R v Fitchett [2010] VSC 393

3 Mr Fitchett found, in the master bedroom, a note written by you and addressed to him. In that note, you admitted overdosing the boys and "when they were asleep I suffocated them and strangled them in case they woke up". When the ambulance and police officers arrived and spoke to you, you refused treatment and implored to be left alone, saying "I don't want to go to hospital. I've killed my boys. I just want to die". In the ambulance en route to the hospital, you reiterated that you had killed your boys and that you did not want to live. At the hospital, you admitted to Dr Leach that you had given the children Rohypnol, Valium and Normison, and you said that when one of the children woke up, you suffocated him with a pillow and put a stocking around his neck and, because you could not bear the thought of the other child waking, you did the same to him.

4 After you had been discharged from hospital, you were seen by the forensic medical officer, Dr Wilkins, at 6.20 on the morning of 7 September 2005 and assessed as unfit to be interviewed and certified for involuntary treatment under the Mental Health Act. At that time, a diagnosis was made that you were suffering a major depressive disorder.

5 That you were depressed at the time of the killings was not disputed by the Crown, nor was it disputed that you suffered depression since the birth of your first child, which depression resurged after the birth of your second. It is also not in dispute that at the time of the killings your marriage was failing. You had seen a psychologist, Patra Antonis, on 37 occasions between 2004 and 2005, sometimes weekly and sometimes fortnightly and, indeed, on one occasion Mr Fitchett accompanied you to one of those sessions. But troubled though your marriage was, you and Mr Fitchett both loved your boys, and it is apparent from the evidence at the trial that both you and Mr Fitchett regarded your sons as the priority in your marriage and your lives.

6 It appears that in this context of marital dissatisfaction, having sought counselling from your psychologist and she introducing you to the concept of passive/aggressive behaviour, which you attributed to your husband, you determined to leave him. You told him so on the Friday night before the murders and then, on the Saturday, had a further discussion about the financial implications of separating. You told Mr Fitchett to take the boys out on the following day because it was Father's Day and it would be the last that he would spend with the boys. So it was that he took the boys bowling on the Sunday, and it was said to have been a very enjoyable day. You spent that weekend cleaning the house obsessively, including putting some of the boys' clothing into garbage bags. On the Monday, the boys stayed home from school, and that evening you visited your sister, Louise Mitchell. Mrs Mitchell gave evidence that during that visit you were distraught, crying and irrational. You spoke to her of your husband and told her that the marriage was over. She described you as an absolute mess, crying from time to time, distressed and very irrational, and that when you left, she was so worried that she rang you the next morning to see how you were.

7 On that Tuesday morning at 5.37am, you emailed another of your sisters, Susan Buckley, telling her that you loved her and her sense of humour, and making some disparaging remarks about your own father. Then, at 5.45am, you emailed yet another sister, Marie Ryan, apologising for not being able to be with her family for the forthcoming Christmas, although no such arrangements had been made.

8 Later that morning, some time after 11.30, you dropped off some personal belongings to Mrs Mitchell after she had rung you and reminded you that you had arranged to do so. At some point during the day, you also wrote and posted a letter to Mrs Antonis. In that letter, you recounted to Mrs Antonis that you had told Mr Fitchett over the weekend that the marriage was over and that you had asked him to take the boys out on Father's Day and to have a wonderful time as it would be his last as the Fitchett family. You wrote: "I told David it was over on the weekend because I'd already decided on my plan". You went on to write: "Sadly I am too broken to go on. Today the boys will be given an overdose as I cannot and wouldn't ever abandon them. If I had real support from somewhere from someone who really cared it may have been different". You went on to say: "Thomas and Matthew have had a wonderful childhood to date and I won't let anyone hurt them ever. They think we're going on an exciting trip today, but I've told them that they need to take some medicine so they won't get air sick. I'm not a coward nor am I crazy. I see this as my greatest act of love. ... I know I was beyond help. I'm so sorry for the pain I will cause you but you gave me enormous peace by mirroring me. Our (sic) now want peace forever".

