R v Surtees [2022] VSC 124

1 Angela Surtees, you have pleaded guilty to the manslaughter of your husband, Daniel Surtees, a crime for which the maximum penalty at the time, and that which applies to you, is imprisonment for 20 years.

2 The form of manslaughter to which you have pleaded guilty is manslaughter by unlawful and dangerous act. The unlawful and dangerous acts by which you brought about the death of your husband, as your plea of guilty acknowledged, were the pouring of a significant quantity of unleaded petrol over him and his clothing and then operating a cigarette lighter in close proximity to him, causing him to be engulfed in flames, leading to the serious injuries which brought about his death. The dousing of your husband with petrol was a serious assault by you. The lighting of the cigarette lighter with the intention of causing him to fear that you would set him alight was itself a serious assault, albeit an intimidatory one.

3 Insofar as some of your actions and statements from the time of these shocking events may have betrayed a belief that the death of your husband was an accident, although the case against you was put and I sentence you upon the basis that you did not intend to set fire to him, as the brief statement of your crime above makes plain, Daniel Surtees' death was not the result of a mere accident. You, and you alone, caused his tragic death by your criminal and outrageous actions which constituted a serious instance of family violence.

4 Manslaughter is a category 2 offence under the Sentencing Act 1991 ('the Act'). Section 5(2H) requires the Court to impose a custodial sentence unless the circumstances set out in parts (a) to (e) of the subsection apply. Not surprisingly, Mr Williams, who appeared with Ms Munster on your behalf, conceded that a term of imprisonment would be inevitable and appropriate in your case.

5 Daniel Surtees, whom I will call Daniel throughout these reasons for sentence, was 36 years old at the time of his death. You and Daniel had been in a relationship for almost 10 years. You were married in October 2017 and had two children together, Tiffany who was then aged six, and Ariah who was four. In addition, Daniel had a daughter Myrandah, aged 13, from a previous relationship, and you had two children, Blake then aged 11, and Elsie, 13 from a previous relationship. Blake lived with you, Daniel, Tiffany and Ariah, at the family home in Boundary Road, Whittington.

6 There are indications that Daniel had a problem with alcohol. His brother Luke Surtees described him as being 'on the edge of being a functioning alcoholic'.[1]

7 Those who knew you and Daniel described your relationship as volatile. Some family members stated that the two of you seemingly loved each other, but that you argued. You were described as having screaming matches at times. It was said that sometimes your arguments got out of hand and you hit each other. In June 2016, before your marriage, the Victorian Child Protection Service received a report regarding the exposure of Blake, Ariah and Tiffany to verbal family violence. A child protection investigation was not pursued, but the family was referred to Child First for support.

8 On 13 November 2017 at the Geelong Magistrates' Court, Daniel pleaded guilty to a charge of unlawful assault committed upon you, for which he received a two year adjourned undertaking without conviction. The offending occurred on 29 June 2017 when, during an argument, he smashed a plate of food, used a toy vacuum cleaner to hit you to the back of your head, hitting your pony tail, and grabbed you around the neck with one hand. In response, you apparently grabbed two nearby kitchen knives, placed them to his neck, and told him to get off. He backed off, pushed you to the side of the face and left the scene.

9 A condition of the adjourned undertaking was that Daniel complete a men's behaviour change program, which he did through Bethany Community Support.

10 According to your mother, you 'gave as good as [you] got' in the relationship. Your sister described you and Daniel as 'as bad as each other'. There were times when you told your mother and sister that you had considered leaving Daniel.

11 On the afternoon of 25 January 2020, you, Daniel and the children (Tiffany, Ariah and Blake) attended an engagement party at a house in Corio. The party was hosted by your brother Zac and his fiancée. Alcohol was consumed at the party, including by Daniel. He became intoxicated. You had little to drink as you were the designated driver. At some stage during the party, Daniel overheard other party-goers making remarks which he thought were about him. He was offended and became angry. You and other family members tried to placate him, without success. He talked about fighting other people at the party and made derogatory comments to you in front of your mother and step-father. Eventually, you suggested that you and he just leave. You collected the children and went to the car, waiting in the driver's seat for Daniel. He joined you and, with him in the front passenger seat, you drove from the scene of the party at about 7.00pm.

12 During the car ride home, the two of you continued to argue. In an agitated state, Daniel punched the inside of the car, damaging the lid of the centre console.

13 At home, you continued to argue. A neighbour heard yelling continuing for about 20 minutes. Daniel threw a rubbish bin on the ground, spilling rubbish at the front of the house. Blake was told to help clean up the rubbish, and going to the rear of the house to get a shovel, saw you crying. At some stage, a local man passing the house on his skateboard, Jason Kos, was yelled at by Daniel. The man and his friend later returned to the house and spoke with Daniel, who was initially angry but soon calmed down. He informed the men that he was 'having a really bad day', and said that he had damaged his wife's car. Of his earlier interaction with Kos, he said, 'I took it out on the first person I saw'. In the end, Kos and his friend shook hands with Daniel and left the scene.

14 Shortly afterwards, while the children were inside watching television in the lounge room, you were in the front sunroom of the house with Daniel, who was sitting in an armchair. Stirred up by the events of the day and aggravated by the behaviour of Daniel, you got hold of a jerry can containing unleaded petrol which usually lived in the shed in the backyard but had been seen by Blake in the sunroom a day or two before the events. You removed the cap of the jerry can, and poured a significant quantity of petrol onto Daniel, who was still sitting in the armchair.

15 In response to this, Daniel lunged at you, but you pushed him backwards into the armchair. You then obtained a disposable cigarette lighter and ignited it, producing a flame. You threatened Daniel with the lit lighter in close proximity to him. He then burst into flames, becoming largely engulfed. On the prosecution case, you did not intend to ignite Daniel, but you did intend him to fear that he would catch on fire.

16 The unlawful and dangerous acts relied upon by the Crown and which you have acknowledged by your plea of guilty were the dousing of Daniel with petrol and the threatening of him with a lit cigarette lighter held in close proximity to him with the intention of causing him to fear he would be set alight.

17 The sleeve of your top also caught alight. You later told the 000 operator this occurred while you were trying to put Daniel out.

18 After bursting into flames, Daniel proceeded in a panic into the front yard. He fell onto the ground, where he was observed by Blake who had seen an orange glow coming from the front of the house. Blake ran into the kitchen and filled a jug with water, running outside to try to help Daniel. He observed the armchair in the sunroom on fire. He called 000 and then handed the phone to you. The 000 call commenced at 8.22pm. By this time, you were spraying Daniel with a garden hose as he writhed in agony on the ground.

