R v Margach [2008] VSC 255

3 The deceased was born on 9 July 1968 and educated at Penleigh and Essendon Grammar where she complete year 11. Later she qualified as a secretary at Stotts College and, until the time of Erin's birth, she worked as such at one of the major accounting firms. Some time before her death, she returned to work three days a week as an administrator with a cleaning agency.

4 You were born on 27 May 1966 in Kenya and at an early stage of your life were sent to boarding school in England. Later you attended a day school in London and then, after your parents emigrated to Australia in 1982, you completed your schooling here. You are a man of high intelligence. You duxed in maths and sciences at the Catholic Regional College, Sydenham and later graduated as a Bachelor of Mechanical Engineering from the University of Melbourne. Then, until the night of the murder, you worked as a mechanical engineer and later as a quality assurance engineer and manager in the automotive industry. A former work colleague who gave evidence on the plea spoke highly of your capacity and the abilities which you demonstrated in a demanding work environment.

5 Over time, however, your relationship with the deceased became dysfunctional. According to the psychiatric evidence before me, you had long-standing problems with jealousy. Consequently, you were inordinately possessive of the deceased and resentful of anyone who admired her or complimented her on her appearance. Part of the problem may have been that you were working relatively long hours and under considerable financial stress. You were carrying a mortgage debt of more than $600,000 and at times working more than 100 hours per week for your United States' based employer. But you also suffered from miserable self-esteem and chronic depression which was exacerbated by the abuse of alcohol. The deceased, too, suffered from some form of depressive disorder, perhaps post-natal or perhaps simply as a reaction to your condition, and she was taking prescribed medication. In the result, you and she ceased to communicate with each other in the way that you once had and, by late 2004, your marriage was under strain.

6 Despite the rift, the evidence shows that the deceased loved you and was faithful to you up to the time of her death, and that she wanted the marriage to continue. She was keen that you both get professional help in order to overcome your problems. The tragedy which culminated in her death is that you were obsessed by jealousy and suspicion.

7 On Friday 8 October 2004, the deceased and a number of her female friends went away for a weekend at Swan Hill for the races. On the first night of the trip, she and one of the friends, Sandra Hart, went out to a nightclub in Swan Hill to dance. There they met Shane Breheney and his friend Simon Cachia, who were in Swan Hill to work and had gone to the club to relax. The four of them got on well together and spent several hours talking and dancing until closing time. Then, upon leaving the club, Breheny and Cachia invited the deceased and Sandra Hart back to their hotel room for a drink, and the women accepted the offer. The four of them spent about an hour together talking and then the women returned alone to their own hotel to sleep. Before leaving, they made a tentative arrangement to catch up again the next day.

8 The deceased and her friends spent the better part of the next day at the race meeting and in the evening the deceased telephoned Breheny and Cachia and asked them to return to the club. They met there quite late, after dinner. On that occasion, however, the deceased and Sandra Hart were accompanied by a number of the other women in their group, including aunts and nieces, and the deceased and Sandra Hart introduced Breheny and Cachia to the older women, and Breheny and Cachia and the group danced and talked together for some time.

9 Again that night, the deceased and Sandra Hart remained at the club until closing time and, after closing went back with Breheny and Cachia to their hotel room for a drink. They spent a couple of hours in discussion while Breheny played his guitar. But again the deceased and Sandra Hart returned alone to their own hotel to sleep once the talking was over.

10 The next morning, the deceased went with the remainder of the women on a boat trip along the river, returning to Swan Hill early in the afternoon. Later in the afternoon, she and Sandra Hart walked by a motor car dealership in the high street, where Breheny and Cachia were working erecting signs. The four of them then spent some time together, talking over soft drinks which they purchased from an adjacent convenience store. By that stage, the deceased and Breheny had begun to feel a degree of attraction towards each other although, at the end of the meeting, they resolved that they should not see each other again. But contrary to their resolve, the deceased later left a message at Breheny's hotel for him to call her and he did call her on her mobile telephone while she was travelling on the train back to Melbourne from Swan Hill. He also sent her an SMS text message which was couched in amorous terms.

11 You collected the deceased from the Sunbury station when her train arrived back there at about 8.30 pm on the Sunday evening. According to the evidence, you were in a bad mood and you made the home coming less than pleasant. You were suspicious that the deceased may have been unfaithful to you, and that night you actuated a device which had earlier been fitted to your home telephone for the covert recording of all incoming and outgoing telephone calls.

