R v Wardlaw [2020] VSC 83

2 You were born on 1 May 1979 and were 39 years old at the time of the murder.

3 You have a long-standing history of drug abuse and self-medication, including illicit and prescription medication.

4 At the time of the offending you had been living in a one-bedroom unit in Maryborough for just under two weeks. There were five people, including you, living in the unit. This was not your permanent address.

5 While living at the unit you had not been taking your methadone. However, you had been using: Lyrica, a prescription drug which was not prescribed to you; Muralex, which was prescribed to you, but you were using it in excess of the prescribed dose; and methylamphetamine, an illicit substance.

6 During this period of heavy substance abuse you were unable to sleep properly for approximately 10 days, with the exception of a couple of hours of broken sleep each day. Your drug use had increased significantly over those 10 days.

7 In the days leading up to Ms Ashcroft's death you were observed to be acting differently. You were paranoid about a drone following you and were described as 'wigging out'. You expressed the belief that people were trying to kill a man who was living in the unit with you. You also thought that his computer was being hacked. People living with you in the days leading up to the murder said you were quiet, withdrawn, distant and agitated. You were observed talking to yourself and you were seen with a large orange hunting knife in your possession.

8 On the afternoon of 13 May 2018, a number of people, including you, were at the unit. Throughout that night you were observed to be agitated, quiet and not yourself. You did not interact with the other people and you were seen to have the knife on you. During the night, you consumed methylamphetamine.

9 Between 10:30pm and 11:00pm that night, Ms Ashcroft arrived at the unit with a friend. You had never met Ms Ashcroft before this night and she was not known to the other people at the unit. Ms Ashcroft and her friend made their way into the kitchen and sat at the kitchen table.

10 You were in the same area as Ms Ashcroft and some people in the unit noticed that you stared at her for long periods. You did not speak to her at any stage during the night.

11 Later in the night, Ms Ashcroft and her friend decided to leave. They made their way towards the front door, but you stopped them from leaving by blocking the doorway. People in the unit told you to let the couple out, and you eventually stepped out of the way. Ms Ashcroft and her friend returned to the kitchen area.

12 At approximately 3:40am on 14 May 2018 you were standing in the lounge room, still staring at Ms Ashcroft. They decided, for a second time, that it was time to leave. Ms Ashcroft walked into the lounge room and towards the front door. The knife was concealed in your left hand. You took a step towards Ms Ashcroft, swung the knife suddenly and stabbed her once in the chest. She fell to the floor and eventually lost consciousness. Ms Ashcroft was pronounced dead at 4:35am on 14 May 2018.

13 One of the people in the unit put you in an arm lock and walked you into the backyard. When they asked why you stabbed Ms Ashcroft you said: 'I had to do it, you've got to help me.' You left the property and disposed of the knife in a nearby garden bed.

14 Later that morning, at approximately 10:50am, police found you in a drain roughly 200 metres from the unit. You did not try to conceal your identity or whereabouts. You were arrested and taken by ambulance to Bendigo Hospital for treatment for a self-inflicted injury to your arm.

15 A blood sample taken that day showed methylamphetamine and diazepam in your system.

16 Regrettably, this was a spontaneous and intense act, which appears to have been drug-induced. I will return to this topic in a moment; but first I wish to say something about the effect your offending has had on those around you.

17 Ms Ashcroft was 52 years old when you murdered her. Ms Ashcroft had four children, grandchildren and extended family. They are all suffering greatly from her death. They have been profoundly affected by your actions. They have lost a loving mother, grandmother, sister, daughter and friend. They speak as one with feelings of grief, anxiety, anger, depression, loss of trust in others and loss of enjoyment in work and social life.

18 There is nothing I can say or do to bring back Ms Ashcroft or heal the pain her family feels.

19 The sentence I am about to impose reflects a number of factors, which judges are required by law to take into account. One of these factors is the victim impact statements that I have received. I now turn to another factor: your personal circumstances.

