The Queen v Brew [2013] VSC 131

3 In 2010 your wife of some 30 years formed a relationship with one Shingles whilst you were travelling around Australia by yourself in a motor home. She telephoned you in Perth to tell you that she intended to separate from you and when you enquired whether she was in a new relationship told you that it was none of your business.

4 You returned to Victoria temporarily in late 2010 and sought to re-establish the marital relationship but your wife met you and told you that the marriage was over.

5 After meeting with her you subsequently questioned your wife about her new relationship on the telephone and she again told you it was none of your business.

6 You then returned to Western Australia but came back to Geelong in early June 2011. Once again, you tried to repair your marriage and once again your wife told you that it was over.

7 On 8 July 2011 you asked your wife to lend you $300 so that you could pay for a hire car whilst your van was being repaired. She had previously lent you money and again agreed that she would put $300 in the meter box of your former matrimonial home for you to collect. At the time your son lived at this address and your wife although resident elsewhere called in regularly to collect her mail.

8 On 11 July 2011 at about 11:00 in the morning your wife went to the house with her new partner. He stayed in the car whilst she went to the front door. Prior to putting the money in the meter box she decided to check whether there was any mail in the house. On entering the house she walked down the hallway and heard a noise. She turned to see you running towards her with a knife in your hand. You told her you were going to kill her. You then stabbed her in the groin area causing a deep penetration and as she grappled with you you stabbed her again twice in the chest area. She also suffered a cut to her hand while struggling with you.

9 She called out for help and Shingles came into the house. He found you struggling with your wife on the floor. You were on top of her and had the knife in your hand. He jumped on you and tried to separate you from your wife. He put one finger in your eye socket and you dropped the knife. Shingles told your wife to get rid of the knife. She picked it up and ran out of the house and called 000 for help.

10 In the meantime you continued to struggle with Shingles. You threw a number of punches at him and struck him in the left eye causing pain and bleeding. He then grabbed hold of you and you struggled with him. You picked up a knife from a knife block and swung it at him. He grabbed your wrist and the knife fell to the floor. He then grabbed you from behind and steered you outside. You continued struggling in the front yard and abused and threatened Shingles saying you would get both Shingles and your wife next time. In the struggle with your wife and Shingles you had received an injury to the right eye and a cut to your right hand.

11 When police arrived they handcuffed and arrested you. Whilst they were doing this, you spat in the direction of Shingles and called him a 'fucking dog'. When a police officer asked you where the knife was, you replied: 'You going and fucking find it. Fucking slut is she dead?'

12 As a result of your viciously cowardly attack, your wife suffered a six centimetre stab wound to the lower stomach area, two and three centimetre lacerations to her chest, a small deep laceration to her left hand and a smaller superficial wound to her left wrist.

13 The more serious injuries required surgical repair. The surgeon said of the stab wound to the abdomen: 'This was a significant stab injury with intra peritoneal laceration of the left bowel, [and] superficial laceration of the uterus and left ovary.' It is plain the injury that you inflicted was potentially fatal.

14 Shingles suffered injury in the area of the left eye and other superficial injuries.

15 There are a number of aggravating features in respect of the offence against your former wife:

• your attack upon her was unprovoked by any conduct that the ordinary person could regard as justifying violence;

• the attack was premeditated, you admit having purchased a knife from a camping shop with a view to killing both yourself and your wife and then to have lain in wait for her knowing she would come to the house;

• your attack was made with a knife when she was unarmed;

• the attack was made in the former matrimonial home which your former wife was attending in order to lend you money;

• the attack was made by way of a terrifying sudden assault accompanied by threats to kill;

• the injuries were severe with ongoing physical and emotional consequences;

• the assault involved a series of wounds inflicted in the course of a struggle in which you persisted despite the fact that you must have been aware the initial stabbing had seriously wounded your wife.

