R v Margach [2006] VSC 77

3 The jury verdict indicates that they accepted that the Crown had proved that you had both the intent and no lawful excuse for your behaviour.

4 The circumstances as I find them to be, consistent with the verdict of the jury, relating to this offence are that on the weekend prior to the murder, your wife, together with a number of other female friends, had gone for a weekend trip to Swan Hill, for the predominate reason of attending the Swan Hill races on the Saturday.

5 Your wife was clearly a person who enjoyed dancing and socialising, and she and a friend Sandy went out dancing after the other women had gone home for the evening on the Friday night of their arrival in Swan Hill.

6 They met two males with whom they danced and talked until closing time of the nightclub and then they went with them to their motel room where they continued to enjoy each other's company and talk and drink. Sandy and your wife Tina left after 1 - 1½ hours and returned to their motel.

7 The next day they went with their female friends to the races and later across the border to a club in NSW. Keeping an arrangement they had made with the two men contacted them by phone and met at the same club, where the same behaviour was repeated from the night before. The two men and Sandy gave evidence before the jury and stated that nothing happened other than they talked, played the guitar and had a few drinks.

8 It was made clear in the evidence, that your wife felt a strong and fairly instantaneous connection to the male Shane Breheny and he had a similar reaction to her. The two initially decided not to keep in contact, but your wife changed her mind and left her details at the motel asking Shane to ring her on the Sunday night whilst returning to Melbourne by train. That contact continued during the week by way of text messages and phone calls and there was talk at one stage about she and Shane leaving their respective partners to set up house together.

9 One of the reasons that this is known is that you had at least five months earlier set up a device in your home that would record telephone conversations conducted on your home phone. This was unknown to your wife and indicates that to a strong degree you were a possessive and jealous man in respect of your wife and her day to day activities. There appears to have been no basis for any suspicion of infidelity on her part, whilst the same may not have been true of some of her female associates, it would appear that she had, up until the most recent time, told you of the things that were occurring in her life and that of her friends.

10 Upon her return, as a result of your secret telephone recordings, you overheard conversations that she had with her girlfriends and it may be presumed with Shane Breheny. Certainly one call between them had been heard by you, which call occurred the night before the murder.

11 Matters became tense between you and your wife, and on the Thursday, as a result of discussions that you had overheard, and in a call between your wife and yourself, which was played to the court, it was clear that she indicated to you that she had met a man on the weekend to whom she was attracted. She further indicated to you that another man was not the issue between you, but it was the relationship between you and your wife that needed to be sorted out.

12 As a result, on the Thursday evening you had left home planning to stay at your parent's home declaring that the marriage was over. Your wife and children joined you for dinner there, and an altercation took place between you and your wife in respect of her phone, with you taking her phone and ringing Shane Breheny and trying to get him to talk to the children of the marriage you said he was breaking up. In the ensuing argument your wife received a blow to the nose from you, which could have been accidental, and I make no adverse findings in respect of that injury.

13 As your counsel submitted, what was occurring was a suburban tragedy, a tragedy for all concerned. Your wife, her family, your daughters, your friends and family and also you.

14 You spoke to your wife on the Friday and you met with the intention of reconciling, you spent part of the day together talking and then went out to dinner as a family with your two children, Erin aged 8 and Bree aged 5, it was described as a happy occasion and Erin described her parents as being very loving. Upon your return to the family home you were having a discussion with your 8 year old Erin, as you were putting her to bed, about whether you and your wife should stay together. Your wife obviously took umbrage at this conversation and walked out of the bedroom. As you followed her down to the kitchen an argument took place during which she told you to leave the home, she also stated that she had been unfaithful and that the sex she had was the best she had ever had.

15 It would not appear that any of those comments were true, but that they have been made probably in exasperation with you and wanting to strike out and hurt you for your behaviour. Your wife also took what would be described as a steak knife from the kitchen bench and was gesturing at you with that knife to leave the house. There was nothing to indicate that she was threatening you with that knife, and you quite easily disarmed her.

16 From that point you were clearly involved in a frenzied attack upon your wife using the knife that you had removed from her.

17 In relation to the knife wounds, there was at least one on the chin, one on the neck, seven on her right upper limb and nine on left upper limb, and two on chest, they were incised or sharp force injuries. The most significant injuries were on her chest. They were two stab wounds, one which penetrated her heart and lung and the other her lung.

18 It was a short, but frenzied attack, and she died from the injuries shortly after the ambulance and police officers arrived.