21 You were assessed by Carla Ferrari, consultant psychologist, on 18 and 20 December 2019. Ms Ferrari prepared a report dated 4 January 2020, which I have considered. Ms Ferrari's evidence was not challenged by the prosecution.

22 You told Ms Ferrari that you had a normal childhood and your parents were both actively involved in your upbringing. Your parents separated when you were 13 or 14 years old and this was an unhappy time for you.

23 You regularly stayed with both parents after their separation.

24 You were a good student in secondary school, but were expelled in year 10 because you asked other students to source cannabis for you.

25 Between the ages of 16 and 18 years old, you held two seasonal jobs for three to four months at a time. You have no other employment history, which you told Ms Ferrari is due to your drug addiction.

26 You have not had contact with your father for the past three years. Your mother had Bipolar Affective Disorder and suicided in 2016. You have a younger brother, with whom you have a somewhat distant relationship as he lives overseas. You have not had contact with him since you were remanded in relation to this matter. You also have two half-siblings, who you do not maintain contact with. You told Ms Ferrari that you see your grandparents regularly, but have little involvement with any other extended family members.

27 You have spent most of your time on remand at the Metropolitan Remand Centre. I am told that you have worked as a laundry billet for approximately 15 months, and that you have undertaken an occupational health and safety course and a window-washing course.[1]

28 You are presently taking anti-depressant medication.

29 You have a history of non-violent offending. Your prior convictions are as follows: in 2017, you were convicted of driving whilst your authorisation was suspended and for failure to answer bail; in 2001, you were convicted of causing unreasonable noise from a residence; and in 2000, you were convicted of failure to store a firearm and ammunition correctly.

30 It is clear that your mental state at the time you killed Ms Ashcroft is a significant matter.

31 Ms Ferrari's report notes that you have had a long history of mental health issues. You began having anxiety and panic attacks when you were 21 years old. You experience chronic suicidal ideation and have self-harmed on a few occasions, and your suicidal ideation has worsened since the offending. You told Ms Ferrari that drug use temporarily blocks out the suicidal feelings that you experience.

32 You reported a long history of illicit substance abuse, beginning with cannabis at the age of 14. In the weeks leading up to the offending, you missed an appointment with your doctor due to transport issues, which led to you not being able to collect your methadone. You told Ms Ferrari that your drug use increased significantly in this period in order to manage your withdrawal symptoms. Specifically, you self-medicated with methlyamphetamine, Lyrica, heroin and benzodiazepines.

33 Ms Ferrari's current diagnosis is that you present with symptoms consistent with Major Depressive Disorder, which is severe and recurrent. You also exhibit evidence of Generalised Anxiety Disorder. Ms Ferrari notes that this disorder, by nature, fluctuates in severity depending on life stressors and circumstances.

34 In 2015 you sought treatment from a psychiatrist, Dr Teslin Mathew, who diagnosed you with Generalised Anxiety Disorder, and prescribed you medication. However, you only attended a few sessions and ultimately ceased taking the medication you were prescribed, returning to self-medication with illicit substances.

35 You initially reported to Ms Ferrari that you use drugs 'because they are fun', rather than for any self-medicating purposes.[2] However, you also told her that the drugs have helped you alleviate or suppress your negative emotions. You reported to Ms Ferrari that Olanzapine, which you have been taking for the past 10 months while in custody, has a minimal effect on you. You have recently been trialled on antipsychotic medication for your anxiety, which Ms Ferrari considers will likely reduce the intensity of your paranoia and persecutory thinking.

36 You have never been admitted to a psychiatric ward or had contact with mental health services. You have never engaged in counselling, detoxification or rehabilitation for your substance abuse.

37 In addition to depression and anxiety, you described longstanding paranoia to Ms Ferrari but denied any psychotic symptoms such as hallucinations. However, Ms Ferrari notes that you may have suffered a period of delusion prior to your mother's death in 2016.

