R v Foster [2009] VSC 124

Supreme Court of Victoria|2009-04-02|Before: OSBORN J

CRIMINAL LAW - Sentencing - Murder - Plea of guilty - Loss of self-control when alcohol-affected - Post traumatic stress syndrome - Depression - Alcoholism - Remorse - Prospects for rehabilitation - Offender aged 30 - 14 years' imprisonment - Minimum non-parole period of 10 years - R v Verdins [2007] VSCA 102; 2007 16 VR 269.

2 At that time you had lived with your victim for some months. You were aged 30 and she was aged 46. You both came from troubled backgrounds and had formed a relationship after meeting when you were both living in a boarding house in St Kilda.

3 During the week prior to Laura's death, the two of you were staying at the home of a friend, DL, in Epping.

4 DL had two young children and had been your friend for some two years. You had stayed with her for short periods of time previously and had done so with Laura.

5 On these occasions you had not been violent towards Laura and indeed there is no evidence of violence on your part towards her prior to the night of her death.

6 On 4 September 2007, you and Laura commenced drinking port together at about 2:00 pm. By 6:00 pm Laura was heavily intoxicated. At about that time she was observed lying on the roadway close to DL's house. Two motorists stopped to assist her and after she had pointed out DL's house, they helped her walk back there. Laura continued to drink with you after her return. She also argued with both you and DL. She accused you and DL of having a relationship. This was denied by both you and DL and DL says that she gave Laura a backhander during the argument because of the way Laura was talking to her.

7 Laura was an Nyungar aboriginal woman from Wongan Hills who had been removed from her family in Western Australia when she was a baby and placed at the Norseman Mission. She subsequently led a troubled life and had moved to Victoria in July 2007. It is apparent that she was emotionally insecure and combatively argumentative about her relationship with you when she was drunk. In particular she expressed extreme jealousy.

8 After the argument Laura left the house and knocked on the door of the house next door. She told the neighbour that she had been assaulted by her de facto and that she was an epileptic. She then collapsed and he called an ambulance. When taken by ambulance to the Northern Hospital, neither the ambulance officers nor medical staff observed any signs of injury and I am not satisfied that you did in fact assault Laura up to this point in time. (Bearing in mind that I must be satisfied of matters adverse to you beyond reasonable doubt.)

9 At about 11:15 pm Laura discharged herself from hospital and it seems walked back to DL's house. Both DL and her children were in bed asleep.

10 What then happened is not entirely clear. It seems that Laura confronted you and that she did so with a knife. She was however in real terms no threat to you, being only 47 kilograms in weight and 157 centimetres tall, and having a blood alcohol content of .27 per cent. (She had also consumed about six cones of cannabis in the preceding hours.)

11 You 'saw red' and 'lost it' as you told police, exploding in a frenzy. You stabbed Laura using two knives, some 20 times, predominantly to the left hand side of her head, face and neck. The wounds were 1 centimetre to 4.2 centimetres in length and up to 7 centimetres in depth. There were also five incised wounds to the back of the right wrist, which were typical of defensive-type injuries. The two knives used by you were a butter knife and a kitchen knife with a larger and sharper blade. On any view your assault was vicious, brutal, and totally overwhelming.

12 At 12:07 am you called 000 for assistance. You told the operator you had slit your Mrs' throat about five seconds ago and she was gurgling for air. You told the operator that you tried to kill her but now you did not want her to die. You said that you loved Laura but that she had pushed you too far. You were given instructions as to how to staunch the bleeding from her wounds, and attempted to do so. You told the operator that you were going to do jail time for what you had done but you just wanted Laura to live.

13 The first paramedics arrived at the scene at 12:20 am but were unable to save Laura's life and she died at 12:45 am.

14 Police also arrived and arrested you. During the subsequent drive from the local police station to the Homicide Squad headquarters, you described the circumstances of the stabbing as I have set them out above.

15 I make the following findings concerning the circumstances of Laura's death (accepting that I must be satisfied of matters adverse to you beyond reasonable doubt but that I may accept circumstances in mitigation which are established on the balance of probabilities):

(a) There is no evidence of a pre-existing relationship of continuing violence.

