R v Middendorp [2010] VSC 202

2 The circumstances of the offence are as follows. You commenced living with Ms Bowndes late in 2007 in Coburg. In December of that year you both moved to a house at 18 Rosser Street, Brunswick where the event which led to her death occurred.

3 Yours was a tempestuous even violent relationship. When living together in Coburg there was an incident in which each of you was cut in the throat and you were both taken to hospital. The evidence of which of you attacked the other and how you came to suffer the injury is in conflict and I do not need to resolve this conflict. The fact remains that you were both affected by alcohol and drugs and your injuries were sufficiently serious to warrant hospitalisation. I was told that there were other violent incidents involving you both in the short time that you lived with Ms Bowndes in Coburg.

4 On 20 December 2007, a Family Violence Order was made against you requiring you not to assault, harass, threaten or intimidate Ms Bowndes. That order was still in force when you stabbed her to death nine months later.

5 In December 2008, you moved to Rosser Street. I have been told that this accommodation was arranged by the Salvation Army on condition that Ms Bowndes did not live there with you. Notwithstanding this, she did move in at Rosser Street and the relationship continued. Evidence was given at the trial of frequent arguments and abuse and violence between the two of you. The police were called on a number of occasions.

6 At the trial, you gave evidence saying that the violence did occur between you and Ms Bowndes. You said that you accepted that in these incidents each of you injured the other but you maintained that she was always the person who came at you first.

7 With respect to the injuries she suffered before 1 September 2008, you said that you were not responsible for them. The version of Ms Bowndes about these earlier incidents emerges from statements she made to police, to hospital staff and, on one occasion, to her mother. In short, she blamed you for the injuries she then suffered. Her reliability was put in doubt at the trial and she was, of course, not cross-examined. It may be that the jury were distrustful of her version of these earlier events.

8 One of these incidents occurred on 31 July 2008, two months before the killing. The police were called and when they gained entry, Ms Bowndes said that you had hit her with a work boot. You denied this saying that she had been assaulted by others at the local railway station. In any event, you were arrested and in due course granted bail on conditions which included a condition that you keep away from the Rosser Street house.

9 What is clear is that there was another confrontation between you and Ms Bowndes at the Rosser Street house on 1 September 2008. It seems likely that you were then affected by liquor and that she had used marijuana. She came to the door and sought to enter, notwithstanding that you asked her to go away. You had a knife with you and you chased away the man who was with her. A witness recalls that before she entered the house, you threatened to stab her. In any event, she entered the house and was there when you returned from your unsuccessful pursuit of the other man. A number of witnesses recall also that as you left the house after the stabbing, you shouted towards her as she was in the street, bleeding, words to the effect that she got what she deserved and that she was a filthy slut.

10 For an account of the events within the house which led to the stabbing, we have only your evidence. You are a man of over six feet tall and some 90 kilograms. She was much smaller and about 50 kilograms. It appears that the jury accepted or, perhaps, were not prepared to reject your evidence, that she came at you with a raised knife in her right hand and that you saw yourself as being at risk of death or really serious injury. You, too, had a knife in your right hand and, in the struggle which ensued, you stabbed her over the shoulder in the back four times. You said in evidence that she appeared to be unaffected at first by the stabbing and that you were, nonetheless, able to wrest the knife from her grasp before she collapsed. She was, however, able to leave the house before you did and to stagger down the street where she fell and died.

11 The jury, by its verdict, acquitting you of murder, found that you believed yourself to be at risk of death or really serious injury and that stabbing her was necessary to avert the danger to yourself. Nevertheless, by convicting you of defensive homicide they concluded that you did not have reasonable grounds for that belief.

12 I have learned from what your counsel has told me and from the psychological assessment report of Peter Stanislawski, a good deal of your background. You were born in Frankston on 23 November 1983, the younger of two children. Your parents separated when you were very young, leaving your mother to bring up your eldest sister and yourself. You exhibited insecurity at an early age inasmuch as your conduct displayed a fear that your mother too would go away from you. By the age of only 12 years you were mixing with older boys at your school, smoking cannabis and using alcohol. Mr Stanislawski reports that about this time you inhaled petrol vapours and experimented with LSD. At this time too you were diagnosed with attention deficit hyperactivity disorder and given medication for this. At age 15 you commenced using heroin.

13 From this time your path turned downward. You had been a good student in certain subjects but lost interest in your school work. In 1997 you left school at age 14 without having passed Year 8. You were unable to hold a job and drifted into a life of drug dependency and petty crime. In 2002 you commenced a course of methadone treatment. By 2004 you were serving sentences for theft and burglary in youth training centres and by the end of that year you were serving small terms of imprisonment. This continued in 2005 and 2006 and in May 2008 you were sentenced for a series of similar charges and charges relating to the possession of drugs, to an aggregate term of six months suspended for 12 months. Your criminal history does not disclose any conduct of the kind which has brought you before this court.

14 Mr Stanislawski spoke of your remorse for what you have done. He said that you expressed sympathy for the family of Ms Bowndes but that you did not demonstrate a great deal of insight into your behaviour. As your counsel correctly said, your conduct was a tragedy which has affected a lot of lives. To this point I have spoken of you and of your involvement. Your life has already been affected and will continue to be affected by this for as long as you live.

15 I make mention of your family, your mother and your sister, who have loyally attended the trial and appear to be devastated by what they have heard.

