R v Monks [2011] VSC 626

4 In February 2007, your grandmother, Hazel Monks, died and thus it may be said whatever moderating influence she had on her son, Ian Monks, was then absent in your life. You then lived at various shared accommodations and at one point were sleeping in your car. Subsequently, in March 2009, you went to live with your two uncles and Stephen Johnson, although Ian Monks did not want you there and you frequently argued with each other.

5 I turn now to the events of 14 July 2009. On that day, Ian Monks took you to Centrelink so you could submit your dole form and after you returned home, you decided to go and purchase some bourbon. You and Ian and Graham Monks finished that bottle of bourbon over the course of a couple of hours and at around 8.45pm, you wanted more to drink, so you and Ian Monks went to the shops for two more bottles of bourbon. While you were out, the police attended at the house in order to speak to Ian Monks in respect of a road rage incident which had allegedly occurred three weeks earlier. The police were present when you and Ian Monks arrived home. Ian Monks was driving and the police observed his driving to be careless and, upon inspection, the car unroadworthy. They conducted a PBT on Ian Monks, which indicated that he was over the prescribed limit, and so they required him to accompany them to the Narre Warren Police Station for a further breath test. A breathalyser test subsequently conducted on Mr Monks gave a reading of 0.093%.

6 While Mr Monks was at the police station, you became very agitated and upset and quickly drank about half a bottle of bourbon. The police drove Mr Monks home at about 10.00pm. He told the police that you were a good kid and a hard worker when you got the chance. The police did not suspect any tension or conflict between the two of you, and when they dropped Mr Monks off, they put a defect notice on the car because it had two bald tyres.

7 In truth, Ian Monks was enraged by what had happened. He told his brother, Graham, that he had gone over the "breatho" and that you had to leave; that it was your fault that he had lost his licence because you had been the one that had wanted more alcohol. You were ordered out of the house. You began sobbing, and Graham and Ian Monks followed you into the kitchen. You were standing near a pool table, according to Graham Monks, with a hammer in your hand, saying four or five times, "Please, God, forgive me". Graham Monks said that you suddenly took a swing at his brother with the hammer and that he tried to get between you and Ian Monks, and in that way deflected a blow to his brother. Mr Graham Monks said that he was able to get the hammer from you and took it into the loungeroom. Prior to that, Ian Monks had been punching you and Graham Monks said in his statement that you appeared with a tomahawk and hit his brother twice to the head before he fell to the ground.

8 Stephen Johnson, the other person in the house, said he heard some commotion or wrestling, then Graham Monks came into the room holding a hammer, then Graham, Ian and you were all screaming at each other and he heard Graham Monks say to Ian, "Stop it, I've had enough", and then he saw Graham Monks hit his brother with the hammer, and he saw you hit Ian Monks with the tomahawk. A hammer was found next to a chair in the loungeroom, but you consistently denied in your record of interview that you used a hammer. You did, however, admit to the use of a tomahawk. Forensic analysis of a DNA sample taken from the hammer could not exclude Ian Monks, but it was able to exclude you as a contributor. In these circumstances, accepting that this must have been a very highly charged event, where all of you had been drinking alcohol and it appears that Ian Monks must have handled the hammer in some way, I proceed on the basis consistently with your denials that you did not use a hammer on this occasion.

9 After the assault, you and Johnson left the house, and Graham Monks rang "000". You went to the home of a neighbour, Angela Takmakidis, and told her your auntie had been stabbed. She also called "000".

10 Police arrived at the scene at around 10.35pm and, at 11.15pm, you were seen walking down a nearby street and were subsequently arrested. You were cautioned and handcuffed and said to the police, "I'm sorry, I've done a bad thing. I'm going away now". You took police to where you had placed the tomahawk in bushes nearby. The ambulance service attended the scene and observed Mr Monks to have an open head injury. He was transported by air ambulance to the Alfred Hospital, arriving at 16 minutes past 12 on 15 July, and died later that morning at 3.25am.

