The Queen v Donker [2018] VSC 210

1 In the early-1990s, singer-songwriter Archie Roach released the mournful 'Walking into Doors'. The song begins in this way:

You say you're a man, you understand, but you don't

The crazy things we put her through, it isn't right

2 Sadly, those thoughts are as apposite today as they were over twenty-five years ago. Yet they do not resonate deeply enough with some, it seems. For it cannot be denied that domestic violence still remains a shameful scourge in our community.

3 This case involves an extreme example of a relationship afflicted by domestic violence and its destructive impact on those touched by the relationship. Sometimes, it is all just too much to bear for the victim of domestic violence. Sometimes, the response to the umpteenth assault is not just another excuse for the inexcusable, such as a cover story about walking into doors. Instead, sometimes, it is all but inevitable that years of abuse will produce an outburst of rage and violence by the victim. And, as we shall see, sometimes, there can be unexpected consequences of the most tragic kind for all concerned.

4 The relationship between Jessie Donker and Richard Powell started as most relationships do, with mutual love and respect. As Ms Donker has said, Mr Powell was "really nice".[2] The couple were blessed with the joy of children. Mr Powell also treated Ms Donker's child from a previous relationship as if he were his own. It appears that Mr Powell was a good man - at least when off hard drugs.

5 But, from a very early stage, the relationship became volatile, even toxic. Oftentimes, Mr Powell, fuelled by ice, would resort to serious violence in the course of arguments. He was often controlling and suspicious as well. He threatened to kill Ms Donker or himself several times. Even during Ms Donker's first pregnancy, Mr Powell would grab her around the throat and push her about. The police were called on occasions. Usually, however, as many victims of domestic violence do, Ms Donker would devise a thin cover story for what had happened, or understate things, or decline to make a statement, or simply ask that her abuser not be charged. After all, she still loved him. He was the father of two of her children. And she believed he loved her.

6 To be sure, Ms Donker was no shrinking violet herself. She would have her say, and a good deal more too. Indeed, on occasions, she would even respond with her own violence, such as it was. But she was no match for Mr Powell. Worse than that, her spirited, but comparatively feeble, attempts to defend herself, or to get her own back, would just make him angrier and more violent. Realistically, she could never win.[3]

7 Ms Donker's only real and sustained respite came when Mr Powell was 'away' for about fifteen months. This was during the period from August 2014 to November 2015, when he was in prison for trafficking in ice, possession of ecstasy and possession of guns and prohibited weapons.[4] By the time of his incarceration, the couple had been abusing illicit drugs heavily, had been fighting like cat and dog, and had lost the care of their children. Ms Donker, however, was determined to change things for the better. And, when Mr Powell was gone, she did just that. She stopped abusing drugs completely. She got a job cleaning toilets. Then she got a better job, as an administrative assistant in an accounting firm, where she did well. At the urging of a colleague,[5] she took up playing social netball. She found a house to rent. And, mercifully, she had her children returned to her. Her life had improved immeasurably: it was stable, happy, and free of violence. Justifiably, she felt good about herself and what she had achieved.

8 For the first few months after Mr Powell's release from prison, things continued to go pretty well too. While she had not intended to have any more children, Ms Donker soon became pregnant with their second child (her third). And Mr Powell remained drug-free, at least initially. He was unemployed, but Ms Donker would take him to his parole appointments, and she continued with her work.

9 But the good times did not last. Sadly, when Mr Powell began to take ice again, his violent streak returned. He became more jealous and controlling, and would even stop Ms Donker from going to work. Eventually, she lost her job in May 2016. The dynamic between her colleague and netball team-mate altered upon Mr Powell's return, and their friendship ultimately ceased as a result of his controlling behaviour. Their second child was born eight weeks premature in July 2016. Without Ms Donker's income, they lost their rental home in November 2016. They had emergency housing for a short period, but, ultimately, Ms Donker was forced to live in her car. The couple's children were taken into State care and placed with Mr Powell's parents. Ms Donker's first child was placed with his material grandmother. Ms Donker, whose access to the children was unrestricted, would sleep in her car near the home of Mr Powell's parents in Sunbury so that she could visit the children more readily during the day. Mr Powell, whose access had to be supervised, lived with friends or sometimes stayed with his parents. On occasions, he would sleep with Ms Donker in her car. But he was still abusive, violent and suspicious, often accusing her of having affairs. Ms Donker also smoked ice with him a couple of times. She was at a very low ebb. All of her hard-won gains were gone. As I have said, pitifully, she had even lost the care of her five-month-old baby.

10 The foregoing is a brief summary of the background to the events that bring Ms Donker to this Court, to which I now turn.

11 But, first, it is necessary that I refer to the events of the evening of 7 January 2017 and into the early hours of the next morning.

12 Early that evening, Ms Donker and Mr Powell arrived at the home of Mr Powell's parents to return the children. It had been a hot day. They had spent the afternoon together, as a family, at the home of Mr Powell's sister, who had a swimming pool. It was a relatively convivial event. Things seemed to be looking up, if only a little bit.

13 But any such hope was dashed yet again by the next turn of events. Ms Donker took the children inside the house. Mr Powell had to wait outside in the car, as his father had banned him from coming inside a few days earlier. After a little while, petulantly, he texted his mother saying that he was leaving because he did not want to wait outside in the car in the heat while Ms Donker was inside an air-conditioned house. Mrs Powell conveyed the message to Ms Donker, who muttered something under her breath and dutifully headed outside with the baby.

14 She put the baby in his safety seat and then went to the rear of the car to put his pram in as well. As she did so, Mr Powell surged the car backwards towards Ms Donker. A short while later, after she got into the car, Mr Powell punched her to the chest. She hit him back. He then started choking her to the point where she could not breathe, so she responded by hitting him with something - probably a torch she kept in the car. He then punched her in the face, and just kept on punching. As usual, he had by far the better of the fight. He demanded that she drive away, so she did. But she could not see properly because blood was running into her eye from the gash that had opened up on her eyebrow. She stopped the car, took her baby out of his seat and returned him to Mr Powell's parents. Mr Powell left on foot. His parents saw the injury above Ms Donker's eye. Neighbours had witnessed some of the incident and called police.

15 When the police arrived, Ms Donker told them that she and Mr Powell had fought, but she refused to make a statement or allow her injuries to be photographed. She also declined medical assistance. She might as well have said that she had walked into a door. As she was to tell police the next day, she still loved him and did not want him to be sent back to prison.

16 In any event, Ms Donker left the premises and ultimately drove her car to a kindergarten carpark in Sunbury, where she slept for the night. This had become one of her regular overnight haunts, because it was relatively close to her children.

