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[2012] VSC 138
Supreme Court of Victoria
2012-04-24
WEINBERG JA
Original judgment source is linked above.
CRIMINAL LAW - Sentence - Defensive homicide - Plea of guilty - Remorse - Good prospects of rehabilitation - Sentence of 7 years' imprisonment with non-parole period of 4 years and 9 months.
1 Jemma Elizabeth Edwards, you have pleaded guilty before me to one count of defensive homicide. The maximum sentence for that offence is 20 years' imprisonment. It is now my task to sentence you for that crime.
2 On 18 January 2011, police and Ambulance Victoria were called to a residential premises at 36 Royalty Avenue, Highett. At that location they found the body of your husband, James Charles Edwards. He had sustained multiple stab wounds to the upper body, right arm and left leg. You were present at the scene. You told police that he had been killed by two male offenders, both of whom had fled the scene.
3 You were arrested, but assessed as unfit to be interviewed. You were detained at the Monash Medical Centre Adult Psychiatric Unit until 31 January 2011. You were then released into police custody and interviewed. During the course of that interview you confessed to the killing of the deceased, but told police that you had acted in self-defence. You were charged with murder.
4 The background facts can be briefly stated. You met the deceased in 1997, and married him in the following year. This was his second marriage, he having divorced his former wife in 1986 following a turbulent relationship involving several instances of domestic violence. There was one child of that marriage, a daughter Megan.
5 After you and your husband married in 1998, you lived periodically in a number of different states. At various times you resided in Queensland and New South Wales, as well as Victoria. You eventually came to live permanently in Victoria in 2006.
6 The house at Royalty Avenue Highett belonged to the deceased's mother, Peg. She died in June 2010. Prior to her death there were a number of instances involving domestic violence perpetrated by the deceased upon his mother. These were not reported to police, but were disclosed to various friends and medical practitioners.
7 The evidence is clear, and not challenged by the Crown, that the deceased was a heavy drinker. He was described by neighbours as a 'loner' and, on occasion, 'violent and confrontational.'
8 Your own background can also be briefly summarised. You were born in Innisfail, Queensland on 10 January 1967. Your mother, Jeanie Day, who lives in Queensland, has been supportive of you as best she can. She describes you as having in the past been a happy and vibrant person. You were well educated, having qualified in nursing, a vocation that you pursued for many years. You ceased working as a nurse in 2002, thereafter being supported by the deceased.
9 You have a significant history of psychiatric illness. You have at various times been diagnosed as suffering from anxiety and depression. You had been admitted to psychiatric care on two occasions prior to 18 January 2011. As at that date you were complying with a community treatment order, having been diagnosed as bipolar and manic depressive. As previously indicated, you were regarded as unfit to be interviewed in the immediate aftermath of the killing of the deceased.
10 You suffered domestic violence at the hands of the deceased on a number of occasions over the years. Indeed, as at the time of the fatal incident, an intervention order was in place protecting you from your late husband. That order was taken out in June 2010.
11 There is a lengthy and well-documented history of the deceased's attacks upon you from about 1999 onwards. He was also violent towards his daughter Megan, and as I have said, his mother Peg. Police were called to intervene in domestic disputes involving both yourself and others in 1999, 2000, 2002 (three separate occasions), 2003, 2004 and 2005. On each occasion the deceased was drunk, abusive and violent. There were further instances of domestic violence between 2006 and 2010. One such incident, that occurred on 6 June 2010, led to the intervention order that was taken out.
12 You have one prior conviction. In September 2005 you were living with your husband in Howlong, New South Wales. You became involved in an altercation with him where, during the course of a dispute, you produced a small 'Barman's Friend' style corkscrew and knife and stabbed him four times, once to left hand side of his back, once to the right hand side of his neck, once to the rear of his head, and once to the right hand side of his upper chest. Despite the seriousness of his injuries, he managed to wrestle the implement from you. He was subsequently taken to hospital where he underwent surgery.