16 In turn the violence inflicted upon Shingles was:

• inflicted when he was acting in legitimate self-defence of your wife;

• you had already inflicted serious injury upon her;

• was again accompanied by abuse and death threats;

• was again accompanied by the attempted use of a knife; and

17 Victim impact statements from each of your victims confirm that your former wife continues to suffer from the physical consequences of the injuries to her hand and stomach. In addition, they eloquently express the emotional trauma you inflicted and the consequent fear and anxiety which have resulted.

18 I turn then to your personal circumstances. You are a 58 year old man who grew up in Geelong as the youngest of five children. Your parents' marriage was a troubled one and it seems you experienced considerable anxiety in your formative years, especially after your father suffered a heart attack.

19 You left school after completing Year 11 and were initially directionless. You then worked in a variety of unskilled jobs until joining the RAAF in 1982 as an armament fitter. You were discharged on psychological grounds in 1987 suffering from anxiety and depression. After working in other employment for relatively short periods you re-trained and then commenced work as a personal carer between 1993 and 2004. In 2004 you were dismissed from your carer's job and subsequently suffered a heart attack. You have been on a Gold Card disability pension from the Department of Defence since then.

20 You met your former wife when you were 23 and you have three adult children. It seems that you were highly dependent upon your wife and that you did not readily form other positive personal relationships. The relationship with your wife, which was already problematic, broke down after you ceased work in 2004 and this breakdown came to a head at Christmas 2009. In 2010 at your wife's suggestion, you left home to travel around Australia in a motor home. In your absence, she formed a new relationship but you remained wedded to the hope that you would be able to re-establish your marriage.

21 Upon your plea the following matters were emphasised:

(b) your prior working history and relatively mature age;

(c) the circumstances of underlying depression and marital failure in which the offending occurred, not as excusing your conduct but as explanatory of its cause;

(e) the significant health problems both physical and mental which you now face.

22 I accept that your pleas of guilty must be given due weight and that, although they were not given at the earliest opportunity, the delay occurred in part because of the possibility that the Crown would accept a plea to a lesser offence than attempted murder for compassionate reasons. In the event your pleas must be given substantial weight first because you have pleaded to an offence in respect of which proof of the mental element is notoriously difficult and secondly because you have spared your family the trauma of a trial. Thirdly, your pleas have had utilitarian value to the community.

23 I also accept that you were in steady employment for the greater part of your adult life and that you have limited prior convictions. Although one of them is for assault neither involved serious violence. You have never previously served a sentence of imprisonment.

24 I turn then to the evidence as to your mental state. A report from your general practitioner indicates that you have been treated with medication for depression since 1990. A further report from Mr Romanic, a psychologist, indicates that he saw you on eight occasions on referral from your general practitioner between November 1997 and 1998 with the assistance of Department of Veterans' Affairs' funding. He noted that you had seen a number of psychologists and a psychiatrist at that time. He states of that time:

His main presenting problems related to relationship issues with his wife, children and extended family. He presented as emotionally labile and vulnerable with regard to the conventional demands of relationships. These problems were in my view consequential [to] his cognitive style (inwardly looking and preoccupied, rigid attributional processes and global rather than specific attributions about events that concerned him) and low levels of emotional self-regulation when anxious or stressed, with associated reactive behaviour. Because of the foregoing there was poor problem solving and decision making particularly with regard to interpersonal matters. Mr Brew's interpersonal skill level fluctuated significantly depending on his moods, anxiety states and the level of demand on him as opposed to nurturing consideration of him. He had regular suicidal ideation and at least one attempt involving subsequent treatment at the Psychiatric service of Geelong Hospital.[1]

25 Mr Romanic diagnosed co-morbid depression and anxiety. I interpolate that this report together with the report from your general practitioner shows that your depression and problems in your marriage were very longstanding and had required medical intervention prior to the ultimate separation from your wife.

26 Ms Lechner, who saw you for the purposes of forming an opinion for use upon the plea hearing, expresses the view that you offended when you 'decompensated' in reaction to the end of your marriage. She says in part:

At interview Mr. Brew presents as an emotionally intense man. Whilst able to reflect on the impact that his behaviour has on both himself and others, he is easily overwhelmed by emotional factors that undermine his judgement. He tends to be egocentric in his thinking style. Mr. Brew presents with symptoms of Major Depression, confirmed by a score at the top end of the 'moderate' range on the Beck Depression Inventory. He also exhibits symptoms and behaviours consistent with a Borderline Personality Disorder with dependent traits.

