R v Ramage [2004] VSC 508

8. It is apparent that in the two years prior to her death your wife was increasingly unhappy in the marriage. In particular she found your behaviour controlling and oppressive, and it seems likely that her dissatisfaction also related back in part to some incidents of violence earlier in the marriage.

11. In any event, in May 2003 she left the family home while you were on a business trip to Japan and Korea. On your return you found that she and your daughter had moved into a flat in Toorak and that your son Matthew, who was then undertaking his final school year, was still living at the family home.

14. I accept that the breakdown of your marriage in this way was from your point of view sudden, unexpected and emotionally destabilising in a way which you did not easily accept.

17. It is clear from the evidence of your family and friends that your reaction was to try desperately to re-establish the marriage. You immediately sought to make and maintain contact with your wife and met with her at least weekly for meals. You sought advice as to what you should do from trusted family friends and from friends of your wife in particular. You saw a series of counsellors for advice and set up joint appointments for both your wife and yourself to try and provide a framework for reconciliation.

20. While undertaking these steps it is also clear that you suffered continuing and substantial anxiety. You ruminated obsessively about getting your wife back and had long and difficult discussions with your children (particularly your son) and other friends as to what was happening and as to what you should do.

23. In the interim your wife had gained confidence and newfound happiness after the separation and had met another man to whom she felt a strong initial attraction and with whom she rapidly formed a close relationship.

26. In summary the period of weeks leading up to your wife's death was one in which you anxiously hoped and desperately endeavoured to re-establish your marriage while conversely your wife was seeking to "let you down gently" as she described it to those close to her.

29. On Tuesday 15 June 2003, your wife attended two counsellors in sequence with you. At the first counselling session she made it clear that from her point of view the marriage was virtually over. But at the second, after a detailed discussion of the marriage and its problems, the possibility that you would get back together was left open. Your wife said she was not going anywhere and three further appointments were made for joint counselling. Following this you had dinner together. The following day you confirmed with the counsellor that there was a possibility that the relationship might be saved. You continued to try and make changes in your life which might help achieve this end. You sought to complete renovations to the family home and you attended a meditation therapist and after an initial session booked in for an extended sequence of meditation therapy sessions.

32. At the same time your wife's relationship with her new male friend progressed to the point where, on the Friday, he characterised the relationship as serious and spoke with her of future plans together in some detail.

35. On the Saturday your wife went to Geelong with you to watch your son Matthew play football. During the course of the day it is apparent that she told you she was seeing someone else. A mutual friend who observed you at the football that day says it was obvious that there was tension between you. On that evening and the following day you expressed doubts to others as to the future of the relationship and you inquired of your friends and children as to what they knew of your wife's new friendship. Understandably those close to you were reluctant to confront you with all they had been told by your wife of her situation. They quite properly took the view that this was something you would have to work out with each other. Nevertheless, with hindsight it can be seen that you received mixed messages about the situation. Thus your wife's twin sister assured you that there was nothing in the relationship with the new man and that your wife was just spreading her wings.

38. On the Sunday night your son, again entirely understandably, asked your wife to tell you the true situation if in fact there was no prospect that she would return to you.

41. You had requested your wife to come back to the family home and view renovations to the kitchen and family room areas which were almost completed. You had put considerable effort into completing these renovations in a way which you believed would please your wife and which you hoped would attract her to return home.

44. On Monday 21 June, your wife went out to visit you at about midday at the family home in Balwyn. On that morning she had told workmates how happy she was in the new relationship she had formed and that she wanted to bring things out into the open. There is circumstantial evidence to suggest that she did not intend the meeting with you to be long.

47. There is no direct evidence of what then occurred save for the account given by you in your record of interview. I am prepared to accept that this account sets out the essential sequence of events. It is circumstantial and detailed and describes a spiralling confrontation in a manner which would not easily be invented.

50. It appears that firstly, there was a discussion concerning the renovations. Your wife dismissed these as being of no significance.

53. Next, you pleaded with her to return. She said "You don't get it do you? I'm over you. I should have left you 10 years ago."