17 Meanwhile, Matthew Powell, brother of Richard, noticed a post made subsequently on Richard's Facebook page. It read, "Shit got that bad and isn't getting any better. Time to get the fuck out of Dodge." Matthew took this to mean that Richard wanted to harm himself. (I interpolate that Ms Donker confirms that Richard had a history of attempting suicide, including an attempt to hang himself and another by slashing his own wrists.[6]) Concerned, Matthew contacted his brother. They then exchanged messages during which, in Matthew's view, Richard expressed anger at their parents and Ms Donker. Alarmingly, he also accused Matthew of sleeping with Ms Donker. At around midnight, Matthew drove to a street in Sunbury and picked up Richard, who was just walking along the road. He was, said Matthew, "pretty wound up" about the earlier incident and believed that his parents and Ms Donker had made statements to police. They went to a friend's house, sat in a spa, had "a few drinks and bongs" and spoke for at least four hours. They left at about 5:00 a.m. (I pause to note that later testing of Richard's blood and urine indicated the presence of ice - i.e. methamphetamine - and cannabis at the time of the post mortem. It is not clear when he took the ice.)

18 Richard declined Matthew's invitation to sleep at his friend's house. So, instead, Matthew drove his brother to some places where he thought Ms Donker might be. But they could not find her. Eventually, Matthew dropped Richard off in Dalkeith Circuit, in Sunbury, which is about twenty minutes' walk from the kindergarten carpark where Ms Donker was sleeping. Matthew was not sure why his brother wanted to be dropped there in particular, but it seems that Richard told him he was going to sleep at the house of a friend in the vicinity. To Matthew's perception, Richard appeared to be much calmer than he was earlier. Matthew then headed home to his parents' house, and arrived there at 5:23 a.m.

The events at the kindergarten carpark on 8 January 2017

19 I turn now to the tragic events at the kindergarten carpark in the early hours of 8 January 2017.

20 At around 6:00 a.m., Richard Powell arrived at the carpark. The timing suggests he must have headed there pretty soon after he was dropped off by his brother.

21 Ms Donker had the rear seats folded down and was asleep in the back of her car. It was hot. Her window was wound down. Mr Powell opened the rear passenger door, grabbed Ms Donker by the hair, screamed abuse at her, and dragged her out of the car. He hit her in the face again. They argued with each other. He claimed she had stolen his family. He called her a slut. And he said other things that, in her view, he knew would hurt her.

22 While the next sequence of events is not entirely clear, it is accepted by Mr Tiwana, who appeared for Ms Donker on the plea, that, somehow, she got back into the car and into the driver's seat. As Mr Tiwana put it, it was at that stage that "her rage, the provocation, the torment that she had been suffering, not only at that moment [and] the night before, but [also] over many years, surfaced in a most dramatic manner". Also, as Ms Donker admitted to forensic psychologist Pamela Matthews earlier this year, "It was all too much for me" and "I'd had enough".[7]

23 Thus, after years of Mr Powell's violence; after numerous unsuccessful attempts at defending herself; after losing her recently hard-won gains - including her home, her job and, most importantly, the care of her children; after being forced to live in a car; after being choked and having her eyebrow split by him again the night before; after being viciously dragged out of her car by the hair as she tried to sleep; after all of that, Ms Donker could take no more and finally snapped.

24 Enraged, she drove her car at Mr Powell at least four times in the kindergarten carpark. But she did not hit him with the car. Nor did she intend to do so. Instead, it is apparent that Ms Donker was doing no more than trying to taunt and frighten him in the way she felt she had been treated for years.

25 The four instances of driving about which I am satisfied are these. On one occasion, she accelerated the car, mounted the kerb and then braked before crashing into a tree behind which Mr Powell was standing. It appears that a similar manoeuvre was conducted again.[8]

26 Next, after Mr Powell had moved along the fence line, Ms Donker reversed onto the bitumen and then drove forwards in his direction, narrowly missing him, and instead mounted the kerb and struck a wall, some rubbish bins and a pole, which bent at an angle of about 45 degrees.

27 On the final and fatal occasion, having reversed away from the footpath, Ms Donker tried to manoeuvre the car so as to mount the kerb back towards the area of the first incident and drive along the footpath between the fence on her right and a pole containing a parking sign to her left. At this point, Mr Powell had moved again, this time so as to be about two metres behind the parking sign, but off the footpath and just outside the trajectory of the car. Again, intending not to hit him but only to frighten, as Ms Donker tried to squeeze the car between the parking sign and the fence, the left front corner of the car struck the pole which, freakishly, in my view, bent so far and at such an angle that the edge of the sign struck Mr Powell on the head, cleaving his skull as if hit by an axe. He was killed instantly.

28 Ms Donker kept driving along the footpath, with the right of her car scraping the fence, across the nature strip and onto the street on the other side, where she stopped, got out of the car and ran over to Mr Powell to help him. She screamed at the horror of what she saw. While there was nothing medically that could be done to help him, she nevertheless immediately rang triple-zero, still screaming, "Please help me, help me, help me, help me, help me." Neighbours also called triple-zero.

29 Ms Donker then got back into her car and drove to the home of Mr Powell's parents. She arrived at 6:08 a.m. Visibly distressed, she screamed to his parents, "I've killed him. I've killed him." She went on to say that Mr Powell had jumped in front of the car. She now admits that that was false.

30 Mr Powell's brother Matthew and their father Peter Powell immediately rushed to the kindergarten carpark. In an act that must have taken immense courage, Peter sought to give his son some dignity in death by taking Matthew's shirt and placing it over Richard's face. Also, wisely and sensitively, in my view, Peter refused to allow his wife Antonia to see their son's body in that grisly state. Instead, he intercepted her on the way to the scene and took her straight home.

31 Meanwhile, back at the Powell family's home, a neighbour, who had also seen the aftermath at the kindergarten carpark, noticed what appeared to him to be a "new shiner" to Ms Donker's right eye. He also suggested to her that she should leave. It was now about 6:28 a.m.

32 Ms Donker, still in a state of shock, took the neighbourly advice and headed off on foot with her baby in her arms to her sister's home, which was nearby. When she arrived, she told her sister that she had killed Mr Powell. She also said that she loved him. After Ms Donker's brother-in-law told her that the police had been called, she thanked him.

33 The police arrived soon after and arrested Ms Donker. Police photographs taken at that time and later that morning show the cut to Ms Donker's right eyebrow and a swollen and bruised right eye. A medical examination conducted soon after the arrest revealed not only the cut, swelling and bruising around Ms Donker's eye but also redness and tenderness to the right side of her neck and bruising on the back of her right upper arm, the back of her left hand, her upper left arm, her lower left forearm and above each knee.

34 When interviewed by police, Ms Donker explained some of the history of her relationship with Mr Powell. She gave an account of the assault the night before, of being dragged out of the car and assaulted at the kindergarten that morning,[9] and of having no intention of hurting Mr Powell, which I have accepted. She also repeated the claim that he jumped in front of the car, which, as I have said, she now accepts is false. Instead, based on the prosecution opening, the evidence in the brief, Ms Donker's admissions to the psychologist and Mr Tiwana's concessions, I am satisfied that the critical events occurred as I have described them earlier. Ms Donker also said that she should have left Mr Powell a long time ago, but she "loved him and ... couldn't".