19 During the 000 call, throughout which it might be observed that you sounded reasonably calm, you said, 'I was having an argument with my husband and...he grabbed a bloody thing of petrol, and we were fighting over it, and I spilled it and...accidentally set him on fire'.

20 You said, 'He was sitting on the chair and he's copped, like, a full brunt of it'. You went on to say of the petrol, and the cause of the fire, 'It spilled and ignited while he was lighting a cigarette'. A little later, you said, 'It was an accident, I swear'.

21 The 000 call was played in Court during the plea hearing. The seemingly agonised screams and groans of Daniel in the background made for confronting listening.

22 A member of the public driving past your house, Ryan Dew, saw smoke coming from the front entrance of the house. He stopped and saw Daniel lying on the front lawn, naked, seriously burnt, and in obvious pain. His clothes were on the front lawn, still burning. You were hosing Daniel while talking on the phone to 000. Daniel was screaming and saying, 'It hurts'. Mr Dew observed Blake trying to extinguish the fire on the armchair. He observed your two daughters standing in the hallway near the front of the house. He escorted them out of the house and down the side to take them away from the terrible scene. He then assisted Blake to put out the fire on the armchair. He notice the red jerry can next to the armchair, and moved it away from the fire.

23 Paramedics arrived at the scene. Daniel was screaming in agony but was fully alert. You were noted by one of the paramedics to be 'oddly quiet' in the circumstances. Daniel was provided with pain relief before being loaded in the ambulance and transported to Geelong University Hospital.

24 You rang your mother Deborah O'Connell and asked her to come to your house. When she arrived, you were in tears, and immediately told her that there had been an accident, that you did not mean it, that you did not want it, and that it should have been you, and asking the question, 'Why, why?'

25 In the car with your mother on the way to the hospital, you told her that you and Daniel had been arguing since the party. You told her that Daniel had broken the centre console of your car but that you should not have got upset as it would be easy enough to fix. You told your mother that you had made a comment to Daniel about being a 'pyro' and then claimed that Daniel had gone and obtained a fuel can and was waving it in your face. You said that you shook the container, not realising it was full. You said you did not realise how much fuel was on Daniel. You claimed that Daniel egged you on, and threw a cigarette lighter at you and dared you to do it. You said you took a step back and then lit the lighter. You claimed that Daniel lunged at you and then caught fire.

26 You told your mother that when the paramedics arrived, Daniel was in such a bad way that you thought that he would never forgive you and that your marriage was over. You asked your mother, 'Why did this happen? Why did I big note myself? Why was it him and not me? Why couldn't I let things be?' You then said, 'What if he dies, Mum? I can't live without him'.

27 As well as ringing your mother, you rang your sister Elizabeth Prem. You told her, 'I've made a mistake. I don't know what to do. Daniel's on his way to the hospital. There was a fire'. Ms Prem drove to meet you at the hospital. Your brother Zac Kennedy rang and spoke to you. You told him, 'It's really bad. I set him on fire. I didn't mean it. It was an accident'.

28 Daniel arrived at the hospital at 8.54 pm. He was unable to communicate effectively due to the sedative effects of pain medication. You and your mother arrived 30 minutes later.

29 Shortly after your arrival, you spoke with a triage nurse, Claire Dittloff. She recorded notes of the conversation in the hospital system, noting, 'argument w husband, pt lit hsband on fire and then he has had contact w her whilst on fire...'

30 At about this time, Leading Senior Constable Lyndon Croad ('Croad') was at the hospital for an unrelated matter. He was informed of the admission of Daniel, and of your presence at the hospital. He came up to where you were speaking to the triage nurse with your mother and sister close by. Your mother and sister spoke to Croad in your presence. Your mother informed him, 'I'm not quite sure what - and he had petrol and was, like, flicking it - shaking it around, got petrol on himself and was telling her to light the lighter...being a smartarse, she did it. She lit the lighter, so he's leaned into it and, yeah'. When Croad asked how far away you were when you lit the lighter, you gestured a distance. Ms Prem then continued, 'She lit the lighter and then he lunged for her'.

31 Shortly after this conversation, you and your mother and sister went into the relatives' room to wait to speak to the doctor treating Daniel. Dr Tharindu Uyanage was overseeing the care of Daniel. He spoke with you and asked what had happened. You said, 'We had an argument. He was sitting on the couch and he had a petrol can with him. He poured petrol all over his body. He asked me for a lighter and I threw the lighter and then this happened'.

32 Dr Uyanage then informed you that Daniel was likely to pass away as a result of his injuries.

33 Shortly after this, you spoke with Daniel's former partner, Emma Wischmann on the phone. You told her that you had been arguing with Daniel, that he was egging you on, that you wanted to scare him and threaten him, and that you 'shimmied' petrol on him. You said that you were standing away from him. You said that you didn't want to do it, but wanted him to think that you were going to do it. He lunged or launched towards you and then he 'lit up'.

34 Not long after this conversation, police from Geelong Crime Investigation Unit arrived at the hospital. You, your mother and your sister went into Daniel's room and you were heard to say that you were sorry and that you did not want to lose him. Luke Surtees, Daniel's brother, arrived at the hospital and came into the room. He asked you what had happened. You told him that you and Daniel had been arguing. He had brought a jerry can and you took it off him. You splashed him with fuel. You had a lighter. Daniel lunged towards you and you lit the lighter. Interspersed with this account, you were described by Luke as being apologetic and hysterical. You asked him not to hate you, and said, 'I didn't mean for it to happen'.

35 Police came into the room and asked you to come with them. They arrested you and Detective Senior Constable Kevin Beaumont commenced an audio recording of events. He cautioned you and indicated he wanted to speak to you about injuring Daniel. He made it clear to you that Daniel was severely injured and may die. During the course of the conversation, an emergency doctor, Dr Ameera Khan, arrive to treat your burns. Dr Khan asked you what happened and you said, 'Just got some burns from an altercation with my husband that went 50 shades of wrong'.

36 Daniel was transported to The Alfred Hospital for treatment, but given the extent of his burns, his injuries were considered non-survivable. Life support was terminated and he died at 2.02pm on 26 January 2020.