12 During the following week, the deceased and Breheny had a number of telephone conversations and sent each other several amorous SMS text messages. It appears that by that stage the deceased had started to consider the idea of leaving you and, possibly, of getting together with Breheny. She was, however, torn between the prospect of a new life and her love for you; and, after speaking to several trusted friends, on Friday 15 October 2004 she resolved to give the marriage another go and to break off contact with Breheny. Ironically, just before she reached that point, you came wrongly to the conclusion that she was having an affair with Breheny.

13 On the morning of Thursday 14 October 2004, you telephoned the deceased from work and in response to your persistent questioning, she admitted that she had met a man in Swan Hill to whom she felt attracted. But, as she assured you, nothing had happened and she wanted the marriage to continue. You were not convinced by her assurances, however, and you told her that you had means of checking whether she had been unfaithful to you, although you refused to disclose what they were. I infer that you meant the tape recorded telephone conversations of which she had no knowledge. During the course of the day, you also ascertained from the deceased's friend that the name of the man whom she had met in Swan Hill was Shane.

14 The thought that the deceased was having an affair with another man made you extremely angry and agitated. Indeed you were so emotional that work colleagues saw you weeping at times throughout the day. Some urged you to go home to sort it out, but you told them that you preferred to stay at work. You told one colleague that work helped to keep your mind off the matter and later in the day you told him that, in the state of mind which you were, you did not know what you might do to the deceased if you went home.

15 At the end of Thursday 14 October 2004, you went home from work to your parents' home to stay the night with them. But by arrangement with your mother, the deceased had that evening taken the children over there for dinner in the hope that her and the children's presence would leaven the situation. Unfortunately, it did not. As soon as you entered your parent's house, you seized the deceased's mobile telephone and used it to call Shane Breheny. You began the call by pretending to be the deceased's brother and wanting to know whether the deceased and Breheny had 'made out'. Then, in the deceased's and your children's and parents' presence, you berated Breheny for destroying your marriage and, when the deceased tried to take back her telephone, you pushed her away in anger, striking her nose as she fell to the sofa, and abused her verbally until you were restrained by your father. The deceased left for home with the children. Meanwhile, you went out for a drive to cool down and then returned to your parent's home for the night.

16 That night at home, the deceased had a long and wide ranging telephone conversation with Shane Breheny. In the course of it, they discussed but ultimately discounted the possibility of leaving their respective partners in order to be with each other. Nevertheless, when you later heard the secret recording of the conversation, you took it as a further indication that the deceased and Breheny were having an affair.

17 On Friday 25 October 2004, you called a telephone company and sought unsuccessfully to ascertain the content of text messages between the deceased and Breheny which the deceased had deleted from her mobile telephone. You also drove home when you knew that she was away at work, and you collected the secret tape recording of the conversation which she had had with Breheny the previous evening. Then you drove on to your mother's home, taking the recording with you and, for whatever reason, played a large part of it to her.

18 While en route to your mother's home you spoke by telephone to the deceased. She urged you to believe that she wanted the marriage to last and she told you that she intended to drive over to your mother's home to talk to you. Immediately, after speaking to you, she called Sandra Hart and asked her to call Breheny and tell him that the deceased had decided to give her marriage another chance.

19 Later, the deceased arrived at your mother's home with your younger daughter Bree. At your request, your mother took care of the child so that you and the deceased could discuss matters together. You did so, apparently calmly, until about 3.00pm when the deceased left to collect Erin from school. You took Bree home with you. But after the deceased returned with Erin, she and you spent some further time together, walking along the Maribyrnong River near your home.

20 That evening, you took the deceased and the children out to a restaurant for dinner and, in the course of the meal, the deceased repeatedly expressed her love and affection for you. But you were less committed. You ate very little of your meal and, when the deceased asked you why that was so, you replied perfunctorily that you were not hungry. When your mother telephoned you at the restaurant and asked whether you would be returning to her house to sleep, you replied that you did not know.