11 An autopsy conducted later that day revealed an abundant amount brain matter had leaked from the skull and two significant head injuries; the first, a chopping type injury to the right scalp which measured 13.8 centimetres and extended from the bone into the brain matter, the second, a chopping type injury to the left cheekbone. There were also defensive type injuries to the left upper arm. It was concluded that the cause of death was the chopping injury to the skull. It was inflicted with such severity that, in the pathologist's opinion, death was inevitable.

12 A toxicological analysis of blood sample taken from the deceased at 4.00am indicated a blood alcohol content of 0.07% and a cannabis metabolite was also detected.

13 You were interviewed at the Dandenong CIU at 12.22am on 15 July 2009. At this time, the extent of the injuries to Mr Monks were unknown. In that record of interview, you told the police that Mr Monks had been violent towards you for years and you detailed a number of incidents to them. You told the police that when you were three years old, Mr Monks had told you that when you were 18, it was on, and to watch yourself. Of the incident you told them, "I remember we were standing there and he's gone 'hey, c..., you wanna go?', and I thought fuck it, I've been running all my life, I can't run anymore". You told the police that Ian Monks came at you when you were standing under an archway and grabbed you, and that you had said, "Fuck this, that's it, it's over", and you remembered Graham Monks screaming, "Stop, don't". The next thing you remembered was your arrest. You also told the police that you and Ian Monks had got on all right over the last three or four months because it was you that avoided confrontation. Ian Monks had tried to bash you recently, but his brother, Graham, had stepped in. You also said about the incident, "He come at me, he started it, I finished it. He punched me about six times".

14 You were interviewed again at 4.50am on 15 July. By this time, Ian Monks had died. You admitted that you killed the deceased and you initially reiterated that after having been punched by the deceased, a fight started and then you blacked out. You later admitted that you hit the deceased with an axe, but denied the use of a hammer, stating, "I plead self-defence". You told the police that you had an argument over driving, that Graham came up and stood between you because Ian had grabbed you and hit you about four or five times, and that you were saying, "Drop it, just fucking let it go", and that he punched you five or six times, and he was trying to drop you, but he could not, and that you turned around and just walked off. You walked out into the laundry and got the axe. You also said to the police you could not believe that you got two hits off his head; you thought it would only take one. You told the police you did not intend to take his head off and that you just wanted to defend yourself. "It wasn't my intention. Whatever happened, happened. I just wanted to defend myself. Self-defence, mate. He shouldn't have hit me. I was fearing for my life" (Question 178).

15 You were medically examined later at the Melbourne Custody Centre and you were observed to have six injuries; a swelling behind the left ear, six incised wounds on the back of the left hand, a circular abrasion on the palm of the right hand and also present was a healing incised wound. You were also observed to have an incised wound on the back of the right forearm and an incised wound on the front of the left shin and an incised wound on the front of the right shin. Dr So, who examined you, was of the opinion that, with the exception of the swelling behind the ear and the injury to the right hand, the other injuries were caused by a sharp object cutting the skin and may have been self-inflicted.

16 The deceased, Ian Monks, was 42 years at the time of his death. He was one of eight children and was himself the father of two children born of a union that had ended some 15 years previously. At question 150 in the record of interview, you conceded that Ian Monks was a kind hearted man, but you said you did not see that side. Victim Impact Statements made by Noel George Travers and Graham Monks, both brothers of the deceased and your uncles, were tendered in evidence as Exhibits "B" and "C" respectively. Mr Travers describes the impact of the crime on him as enormously negative and his life has been turned completely upside down. He fairly attributes this, in part, to his own family dynamics over the years, but he has become extremely depressed, his doctor has told him he is suffering post-traumatic stress disorder and he is undertaking counselling to deal with the problem. He has also suffered a heart attack, which he has been told was brought on by stress, and that, in turn, has impacted on his ability to work. Graham Monks, in his Victim Impact Statement, describes how his family is completely pulled apart and that he has been completely shattered since the death of his brother. His relationship with his partner has been affected, he has had to leave the house in which they were living in Narre Warren, he experiences sleeplessness and feelings of anger, and thoughts of suicide. The depression that he previously suffered from as a result of his back injury now appears more severe, which in turn stops him from functioning. So it is that your actions in killing Ian Monks have had significant consequences, as they perceive it to be, for at least two of his brothers.