37 After receiving treatment for your burns, you were transported to Geelong Police Station where you participated in an audio and video recorded interview which commenced at 2.41am on 26 January 2020. In the interview, you told police about the incident at the party, and the damage inflicted by Daniel upon the centre console, saying that he was aggressive and loud and 'making a whole lot of fluff the entire way home'.[2] You said that you and Daniel continued to argue at home, Daniel not having liked your lack of reaction to the perceived slight of him at the party. Things went back and forth between you, with both of you proclaiming how tough you were. You said that you made a 'sideways tough guy remark' about setting people on fire if they upset you. Daniel thought that was funny, egging you on. After 20 to 25 minutes of arguing, Daniel got up to go to the toilet and get another drink. As he came back through the laundry, he picked up the jerry can which had been left there by you on the floor the day before. He brought it with him into the sunroom and sat it in front of your feet and said, 'Come on, tough guy if you think you're so smart'. You claimed he called you unflattering names. Then, you claimed that in the heat of the moment, you took the lid off the can and, as you put it, 'shimmied it' towards Daniel and a large amount of the petrol from the full container splashed down the front of him onto his crotch and torso. You said that he grabbed you by the neck. You pushed him back from you. You had picked the cigarette lighter up from the desk in the room to threaten Daniel. You had the lighter in your right hand. Daniel said, 'Come on, tough guy'. In response to this you flicked the lighter and he came towards you and caught fire. You said, 'You know what they say about gasoline and a match. He brought the gasoline and I brought the match and it was not pretty. Quite literally he brought the gasoline and I brought the lighter'.[3]

38 When asked why you flicked the lighter, you said, 'I can't even answer you...It was a lack of ability to process the consequences or just thinking stupidly'.[4]

39 You described having set off 'this massive chain reaction' when a fire ball engulfed Daniel, the chair, the roof and the floor. You described it as 'this massive cataclysmic fire ball', which, as you put it, meant that life would never be the same again, no matter what the outcome was for Daniel. You said your children's lives would never be the same again 'if it goes south'.[5]

40 When asked what you were intending when you flicked the lighter, you said, 'Absolutely nothing'.[6] You claimed that 'half a micro-millisecond' was 'as long as the little bastard destroyer was actually up for'.[7]

41 You apologised profusely for your 'part in the cataclysmic catastrophic (sic)...it's like, like, you can't even imagine, like, it's unbearable.'[8] When asked if you agreed operating the lighter was a reckless thing to do, you said, 'Definitely it was...It was eons beyond stupid'.[9]

42 When asked in the interview to describe your relationship with Daniel, you said that it had recently been fine. You said the two of you had had 'little nit-picks here and there but nothing out of the ordinary and I think all the little nit-picks have like compiled into this mass eruption'.[10]

43 Following the interview, due to your claim that Daniel had grabbed you by the neck, you were examined by a forensic medical officer, Dr Cameron Profitt. There was no sign of bruising or other injury to your neck. During the assessment, you gave a version of events to Dr Profitt. You said that during the argument you were having with Daniel, you told him that in the past, you had set alight your boyfriend's pants while he was still wearing them. You claimed that Daniel left the room and returned with a container of petrol. He egged you on. You splashed him with fuel. He then put his hands around your neck. You pushed him away and grabbed a lighter from the bench. He egged you on further and you flicked the lighter on. He was more than a metre away at the time. He immediately caught fire.

44 In a further interview which commenced at 2.48 pm on 26 January 2020, the police informed you that Daniel was going to die. You said, 'I'm not a monster. He's supposed to be okay. He's supposed to be fine and it was all supposed to be okay and he's supposed to yell at me because he's upset with me not -no- no. He was fine yesterday. He was talking to the paramedics and everything'.[11]

45 Having been told that you were now under arrest for murder, you said, 'I didn't murder anyone. I'm not a monster...I'm not a monster. I don't belong in a cage'.[12] You said you thought Daniel would be fine. You then said he should not have left the jerry can in the laundry. But having put it there, he should have left it there and then 'none of this would have happened'.[13] You told the police it was an accident and said that you did not have anything to hide. You denied killing your husband and repeatedly said that he should have left the jerry can in the laundry. When asked if you would take part in a re-enactment, you declined, as was your right. You said, 'I'm contemplating just straight up moving house. I never want to see that sunroom again'.[14]

46 An autopsy was carried out on Daniel's body by Professor Noel Woodford on 27 January 2020. He found extensive deep cutaneous thermal burn injuries to over 80 percent of the body, as well as evidence of soot inhalation. The cause of death was determined to be complications of thermal burn injuries. According to Professor Woodford, the head and neck region appeared to be relatively spared, which suggested that Daniel was not in a vertical position for a significant length of time after the fire started.

Your mental state now and at the time of your offending; Verdins issues

47 Based on evidence led on your behalf from a forensic psychologist Professor James Ogloff, Mr Williams submitted that the first four limbs from R v Verdins & Ors[15] should be considered to be enlivened in your case. To understand the submissions in this respect by Mr Williams, it is necessary to dwell briefly on the report and evidence of Professor Ogloff.

48 Professor Ogloff, an eminent clinical and forensic psychologist, carried out an assessment of you, the results of which were contained in his report of 17 January 2022. He interviewed you via videolink for a total of 300 minutes on 20 September and 8 October 2021. In preparing his report, he had access to the depositions, the prosecution plea opening, and other documents. He noted that your memory for events surrounding the immolation of Daniel was somewhat limited as to detail.

49 Professor Ogloff set out a summary of your family and relationship background, noting your claim of having been sexually abused by your step-father, the history of physical and emotional abuse of you in your first significant relationship, and the nature of your relationship with Daniel which was said to be marked by abuse and some violence, in the context of Daniel's excessive drinking.

50 Professor Ogloff set out your account to him of the events leading up to Daniel being set on fire. Having described the events at the party and on the way home, you turned to events in the sunroom. You claimed that in the face of Daniel's continuing argumentative behaviour towards you in the sunroom, you became tense and frightened and wanted him to pass out. You were crying, angry and hurt, and walked away from him. He continued to scream abuse at you. At one point, you got your mobile phone, intending to ring the police. You claimed that he then threatened to 'give them something to find'.[16] You said that he told you to sit down and was yelling at you. He went to the laundry and retrieved a jerry can of petrol which you had left there. You said that you were terrified and did not know what his thought processes were. Daniel returned to the room with the jerry can and was taunting you to use the fuel to set him alight. He said something to the effect of, 'Do it to me or I'll do it to you'. You said that you took the jerry can and shook it in his direction. Some fuel splashed onto his body. He jumped up and grabbed you, pinning you to the wall. You tried to push him off. He was still taunting you. You were terrified as you had not experienced him being so irate previously. You picked up a cigarette lighter and turned the wheel, in what was a knee-jerk reaction rather than a conscious act. It sparked the flame and Daniel was alight. Although you could not visually remember exactly where he was when he caught alight, you accepted that he was at or on his chair. When asked what you were thinking when you splashed the fuel and flicked the lighter, you said that you were not angry, but were crying, emotionally hurt and your main objective was to calm him down. The only thought you could remember was trying to get him to stop.

51 I make the observation, before turning to the opinions of Professor Ogloff, which were clearly based in part upon this account which you gave him, that the account does not sit at all comfortably with any of the earlier accounts you gave to others, or indeed, the assertions set out in the Amended Summary of Prosecution Opening for Plea ('the Prosecution Opening') in the knowledge of which you pleaded guilty to the manslaughter of Daniel.