16 I mention too Mr Artiz Perez, who accompanied Ms Bowndes to Rosser Street on the evening in question. In his victim impact statement Mr Perez is distressed at the thought that you had made up a false story implicating him in order to avoid a charge of murder. He blames himself for giving inadequate evidence at the trial and in that way permitting you to escape the consequences of your act. His distress and the situation he now finds himself in are yet another example of the impact of your conduct.

17 I mention, too, the young life which your foolish act has cut short. In the nature of things I know little of her other than what I have heard at the trial and what I have read in victim impact statements. Jade Bowndes appears to have been a troubled young woman but she deserved better than the treatment you gave her on 1 September 2008. She deserved the prospect of growing out of her addiction and living a life of an ordinary member of our society. By your act you denied her this. You denied her the most precious gift - her life. And having done, so your callous comments addressed to her as she lay dying still chill my blood.

18 I mention finally her family and friends. Who could not have been moved by the statement read to the court by her mother, Mrs Beck? The victim impact statements which I have read are full of anger towards you and of love for her. They demonstrate the ripple effect of your actions among those who loved her and knew her well.

19 The penalty for the crime of defensive homicide of which you have been found guilty, is a maximum of 20 years' imprisonment. The prosecutor suggested that an appropriate sentence range in this case is 10 to 11 years with an 8 to 9 year non-parole period. On your behalf, in response to my enquiry, I was told that in terms of the seriousness of the offence, and not taking into account other factors, your offence would sit at the upper end of the mid-range. I see these assessments as helpful but they do not, of course, bind me or relieve me of the obligation to form my own view. No sentence which I could impose can undo the wrong which you have done to all of these people, nor, I think, will it provide for them solace for the loss which they have suffered.

20 The prosecutor has drawn to my attention three factors which, he said, aggravates your culpability. First, your presence at Rosser Street on the night in question was a breach of the bail you had been granted but two months earlier. This condition was doubtless inserted to prevent what in fact happened. To this I might add that your conduct was in breach of the intervention order of 20 December 2007. Finally, your conduct almost certainly breached the good behaviour bond imposed upon you in May 2008. It is important to note these factors. The first two in particular represent the efforts of the law to protect you from the consequences of your violent behaviour and to protect Ms Bowndes from this behaviour. If the community is to place any store upon these legal protections, would-be offenders must be aware that criminal behaviour committed in breach of court orders carries an extra dimension of gravity.

21 The second aggravating factor was the callous and insulting words which you directed to the woman you claim to have loved and who was then dying in Rosser Street on 1 September 2008.

22 The third suggested factor is not really a matter of aggravation at all; it was that you decided to contest the charge and put all who were participants to the trouble, cost and stress of a trial. This is not an aggravating factor because it is in the nature of our criminal justice system that an accused person may put the Crown to its proof. It is, I think, more correct to treat this as being the absence of a mitigating factor which I might have taken into account under the provisions of the Sentencing Act.

23 One of the purposes of sentencing is that the offender be exposed to rehabilitation so that he is better able to fit into society upon his release. It is encouraging to hear that you have already profited from your time in custody inasmuch as your requirement for methadone has diminished and you have undertaken courses of study. I note, too, Mr King's report of your positive involvement in 2006 in the Link Out program conducted by Brosnan Youth Services and his confidence in your rehabilitative prospects. I will have regard to this in fixing a relatively short non-parole period.

24 Nevertheless, the crime of which you have been found guilty is a very serious one and the sentence which I pass must reflect the community's condemnation of violence of this kind. This is particularly the case since it occurred in a domestic environment where parties should be able to expect trust and respect.

25 Notwithstanding the statutory maximum of 20 years' imprisonment, all of the reported sentences to which is have been referred have been of ten years or less. Of particular importance in this regard is the Court of Appeal decision in Director of Public Prosecutions v. Edwards[1] where the court was not prepared to increase a sentence of ten years. The observations of the court, however, make it clear that their Honours considered the sentence, in the circumstances of that case, was so disproportionate to the seriousness of the offence as to shock public conscience and to be manifestly inadequate.[2] Their Honours attributed this to the fact that the trial judge had started from a base that was too low. This is doubtless a reference to the sentences of less than ten years that had been given in earlier cases. The conclusion I reach from this is that the facts of Edwards warranted a sentence substantially greater than ten years and that the base from which I must assess your sentence must better reflect the decision of Parliament as to the maximum term of imprisonment for the crime of defensive homicide.

26 I turn then to the facts of this case as I have found them. I have already set out my findings and my interpretation of the jury verdict. On this basis, the facts of this case are less serious than those in Edwards where the accused beat to death his attacker who was already unconscious. In that case, too, Edwards pleaded guilty.

27 Insofar as it is meaningful to put a crime like this on a continuum, yours is certainly among the more serious. Your history has been a history of violence towards a woman less strong than you. Notwithstanding your professed love for her, you subjected her to indignity. You flouted the restraints imposed by the law to protect her.

28 I have regard to your antecedents including the lack of convictions for like offences. I am very mindful that the sentence I pass must send a stern message to others who may find themselves in a position such as yours.

29 I convict you of the crime of defensive homicide. For this crime, I sentence you to be imprisoned for 12 years. I fix a minimum term of eight years to be served before you are eligible for release on parole.

30 I declare the period of pre-sentence detention is 624 days, being the period up to and including 18 May and I direct that this declaration and its details be entered on the records of the court.

31 Having been satisfied of the seriousness of the circumstances of the crime and that the order was justified, I have made the ancillary order sought by the prosecution with respect to the preservation of a sample of your DNA. I have made the ancillary orders sought for the retention and subsequent disposal of things taken by the police.**

[1] [2009] VSCA 232.

[2] [2009] VSCA 232 at [45].