21 After dinner, you and the deceased left the restaurant for home with the intention of putting the children to bed and discussing matters further. But trouble started, after you reached home, when the deceased observed you asking Erin whether she wanted you and the deceased to remain together. As Erin said in her evidence, at the time you were emotional and crying and the deceased was annoyed that you thought it appropriate to discuss the issue with a child of Erin's age. The deceased reacted angrily. She told you that she had changed her mind; that she wanted a man, not a baby; and that you should go home to your mother.

22 Evidently, you were surprised by her reaction. You sought to dissuade her from sending you away. You asked her what had happened to change her mind so quickly and you told her that you loved her and that you wanted to stay. But the argument only worsened. The deceased said that she was fed up with you, that you were an idiot and she did not want to be with you any more, and that unless you went she would call her brother to come down to 'bash your head' in.

23 According to what you later told police, at some point in the argument the deceased took a knife from a drawer in the kitchen and stood near the back door holding it while she demanded that you leave. You said you refused to go. As you would have it, you grabbed the knife and took it from her because you did not want it between you, and you said that you may have received a graze or slight cut on your hand in the course of that process.

24 I doubt that version of events. On the evidence, it is just as probable that you were the first to take up the knife. According to Erin's evidence, which I accept, she heard the deceased say to you that she was going to pack her bags and leave and then you implored her not to go. The forensic evidence shows that there was then a scuffle near the dining table which resulted in chairs being knocked over and, according to Erin's evidence, at that point you repeated several times to the deceased that you did not want the her to go and asked her repeatedly what it was that had changed things so quickly.

25 You told the police that the deceased finally answered your supplications with a riposte that she had fucked Shane Breheny and that it was the best fuck she ever had. I also doubt that she said that to you. Erin did not hear it and Erin's recall of events was remarkable. It is also inconsistent with the loving way in which the deceased spoke to you in the tape recorded telephone conversations in evidence, even when she was upset. Just as tellingly, it is at odds with the deceased's repeated candidly expressed wishes to Breheny during the Thursday night telephone conversation that you not be hurt. Furthermore, as I find, she had not had sexual intercourse with Breheny.

26 Your case at trial was that you responded to the deceased's taunt in a flurry of rage by stabbing her with the knife. According to the forensic evidence, you did indeed so stab her, at least 10 or 11 times, which resulted in more than 20 separate injuries to her body, of which two were fatal. But as the forensic evidence also shows, only some of the 20 wounds were inflicted while the deceased was still in the dining area. They left a blood drop pattern consistent with passive bleeding from significant injuries at that point. As Erin recalled, and as you later admitted to police could have been the case, you then inflicted further wounds as the deceased lay supine on the sofa, some distance away, while you stood above her stabbing down. That means either that the deceased fled to the sofa after you stabbed her in the dining area, and you followed her there in order to finish her off, or that you forced her to the sofa in order to press home the attack. Either way, I am satisfied beyond reasonable doubt that when you inflicted the two fatal wounds you intended to kill her.

27 The deceased screamed from the sofa for Erin to assist her and, as Erin rushed in from her bedroom in response to her mother's call, she saw you standing above the deceased stabbing down as the deceased attempted to fend you off. Erin shouted at you to stop but you continued regardless. The deceased was kicking with her legs trying to keep you away. But as Erin said, wherever the deceased moved you kept putting in the knife; and you kept on putting it in until finally the deceased stopped moving. Then as Erin described it, you seemed as if to come out of a trance and you called an ambulance immediately, and the emergency services responded rapidly. But your wife died within minutes from blood loss resulting from the two fatal wounds to her heart and lung.

28 You pleaded not guilty to murder but guilty to manslaughter by reason of provocation. The jury's verdict means that they rejected that plea. Given the evidence, they are likely to have accepted that you lost self-control. But, clearly they were satisfied that the deceased's actions or words could not have caused an ordinary person to lose self-control and go on to kill in the manner which you did. I sentence you accordingly.

29 The maximum sentence for murder is life imprisonment and, although that length of sentence is not warranted in this case, the need for denunciation and the requirements of general deterrence and just punishment demand a significant term of imprisonment. As the Crown submitted, your crime was aggravated by the fact that it involved the use of a knife against an unarmed woman of less height, weight and strength than you. Your attack upon her was ferocious and intended to kill her. You pressed home the attack despite her efforts to fend you off. In so doing, you inflicted gaping defensive wounds to her hands and arms and more gaping wounds near her shoulders. And you killed her in the presence of your children.

