was carried out by you in the belief that it was necessary in order to defend yourself from the infliction of death or really serious injury. You did not have reasonable grounds for that belief. I observe that pursuant to the Crimes (Homicide) Act 2005 the existence of reasonable grounds or otherwise is to be assessed having regard to the standard of a reasonable person who is not intoxicated.

21 You have a sad personal history and a shocking criminal record. A prior judgment of the Court of Criminal Appeal of this Court and two prior sentences were tendered on the plea. You have been continuously in trouble with the law since you were a child. You have spent most of your life in institutions. This sad reality has been repeatedly put before the many courts who have had to deal with you over the years.

22 You were born in 1962. You have two brothers and two sisters. Your father was a good provider but as a truck driver was often away. Your childhood was disrupted when your mother became deaf and suffered psychological problems. You were made a ward of the State at the age of seven years. You spent much of your childhood after that time in institutions. You were first sentenced to a term of imprisonment at the age of 17 years which you served in Pentridge. I was told that you were subjected to physical attack there and that you served time in Jika Jika. I was told that from a young age you became accustomed to living in a world characterised by a high level of violence. You were married in 1983 for approximately two years. You then formed the relationship with Ms Martin to which I have referred.

23 On your plea I was told that when you were released from jail you wanted to re-establish family life with Ms Martin and with your son but you were disappointed in that hope because of the relationship Ms Martin had formed with Mr O'Neill. I was told that you made considerable efforts to care for your son, and I accept that you did do that. Your father died in late 2005. For a time you formed a new relationship, and tragically that woman committed suicide in December 2005. On your plea a psychological report of Mr Bernard Healey dated 12 October 2006 was tendered. That report did not deal with this offence but I have nevertheless taken its contents into account.

24 The prior convictions on the further presentment begin in 1979. I will not set them all out. You have prior convictions for armed robbery, and for assaulting police, as well as prior convictions for many other offences. As I indicated you have served a lot of time in jail. I was told on the plea that of your 28 years of life as an adult 23 years have been spent in custody. It was put on your behalf that your prior criminal history does not involve many offences where there was the direct infliction of injury. Whilst there is some substance in that submission, you have prior convictions for armed robbery and assault, and the sentencing remarks of Judge Dee in December 1998 concerning the armed robbery and a threat to inflict serious injury reveal what seems to me to be a violent disposition. Given your history, that is perhaps unsurprising.

25 After your release from jail on parole in December 2004, and prior to the incident in which you killed Mr O'Neill, you committed a large number of dishonesty offences. You were dealt with in the County Court in relation to those offences on 3 November 2006. They are not prior convictions in relation to this offence. I will return to the effect of the sentences in December 1998 and November 2006.

26 On the plea the prosecution tendered a bundle of 10 victim impact statements.

27 I have read all the victim impact statements carefully. They tell a tragic tale of suffering and loss as a consequence of your unreasonable, violent reaction to Mr O'Neill's initial threat on that day. I cannot set out in any detail what they all say but I do wish to specifically refer to the statement of Kim Martin. Ms Martin describes how she still misses and still loves Mr O'Neill to this day. She says she does not enjoy life anymore and has suffered two mental breakdowns since his death. She says:

"I will never get over the horrific actions of Kevin Roy Edwards he has caused so much pain and heartache for me and my family especially for my son Kevin and me."

28 Counsel on your behalf described what happened that weekend as tragic. He referred to your upbringing and to the extensive periods you have spent in custody. He also referred to your attempts to look after your son upon your release. He said the dishonesty offences which you committed were a result of your desire to establish a stable home for your son.

29 In the course of the plea your counsel submitted that I should accept that you did suffer an injury to your head in the course of the fatal incident. This is one of the two injuries observed by the uniform police who attended. I do accept that you did suffer an injury to your head in the course of the incident. As the medical evidence indicates, it was of a relatively minor nature. I cannot determine how you suffered that injury. I do not accept the account you gave in your record of interview of being hit with a bottle by the deceased.

30 Your counsel relied upon the report of Mr Healey, and referred to the events on the weekend and in particular the significant drinking. He referred to the fact that the incident occurred not long after your father's death and the suicide of your partner. He also relied upon the fact that you had pleaded guilty. He said that there was no evidence of pre-meditation or the use of a weapon brought to the scene of the crime. He urged me to pay careful regard to the principles of totality. In relation to rehabilitation, he acknowledged the difficulties but said that there was some indication of rehabilitation in the motivation which you had demonstrated to provide for your son. He submitted that this was a case that was not near the worst case of an offence of this kind.

31 I accept that all of the matters put by your counsel are properly to be taken into account, save that I do not accept that this offence was not near the worst of its type.