17 I now turn to matters personal to you. You were 22 at the time you killed Mr Monks, and you are now aged 24. Your parents separated when you were two and you have, until recently seen very little of your father over the years. You had an older sister who died of cot death at nine months of age. Your parents, upon separation, both re-partnered and your mother had two more children; a girl in 1995 and a boy in 2000. Your mother was present in Court and supports you in your present predicament. She has apparently recently been diagnosed with cancer.

18 You first came to the attention of the Department of Health and Community Services in October 1993 when you were six and living with your mother. Your mother was addicted to drugs and her life has been punctuated by various sentences of imprisonment. Indeed, at the time of the first notification, she had just served a sentence of two years' imprisonment. At this time, you had been in the care of your grandmother and you were observed to have had a mark on your back which you said had come from a man burning it. You were, at that time in your life, said to be displaying aggressive behaviours and there were concerns about your emotional and physical wellbeing. Indeed, it appears from the depositions that you and your brother and sister had been the subject of many child protection notifications from 1993, and the reports of Dr Walton, psychiatrist, and Mr Newton, psychologist, tendered in evidence respectively as Exhibits 1 and 2, reveal a history of constant family violence, including daily verbal abuse and frequent physical abuse.

19 You also reported to Dr Walton that you were first attacked by your uncle when you were in Grade 3 and that these became more frequent when you were 12. You reported to Dr Walton an attempt by your uncle to stab you in 2002 where your thumb was injured, and another occasion where scissors were held to your throat in 2005 and being struck by a baseball bat in 2007. You reported to Mr Newton that your family life had been harshly abusive. Your uncle, Ian, had regularly abused you, and this, you said, started when you were three. You told Mr Newton you were in fear of your uncle and had tried to keep a low profile. Nonetheless, the abuse continued, especially when he was intoxicated with cannabis. You reported to Mr Newton a deep sense of distress and abiding powerlessness in the face of the abuse and you told Mr Newton that Ian Monks' violent aggression towards you over the years contributed to your mounting fear that he would cause you serious harm or perhaps kill you.

20 Mr Newton has assessed you as experiencing significant psychological distress and central to that is the ongoing impact of the physical abuse which you experienced from your uncle and, indeed, it appears other family members from a young age. You reported to him that the requirement that you reside at your uncle's residence as part of the bail conditions had rekindled feelings of powerlessness in the lead-up to these events, which in turn, in Mr Newton's opinion, re-energised your anxiety and fear regarding your uncles.

21 Mr Newton was of the view that you reported clear symptoms of post-traumatic stress disorder as a child, which had become entrenched through your repeated experiences of abuse. In his opinion, you are a man in the grip of severe psychological problems which reportedly have their origin in an abusive family background. Your personality, he opined, is characterised by borderline features; your mental state characterised by elevated generalised anxiety in the context of residual traumatic symptoms and you are also experiencing symptoms of depression. In Mr Newton's opinion, your actions on the night arose in the context of your fear of your uncle and your intoxication with both cannabis and alcohol. In Mr Newton's opinion, the borderline personality traits which have developed from your traumatisation were operative at the relevant time and would have acted to cause an increase in your emotional instability and volatility, together with difficulties in inhibiting your behaviour.

22 It was Mr Newton's opinion that your offending could best be explained as a function of chronic factors, being family violence and the trauma it induced and your borderline personality traits which resulted from it, and the acute disinhibition of substance intoxication. You reported to Mr Newton a significant problem with alcohol and illicit drugs. Drugs, it is said, have been central to your life and you have used alcohol, cannabis and amphetamines, although you have also abused other substances. Based on the history given, in Mr Newton's opinion you would meet the diagnostic criteria for poly substance dependence. You reported to Mr Newton that your drug use was motivated by your desire to escape the emotional turmoil of the abuse to which you had been subjected, and in Mr Newton's opinion, this undermined your mental stability in a fundamental way, increasing your emotional volatility to the point where you suffered significant mood swings and intense periods of paranoid ideation. This set in place, in his opinion, a vicious cycle which spiralled out of control until your arrest in respect of this charge. You told Mr Newton that when the argument broke out on the night of the offending, the recollections of your past trauma became overwhelming and you wanted to make sure they did not continue, and this desire to defend yourself against a recurrence of past abuse motivated your actions. You explicitly denied any desire for retribution or revenge at the time of the incident.

