The Queen v Eckersley [2020] VSC 22

2 The maximum penalty for the offence of murder is life imprisonment. It is a category 1 offence and a standard sentence offence.

3 Amanda Harris was born on 23 September 1981 in New South Wales and was 36 years old at the time of her death. Her parents having separated, Ms Harris lived with her mother, stepfather and siblings until she was eight or nine years old. Later, she lived with her brother and grandmother. In 2000, when she was 19, she moved to live with her mother and stepfather in Victoria.

4 You first met Ms Harris in about 2001 and soon commenced a relationship and began living together. You and Ms Harris had three children, a son born in 2009, and two daughters, born in 2011 and 2016. At the time you committed this offence, you were all living together in Maria Court, Cranbourne North.

5 The relationship between Ms Harris and her family deteriorated during your relationship. You reportedly did not make her family welcome at your home, and they eventually stopped visiting. At the time of her death, Ms Harris had a very limited relationship with her family, apart from her grandmother, Beryl Currie, with whom you both maintained a good relationship.

6 According to several of Ms Harris' family members, you reportedly exhibited controlling behaviour towards Ms Harris, and sometimes dictated what she could and could not do. Despite your behaviour, Ms Harris' family state she remained in love and devoted to you.

7 Leading up to your offending, your mood and demeanour had begun to deteriorate. On 1 July 2018, Ms Harris rang her grandmother, Beryl Currie, and told her that you were 'in a hole' and very agitated. Ms Currie then telephoned you, and you explained you had been in a lot of trouble in the past and felt it was catching up and getting on top of you. She describes you as ranting repetitively. Ms Harris asked her grandmother to come to Victoria to help with you, and Mrs Currie began to make arrangements to do so.

8 That day, and again over the following days, Ms Harris sent several messages to your sister, Nicole Eckersley, from whom she had been estranged for years. On 4 July 2018, Ms Harris sent a message, stating she really needed her, that you were about to have a breakdown and that you had bad depression. Ms Harris also said she was taking you to the doctor and that everything was getting to you since you 'did [your] knee at work two years ago'.

9 On 4 July 2018, you and Ms Harris attended the Officer Medical Centre where you were seen by your general practitioner ('GP'). He recorded you as struggling with depression due to a loss of income and employment, and that you had been self-medicating with alcohol and cannabis but had stopped consuming these substances. Your GP did not observe you to present with any suicidal thoughts, homicidal ideations, nor any symptoms of psychosis. He assessed you as 'depressed, sad and tearful', and that you were experiencing an adjustment disorder with anxiety and depression. Ms Harris was also tearful, and doing most of the talking. Your GP completed a mental health plan, which included referral to a psychologist. You were also provided a prescription for desvenlafaxine, an anti-depressant medication, which you filled that day. The drug is also known as Pristiq, and I shall refer to it by that name. I note you had been a patient of this GP since 2012, but he had never treated you for mental health issues before.

10 On 5 July 2018, you visited a friend, Wayne Hall, in Berwick. You arrived unannounced and were acting erratically, stating someone had poisoned you. Mr Hall struggled to understand you. At one point, you got in his car and drove off, returning very upset and crying. Ms Harris then arrived at Mr Hall's house and was also upset and crying. You were drinking beer when she arrived, and she asked you to stop due to your medication. You were both crying and hugging and left Mr Hall's house together.

11 In the days leading up to 7 July 2018, neighbours heard arguing coming from inside your home, and one saw you acting strangely. On 6 July, Ms Harris again reached out to your sister, saying that she needed to talk. The messages from Ms Harris stated you were 'ok kinda (sic)', but that 'it will take time for the meds to kick in and start to work'. She told your sister it had been a 'long draining week'.

12 In the early morning of Saturday 7 July 2018, Ms Harris made efforts to contact your sister and her mother, but was unable to reach them.

13 Your mental state continued to deteriorate over the course of the morning. You cleared out the kitchen cabinets and fridge, throwing food and cleaning products into the rubbish. At approximately 10.00am, neighbours overheard a loud argument between you and Ms Harris. They heard doors slamming, but the words spoken could not be understood.

14 Your son was in his bedroom and after hearing sounds, opened his door and saw you using a hammer to damage items in the kitchen, including breaking knobs off the oven. You were also seen gathering food and putting it outside.

15 You then attacked Ms Harris by punching her. She fell to the ground and you kicked her. You took hold of a kitchen knife from the drawer and stabbed her to the head, neck, chest and upper body. This attack occurred in the kitchen and dining area of the house and was witnessed by your son and older daughter. While you were stabbing Ms Harris, your son pulled your hand to try and stop the attack, but you side‑kicked him into the door.

16 Ms Harris suffered fatal injuries, losing a significant amount of blood, much of which pooled on the floor. You left the knife on the floor near her right arm.

17 You then obtained a cigarette lighter and set fire to a fabric couch located in the dining area where she lay. During the course of igniting the couch, you also applied the lighter flame to your older daughter's right shoulder. You then placed your three children and dog in the car and drove away.

18 Several neighbours heard the smoke alarm and smelt smoke. Others heard the sound of your car quickly accelerating away. Rodney Dowell, a neighbour who was an off‑duty fire fighter, alerted the fire brigade. He entered your burning house and found Ms Harris lying face down with a knife nearby on the ground and blood on the floor. There was a large fire burning in the room. He grabbed Ms Harris by her legs and dragged her face down outside. He checked for signs of life, but it was apparent she was dead. He re-entered the house to search for the children he knew lived there, but was overcome by smoke and had to leave. Mr Dowell's courage is to be highly commended, especially as he made the horrific discovery of Ms Harris' body, and then re-entered the burning house not knowing what else he may find.