35 An autopsy conducted on Mr Powell on 9 January 2017 confirmed that the injuries to his head region were not only immediately fatal but were also consistent with being struck by an edged object, such as the edge of the parking sign.

36 He had also suffered a fracture and a skin laceration to his right forearm. As explained by Mr Rochford QC, who appeared for the Director, the medical evidence is such that these injuries may have been sustained in an attempt to ward off the impact of the parking sign to the head.

37 Mr Powell also suffered a patterned abrasion on his left chest wall. While the abrasion had features consistent with the impact of a tyre, this is inconclusive. No comparison was made with the tyres on Ms Donker's car. Quite properly, Mr Rochford did not urge any finding adverse to Ms Donker on this point, and I make none.

38 As I indicated earlier, toxicological analysis of Mr Powell's blood and urine taken at the time of the post mortem indicated the presence of methamphetamine (or ice) and cannabis.

39 Toxicological analysis of Ms Donker's blood taken at the time of her police interview revealed no alcohol or drugs in her system.

40 Following her interview with police, Ms Donker was charged with murder. She has remained in custody ever since.

41 However, prior to the committal hearing, Ms Donker offered to plead guilty to the lesser charge of manslaughter instead, which the Director accepted. Ms Donker honoured that plea agreement by pleading guilty to manslaughter when arraigned in this Court. Thus, a contested committal hearing and a contested trial have been avoided.

42 Having considered the evidence and the parties' submissions, it now falls to this Court to impose sentence on her for that crime.

43 At this point, I turn to the victim impact statements, which form part of the materials to which I must have regard in sentencing.

44 Members of Mr Powell's family filed six victim impact statements. Four were read to the Court by Mr Rochford and one was read by its author. In particular, the statements were made by Mr Powell's parents Peter and Antonia; his siblings Matthew, Rebecca and Michael; and his niece Chloe. I have read all of the statements again in chambers.

45 Understandably, Peter Powell cannot remove from his mind the image of his son's horrific injuries. It is an image that causes him intense grief, as does the constant feeling of loss. He regularly sees a psychologist to deal with the sadness, pain and loss. Antonia Powell explains how her son's sudden and horrendous death has plunged her into the most unimaginable nightmare from which she struggles to awaken. It distresses her that she was unable to see him to say goodbye. For both parents, that their son died so close to their home provides another constant reminder of their pain and anguish when they pass the kindergarten.

46 Matthew Powell, who is the eldest of the four children, has feelings of anger, sadness, pain and helplessness most of the time. He has lost not only a brother but also his best friend and confidant.

47 Rebecca Belleville, who is the second child in the family, recalls hoping that there had been a mistake when she was told of her brother's death. Like her mother, the loss of a chance to say goodbye because of the nature of his injuries causes her a great deal of anguish. Rebecca and Richard shared a birthday, which only serves to reinforce her terrible pain and sadness.

48 Michael Powell, the youngest in the family, continues to have nightmares about the day his brother died. He finds it distressing to see his parents so sad. Initially, he had trouble leaving his own house. He still has trouble sleeping. His teaching studies were interrupted by the grief he suffered and his belief that he needed to assist his parents with the care of Richard's children.

49 Chloe Belleville (daughter of Rebecca) feels a void in her life that cannot be filled. She constantly relives the moment of her uncle's death. She cannot take the usual route to her grandparents' house, as it passes the kindergarten, and is too distressing.

50 The victim impact statements are powerful and moving documents. They reveal the terrible sense of loss and sadness suffered by all family members as a result of their loved one's death. In so far as it is permissible to do so, I have had regard to their contents in considering sentence.

51 I wish to add this, however. There is, of course, nothing this Court can say or do that will bring back Mr Powell, or heal his family's grief and pain. The sentence I must impose is not a reflection of the worth of Mr Powell's life - as if anything so precious could ever be valued in any event. Rather, the sentence I must impose is a reflection of a large number of factors which judges are required by law to take into account, only one of which is the impact on victims.

Nature and gravity of offence; offender's culpability and degree of responsibility

52 I turn now to an assessment of the nature and gravity of the offence, and Ms Donker's culpability and degree of responsibility for the offence.

53 Manslaughter is a common law offence, the maximum penalty for which is set by statute at 20 years' imprisonment.[10]

54 The offence is serious, by definition. The life of a relatively young man, aged only 32, has been lost as a result of unlawful and dangerous behaviour involving violence. Further, when a child pre-deceases his parents, it reverses the natural order of things and is all the more difficult to comprehend.

55 The form of manslaughter relied on is manslaughter by an unlawful and dangerous act. This means that, while Ms Donker did not have an intention to kill or cause really serious injury (or recklessness thereto) when she drove in the direction of Mr Powell, for otherwise it would be murder, her plea of guilty accepts that her conduct did involve an unlawful assault - in that her driving was intended to cause, and did cause, apprehension in him that he would be struck by the car - and that a reasonable person in her position would have realised that, in driving as she did, she was exposing Mr Powell to an appreciable risk of serious injury.

56 While manslaughter is one of the more serious crimes known to the law, the circumstances of its commission, and the resulting sentences, vary widely. Usually, voluntary manslaughter (which no longer exists in Victoria since the abolition of provocation as a defence to murder) is the category regarded as the most serious; then manslaughter by unlawful and dangerous act is usually less serious; and then manslaughter by criminal negligence is usually less serious again. Often, there will be a lower level of moral culpability in the offender who killed by criminal negligence than the one who killed by an unlawful and dangerous act. This is because, in most cases of criminal negligence, there will be no intent on the part of the offender to cause any harm to the victim, whereas such an intention usually will be present in cases of manslaughter by an unlawful and dangerous act. But there is no inflexible rule. Some instances of manslaughter by unlawful and dangerous act will not involve an intention to cause any harm or injury or otherwise will be less serious, and result in lesser sentences, than instances of manslaughter by criminal negligence. Each case must turn upon its own particular facts.[11]

57 That there can be no inflexible rule is illustrated by the circumstances of this case. Thus, on the one hand, this particular offence of manslaughter had some serious features, including the following.

58 First, Ms Donker used a potentially dangerous weapon - namely, a car - to drive in Mr Powell's direction and near him.

59 Second, she did this with the intention of frightening - and taunting - him.

60 Third, the fatal act was preceded by at least three acts of a similar type. Thus, such risk of harm as there might have been was courted not just once but at least four times.

61 Fourth, Ms Donker's response to Mr Powell's violent and provocative behaviour was excessive, unlawful and dangerous. While her complete loss of self-control was understandable, and is a matter about which I shall have a good deal more to say shortly, Ms Donker's plea of guilty necessarily admits that her conduct in driving at and so close to him, with the intention of frightening him, was still excessive and unlawful, and was sufficiently objectively risk-laden as to be dangerous.