23 Mr Newton reported that you continue to be troubled by intrusive recollections of the aggression you suffered in the past and that you worked hard to dampen your feelings and avoid cues that trigger such recollections. Your reported ongoing symptoms of depression, including prominent guilt, a deep sense of pessimism about the future and an abiding sense of sadness and futility regarding your life. You are currently managed on both antidepressant and antipsychotic medications, and in Mr Newton's opinion, it would be appropriate for you to receive some psychological counselling. Mr Newton was of the opinion that your emotional distress is complex. It encompasses elements of both post-traumatic stress disorder and borderline personality disorder, and he was of the view that you met the criteria for both of these conditions which, in turn, each condition reinforces and intensifies the other, and thus in his opinion, you are greatly in need of mental health treatment, which would have the added benefit of reducing the probability of any relapse into drug use and further forensic problems. Mr Newton opined that your reports were consistent with those of other clients from similarly traumatic backgrounds whom he had assessed or treated and consistent with the cases referred to in the extant clinical literature.

24 In Mr Newton's opinion, there is a compelling case for you to participate in ongoing drug education and counselling and I note that while in custody you have remained drug-free, you have participated in two drug programs and presently you are on methadone. It is said you have demonstrated some insight into your drug problem.

25 Mr Newton described you as of low average intelligence, an opinion confirmed by Dr Walton, who described you as of "dullish" intelligence. Dr Walton opined that your behaviour confirmed to a well recognised pattern, that of passive acceptance of brutality directed at the subject, a failure to escape the situation for enduring periods and ultimately the eruption of explosive violence in response to yet another episode of the person being attacked. These factors were relevant, he opined, towards understanding why you may have exhibited excessive force in the face of harm or the threat of harm to which you had been exposed directly preceding the killing and, in addition to the longer term relevant factors of your repeatedly being victimised.

26 Dr Walton reported that your feelings for Mr Monks are somewhat ambivalent because of your memories of violence at his hands, but that you are genuinely sorrowful for having caused his death.

27 It is said that your schooling was disrupted and problematic, and you experienced profound behavioural disturbances throughout your school years. You officially completed Year 9 and commenced a Victorian Certificate of Adult Learning in the year prior to your arrest, but it appears that in reality you attended little, if any, schooling after Year 7 and you had no vocational or trade qualifications. Your work history has been piecemeal and has included positions as a landscaper and in the construction industry. It appears, however, that you have completed some TAFE training whilst on remand.

28 You have been in a relationship with Stacey Beck since you were 13. The relationship is said to be unstable and emotionally volatile. You live together from time to time. You have two children from this relationship aged five and three, and another child aged six from a brief liaison. You have no contact with this child. By 2009, you and Stacey were no longer living together and it appears that you were living with your mother in motel accommodation, but in January/February of that year, you and your mother were charged with offences of burglary and theft, and when she tired of you living with her and you had failed to report on your bail, she reported the matter to the police, which resulted in your being re-arrested and subsequently bailed on condition that your reside with your uncle, Graham Monks, at 3 Bowman Close, Narre Warren. As stated previously, it appears that Ian Monks did not want you there and initially you only stayed at the house for a short time and then moved out and shared accommodation with a friend. Eventually, you came to sleep in your car, but as it grew colder, you sought to return to the house. You were made to sleep on a mattress in an outside porch area because Ian Monks did not want you inside the house.

29 By your plea to the crime of defensive homicide, you have acknowledged that at the time of striking Ian Monks twice to the head with a tomahawk, you intended to inflict really serious injury or to kill him, and that you did so in the belief that it was necessary to do so in order to defend yourself from the infliction of death or really serious injury in circumstances where you did not have reasonable grounds for that belief.