19 Shortly after, firefighters arrived to find the fire was well lit in the kitchen and dining area. The seat of the fire was in the couch in the dining room. They managed to suppress the fire and confirm there were no other occupants in the house. Paramedics arrived shortly before 11.00am and found Ms Harris clearly deceased.

20 Meanwhile, you told your children not to tell anyone Ms Harris was dead, or that you had stabbed her. You were observed driving erratically, and at one point, entered a carpark, and revved your car to the point where smoke was coming out. You then attempted to open the doors of another vehicle, but they were locked and the driver yelled at you to go away. You drove out of the carpark and arrived at the home of Wayne Hall. As he was not home, you knocked at the house next door and spoke to the female occupant who you did not know. She observed you holding a small child and that you seemed quite agitated.

21 You returned to Mr Hall's home and gained entry by kicking open the side door. You drove your vehicle into his garage and closed the door to conceal it from view. You entered his house, removed your clothing and footwear, and changed into clothing owned by Mr Hall. You washed your hands and placed your clothing in a receptacle, which you set on fire in the backyard. You then left on foot with your children and dog, and approached two other properties in the street, before returning to Mr Hall's residence.

22 Sometime later, Mr Hall was informed of an incident at your address, and returned home at about 3.00pm. He found you and your three children lying on a bed in the front bedroom watching television. He asked what had happened, and you responded that 'she's gone and she's disappeared and not home'. Mr Hall disputed your response, to which you replied, 'no, that's alright, everything is okay'. He told you he thought Ms Harris was dead and that you needed to tell him what happened. You responded that everything was fine, Ms Harris had moved out, telling him 'to ask the kids'. When Mr Hall said you had killed Ms Harris, your son said, 'Mum committed suicide'.

23 Mr Hall continued to tell you to go to the police. You told him, 'I think she was poisoning me and the kids', and 'It's all got to do with these pills'. You became irrational towards Mr Hall, grabbed the children and said, 'it's okay, nothing is going to happen until seven o'clock'. You did not respond to his questions about what that meant.

24 Shortly after, police became aware of your presence at Mr Hall's house and attended and forced entry. You were arrested at approximately 3.50pm that afternoon and taken to the Cranbourne Police Station.

25 At approximately 8.00pm, you were deemed unfit for interview by a forensic medical officer who directed you be conveyed to hospital for immediate medical assessment, pursuant to s 30 of the Mental Health Act 2014. As a result, there was no record of interview conducted. You were taken to Casey Hospital in Berwick for a medical and mental health assessment. On the afternoon of Sunday 8 July 2018, the mental health assessment order was revoked and it was indicated that you were not actively mentally unwell. You were taken to the Melbourne Custody Centre.

26 Meanwhile, the police investigation continued and the knife which you used to kill Ms Harris was seized, being a single edged knife and partially serrated. The blade was approximately 120mm long and 27mm wide, and was bent.

27 On 8 July 2018, forensic pathologist Dr Michael Burke performed an autopsy on the body of Ms Harris. In summary, he observed Ms Harris to have multiple stab injuries to her chest, abdomen and neck, as well as sharp force injuries to her hands which were in keeping with defensive type injuries. Dr Burke also recorded instances of blunt force trauma and non-stab injuries, where mild to moderate force was required, as well as blistering to both of Ms Harris' legs and a burn on one ankle.

28 Dr Burke determined her cause of death to be a stab injury to the right chest, measuring approximately six centimetres in length. This injury involved a major artery and led to blood loss within Ms Harris' right chest.

29 Five Victim Impact Statements were placed before the Court. Each of these Statements explain the profound effect of your offending, in particular reflecting the immense care and concern Ms Harris' family have for your three children and how they have worked hard to care for them following the tragic death of their mother.

30 Louise Flynn, the younger sister of Amanda Harris, explained how she has been devastated by Ms Harris' death. She described feeling robbed of a life with her sister and reflected on the things that they will not be able to share, in particular, not being able to share the highlights of their children's lives. She spoke of her mother struggling to come to terms with losing her daughter, and how her family have had to try and get on with their lives.

31 Ms Flynn described her uncontrollable emotion when she arrived at the Police Station to see the three children, and the physical and emotional condition they were in. She described her extreme sadness when your three children were living with her in the weeks following, when all they wanted was their mother. She described hearing them cry and scream for their mother at night. Ms Flynn explained how she had been overcome by anxiety and grief, anger and frustration.

32 Christine Harris, mother of Amanda Harris, described the emotional impact of your offending as she feels numb and wants to cry all the time. She explained how her trust in people has become low and how she feels a lot of hatred towards this situation and how it has impacted her and her family.

33 Ms Harris explained how she feels drained and has struggled to support your children, when she faces so many of her own battles. She continues to consult counsellors, including one who provides strategies to manage the behaviour of one of your children. She has struggled to cope with the children because of the emotional impact of this crime, and they now live with her son and his family. She describes how she is always going to miss her daughter, and is struggling to come to terms with her death and not being able to see or talk to her again.

34 Mark Harris is the brother of Amanda Harris. He explained how it has been difficult to stop himself from thinking of his sister and what was done to her. He has found it hard to concentrate on work and family, and has become hyper-vigilant in various aspects of his life.

35 Mr Harris and his wife now care for your three children, and he described the great strain this has caused on his children and marriage, as your children have huge emotional needs following your offending.

36 In December 2019, an updated statement authored by Mr Harris was filed with the Court, describing the ongoing trauma experienced by your children, and the challenges in caring for them. Mr Harris explained the immense financial consequences of raising three extra children and the social isolation that has resulted.

37 Beryl Currie, Amanda Harris' grandmother, explained how she has become suspicious of everything and now struggles to trust others. She describes her sadness, heartache and anger about what happened.