(b) I am satisfied that you were both materially affected by alcohol at the time of the fatal stabbing and had been drinking for many hours.

(d) I accept that Laura ultimately confronted you, expressing anger as she had earlier in the evening as a result of her perception of the relationship between you and DL.

(e) You then lost all self-control and stabbed her repeatedly and mercilessly, overwhelming her with violence in circumstances where she presented no real threat whatsoever to you.

(f) Immediately thereafter you rang 000 and expressed remorse at what you had done and a desire to preserve her life. You attempted to take first aid measures but these were futile given the extent of the wounds which you had inflicted.

(g) The recorded conversations first with the 000 operator on the telephone and subsequently with police officers, demonstrate that although you were affected by alcohol, you were not incoherent or lacking in comprehension of what you had done.

(i) It is probable alcohol both disinhibited you and inflamed your anger at the time of the killing.

16 Victim impact statements have been filed on behalf of members of Laura's family in Western Australia. They demonstrate the human dimension to the savage loss of life which you inflicted. The story of Laura's life displays the grim truth of the life experience of many members of the Stolen Generation. Yet she remained loved by her family and her violent death is a tragic conclusion to her story. Her uncle, states:

I feel traumatised (at) our loss. I still see images of her. Feel that she's still with us. But she's gone.

Her brother, in a moving and extensive statement, explains the sense of loss that he feels in circumstances where he had only recently discovered the identity of his sister and has now lost the opportunity to ever know her.

18 You are now aged 32. You were born in Gippsland, the second son to a mother aged 20. You ultimately had eight siblings and were raised in the family of a step-father. You had no relationship with your natural father and an unsatisfactory relationship with your step-father. Nevertheless your mother who is now deceased loved you and your relationship with her was a positive one.

19 You experienced substantial difficulties at school, in part because of the deformity of one of your arms.

20 Between the ages of 12 and 13 you were the subject of ongoing sexual assault by a man who purported to offer you work and support, but in fact made you the victim of serious criminal behaviour including penetrative sex. That man was subsequently convicted of a number of serious criminal offences as a result.

21 You also commenced using alcohol in your early teens as a means to forget, and as a prop for your low self-esteem. You were subsequently apprenticed as a diesel mechanic in Swan Hill, but were unable to maintain your employment because of lifestyle problems.

22 You lived with the marginalised members of the aboriginal community along the Murray River.

23 You came into regular contact with the police and were convicted of a series of alcohol-related offences, most emanating from incidents of public disorder, but some extending to petty thefts perpetrated when seeking funds for the purchase of alcohol and incidents of assault. This pattern of offending ultimately resulted in custodial sentences.

24 At the time of Laura Dabb's death you were surviving as an invalid pensioner, suffering from both chronic alcoholism and depression. Significantly perhaps you had ceased taking medication for the latter condition approximately three weeks before the offence. Since your arrest you have required ongoing medication and are currently taking Prozac.

25 Evidence was called on your behalf from Ms Wendy Northey, a consultant psychologist, and Father Joseph Caddy, who among other duties, fulfils the role of chaplain at the Metropolitan Remand Centre. I accept the conclusions of Ms Northey, who gave convincing evidence, buttressed by the detailed psychological assessment undertaken in 1996 by another psychologist, who had extensive contact with you, at the time of the prosecution of the sexual offender, who assaulted you in your teens.