62 On the other hand, there are several features of the offence which tend powerfully in the other direction.

63 First, as I have already indicated, I am satisfied that Ms Donker did not intend to strike Mr Powell with the car. Rather, she was doing no more than trying to taunt and frighten him in the way she felt she had been treated for years.

64 Second, and moreover, I am satisfied that the particular mechanism by which Mr Powell was struck and killed was neither foreseen by Ms Donker nor reasonably foreseeable. In my view, while the striking of the pole with the left of the car may have been foreseeable, that it would in consequence bend at the precise angles - both on the vertical and horizontal planes - necessary to strike Mr Powell at all, who was standing at least two metres away and off to an angle so as not to be in the car's direct path, let alone strike his head, cleave it with the sharp edge of the sign, and then kill, or even injure him in such a way, was all completely unexpected and unforeseeable. As I have said, this aspect of the event was just a freakish accident.

65 Third, as I have said, Mr Powell had behaved in an aggressive and violent manner only moments earlier, as well as on the night before and on numerous occasions over the years of their relationship. In those circumstances, it was reasonable for Ms Donker to believe that he may have assaulted her yet again. While her response was unnecessary and excessive - she could have just driven away - an aggressive response of some description was not without substantial foundation or justification. After all, he had dragged her out of the car by her hair already and had assaulted her again. His behaviour made it plain that he was very angry at her and that he was intent upon violence. Attempting to reason with him, to have him leave, or to call the police is likely to have done no good - or, at the very least, it was open to her to believe that.[12]

66 Fourth, Ms Donker was simply minding her own business, sleeping for goodness's sake, when Mr Powell invaded the sanctity of her private space and behaved in an appalling manner. Ms Donker did not go looking for trouble. Rather, the trouble came to her.

67 Fifth, there was no meaningful pre-meditation before the instances of aggressive driving in which she engaged. Instead, Ms Donker lost her self-control and acted as she did only after she was provoked by Mr Powell's violent behaviour. True it is that she could have desisted after any one of the acts of driving prior to the fatal act. But, to speak of pre-meditation in the present case is really a misnomer and is to ignore the reality of the circumstances which faced her.

68 Finally, while the law in this State does not excuse criminal guilt for an act causing death merely because it was provoked,[13] that there was a loss of self-control in the face of provocation, and that such provocation was capable of causing an ordinary person to lose self-control, is a matter that is capable of bearing upon sentence for manslaughter, principally by reducing the offender's moral culpability.[14] And, for the following reasons, I am satisfied that Ms Donker was gravely provoked by Mr Powell; that she did completely lose her self-control; that the provocation offered was capable of causing an ordinary person, fixed with Ms Donker's history of exposure to domestic violence by Mr Powell, to lose self-control and act as she did; and that her moral culpability is substantially reduced as a result.

69 First, it is plain that Mr Powell's behaviour in dragging her out of the car by the hair, and assaulting her further, was highly provocative, particularly when set against the violence to which he had subjected her the previous evening and over the course of their relationship.

70 Secondly, it is also clear that Ms Donker lost self-control. She has accepted that this is so through her counsel and by her admissions to Ms Matthews. Her behaviour in repeatedly driving at Mr Powell is also indicative of a loss of self-control.

71 Thirdly, as I have said, I am satisfied that the provocation offered was capable of causing an ordinary person, fixed with Ms Donker's history of exposure to family violence by Mr Powell, to lose self-control and act as she did. I am so satisfied because I accept, as accurate, the evidence that Mr Powell did subject Ms Donker to domestic violence over a long period; that he assaulted her in the ways indicated both the night before and the morning of the killing; and that she was in what she reasonably believed was a hopeless state with respect to her life circumstances, including the loss of her children, as a result at least in part of the behaviour of Mr Powell. In my view, to be dragged by the hair from a car and assaulted yet again in those circumstances is likely to cause even the most resilient and even-tempered person to lose self-control and act out in a violent manner.

72 While the law in this State does not excuse anyone - whether of uncommonly sturdy or brittle disposition - from criminal liability for otherwise unlawful actions based on provocation alone, the same law does not demand that victims of abuse of the kind and extent to which Ms Donker was subjected be super-resilient before provocation can operate in mitigation of sentence. Rather, the law attempts to strike a balance that recognizes human frailty in the face of extremely difficult circumstances, and allows that moral culpability may be reduced in such cases. This is such a case. As I say, I think it is very likely that any ordinary person, facing the circumstances which confronted Ms Donker and fixed with her history of exposure to family violence by Mr Powell, would lose self-control and act in a violent manner towards him.

73 Further, this conclusion is consistent with, and supported by, the following (unchallenged) opinion offered by Ms Matthews in her report:[15]

Ms Donker's behaviour ... has been a burst of extremely destructive dissociative anger symptomatic of [PTSD] in the context of reputedly physical, emotional, financial and social abuse by Mr Powell, such that she had lost what was most meaningful to her, being her children, and it has been the final provocation of Mr Powell waking her by pulling her out of her car by her hair, choking and punching her that has been the stimulus trigger to dissociative anger and hence her behaviour which resulted in Mr Powell's death.

74 In my view, the foregoing factors suggest a substantially lower level of gravity and moral culpability than does the simple description of repeatedly driving a car in the direction of Mr Powell with the intention of frightening - but not striking - him, and ultimately inadvertently colliding with a parking sign and thereby causing the edge of the sign to strike his head and kill him.

75 Mr Rochford submitted that the offence was serious, essentially, because it involved sustained, angry and aggressive driving at Mr Powell. While I did not understand Mr Tiwana to seek to classify the gravity of the offending with any precision, his submissions are consistent with the position that the offence was not as serious as Mr Rochford urged me to find. In my view, for the foregoing reasons, it is proper to classify this unique example of manslaughter as one falling towards the upper end of the lower range of gravity on a scale employing a taxonomy that is calibrated approximately into lower, middle and upper ranges of gravity.

76 I turn now to the factors in mitigation on which Ms Donker is entitled to rely. Before doing so, I shall set out in some detail her background as outlined by Mr Tiwana on the plea and in the plea materials.

77 Ms Donker was born in Sunbury in February 1987. She was therefore 29 at the time of the offence and is now 31.

78 She is the eldest of five children, with three sisters aged 28, 24 and 22, and a brother aged 23.

79 Her mother was only sixteen, and her father was only nineteen, when Ms Donker was born. She hardly saw her father, who was busy with work. Her mother was extremely strict and found it difficult to cope with children at such a young age. Ms Donker suffered violent beatings at her mother's hands on a regular basis.

80 At school, Ms Donker had very few friends and most of them were a bad influence. She began drinking alcohol at the age of thirteen.

81 On one occasion, she was taken by some female friends to a house where there were older males. She believes her drink was spiked. Ultimately, she was raped by one of the males. She kept this to herself but later disclosed the rape to Mr Powell and some friends.