38 Ms Currie explained how your actions have resulted in your children losing a great mother, and that she has lost a granddaughter and a best friend. She expressed hope that she will be able to find peace in the future.

39 You were born on 15 October 1979 and are now 40 years old. You were born in the outer eastern suburbs of Melbourne. You have an older sister, but have been estranged from her for some time. Your parents separated when you were five years old, and your subsequent contact with your father was intermittent. He died in 2015, with a history of alcoholism and verbal and physical violence. By contrast, you enjoyed a warm and supportive relationship with your mother, but she died in 2004. You report being devastated at her death.

40 From the early age of ten, you commenced consuming alcohol and have been a heavy drinker for much of your adult life. You commenced using cannabis at the age of 14 and have been a daily user for much of your life. Your use of alcohol escalated in the year before your offending, but along with your daily use of cannabis, you ceased using both substances approximately one month prior to your offence. You started using heroin at the age of 16 and commenced a methadone program when you were 21 years old. You have intermittently used other drugs, including amphetamine and have abused prescription medication.

41 You were educated until Year 9. You were an average student and frequently in trouble. Following a period of youth justice detention, you gained employment at a bakery in a provincial town. You obtained an apprenticeship as a baker, following which you commenced a productive career in that industry, working mainly for well‑known baking and supermarket organisations. In January 2015, you suffered a workplace-related knee injury. The injury was significant and you underwent arthroscopic surgery in June 2015. You submitted a compensation claim but this was rejected by your employer. In August 2016, you returned to work for a short period but discontinued soon after, remaining on long term leave without pay while you continued to appeal the decision to reject your application for compensation.

42 You have a number of prior convictions, most of which involve offences of dishonesty. A significant proportion of your offending occurred prior to 2001, reflecting your chaotic lifestyle at that time and significant drug use. Following this, you appear to have been offence-free for a period of almost ten years.

43 However, in 2010 you were convicted of criminal damage and intentionally causing injury, and placed on a community based order ('CBO') with a condition that you participate in an anger management course. This resulted from an incident where you damaged property belonging to Ms Harris' mother, and an ensuing physical confrontation where you assaulted and injured her mother's then partner. Then, in May 2011, you were convicted of further offending, including breaching that CBO, and sentenced to four months' imprisonment, which you served. Having been assaulted outside a gymnasium in Oakleigh and believing patrons to be responsible, you returned the following day with a knife and small hammer to confront your assailants. Neither of those weapons were used to harm anyone during the incident. I also note you have no pending charges.

44 It is submitted on your behalf that while your criminal history could be described as extensive, it does not reveal any examples or pattern of serious violent offending towards an intimate partner, and it is noted that you have never been convicted of causing an injury with a weapon. It is acknowledged on your behalf that whilst your history demonstrates a capacity for lawlessness, it is nevertheless not very informative in the present circumstances, and that by 2018, you had left these prior incidents behind you.

45 The prosecution emphasises your criminal history as 'relatively lengthy' and notes in particular, both the custodial terms served, and the use of a hammer and knife during the 2011 incident.

46 It is clear that your mental state at the time you killed Ms Harris is a significant matter. The Court received reports from Dr Andrew Carroll and Dr Danny Sullivan, both highly experienced and respected forensic psychiatrists. Dr Carroll provided a report commissioned by the defence, and Dr Sullivan provided one commissioned by the prosecution. Both also gave evidence before me.

47 By way of background, I note the following relevant aspects of your recent medical history:

(a) Pharmaceutical Benefit Scheme records from the Department of Human Services show that from 12 August 2016−27 June 2018, you were prescribed tramadol by a medical practitioner on almost 120 occasions, in varying amounts, and often with repeat prescriptions; and

(b) on 4 July 2018, you visited your GP and obtained a prescription for Pristiq MR 50mg, with the dosage of one tablet daily.

48 I note that if you were taking the maximum amount of tramadol prescribed on 23 May 2018, you would have been consuming 500mg each day. Dr Carroll gave evidence that the commonly accepted maximum daily limit is only 400mg. You have reported taking up to 700−800mg of tramadol on a daily basis.

49 As above, in his report of 4 January 2019, Dr Carroll recorded you as stating that in the year prior to this offending, you generally consumed more tramadol than the amount prescribed. You also reported that your use escalated in the weeks prior to the offence. Then, after being prescribed Pristiq on 4 July 2018, you report taking two or three times the prescribed dose, followed by one tablet daily.

50 Additionally, you self-report regular cannabis use and the consumption of 6−12 beers daily in the year leading up to the offence. However, I note you report abruptly ceasing both substances in approximately early-June 2018.

51 Dr Carroll concluded that at the time of your offending, you were in a severe, acute psychotic state as evidenced by the presence of persecutory delusions, as well as auditory and visual hallucinations. He opined the evidence suggests your psychotic symptoms had their onset approximately one week before the offence. Dr Carroll stated you became significantly more disturbed one to two days prior to the offending, becoming abruptly preoccupied with delusions of being poisoned.

52 Dr Carroll reported that while there are a number of possible causes for this psychotic episode, it is most likely you were suffering from a medication‑induced psychotic disorder due to the use of tramadol which was exacerbated further by ingesting Pristiq. He described the psychosis as 'organic' and caused by some kind of extraneous factor, rather than being secondary to an intrinsic mental illness. He explained that in addition to the nature of the symptoms experienced, your rapid recovery within days of your arrest is also consistent with this diagnosis.

53 At the plea hearing, Dr Carroll gave evidence that at the time you were experiencing psychosis, there was no evidence to suggest you understood tramadol was the likely cause. He stated this reaction is 'idiosyncratic' and 'unusual', 'but nonetheless a recognised reaction to the high dose of tramadol'.