52 Professor Ogloff assessed you as meeting the criteria for Post-traumatic stress disorder ('PTSD') at the time of the assessment. His opinion was that the trauma disorder in your case was 'cumulative and complex'.[17] You had been exposed to serious and ongoing injury and sexual violence during childhood and adulthood and the trauma was never resolved. As he put it, the altercation with Daniel and your actions leading to his death have compounded the pre-existing trauma, rendering your symptoms acute during the first year of your incarceration. You were no longer experiencing acute symptoms by the time of his assessment of you.

It is my opinion that in the time leading up to the offence (i.e., from the time they returned home from the engagement party until she set Mr Surtees alight), Ms Surtees would have been affected by some symptoms consistent with Posttraumatic Stress Disorder, but her symptoms were not acute. The symptoms (e.g., fear of being seriously harmed, being distressed and physiologically aroused) exacerbated partly during the altercation where she reported being frightened and was unable to pacify Mr Surtees as she said she had in the past.[18]

Ms Surtees engaged in the unlawful and dangerous behaviour that led to Mr Surtees' death in the context of a serious episode of domestic violence that lasted for several hours (from the events at the party through to her lighting the lighter). The events of the day and Mr Surtees' behaviour followed a longstanding pattern, although the situation was more extreme than had been the case previously.

In my opinion the link between Ms Surtees' actions and her traumatic stress disorder was indirect. Doubtless her previous experiences of abuse, both at the hands of others and by Mr Surtees, contributed to the fear she felt during the altercation and particularly when Mr Surtees physically attacked her after she spilled the petrol on him. Her emotional state and physiological arousal would have reduced her ability to consider her actions fully and rationally. However, her actions were not driven directly by her mental illness; rather, in the heat of the moment, Mr (sic) Surtees appeared to have acted impulsively to stop Mr Surtees (sic) behaviour.[19]

55 Professor Ogloff gave sworn evidence during the plea hearing. In examination-in-chief, he indicated that it was impossible to tease out what particular events contributed to your mental state at the time he saw you. He confirmed that to his mind there was no direct link between past trauma and your ultimate act of killing Daniel. The link was an indirect one. Yours was not a direct reaction out of fear, or anything like that. The overlay of trauma would have had some influence on your behaviour and thinking but did not directly cause your conduct.

56 In cross-examination, Professor Ogloff expressed the view that the events which occurred in the lead-up to your crime in concert with previous experience of trauma came together to have some influence on your behaviour in an indirect way. As he put it, the prior events and history had 'primed'[20] you for behaving in a more extreme way than would be normal without such a background.

57 In response to a question from me as to the meaning of the word 'acute' in the context in which he had used it in reference to the effects upon you of your past trauma at the time of your crime, Professor Ogloff stated:

Acute in this context means so pronounced that they would reduce her ability to , you know, reason and - and as I mentioned in - and by way of example, in some cases I've seen where these matters occur, you get more of a reaction, so a person's attacked and they've been attacked before, they're primed to react, so sometimes they'll...stab somebody or push somebody, hit somebody. This was a more, you know, not such an acute episode and the symptoms weren't as pronounced.[21]

58 Relying on the above opinions of Professor Ogloff, Mr Williams submitted that there was a realistic connection between your PTSD and the offending, such that your moral culpability is reduced, albeit slightly. This was relevant to the first limb of Verdins. He further submitted that your condition has a bearing upon the weight to be attributed in the sentencing synthesis to just punishment, general deterrence and specific deterrence, which should be slightly moderated. Limbs 3 and 4 would thus be enlivened. He finally submitted that insofar as the evidence of Professor Ogloff was that you would require a mental health transition plan once released from custody and could benefit from treatment aimed directly at your PTSD, that should have a bearing on the length of the non-parole period and would hence enliven the second limb as it would have a bearing on the kind of sentence to be imposed.

59 The Crown, on the other hand, challenged the applicability of any of the limbs of Verdins. Mr Gibson QC, who appeared with Ms Lenthall for the Crown, emphasised the need for the defence to satisfy the Court that a limb of Verdins applies, and for the Court to scrutinise the material relied upon with care. He submitted that what needed to be established was a realistic link between your mental condition and your offending, and not a theoretical or possible one. Whilst the material may amount to background as to the setting in which your offending occurred, the indirect link attested to by Professor Ogloff was not sufficient, being tenuous at best. Your actions had not been driven by your mental condition. The necessary link not having been established, all Verdins limbs would, of necessity, fall away.

60 In summarising the scope and limitation of the Verdins principles eight years after they were laid down, the Court of Appeal in DPP v O'Neill[22] stated, in part:

Second, in order for the first, second, third and fourth principles enunciated in Verdins to have application to the sentencing task, there must be a connection between the impairment to mental functioning and the appellant's moral culpability or the need for general and specific deterrence. If the mental impairment existed at the time of the offending, it must have some 'realistic connection' with the offending; or have 'caused or contributed' to the offending; or be 'causally linked' to the offending.

...

Third, to show the necessary connection to the offending and to so enliven limbs one to four of Verdins, the offender must establish that the mental impairment affected the offender's ability to appreciate the wrongfulness of the conduct, or obscured the offender's intent to commit the offence, or impaired the offender's ability to make calm and rational choices or to think clearly at the time of the offence.

...

Fifth, cogent evidence, normally in the form of an expert opinion, is necessary to establish the existence of the mental impairment, either at the time of the offence, or at sentence, or both, and the nature, extent and effect of the mental impairment experienced by the offender at the relevant time.

Sixth, the assessment by the sentencing judge must be undertaken with rigour, as was made clear in Verdins itself and has since been repeatedly emphasised by this Court on appeal.

...

As this Court emphasised in Verdins, and in many later cases, careful consideration needs to be given to whether the evidence establishes that mental capacity has been impaired, and to which of the circumstances set out in Verdins are engaged. That consideration requires a rigorous evaluation of the evidence.

...

The expert evidence should be scrutinised with care and, where appropriate, a challenge made to the adequacy of the material. Where the judge concludes that the material is inadequate to support the opinion expressed, either because of its content or because of the circumstances in which it came into existence, the sentencing judge will ordinarily be obliged to state the reasons for rejecting the opinion or for finding that the material is inadequate. But it is a matter for the sentencing judge to determine the manner in which such issues are resolved.[23]

61 Bearing in mind the principles summarised in O'Neill, even taking the evidence of Professor Ogloff at its highest, the material advanced in your case would not warrant the enlivening of any of the limbs in Verdins. The indirect link attested to by Professor Ogloff fell short of being the type of link or connection required. To my mind there was no realistic connection, or causal connection, between the PTSD condition and your offending. In no way could that condition, accepting for present purposes that you did suffer from it at the time, be said to have caused or contributed to your crime, as opposed to simply being part of the background against which your crime was committed. Nor is there anything to indicate that any mental impairment from which you suffered at the time affected your ability to appreciate the wrongfulness of the conduct, or obscured your intent to commit the offence, or impaired your ability to make calm and rational choices or to think clearly at the time of the offence.

