The Queen v Hudson [2013] VSC 184

2 You have a number of prior convictions dating back to 1987. I do not intend to go through each of those offences. They have been committed and dealt with in the Melbourne Magistrate's Court, Alice Springs Magistrate's Court and local courts in New South Wales, over your lifetime. When this offending commenced you were 17 years of age, in respect of the Victorian offences, and the first recorded offence in New South Wales was 1989.

3 Your 1987 offences relate to loitering for prostitution and unlawful possession. Your 1989 offences, in New South Wales, are soliciting for prostitution near a hospital, and malicious damage. You have over the years been involved in a number of charges relating to assault, assault police, offensive behaviour, common assault, larceny, disorderly behaviour and breaching of suspended sentences of imprisonment, for which you have received every penalty the court can impose, from the rising of the court to good behaviour bonds, fines, suspended sentences, community service orders through to actual custodial sentences. The longest sentence of imprisonment was in 1992, when you were sentenced for common assault, assault with intent to rob, break enter and steal and malicious wounding, to 16 months imprisonment with a non parole period of four months, by the Central Local Court in New South Wales. On the same date you were sentenced to the rising of the court for one count of stealing, one count of assault police, one count of larceny, three counts of failing to appear, two counts of goods in custody, one count of stealing from a dwelling house, one count of assault occasioning actual bodily harm.

4 As indicated your prior convictions are extensive, but in relation to your more recent history, from about 1998, that all occurred in Alice Springs and was a limited criminal history, in that you had in 2007 one count of resisting police in the execution of their duty, for which you were released on a 12 month good behaviour bond and in 2008 breach of order for release of bond, driving a motor vehicle whilst unlicensed, driving exceeding the alcohol limit - there was no action taken on the breach and you were fined $200 in respect to the driving offences, with your licence disqualified until 2009, and in 2010, one count of assaulting a member of the public service, for which you were sentenced to 14 days jail.

5 Before that, in 2005, resisting police in the execution of their duty, behaving in an indecent manner in a public place in 13 January 2005, and attempt arson, on two separate occasions in 2003. However, the majority of your offences going back to 2001 were in relation to resisting police, disorderly behaviour in public places and breaches of sentences.

6 Whilst that does not refer to every offence in detail, it demonstrates that your history goes back a long time and is extensive. It has some relevance in that you have a number of offences of violence which are clearly tied to your serious problems in respect of alcohol, which appears to be reflected in the penalties imposed.

7 I have received two victim impact statements in this matter and I have read and taken those contents into account.

8 The factual circumstances of your case are relatively straightforward, but to understand the full circumstances it will be necessary to examine your background, the background of Mr Heron, as well as the relationship that had existed between you. I will deal firstly with the bare facts of the offending, then the other matters to which I have just referred.

9 On 26 December 2011, you and Edward Heron were at your tent at the Bendigo Show Grounds Caravan Park. It was not a proper tent in that it was just hanging from a tree, it having been donated to you, but without any pegs or sufficient poles to erect. The circumstances in which you were residing were very poor. You and Mr Heron were observed drinking from at least 10am in the morning. This apparently continued throughout the day, and sometime after 3pm you and the deceased man were seen arguing outside your tent. At around 4.20 in the afternoon, you were seen to push the deceased man with one hand and when he fell over you jumped onto the deceased, straddling him across the stomach and chest area and you stabbed him with a knife. One of the witnesses, Patricia Hinneberg, thought that you stabbed him multiple times, but it is clear from the evidence of the pathologist that there was only one knife wound. Immediately after you had done this you were seen holding a black-handled knife and saying 'I've killed him and I want him to live'. You were described as being frantic and crying by another one of the neighbours, Lawrence Hinneberg. You rang Triple 000 requesting the attendance of the ambulance and telling them that you had, in fact, stabbed the deceased man. A nurse who was camping at the showgrounds, Robyn Mahady, came to assist and determined that the deceased man, was dead. When she did so, you took hold of her arm and said to her 'I've killed my husband, I've killed my husband' and you handed her your mobile phone to talk to the ambulance service, obviously in an attempt to help.

10 You were arrested and taken to the Bendigo Police Station where you were examined by a doctor and found unfit to be interviewed. I have viewed the CD of that interview and it is clear that you are distraught about the death of Edward Heron.

