The Queen v Jones [2018] VSC 415

3 You began a relationship with Daniel O'Brien, known as "Danny", in 2013. It was a volatile relationship, marred by illicit drug use and domestic violence. You were both users of "ice" and seemingly chronically short of money. Those close to each of you observed you both engage in aggressive behaviour. There were instances of physical violence.

4 On 29 April 2015, you attended the Werribee Police Station to report an incident that had occurred that day where Mr O'Brien had grabbed you around the throat, as well as earlier incidents in which he had threatened to harm and kill you. Mr O'Brien was charged with and, in July 2015, pleaded guilty to assault. Additionally, police obtained an intervention order on your behalf. With the support of Anglicare and Yarra Housing, you obtained premises independent of Mr O'Brien. Notwithstanding, however, the terms of the intervention order, you continued to contact Mr O'Brien, visiting him at his home and he you at your home.

5 On 12 October 2015, you again attended the Werribee Police Station to report an incident that had occurred on 8 October 2015. Mr O'Brien was staying at your house by your invitation. You had become pregnant to him. Following a verbal argument you heard Mr O'Brien swearing in the bedroom. You entered that room to tell him to calm down. He pushed you from the room. In response, you armed yourself with a knife from the kitchen and returned to the bedroom to confront Mr O'Brien and tell him to leave. Mr O'Brien grabbed you by the throat and said "c'mon you dog, stab me". You dropped the knife and were punched to the head twice. You slapped him. And he slapped you in return.

6 Notwithstanding that you later signed a statement of no complaint, police issued charges against Mr O'Brien. These were unresolved at the time of his death.

7 Police issued a further charge against Mr O'Brien relating to a breach of the intervention order on 17 October 2015. On that occasion there was no allegation of violence. Rather, Mr O'Brien was at your home at your invitation to collect some personal items. The breach was not reported by you. Again, this charge was unresolved at the time of Mr O'Brien's death.

8 The continuing contact between you and Mr O'Brien in the face of the intervention order and your pregnancy attracted the attention of the Child Protection Unit of the Department of Health and Human Services ('DHHS') in February 2016. That interest was initially satisfied by your stated intention to extend the period of the intervention order and an apparent cessation of contact between you and Mr O'Brien.

9 Your child, and that of Mr O'Brien, was born on 28 May 2016.

10 The DHHS again made inquiries upon being notified that Mr O'Brien was present at your child's birth. Further referrals were made to Child Protection workers in both October and November 2016 concerning your drug use and the circumstances in which you permitted contact between your infant and Mr O'Brien arising from when you took that child to the Williamstown boarding house where Mr O'Brien resided.

11 Those who observed your relationship with Mr O'Brien following the birth of your child describe a pattern of frequent and explosive verbal altercations followed by reconciliations in addition to persistent drug use. Indeed on 28 July 2016 there was a further application for an intervention order against Mr O'Brien following one such altercation. That application was struck out on the return date in October 2016 because you were with Mr O'Brien and failed to attend court.

12 You have also stated that on other, unspecified occasions, you received injuries from Mr O'Brien, including broken teeth and cigarette burns. Your sister once observed bruising on you which you said was caused by Mr O'Brien.

13 In the early evening of 8 December 2016 you and Mr O'Brien met outside your residence. When he departed, you organised for another man to drive you and your baby to Williamstown. You were seemingly anxious to contact Mr O'Brien, sending

13 text messages and making 54 unanswered calls to him in the space of about two hours. You arrived at the boarding house at approximately 8.35 pm and gained access to Mr O'Brien's room by climbing through the window and unlocking the door. Mr O'Brien returned about 15 minutes later.

14 Shortly after midnight another resident of the boarding house heard a woman's voice from Mr O'Brien's room repeatedly shouting "where is my drugs". At about 9.30 am on 9 December 2016 a different resident heard a man and woman yelling and the sound of a baby crying from within Mr O'Brien's room. About ten minutes earlier, a worker at a construction site near the boarding house heard a raised male voice in what sounded like an argument.

15 While there was some factual dispute as to whether there was any physical violence between you and Mr O'Brien that morning, a matter to which I shall return later, it is common ground that there had been at least a heated verbal argument between you both and, in that context and against the history of domestic violence, you perceived a threat to your person from Mr O'Brien. He sat at the small table in the room either preparing a syringe of methylamphetamine for his use or having just used that syringe. As he went to stand up, you picked up the kitchen knife from the table and stabbed him to the chest.