32 Counsel for the prosecution submitted that this was a very serious case of this kind. Counsel submitted that the response in this case was especially violent and especially disproportionate. I accept the prosecution's characterisation of the seriousness of this offence. In my view it is near the worst of its type.

33 Counsel for the prosecution also referred to your extensive criminal history. As to the background to the plea of guilty, he told me that at the committal there had been an inquiry made as to whether the prosecution would consider a plea to manslaughter to which the prosecution had responded negatively, and that the suggestion of a plea to defensive homicide was first raised shortly prior to the trial.

34 Counsel on the plea were not able to refer me to any prior sentences for the offence of defensive homicide other than my own sentence in the matter of R v Smith,[1] to which I was particularly referred to by your counsel. I have approached this matter taking into account the general observations I made in R v Smith in relation to this offence. I have also had regard to other cases, some of which possess characteristics analogous to this present case.[2]

35 It hardly needs to be said that in your case both specific deterrence and general deterrence are very important. You have a bad criminal history. It does involve prior acts of violence and threats of violence, and with this offence, your criminal violence has escalated to a new level. Drunken violence of this kind is prevalent. It is particular disturbing here where it has occurred against a background of past animosity concerning the domestic relationships, in the presence of the woman with whom both you and the victim had been involved, and in front of your innocent young son.

36 The tragic effect of these events upon your son, who I have no doubt you love sincerely, is one of the most disturbing features of this crime. Perhaps the best thing that can be said in your favour is that you were at least partly motivated to plead guilty to this charge by a desire to spare your young son the possibility of further involvement in court proceedings. I take that matter into account in your favour.

37 The sentence you received on 3 November 2006 in relation to the dishonesty offences, to which I referred earlier, was 2 years' imprisonment with a non-parole period of 18 months. At the date of that sentence there was 142 days of pre-sentence detention to be taken into account.

38 On 29 November 2006 the Adult Parole Board cancelled your parole in relation to the sentence which had been imposed on 15 December 1998. Consequent upon the cancellation of your parole, the balance of your term on the December 1998 sentence was 1 year 11 months 29 days.

39 Counsel for the prosecution sought advice from both the Department of Justice, Corrections Victoria, and from the Adult Parole Board as to your position prior to the sentence which I am to impose. Letters from the Department and the Parole Board dated 12 June 2008 were handed up in the course of the plea and submissions. The Department and the Parole Board advise that their analysis of the position is that, prior to the imposition of the sentence I am to impose, your current head sentence is 3 years 11 months 29 days, your non-parole period is 18 months, and 142 days of pre-sentence detention is to be taken into account. Thus, your earliest eligibility date for parole (prior to the sentence I am to impose) was 12 December 2007 and your sentence end date (prior to the sentence I am to impose) is 12 June 2010. Both your counsel and counsel for the prosecution submitted to me that these were the accurate figures. I proceed on that basis.

40 Your counsel did alert me to the possibility that s 15(2) of the Sentencing Act 1991 might apply in such a manner that you would not commence serving the sentence imposed by the County Court in November 2006 until 28 November 2008. I accept the prosecution submission, which was then supported by your counsel, that s 15(2) will not relevantly apply until I impose a sentence. When I do, the non-parole period I impose will be served first, and then the balance of that sentence and the balance of the other sentences, in relation to which you will be eligible for parole, will be served cumulatively pursuant to s 16(3B) of the Sentencing Act in the absence of exceptional circumstances. Your counsel did not contend that there were exceptional circumstances here.

41 Your counsel submitted that the fact that you will have a head sentence which in effect will amount to approximately 2 years in addition to the sentence I impose is a matter which must be taken into account when considering totality. I accept that. He also emphasised that I must approach sentence on the basis that you may be required to serve the full term I impose and the unexpired portions of the earlier sentences. I do proceed on that basis.

42 This is a terrible crime which you have committed. You have taken a man's life, and you have caused great suffering for all those who loved him. You believed it was necessary to act as you did, but your response to his threat was without reasonable grounds. It was savage and brutal.

43 For the crime of defensive homicide I sentence you to 10 years' imprisonment, and I fix a non-parole period of 8 years. The period of pre-sentence detention is agreed to be 10 days, and I direct accordingly.

[1] [2008] VSC 87.

[2] In addition to the materials and decisions referred to in R v Smith, I have here also had regard to R v McLachlan [2000] VSC 564, R v Roesner [2002] VSC 384; R v Casey [2006] VSC 146; R v Curtain [2007] VSC 309; R v Egan [2007] VSC 485; and R v Stratton [2008] VSCA 130.