9 Your neighbour and friend, Kathlyn Schipper, gave evidence that you had discussed with her the state of your marriage in the week prior to the murders and that the boys had had dinner at her home on the Friday night so that you could talk to Mr Fitchett about the marriage. On that same day, she had visited your house because you were upset about the state of the marriage and she was concerned for you, and on that occasion you gave her a few pieces of personal jewellery. On the Tuesday, some time after 2.00pm, Mrs Schipper had walked past your house with her dog, wanting to check if you were all right. She heard a loud noise inside the house and so rang you, leaving a message on the phone inviting you for a walk, but the call was not picked up. Her next involvement was when she spoke with you either in a telephone call or during a visit when you were at Thomas Embling Hospital. In that conversation, you told her you had gone to your sister's, Louise, in the morning to drop off some personal effects and then followed that through with running some errands. When you got home, you gave the boys some medication and told them they were going on a long boat trip and that they needed to take the medication. It was recounted that you had said it was not particularly nice tasting, and the boys did not want to drink it but you begged them to take the medicine. The boys did not feel well, and you asked them to go and lie down. You talked about going into Thomas' room and using a pillow to suffocate him and then a sock to be sure, and when you were sure that he was dead, you bathed and changed him because you did not want anybody thinking that they were not well looked after, and you put him back on his bed. You then recounted to Mrs Schipper that you went into Matthew's room and Matthew had started to wake up and you struggled with him, and that Gemma, the dog, had come between you and Matthew and that you took the dog outside. You said to her that you had heard the phone and heard Mrs Schipper leaving a message. You panicked and ran to the door and locked it. You also told Mrs Schipper that you believed you had done the right thing in killing the boys.

10 Dr Burke, forensic pathologist, attended at the family home the night of 6 September and formally declared both boys dead. He later performed autopsies on each of them. He determined that the cause of death in respect of Thomas was neck compression in a boy with multi benzodiazepines in his blood. The neck compression was due to a ligature strangulation consistent with the use of a rope, cord or stocking, and his findings indicated that there was a functioning circulation at the time of the infliction of the neck injury. Dr Burke gave evidence that the cause of death in respect of Matthew was more difficult to determine, but he described it as a constellation of injuries to the face, suggesting airways obstruction, in a boy with multiple benzodiazepines within his body. There was no doubt in Dr Burke's opinion that Thomas had been strangled, but Matthew's presentation was consistent with suffocation, although not diagnostic of it. There was no evidence that Matthew had suffered a ligature strangulation. Dr Burke could not fix a precise time of death for either Thomas or Matthew, other than to say that, subject to a variation of one to two hours on either side, it could be approximately eight to nine hours before the time that death was declared, which was likely to put it at some time between 3.30 and 4.00 o'clock, although more likely in the latter period.

11 That you intended to kill Thomas and Matthew, and did so, was never in dispute at the trial. The issue at the trial was whether you were mentally impaired at the time you killed each of your boys, in particular, whether, by reason of your mental impairment, you did not know that your conduct was wrong.[1] The jury were not satisfied on the balance of probabilities that this was so, and accordingly returned verdicts of guilty to murder. In arriving at those verdicts, the jury must be taken to have rejected the evidence of Professor Mullen, Emeritus Professor of Forensic psychiatry at Monash University, and Dr Sullivan, Assistant Clinical Director at the Victorian Institute of Forensic Mental Health, both of whom gave evidence on your behalf. Professor Mullen gave evidence that you suffered from a recurrent severe depressive illness and Dr Sullivan gave evidence that you had developed a moderate severe major depressive disorder prior to the killings, and both were of the opinion that by reason of your depression, you could not reason that your conduct was wrong. Dr Skinner, a consultant psychiatrist since 1987, with extensive experience in the treatment of female prisoners within the New South Wales prison system, was called on behalf of the Crown. She gave evidence that although she did not carry out a psychiatric examination of you, nonetheless, having had regard to a transcript of the trial and having read the depositions and the medical reports of Professor Mullen and Dr Sullivan and being present when they gave their evidence in Court, she was of the opinion that that you were suffering from depression in the context of marital problems, which depression was probably mild to moderate, possibly of moderate severity. So as to give full weight to the jury's verdict and consistently with it, I proceed on the basis that at the time you killed Thomas and Matthew, you were suffering from depression of mild to moderate degree, and I proceed on that basis because had the jury accepted the evidence of Professor Mullen and Dr Sullivan as to the nature, degree and sequale of depression for which they contended you suffered, then you would have been acquitted on the grounds of mental impairment.