30 As the victim impact statements show, your crime has brought awful grief upon all concerned. The deceased was still a young woman when you killed her. Thus you deprived her of probably the greater part of her life. You have subjected your children to the loss of their mother, and so to the inestimable suffering which will attend their recollections of her on all the occasions that she should have and would have been with them. You have left the deceased's parents and brother in states of uncertainty, abject grief and unwarranted self-recrimination. And it is apparent from what I have observed of your own parents and brother that they are mortified by your offending.

31 I recognise that you committed the offence at a time of high emotion and distress, exacerbated by work and financial pressures. I accept, too, that your attack upon the deceased began as a spontaneous reaction to emotional demands with which you were inadequate to deal. But as against that, it was not just a single blow. For the reasons I have given, I am satisfied beyond reasonable doubt that, however the attack began, it finished as a series of repeated attempts by you to kill your wife which you sustained until she was dead.

32 According to a psychiatric report prepared by the consultant psychiatrist, Dr Lester Walton, you have long suffered from some significant psychological disorders. They began with an eating disorder in your youth, apparently as a reaction to other children's taunts that you were fat and, despite your academic successes, your psychological disabilities developed as a consequence of problems with and between your own parents. You suffered in your teens because of emotional conflict between them and as a consequence of being sexually assaulted by the father of one of your friends. There is also a significant family history of mental disturbance. As I have observed, in later years leading up to the death of the deceased, you suffered from miserable self-esteem and chronic depression aggravated by alcohol abuse. You were given to kleptomania and you had long-standing problems with jealousy. They intruded into your very first relationship with a woman and they continued into your marriage. In Dr Walton's opinion, which was not challenged, and therefore which I accept, those factors had relevance to your offending.

33 So to say is not to suggest that male possessiveness can or should any longer be regarded as an acceptable reason for loss of self-control leading to homicide.[1] As Osborn, J observed in R v Davey:[2]

It is necessary that a continuing message be sent to persons in emotional relationships that the resort to violence against a partner will not be accepted either by the community or the Court. The sentences of this Court must reflect both the sanctity of human life and the total unacceptability of weak and vicious behaviour towards persons said to be objects of love.

34 Nor is it to imply that domestic homicides are somehow to be conceived of as a class which generally speaking should attract a lesser penalty. To the contrary, as the Court of Appeal reiterated in R v Gojanovic (No 2):[3]

[I]n cases of killings of the type which occurred here in a "domestic" setting, the concept of general deterrence is an important and weighty sentencing consideration. The sentence, in such cases, must be such as to provide a strong message that outbursts of homicidal rage, in contexts such as this case are totally unacceptable and will be dealt with by stern sentences ...

35 But authority is clear that, even in cases of domestic homicide, impaired mental functioning which affects the capacity of an offender to exercise appropriate judgment, or to make calm and rational choices or to think clearly, or which causes the offender to become disinhibited, may be of such an extent and severity as to reduce the offender's moral culpability and thus moderate the need for general deterrence.[4] In this case, that principle has some role to play, although the extent of its application is limited. The sorts of pressures to which you were subject at the time of the killing were similar to those with which many people must and do deal daily. Consequently, it is not ordinarily regarded as a mitigatory circumstance of homicide that a killer may be under pressure at work, or financially or in his marriage, or whatever it might be. In my view, there is a difference in your case because of the fractured psychological condition which Dr Walton mentions. But even then the distinction between such a condition and a culpable lack of self-control does not permit of a great deal of difference.

36 It is clear that you regretted what you had done as soon as you had done it; and that, as soon as the attack ceased, you did what you could to save the deceased. You telephoned to get help for her immediately and, although you were so emotionally displaced as to do nothing further to assist, you stood by while Erin struggled to give effect to the emergency operator's recommendations. When the emergency services arrived you urged them to hurry and to do more to save the deceased and, when you were told that she was dead, you apologised repeatedly and rushed back to see her one last time before you were restrained. As you waited to be interviewed by police, you were so overcome by grief as repeatedly to be physically sick and, when after several hours you were interviewed by police, you made full admissions as to what you had done and why.