13 You told police, on that occasion, that you thought you had killed your husband, but claimed that you had acted in self-defence. Plainly, they did not believe you as you were charged with a number of counts of assault and causing grievous bodily harm. The police were no doubt influenced, in charging you, by the fact that despite your claim to have been punched repeatedly over a period of some 30 minutes (as well as being threatened with death) you had no visible injuries of any kind. When asked about that fact you claimed that the deceased knew karate, and therefore how to inflict blows without leaving any visible marks. I must say I regard that particular claim as far-fetched. I also note that on 2 September 2005 your late husband took out an apprehended violence order against you.
14 On 9 August 2006, you pleaded guilty to one count of assault occasioning actual bodily harm. You were sentenced to be imprisoned to a term of one year and nine months. That term was wholly suspended. You have not otherwise offended.
15 I turn to the events of 18 January 2011. In the week immediately preceding the incident in question, you flew to Queensland to spend some time with your mother. She says that she noticed that you had a large bruise on your hand. You told her that this was the result of an assault by the deceased in the course of which he grabbed you 'really hard.' Your mother told police that you were in a bad mental state at that time.
16 You flew back to Melbourne on 13 January 2011. A friend who saw you on that evening described you as having deteriorated mentally. On the following day, you were said to appear as though you had been crying. You attended on that day at a medical clinic in order to seek help for anxiety. Over the next day or two, others who saw you described you as not coping, and as acting irrationally.
17 On the night of 17 January 2011, a neighbour overheard you and the deceased arguing. It appears that there was a serious domestic dispute taking place.
18 On the morning of 18 January 2011, at about 10am, another neighbour heard you screaming. That neighbour said that you were yelling for about five minutes. She heard only one voice.
19 At 10.04am that morning you telephoned Ambulance Victoria asking them to attend at the Highett premises. During that call you stated that 'a man has been stabbed', and 'I think he is dead.' You told the operator that the offender had fled. You said that you were in shock.
20 At 10.10am various ambulance officers arrived at the scene. You were observed standing at the front door, dressed in a nightgown with what appeared to be blood spattered over it. The officers smelt alcohol on your breath, though they said you did not appear to be drug or alcohol affected. You told them that the offender had gone out the front door.
21 The ambulance officers entered the premises and found the deceased lying next to a chair that had been tipped over. A large pool of blood was emanating from his body.
22 Police arrived and had a conversation with you. You told them that you had been in bed asleep, and had been woken by two men who were arguing with your husband. One of those men had come in the bedroom, and held you down. He tied your hands behind your back while the other killed the deceased. The two men then left via the rear door. You gave a detailed description of each of them. Plainly, this story was a complete fabrication.
23 Thereafter, you were taken to a police vehicle. Whilst in that car you had a discussion with a police officer. You expressed concern that you were being treated as a suspect. You asked the police officer what you should do. She advised you to tell the truth. You replied: 'What if it makes me look bad?'
24 At that stage the homicide squad assumed control of the investigation. They made an assessment of the crime scene. A detective observed that save for the chair which had been overturned next to the deceased, the area appeared undisturbed. In particular the rear door seemed not to have been accessed since there was no blood trailing in that direction. The detective noted that a large brown-handled knife was lying next to the deceased, and an unloaded spear gun was at his feet. In addition a spear was located next to a buffet table facing away from the kitchen, and resting on a pair of shoes. Blood stained bare partial footprints were observed in the front sitting room which continued along a path from the front door of the house.
25 The post-mortem examination revealed a number of incised injuries to the upper and lower body. Although the evidence does not reveal the precise number of wounds inflicted, it was agreed during the course of the plea that, in broad terms, the deceased had sustained about 30 or so separate injuries. Of these, about six involved significant stab wounds. A majority of the injuries were inflicted in the upper body and head area, but there were also some wounds to the legs, fingers and forearms. There was, in addition, a large ovoid wound 2 centimetres in depth to the midline of the back. That wound was suspected of having been caused by the spear that was located at the scene.
26 The pathologist noted that the wounds to the left side of the chest had passed through the body of the left lung, and penetrated the heart. These wounds were likely to have been inflicted by the knife found at the scene. He concluded that it was possible that a number of the wounds had been inflicted post-mortem. The deceased had a blood alcohol reading of between 0.04 and 0.07 grams per hundred millilitres.