30 Mr Armstrong, who appeared on your behalf, submitted that the family violence which you suffered (and which is not disputed by the Crown) reduces your moral culpability for this offending. Mr Armstrong also submitted that your response was not grossly disproportionate to the threatened attack. He relied upon the deceased's rage when he returned to the home and the likelihood that it was Mr Monks who attacked you, and this is so, he submitted, because of the history of previous attacks where he had been the instigator, his animosity towards you and his generally violent disposition as evidenced by the road rage incident in May 2009 and his behaviour as documented in the depositions.

31 I accept that it is likely Mr Monks was the one who initiated the assault. First, he had a history of assaulting you and of animosity directed towards you. Further, you would have no reason to attack him initially and he, in his drunken and angry state, might well have considered that he had good reason to assault you. It is clear from all the evidence that when he returned to the house, he quickly descended into a state of anger if not rage. You did not allege that the deceased produced the hammer and I am unable to make a positive finding that he did so. The deceased's DNA cannot be excluded from the hammer, but yours has been, so at some point in all of this, the deceased came into contact with the hammer, and whoever produced the hammer, it was not you, and it must have been produced before the tomahawk.

32 I accept also that beyond your decision to go to the laundry to get the tomahawk, the act of striking the deceased with it was not otherwise premeditated and certainly it appears that you struck Mr Monks with two swift blows to the head. Nonetheless, it was a brutal and cruel death, and the blows inflicted were done with such severity that death was inevitable and, despite your belief that it was necessary to attack Ian Monks in self-defence and I accept that that belief was informed by your experience of family violence, clearly your actions in striking the deceased with the tomahawk were still none the less disproportionate to the threat he in fact posed and, by reason of your plea, you have accepted that you had no reasonable grounds for your belief in the necessity of your conduct.

33 I accept the submission that you have suffered family violence and that consequently you have been diagnosed as having personality traits consistent with borderline personality disorder, post-traumatic stress disorder, depression and poly substance dependence, the latter said to be a coping mechanism, and I accept that there is a nexus between these conditions, the family violence and your offending such that the principles of Verdins as recently stated in R v Charles are here applicable so as to reduce your moral culpability for the offending to a degree and give effect to a moderation in the weight otherwise to be accorded considerations of general and specific deterrence. I accept that when faced with your uncle in a rage and punching you, the violence you suffered over the years and its sequelae affected your ability to exercise appropriate judgment or to make calm and rational choices, but so, too, would have your state of intoxication and the cannabis, which, despite your denials to the police, you instructed your counsel you had consumed earlier that day. I appreciate that your excessive drug and alcohol consumption is regarded by Mr Newton as a consequence of your abuse and, in that way, may be encompassed by the principles of Verdins, but on this day, prior to the intervention of the police, you and your uncle were on sufficiently good terms to be drinking together without incident. Indeed, you told the police you were having a good night and you were seen to drink about half a bottle of bourbon while he was at the police station, perhaps in anticipation of his demeanour upon his return, but you would have known that alcohol increased the likelihood of conflict between the two of you and it cannot be denied that your intoxication must have contributed to your disinhibitions and affected your judgment on this night.

34 Your only prior convictions are Children's Court matters in October 2005, but you have been subsequently dealt with for offences which preceded this offence. In March 2010, you were dealt with for the offences of burglary and theft, committed with your mother involving the theft of handbags from a hospital, and driving offences. You were convicted and sentenced to an aggregate fine of $1500. In April 2011, you pleaded guilty to a count of false imprisonment which occurred in October 2007 when, in response to the victim insulting your family, you became aggressive with him and ultimately bound and gagged him with packing tape. You were sentenced to six months' imprisonment, two months of which were suspended for 12 months. In May of this year, you were convicted of burglary and theft relating to an occasion in May 2009 when it was said that you were either in shared accommodation or living in your car and you broke into a building associated with the Uniting Church and stole food from the kitchen. You were, on that occasion, sentenced to two months' imprisonment. These matters suggest that your circumstances in the past have been somewhat desperate and, despite the violence present in your life from a young age, you yourself have not resorted to it, although the circumstances of the false imprisonment clearly are a matter of concern.