38 Ms Ferrari considers that your history indicates you have experienced increased paranoia and persecutory delusions in recent years, which are consistent with drug-induced psychosis. She says, however, that your symptoms are transient and resolve during periods where you are compliant with your medication and/or methadone therapy, and therefore when you are using less illicit substances.

39 Ms Ferrari wrote that when you murdered Ms Ashcroft you were experiencing paranoia, persecutory delusions, and hypervigilance to threat, which suggested you were experiencing a substance-induced psychotic episode. She is of the opinion that in the period preceding, and during the time you murdered Ms Ashcroft, you were experiencing a decompensation in your mental state, secondary to your withdrawing from methadone, followed by subsequent abuse of illicit substances to compensate. She said your symptoms were indicative of Substance Induced Psychotic Disorder, with Severe Use Disorder.

40 Ms Ferrari is of the opinion that the psychotic episode would have increased your risk of impulsive and aggressive behaviour, and these symptoms highlight the 'potential causality' between your impaired mental state and the offending.[3] She also notes that your substance abuse at the time you murdered Ms Ashcroft would have further affected your judgement and decision-making, and amplified your risk of impulsive, reactive, aggressive and poorly considered actions.

41 Ms Ferrari's opinion is supported by your Drug Use Disorder Identification Test score of 29 out of 44, which indicates a high risk of drug-related harm at the time of the offending.

42 When Ms Ferrari examined you by video-conference you did not appear to have any current perceptual disturbances such as hallucinations. However, there was evidence of paranoia and persecutory delusions of being followed and monitored.

43 Ms Ferrari classifies your risk of recidivism as moderate to high. However, she says there is no evidence that you hold a criminal belief system. She considers that your lack of prior violent offences or aggressive behaviour indicates that this offending was a 'severe departure from [your] usual character and functioning', which is consistent with a substance-induced psychosis.[4]

44 Ms Ferrari considers that a custodial environment would provide you with a structured environment and a level of routine, which would minimise your exposure to risk factors and could therefore reduce your paranoid and persecutory thinking. Furthermore, she says a custodial environment would reduce the availability of illicit substances, which would limit your substance use and reduce your risk of further psychotic episodes.

45 On the evidence before me, I am satisfied that at the time you killed Ms Ashcroft you were suffering from paranoia, persecutory delusions, hypervigilance to threat, and transient psychosis.

46 I am satisfied that the cause of your psychosis was drug-induced. In addition, I am satisfied that you could not have been aware that taking drugs would cause you to behave as you did. Your actions on this occasion were a severe departure from your usual character.

47 It was submitted by your counsel that the evidence of one of your friends at trial was instructive. In summary, the evidence was that your friend had known you for a very long time and when you previously used ice, you were a very quiet and placid type of person.[5]

48 Your counsel did not submit that your mental state at the time of offending, or now, would raise for consideration any of the principles discussed in R v Verdins.[6] However, your counsel did submit that in the circumstances of this case, your intoxication can be considered mitigatory in respect of your moral culpability.

49 It was submitted on your behalf that your parlous mental state and the commission of the offence arose by combination of drug use and sleep deprivation over a period of days. Your counsel noted that you do not have a history of violent or aggressive conduct when intoxicated. Further, it was submitted that when you have used drugs previously there has been no increase in aggression or violent behaviour, despite your experiences of delusions and/or paranoia. This is also despite your long-standing drug use from an early age which is tied to anxiety, panic attacks and chronic low mood resulting on occasion in suicidal ideation.

50 The prosecution submitted that your drug intoxication does not reduce your moral culpability. Rather, it has a neutral impact on your moral culpability.[7]

51 Notwithstanding your long history of drug usage, you have no significant prior convictions and, in particular, no conviction for any violent offending.

52 In the days before your offending, if you had any appreciation that you may have been in the grip of psychosis, the level of quality of your understanding must be evaluated in the context of those circumstances.