27 After you were released from the Monash Medical Centre Adult Psychiatric Unit on 31 January 2011 you were interviewed by police. During the course of that interview, you recounted a history of violence towards you and towards the deceased's mother Peg. You told police that on the night before your husband met his death, he had been drinking heavily. You said that he had threatened you repeatedly.
28 In the course of your record of interview, you gave the following description of the events that had occurred on the morning of the 18th January:
on the night before he died, he'd been up all night drinking, and umm, he'd been coming in and out of the room all night and threatening me and making me really afraid. Umm. Well, this has been going on for - really badly for the last few months. He s-, he strangled me and kicked me and umm, punched me. Done all sorts of things like that. So I was really, really concerned because he was - the last couple of nights he's been saying a lot that he's going to kill me. And umm, so he was threat-threatening me the night before, and then I - I went to sleep for a while and I was hoping that it would be over when I woke up. And when I woke up, he was still drunk. And uhh - and he punched me. And I was sitting at the chair and he pushed me off the chair and - and kicked me. And then he said that he was going to get - he was going to get some petrol and he was going to - well, first he said he was going to cut my eyes out and cut my ears off. And disfigure me. And then he said he was going to get some petrol from out the back and he was going to set me on fire and ruin my pretty face so no-one would ever look at me ever again. And I panicked. As he was storming out, I grabbed the spear gun because he'd used the spear gun on me in the past, he shot me in the stomach with it and it just bounced off, so I didn't think it would do any harm. I thought it would just stop him, because I was so petrified. And - and so I shot it, and it did bounce off, and he got really wild and angry so he grabbed a kitchen knife and came towards me with it, and I struggled with him, and he lost his balance and fell. And I grabbed the knife and I stabbed him 'cos I was so - I was so frightened. And the rest of it was just a blur. And then I realised what had happened, and I called - I called "000". And - and then I tried to give him CPR. And then the ambulance came and when they asked me what had happened, I lied because I panicked, 'cos I was so frightened. And then I did tell the truth later on that day. But that's what happened, and I'll be - and I'm sorry it happened, but I was really afraid for my life. I'm still in shock. But it was self defence 'cos I was really, really terrified of him.
29 In both the Crown summary, and the Crown opening, several aspects of your account of the circumstances surrounding the death of your husband were challenged. In particular, it was said that the following matters required further scrutiny:
30 Your counsel submitted on your behalf on the plea that you should be sentenced on the basis that what you told the police on 31 January 2011 was basically truthful and accurate. In particular, he submitted that I should find that the fatal wounds that you inflicted upon the deceased resulted from his attack upon you while armed with a knife. On that basis, he further submitted that I should find that you managed to gain possession of the knife after the deceased dropped it when he fell to the ground in the course of a struggle, and that you then seized hold of it and stabbed him repeatedly with it. At that stage, it was submitted, you believed that your actions were necessary to defend yourself from death or really serious injury. It was of course conceded that there were no reasonable grounds for any such belief.
31 It was submitted on behalf of the Crown that I should not sentence you on the basis that the deceased had attacked you with a knife, but rather on the basis that you apprehended an attack upon you, as a result of threats that he made on that morning, and on the previous night, as well as his past conduct towards you. The Prosecutor relied upon the matters identified in the Crown summary and the Crown opening as casting doubt upon what you told the police in your record of interview, as well as the lies that you had previously told police on the morning of 18 January 2011. Moreover, he relied, implicitly, upon the fanciful account that you had given police in 2005 of the circumstances that led to your offending on that occasion.
32 No one, apart from yourself, knows precisely what took place on the morning of 18 January 2011. Your counsel submitted that your account, in your record of interview, of having been attacked by the deceased while armed with the knife, amounted to a 'mitigating factor', so far as this offence was concerned. Accordingly, he submitted, you bore the onus of proof, on the balance of probabilities, on that factual issue. He contended that, on the evidence as a whole, you had discharged that onus.