11 A post-mortem examination found, that the deceased man was killed by a stab wound to the chest, more specifically, a stab wound to the aorta and he identified only one significant stab wound.

12 This crime would appear to be one motivated by alcohol and anger on first view of it, but what must be understood in dealing with this matter is the long history both relating to your personal history, and the history of the relationship between yourself and Edward Heron.

13 Both you and Edward Heron are of Aboriginal descent. Edward Heron who was known as 'Woody' was born in March 1956 and was some 16 years older than you. He was removed from his family at a young age and placed in foster care in South Australia. He spent a great deal of his time in and out of the youth justice and prison environment. In 1985 he was convicted of robbery with violence and sentenced to six years, with a minimum of three years, and in July of 1996 he was convicted of the manslaughter of his first cousin, and sentenced to six years and one month imprisonment.

14 Your background is that you were born in Melbourne, one of five children to an Aboriginal father. You have never met your biological father but you are aware of who he was. You have four half-siblings; one who is deceased, and, in respect of your other half-siblings, one suffers from schizophrenia, another suffers from bipolar mood disorder, and there is a significant substance abuse history in the family. Your siblings are from a range of different fathers. You spent a deal of your time in Allambie and Winlaton, you were a state ward for a significant part. You attended Seymour and Glenroy Primary Schools, on a rather ad hoc basis, and your education could best be described as neglected.

15 The Crown in the opening said that you, at the age of approximately 13, went to Kings Cross in Sydney to live and work as a prostitute, which appears to be supported by your prior convictions and the evidence of Sister Noelene White, a Sister of the Good Shepherd religious order, who has worked in the Kings Cross area for 30 years.

16 You have been sexually abused since a young child. How you described it was that you remember people always "sticking things into you" You were suicidal, kept cutting yourself, and this pattern of behaviour continued until your return to Melbourne at approximately 22 years of age. You were in a relationship with Robert Lovett which, like all of your relationships up until that stage, was characterised by violence. You became pregnant and ran away to New South Wales. You were arrested for some offence, and your son Harley was born while you were in custody. Upon your release with the child, you became involved in yet another abusive relationship and finally you ran away to Alice Springs. You had been a heroin user up until the time of your pregnancy, you ceased at that time and did not resume. When you went to Alice Springs, you fell into a relationship with a man named Stephen Munjaloon, which lasted approximately eight years. It was a very violent relationship, and you say, that he pushed you in front of a four wheel drive, resulting in you spending some 16 months in hospital. You had to learn to walk again and your child, Harley, was in the care of child services.

17 In respect of your relationship with Mr Heron, that commenced about a month after your relationship with Stephen Munjaloon had finished. You had apparently known Mr Heron for some time, as he is related to the Lovett family. At that time you both drank excessively, which continued on and off over the years of your relationship. You met him, got drunk together and he moved in the next day. At that time your son Harley was 11 years old.

18 The relationship with Mr Heron has been appallingly violent. You described him as cutting your arms, hand, throat, pulling your teeth out with pliers, that he was very jealous, very suspicious, always believing that you were having sex with any male that you met, including with your son, your son's friends or any male around the area. The more he drank the worse the jealousy was.

19 It was in 2004 that Mr Heron moved to Alice Springs and you met up in 2005. The relationship was, from the early days, violent and abusive. On 1 March 2006 a domestic violence order, the equivalent of an intervention order in Victoria, was consented to by Mr Heron, which prevented him from assaulting you or being at your premises. Six days later, on the 7 March 2006, Mr Heron waited near your unit in Alice Springs and, when you arrived, assaulted you. To describe it as assault is to downplay the significance and horror of the injuries and suffering that he inflicted upon you. I have received, in a well prepared plea folder, at Item 2, a summary of relevant extracts from the sentencing of the deceased in 2006, and prosecution documents relating to that assault upon you. I will read only from the sentencing remarks of Martin AJ at page 653:

You struck her several times to her face with your left and right fists whereupon she fell over. One might have thought that such a retaliation in itself although unjustified with the result that she was then on the ground and totally defenceless would cause you to stop what you were doing. But you didn't. You resorted to kicking her in the face and back with your right foot which was clad in sand shoes at the time. That wasn't enough; you then bent down over her and what could only be regarded as being a very deliberate act, you bit her above her left breast. You then continued by placing both your feet together and jumping up and down on her face, her back and her head.