54 Dr Carroll gave evidence that tramadol is a commonly used analgesic, which acts on the central nervous system and has multiple effects on neurotransmitters in the brain. He stated he would not expect the risk of psychosis to be known by a GP, and would not consider the risk to be of such frequency as to warrant a GP specifically advising a patient that there is a significant risk. Additionally, the consumer leaflet accompanying the drug notes confusion and hallucination as potential, although uncommon, side effects, and does not refer to psychosis. Furthermore, Dr Carroll expressed the opinion that antidepressants such as Pristiq can further dysregulate the same neurotransmitters affected by tramadol.

55 In both his report and during cross-examination, Dr Carroll expressed his belief that it was significantly less likely that your withdrawal from alcohol and cannabis use was the cause of this psychosis.

56 Further, Dr Carroll stated that whatever the underlying cause or causes, you were severely psychotic at the time of offending. He reported that there was 'a very tight relationship between [your] psychosis and the offence'. Dr Carroll emphasised that your intensely held delusion that Ms Harris was poisoning you and the children, is a 'necessary and sufficient explanation for the offence'. Further, Dr Carroll remarked that in that state, your capacity for self-control and a normal level of judgment would have been severely impaired. He stated you were evidently in an intensely agitated state due to your delusions, which were reinforced by florid visual hallucinations.

57 Regarding your current state, Dr Carroll opined you are now diagnosable with an adjustment disorder with anxiety and depressed mood. He explained your devastation at your offending and gave evidence as to your bewilderment at how you could have believed Ms Harris was trying to poison you, and also as to how this belief 'seemed to be true at the time'. In his report, Dr Carroll expressed the opinion that you are unlikely to suffer a relapse, provided you do not take tramadol. He opined that the psychosis has resolved of its own accord and the risk of you committing future violent offending appears to be low. You do not suffer from any chronically disabling mental disorder.

58 In his psychiatric report of 5 April 2019, Dr Sullivan stated that at the time of offending, you were exhibiting features of an acute and transient psychotic disorder, which manifested in the week or so prior. This was characterised by symptoms including disorganised speech and behaviour, affective lability, persecutory delusions and possible auditory hallucinations. Dr Sullivan also noted this disorder rapidly resolved over approximately one week following your arrest, without any treatment and while in custody.

59 Dr Sullivan stated he would agree the most likely cause of this acute and transient psychotic disorder was medication-induced, most likely due to your abuse of tramadol and possibly exacerbated by Pristiq, both taken in doses higher than recommended. At the plea hearing, Dr Sullivan considered the possibility of your psychosis being caused by the withdrawal of tramadol, as the drug is excreted from the body quite quickly, and it may be possible that you had periods of high dosage followed by periods of very low usage. Dr Sullivan stated that in either case, it is his opinion that the cause of your psychosis remains closely associated with tramadol. Similar to Dr Carroll, he noted that upon prescribing tramadol, GPs would not commonly warn patients of the possibility of psychosis.

60 During cross examination, Dr Sullivan agreed with Dr Carroll's opinion that there was a causal association between the symptoms you experienced and your offending, although he expressed some reservations as to the degree of this connection. In particular, Dr Sullivan pointed to the possibility of previous acrimony in the relationship as a potential contributing factor, but again, expressed some uncertainty due to the absence of evidence in this regard.

61 Dr Sullivan also opined that at the time of the report, you satisfied a diagnosis of adjustment disorder which was mild.

Conclusions as to mental state at the time of offending

62 On the evidence placed before me by the two psychiatrists, I am satisfied that at the time you killed Amanda Harris, you were suffering from severe, acute, and transient psychosis. The evidence satisfies me that you were experiencing delusions that Ms Harris was poisoning you and your children, a belief which had no basis in fact. I add that the opinions of these doctors are independently supported to some extent by the evidence of witnesses who observed you and spoke with you in the days leading up to the fatal events. Your behaviour in the immediate period following the killing of your wife was also manifestly erratic. I further note you were considered unfit for police interview shortly after being arrested.

63 I am further satisfied that the cause of your psychosis was drug-induced and remains closely associated with your consumption of tramadol, likely in combination with Pristiq.

64 As stated, the offence to which you have pleaded guilty is a standard sentence offence. The standard sentence for the offence of murder is 25 years' imprisonment. I will discuss the application of this scheme on the sentence to be passed shortly.

65 With respect to the objective gravity of your offending, it is submitted on your behalf that your offending was not premeditated to any significant degree and was relatively brief. It is acknowledged the use of a weapon amounts to an aggravating factor, but it is submitted that it was a kitchen knife that was readily available where the assault occurred. Your counsel appropriately concedes that the seriousness of this offending is aggravated by the fact your children witnessed your actions. It was further conceded that this murder was an act of domestic violence, considered by the courts to be an aggravated form of violence.

66 Your counsel submits that, when viewed in isolation of your psychological state at the time, your offending could be described as being within the midrange. However, is it submitted that your mental state is so significant as to be highly relevant to the ultimate assessment of the objective seriousness of your offending.

67 The prosecution submits that when the aggravating features of your offending as outlined are considered, you committed a particularly serious homicide.