In some circumstances, intoxication (whether by drugs or alcohol) may mitigate the offence, because the offender has by reason of the intoxication acted out of character; in other circumstances, intoxication may aggravate the offence, because of the recklessness with which the offender became intoxicated. Where an offender knows of the effect on themselves of alcohol or drugs, the voluntary ingestion of such substances is an aggravating factor. The critical factor in determining the significance of a drug-induced psychosis for sentencing purposes is the degree of foreknowledge on the part of the offender.[8]

54 While you have a history of mental health issues, you have no history of violence in the context of those mental health issues. Although you were a regular and heavy user of drugs, you were usually placid, quiet, and if anything, withdrawn when under the influence of drugs, and have never shown any propensity towards violence as a result of using drugs or alcohol.

55 Your actions in the early hours of 14 May 2018 were completely out of character for you. I accept that you were not aware that by taking drugs your judgement would be so affected that it would affect your ability to exercise self-control. I accept that your moral culpability is reduced by reason of your mental state at the time of offending.

56 Unfortunately, like many drug users who appear before the courts, you were foolish enough to think that you could use illegal drugs without any harmful consequences.

57 There are a number of matters that are relevant to sentencing you.

58 The Sentencing Act 1991 requires me to have regard to a number of specified matters in sentencing you.

59 One of them is the standard sentence.[9] The standard sentence for murder is 25 years.[10]

60 The 'standard sentence' is defined in the Sentencing Act as 'the sentence for an offence of murder, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness'.[11]

61 I have had regard to the standard sentence for murder as one of the matters to be taken into account in arriving at the appropriate sentence for you.

62 Two matters which I am required to have regard are the nature and gravity of the offence and your moral culpability and degree of responsibility for the offence.[12]

63 Your counsel submitted that your offending lacked many of the aggravating features seen in many murder trials. It was submitted that your offending was not premeditated and was very brief. Your counsel appropriately conceded the seriousness of the offending. It was submitted that, when viewed in isolation of your psychological state at the time, your offending is of much lower objective seriousness than the midrange of seriousness envisaged in the Sentencing Act.[13]

64 The prosecution agreed that you fall to be sentenced below the midrange of seriousness.

65 In this case, given the absence of some of the aggravating features of murder sometimes seen, I consider that the objective features of your offence are such that your crime falls below the midrange of seriousness. Of course, the crime of murder is always serious and yours was a violent and sudden act. Ms Ashcroft was defenceless at the time, measured 150 centimetres tall and weighed 42 kilos. However, the lack of premeditation or planning, the fact that the death was caused by a single stab wound delivered without warning, the absence of a prior threat, and the fact that you already had the knife in your possession, indicate that your offending falls below the midrange of seriousness.

66 When the facts of this case are examined, there are mitigatory circumstances that reduce your moral culpability.

67 Firstly, as I concluded earlier, I consider your moral culpability is reduced by reason of your mental state caused by your drug use at the time of the offending.

68 Secondly, the jury returned a verdict of murder. The law says that a person may be guilty of murder in two ways: they may have intended to kill the victim; or they may have intended to cause them really serious injury.

69 Counsel on your behalf submitted a relevant factor was consideration of whether the court could be satisfied beyond reasonable doubt that you formed an intention to kill, as opposed to an intention to cause really serious injury. Having assessed the evidence that was before the jury, I am not satisfied that you formed an intention to kill Ms Ashcroft, either prior to, or during, the attack. Rather, in my opinion, the jury's verdict is consistent with the finding that you intended to cause her really serious injury.

70 The evidence was that this was a sudden attack which occurred in an instant moment. There was no evidence of premeditation. You had the weapon in your possession before the murder. The death was caused by a single stab wound delivered without warning and absent any prior threat or sustained attack. There was no pre-existing hostility between you and Ms Ashcroft. In fact, you had never met her and did not speak to her during the night. All the evidence suggests that your intention to cause her really serious injury was formed at the time, and not before, the stabbing.