37 In Dr Walton's opinion, you impress as being consistently sorrowful about your misconduct and loathe yourself for what you have done and, in his opinion, it is probable that you will continue to do so for the rest of your life. A similar opinion was expressed by Dr William Leahey, the director of acute community psychiatry at St Vincent's Hospital, when giving evidence at the plea in mitigation of penalty after your first trial. He said that you presented with chronic depression and had intermittently engaged in self-harm as an expression of self-loathing and self-punishment for what you had done.

38 The Crown submitted that the scope of your remorse was problematic, and referred in that connection to Dr Walton's observation that, although you do make statements which are consistent with straightforward remorse, your concern is to a sizable extent informed by self-pity and your maximal anguish is in relation to having deprived your children of their mother and your own sense of loss of your role as a father. As the prosecutor pointed out, that was also the case when you were first interviewed by police. A large part of the concern which you expressed was directed to your sense of loss of a wife and with the children's sense of loss of their mother. By comparison, there was not much to suggest a sense of sorrow or compassion for the deceased for the loss of her life.

39 Dr Leahey also observed something similar when he gave evidence at the plea following your first trial. He said that you had talked at great length about the impact of your actions on your daughters and on your own family but, as he put it: 'I couldn't say that I'm aware of him expressing a lot of remorse about Tina's family'.

40 A different picture emerges, however, from a letter from Sister Mary O' Shannassy of the Catholic Prison Ministry, Victoria, dated 9 June 2008, in which she reports that, when you were housed in the St Paul's Psychiatric Unit at Port Phillip Prison, you would regularly say to her 'I can't believe what has happened. I can't work out how I took the life of someone I love. I live with this every day. I am sorry for it and I beg forgiveness', and that: 'I loved my wife and I don't know how I did it. This is the most terrible thing I have done'. Further insight is offered in an undated letter from Mr Ron Spilsbury, who is a volunteer with Therapeutic Services at Port Philip Prison, in which he records that your constant thoughts are of the love which you still have for the deceased and your children, all of whose photographs you carry with you wherever you go, and that you feel unable to forgive yourself for what you have done to her and to them.

41 In written submissions filed in anticipation of the plea, the Crown suggested that your defence of provocation, and in particular insinuations of sexual impropriety on the part of the deceased which were floated during cross-examination of some of the Crown witnesses and in defence counsel's final address to the jury, implied that the extent of your remorse was still limited. It was submitted that the 'shifting of blame' to the deceased caused immense additional trauma, grief and distress to the witnesses and members of the deceased's family (for as it was said, they were 'forced to hear their daughter's reputation besmirched in public with no opportunity to respond or defend that reputation') and that the fact that you authorised the defence case to be conducted in that fashion limited the weight to be given to mitigatory factors put on your behalf.

42 The contention was later withdrawn when defence counsel stated that the idea of so conducting the defence was a forensic decision which he made under the mantle of general instructions to defend, and without specific directions as to the details of the defence. But in case there be any doubt about it, I should say that I was not persuaded by the contention. According to Dr Walton's report, you remain suspicious that the deceased was unfaithful. Not surprisingly, the manner in which the defence was conducted was consistent with that suspicion. Other things being equal, that might imply that the extent of your remorse is limited. But on the evidence before me, your failure to recognise that your suspicions are unfounded is due to your psychological deficiencies. It does not lessen your contrition.

43 You are without any significant prior convictions. The only other offence of which you have been convicted was one for shoplifting in the 1990's, and it was the result of the kleptomania to which I earlier referred. It is accepted that you are unlikely ever to offend again, and it appears from the depositions that, apart from the selfishness and jealousy which affected your marriage, and which ultimately resulted in you killing the deceased, you were until the time of the offence a tolerably good husband, father and provider, and an able and dedicated engineer. In those circumstances, it may be supposed that you could one day achieve complete rehabilitation although, in view of your present mental condition, I think that it will be a long-term project.

44 In his report on your present state of mental health, Dr Walton describes you as a 'fairly badly psychologically-damaged individual' who remains in the grip of a depressive process that has been aggravated by your conviction, and says that you are at risk of long-term self injury which is exacerbated by parallel chronic back pain the result of a serious back injury in earlier life. You have twice attempted suicide since you were first incarcerated, most recently after the jury found you guilty of murder on 9 May this year. As the medical reports tendered on the plea show, you were kept in the St Paul's psychiatric unit from November 2004 until February 2007 and you were sent back there after your most recent suicide attempt following the trial. At present you are kept in a Muirhead seclusion cell on 15 minute watch, which entails the loss of all property, privileges and privacy, even in relation to the most basic bodily functions, with lights kept on at all times and a check being made on you every 15 minutes by mental health attendants.