68 With respect to the assessment of the seriousness of a particular piece of offending, the Court of Appeal in Brown v The Queen recently observed the following when considering the standard sentencing scheme:

The judge is still required to assess the seriousness of the subject offence. Now, as before, the judge is required by s 5(2)(c) of the Act to have regard 'to the nature and gravity of the offence'. That obligation is unaltered by the advent of the standard sentence scheme. And the assessment of offence seriousness is to be done as it always had been done, without reference to the strictures imposed by s 5A(3).[1]

the sentencing methodology prescribed by these provisions neither requires nor permits the sentencing judge to classify the subject offence on a scale of seriousness referable to the hypothesised mid-range offence.[2]

70 The Court further observed that 'just as judges have always had in mind a notion of "the worst possible case", so they must now have in mind a notion of an offence "in the middle range of seriousness".[3]

71 In my opinion, when considering the objective circumstances of your offending, it falls within the upper level of seriousness. It was a most brutal act, as you knocked Ms Harris down and stabbed her multiple times. Doubtless, Ms Harris was taken by surprise by the savagery of your actions and was defenceless. This also occurred in your family home, a place where she was entitled to feel safe. Horrifically, you committed this savage attack in front of your three children, kicking your son away when he tried to stop you. It is a further aggravating factor that you then set fire to a couch near where Ms Harris lay, did not make any attempt to call for medical assistance, and fled the scene with your children in circumstances that must have been profoundly traumatising for them.

72 Your degree of culpability for this offending is a matter of significant dispute between the parties.

73 Your counsel submits there are unique circumstances pertaining to you that are highly relevant to the assessment of your level of culpability. It is submitted that the first of the principles set out in R v Verdins applies, which provides that impaired mental functioning of an offender may be relevant to:

reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.[4]

74 It is submitted that while the voluntary ingestion of a drug would generally prevent an offender from relying on this principle, it may be available in circumstances where they can demonstrate a lack of foreknowledge regarding the impact of the effects of the drug. In this regard, your counsel refers to a decision of Kidd CJ in DPP v Francis, where his Honour held that a 'drug triggered (or exacerbated) psychiatric episode can constitute a mitigating circumstance' under Verdins:

Where the offender has established he had no awareness - because of a lack of prior knowledge or experience - that the ingestion of a particular drug might trigger a psychotic reaction, the resultant impairment of mental capacity might be regarded as involuntary, notwithstanding that the taking of the drug was a voluntary act. The resultant impairment can thus constitute a mitigating factor under Verdins.[5]

75 His Honour held that in such a case, the court must consider the 'probable consequences' of the consumption of that drug by that offender, and then, whether the offender foresaw those consequences.[6] The ability for self-induced psychosis to be mitigatory requires that the offender 'did not have knowledge that he would become dangerous psychotic and violent'.[7]

It is not enough for the offender to establish he had no foreknowledge that the psychotic symptoms would cause him to behave in the precise manner in which he offended or would cause him to be generally dangerous or violent. If the offender was aware that by taking the drug, his judgment would be so affected that he would behave irrationally or that it would affect his ability to exercise control, his self-induced mental state would not constitute a mitigating circumstance.[8]

77 The onus to prove this absence of knowledge lies with the offender, and it must be established on the balance of probabilities.[9]

78 Your counsel submits your circumstances satisfy those set out by Chief Judge Kidd in Francis. Firstly, it is noted both Dr Carroll and Dr Sullivan conclude that at the time of offending, you were experiencing a severe state of psychosis, caused by your use of tramadol. Further, it is submitted there is no basis on which to conclude you had an awareness that your ingestion of tramadol would trigger a psychotic reaction. Counsel argues the following circumstances establish, on the balance of probabilities, that you did not know the ingestion of tramadol would trigger a psychotic reaction:

(a) tramadol is not commonly understood to have potentially psychotogenic properties, and while excessive consumption is known to be harmful, this is generally understood in terms of addiction, not psychosis;

(b) in psychiatric literature, tramadol induced psychosis is reported as a rare but recognised phenomenon;

(c) the tramadol information leaflet notes 'confusion' as a potential, although uncommon side effect, but it does not elaborate or refer to psychosis; and

(d) you report using high doses of tramadol since 2016, were prescribed a dosage higher than the recommended limit, and then ingested dosages higher than the amount prescribed, but had not experienced psychotic symptoms until approximately one week prior to this offence.

79 Your counsel acknowledges that by late June 2008, you appeared to have realised you were not travelling well and were experiencing some paranoia. However, your counsel emphasises the evidence of Dr Carroll and Dr Sullivan that you did not know tramadol was the cause of your ensuing psychosis.

80 It is submitted your impaired mental capacity should be regarded as involuntary, even though the act of taking the tramadol in high doses was voluntary. Further, your counsel relies upon Dr Carroll's opinion that there was a 'very tight relationship' between this psychosis and your offending, arguing that this is 'well beyond' the realistic connection required pursuant to the first principle of Verdins.[10]

81 Therefore, your counsel argues your moral culpability for killing Ms Harris is 'virtually nil'. While acknowledging the need for a just sentence, it is submitted this should result in the imposition of an 'unusually lenient sentence'. Your counsel submits that, but for your psychosis, there is no evidence your offending would have occurred.

82 The prosecution accepts that at the time of offending you were experiencing a drug‑induced psychosis, most likely caused by tramadol.

83 Similar to the defence submission, it is argued that your degree of foreknowledge is critical, and if you were aware that by taking the drug, your judgment would be so affected that you would behave irrationally or it would affect your ability to exercise control, your self-induced mental state would not constitute a mitigating circumstance. The prosecution refers to the case of R v Gagalowicz in which it was observed that:

Had the respondent the realisation that one of the effects of his use of drugs might have been that he would act violently towards some other person, this would have been a matter of serious aggravation.[11]

84 In this regard, the prosecution submits your psychosis must be viewed in the context of the events of the preceding weeks, in particular:

(a) in the three to four weeks prior to the offending, your tramadol use had increased to a total dose of more than 600-700mg per day;

(b) your moods fluctuated with your tramadol usage;

(c) when you took an additional 50mg tablet of rapid onset tramadol, you got 'a racy feeling';

(d) by late June 2018, you were getting 'really paranoid' and realised you needed to attend a psychiatric hospital;

(e) on 1 July and 3 July 2018, you called police for help but changed your mind, telling them you believed neighbours were dealing drugs;

(f) you read the information leaflet provided with Pristiq and realised it should not be taken with tramadol, but still continued to take both medications in excess of prescribed amounts; and

(g) you did not report abuse of tramadol or your symptoms to your GP when you attended on 4 July 2018, as reflected in his notes which record that you did not present with any features or symptoms of psychosis or delusions.