She remained on the ground and she stayed there until morning too fearful to move, and you initially, and I say callously, ignored her pleas to ring an ambulance until about 7am on the morning of 8 March.

You were asked by police why it was that you assaulted her and you responded that she brings out the nasty in you and that would be quite an understatement.

In referring to Mr Heron's criminal offence record his Honour said:

It is, it must be said, a very bad criminal record demonstrating your capacity for paying disregard to the law and court orders, but perhaps more importantly your capacity for violence.

20 You were so afraid of Edward Heron that when he told you that you could not leave or seek medical treatment for what he had done to you, you just stayed there on the floor, in your house, too scared to move all night. In the morning he let you out, to allow you to call for help. The bite wound became infected, and you had to be flown from Alice Springs to Darwin for treatment to your broken jaw. Mr Heron was sentenced to five years' imprisonment on one count of unlawfully causing grievous bodily harm to you.

21 Your father was Pintinjarra with a South Australia background and your mother's mother, your Nan, was also Pintinjarra. It would seem that you have spent all of your life, in terms of male partnerships, with indigenous men and you identify totally as an indigenous woman.

22 When the deceased went to prison you were passed back to your previous partner, Steve Munjaloon, a man who also, over your relationship, had violently assaulted you, until the deceased was released from prison, at which stage he tracked you down, found where you were living and you returned to him instantly, out of a combination of love, fear, lack of choices and hopelessness.

23 From the material, it appears that all the family members of both families, yours and Edward's, expected that you would be the one who died as a result of this relationship. There was much discussion in the statements about the deceased man's extreme jealously and constant infliction of violence upon you. Some three days prior to this killing, you were taken to the Bendigo Hospital and transferred to the Alexander Bayne Centre, which is a centre relating to psychiatric problems. You had been taken to the hospital with your throat cut from ear to ear, although not deeply.

24 It would appear that the deceased man may have been responsible for the infliction of that injury. When you were in a position to say to people who had done this to you without there being police around or the deceased man around, you indicated that he had inflicted this injury upon you. When he was around or the police asked you if he had inflicted that upon you, you would state that it was self-inflicted. You told those involved in your care at the Alexander Bayne Centre that it was the deceased Edward Heron who had cut your throat. You had been involuntarily held at the centre for two days before being released into the custody of the deceased man, the day before he died.

25 I have to say that I find it extraordinary that if such an allegation was made, which I do not doubt, that a person, no matter how persuasive, articulate or personable they may be, could persuade a psychiatric unit to release an exceedingly vulnerable, damaged woman into his care. If that did occur, in the manner indicated, it would merit a good examination of the policy operating at that unit, to ensure that there is not a repeat of a mistake like that again.

26 You returned home, the drinking commenced, and ultimately the deceased died in the manner I have outlined.

27 You came to accept that you deserved to be punished by Edward Heron, as well as the other men in your life. You accepted punishment was appropriate, because you made them angry, or upset them. In relation to Mr Heron, you believed to a large degree that he protected you, and this was just one of the prices you paid for that protection.

28 Your son Harley wrote a letter to the Court in which he detailed a recent contact he had with you and the deceased man who was universally known as Woody. You had been in Echuca to see him and your sister prior to arriving in Bendigo, after you had left Alice Springs. He said at page 2 of his letter:

By that stage I really didn't want to see Woody, but I wanted to see my mother. When they arrived things were pretty bad. They were both drinking a lot and their relationship was very violent. Woody was very jealous and wouldn't let mum our of his sight. If mum walked outside the house and Stephen was there. Woody would go crazy and accuse them of having sex. After about two or three weeks, I couldn't handle watching Woody abuse my mother any more, and I went to stay with my grandmother. I was so frustrated because when Stephen or I tried to defend her or protect her, she would turn on us and defend Woody. I think she was too afraid of him and wanted to make sure he wouldn't be angry with her, so she would stick up for him. It was like she was totally fixated on Woody, even despite all the harm he was causing her. Stephen eventually got sick of the constant accusations of having sex with mum because he was about my age and even used to call her mum too. He'd been trying to keep an eye on mum but eventually he gave up and dropped mum and Woody at the camp ground at Bendigo showgrounds.