12 I accept that you were a loving mother to Thomas and Matthew, and I accept also that you were depressed at the time you killed your sons. Nonetheless, you knew what you were doing, you contemplated it, planned it and wrote about it before you did it, and then, when the boys did not succumb to the cocktails of drugs that you had given them, in respect of Thomas you strangled him, and Matthew, you suffocated him and, consistently with the jury's verdict, you knew that what you were doing was wrong. Indeed, in your letter to Mrs Antonis, you wrote that you were not a coward, nor were you crazy, and that this was your greatest act of love. That comment suggests to me that you understood the enormity of your actions and sought to justify them. It is implicit in your letter to Mrs Antonis and in your letter to Mr Fitchett that you thought that you, too, would be dead when the letters were read and, indeed, there is evidence that you had taken Rohypnol and cut yourself after the killings, although those injuries were assessed by Dr Leach as superficial and non-life threatening. Nonetheless, the Crown did not contend before the jury that this was not a genuine attempt at suicide which had been at issue in the previous trial.

13 Professor Mullens, at the trial, gave evidence of the concept of extended suicide. That is, in the typical case where a mother with a close relationship with her children decides that for her to die, the children must die as well, because she cannot conceive either of leaving them or of the children being able to survive without her. Support for this view comes from the content of the letters written to Mrs Antonis and to Mr Fitchett, otherwise there was no evidence before the jury as to why you would commit these murders, that is, your crimes would otherwise be without motive and, in an otherwise loving mother, utterly inexplicable.

14 It is a terrible thing that a person should contemplate and attempt suicide, but it is a tragedy of profound magnitude that in doing so, you chose to murder your sons. Thomas, who was 11 at the time he met his death, and Matthew, who was shortly to turn 10, were innocent young boys. You were their mother. Your responsibility was to nurture, care for, love and protect them, and over the years you did, but in the greatest act of betrayal and in a profound breach of the trust which reposes in a parent, you robbed each of them of their precious lives because, in an act of unfathomable selfishness, you came to the view that, in your words, "you couldn't and wouldn't ever abandon them". Your crimes are truly appalling and offensive to civilised society, and although you cling to the belief that your conduct is the result of your depressive illness, that does not obviate the fact that you have committed two chilling, callous murders. It follows that your crimes are properly to be regarded as very serious examples of the most serious offence.

15 Victim Impact Statements made by David Fitchett, Claire Pearce, Anthony Pearce, Dianne Dunleavy, Rosemary Trewin, Fiona Donellan, Sally Angell, Kathy Schipper, Eric Rogester, Michael King and Guy Maine were tendered on the plea. It is apparent from a fair reading of those statements that your crimes have had a profound effect upon the lives of your neighbours, friends and family, the friends of Thomas and Matthew and the school community of Boroondara Primary School, and have altered for all times the lives of David Fitchett and his family and friends. Your actions have resulted in unbearable, unforgiving pain for David Fitchett and for his family, and no sentence this Court can impose can restore life to your sons or peace to their father.

16 I turn now to matters personal to you. You are now 51 years old. You were 46 when you committed these offences. You married David Fitchett in 1993, and Thomas was born in August 1994 and Matthew in December 1995. Prior to your marriage and after it, you worked as a nurse, but in 2002, you gave up nursing and, with the aid of $150,000 equity loan secured on the family home, you were engaged in options trading. Your general practitioner gave evidence at the trial that between 2002 and 2004, you were prescribed the anti-depressant Zoloft, and also medication for a thyroid condition and, as previously stated, you were participating in counselling with Mrs Antonis during 2004 and 2005.

17 Wendy Gardiner, with whom you shared a night duty roster for six years, gave evidence on your behalf. Her period of working with you coincided with your marriage and the birth of your children. She described you as vulnerable after the birth of Thomas and very depressed after the birth of Matthew. In the weeks and months prior to September 2005, she was in contact with you and, during that time, you told her that you were sad about the way you were coping with life. Mrs Gardiner has continued to support you and has visited you in prison and Thomas Embling Hospital. She attested to bullying and threatening behaviour and assaults that have occurred, and to the extent that she has been required to advocate on your behalf in respect of them, and that you have conveyed to her that living without your boys is worse than any life sentence that could be imposed upon you. She described you as very intelligent, very level-headed and a very thinking person, and that prison was difficult for you because you are incarcerated with people who you would not normally be mixing with on a peer level, and she described that environment as "dog eat dog".