35 In sentencing you, I take into account that you were 22 when you committed this offence and I take into account that you are now aged 24 and are to be sentenced as a youthful offender and, to that end, rehabilitation must be given considerable weight. I take into account also that you cooperated with the police both upon your arrest and in the two records of interview. You admitted that you killed your uncle and you expressed concern at the consequences of your actions to the deceased's brother, Graham. I take into account that you appeared to answer the police questions truthfully and that you have pleaded guilty. I take into account that you were originally charged with murder, but that these matters awaited the DNA results and psychological and psychiatric reports and, once these matters came to hand, you offered to plead to defensive homicide and such offer was accepted. By reason of your plea you have given up what chance you would have had of an acquittal. I take into account by reason of your plea you have saved the community the cost of a trial and the witnesses the ordeal of one and further I give you a discount for your plea of guilty. I take into account that you have expressed remorse, somewhat qualified by your ambivalent feelings towards the deceased. I take into account that you are developing insight into your drug problems and that you are in need of psychological counselling to address your mental state.

36 I take into account your violent and abusive upbringing and dysfunctional family life. I take into account that this has led to considerable psychological distress on your part. I take into account that you are a person of low intellect and that your criminal history is a modest one and does not involve offences of violence. I take into account that you are also suffering depression, as well as the various disorders described by Mr Newton which may impact upon your incarceration. In short, I take into account all matters which go in your favour.

37 The crime of defensive homicide carries a maximum penalty of 20 years' imprisonment. Clearly, Parliament regards this as a serious offence, requiring as it does the formation of a murderous intent.

38 Ms Quinn, who appeared on behalf of the Crown, submitted that the offence fits in the middle, rather than the lower range of offences, as your counsel submitted, and I accept that this is so. This was an unlawful killing of the deceased with the requisite intent in his own home. You did not contend that Mr Monks struck you with the hammer, and I do not make a positive finding that he did. But he did punch you up to six times, and you responded with the use of a tomahawk, striking him twice to the head, of all places, and one of those blows with such force that his skull was split. Clearly, in these circumstances, your actions were disproportionate.

39 In sentencing you, I must take into account the nature and gravity of the offence here committed, including that it was committed while you were on bail, and the need to pass a sentence which will serve to punish you and act in denunciation of your conduct. Any sentence imposed must also seek to specifically deter you and give effect to general deterrence, although those considerations are to be reduced by reason of the family violence, as the law defines that term, that you had been subjected to, and the application of the principles of Verdins' case. It is nonetheless necessary to pass a sentence which will act in denunciation of your conduct and serve to punish you. Such sentence should also recognise that your actions have resulted in the death of another, and the sentence should acknowledge that life is sacrosanct and an unlawful killing, even in these circumstances, will attract condign punishment.

40 Accordingly, having due regard to all matters which go in your favour and having regard to other sentences imposed in respect of this offence, I propose to sentence you, for the crime of defensive homicide, to eight years' imprisonment. Little has been said about your prospects for rehabilitation, Mr Armstrong submitting that the only real constant in your life has been your mother, and she is now in ill-health. There is some prospect of you reconciling with Ms Beck and your children, but otherwise there appears to be little in the way of support awaiting you in the community. Clearly, you will need considerable psychological and therapeutic intervention, and Mr Armstrong has submitted that a longer period on parole will provide the necessary structure and services to allow this to occur. However, unless you remain drug-free and address your alcohol consumption and obtain and benefit from professional psychological intervention, one would have to be very cautious about your prospects for rehabilitation.

41 Accordingly, I propose to order that you serve a period of five years before being eligible for parole. I declare that, were it not for your plea of guilty, that being only one of the factors which have secured a lesser sentence than would otherwise be imposed, I would have sentenced you to nine years imprisonment with a non-parole period of six years.

42 I declare that you have already served by way of pre-sentence detention a period of 773 days.