Even though mum used to try and hide it from me, I knew how bad things were. I was aware of him biting her, cutting her throat, and giving her constant black eyes and injuries. She used to hide it from me all the time because she knew I hated it and I disapproved. I think she was also worried that if she got help from anyone, he would pay her back worse next time.

Even though Woody was a little bloke, he was very unpredictable and I was definitely afraid of him. He was the kind of guy where you wouldn't know if he would stab you in the back when you weren't looking. One weird thing about him was that he could be really charming and nice about five percent of the time, but he didn't seem to have a conscience at all. That was another reason I wanted to get mum away from him. I have never met a person with such obsessive jealousy, and it was a problem every day. At Debbie's house, he would even follow her when she went to the toilet, and stand outside the door. He followed her everywhere she went.

I am 100 percent sure that Woody would have killed mum eventually. All of us in the family knew that one day one of them would kill the other but we all thought it would be Woody who did it.

29 The evidence from the people in the showgrounds was clear. They heard constant yelling, screaming, abuse. One of the witnesses, Patricia Hinneberg, stated that every day there was a physical dispute between a man and a woman.

I have seen the man hit the woman just about every day. This would involve punches and slaps but I also saw him poke her in the face with his fingers, in the face a number of times. She would just sit screaming at him but not hitting back at him.

One of the other witnesses in the caravan park, Mr Mahardy, heard you assuring Woody that you didn't fuck the blokes on the hill and heard you saying that you wanted to go back to Alice Springs and Woody telling you he couldn't go back as he was wanted for raping that girl. Some of the people on the other side of the fence, the ones referred to as the blokes on the hill, would yell at him to leave you alone.

30 It would appear from all of this material that you were subject to constant violence by this man and everyone appeared powerless to prevent it including yourself. Your life clearly has been one where you have lacked the power to do much to make it better or worth living. Your life is a tragedy in the true sense, as to a degree was Woody's.

31 There are so many appalling stories within the indigenous community in Australia and it is hard to know where to start to do something about it. What is not to be doubted is that something must be done. We cannot let this continue as a society. We must stop this appalling violence being inflicted one upon the other by members of the indigenous community. Whilst there have been so many attempts to alleviate these problems, we have had, as a community, such limited success.

32 Your life reads like a horror story and I have no doubt people have tried at different times to help. I have had two of those people give evidence in front of me, both of them exceedingly caring and decent people who have tried to assist you and I am sure they are not the only ones over the years. I certainly don't know the answer and I doubt if anyone really does at this point. But as a community it is horrific that this goes on within our caring, egalitarian society. You have had 46 years of abuse, sexual, physical and emotional and we, the rest of the community, appear to have been powerless to stop it. I know insufficient of Edward Heron's background to make the same comment but I have no doubt he suffered as well.

33 As I mentioned, I heard evidence from a supporter of yours, Louise Katherine Howland, who resides in Kangaroo Flat. She has an art textile and publishing business in that area. She first met you in October, prior to this offending, and knew you on a relatively casual basis particularly through your dog Toby. She has, since you have been arrested, provided care and support to you. She has visited you in prison where you have been on remand and has provided a number of practical things for you, as well as emotional support. She has assisted your son to try and visit you and has been virtually your only visitor. Your mother still resides in Maryborough but she has not been able to organise for her to visit you yet. You and Miss Howland write to each other and she describes what you write as descriptive, amazing letters that have broadened over the time in custody. You appear, according to what Miss Howland tells me, to be grabbing hold of the opportunities that exist for you at Dame Phyllis Frost. You have done a cooking course, a computer course, English, maths and a course relating to domestic violence. You have also received assistance there with some physical problems that you have had in relation to your teeth, your eyes and you have gained some weight as a result of living a healthier lifestyle.

34 It is a rare thing to see people actually utilising the prison system for rehabilitation purposes, and I am heartened by your desire to do better for yourself. I do want to take the opportunity also to acknowledge Miss Howland and Sister Noelene White for being very decent, supportive citizens, who have done much to assist you over the contact time.