71 I note, however, what the Court of Appeal observed in Walters v The Queen:

The distinction between intent to cause really serious injury ... and intent to kill is a very fine one. That distinction cannot inform the question of moral culpability in all cases.[14]

72 While the distinction does not inform the question of the moral culpability in all cases, in this case, I have regard to the distinction and consider that it is a factor, albeit of little weight, to consider in relation to your moral culpability.

73 Another factor I have had regard to is what, if any, remorse you have shown for your actions.

74 You told Ms Ferrari that you were shocked when you realised you had stabbed Ms Ashcroft and knew immediately that your actions were wrongful. By the time you were arrested, you had engaged in a serious act of self-mutilation. It was submitted on your behalf that the Court can find this behaviour consistent with distress or self-hatred for your actions. Prior to the trial you offered to plead guilty to manslaughter, including on 18 December 2018, the first day of the committal proceeding, and again on 19 March 2019. It is submitted that you have always taken factual and legal responsibility for having caused Ms Ashcroft's death without lawful excuse, but denied that you intended to kill Ms Ashcroft or cause her really serious injury.

75 While you have acknowledged responsibility for causing Ms Ashcroft's death in terms consistent with manslaughter, that is different to acceptance of responsibility to having murdered Ms Ashcroft. On account of you not pleading guilty to the offence of murder, Ms Ashcroft's family were subjected to a trial and there was a cost to the community. Therefore, the weight to be given to your remorse is at the low end.

76 It was submitted by your Counsel that the Court can consider your Major Depressive Disorder as relevant to the 'subjective burden' of imprisonment on you.[15] I do not consider there is any cogent evidence before the Court that the burden of imprisonment will be more onerous for you. If anything, Ms Ferrari considered that a custodial environment may, in fact, be of assistance to you in dealing with your drug addiction and mental health issues. Further, you reported to Ms Ferrari that you feel 'safe' in prison.[16]

77 Finally, the other relevant sentencing principles in this case are just punishment, denunciation, general deterrence, specific deterrence, and protection of the community.

78 Just punishment, general deterrence and denunciation are important factors, due to the inherent seriousness of the offence of murder. The community should have absolute confidence that the courts will severely punish and denounce those who murder another human being. I hardly need to remind you that the lives of Ms Ashcroft's loved ones have been marred forever.

79 While general deterrence, just punishment and denunciation are usually very important considerations in sentencing for murder, the weight to be accorded to those purposes must be reduced in this case because of your psychosis at the time of the offending. A person who is suffering from a psychotic episode at the time of the offence is not as appropriate a vehicle for the expression of general deterrence as one who was in their right mind.[17] However, the community must still understand that behaviour of the type you engaged in is denounced by the courts and will result in a substantial term of imprisonment. This is particularly so, given you voluntarily used drugs, which were the cause of your mental state at the time you murdered Ms Ashcroft.

80 The need for specific deterrence is moderated by the same consideration, as well as the fact that you had a limited prior criminal history, and some regret. Although I have accepted that you were not on notice that drug use would cause you to become violently psychotic, there must still be an element of specific deterrence factored into the sentence on account of your voluntary taking of illicit drugs. The use of illicit drugs generally, and methylamphetamine in particular, is a scourge on the community.

81 Protection of the community is a complicated consideration in this case. While the moral culpability of a person who was psychotic at the time of an offence must be reduced, such a person also presents a potential danger in the future precisely because of their affliction, such that protection of the community might loom larger than otherwise. In the present case, I think there is still a need for some weight to be given to the protection of the community, as there will remain a risk that you will re-offend while there remains a risk of you using illicit drugs, or a risk of you failing to take prescribed medication for your mental health issues. I cannot rule out those risks. As I have already said, it is far from promising that you have not engaged in any psychological treatment and you used drugs because they are 'fun'.[18]

82 It was submitted on your behalf that your prospects of rehabilitation are very good, subject to appropriate psychological or psychiatric treatment and treatment for your drug addiction. I note Ms Ferrari considers that a custodial environment provides you with a level of routine and minimal exposure to substances, which mitigates the risk of you having further episodes of psychosis and limits your substance use.