33 The Crown did not dissent from your counsel's submission that the claim that you had been attacked with a knife should be viewed as a mitigating factor, in relation to which you bore the onus of proof. The Prosecutor submitted, however, that you had failed to discharge that onus.
34 I am by no means certain that the question whether the deceased attacked you with the knife before you turned it upon him involves a 'mitigating factor', at least in the ordinary sense of that term. It may be that that issue involves nothing more than my having to form my own view of the background circumstances leading up to the commission of this offence. If that is correct, it should not be regarded as a matter that requires any particular onus to be discharged.
35 I have serious reservations about the accuracy of your account in the course of your record of interview. There are some aspects of your description of what took place on the morning in question that simply cannot be reconciled with the forensic and other evidence at the scene. Moreover, your account of having been attacked by the deceased whilst he was armed with a knife, and having disarmed him in the way you described, itself strikes me as somewhat improbable, at least in the circumstances of this case.
36 Nonetheless, I will proceed to sentence you, as I must, on the basis that you genuinely believed that you were in danger of being killed or seriously injured when you stabbed your husband to death. Of course, your plea of guilty means that you acknowledge that you intended to kill him, or at least to cause him really serious injury, at the time.
37 Despite the evidence as to your psychiatric condition, your counsel did not seek to invoke any of the principles recognised by the decision of the Court of Appeal in Verdins.[1] He did, however, tender a report by Dr Danny Sullivan, a consultant psychiatrist, regarding your mental state at the time. In brief, that report described you as anxious and depressed, and in need of some psychological treatment in the future.
38 Dr Sullivan had two important things to say about you. He said, in relation to your offending:
[71] Salient factors at the time of the alleged offence appear related to Ms Edwards' lengthy history in an abusive relationship, which is likely to have impaired her judgment and prevented her from thinking clearly or making calm or rational choices. People who stay in violent or abusive relationships may tolerate abuse for long periods of time before retaliating with violence. At the time of the alleged offence it is possible, although not clearly made out, that intoxication was somewhat disinhibiting to her.
39 Dr Sullivan also said, on the question of remorse:
[40] She told me that she stabbed him a few times and then panicked and rang the police. Ms Edwards reported that she thought about this every day and felt awful. She could not understand why she had done this.
40 In dealing with remorse, your counsel tendered a letter that you wrote on the day before the plea hearing, addressed to this Court, in which you said the following:
I am writing this letter, because I am trying to express how I feel, on the eve of my Plea Hearing, at the Supreme Court.
I have often thought of putting my emotions onto paper, then feel overwhelmed at the task. "It's impossible", I think "to describe my anguish". However, I must try. The closest I have been so far, I believe, is when I wrote, 'The Dream'.
The most obvious feeling that repeatedly comes to mind, is Regret. A simple little word, yet so accurately describes the feeling which hits me hard, repeatedly, every waking minute, of every hour, of every day. I don't think anyone can comprehend the true Sadness experienced, the agony of a human soul, who is tormented by Regret, who has not truly a Regret of the magnitude of which I always feel.
"Of what does she Regret?" you may be wondering. "Apart from the obvious?" This is when I struggle for the right words.
"Life is full of Regrets", echoes the old saying. Yet I see now, that most "regrets" are trivial in the grand scheme of things. I would not wish a Real, "Oh My God, what have I done? I know that I will cry for the rest of my life, and never ever again feel again that wonderful warm feeling of Peace of Mind, (which I know now, was happiness), Regret", on my worst enemy.
Some things can never be put right. Regret is a powerful teacher. Regret, so that I hope you can understand, is the feeling I get when I think about those few minutes which changed my life, and took away the life of the man who I loved most in the world. It's a horrible realization, which literally creeps through your body like Hell's version of morphine. It's a now familiar sensation.
...
I remember being a physical and emotional wreck. I had to organize the funeral, pick flowers, a casket, decide what words should go on the plaque. It was heart-breaking. I arranged a service with the Chaplin (sic) on the day. Grief is a feeling I still feel to this day. This feeling usually accompanies a memory of a loving or sweet or funny time we shared together. It is followed by a sharp pain in my heart, which generally subsides into a feeling that my heart has been replaced with a heavy object which is crushing me.