85 Accordingly, it is submitted that the effect of these matters is that you were aware that by continuing to take tramadol in these amounts, your judgment would be so affected that you would behave irrationally or that it would affect your ability to exercise control. Therefore, it is submitted that your self-induced mental state does not constitute a mitigating circumstance under the Verdins principles. The prosecution further submits that your moral culpability should not be considered lowered, in circumstances where you abused a prescription medication.

86 It is, however, accepted that these circumstances do not establish beyond reasonable doubt that your abuse of prescription medication amounts to an aggravating factor. The prosecution notes that had you been aware that the abuse of prescription drugs would have resulted in a violent psychotic episode, then this would have been capable of amounting to an aggravating feature.

87 In all of the circumstances, it is submitted that your psychosis provides some level of explanation for the offending but does not excuse it.

88 Psychoses are commonly the result of a disease of the mind. This is not the situation in the present case. As above, a drug-induced psychosis does not commonly result in the application of the Verdins principles and a mitigatory outcome.

89 In DPP v Arvanitidis, the Court held that if an offender was aware that by taking a drug, their judgment would be so affected that they would behave irrationally or it would affect their ability to exercise control, their self-induced mental state would not constitute a mitigating circumstance.[12] In that case, the Court concluded the evidence strongly supported the conclusion that the offender appreciated the general effect of taking the relevant drug on his mental state.[13] The Court held that:

To lose the benefit of Tsiaris and Verdins, it was not necessary that the respondent have foreknowledge that the psychotic symptoms would cause him to behave in the precise manner in which he offended or make him generally dangerous or violent. If the respondent was aware that by taking the drug his judgment would be so affected that he would behave irrationally or that it would affect his ability to exercise control, his self-induced mental state would not constitute a mitigating circumstances. It was for the respondent to satisfy on the balance of probabilities that he did not know that the drug would have such effects. This he failed to do. The respondent's foreknowledge regarding the potential for paranoia, persecutory delusions, and other forms of disorganised thought was sufficient to preclude the operation of the principle stated in Tsiaris and Verdins.[14]

90 The principle discussed in Arvanitidis makes it clear that if a person in your position had foreknowledge that ingesting the relevant drug would result in the potential for paranoia, persecutory delusions or other forms of disorganised thought, then a finding of reduced moral culpability for this reason would not be open.

91 Having carefully considered this issue, I am of the opinion that your moral culpability for this offending is significantly reduced. I am satisfied you have discharged the onus required on the balance of probabilities. Unlike the case of Arvanitidis, there is no direct or inferential evidence before me that demonstrates you had foreknowledge that your use of tramadol, perhaps in combination with Pristiq, would cause psychosis.

92 Further, it is clearly to be noted that these drugs had been prescribed by a GP and were not of an illegal nature. By July 2018, you had been prescribed tramadol for an extended period, but it appears it was not until late June or early July 2018 when you began to experience paranoia, delusions and disorganised thought. Moreover, there is no evidence to suggest you were, or considered that you might be, suffering from a psychosis at this time. The evidence appears to be that in the few days before your offending, you began to exhibit psychotic symptoms. If you had any appreciation that you may have been in the grip of a psychosis, the level or quality of your understanding or foreknowledge must be evaluated in the context of those circumstances. By comparison, in Arvanitidis the evidence was that when the offender intermittently ceased using ice, he recognised that a number of psychotic symptoms he had previously experienced were a consequence of using the drug.[15] The offender in Arvanitidis had clear knowledge and experience of what would happen if he ingested the relevant drug.[16]

93 In the report of Dr Carroll, there are references to you later reporting to psychologist Nina Zimmerman that you experienced a number of symptoms shortly after taking Pristiq. At one point, you allegedly viewed the written material accompanying Pristiq and read of some possible side-effects, learning that it was a drug that might cause confusion. However, as Dr Carroll reports, by this stage, you were attributing these effects to your wife poisoning you, and believed she was in control of you taking this drug. It appears on the evidence you were well into a psychotic and delusional state by that stage.

94 At the plea hearing, both psychiatrists were questioned as to your possible level of insight at this stage. In short, Dr Carroll was of the opinion that as you were experiencing a delusional state at that time, you likely had no insight into the cause of your delusions. Further, Dr Carroll stated that it is important to distinguish between accounts you have given to himself and other practitioners subsequent to the offending, as this inherently allows for some level of hindsight. He opined that while you may be able to now recognise that you were becoming paranoid from late June 2018, at that time, you knew you weren't travelling well but would have been consumed by the psychosis. Dr Carroll gave evidence that 'psychosis by definition involves symptoms into which, in the acute phase at least, a person has no insight'.

95 Dr Sullivan added that one of the cardinal features of psychosis is a loss of insight, including a lack of awareness that one's condition is abnormal and a steadfast belief in the reality of one's experiences, even though they may be inexplicable or bizarre.

96 Taking into account all of these circumstances, I have concluded the severity of your sentence must be appropriately reduced to reflect your low moral culpability for this offending, in line with the first principle set out in Verdins.

97 As to factors in mitigation, your counsel emphasises this matter resolved at the earliest possible stage, with you entering a plea of guilty at a committal mention hearing on 7 November 2018. You were arraigned in this Court on 19 November 2018. It is argued your plea carried distinct utilitarian benefits, with the community having been saved the cost of a trial, and witnesses, including your children, have been spared the ordeal of giving evidence.