82 Ms Donker left school during Year 9, without completing that level. She was required to do Year 8 twice. She was bullied (for being poor) and would often skip classes in consequence.

83 She particularly struggled at school following the rape. Her mother has noted that, around this time, Ms Donker began displaying emotional lability and volatility. Eventually, she ran away from home. She lived with her maternal grandmother in Sunbury and then in a friend's garage before moving to New South Wales to live with her paternal grandparents.

84 While in New South Wales, she worked in a shop and then as a cleaner at a motel. In total, she worked for about twelve months.

85 Ms Donker met her first partner, Kelton Rodwell, around the age of fifteen. She fell pregnant but miscarried at about eight months. She was also struggling with the memories of the rape and tried to commit suicide by taking an overdose of medication that had been prescribed for bipolar disorder.

86 She fell pregnant again at sixteen. She returned to Melbourne with Mr Rodwell and they began living with her parents. Her son Deklan was born in August 2004. She was diagnosed with post-natal depression and bipolar disorder, and was prescribed Valpro, which she discontinued when her son was about two years old.

87 Mr Rodwell began abusing drugs and assaulting Ms Donker. He was in debt over drugs, and Ms Donker and their son were threatened by those owed the debt. Fearing for her son's safety and her own, she left Mr Rodwell.

88 Ms Donker started seeing Richard Powell in around 2006. She and Deklan lived with Mr Powell and his parents for about six months initially. Then she fell pregnant and moved with Mr Powell into a rental property owned by Mr Powell's parents.

89 The first signs of violence emerged during her pregnancy. Mr Powell would verbally abuse her and, as I indicated earlier, he would even physically assault her by grabbing her around the throat and pushing her. Their daughter Dakoda was born in July 2008.

90 In 2009, when Dakoda was about one, Ms Donker and Mr Powell began abusing drugs. They smoked cannabis regularly and used amphetamine before moving on to ice. This continued for the next five years or so.

91 During that period, Mr Powell abused Ms Donker not only physically but also psychologically and emotionally. He would threaten suicide if she left him. He would accuse her of having affairs. He would not allow her to go out and placed other restrictions on her movements. He stopped her from seeing her family and would take money from her wallet.

92 As indicated earlier, there were also times when Ms Donker would react to violent abuse by attempting to assault Mr Powell.

93 In 2013, police raided the couple's home and arrested Mr Powell for trafficking methylamphetamine and weapons offences. He was released on bail initially but then went into custody following his plea hearing in August 2014. He was ultimately sentenced to the term of imprisonment I mentioned earlier. As I have said, he was released on parole in around November 2015.

94 I have already spoken of the loss of her children around this time; then her great strides to turn her life around while Mr Powell was in prison; and then the deterioration of their lives upon his release. I shall not repeat those details here.

95 Having set out that background, I turn now to the mitigating factors.

96 The first matter in mitigation is that Ms Donker has pleaded guilty to the charge. This is significant in several ways.

97 First, the plea of guilty was indicated prior to the committal hearing and entered upon arraignment in this Court. Thus, it is a plea of guilty entered at the first practical opportunity.

98 Secondly, the plea of guilty has obviated the need for what would have been a stressful contested committal hearing and trial. Importantly, it has spared the witnesses, particularly Mr Powell's family, the ordeal of reliving these events and being cross-examined about them.

99 Thirdly, given the unforeseen and unforeseeable mechanism of death, the long history of domestic violence to which Ms Donker was subjected, the acts of violence against her the night before and the morning of the killing, and the provisions in the Crimes Act 1958 (Vic) concerning the admissibility of evidence of family violence and the directions which would be given to a jury on a trial of this nature about that evidence,[16] had the matter gone to trial, Ms Donker would have had a sound basis to argue for an outright acquittal on one or more bases: namely, that the act causing death was not "dangerous" in the sense required by law, that she acted in self-defence or that her actions did not cause death.[17] Further still, it strikes me that Ms Donker's plight might well have been seen very sympathetically by a jury, which, experience tells, tends to make any defence open in law all the more attractive. In those circumstances, her early plea of guilty is of all the more weight in mitigation.

100 Finally, the guilty plea involves an acceptance by Ms Donker of moral and legal responsibility for her actions and a willingness to facilitate the course of justice.

101 For these reasons, and also when coupled with the remorse she has shown, I consider the plea of guilty to be an important matter in mitigation.

102 Secondly, as I have just indicated, I am satisfied that Ms Donker is genuinely sorry for, and understands the impact of, her actions. There are four reasons for that conclusion.

103 First, Ms Donker's immediate reaction to what she had done was one of shock and horror. Similarly, her next response was to ring triple-zero for help and then to confess to members of Mr Powell's family, members of her own family and then police that she had killed him. While she claimed initially that Mr Powell had run in front of her, that falsehood was abandoned within a short time.

104 Second, her plea of guilty, particularly given the circumstances in which it was entered, also indicates remorse.

105 Third, the references - from Ms Donker's brother John Donker and his partner Natalie Ross - and the report of Ms Matthews, which are unchallenged, contain observations about expressions of remorse. For example, Ms Matthews said the following:[18]

Ms Donker presents as grief and trauma stricken by Mr Powell's death. [S]he is deeply distressed by the impact she has had on [the lives of others], Mr Powell's parents and siblings, her parents and siblings and her children, who have effectively lost ... both parents and each other in that the sibling group has also been fractured. [I believe] her distress and remorse is genuine.

106 Finally, since Ms Donker's own children are victims of her crime, she will forever have a constant reminder of the hurt she has caused whenever she thinks of them being without their father.

107 The third matter in mitigation is that Ms Donker has only a modest criminal history. There is certainly nothing in that history to suggest that she might be inclined to commit manslaughter.

108 In 2007, at the age of 20, she was convicted of assault and fined. Mr Tiwana instructs that the victim was a female but that Ms Donker otherwise cannot recall the details.

109 In August 2014, she was, without conviction, placed on an adjourned undertaking on charges of possessing ammunition, a prohibited weapon and a controlled weapon. At the time, Mr Powell was on bail for the drugs and weapons charges when these further items were found at their premises. Mr Tiwana's instructions are that, in those circumstances, Ms Donker "took the rap" for her partner.

110 In July 2015, she was convicted and fined on charges of theft, criminal damage and possessing methylamphetamine. These offences, which were committed with Mr Powell, involved stealing from Myki machines. (Mr Powell received prison sentences for these offences to be served concurrently with his sentence for drug-trafficking and weapons offences.)

111 The fourth matter in mitigation is that I am satisfied that Ms Donker's time in custody has been, and will continue to be, more onerous than usual. There are several reasons for that conclusion.

112 For the first three months of her incarceration, Ms Donker was not allowed to see her children, including her baby. That must have been very hard. Mercifully, she has been able to see them in custody on fortnightly visits since then.