19 This attack took place whilst your daughters were in the house, in fact a part of the attack, at least, was seen by your daughters. You stopped the stabbings prior to your wife actually dying, and tried to ring 000, which you finally managed to do, the response from them was quick. It was clear that at the time you were indicating that you had stabbed your wife and pleading for the emergency services to come and save her life. It was all far too late for that. It was tragic that your 8 year old daughter was caught up in dealing with the 000 operator and attempting to save her mother's life. There can be no doubt that it will be a trauma that she will remember.

20 You readily admitted your involvement and your actions to the police, fire and ambulance officers that attended at the premises. You expressed remorse for a number of things including the death of your wife, the destruction of your own life by your actions, and the death of the love of your daughters for what you had done.

21 I want to commend Erin for her courage in dealing with the matters as she did on the night of the murder and also for the manner in which she gave evidence, both of which must be traumatic events for her. In this court she was calm and truthful, albeit at times a little confused about what she saw and what she imagined must have happened, but she was above all courageous in what she did.

22 The verdict returned by the jury indicates that they did not believe that you had any lawful excuse such as provocation for the killing of your wife. That means that this was a killing done either in anger or as a result of revenge. On the material before the Court, I am firmly of the view that it was anger and not revenge. It was clearly spontaneous and not planned, the knife was not produced by you and it is most unfortunate that it ever became part of this angry debate between the two of you. The intent that the jury found that you possessed was only there for a very short time, you desisted fairly shortly after this started, but it was already far too late.

23 By your anger and your actions, which probably only lasted a matter of some few minutes, you destroyed many lives that night, your wife's, her family, your children, your family and your own.

24 No person, male or female has the right to kill another person because they are angry with them for words or actions that have taken place. Your wife had a right to live and enjoy her life. Your children had the right to have the pleasure of a mothers love as they grew up. Your wife's family had the right to the enjoyment of a daughter and sister.

25 In our community there is a mechanism for couples who are in troubled marriages, and it is called separation and divorce. There is a court especially designed to deal with this painful breakdown. Unfortunately it is also a very traumatic time for most parties involved in a marriage that is in the throes of falling apart.

26 Your case is very clearly distinguishable from some cases of murder that have been before this Court, where the motive behind the killing is one of vengeance such as R v Prasoeur 2006 VSC 41 or R v Robert Clive Parsons 1999 VSC 192, which were deliberate planned murders of women by men with whom they had been involved.

27 Despite the differences, the Court has a duty to ensure that you and the community understand that every woman, indeed every person male or female, has a right to live, that irrespective of differences that may arise in a marriage, irrespective of nasty or hurtful words or even actions that may occur in a marriage, every person has a right to their life. The taking of that life through anger, cannot and will not be tolerated by the law, and appropriate punishment must be given to those who do not abide by the law that values the lives of its citizens.

28 I have read the victim impact statements in this case and they reflect the hurt, pain and anger that your wife's family feel towards you for their tragic loss. I can understand their feelings and no sentence imposed upon you will bring back their daughter, niece or sister, their pain will always remain, but hopefully in time will lessen, and they will be able to think about Tina only with love and joy. They are matters that I will take into account when determining the appropriate sentence to be imposed.

29 You have by your actions destroyed everything that you ever valued and that includes your own life.

30 Material was presented to me as to the situation of your remorse over your actions.

31 Evidence was called from Dr Williams Leighey, a medical practitioner, and Director of Acute Psychiatric Care at St Vincents Hospital. He has since November 2004, shortly after your arrest, dealt with you. He was asked to see you in November in outpatients at the prison, as you were having difficulty coping. He was so concerned that he admitted you as an in-patient, and you are still an in-patient to this day. The unit to which you have been admitted in the prison is set up for psychiatric rehabilitation not for acute services as such.

32 He said that you have a psychiatric illness. A major depressive disorder for which he has been treating you since this time. He said that it is difficult to say much about your prognosis. It depends on how you handle things from this point onwards. He said throughout the time of 15 months that he has been treating you, that you have been chronically distressed, frequently tearful, highly anxious, highly distressed, and that you have engaged in self-harm behaviour on an irregular basis. He indicated that he did not believe it was attention seeking but was far more related to self-punishment - and that was because you take serious steps to conceal your self-harm from others, he said it is more akin to self-loathing and self-punishment, and that a genuine remorse fits into this.