98 It is accepted by the Crown that despite your plea being entered in the context of a strong prosecution case, it was given at an early stage and resulted in a utilitarian benefit.

99 I accept these submissions of both parties, and will afford the appropriate weight to your early plea of guilty in sentencing you.

100 The report of Dr Carroll states you expressed a high level of remorse during your assessment. Further, Dr Carroll opined you are clearly very aware of the impact of your actions on your children and family. It is his opinion you exhibit genuine and severe distress as to your offending.

101 The Crown also concedes that your early plea of guilty indicates your remorse for your actions.

102 In my opinion, you have exhibited remorse for your conduct. I am satisfied your remorse is genuine.

103 Following the plea hearing in the matter, it became known that the Court of Appeal would be hearing an appeal involving the consideration of the standard sentencing scheme. This was the first time that this scheme was to be considered by an appellate court and given the decision may have impacted on the approach to be taken in this case, I decided to delay passing sentence until the Court handed down judgment.

104 On 10 December 2019, the Court of Appeal delivered judgment in Brown v The Queen.[17] On 18 December 2019, counsel provided further submissions regarding the application of the scheme to your case. Due to the fact of the delay in passing sentence, submissions were also advanced as to the impact of this. It is submitted that the delay impacted you in two ways - first, as being unfair to you in a general sense, and second, as amounting to an impediment to the advancement of your rehabilitation. It is submitted a delay of up to 9−10 months before sentence was passed is unusual and significant, and some allowance should be made in the sentence to be imposed. In particular, it is submitted the Court should accept the unusual delay caused increased anxiety on your part, and amounted to a mitigating circumstance. The prosecution did not argue against this approach, albeit submitting that in this case, being a case of murder, the delay should not have a great deal of impact on the sentence imposed.

105 I agree with the submission advanced on your behalf, and accept the two impacts argued by your counsel. I have taken into account the unusual delay, and in particular your likely increased anxiety, and this will act as a factor of moderate mitigation in the sentence I will impose.

General deterrence, denunciation and just punishment

106 It is submitted on your behalf that, but for your psychosis, there is no evidence that your offending would have otherwise occurred. Whilst acknowledging the Court has an obligation to pass a just sentence, it is submitted the unique circumstances of your offending militates towards the imposition of an unusually lenient sentence, being one which acknowledges the appropriately diminished role of denunciation, deterrence and just punishment. Your counsel submits you are not an appropriate vehicle for general deterrence due to your state of psychosis and arguably low culpability.

107 As the prosecution submitted the principles in Verdins are not enlivened in this case, it is submitted that the above purposes should remain key in your sentencing. The prosecution submits general deterrence must be a significant factor.

108 Having concluded the first principle in Verdins is enlivened, with the consequent conclusion that your culpability is lowered, I am of the opinion the application of general deterrence is significantly moderated in this case. Similarly, denunciation of your conduct is accordingly lessened as a sentencing factor. This finding is to take nothing away from the fact that the killing of an intimate partner is an inherently terrible act.

Specific deterrence, protection of the community, and rehabilitation

109 On the basis of your limited criminal background, your remorse, and the particular circumstances of your offending, I do not regard that the sentence I will pass requires a significant component directed towards the protection of the community. There is no material before me to suggest you are a continuing threat to the community. A qualification to this conclusion is that you should never again use the drug tramadol.

110 This was a brutal killing, aggravated by the fact that it occurred in the family home, witnessed by your three children. The impact on your children of seeing you murder their mother is difficult to fully imagine. Time will only tell how they will recover from this dreadful experience. Further, having committed this awful crime you did not then help your partner, but acted to destroy her body and the scene by attempting to burn down your home, with her body in it. You treated your children callously after they had witnessed your brutality, driving them away and telling them to tell others their mother had committed suicide. Nevertheless, as with your act of murdering Ms Harris, your actions afterwards need to be seen in the context of your psychosis.

111 It appears Ms Harris was trying desperately to get you help, reaching out to your GP and family members in the days leading up to her death. The evidence indicates she loved you and was attempting to care for you. Ms Harris was defenceless against your attack, and completely innocent. There was no basis for your delusions that she was trying to kill you or your children by poisoning. In committing this offence you have deprived your children of both their mother and also you. Your actions have destroyed your own family.

112 Whilst the murder of Amanda Harris did not occur in the context of a history of entrenched or regular violence towards her, the killing of an intimate partner is a most serious form of offending which must again be tragically emphasised by the Court.

113 However, it must be clearly acknowledged that when you committed this horrible and intensely violent crime, you were in a severe, acute psychotic state. As above, the evidence demonstrates you were preoccupied with persecutory delusions, as well as auditory and visual hallucinations, falsely believing that Ms Harris was attempting to poison you and your children.

114 In the circumstances I have discussed above, this is a matter of significant mitigation. You have satisfied me on the balance of probabilities that you did not have foreknowledge you would be affected in the relevant way by your consumption of tramadol, or the subsequent taking of desvenlafaxine.