45 When Dr Walton assessed you on 21 May 2008 he found that you remained obviously distressed and given to tearfulness, although you were less anguished than when he had seen you five days before. Your most recent attempt at self-harm was not seriously life threatening, but you spoke of disappointment that it had not succeeded. Before the attempt, you left suicide notes to your children and to the deceased's parents and brother and also to your own parents and brother. Significantly, they are replete with asseverations of deep-seated sorrow and regret. You are chronically depressed and likely to require indefinite medical treatment and continuing psychiatric care and, as Dr Walton points out, the management of those problems will be additionally difficult in a custodial setting. Your sleep is disrupted by nightmares in which you relive the killing and imagine that you are condemned to hell and, according to Dr Walton's assessment, you remain at risk of long-term self injury and self-destruction.

46 I conclude that your time in prison will weigh much more heavily on you than on a man of normal health.

47 When you were first dealt with for this offence some two years ago, you were sentenced to seventeen years imprisonment with a non-parole period of thirteen and a half years. You then appealed against conviction and your success on appeal led to the need for a second trial and now the need to re-sentence you. Authority is clear, however, that the sentence which was imposed on you on the last occasion should be regarded as the upper limit of the sentence to be imposed on you now, unless I conceive of the earlier sentence as manifestly inadequate.[5]

48 The Crown contended that it was manifestly inadequate, for three reasons. First, it was said that the manner in which the defence was conducted in the second trial was so different to the nature of the defence at the first trial as to imply that the mitigatory considerations previously put on your behalf should now be discounted. I reject that contention. As already noted, the Crown withdrew the suggestion that the manner in which the defence was conducted was relevant to the assessment of your present state of remorse and, in any event for the reasons I have given, I do not consider that it is.

49 Secondly, it was submitted that the emphasis which the previous trial judge placed on your remorse, co-operation with the police, prospects of rehabilitation, and what her Honour described as the 'spontaneous and short-lived nature' of the offence were not supported by the evidence. I do not accept that submission either. I have dealt already with the matter of remorse. The matters to which Sister O'Shannassy and Mr Tilbury referred in their letters to the court, and Dr Walton's observations as to your continuing self-loathing and attempts at self-injury and destruction, to my mind bespeak an implacable sense of grief for the wrong you did your wife and a profound sense of shame and contrition. I am satisfied on the balance of probabilities[6] that your remorse is genuine and unqualified.

50 The suggestion that the extent of your co-operation with the police was less than the previous trial judge perceived it to be was based on what the prosecutor said was a lie constituted of omitting to tell the police that you had tape-recorded your wife's telephone conversations. I do not think that is so. I am not persuaded beyond reasonable doubt[7] that your omission of that detail was deliberate or, even if it were, that it was significant. You confessed to police without hesitation and without reservation that you killed your wife because she had told you to go. Essentially, the rest of it was peripheral.

51 I have also dealt already with your prospects of rehabilitation. Despite the complications imposed by your present mental condition, I doubt that my assessment of the matter is so far removed from her Honour's as to make a significant difference. Moreover, whatever 'the prospects of rehabilitation' may mean in a case of this kind, I am far from satisfied that an increased time in gaol would be likely to enhance them. Perhaps it would satiate the desire for retribution which appears to inform this part of the Crown's submission. But plainly that is not my function. I am constrained to punish you only to the extent and in the manner which is just in all the circumstances.[8]

52 That leaves the issue of whether the previous judge was mistaken in describing your attack on your wife as 'spontaneous and short-lived'. In my view, her Honour was not. She was well aware of the nature and circumstances of the attack. She heard evidence about the attack in effect the same as that before me. She elsewhere in her sentencing remarks[9] accurately described the attack in some detail. Perhaps, views may differ as to the precise meaning of 'spontaneous and short-lived'. Semasiologically, it is the sort of expression which permits of a number of conceptions. But the point is, as the Crown accepts, that the attack was not premeditated and, although it continued from the dining area to the sofa in the manner I have described, it was almost certainly all over in a very short time.