35 I have read the psychological reports that have been written in respect of you and whilst I do not agree with all of it, in terms of diagnosis. The history of abuse, the drug and alcohol history and some of the psychometric testing, I do accept. I do accept that you have a post-traumatic stress disorder, from the life and treatment that you have received over the years in terms of physical, sexual and emotional abuse. You have been, as Miss Lechner, clinical psychologist, says, violated, belittled and isolated from any form of support by the deceased. I accept her diagnosis of a dependent personality disorder and substance abuse dependency. You need assistance, you need support and, hopefully, with all of that, you may become a more functioning member of the community, more supportive to your son and more responsive to the social mores of our community.

36 You are, from what I can see, a very talented artist and it is to be hoped that with time that will develop and you will ultimately be able to be more self-supporting, increase your self-esteem, reduce your dependency upon violent, aggressive, exploitive men and reintegrate with your son, your sister and the rest of your family. As your son said:

I have only visited mum in gaol twice because I only got photo ID in March 2013. Mum's friend Louise Howland helped me organise my ID and took me to visit mum in gaol. I do talk to her regularly, and I went to Bendigo to be at her committal hearing. Strangely, I think being in gaol has actually been quite a positive experience for her. She has been cooking and gardening and making art, not drinking or using drugs, and she has had a chance to focus on getting her life back together. I am really looking forward to having a relationship with my mother again when she gets out of gaol. She is not interested in being in any more relationships, which I think is really good. She wants to go and live in Bendigo where she will have support from people she knows up there.

I know mum is really proud of me. I had a bad patch before I went into juvy but that really gave me a scare and I have sorted myself out. I am working as a kitchen hand in a restaurant in Keilor Road in Niddrie and I don't use drugs. I know mum is really proud that I am staying out of trouble, and she is looking forward to getting to know me better as an adult. It's like she has been trapped for years and hasn't been able to have a real relationship with me without being accused of doing something wrong. It's been a long time since it's been just the two of us without someone getting in the way and wrecking things.

I really want to see mum get on with her life free from the abuse she has copped for so many years. Even though we won't be living together, I am excited about spending time with her just the two of us, without the influence of alcohol, drugs and domestic violence.

37 There are many factors I have to take into account in imposing sentence. Your personal history is one of them and, in my view, a significant one in light of the offending to which you have pleaded guilty. Equally, the relationship that existed between you and the deceased man Edward Heron is important, particularly the violence that he perpetrated upon you over numerous years. The psychological conditions which you suffer, post-traumatic stress disorder, the alcohol abuse, substance abuse, and dependent personality are, in my view, all related to the offending and are relevant in terms of consideration for mitigation of penalty as outlined in Verdins. Your plea of guilty to manslaughter was offered at an early stage and was accepted by the Crown. You are entitled to a significant discount for that plea. I accept that the plea demonstrates, as does all the rest of your conduct, that you are incredibly remorseful for what you have done. Despite the problems in your relationship it was clear that you loved Woody a great deal. The two of you shared a most tragic life, resulting in a most tragic death. Your particular background mitigates and reduces the need for general deterrence and the prospects I find for you, in relation to rehabilitation, also mitigate against specific deterrence being an important consideration. Whilst each of those matters must still be considered, they are not of the significance that they would normally occupy in a sentence relating to manslaughter.

38 A number of the comments that were made by the Court in DPP v Lovett[1] and Fuller-Cust[2], DPP v Moore[3] and my own remarks in the sentence of DPP v Kulla Kulla have application. Although you are not a youthful aboriginal offender, so many other aspects are identical to that relating to Melissa Kulla Kulla and your tragedies are remarkably similar.

39 Taking into account all of the matters that I need to in relation to determining your sentence you are convicted and sentenced to be imprisoned for 6 years. I direct that you are to serve a minimum term of 3 years before becoming eligible for parole.

40 Pursuant to s 6AAA, I declare that the sentence I would have imposed but for your plea of guilty (and taking no other factors into account) would have been a sentence of 7 years and 6 months with a minimum of 4 years and 6 months.

41 I declare that there have been 488 (four hundred and eighty eight) days served in pre-sentence detention in relation to this matter and such is to be noted in the records of the Court.

42 An application pursuant to s 464ZFB(1) in relation to retention of the forensic sample is granted.

[1] [2008] VSCA 262.

[2] [2002] VSCA 168.

[3] [2009] VSCA 264.