56. Next, there was reference to your daughter, in the course of which your wife questioned whether your daughter wished to visit and stay with you as much as she had.

59. In turn, you told your wife that your son was upset with the situation and that the two of you needed to handle the situation properly.

62. Next, there was a discussion about your wife's new male friend and you said to her that your daughter was "not happy with this guy."

65. This produced an emphatic reaction from your wife that it was none of your business and that she was not with you anymore. Next, you asked how serious the relationship was. Your wife told you that she had had sleepovers and how much nicer than you the new man was, that they shared interests and he cared for her. She then said that sex with you repulsed her and screwed up her face and either said or implied how much better her new friend was.

68. At this point you assert in your record of interview that you lost control and attacked her. It is apparent from that record of interview and from the forensic medical evidence that you struck at least two heavy blows to her face, and that she then fell to the ground striking her head severely (the alternative to this last event being that you struck her a third severe blow to the side of the head). Then having knocked her down and in circumstances where she was already affected by the initial blows, you proceeded to deliberately strangle her with your bare hands until she appeared lifeless. During the attack your wife initially struggled but then ceased to do so.

71. It was open to the jury to arrive at its verdict by two pathways of reasoning. First, that it was not satisfied beyond reasonable doubt that you killed your wife with murderous intent and second, that it was not satisfied beyond reasonable doubt that the Crown had negatived provocation.

74. I am bound to sentence you on the basis of a view of the facts which is consistent with the jury's verdict. Further, I must be satisfied beyond reasonable doubt of matters adverse to you, but may take into account matters in your favour which are established on the balance of probabilities.[1]

77. In the present case I am satisfied beyond reasonable doubt that you caused your wife's death with the intention either of killing her or causing really serious injury. I am so satisfied by reason of the account given by you in your record of interview and by the medical evidence. In my view it is clear that after striking her a series of deliberate and heavy blows to the head you then proceeded to deliberately strangle her with your bare hands until she appeared dead. Following this you embarked immediately on a detailed and careful series of actions by way of cover up to which I shall shortly return. It is highly probable but not absolutely certain that your wife was dead when you believed her to be. The alternative is that she died thereafter of positional asphyxiation suffered in the state of unconsciousness you had caused and did nothing to redress.

80. It follows that I propose to sentence you on the basis that the jury has accepted that the Crown in this case failed to negative provocation.

83. I should interpolate that it was not submitted to the Court at the conclusion of evidence that this was a case in which provocation should not be left to the jury. Furthermore, in my view the Crown was correct to adopt this position as reflecting the current law and I of course must apply the current law whatever view I may hold as to the desirability of change to it.

86. Turning then to the evidence as to provocation, I accept that it is likely that you were provoked to rage and anger by the confrontation with your wife. It is apparent from the evidence of a whole series of witnesses who had contact with you (including a number of persons with relevant professional expertise) that you were extremely anxious, obsessed and emotionally fraught at the disintegration of your marriage.

89. Conversely, it is apparent, as I have said, that your wife enjoyed a growth in personal confidence and happiness after her separation from you. She was excited by the new possibilities life appeared to hold for her.

92. In addition she was pleased by the apparently reasonable way you reacted to the separation and I am satisfied she was not in any immediate fear of violence from you or she would not have travelled alone with you to Geelong on the Saturday, two days prior to her death, and advised you of her new relationship; nor come out to visit you alone on the day of her death.

95. In these circumstances, I accept that it is likely that at the time of the final confrontation with you, and at the climax of an argument in which both parties said a series of hurtful things to each other that you were unambiguously told what you feared most was true, namely that the marriage was over and that your wife had found a new lover.

98. Your reaction was one of immediate and overwhelming brutality by a man considerably larger and physically stronger than his victim.