26 Ms Northey's opinion is summarised in her written report as follows:

Mr Foster has a complex psychological history dating back to very early childhood. There were indications of emotional disturbance manifested in 'acting out' behaviours at primary school. By the age of thirteen years he was chronically depressed, acting out with poor behaviours and self-medicating with alcohol.
Mr Foster was formally psychologically assessed in Swan Hill in 1996 when he was nineteen years old. That forensic assessment by Ms Lynne Baudinet-Johnson was requested in relation to a Crimes Compensation action taken on Mr Foster's behalf following the conviction of McCutcheon for child sexual abuse against Mr Foster. Mr Foster was also, at that time, facing his own court offences - in which case the purpose of the psychological assessment was two-fold.
He was diagnosed at that time as suffering from a chronic form of Post Traumatic Stress Disorder (DSM 309.81 - Chronic) arising from the childhood sexual abuse. Anxiety and Depression were chronic features of his mental state. In addition, personality factors indicate his lack of social skills, emotional maturity, inability to trust others, poor emotional control, substance abuse together with anti-social acting-out behaviours. These personality features ensured that Mr Foster was a regular attendee within the criminal justice system from an early age.
In the wake of his own dysfunctional family history, Mr Foster has tended to bond to non-family members, particularly in adult life. His attachments have been insecure and unstable. He has lived on the streets. He would sit on Flinder's Street station, snooze on a tram and sleep where he fell. He likes sitting in spots, talking and having peace of mind - 'Why rush around? Why not sit here with a cup of port in hand and drink until one gets drunk'. Mr Foster's long history of alcohol abuse sustains a formal diagnosis of Alcohol Dependence (DSM 303.90 - with Physiological Dependence).
Mr Foster could be described in summary as an extremely psychologically vulnerable individual - an emotional cripple, a victim of a most tragic set of negative circumstances, deprivations and events. He has used alcohol as a major 'negative' coping mechanism which has only been effective in worsening his situation by further limiting any opportunity to receive the assistance he requires in order to commence his rehabilitation.
He has tended to withdraw into a state of cynical isolation, believing that 'the system' has let him down. He has not previously received professional counselling to treat his Post Traumatic Stress Disorder. It is now that he does have an opportunity to rehabilitate over time by utilising resources available within the criminal justice system, both within a custodial setting and, eventually, within the community.

27 In Ms Northey's view the two formal psychiatric diagnoses referred to above, namely that of Post Traumatic Stress Disorder and Alcohol Dependence are to be sustained as relevant to your condition both at the time of offending and (although you have been alcohol-free while in custody) at the time of sentence. She goes on to state:

Mr Foster, given his psychological profile, would have been in an extremely vulnerable state at the time of the incident due to his limited social skills, his alcohol dependence and Post Traumatic Stress Disorder. The opportunity for some form of tragedy to further darken the occasion would in retrospect appear to have been almost inevitable in terms of the escalation of tensions combined with loss of emotional control and the disinhibiting effects of alcohol abuse.
The best place for Mr Foster to be at present is in custody. He requires professional medical interventions in custody to address his Post Traumatic Stress Disorder including the associated features of chronic anxiety and depression. Over time, he will be able to work his way through the system by virtue of his participation in rehabilitation programs targeting his broad range of established vulnerabilities including substance abuse as outlined.
Upon his eventual release back into the community, Mr Foster will require on-going professional support in order to consolidate his rehabilitation within a real-life setting. A long period of parole would assist to this end. The overall prognosis in terms of rehabilitation potential is guarded but not without hope. Providing effective rehabilitation opportunities are offered to Mr Foster in custody, he does have the motivation and the capacity to take full advantage of such.
Positives to be emphasised include adequate intellectual functioning to cooperate with his own rehabilitation, Mr Foster's remarkable will to survive as demonstrated by his capacity to do so over the past three decades, and Mr Foster's capacity to envision a better life in the future - one where he can grow and develop into a self-respecting person with better opportunities to demonstrate pro-social values and a human spirit which has the capacity to ultimately triumph over terrible adversity.

28 Ms Northey's qualifications to express the above opinions were accepted by the prosecution. In turn the substance of those opinions and the factual matrix upon which they are founded (including serious sexual abuse in your early teens) were not challenged. Further the prosecution submissions to me expressly accepted that your alcoholism is in part due to your history of sexual abuse.

29 As the Court of Appeal has been made clear in cases such as R v AWF (1),[1] the fact of childhood sexual abuse may be relevant to sentencing, both as a partial explanation of criminal conduct, and in relation to the personal circumstances of an offender, insofar as they go to moral culpability and rehabilitation. In AWF, Chernov JA said at paragraph 34:

In my view, given the evidence to which I have referred, the fact that the appellant was abused as a child was clearly relevant in this case to the appropriate sentencing disposition. That fact bears upon the offender's personal circumstances and thus, goes to the issue of moral culpability and rehabilitation. Obviously, the childhood experience does not excuse the offending conduct; moreover what weight is to be given to it is another matter; but that such a factor is relevant to sentencing consideration is, to my mind, clear.[2]

30 Father Caddy's evidence confirms that over the last two years you have shown consistent remorse for your actions. When sober you have the capacity to engage with others. In the absence of substance abuse, you impress as a gentle person who behaves in an orderly and respectful way. You have also demonstrated an ongoing religious commitment and piety.