18 This trial was a re-trial, you having been convicted on 22 May 2008, of two counts of murder at a trial conducted before Nettle J. At that time, you were held on remand at the Dame Phyllis Frost Centre. Previously, you had been held at the Thomas Embling Hospital, initially for two months from 7 September 2005 and again for a fortnight in January 2006 after a serious suicide attempt. You again returned to the Thomas Embling Hospital in November 2007, where you remained until February 2008, when you were discharged back to the Dame Phyllis Frost Centre.

19 On 18 July 2008, you were sentenced to 17 years' imprisonment for the murder of Thomas and 17 years' imprisonment for the murder of Matthew. Orders cumulating seven years of the sentence imposed in respect of Count 2 resulted in a total effective sentence of 24 years' imprisonment; a non-parole period of 18 years was fixed. A hospital security order was made pursuant to s 93A of the Sentencing Act. As a consequence, you were held at the Thomas Embling Hospital for 16 months. In November 2009, you were transferred back to prison and have and continue to reside at the Marramak Unit, the psychiatric unit within the prison, where you are classified as a protection prisoner.

20 On 26 June 2009, the Court of Appeal upheld your appeal and a re-trial was ordered. A jury were empanelled in this trial on 3 May 2010 and returned their verdicts on 18 May 2010. Since that date, the Court has received a pre-sentence report from Dr Douglas Bell, psychiatrist and acting clinical director of Forensicare, the contents of which are not challenged. Dr Bell does not now recommend the imposition of a hospital security order. In Dr Bell's opinion, you have had and continue to have a major depressive illness for which you are on daily medication, however, the more severe symptoms have diminished considerably, leaving you with persistent feelings of sadness, sleep difficulty and an enduring and strong desire to be dead. Dr Bell reported that you conveyed an overwhelming sense of sadness and intolerably painful anguish, release from which you believe you will only ever find through suicide. There has, however, been no further deterioration in your mental state since the jury's verdict and no suicidal behaviour since then. You are, however, adamant that you will successfully suicide, whether it be in prison or when you are released. Dr Bell reported that you "remain firmly seized of the view that the homicide of your children was not an act of cold-blooded murder, but the terrible impact of your depressive illness at the time", and about which you continue to feel deeply traumatised. In Dr Bell's opinion, you will remain, for the long-term foreseeable future, at high risk of suicide and vulnerable to deterioration in your mental state and escalation of your symptoms of depression. In Dr Bell's opinion, your depression is now substantially under better control and your last prolonged stay at Thomas Embling Hospital was said to be of minimal therapeutic benefit to you and, indeed, such placement may now be counter-therapeutic. You are currently well managed in the supportive clinical environment of the Marramak Unit, and Dr Bell has reported that you are managed in more restrictive and onerous conditions because of your risk of suicide which, of itself, has contributed adversely to your mental state. In Dr Bell's opinion, although you are not in full remission, your major depressive illness is sufficiently settled and stable to enable you to remain at the prison.

21 Your counsel, Mr Tehan QC, has submitted that, while in prison, you have been treated with disdain and absolute revulsion by other prisoners. You have been, he said, constantly threatened, bullied and taunted, and you have been assaulted by other prisoners on seven occasions, two of those seriously; once by being hit to the head with a radio, and on another occasion struck to the head with a chair. Mr Tehan described your time in prison as "miserable". By reason of the nature of your crimes, you are unable to mix with mainstream prisoners and access the programs available to them. Indeed, your only outlet and distraction, apart from television, has been to create a small garden, which exercise you found therapeutic but which has now been completed. You have been on suicidal observation watches, which have varied between 7 and 15 minute intervals. You have also attempted suicide; twice in 2006 when you lacerated your neck and groin, requiring six days hospitalisation, and on another occasion when you slashed your arms. In September of last year while at Thomas Embling Hospital, you ingested eucalyptus oil in a potentially lethal quantity, and in October you used a blade to slash your carotid artery, requiring ten to fifteen stitches and, subsequently, skin grafts. Mr Tehan QC submitted that although you have had a very difficult time whilst being held at the Dame Phyllis Frost Centre, you regard it as probably a better environment than the Thomas Embling Hospital. Mr Tehan has submitted, and I accept, that the onerous and restrictive conditions in which you are held are relevant to the exercise of the sentencing discretion.