101. After the fatal assault you made no attempt to revive your wife or to obtain emergency assistance for her. Rather, you embarked immediately on a sequence of careful and calculated actions to try and cover up what you had done - cleaning the scene of the crime with detergent, removing the deceased's body and her belongings and placing them in your car, moving the deceased's car from your home to a nearby car park, taking with you a change of clothes and shoes, and a spade and driving to the Yan Yean area. In the course of this journey you made phone calls designed to simulate a lack of knowledge of your wife's whereabouts. On arriving at a relatively remote location you dragged your wife's body over the ground, buried it roughly in a crude shallow grave and concealed that grave with bush litter. You buried a number of other incriminating items in a separate hole nearby and likewise concealed this hole. You drove back to Melbourne washing your car on the return journey and arranged to attend and then attended premises in Reservoir where you completed the process of ordering granite tops for benches for your kitchen in a collected and calm fashion. On returning home you washed both your clothes and yourself and maintained an appearance of normality taking your son to dinner and answering a telephone inquiry from your daughter as to your wife's whereabouts on the basis that you did not know where she was. Subsequently that evening you contacted a friend and then handed yourself in to the police.

104. Despite this sequence of actions the jury clearly entertained a reasonable doubt as to whether the killing itself occurred when you were in a state of loss of self-control consequent upon provocation. In so doing I have little doubt that they had regard in part to the extensive evidence as to your pre-existing state of anxiety and emotional disturbance. This evidence included evidence from impressively impartial witnesses such as Dr Rob Moodie and Dr Catherine Clarke, with whom you had had a series of contacts over the preceding days and who last saw and spoke to you on the day prior to the killing. The jury also heard evidence from a series of very experienced psychologists and counsellors who saw you in the period immediately prior to the killing. As I have said the weight of this evidence supports the view that you were at the time of the fatal confrontation in a state of extreme obsessive anxiety and desperately seeking to reassert control over the relationship with your wife. It was in this context that the jury were entitled to conclude it was reasonably possible you were provoked to lose self-control. Moreover although the jury did not have the benefit of Dr Walton's opinion now in evidence before me, this possibility is further supported by his opinion that persons with obsessional personality characteristics such as yours are recognised to have the capacity if loss of self-control occurs for such loss of self-control to be extreme.

107. In addition, the jury must in my view be taken to have had a reasonable doubt as to whether the ordinary person confronted with provocation of the gravity which you may have felt in all the circumstances of the case, would not have reacted as you did.

110. As the Court of Appeal has recently reiterated the application of the ordinary person test in circumstances such as the present case is pre-eminently a jury matter[2] and I fully accept and must give effect to the jury's verdict.

(a) that the attack was carried out with murderous intent;

(b) that it was brutal and required a continuing assault to achieve its end; and

(c) that it was within the outer range of conduct which the jury might regard as subject to a reasonable doubt in terms of the possible reaction of the ordinary person confronted with provocation having the gravity which you may have felt. In other words despite the personal vulnerability with which I accept you were afflicted, the gravity of the provocation with which you were confronted was objectively far from extreme. It was rather of a character which many members of the community must confront during the course of the breakdown of a relationship. It was not a case of extreme provocation such as that of Paul Kenneth Alexander[3] where after some 10 years of what the Court called "the most extraordinary conduct" by the deceased towards the accused's children by a previous marriage, the killing occurred following a prolonged argument, threats by the deceased to take the accused's children from him, express suggestions by the deceased to the accused that the only solution available to the accused was to shoot her, and accusations by the deceased that the accused was gutless.

119. As against the above matters there are five principal circumstances which may be regarded as mitigating in your favour:

(a) you have no prior convictions and this offence is at odds with the character you have generally demonstrated in your prior life;

(b) it is apparent your conduct arose out of the breakdown of a relationship which was central to your sense of self and in a context where you were emotionally distraught;

(c) the killing of your wife was not premeditated but occurred in the context of an emotional confrontation;

(d) you admitted the killing of your wife shortly after it occurred and your case was conducted from a very early stage on the basis that you pleaded guilty to manslaughter;

(e) you have effectively destroyed the life that you had built up for yourself.