Mr. Brew expresses regret and shame for his actions. He describes his offending as 'evil' and himself as 'monstrous'. His offending occurred in the context of depression, alcohol intoxication and a strong sense of abandonment, this heightening his fear of being alone.[2]

27 Upon your plea, your counsel told the Court that you had drunk a bottle and a half of wine and some spirits on the day of the offence. There may be some exaggeration in this but I accept it is probable you had consumed alcohol. As I have already indicated, your counsel also conceded that your offending was premeditated in that you had purchased a knife with a view to killing both yourself and your wife and then lay in wait for her.

28 I accept the view of Ms Lechner that you acted as you did in the context of reaction to the breakdown of a marriage in which you were dependent on your wife and that you were suffering from longstanding depression and anxiety when you did so.

29 I also accept that you have expressed regret and shame for your actions. I note specifically that not only have you pleaded guilty, but that you have acknowledged matters through your counsel which are adverse to you such as details of your premeditation (and which go beyond the Crown evidence). Nevertheless I am not fully persuaded that you have appreciated the true gravity of your actions. Despite Ms Lechner's view that you have expressed appropriate victim empathy, it seems to me that there is a strong egocentric element in the way you have described your offending and that you still have not fully faced up to the fact that you are not a victim but the offender. I thus accept you are remorseful but not in a fully insightful sense.

30 This said, I accept your counsel's submission that your longstanding underlying depressive condition should be regarded as reducing your moral culpability to some degree on the basis that it is probable it affected your capacity to make calm and rational judgments about your actions.[3] I also accept that your depressive condition has materially added to the burden of the extended period of time you have already spent in custody and will materially add to the burden of future imprisonment upon you.[4] You have spent the bulk of your time in a mental health unit and remain on medication for depression. You receive monthly visits from your children but otherwise I accept that your life is a grim one. Each of these considerations must moderate the sentence I might otherwise impose to some extent.

31 I turn then to the question of your physical health.

32 You have a history of Hepatitis B and C and were diagnosed in August 2011 with follicular lymphoma stage IV, grade 2. CT investigations showed cervical mediastinal, abdominal and inguinal lymphadenopathy with the greatest focus of disease in the abdomen. Inguinal lymph node biopsy confirmed grade 2 follicular lymphoma and bone marrow biopsies showed marrow involvement.

33 You were initially treated with an antiviral named Entacavir in early 2012 and subsequently have been treated with chemotherapy. A report from Dr Filshie, a haematologist at St Vincent's Hospital, summarises the situation as follows:

Follicular lymphoma is a type of cancer affecting lymph glands and other tissues containing lymphocytes. Except when the disease is localised, it is best regarded as an incurable disease. The overall prognosis is highly variable and has improved in recent years with advances in therapy. Because the disease is incurable and may grow slowly patients are usually treated when the disease is causing problems that are expected to be improved by having therapy. The prognosis can be defined more accurately by tests performed at the time of diagnosis and also by monitoring the results of therapy. Having said that there is considerable variability and patients with this disease can live for more than 20 years. ...

There is a prognostic scoring system in follicular lymphoma which incorporates several factors and defines people into risk groups. In Douglas's case the 'FLIPI score' is high risk which equates to an estimated 35% survival at 10 years. It must be stressed that this is an average and cannot provide an accurate prediction of lifespan in any individual patient. However, I think given his age, it seems likely that this disease will shorten his life expectancy.[5]

34 A further report[6] explains that the prognostic risk estimate means that around one-third of patients with a risk score similar to yours will die within three years and another one-third between three and 10 years, and the remaining one-third after more than 10 years. Given your age it is very likely, in Dr Filshie's view, that you will eventually die from lymphoma or a related problem.