41 It is as well for you that you wrote that letter. Without it, there would be little to indicate genuine remorse on your part. However, having given careful consideration to what you had to say, I regard your statement of your feelings as truthful. It is a significant piece of evidence in your favour. I find that you are remorseful, in the broadest sense of that term. I take that into account.
42 I have also taken into account your plea of guilty, your mental state which, though not triggering the principles laid down in Verdins, I regard as having some mitigatory effect, and the history of abuse that you suffered at the hands of the deceased. Your plea of guilty was entered at a relatively early stage. You have by that plea avoided the need for what might have been a lengthy and perhaps complex trial. Your plea has considerable utilitarian value. I find that your plea also indicates remorse.
43 I have also taken into account in your favour that your actions were in no way premeditated, but rather a spontaneous response to a perceived threat. That response seems to have been generated in highly emotional circumstances.
44 I accept that you have good prospects of rehabilitation based upon your previous work record, family support and lack of prior convictions, apart from the one to which I have already referred. That conviction, which on one view is significant, and not to your credit, is nonetheless a matter that seems to have arisen out of the very same circumstances that resulted in the death of the deceased.
45 I have had regard to the evidence of your positive progress since incarceration, and your willingness to undergo treatment. I consider it unlikely that, after your release from prison, you will offend again.
46 I have also had regard to 'current sentencing practices' with regard to defensive homicide.[2] Your counsel drew attention to the fact that there have been some 20 sentences imposed for this offence since its introduction in 2005.[3] I note that in those cases head sentences range from seven to 12 years, while non-parole periods range from four years to eight years.
47 It was submitted on your behalf that your offending should be viewed as being at the lower end of the scale for the offence of defensive homicide.
48 The Crown accepted that characterisation of the gravity of your offending, at least in broad terms. The prosecutor specifically acknowledged that your culpability was somewhat less than that of the offender in R v Black[4] who received a sentence of nine years with a non-parole period of six years. I think that concession was properly made.
49 I must, however, balance the factors in your favour against those which call for a significant measure of punishment. Your actions have resulted in the violent death of the deceased. You inflicted multiple injuries upon him, plainly, I would have thought, intending to bring about his death. Some of his wounds were defensive in nature. You attacked him with both a spear gun and a knife. By your plea, you accept that there were no reasonable grounds for any belief that you may have held that you were, at the time, in danger of death or really serious injury. In addition, I consider that the wounds you inflicted were a disproportionate response to any threat that your husband posed to you.
50 Moreover, you told a series of elaborate lies to the police when first questioned about what had occurred. In all probability, you were also less than wholly candid with them when they interviewed you on 31 January 2011. The relevance of this is that such remorse as you have shown came belatedly, rather than at the earliest opportunity.
51 There is also the fact that you have a previous conviction for violence, having, as I have previously said, in 2005 inflicted multiple stab wounds upon the same victim. In my view, for the reasons previously given, that prior conviction assumes less significance in your case than it otherwise might.
52 In all the circumstances, I consider that the appropriate sentence for this offence is one of seven years' imprisonment. I would fix a non-parole period of four years and nine months' imprisonment.
53 I declare that you have served 463 (four hundred and sixty three) days (not including this day) of pre-sentence detention and I order that that fact be noted in the records of the court.
54 Pursuant to s 6AAA of the Sentencing Act 1991, I state that but for your plea of guilty I would have sentenced you to nine years' imprisonment, and fixed a non-parole period of 6 years.
55 The Court orders that pursuant to s 464ZFB(1) of the Crimes Act 1958 the forensic sample and any related material and information obtained pursuant to the informed consent given by Jemma Edwards on 31 January 2011, be retained for placement on the database. The Court further orders that pursuant to s 78(1) of the Confiscation Act 1977 the disposal order sought in relation to the various items set out in the schedule attached be made.
[1] R v Verdins [2007] VSCA 102; (2007) 16 VR 269.
R
Edwards [2012] VSC 138
(2007) 16 VR 269