62 There was another difficulty Mr Williams faced in submitting that the limbs in Verdins had application, to which I have already alluded. The opinions of Professor Ogloff upon which the submissions of Mr Williams relied were based to a significant extent on an acceptance by Professor Ogloff of what you told him about your thoughts in the lead-up to and at the time of your crime. That much can be clearly gleaned from his report at [68], in which he highlighted, as one of the symptoms from which you suffered at the time, the fear of being seriously harmed. He opined that this and the other symptoms from which you suffered at that time were exacerbated during the altercation when you reported being frightened and unable to pacify Daniel. Professor Ogloff went on to opine that you committed the crime 'in the context of a serious episode of domestic violence that lasted for several hours'.[24] He described the behaviour of Daniel as being more extreme than had previously been the case.

63 Professor Ogloff expressed the view that your previous experiences of abuse at the hands of others and Daniel contributed to the fear you felt during the altercation. At the heart of the evidence of Professor Ogloff was the contention that your emotional state and physiological arousal would have reduced your ability to consider your actions fully and rationally.

64 In my view it is a very notable fact that in none of the many and varied accounts you gave to family members, doctors, nurses and the police before you spoke to Professor Ogloff did you ever say, or intimate, that you were terrified, or felt fear or were frightened of Daniel in the immediate lead-up to your crime. If there was any truth to this claim, made by you for the first time to Professor Ogloff more than 18 months after the offence, then in my view it is quite inconceivable that you would have failed to mention it to any person, at any time, including in the two lengthy police interviews. I am satisfied that it is simply not the truth. I am satisfied that fear had nothing whatsoever to do with your actions.

65 Your supposedly fearful state, I believe, was a fundamentally important aspect of the opinions of Professor Ogloff about your possible PTSD symptoms at the relevant time. I am satisfied that, through no fault of Professor Ogloff, his assessment of your possible symptoms, and his view as to the level of family violence to which you had been exposed, is tainted by this lie which you told him.

66 It is apparent that there are other lies you told him. You claimed that you had been threatened by Daniel that he would give the police 'something to find'. You claimed that in taunting you after the retrieval of the jerry can, Daniel threatened, 'Do it to me or I'll do it to you'. You said that after you had spilt fuel upon him, he jumped up and pinned you to the wall. None of these claims was made to any person other than Professor Ogloff. I am satisfied that all of these claims were false.

67 I am satisfied that, set against a background of your inconsistent and shifting accounts as to the events and your actions in the lead-up to your crime, you gave a false account to Professor Ogloff as to what had occurred. I cannot accept that there could have been anything inadvertent about the false pieces of detail related to the expert. I am satisfied that you did so deliberately in an attempt to shift a degree of blame onto Daniel.

68 Aspects of your account were central to the opinions formed by Professor Ogloff. Therefore, the value of those opinions must be seen to be markedly diminished to say the least.

69 For the reasons I have stated, I am not satisfied that any of the limbs in Verdins should be considered to have been enlivened in this case. There is no reason why your moral culpability should be considered to be reduced, or why just punishment, general and specific deterrence should not occupy their important place in the sentencing synthesis, undiminished by any Verdins considerations.

70 I should say that in respect of specific deterrence, as I will later indicate, there are other reasons why it should be given less weight in your case.

The behaviour of Mr Surtees, the significance of family violence and provocation

71 It was asserted on your behalf that you set Daniel alight following an extended altercation in which he was verbally and physically abusive towards you. The Crown took issue with that contention, and the further contention that the death of Daniel occurred in the context of a 'serious episode of domestic violence'.

72 Mr Williams pointed to Daniel's damaging of the centre console of the car as being an act of family violence. That may be so in the technical sense, particularly given the presence of the three children in the car whose exposure to Daniel's behaviour aggravates the degree of family violence. However, I do not believe the evidence would justify the contention that Daniel was physically abusive towards you that day or night. Drunk and pugnacious he undoubtedly was. There is clear evidence that he behaved poorly at the engagement party, in the car on the way home, and once you had all arrived home. He was argumentative and aggressive towards you. And it is understandable that you, being relatively sober and doing nothing more than trying to placate him for much of the day, were unhappy with the way he behaved. But I do not accept that he threatened you physically in any way, or that he physically assaulted you in any way which would justify the description of events by Mr Williams.

73 In all of the accounts you gave prior to speaking with Professor Ogloff, you described no physical assault upon you by Daniel, with the exception of the reaction you claimed emanated from Daniel after you had committed the serious and dangerous assault of pouring petrol over him. If he did jump out of the chair and lunge at you, as indicated in the Prosecution Opening, or even if he went a step further and grabbed hold of you as you claimed to some people, that would have been an entirely understandable and justifiable response to your act of pouring the petrol over him.

74 In that regard, I am not satisfied that he did grab you around the neck, or force you up against the wall. There was no physical sign of those things having occurred. You did not consistently make these claims. Furthermore, had he really done so, it would be unrealistic to think that you could so easily have pushed him back into the armchair before setting him alight.

75 Nor did you suggest that Daniel had threatened to assault you. Rather, as the Crown submitted, you described a situation in which you were 'egged on' and challenged as to whether you had it in you.

76 Before leaving the matter of the ever-changing accounts you gave to people after your commission of the crime, and the state of your memory, for what it is worth, I find it difficult to accept that your memory of the critical events is as deficient as you claimed to Professor Ogloff. He was seemingly prepared to accept that such lapses in memory would be consistent with your having witnessed a traumatic event, and he did not consider that the varying accounts you gave would call into question your truthfulness on that matter. He provided an explanation for your changing accounts. I think the more likely explanation for your changing accounts, all of which portrayed you in a better light than the true facts as acknowledged by you in your plea of guilty and the facts set out in the Prosecution Opening, is that you well knew what you had done, knew that the truth about the events would implicate you in a serious crime, and sought to deflect blame, on a number of occasions, for example, accusing Daniel of being the one who obtained the jerry can and spilt petrol over himself, and even accusing him of having set fire to himself. I believe that if you truly had a deficient memory, there would have been no reason for you to be providing this succession of subtly different accounts, each of them obscuring your true involvement. The fact is, the current state of your memory in a sense is neither here nor there, but I am satisfied that you were much less than frank in every account you ever gave as to the events leading to the death of your husband.