115 In considering the appropriate sentence to pass in this case, I have had regard to a number of previous sentencing decisions in this court. In R v Rees, a case of intentionally causing serious injury, the offender suffered from a drug-induced psychosis at the time of offending, which manifested in hallucinations, disorganised thoughts, bizarre delusional beliefs and emotional lability.[18] Hollingworth J accepted that the voluntary ingestion of alcohol or drugs will be an aggravating factor where the offender knew of the effect of the substance on themselves. Her Honour identified the critical factor in determining the significance of a drug-induced psychosis for sentencing purposes to be the offender's degree of foreknowledge.[19] The offender had not previously experienced psychotic symptoms as a result of drug or alcohol use. As the prosecution conceded that it was appropriate to treat the drug-induced psychosis as a mitigating factor, her Honour accepted that the offender's moral culpability was reduced by reason of his mental state at the time of offending.[20] Her Honour passed a sentence of five years' imprisonment with a non-parole period of two years in respect of offending that involved a serious example of the offence, which had involved a sustained, unprovoked attack with the use of a dangerous weapon in the presence of young children.[21]

116 In R v Sandhu, a case of attempted murder, the offender repeatedly and viciously stabbed his wife in her bedroom causing debilitating physical and mental injuries.[22] Croucher J concluded that the offending was objectively very grave, but the offender had very low moral culpability due to his behaviour being caused by psychotic deluded thoughts, precipitated by schizophrenia, that the victim was trying to kill him by poisoning. The judge concluded that the offender's behaviour up to and during the attack made it plain he was very unwell. Further, that his deluded thoughts that his wife was trying to kill him by poisoning did cause him to act as he did, such thoughts being the product of his schizophrenia. His Honour concluded that he was so deluded that his moral culpability was reduced, 'not to nothingness', but to a very low level'.[23] In the face of a very grave example of a serious crime which was much less serious than might have appeared at first blush, the judge sentenced the offender to seven years' imprisonment with a non-parole period of four years. But for his mental illness and plea of guilty, he would have sentenced the offender to between 12 to 14 years' imprisonment.[24]

117 In R v Gibson, a case of murder, the accused was floridly psychotic at the time the attack took place.[25] The jury's verdict of guilty was consistent with a drug-induced psychosis. Croucher J concluded that the offender was unaware that his drug use would make him violently psychotic. His Honour concluded that the offender's psychosis substantially reduced his moral culpability and degree of responsibility, as he did not know what he was doing was wrong, and did not know that taking drugs on this occasion would cause him to become violently psychotic.[26] In sentencing, the judge concluded that it was a very serious offence, but that the reduction in moral culpability and degree of responsibility on account of the psychosis made it a considerably less serious example of murder than its objective features would first suggest. The offender's moral culpability, deterrence, denunciation and just punishment were all factors to be reduced because of the psychosis in operation at the time of the offending.[27] His Honour imposed a sentence of 15 years' imprisonment with a non-parole of 11 years.

118 In the course of his sentencing reasons Croucher J helpfully assayed a number of other cases that discussed sentencing in cases where moral culpability is lowered.

119 I note that the sentence in R v Gibson was decided in 2016 before the standard sentence scheme which enacted the standard sentence for murder at 25 years' imprisonment. I also observe that the three cases I have just referred to are different in their facts and circumstances. While caution must be exercised in the making of useful comparisons with the present case, they are useful for their discussions regarding the principles to be applied, and the approach to sentencing in a case such as this. The decisions provide illustrations of cases where sentences lower than might have been initially expected have been passed due to their unusual circumstances.

120 In my opinion I must also keep firmly in mind that you have pleaded guilty to the offence of murder. By doing so, you have plainly acknowledged you acted in a conscious and voluntary way, satisfying all the elements of murder, albeit in a psychotic state. Given the particularly violent way you killed Ms Harris there is no doubt in my mind that you intended to kill her. The sentence I will impose, will take into account the necessary reduction in moral culpability, and the lessened requirement for general deterrence, specific deterrence, denunciation, and protection of the community.

121 Taking all matters into account and balancing these factors as best I can I sentence you to 18 years' imprisonment. I order that you serve a period of 14 years before becoming eligible for parole.

122 I acknowledge that this sentence is less than 25 years' imprisonment, being the standard sentence for the offence of murder. In all the circumstances of your offending, and especially considering the impact of my conclusions as to your mental state at the time of the offending, I am of the opinion that a significant reduction in what otherwise would have been your sentence, is appropriate.

123 I have imposed upon you a less severe sentence than I otherwise would have imposed, because you have pleaded guilty to this offence. I declare that but for your plea of guilty, I would have sentenced you to 22 years' imprisonment with a non-parole period of 18 years.

124 I declare you have served 572 days of pre-sentence detention, not including this day.

125 I will make this final observation. During the plea hearing in this matter, both Dr Carroll and Dr Sullivan gave evidence that the use of the drug tramadol was implicated in the offence committed by Mr Eckersley. I have found that to be the case. Further, Dr Carroll gave evidence that while a psychotic reaction from the use of tramadol is rare, nonetheless, it is a recognised risk. Dr Carroll gave further evidence that he would not expect this particular risk associated with the use of tramadol to be generally known by a GP. In those circumstances I intend to cause a copy of my reasons, and the transcript of evidence in this matter, to be provided to the Victorian State Coroner so that he might consider whether steps should be taken to make medical practitioners more aware of the possible risk of using this particular commonly used drug.

[1] [2019] VSCA 286 [37].

[4] [2007] VSCA 102; (2007) 16 VR 269, 276 [32] ('Verdins').

[5] [2016] VCC 1768 [21] ('Francis'), citing R v Martin [2007] VSCA 291 [19]-[20].

[6] Ibid, citing R v Martin [2007] VSCA 291 [30].

[7] Ibid, citing DPP v Arvanitidis [2008] VSCA 189 [30].

[8] Ibid, citing DPP v Arvanitidis [2008] VSCA 189 [34].

[9] Ibid, citing DPP v Arvanitidis [2008] VSCA 189 [34] and R v Martin [2007] VSCA 291 [18]-[30].

[11] [2005] NSWCCA 456 [36].

[12] DPP v Arvanitidis [2008] VSCA 189; 202 A Crim R 300 [34] ('Arvanitidis').

[17] [2019] VSCA 286.

[18] [2011] VSC 523 [13].

[22] [2016] VSC 516.

[25] [2016] VSC 634.