31 The evidence as a whole supports the conclusion that your offence took place in the context of serious alcohol dependence and ongoing depression. I note in passing that at the time of your arrest you weighed 61 kilograms and your current weight is now 81 kilograms. It is plain that you were materially unwell at the time of the killing. The evidence also is that you appreciate that in a sense jail has been good for you.

32 In turn I accept that your alcoholism was founded in deep emotional disturbance significantly linked to the sexual abuse you suffered as a teenager.

33 In my view the combination of Post Traumatic Stress Disorder, serious depression and alcoholism is such as to bring your case within the first category contemplated in R v Verdins.[3] The cumulative effect of these conditions was to impair your mental functioning in a manner which reduced the moral culpability of the offending conduct as distinct from your legal responsibility for that conduct. In turn your cumulative condition affects the punishment which is just in all the circumstances.

34 You have expressed your remorse to this Court, both by your plea of guilty and in a letter written in your own words. I accept that it is not easy to plead guilty to murder. I also accept that you do wish to find a way through to a positive and fruitful way of life, and that you are aware that your capacity to look to and find a better future is fundamentally bound up with confronting and overcoming your dependence on alcohol.

35 I accept Mr Hartnett's submissions that your plea of guilty should be given substantial weight, both as reflecting remorse and acceptance of responsibility for your actions, and as resulting in significant practical savings to the State of Victoria.

36 I also accept that the sentence I impose should seek to facilitate your rehabilitation by providing the opportunity for a substantial period of parole. On the material presently available that process of rehabilitation will require professional support of the type envisaged by Ms Northey if it is to be successful.

37 Nevertheless in my view your relatively young age, your apparent commonsense when sober, your ability to engage with others, and the potential benefits of professional assistance mean that you do have some real prospects of rehabilitation.

38 Despite your psychiatric condition, your alcoholism, your plea, your remorse and your prospects of rehabilitation, I must nevertheless impose a penalty which reflects the gravity of the offence you have committed and gives due weight to considerations of general and specific deterrence.

39 The Court must recognise the fundamental sanctity of human life and the significance of its loss. It must seek so far as it is able to extend the protection of the law to the marginalised and vulnerable of our society such as Laura Dabb.

40 It is incumbent upon me to express the condemnation of the community with respect to your conduct and to punish you to an extent and in a manner which is just, in all circumstances. The deliberate taking of a human life must never be regarded by the Courts as being anything other than a matter of the utmost seriousness. It has been said and truly said, that much can be judged about a community by the way it cares for and treats the most vulnerable and disadvantaged persons within it.

41 The Court must also recognise that domestic killings by one party of another to a relationship involve a pattern of behaviour which is recurrent in our community and reflects a serious social evil requiring general deterrence. This remains so despite the fact that your mental condition at the time of the offence means there must be some moderation of the weight to be given to this factor.[4]

42 The penalty imposed must also reinforce in you the need to learn and adopt a new way of life.

43 Clayton Foster I sentence you to 14 years' imprisonment for the murder of Laura Dabb. I fix a minimum non-parole period of 10 years.

44 It is probably unnecessary to say to you that having regard to your history you are unlikely to satisfactorily undertake any extended parole unless you can stay off the grog. Conversely if you can take control of your life in this respect your prospects will be correspondingly positive.

45 I declare pursuant to s 6AAA of the Sentencing Act 1991 that but for your plea of guilty I would have sentenced you to 19 years' imprisonment with a minimum non-parole period of 15 years.

46 I declare you have served 546 days by way of pre-sentence detention.

[2] R v AWF (1) [2000] VSCA 172; 2000 2 VR 1 at 34.

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