53 Thirdly, it was contended that, whereas the previous trial judge believed that you worked extraordinarily long hours and that they were to some extent causative of the state of high emotion which resulted in your offence, evidence given at the second trial by Lynley Cochran, Michael Wachinger and Michael Pennings showed that the hours worked could not have had that effect. I reject that submission too. Lynley Cochran's evidence was of limited utility. She was a human resources officer within the 'senior management team' of your former employer and appeared to me to bent on down-playing the burdens to which you were subject. Michael Wachinger was an engineer who, like you, had to work under pressure. The fact that he seemed better able than you to deal with it is in my view neither here nor there. Michael Pennings said that it was not at all unusual for someone in your position to have to speak by telephone to the United States' management in the early hours of the morning and again late at night. That accords with what her Honour thought to be the case. Your mother also gave uncontradicted evidence at the trial that you were required to work very long hours, about which she and your father were greatly concerned.

54 Finally, it was argued that, in light of current sentencing trends, a head sentence of seventeen years is outside the range. Reference was made to number of recent decisions and to statistics published November 2007 in Homicide in Victoria; Offenders, Victims and Sentencing, by the Sentencing Advisory Council, which show that the for offenders sentenced between 30 June 1999 and 30 June 2006 the head sentence imposed ranged from 15 years' imprisonment up to life imprisonment with an average of 18 years and 10 months. It was submitted that for an offence of the nature and gravity which you committed, something more than the average of 18 years was required and hence that a sentence of 17 years was just too little.

55 I am not persuaded by that either. I accept that a sentence of 17 years' imprisonment was a merciful sentence. Despite the mitigatory factors which attended the crime, the fact remains that you intentionally killed your wife of 14 years in the presence of your children. It was a serious offence of domestic homicide for which, in ordinary circumstances, general deterrence would be at the forefront of sentencing considerations. Given, however, the range of mitigatory considerations which her Honour took into account and, equally importantly, your present mental condition, I am not persuaded that much more than 17 years is necessarily warranted. Arguably, a greater head sentence would be in order but, allowing for the limitations of double jeopardy as they apply in any re-sentencing exercise,[10] the amount of the increase would not be large. In my view, it would not be sufficient to warrant the alteration which is sought.

57 Paul Jason Margach, on the count of having murdered Tina Margach of which you have been convicted, I sentence you to a term of imprisonment of seventeen (17) years. I set a non-parole period of thirteen (13) years and six (6) months. I declare that the number of days already served under the sentence which I have imposed on you is 1372 days including this day. I direct that the fact of the declaration and its details be entered in the records of the court.

58 I order pursuant to s 464ZFB(1) of the Crimes Act 1958 that the forensic sample and any related material and information obtained pursuant to the informed consent given by you on 16 October 2004 be retained for placement on the database. I do so because I consider that in all the circumstances the making of the order is justified and I note that it was not apposed.

59 I further order pursuant to s 78(1) of the Confiscation Act 1997 the forfeiture and destruction of the items of property which were used in connection with the commission of the offence.

[1] Reg. v Smith [2000] UKHL 49; [2001] 1 AC 146, 169 (Lord Hoffman), based upon observations in _Stingel v The Quee_n [1990] HCA 61; (1991) 171 CLR 312, 320.

[2] [2006] VSC 173 [25].

[3] [2007] VSCA 153 [140].

[4] R v Verdins [2007] VSCA 102; (2007) 16 VR 269, 275 [26] and 276 [32].

[5] McL v The Queen [2000] HCA 46; (2000) 203 CLR 452, 459 [23] (Gleeson CJ, Gaudron and Callinan JJ) 476 [72] (McHugh, Gummow and Hayne JJ).

[6] R v Storey [1998] 1 VR 359, 369.

[7] Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1, 13 [14] (Gleeson CJ, Gummow and Hayne JJ).

[8] Sentencing Act 1991, s 5(1)(1); The Queen v Veen (No 2) [1988] HCA 14; (1988) 164 CLR 465, 491 (Deane J); The Queen v Ryan (2001) 206 CLR 267, 313 [157] (Hayne J).

[9] [2006] VSC 77 [16]-[18].

[10] _R v Hay_es (1987) 29 A Crim R 452, 469 (Kirby P).