22 Mr Tehan also submitted that, in sentencing you, I should take into account the anxiety and distress you have suffered as a result of your successful appeal and the subsequent retrial. On 12 April 2010 when the retrial was first listed to commence, you were then, in Professor Mullen's opinion, in an extremely distressed state, although he could not say whether that was because of the intense fear and distress at the prospect of the retrial or the product of your mental illness. Subsequently, two medical reports were obtained, one from Dr Sullivan and the other from Dr Bell, on the issue of your fitness to stand trial. Dr Sullivan, in his report dated 25 April 2010, assessed you as fit to be tried. He stated that you were very fearful at the prospect of another trial, that you had found the first trial remarkably distressing and you did not think that you would be able to withstand such distress again. Dr Bell, in his report dated 22 April 2010, opined that although the more severe symptoms of your depression had abated to a significant extent prior to the re-trial, in the days before the re-trial was to commence, you became increasingly distressed and distraught at the reality of having to face a retrial and that you were emotionally overwhelmed when confronted with the demands of the retrial. I accept that you have suffered considerable anxiety and distress at the prospect of having to face a retrial of these matters.

23 In sentencing you, I take into account the principles of Verdins' case,[2] which are here applicable by reason of the depression you suffered at the time of the offences and your mental state at the time of sentencing. I accept that your depression was causally linked to your offending conduct and that you were mild to moderately depressed at the time of the killings, but that, in my view, does not operate to reduce your moral culpability for these crimes to a significant degree on that basis alone. Professor Mullen and Dr Sullivan both gave evidence as to the incidence of depression in the community; 25% of females, according to Dr Sullivan, and 15% of people, according to Professor Mullen, will suffer depression in their lifetimes. This suggests that general deterrence and denunciation, even in a case such as this, must carry considerable weight. I accept, however, that you now suffer a major depressive illness, and in Dr Bell's opinion, you remain vulnerable to deterioration in your mental state and escalation of your symptoms of depression and that the conditions of your incarceration contribute adversely to your mental state. For these reasons, a sentence of imprisonment will weigh more heavily upon you than a person of normal health, and these factors must serve to mitigate the sentence otherwise to be imposed. For these reasons, general deterrence must be sensibly moderated, but not eliminated, whereas considerations of specific deterrence may be put to one side, as you are unlikely to ever again be in a position to commit crimes such as these. The principles of Verdins' case are applicable to both the head sentence and the non-parole period. Mr Silbert SC, on behalf of the Crown, has submitted that the appropriate sentence is life imprisonment with a non-parole period in similar terms as that imposed by Nettle J. Mr Tehan QC submitted that there should be no increase in the sentences and, indeed, by reason of your current mental state, the vicissitudes of prison life, the anxieties of having to endure a retrial and your suicide attempts since the last trial, a sentence lower than that previously imposed is here appropriate.

24 The principles to be applied upon re-sentencing on a re-trial have been stated by the High Court in RH McL v R,[3] a case concerned with the application of s 569(1) of the Crimes Act. The Court in that case were unanimous as to the principles which are to be applied in a case such as this. The sentence imposed following the first trial should be regarded as the upper limit of the sentence to be imposed following the second trial, otherwise an offender will be seen to be worse off as a result of having brought a successful appeal against conviction, but that the weight to be given to that consideration depends upon the circumstances of the case. McHugh, Gummow and Hayne JJ expressed the principle thus:[4]

"Ordinarily but not invariably, a successful appellant should not receive a longer sentence after conviction on a re-trial than he or she received at the original trial. If the sentencing judge at the re-trial thinks that the original sentence was manifestly inadequate, it is open to that judge in the exercise of the sentencing discretion to give a sentence higher than that imposed on the first occasion. But an exercise of discretion by a sentencing judge that increases the original sentence given to the accused is necessarily rare. That is because such an increase may be perceived, by the public and the accused, as containing a retributive element imposed because the accused had successfully appealed against his or her earlier conviction or sentence. If the raising of a sentence after a successful appeal became common, it might discourage appeals. Such a result would be contrary to the public interest, for an organised society has a vital interest in the proper administration of its criminal justice system. Rights of appeal are an important means of preventing the perpetuation of error in criminal trials."