77 Turning to the question of provocation, Mr Williams put this forward as one of the matters tending to reduce your moral culpability. He submitted that your final act of igniting the lighter 'was preceded by a significant act of provocation on the part of the deceased who...lunged at her causing her to fall back against the wall. Her unlawful and dangerous act was a response to Daniel's violent, provocative behaviour, particularly in the context of his behaviour over the course of the day and the relationship generally'.[25]

78 Mr Williams submitted that you were provoked by Daniel, causing you to lose your self-control. He further submitted that the provocation offered was capable of causing an ordinary person fixed with your exposure to family violence to lose control and act as you did.

79 The Crown submitted that the defence contention 'seeks to justify what is totally unjustifiable'.[26] The Crown noted that the way in which you caused Daniel's death was not by a spontaneous hitting out, but rather, involved a number of deliberate steps leading to his immolation. Furthermore, you described your recent relationship with him as being 'pretty fine', speaking of 'little nit-picks here and there but nothing out of the ordinary and I think all the little nit-picks have compiled into this mass eruption'.[27] And you said that even when things escalated once you arrived home, it was like water off a duck's back.

80 Mr Gibson submitted that it was somewhat misplaced to use, in connection with this case, the language of the partial defence of provocation as it used to apply in the case of murder. He submitted that whilst the behaviour of Daniel in this case was relevant to the setting in which you committed your crime, it was putting things too high to suggest that you were exposed to a series of high-end provocative acts by him which caused you to snap and lose control. He put it that the defence submission sought to justify your most extreme behaviour which simply could not be justified.

81 It seems to me that it is appropriate to look at what you did in the context of what your relationship with Daniel was like. It was certainly far from a perfect relationship, and was marked by verbal, and on some occasions, physical aggression by Daniel, in the context of his excessive drinking. However, it was not the sort of very troubled relationship marked by frequent violence and controlling behaviour considered by Croucher J in the case of The Queen v Donker.[28] Rather, as the preponderance of the evidence makes clear, this was a loving, albeit volatile, relationship.

82 As for the events of the day in question, it is true that Daniel behaved poorly in a number of respects, and caused you to be upset and angry. I do not accept, however, that anything he did could be considered to be capable of causing an ordinary person, fixed with your exposure to family violence, to lose control and act as you did. What you did was a very extreme overreaction to his conduct. For some reason, in response to his poor behaviour, presumably from the time he became angry at the party to the time immediately before you commenced your criminal actions, you lost your temper and allowed yourself to do something extraordinary and, I accept, quite outside your normal behaviour. You obtained the jerry can, deliberately poured a good deal of petrol over Daniel, and then lit the cigarette lighter. You took, therefore, a number of deliberate steps in a very dangerous and outrageous direction, without ever stopping in your tracks to ponder whether you should continue in pursuit of the shocking and life threatening design you had recently fixed upon.

83 Insofar as Mr Williams relied on an asserted absence of any substantial premeditation as one of the matters which reduced your moral culpability, I do not accept that submission. Yours was certainly not a well-planned, long-considered crime, but neither was it unpremeditated. Although your crime was carried out over a short period of time, as I have said it involved a number of deliberate steps. You had time to stop, think, and desist. You did not do so.

Nature and gravity of the offence and your culpability and degree of responsibility

84 I turn now to the nature and gravity of your offence and your culpability and degree of responsibility.

85 For all the reasons advanced by the prosecution in the written and oral submissions, the objective gravity of your crime is very high.

86 Yours was a crime of serious family violence, resulting in the loss of the life of your husband. In killing him, you removed from the lives of your children with Daniel, and his other children, and your child Blake whom he treated as his own, a loving and good father.

87 It was a serious and very dangerous and entirely unwarranted act to pour a large amount of fuel over your husband. That constituted a serious assault. As for the additional step of taking a cigarette lighter and operating it, intending to strike fear into Daniel's mind that you were going to set him on fire, that was a serious and frightening assault in its own right.

88 I should say in that regard that I do not accept the contention of Mr Williams that an assault not involving the actual application of physical force is necessarily less serious than a battery assault. Nor do I accept his submission that a manslaughter by unlawful and dangerous act where there is no intention to cause physical harm is necessarily less serious than one where there is such an intention. In my view, an assessment of the seriousness of any assault or any charge of manslaughter must be made on a consideration of all of its constituent facts.

89 As I have already noted, your actions were deliberate, involving a number of steps. It was no small thing to pour that significant amount of petrol over Daniel from what must have been a heavy container. Having done so, you must have placed the container on the floor, picked up the cigarette lighter, and operated it.

90 There was a very high and obvious level of dangerousness inherent in your actions. One of the elements of manslaughter is that a reasonable person in the position of the accused would have realised by her actions that she was exposing the deceased to an appreciable risk of serious injury. There is no requirement to prove that the particular accused had that realisation, and in many cases, it may be apparent that there was no such realisation. In your case, you must have known as you carried out your actions that you were exposing Daniel to great danger.

91 Another matter pointing to the objective seriousness of your crime is the fact that your victim was in his own home, sitting in an armchair and offering no physical threat to you at the time you commenced your assault. You simply could have walked away from him.

92 Another important aspect of the crime is that it was committed in close proximity to your three young children in the house, all of whom were in a position to witness at least some of the shocking and distressing aftermath of your crime.

93 Finally, on the question of the objective seriousness of your crime, the shocking and painful nature of the fatal injuries you inflicted upon Daniel is clear. As was observed by the Court of Appeal in Hopkins v The Queen:[29]

It would be a futile exercise to attempt to imagine a death that more appals the conscience than death by burning. It is a form of death likely, in common knowledge, to be accompanied by extreme pain.[30]

94 I do not believe that your moral culpability is reduced for any of the reasons advanced by Mr Williams, or for any other reason. To my mind, your moral culpability is high.

Your plea of guilty and the question of remorse

95 I accept that your plea of guilty, whilst not an early one, is still a significant matter in mitigation. It is of considerable utilitarian value, all the more so in the context of the present COVID-19 pandemic.[31] Through your plea you have facilitated the course of justice. The plea of guilty may be taken as some evidence of remorse.

96 The question of remorse in your case is quite a vexed one. Although Professor Ogloff considered you to be 'very regretful and remorseful',[32] the evidence on the matter is far from clear. As I raised with your counsel on the first day of the plea hearing, there were some aspects of your behaviour after you had set fire to Daniel which were somewhat disconcerting and not consistent with your having full insight and great regret for your crime at that early time. I make mention of your demeanour during the 000 call and during the first police interview. I add to those matters the ever-changing, and significantly dishonest accounts you gave as to what had occurred, in which you sought to deflect blame from yourself, and the letters you wrote to Daniel's brother, Luke Surtees.