113 In addition, despite the fact that her children are placed with family, she has been, and continues to be, anxious about their well-being, especially given that they are now without both parents.

114 Further, and this is related to both of the foregoing points, Ms Matthews opines, and I accept, that Ms Donker presents as still quite emotionally and psychologically fragile despite the passage of more than a year since the death of Mr Powell. She still has nightmares and flashbacks concerning Mr Powell's death and its aftermath. She tries to stay awake until as late as 3:00 or 4:00 a.m. to avoid the nightmares. Ms Matthews is also of the opinion that the loss of her current connection with her children is likely significantly to destabilize Ms Donker emotionally and psychologically.[19]

115 Finally, she is also depressed and suffers from high blood pressure and hyperthyroidism, for all of which she is taking medication.

116 It is for these reasons that I am satisfied that her time in custody has been, and will continue to be, more onerous than usual.

117 The last, but very important, matter in mitigation is that I am satisfied that Ms Donker has very good prospects of rehabilitation. There are several reasons for that conclusion.

118 First, her admissions, early plea of guilty, remorse and limited prior criminal history suggest positive prospects of rehabilitation.

119 Secondly, and most importantly, Ms Donker's progress in the fifteen months that Mr Powell was in prison was outstanding. To my way of thinking, that is the clearest demonstration that she can remain drug-free, work productively and care for her children when free from the grips of domestic violence and a drug-abusing partner.

120 Thirdly, Ms Donker enjoys strong family support. She receives regular visits from her grandmother, her mother and her sister. The references confirm that Ms Donker's family is dedicated to supporting her rehabilitation upon her release as well.

121 Finally, despite the hardship of prison, Ms Donker has done all she can to further her rehabilitation while awaiting trial and sentence. She has engaged in trauma counselling, which has been a positive experience. Random drug screens confirm that she has remained drug-free. She has also engaged, in a meaningful manner and with a positive attitude, in a programme addressing family violence and another course addressing conflict resolution. She has also completed parenting education courses, and other courses concerned with managing loss and emotions. Finally, she been working as a cook in the kitchen and has completed a certificate in cleaning operations.

122 While her history of illicit drug use does give some cause for concern, the work that she has done, both during the period when Mr Powell was in prison and since her own incarceration, when combined with the other positive factors, convince me that, overall, Ms Donker's prospects of rehabilitation are very strong.

124 Section 5(1) of the Sentencing Act 1991 (Vic) provides that the only purposes for which sentence may be imposed are, to use the shorthand, general deterrence, specific deterrence, denunciation, protection of the community, just punishment and rehabilitation.

General deterrence, denunciation and just punishment

125 In my view, while the reduction in Ms Donker's moral culpability on account of the provocation she suffered set against the background of domestic violence to which she was subjected also leads to a reduced need for general deterrence, just punishment and denunciation, those sentencing purposes nevertheless remain of some importance in this case of manslaughter. The community should understand that, despite the provocation and family violence to which she was subjected, behaviour of the type engaged in by Ms Donker is denounced by the courts and will result in a term of imprisonment that reflects that a person's life has been taken by an unlawful and dangerous act and that the lives of Mr Powell's loved ones, including not just his parents and siblings but also his two children, have been marred forever in consequence.

126 While the need for specific deterrence must be given some weight, it is moderated by the same considerations I have just mentioned. It is also moderated by Ms Donker's admissions, plea of guilty, remorse, limited criminal history and strong prospects of rehabilitation, as well as by the fact that she forever will have to live with the knowledge that she has killed the father of two of her children.

127 In my view, rehabilitation remains an important consideration. This is particularly so because Ms Donker has such strong prospects of rehabilitation.

128 I do not consider that there is any need to add a separate component in sentencing for protection of the community. I consider it very unlikely that Ms Donker would act in such a way towards any other person. While she has a prior appearance for assault,[20] that matter appears to have been of a much lesser order of seriousness than the crime of violence for which she is to be sentenced on this occasion. Further, the assault occurred over eleven years ago, when she was only nineteen or twenty. The sentence that I am about to impose and which results from the other purposes of sentencing will ensure that the sentence is of more than sufficient severity to protect the community in any event.

129 I also think it is important to recognize the interplay between rehabilitation and protection of the community. Ms Donker will be returning to the community ultimately. It is therefore in the community's interests that such prospects of rehabilitation as she has be maximized, and that she is not crushed, so that, when she does return to the community, her risk of reoffending is as low as it reasonably can be and her chances of successful reintegration into the community are as strong as they can be.

130 Section 5(3) of the Sentencing Act, relevantly, provides that "a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed". This provision reflects the common law principle of parsimony. I have applied this provision and this principle when considering the appropriate sentence in this case.

131 In so far as I can determine them, I have had regard to current sentencing practices for manslaughter.

132 Sentencing statistics show, for the period from 2011-12 to 2015-16, that prison sentences for manslaughter ranged from about two to twelve years' imprisonment; that the average (or mean) sentence ranged from about six years and eleven months' imprisonment in 2013-14 to eight years and eleven months' imprisonment in 2014-15; and that the median sentence was eight years' imprisonment, as was the mode. During the same period, non-parole periods ranged from nine months to nine years; the median non-parole period was five years and six months; and the modal non-parole period was five to less than six years.[21]

133 These statistics are, of course, of limited utility, mainly because they do not distinguish cases according to their most important sentencing considerations - such as the form of manslaughter, the seriousness of the particular offence, whether there were significant aggravating or mitigating factors, whether there was a plea of guilty or not guilty, whether or not there were significant prior convictions, and so on. Nevertheless, they do give some guidance.

134 Sometimes, case comparisons can be a useful tool in gauging current sentencing practices. To this end, I have considered other cases of manslaughter.

135 The only case to which counsel referred on the plea was the sentence of T Forrest J in 2016 in R v McLaughlin.[22] In 2014, in the course of an argument, Ms McLaughlin's partner Mr Stevens hit, kicked and slapped her. He also grabbed her neck and throat area at some point. He threw a long piece of glass tubing at her, which broke. Ms McLaughlin screamed at him and told him to stop breaking things. She picked up a sharp broken piece of the tubing and shaped as if to hit him with it. He flinched and she then struck him in the right upper back. This caused a wound that penetrated into the right lung, from which Mr Stevens died shortly afterwards. Ms McLaughlin was charged with murder but ultimately pleaded guilty to manslaughter.

136 Her relationship with Mr Stevens was found to be complex and characterized by a large age difference, drug use, physical and emotional violence (which went both ways) and, also travelling both ways, a deep affection for each other. Ms McLaughlin was aged 50, whereas Mr Stevens was almost 20 years younger. Ms McLaughlin's five-year-old son died in a tragic boating accident in 2008 and her marriage subsequently failed. It was during that period that Mr Stevens supported her extensively. The problem, however, was that both abused ice and the relationship deteriorated. Ms McLaughlin had no relevant prior convictions; was suffering PTSD and a major depressive disorder; and, by the time of sentence, was still recovering from the death of her child and her involvement in the death of Mr Stevens.