25 Kirby J, adopting the obiter of Peterson's case, articulated the principle as follows:[5]

"... the second sentencing Judge should start with the proposition that the offender ought, in general, not receive a harsher sentence than that imposed after the first trial. If minded to depart from that approach, he or she should consider the powerful policy considerations outlined above. Only if the second sentencing judge concludes that the earlier sentence was outside the appropriate range, or the facts as they appear at the time of the re-sentence are significantly different from those upon which the first sentence was based, should he or she impose a heavier sentence."

26 It is apparent from this high authority that a sentencing judge is not bound to impose the same sentence as that previously imposed; after all, a judge is bound to exercise his or her own sentencing discretion, but that it would be rare not to do so and consideration must be given to the "powerful policy considerations" should a judge contemplate so doing.

27 I turn then to consider the following in determining whether to impose a different sentence than that imposed upon you after the first trial:

(1) The evidence in this trial was different to that led in the previous trial. No evidence here was led as to the motive being spousal revenge, and at the last trial it was contended by the Crown that your suicide attempt was not genuine. In this trial, the only possible motive put forward was that you wanted to take your children into death with you, otherwise these are motiveless crimes.

(2) Although the evidence in this trial is different in some respects, the trial was no different in the principal issue being litigated, that was, whether you were mentally impaired as the law defines that term at the time you intentionally killed Thomas and Matthew.

(3) The maximum penalty for murder is life imprisonment. You have committed two instances of this most serious offence, although committed in the one episode. Nonetheless, each offence attracts a life sentence.

(4) The Crown here has sought the imposition of a life sentence, which was not a submission made at the previous trial. If it had been, the learned sentencing judge would have had to consider that submission.

(5) The Crown has conceded that if a life sentence of imprisonment is here imposed, a minimum of "18 years or something around that would account for the changed circumstances".[6]

(6) Although the sentence imposed at the previous trial is to be, prima facie, regarded as a "ceiling", it is nonetheless only one of the circumstances to be taken into account in the exercise of the sentencing discretion in this case.

(7) You are to be sentenced as a serious violent offender in respect of Count 2 on the presentment as you will be sentenced to a term of imprisonment in respect of Count 1. Such a finding requires, pursuant to s 6D of the Sentencing Act, that the Court, in determining the length of that sentence, must have regard to the protection of the community from the offender as the principal purpose for which the sentence is imposed and may, in order to achieve that purpose, impose a sentence longer than that which is proportionate to the gravity of the offence considered in light of its objective circumstances.

(8) Pursuant to s 6E of the Sentencing Act, a term of imprisonment imposed by a Court on a serious offender, which you are in respect of Count 2, must, unless otherwise directed by the Court, be served cumulatively upon the sentence of imprisonment imposed in respect of Count 1.

(9) Sections 6D and 6E of the Sentencing Act were not brought to the attention of the sentencing judge and no reference was made to them in his Honour's sentencing remarks.

(10) The evidence concerning your mental state is now different from that placed before the sentencing judge. While you still suffer from a major depressive illness, it is said to be under better control and the severe symptoms are said to have diminished considerably, and although not in full remission, your illness is said to be sufficiently settled and stable at least to the degree that you do not require hospitalisation.

(11) Further, a hospital security order has not been recommended in this instance because your current mental health does not warrant it and, indeed, in the opinion of Dr Bell, may be counter-therapeutic, and you are presently adequately supported within the prison system.

(12) Dr Bell is of the opinion that your previous placement at the Thomas Embling Hospital was of minimal therapeutic benefit and, although the regime which governs your placement at the Marramak Unit is onerous, it is nonetheless regarded as more appropriate than the Thomas Embling Hospital.

28 Although I accept that there are powerful policy considerations as to why a greater sentence should not be imposed upon you and I have had regard to them, nonetheless, I am of the view that the facts as they appear at the time of re-sentence are significantly different from those upon which the first sentence was based, principally because s 6D of the Sentencing Act was not brought to the learned sentencing judge's attention and the weight to be attached to the paramount consideration of community protection in the sentencing discretion to be exercised in respect of Count 2 to which s 6D applies is not without significance. Further, your mental state at this time is now more settled; it is not as symptomatic as it was at the time that you were first sentenced, and so to that extent, there has been some progress in your rehabilitation, thus the application of the Verdins principles to the sentence to be imposed here is not as pronounced. This is not to punish you for the improvement in your condition; you are still significantly depressed and I give full weight to your mental state as it is now at the time of sentencing, but for these reasons, I have come to the view that a different sentence should be passed than that previously imposed upon you.