97 Turning to those letters, there were four in total, and all of them caused great distress to Luke Surtees and should never have been sent to him. Although in the first letter, dated 12 February 2020, you expressed your gratitude to Luke for the fact that he and his family were looking after your children, in all four letters, you revealed your strong sense of self-pity, and the absence of a strong feeling of remorse. As for the third and fourth letters, dated 20 February 2020 and 18 January 2021, these were understandably particularly distressing to Luke. The final letter was written almost a full year after you unlawfully killed Luke's brother. And still, you saw fit to blame him for Daniel's death, rather than acknowledge your own blame. Your disgraceful blaming of Luke for the heartbreaking and obviously correct decision he was forced to make, by your criminal actions, to authorise the cessation of life support for Daniel, may tend to indicate a lack of remorse almost a year after your crime.

98 These letters somewhat muddy the waters where remorse is concerned.

99 As for the letter you wrote to the Court, it is no more helpful in advancing your claim of remorse. It is replete with statements showing your strong sense of self-pity and victimisation. You describe yourself as a prisoner of grief for the remainder of your days, but there is nothing to suggest you have a well-developed sense of remorse.

100 Very fairly, Mr Gibson indicated that he would not seek to dissuade me from a finding of some limited remorse on your part.

101 In the end, I do accept that you are remorseful to a point, as revealed by your plea of guilty and some of your statements since the crime, but you have some distance to travel before you reach an appropriate level of acceptance and true remorse for the serious crime you committed. You seemingly have been slow to fully accept that you and you alone are responsible for Daniel's death. It would be in your interests to move as soon as possible in that direction.

102 You are 35 years of age, having been born in Geelong and lived in the area your whole life to date, other than for two years when you lived in Werribee. You never met your biological father, who had left your mother before you were born. You have maintained a close relationship with your sister Elizabeth and your mother but not with your other siblings.

103 Your childhood was much affected by the break ups of your mother with respective partners and the resultant instability. I also accept that your life has been significantly impacted by trauma as a result of sexual abuse and family violence.

104 You were educated in primary schools in Geelong before attending Matthew Flinders Secondary College and leaving early in year 10. After a 12 month hiatus, you undertook the VCAL program and then commenced an extended learning course through a TAFE college, leaving after 3 months. In 2004, you undertook an adult education program in Drysdale.

105 As it was explained to me, you have a strong and proud work history both in and outside the home. Your paid employment in various fields, most recently in the hospitality industry, has been punctuated by long periods as a stay-at-home mum caring for your children.

106 You have had two significant relationships with men. The first was characterised by significant family violence. As for your relationship with Daniel, I accept that it was not perfect, being, in particular, marred by his difficulties with alcohol, but the fact is, you still claim a deep emotional connection with him and a deep love for him.

107 You have no prior convictions and are to be sentenced as a person of good character, for whom this offending was entirely out of character.

108 I accept that you have obtained appropriate mental health care in prison and have sought to make the most of your time in custody, having engaged in a large number of educational and other courses.

109 There is no question that your incarceration up to this point has imposed a burden on your children, and on Luke Surtees and his wife who have admirably taken up the responsibility of caring for them. You and the children are fortunate that Luke and Julia Surtees have been able to provide such a high level of care and support for the children, at great personal, emotional and financial cost to themselves. You have not sought to submit that the hardship to which your children have been exposed on account of your incarceration is exceptional as would be required before it could be taken into account in your favour, but you make the point, which I accept, that being separated from your children has been extremely difficult for you, and will continue to be so, and that the impact upon you of your inability to care for and support your children, including your child Blake who is autistic, has been heavy.[33]

110 You have been assessed by Professor Ogloff as presenting a low risk of future offending. As he put it, based on this low risk and your motivation to address your issues in prison, your prospects of rehabilitation are very good. In the circumstances of your lack of any criminal history and your plea of guilty in this case, I am inclined to accept that contention. I would make the point, however, that your willingness to fully acknowledge your guilt and embrace the reality of what you did, and that you and you alone are responsible for the death of Daniel, will be an important part in your rehabilitative prospects.

111 Seventeen victim impact statements from family members and friends of Daniel were filed in this case, and a number of the victims read their statements aloud in Court or had them read by one or other of the prosecutors. The statements, whether read aloud in Court or not, are eloquently illustrative of the profound distress, pain, and unbearable sense of loss flowing directly from your crime to its many victims. Every indication is that Daniel Surtees was a kind, decent, and much-loved person, whose loss is felt grievously by all who knew him.

112 Without wanting to elevate any one or more victim impact statement onto a level above others, as all are very important, I will say something briefly about a couple of them.

113 Luke Surtees and his wife Julia have been particularly traumatised by the impact of your crime upon them. Amongst many other things, they took upon themselves the responsibility of taking into their home and caring for your children, at great emotional, financial and personal cost to them and their own children.

114 Luke commenced by saying that he did not think he could ever write a victim impact statement which would fully capture the way that your crime has impacted and will continue to impact upon himself and his family. He then set about doing precisely that, in a very emotional, heart-felt and devastating way. Luke described his brother as follows:

Daniel was so much to so many people. A father, a son, brother, friend, mentor, helper, workmate, and so much more...Since Daniel's death, everyone I've spoken to who knew Daniel in their own ways but with a common theme. He was a character with a big heart of gold who would give you the shirt off his back. He was there for anyone that needed it. He could light up a room with his smiles and the stories that would come with him...He was the best big brother.

115 He described the way in which his world came crashing down when he learned what had happened to his much-loved brother. The hurt and pain were beyond words. He spoke of the terrible anguish upon learning of the extent of Daniel's injuries, and of the devastation at having to make the decision to approve the turning off of life support. In detail, he set out the incredible emotional and financial toll wreaked on the family as a result of their selfless decision to take in your children and treat them as their own. It has felt like a never-ending cycle and constant battle since that day, trying to care for the children and make it work. He told of the additional anguish caused by the heartless letters you wrote to him.

116 The statement of Julia Surtees was equally powerful in its description of the terrible effects of your crime upon her and her family. Amongst other things, she spoke of the courage necessary to face the future to which she and Luke and their children have been consigned by your crime and its resultant burden on them of caring for your children as well as their own. She grieves at the effect of your crime on her husband and your traumatised children. A huge amount of her previous life is gone, swamped by the requirement in her mind of putting the needs of Blake, Tiffany and Ariah, first. She feels lost and alone. She explains the ripple-effect of your crime. She states that whilst her only solace is the night time, her nights are filled with thoughts and images of the pain and suffering of Daniel on the night he was burnt by you.