33 He further stated that given the duration over which this behaviour has occurred he believed that it was genuine. He described you as a deeply depressed, self-abusive, remorseful prisoner. The doctor also indicated that he has been unable to address the underlying issues with you until the law has taken its course..

34 A report of Jesuit Social Services was also tendered. This report related to the counselling that you have been undergoing with them. It stated that throughout counselling you presented as totally remorseful as to damage and harm to Tina's family, your own family, and your children. On a regular basis counselling has ceased because you are overwhelmed with trying to cope and openly crying and being unable to deal with the matters.

35 Character evidence was also placed before me. You are of course a man with no prior convictions whatsoever.

36 I received a number of written references which related to you and your work circumstances at the time of the commission of this offence. Some of the factors relating to your work, the hours, the intensity and the pressure are disturbing, a matter to which I shall refer shortly.

37 The three character witnesses who were called gave similar evidence, they were - Denis Pearce, Nick Poolmartis and Christopher Gay. They are two former work colleagues and a neighbour. They attested to the fact that you were an intelligent, ambitious and loyal employee, a caring father, husband and son, an interested and helpful workmate and neighbour. There was evidence of how hard you worked and the long hours involved with your last employment, and the stress that it placed upon you, your wife and your marriage. Those witnesses indicated that what they saw of the relationship between you and your wife was caring and loving.

38 There is no doubt that work was one of the factors, among many that may have caused you to behave in the manner that you did, when you became angry that night. Particularly when the evidence before me from these witnesses is that they have never observed any sign of violence or anger from you over the many years that they have known you, either in the workplace or socially.

39 At some stage companies must look at their work practices and the pressure that they exert upon their employees and ask themselves if what they are doing to these people is sustainable. Or will there be more and more people unable to cope with the combination of the high pressure of working long hours for no more benefit than to retain their jobs, the pressure of family, the pressure of preparing and saving for your retirement from your early thirties, who explode, often over something small and their anger overtakes them and as can be seen the consequences can be totally devastating for everybody concerned.

40 You were 38 at the time, otherwise of good character, clear evidence of remorse, you made an immediate confession on the death of your wife. Leaving aside your lack of control of emotions, the remorse that you indicated was prior to any lawyer and it related to others as well as yourself.

41 Your mother was called to give evidence on your behalf and she made an impassioned plea for mercy. Her grief is understandable, she has lost her daughter-in-law and her grandchildren, and in some respects she has also lost you. As I indicated there are many victims of your crime,

42 As to your personal details you born in Nairobi East Africa Kenya in 1966, the family left in 1974 you initially had no problems school wise, until the family was living in Kuala Lumpur and you went to boarding school in England. You were severely bullied, had weight difficulties, when you were about 10 years of age and became anorexic. You came to Australia in 1981 via Bahrain at about 15 years of age, went to the Catholic Regional College at Sydenham. You were dux of the school, and attended University of Melbourne at 17 and completed a mechanical engineering degree.

43 You met and married your wife Tina when you were both comparatively young. You worked hard in different jobs usually within the automotive engineering field and continued climbing the ladder of success. You were a good provider and it appears that the marriage has no history of violence, although there was at times unhappiness between you and your wife. Part of that related to how much you worked and the time that you spent away from home on work trips. Equally your jealousy of Tina caused problems at different stages during the relationship. You had two daughters who you both loved very much. Equally it is clear that whilst both you and Tina loved each other, there were strains on the marriage, which included Tina's breakdown and unhappiness over the move from Taylor's Lakes to Ascot Vale, your inability to communicate well with Tina, and in all likelihood the changes that had occurred to you both as you grew and developed.

44 As I said, no person has the right to take the life of another and for that there must be due punishment.

45 I am obliged as a matter to law to take into consideration factors by way of mitigation and aggravation in determining this sentence.

46 The factors that are relevant to mitigation are:

(1) Your previous good character, which was demonstrated by the character witnesses, references and lack of any prior convictions.

(2) The spontaneous and short-lived nature of the incident.

(3) The immediate and continued demonstration of remorse.

(4) Your cooperation with the police to the extent that you admitted what you had done.

(6) The fact that you have lost the care and in all probability the love and affection

47 The crown did not submit that there were any circumstances of aggravation that I should take into account in sentencing you.

48 In light of all of the circumstances to which I have referred and having regard to the considerations set out in section 5 of the Sentencing Act 1991, I sentence you to a term of 17 years imprisonment and I fix a non-parole period of 13 years and 6 months.

49 I direct that pursuant to section 18(4) of the Sentencing Act that you have already served 508 days in custody.