35 In the most recent report from Dr Filshie of March this year, he advises that you have completed two further cycles of chemotherapy making a total of six cycles. A repeat CT scan after treatment showed additional improvement. He says that the most abnormal finding upon investigation has always been the size of the spleen and this has improved considerably and is now only slightly larger than normal at 14 centimetres. He says it is not certain whether this represents a complete remission or not. He says it may still get a little smaller without any extra therapy.

36 He concludes that it is inevitable that you will require further treatment in the future but that at present it is not possible to say when that will be. The recent improvement following the chemotherapy is encouraging and means that it is possible that you may not need additional chemotherapy for several years. He cannot add much to his original comments about overall prognosis. He also notes that you have been treated for a Hepatitis B infection but cannot comment on whether this has also had an effect on your life expectancy.

37 I accept that your ongoing medical condition is relevant to the sentence I must impose. It will in all probability render the burden of imprisonment more difficult and unpleasant than would otherwise be the case. Your probable life expectancy and the relative burden of imprisonment in terms of your future loss of enjoyment of life as a whole should also be taken into account.

38 This said the Court cannot take the position that ill health or limited life expectancy exonerates an offender. It remains necessary to impose a sentence of imprisonment which reflects among other things the gravity of your offending and the need for both general and specific deterrence.

39 Parliament has recognised the gravity of the offence of attempted murder by increasing the penalty on 20 April 1992 from a maximum of 15 years to 20 years' imprisonment and further increasing it on 1 September 1997 to a maximum of 25 years' imprisonment.[7]

40 The offence of murder strikes against the core value of our society namely the sanctity of human life. By your plea, you have acknowledged that you attacked your former wife with murderous intent meaning to kill her and as I have said your conduct was accompanied by a number of aggravating factors including premeditation and the infliction of very serious injuries. This was a very serious instance of attempted murder.

41 Your offending raises serious issues of both general and specific deterrence. As to the first consideration, society cannot tolerate the infliction of domestic violence in situations of marital breakdown. However badly you felt about the loss of your relationship with your wife, conduct of this kind simply cannot be tolerated or condoned in any way. Marriage is a consensual arrangement. It does not give one partner the right to possess and deal with the other partner as they see fit. The fact that you may have felt yourself to be a victim does not in any way justify the cowardly resort by you to armed violence against others. Those who are tempted to engage in acts of violent spousal revenge must know that the penalty will be a heavy one.

42 The use of a knife also raises a factor requiring general deterrence. The public must know that if they resort to stabbing with a weapon the offending will result in serious punishment.

43 In turn the threats of further violence you made at the scene of the offences make it clear that the Court must bring home to you the serious consequences of actions of the kind you indulged in and deter you from any further conduct of this kind. You will have to learn that in the real world you cannot act as you did with self-centred impunity. I do not find your counsel's assurance that you now accept the relationship is over to be sufficient.

44 Taking into account each of the above matters, including the matters which Mr Tiwana eloquently urged in mitigation of penalty, I must ultimately fix a sentence which is just in all the circumstances of your case.

45 Mr Brew, on count 1 I sentence you to 10 years' imprisonment and on count 2 I sentence you to 12 months' imprisonment. I direct that six months of the sentence on count 2 be served concurrently with the sentence imposed in respect of count 1. The total effective sentence is thus 10 ½ years. I fix a minimum non-parole period of eight years.

46 I declare pursuant to s 6AAA of the Sentencing Act 1991 that but for your pleas of guilty I would have fixed a total effective sentence of 14 years' imprisonment with a non-parole period of 11 ½ years.

47 I declare pursuant to s 18(4) of the Sentencing Act 1991 that you have already served 624 days in custody and I direct that such declaration be entered in the records of the Court. I have also made the forensic sample order and disposal order sought by the Crown.

[1] Report of Marcus Romanic, Psychologist, dated 22 January 2013.

[2] Report of Ms Carla Lechner, Clinical & Forensic Psychologist, dated 9 March 2013.

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

[5] Letter dated 22 August 2012 from Dr Robin Filshie, Haematologist, St Vincent's Hospital.

[7] Cf R v Boaza [1999] VSCA 126; Hudson v R [2010] VSCA 332.