137 T Forrest J found that Ms McLaughlin's actions were the product of anger in the face of considerable emotional and physical abuse. She was entitled to be angry and distressed but she was not entitled to stab him. There was, his Honour found, no aspect of self-defence to her conduct. But there was no premeditation and her anger was the inevitable consequence of Mr Stevens' attack. These factors operated substantially to reduce her moral culpability and blameworthiness for her offending.

138 His Honour imposed a prison sentence of 537 days (or nearly 18 months) combined with a community correction order ("CCO") for two years. This meant that Ms McLaughlin was released from Court. The Crown had conceded on the plea that such a disposition was open.

139 Mr Tiwana submitted that, while the same sentence as was imposed in R v McLaughlin is not necessarily applicable here, such a sentence is open and, in any event, the obvious similarities are such that it is at least a useful comparator. In the alternative, he submitted that this was still a case that warranted a prison sentence and a non-parole period well below the median range indicated by the sentencing statistics.

140 Mr Rochford submitted that the repeated aggressive acts of driving the car at Mr Powell made this a more serious case of manslaughter than the single spontaneous act of stabbing by Ms McLaughlin. He also submitted that a combination of a prison sentence and a CCO could not be imposed if the prison sentence exceeded one year,[23] whereas, at the time of Ms McLaughlin's sentence, the law allowed a prison sentence of up to two years. Finally, I understood Mr Rochford to submit that, since Ms Donker's offence involved driving a motor car, it might have been prosecuted as culpable driving causing death, and yet such a sentence as was imposed in R v McLaughlin would not be imposed for culpable driving.

141 I should add at once that I think that the comparison with culpable driving sentences is inapt, since, among other things, I am not aware of any case of culpable driving involving provocation by the deceased in the context of a long-standing relationship of domestic violence.

142 That said, while I agree that R v McLaughlin has numerous similar features to the present case and is therefore a useful comparator, it is not identical. Of course, no two cases are ever truly alike. And, in any event, sentences are not precedents to be applied or distinguished. Nevertheless, I have found R v McLaughlin and the other sentences I have considered, and the reasons given for imposing them, instructive in gauging the order of sentences imposed for manslaughter, and the extent to which those sentences tend to be affected by various aggravating and mitigating factors. In the end, however, as is always the case, because of the limits of that process, I have been driven to rely principally on the particular circumstances of this case and sentencing principles to arrive at the appropriate sentence for Ms Donker's particular offence of manslaughter.

143 It is worth noting that, perhaps not so long ago, it is likely that this Court would have given serious consideration to the imposition of a wholly suspended sentence of imprisonment in a case like the present one, or at least either a partly suspended sentence or a much more lenient prison sentence than the sentence I am about to impose. The following two cases might be thought to illustrate the point.

144 For example, in 2000, in R v Denney,[24] Coldrey J imposed a wholly suspended sentence of three years' imprisonment on a 61-year-old woman who was found not guilty of the murder of her husband, but guilty of his manslaughter by provocation, after shooting him twice to the head. She had endured years of domestic violence, as well as sexual assault. Mrs Denney had concealed the killing for thirteen years.

145 The other example is R v Gazdovic.[25] In 2002, Teague J imposed not a suspended sentence but an undertaking to be of good behaviour on a woman of 69 upon her pleading guilty to the manslaughter of her husband of nearly 50 years, again against a background of a very longstanding relationship of domestic violence. His Honour was of the view that Mrs Gazdovic's use of a saucepan to kill her husband went only marginally beyond the bounds of legitimate self-defence.

146 Despite the impressions often conveyed by some, the reality is that, in this State, sentences for many offences - including manslaughter - have steadily risen in recent years. That suspended sentences are now gone, and that, in consequence, judges are denied the ability to impose that particular form of sentence in deserving cases, suggests to me that we might have lost our way, at least to some extent, in the drive for harsher sentences.

Concluding remarks on current sentencing practices

147 It may well be that the sentence imposed in R v McLaughlin represents today's more nuanced and enlightened approach to sentencing for manslaughter committed by women committed against the background of the scourge of domestic violence.

148 But, as Mr Rochford correctly pointed out, things have moved on even in the period since R v McLaughlin was decided. While a court may make a CCO in addition to imposing a prison sentence, it may do so "only if the sum of all the terms of imprisonment to be served (after deduction of any period of custody that under section 18 is reckoned to be a period of imprisonment ... already served) is one year or less".[26]

149 In any event, I have determined that parsimony does not permit me to impose a combination of a CCO and a prison sentence in Ms Donker's case, which, as I have said, is different from R v McLaughlin in any event.

150 The two older cases to which I have just referred were of course different as well, both in their own ways.

151 That said, I make it clear that, in arriving at what I think I am compelled to regard as the appropriate sentence, I have attempted to give substantial weight in mitigation to the provocation under which Ms Donker laboured and the relationship of domestic violence to which she was subjected.

154 For the reasons I have given, I regard this as an unusual case calling for an unusual sentence. I think that an element of mercy is due to Ms Donker because of the circumstances in which she offended, including the provocation under which she laboured and the relationship of domestic violence to which she was subjected. She will also have to live forever with the fact that she killed the father of two of her own children.

155 However, while I have given serious consideration to Mr Tiwana's primary submission, as I have indicated, I do not think that this is an appropriate case for a combination of a prison sentence and a CCO. In coming to that view, I have also had regard to s 36(2) of the Sentencing Act, which provides that, "[w]ithout limiting when a [CCO] may be imposed, it may be an appropriate sentence where, before the ability of the court to impose a suspended sentence was abolished, the court may have imposed a sentence of imprisonment and then suspended in whole that sentence of imprisonment". Instead, I think that, in order to cater adequately for all applicable sentencing purposes and all other relevant considerations, including current sentencing practices, but recognizing that such practices are only one factor in the vast mix of factors informing the instinctive synthesis at the heart of the sentencing discretion,[27] it is necessary to fix a head sentence of imprisonment with a non-parole period.

156 Balancing all factors as best I can, for the manslaughter of Richard Powell, Jessie Donker is convicted and sentenced to five years' imprisonment.

158 This is a relatively short non-parole period - both as a proportion of the head sentence and in absolute terms. While all factors both aggravating and mitigating have affected the head sentence and, in turn, the non-parole period, I think Ms Donker's prospects of rehabilitation are so strong, and that her claim for mercy is so compelling, that it is appropriate to fix a non-parole period that is shorter than might otherwise be imposed. Hopefully, such a sentence will encourage Ms Donker to continue to work towards reform and her earliest possible release. If she is released on parole at an early stage, this also will ensure that she is supervised in the community for a substantial period. I think it is likely that, at least initially, she will require the type of supervision and assistance that the parole authorities can offer. If this occurs, this should redound to the benefit of both Ms Donker and the community.