29 The maximum penalty for murder is life imprisonment. You have committed two instances of this most serious offence, each of which attracts a life sentence. It has been said in the past that the intentional killing of a child attracts a life sentence absent psychiatric illness or other mitigating circumstances[7] and there is at least one other case of a multiple murder by a parent of their children which has attracted life sentences. A document submitted by the Crown profiled 15 Victorian and New South Wales cases where children had been murdered by a parent. Of these, six had received sentences of life imprisonment. However, in this case it would not be appropriate to impose life sentences because to do so would not reflect the applicability of the principles of Verdins' case and would not give due weight and regard to the policy considerations which apply to the task of re-sentencing upon a retrial.

30 I turn to consider the appropriate term of years to be imposed, and in this regard I take into account the sentences imposed by Nettle J. In sentencing you, I take into account, as I have previously addressed, the depression you suffered at the time of the killings and the significant depressive illness you now suffer. I take into account the onerous conditions and regime under which you will serve your prison sentence and that this will impact adversely on your mental health, and I also take into account that you are at risk of suicide for all time and that you suffer profound grief and remorse and despair at what you have done. I take into account also your age, that no prior convictions are alleged against you and that, prior to these offences, you were regarded as a person of good character. I take into account also that you are unlikely to ever offend again in like circumstances. I take into account all matters which go in your favour, including the rigours of prison life and the difficult time you have had in prison, including that you have attempted suicide on a number of occasions, and the anxiety and stress of undergoing a second trial.

31 Against these matters stand the nature and gravity of the two offences you have committed, the need to pass a sentence which will serve to punish you and act in denunciation of your conduct, and give effect to considerations of general deterrence, although sensibly moderated, so as to deter others in the community from committing crimes such as these. Accordingly, you are convicted and sentenced as follows: in respect of Count 1 for the murder of Thomas Fitchett, 17 years' imprisonment. In respect of Count 2 for the murder of Matthew Fitchett, 17 years' imprisonment. I declare that you have been sentenced as a serious violent offender in respect of Count 2 on the presentment and, in fixing that sentence, I have had regard to the protection of the community from you as the principal purpose for which the sentence is imposed. Although pursuant to s 6D of the Sentencing Act the Court may, in order to achieve that purpose, impose a sentence which is longer than that which is proportionate to the gravity of the offence considered in light of the objective circumstances, I decline to do so because I am satisfied that the sentence imposed will serve to protect the community from you and therefore it is not necessary to impose a disproportionate sentence in respect of Count 2 and the Crown did not seek one.

32 In order to address the fact that you are sentenced as a serious offender, I propose, pursuant to s 6E of the Sentencing Act, to otherwise direct that 10 years of the sentence imposed in respect of Count 2 be served cumulatively with the sentence imposed in respect of Count 1, that is, 27 years, and I order that you serve a non-parole period of 18 years. In fixing the terms that I do, I have had regard to the public policy considerations that attend upon the sentencing exercise after a retrial and state that, were it not for the application of those principles, this would otherwise be a case, absent the application of Verdins, where a life sentence would otherwise be warranted and, were it not for the concession made by the Crown as to the non-parole period, a different non-parole period would have been fixed. I declare that you have already served by way of pre-sentence detention a period of 1821 days, and I direct that it be entered in the records of the Court that you are sentenced as a serious offender in respect of Count 2 on the presentment.

[1] Section 20(1)(B) of the Crimes (Mental Impairment and Unfitness to be Tried) Act (1997).

1. [2] [2007] VSCA 102; (2007) 16 VR 269: Impaired mental functioning, whether temporary or permanent ("the condition"), is relevant to sentencing in at least the following six ways:
   1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
   2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
   3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
   4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
   5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
   6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment.

[3] [2000] HCA 46; (2000) 203 CLR 452.

[4] [2000] HCA 46; (2000) 203 CLR 452 at 475.

[5] [2000] HCA 46; (2000) 203 CLR 452 at 498.

[6] Page 13, plea transcript 26 August 2010.

[7] The sentencing remarks in the DPP v Dean Williamson [2000] VSC 115 at p 9.