117 Those two victim impact statements are indicative of the heartbreaking content of all of the statement, as people struggle to put into words the simply devastating effects of your crime upon them, which effects will clearly be lifelong.

118 Whilst of course the contents of the victim impact statements must not be allowed to overwhelm the sentencing process, the victim impact statements provide an important insight into the profound grief and pain caused to so many as a direct consequence of your offending. I take the contents of the statements into account in sentencing you.

119 More than two years have now elapsed since your commission of this offence. For much of that time, your case was to proceed as a trial. Once you pleaded guilty, there was a further significant period of delay while the necessary arrangements were made for you to be assessed by Professor Ogloff, and a report provided.

120 Mr Williams, whilst acknowledging that the period of delay in this case is not inordinate, submitted that you have experienced ongoing stress and anxiety during that time, and submitted that that fact should be considered as a mitigating factor.

121 I will take into account when sentencing you the reasonably lengthy period which has elapsed from the time you were charged, and the stress and anxiety you have experienced as you have awaited your fate.

122 I take into account in sentencing you the onerous conditions of incarceration which currently apply due to steps taken to prevent the spread of the COVID-19 virus within the prison population. Personal visits have been ceased for much of the time since March 2020, educational and other courses have been suspended, and prisons in Victoria have intermittently been subject to lockdown procedures which have greatly reduced the hours prisoners are permitted to spend outside their cells. The time you have spent in custody in prison since your remand, therefore, has been more burdensome for you, and that will be the case for some indeterminate time into the future. I take that matter into account in sentencing you.

Current sentencing practices and comparable cases

123 One of the matters I am required by law to take into account in arriving at a proper sentence is current sentencing practices.[34] In seeking to understand these, I have considered, amongst other things, the most recent Sentencing Snapshot from the Sentencing Advisory Council in respect of manslaughter,[35] the Sentencing Advisory Council Statistics for the crime of manslaughter, and a number of 'comparable' or 'comparative' cases to which I was referred by the Crown and the defence. There is a limit to the use of statistics and sentences passed in other cases, particularly in the case of a crime such as manslaughter which spans such a wide breadth of criminality. Where comparable cases are concerned, it must be remembered that no sentence passed in any other case amounts to a precedent for the sentence I must pass on you. At best, sentences in so-called comparable cases may provide a general guide or impression of the appropriate range.

124 I note that none of the cases to which I was referred involved facts which closely resembled those in this case.

125 Your unlawful killing of Daniel Surtees was a serious example of the serious crime of manslaughter. In the context of an ongoing argument, you lost your temper and proceeded, in most deliberate fashion, to carry out acts upon your husband which were disturbing and represented a most extreme and disproportionate over-reaction to anything he had done. The acts carried with them a high degree of danger which would be apparent to any person and must have been apparent to you. The very idea of a person pouring petrol over his or her spouse then lighting a cigarette lighter in close proximity, intent upon causing the spouse to fear being set alight, only needs to be stated for its horrific nature to be readily apparent. You did this while Daniel sat harmlessly and helplessly in an armchair in his home, with his and your children in close proximity.

126 Your crime was committed in a setting of family violence. In Felicite v The Queen,[36] a case which concerned the murder of a domestic partner, the Court of Appeal stated:

The taking of a domestic partner's life undermines the foundations of personal relationships and family trust, upon which our society rests. The sentence must reflect both the sanctity of human life and society's abhorrence of violence towards vulnerable and trusting partners, who could legitimately have expected the offender to be the protector from, not the perpetrator of violent abuse. An outburst of homicidal rage in such contexts is totally unacceptable. The community expectation is that the punishment assigned to such conduct must be condign so as to denounce in the strongest terms the abhorrent nature of domestic murder and to deter others from taking a similar course. Accordingly, the principles of general deterrence, denunciation and just punishment will ordinarily be given primacy in sentencing for the murder of a partner in a domestic setting even where there are present, circumstances of provocation or great emotional stress. [37]

127 Those statements, albeit that they were made in connection with a murder and not a manslaughter, have application to this case.

128 To my mind, all of the purposes for which a sentence may be imposed which are set out in s 5(1) of the Act are relevant in your case, with some assuming more importance. I believe just punishment, denunciation and general deterrence are the most important sentencing purposes to be served.

129 You must be punished in a way which reflects the considerable seriousness of your crime and amounts to an appropriate response to it. The sentence of this Court must make it perfectly clear that the Court deplores the sort of unforgiveable family violence in which you engaged. The life of Daniel Surtees was precious, as the victim impact statements make clear, and the loss of that life is a tragedy for which you, and you alone, are responsible. In respect of general deterrence, the sentence I pass must bring it clearly home to any person who might be minded to engage in violent conduct endangering the life of a family member, albeit in a state of anger and loss of control, that such conduct will be met with very strong punishment.

130 I accept that in your case, specific deterrence and the need to protect the community have less of a role to play than would often be the case in the sentencing synthesis. That does not mean that they cease to have any significance.

131 As for rehabilitation, in the circumstances, and in particular, bearing in mind your young age and your lack of prior convictions, I believe your prospects of rehabilitation are very good. I will pass a sentence which will pay proper regard to those prospects, and in particular, will include as part of it a non-parole period which will allow for the potential of a significant period of time in the community under the supervision of parole. Having said that, it must be remembered that both the head sentence and non-parole period must pay due regard to the purposes to be served by the sentence.

132 Angela Surtees, for the manslaughter of Daniel Surtees, you are sentenced to be imprisoned for 12 years.

133 I fix a period of eight years during which you will not be eligible to be released on parole.

134 I declare a period of 776 days up to and including yesterday, 10 March 2022, as being a period already served under this sentence. I direct that the fact of the making of that declaration and its details be noted in the records of the Court.

Section 6AAA declaration

135 I indicate pursuant to s 6AAA of the Sentencing Act 1991 that, but for your plea of guilty, I would have sentenced you to be imprisoned for 14 years with a non-parole period of 10 years.

[15] [2007] VSCA 102; (2007) 16 VR 269 ('Verdins').

[16] Report of Professor Ogloff [49].

[22] [2015] VSCA 325; (2015) 47 VR 395 ('O'Neill').

[23] Ibid [74]-[81] (citations omitted).

[24] Report of Professor Ogloff [69].

[28] [2018] VSC 210 ('Donker').

[29] [2015] VSCA 174.

[31] Worboyes v The Queen [2021] VSCA 169.

[32] Report of Professor Ogloff [68].

[33] Markovic v The Queen; Pantelic v The Queen [2010] VSCA 105, [20].

[34] Sentencing Act 1991, s 5(2)(b).

[35] Sentencing Advisory Council, Snapshot 249, March 2021.

[36] [2011] VSCA 274; (2011) 37 VR 329.