159 Pursuant to s 18 of the Sentencing Act, I declare that 489 days of pre-sentence detention (including today) be reckoned as served under this sentence.

160 This should mean that Ms Donker will be eligible for parole under this sentence two years from the date of her arrest. Whether, and, if so, when, she is released on parole will be a matter for the Adult Parole Board.

Section 6AAA declaration

161 I am required, by s 6AAA of the Sentencing Act, to declare the sentence I would have imposed had Ms Donker been found guilty of manslaughter after pleading not guilty and running a trial.

162 This is always a difficult thing to estimate, especially because pleas of guilty and not guilty can impact differently on the weight to be accorded to other sentencing considerations. So, for example, absent Ms Donker's plea of guilty, it is likely that I would have found her remorse and prospects of rehabilitation to be less compelling and that there may have been a greater need to emphasize specific deterrence.

163 Thus, while recognizing the difficulty inherent in this exercise, I declare that, but for her early plea of guilty, I would have imposed a sentence in the order of seven-and-a-half years' imprisonment with a non-parole period of four years.

164 Finally, I turn to the question of licence disqualification.

165 Given that Ms Donker has been convicted of a "serious motor vehicle offence",[28] I am compelled, pursuant to ss 89(1)(a) and (2)(b) of the Sentencing Act, to order that her driver licence be cancelled and that she be disqualified from obtaining a further licence for a period of at least 24 months.

166 In all the circumstances, I think it is appropriate to confine the period of disqualification to the minimum period of 24 months, from 8 January 2017. And I so order.

167 If she is released on parole after serving two years of her sentence, Ms Donker will in all likelihood need her driver licence so that she may attend parole appointments and job interviews, travel to work and ferry her children about the place, if they are returned to her. I can see no good reason to make it any harder for her than it will be to manage her daily affairs if and when released on parole. Indeed, her chances of successful reintegration into the community should be enhanced if she has the opportunity to apply for restoration of her licence.

________________________________________

[1] Some versions of the song have these words as "hurt lord" or just "lord". However, for present purposes, the point remains the same either way.

[2] Report of Pamela Matthews (11 March 2018) (Exhibit 9 on the plea), p 4.

[3] For a summary of some of the incidents of domestic violence, see the defence document headed "Incidents involving Jessie Donker and Richie Powell as revealed in the brief of evidence" (received as Exhibit 19 on the plea), the contents of which I accept. Mr Rochford QC, for the Director, submitted that that history was not complete. He referred to the statement of Paul Angarano (Depositions, pp 127-133, esp. 130-131), where he speaks of observing, in the weeks before Mr Powell's death, scratches to the chest and arms of Mr Powell and an occasion when Ms Donker drove a car in his and Mr Powell's direction; and to that of Jodie Andrew (Depositions, pp 187-190, esp. 189), who speaks of Ms Donker pushing Mr Powell on New Year's eve. As to Mr Angarano's statement, given his extensive criminal history for dishonesty (see Exhibit 21), I am not prepared to act on his version simply on the papers. I also note that his account about the scratches is hearsay in any event. As for Ms Andrew's account about the pushing, she makes it clear that she did not know whether Ms Donker was "trying to get out and away or what"; that Ms Donker ended up on the ground at one point and "seemed pretty shaken up"; and that she asked her where the police station was and "said she was scared of [Mr Powell]". It seems to me that Ms Andrew's statement serves merely to confirm the view that Ms Donker usually ended up worse off if she sought to defend herself or retaliate.

[4] The total effective sentence was reduced, on appeal to the Court of Appeal from the County Court, from two years and nine months' imprisonment with a non-parole period of one year and nine months to two years' imprisonment with a non-parole period of fifteen months. See Powell v The Queen [2015] VSCA 93.

[5] The colleague was Natalie Ross, who is the partner of John Donker, who is Ms Donker's younger brother.

[6] See the report of Pamela Matthews (11 March 2018), p 5.

[7] Report of Pamela Matthews (11 March 2018), p 3.

[8] See the report of Dr Janelle Mehegan (10 January 2017) (Depositions, pp 598-608, esp. 601-602).

[9] She gave the same account to her brother-in-law Simon Moore soon after the incident (Depositions, pp 356-360, esp. 357).

[10] See s 5 of the Crimes Act 1958 (Vic).

[11] See, for example, R v Jagroop [2009] VSCA 46; (2009) 22 VR 80 at 90[63]-91[69] per Weinberg JA (Williams AJA agreeing at 92[75]).

[12] On the availability of excessive self-defence as a matter in mitigation, see, for example, Va v The Queen [2011] VSCA 426 at [34]- [36]; R v Stavreski [2004] VSC 16; (2004) 145 A Crim R 44 at 48[17] & 50[27].

[13] Contrast, for example, the position in Western Australia (see the Criminal Code (WA), ss 245-247).

[14] See, for example, my reasons for sentence in The Queen v Freeman [2015] VSC 506 at [32]- [43], [49]-[50] & [76], which deal with this issue in the context of a sentence for murder. In my view, that provocation can be a mitigating factor in sentencing for murder after the abolition of the 'defence' of provocation, means that a fortiori it can be a mitigating factor in sentencing for manslaughter. See also Va v The Queen [2011] VSCA 426 at [34]- [36]; R v Stavreski (2004) 145 Crim R 44 at 48[17], 49[20]-[21] & 50[27].

[15] Report of Pamela Matthews (11 March 2018), p 17.

[16] See, for example, ss 322J and 322M of the Crimes Act 1958 (Vic).

[17] As to the latter, there was evidence that, on the night before he died, Richard Powell told his brother Matthew that he wanted to kill himself (see the written statement of S/C Penny Fuhrmann, 15 February 2017, Depositions, p 452[26(l)]). There was also other evidence of previous suicide attempts. This evidence might be thought to be consistent with Ms Donker's original claim, made to police and others, that Richard Powell ran in front of the car. However, Matthew Powell did not confirm that his brother had spoken of suicide the night before his death in either of his written statements to police (Depositions, pp 46-75).

[18] Report of Pamela Matthews (11 March 2018), p 17.

[19] Report of Pamela Matthews (11 March 2018), pp 17-18.

[20] The criminal record indicates there were two charges of assault, which I shall assume is correct.

[21] Sentencing Advisory Council, Sentencing Snapshot: Manslaughter, No 199, April 2017, pp 3-5.

[22] R v McLaughlin [2016] VSC 189 (T Forrest J).

[23] See s 44(1) of the Sentencing Act 1991 (Vic).

[24] R v Denney [2000] VSC 323.

[25] R v Gazdovic [2002] VSC 588.

[26] Sentencing Act 1991 (Vic), s 44(1).

[27] DPP v Dalgliesh [2017] HCA 41; (2017) 349 ALR 37.

[28] Section 87P(a) of the Sentencing Act provides that a "serious motor vehicle offence" means manslaughter arising out of the driving of a motor vehicle.