83 To date, you have not undergone any psychological treatment for your underlying mental health issues and Ms Ferrari considers that this increases the risk of you continuing to self-medicate with illicit substances. Aside from methadone treatment, you reported that you have never engaged in treatment for your substance abuse, such as counselling, detoxification or rehabilitation.

84 Given the long-standing nature of your substance use, your failure to engage in any psychological treatment, and Ms Ferrari's opinion that a custodial environment in your circumstances may be of some benefit, I am guarded about your prospects of rehabilitation.

85 Only a small number of sentences have been passed in respect of murder as a standard sentence offence. The prosecution referred to relevant sentences under the scheme in their written submissions. It may be said that it is still too early to conclude that any meaningful sentence practices have emerged. However, I have considered the circumstances of the other cases and noted the sentences passed. I agree with the prosecution's submissions that the circumstances of each of the cases referred to varied significantly from the circumstances of this case and, as such, have limited utility as comparative cases.

86 If I sentence you to a head sentence of 20 years or more, I am required by the Sentencing Act to fix a non-parole period of at least 70 per cent of the head sentence, unless I consider it in the interests of justice not to do so.[19] The head sentence I impose will be one of 20 years or more.

87 Taking into account all the circumstances of this case, I do not consider that it would be in the interests of justice to fix a non-parole period of less than 70 per cent of the head sentence. The assessment of the length of a non-parole period will depend on all the circumstances of each case. In this case, I will fix as a non-parole period the shortest term of imprisonment which, in my view, would meet the needs of justice in this case.

88 Ben Wardlaw, taking all matters into account and balancing these factors as best as I can, I sentence you to 22 years' imprisonment for the murder of Karen Ashcroft. I fix a period of 17 years during which you will not be eligible to be released on parole.

89 I have taken into account all of the matters I am required to consider under the Sentencing Act, including the fact that this sentence is less than 25 years of imprisonment, being the standard sentence for the offence of murder.[20] By the process of instinctive synthesis, I have arrived at the sentence I have just announced.

90 I declare the period of 658 days, not including today, as your pre-sentence detention and direct that the records of the Court record that this is the time to be reckoned as already served.

[1] Transcript of Proceedings, DPP v Wardlaw (Supreme Court of Victoria, Incerti J, 7 February 2020) 23.31 - 24.4 ('T').

[2] Report of Ms Carla Ferrari dated 4 January 2020 [52].

[5] T14.24-31; Transcript of Proceedings, DPP v Wardlaw (Supreme Court of Victoria, Zammit J, 18 October 2019) 131.26-30.

[6] [2007] VSCA 102; (2007) 16 VR 269.

[8] R v Rees [2011] VSC 523 [34].

[9] Sentencing Act 1991 s 5(2)(ab) ('Sentencing Act').

[10] Ibid s 3(2)(b).

[11] Ibid s 5A(1)(b). The standard sentence provisions were considered for the first time by the Court of Appeal in Brown v The Queen [2019] VSCA 286. See especially [4], [7].

[12] Sentencing Act ss 5(2)(c), (d).

[13] Ibid s 5A(1)(b).

[14] Walters v The Queen [2013] VSCA 164 [9].

[16] Report of Ms Carla Ferrari dated 4 January 2020 [70].

[17] Marks v The Queen [2019] VSCA 253 [67].

[18] Report of Ms Carla Ferrari dated 4 January 2020 [51]-[52].

[19] Sentencing Act ss 5B(4), 11A(4).

[20] Sentencing Act s 5(2).