125. As to the first matter, you are aged 45 and have lived a life of substantial hard work and achievement. It is clear that you are of above average intelligence and above average competence in coping with the challenges of business and everyday life. Up until the offence which brings you before the Court your life was on the face of it a success story. You returned to Australia as a young man with no tertiary qualifications and went on not only to obtain formal qualifications but also to work your way through a series of jobs and ultimately become the proprietor of a successful business venture. Furthermore, prior to this offence you had also sought to be, and I accept had substantially succeeded in being, a good father to your children and you had established a number of friendships and other positive relationships within the community. Having said this, it must also be said the history of your relationship with your wife as it was outlined to Mr Patterson in particular is less positive, involving as it does episodes of violence and elements of continuing intimidation and dominance over her for many years. The latter aspect of the relationship was further confirmed by a number of other witnesses.

128. Since your incarceration you have elected to work while on remand and have acted successfully as a prison listener, in a program designed to support other prisoners under severe stress. A number of references support the view that your behaviour as a prisoner both in this regard and generally has been exemplary and I accept that such behaviour has been achieved after you were suddenly catapulted into a very different situation from that to which you had previously been accustomed. In summary your character both before and since the offence has substantial positive elements which contrast dramatically with your behaviour at the time of the fatal attack on your wife.

131. As to the second matter going to mitigation, I accept the view of Dr Walton that at the time of the offence you were emotionally exhausted and emotionally volatile. As such you were, as Mr Patterson and Mr Fullerton put it in evidence, emotionally fragile and psychologically vulnerable. In particular because of underlying obsessional personality traits you were not a person capable of easy adjustment to a challenging change of circumstances in your life. I further accept Dr Walton's opinion that if persons with obsessional personality traits of the type which you display do lose self-control, such loss of self-control may often be extreme. I also accept Dr Walton's opinion that it is unlikely in general terms that you will reoffend, although I must record some underlying concern as to your capacity to function in a non-violent manner within a marital relationship should you re-establish one. I say this because it seems apparent that your offence was the product of core aspects of your personality and it seems to me that these will not easily change.

134. So far as the third matter of mitigation which I have identified is concerned, there is no satisfactory basis for concluding that the killing of your wife was premeditated, despite some aspects of the evidence which the Crown relied upon at trial as suggesting that you deliberately set up a one-on-one meeting with the deceased. The weight of the evidence in my view supports the conclusion that you were provoked to sudden and uncontrollable rage and anger by the course of the final argument with your wife.

137. Turning to the fourth matter I have identified, it might be said that the admissions made by you to the police were so explicit that a plea of guilty to manslaughter was inevitable, nevertheless it is apparent that you co-operated with police within 12 hours of the killing, both by way of interview and by taking police directly to the location of your wife's body. Furthermore, you advised the prosecution at a very early stage that you would plead guilty to manslaughter. In these circumstances, some material discount must be given for your plea.

140. Turning to the fifth matter, at the time of the offence you were a self-employed businessman. It is evident that as a result of your incarceration you will suffer a substantial financial loss. Furthermore, from a personal point of view you have destroyed the family unit which you cherished and placed yourself in a position where you can no longer effectively seek to care for or guide your children through their years of young adulthood and I accept that this is and will be a continuing cause of anxiety to you.

143. There is a further potentially significant matter which was advanced on your behalf and which I must address. This is the question of remorse. I am not persuaded that your actions after the killing and in particular the disposal of your wife's body, or your statements in your record of interview or your subsequent behaviour including your plea, demonstrate true remorse for the killing of your wife. I have no doubt that you feel regret for your actions and the consequential disintegration of your former way of life, but I am not persuaded you have felt or expressed genuine remorse for the brutal killing of your wife and the abrupt termination of her life when she had much to look forward to.

146. In this regard it was said on your behalf and I accept that while on remand you expressed the desire to write to members of your wife's family expressing your regret, but were advised by your legal advisers not to do so. I do not, however, accept that this did demonstrate true remorse for your wife's killing. I have formed this view having regard to your record of interview and to the evidence as to your state of mind while in custody which is contained in a series of letters tendered on your behalf.

149. I accept that as Archdeacon Newman states in one of those letters, that you have had difficulty in understanding how you did what you did, and that you have felt almost as if someone else killed Julie. Further, I accept that you have felt a deep sense of personal failure, but it does not seem to me that either the Archdeacon's letter or the evidence as a whole reflect a real compassion for Julie or an acceptance of the enormity of what you did to her. Similarly, Sister O'Shannessy describes the struggle you have had to make sense of what you have done and your recognition that you have made a huge mistake, but likewise her letter does not, in my view, reflect a remorse on your part which recognises the enormity of what you did to your wife. Likewise, although the letters of Major Caple and Mr Cronin indicate that you have felt deep emotions and in particular loss and regret for what happened, I am not persuaded that this sense of loss and regret has extended beyond your personal loss to a full acknowledgement of the extreme harm inflicted upon your wife. In summary, I am of the view your behaviour demonstrates deep regret for the subsequent consequences of your actions but not true remorse for the brutal taking of your wife's life.

152. In addition to the above matters I must also consider the question of general deterrence. Domestic killings involve the cruel and brutal subjugation of one party to a relationship to the emotional inadequacy and violence of the other. The deliberate taking of another's life is an act of the utmost gravity and in the domestic context often carries with it not only the tragic and untimely loss of life of the victim but also severe consequential emotional trauma to all those who knew and loved that victim.

155. The effect of provocation is not to justify or exculpate the accused with respect to the killing but simply to reduce the crime from murder to manslaughter. As de Jersey CJ of the Supreme Court of Queensland has recently said:

"... when personal relationships fracture, for whatever reason, the notion that one of the partners, perceiving himself or herself to be the injured party, (may) take the life of the other, is an outrage which must be discouraged by strong judicial responses."[4]

159. In the present case the victim impact statements that have been filed in the Court demonstrate that you have caused enormous grief and continuing emotional pain and suffering to your children, your wife's family and to a number of her friends.

162. Although I accept as Mr Dunn has submitted that the victim impact statements tendered by the Crown extend to a large number of extraneous matters to which I should pay no regard, the admissible matters nevertheless bring home the reality of the intense human suffering inflicted on a number of innocent third parties.

165. The Court cannot allow the law to be seen to condone deliberate domestic killings whether or not they are to be characterised as murder or manslaughter. Such killings strike at the foundations of society. In the case of manslaughter such killings will deserve particular condemnation in cases where the killing was done with murderous intent and savage brutality and where, although the jury has accepted the reasonable possibility of provocation, it is apparent that such provocation was not objectively extreme.

168. In the present case it is true that as I have said:

(a) you have hitherto lived a life of generally good character and high achievement and have no prior convictions;

(b) the killing of your wife occurred in circumstances of emotional stress and provocation;

(c) such killing was not premeditated;

(d) you have assisted police and freely admitted your guilt of manslaughter; and

(e) the killing of your wife has substantially destroyed your previous way of life.

174. Nevertheless, a substantial custodial sentence is in my view required in circumstances where:

(a) the maximum penalty prescribed for the offence is 20 years' imprisonment;

(b) I am satisfied the killing was deliberate and done with murderous intent;

(c) the killing was brutal involving an overwhelming and continuing assault on a smaller and weaker victim;

(d) this was not a case of objectively extreme provocation;

(e) I am not persuaded you have expressed real remorse for the killing; and

(f) the killing of which you are guilty was of a type which attacks the foundations of relationships within our society and must be the subject of general deterrence.

180. Mr Ramage, having regard to the above matters and to the considerations set out in s.5 of the Sentencing Act 1991, I sentence you to 11 years' imprisonment for the manslaughter of Julie Ramage. I fix a non-parole period of 8 years. I declare that pursuant to s.18(4) of the Sentencing Act you have already served a period of 508 days in custody.

[1] R v Storey [1998] 1 VR 359 at 369; R v Olbrich [1999] HCA 54; (1999) 199 CLR 270; R v Cheung [2001] HCA 67; (2001) 209 CLR 1

[2] R v Yasso [2004] VSCA 127

[3] (1995) 78 A Crim R 141

[4] R v Schubring; ex parte Attorney-General (Qld) [2004] QCA 418