16 An autopsy was conducted on 10 December 2016. The cause of death was described as "a single stab wound to the right side of the chest". The toxicologist's report noted that Mr O'Brien had methylamphetamine, amphetamine, THC, Morphine, Codeine and various metabolites of these drugs in his system. It was confirmed that the syringe recovered from the boarding house contained methylamphetamine.

17 Following the stabbing, carrying your baby in your arms, you immediately left the boarding house and walked to the Williamstown Police Station, about 100 metres away. You told the duty officer to call an ambulance and that you had had an argument and had stabbed "him". You were cautioned and prior to formal interview, told police that you had been threatened, punched and grabbed around the neck. You said the same thing to the medical doctor who examined you that day.

18 You were formally interviewed over some hours during the afternoon and evening of 9 December 2016. You told police that there had been physical and verbal violence between you and Mr O'Brien from the previous night through to that morning and that you feared Mr O'Brien, believing he would not let you leave the boarding house with your child.

19 By your plea of guilty, you accept that you stabbed Mr O'Brien and that you had no lawful justification for doing so.

20 Mr O'Brien was only 37 years old when you killed him. I have received the victim impact statements from his mother, grandfather, brother and aunts. Danny O'Brien was a much loved son, grandson, brother and nephew. What is clear is that, despite

Mr O'Brien's struggle with drug addiction, he was dearly loved and supported by his family and they, like him, hoped that the birth of his child would provide a catalyst towards sobriety.

21 Each of them speak about how they dread anniversaries and family milestones, occasions that were once joyful. His grandfather will never again talk to him about the football. His brother described a need to invent an explanation of an accident to explain Mr O'Brien's death so as to avoid further pain in social settings. His mother and aunts talk of social isolation and constant emotional pain. Each of them are determined that his daughter will understand how much love her father felt for her. They are devastated by his death.

22 You have one prior court appearance for a criminal offence. On 12 May 2010 you pleaded guilty to a single charge of recklessly causing injury. You were convicted and sentenced to a term of imprisonment of 12 months. The sentence was wholly suspended for a period of 18 months. The circumstances giving rise to that conviction are relevant.

23 The incident had occurred in 2009. You were then in a relationship with Simon Bucsko, the father of your eldest child born on 17 October 2008. You and Mr Bucsko were no longer residing together and he had come to your house to visit you and his child. You had been drinking alcohol and became angry with Mr Bucsko. A heated argument developed in which you were both yelling. You kicked Mr Bucsko to his legs and then armed yourself with a knife from the kitchen. You then punched Mr Bucsko to the nose a number of times. As he attended to his blood nose over a sink you stabbed him in the back. He punched you on the arm. You took up another knife and again stabbed him, this time in the shoulder. Thankfully the stab wounds were minor.

24 When interviewed by police you said that there had been an argument and you had ended up pulling a knife because you had just had enough.

25 It is to be remembered that prior to the fatal knife incident with Mr O'Brien on

9 December 2016 you had also threatened him with a knife in October 2015.

26 Your demonstrated capacity to not only brandish a knife but to use it in situations of conflict makes specific deterrence, that is, imposing a punishment that will deter you in the future from such conduct, an important consideration.

27 You were born on 31 December 1977. You were 38 years old at the time of the offending. You are now 40 years old.

28 You are the youngest of four children born to your parents. You have two older brothers and a sister. Your father was a pastor and also ran a business. Your mother was employed in a variety of occupations. Your parents remain married.

29 As a child you had a troubled relationship with one of your older brothers and, at the age of nine, were raped by two males who were friends of that brother. You have carried the burden of that trauma largely on your own.

30 In the early years of your secondary schooling you experienced bullying by other girls and, as a consequence, sought your friendships largely outside of school. Behavioural and academic issues followed. You began to smoke marijuana. Notwithstanding your falling grades, truancy and the fact that you left your family home aged 14, you attempted the VCAL. You did not complete that program. After leaving school you worked in a variety of jobs and at one stage commenced a business that cleaned new houses prior to sale.

31 It seems that for large periods you have been estranged from your family, perhaps feeling that your parents, particularly, disapproved of your lifestyle choices. However, your parents and sister are now playing an important role in the raising of your children and go out of their way to ensure that you receive visits from all three of them. These arrangements as well as their love for and support of you are detailed in written character references that I have received.

32 You have had a number of significant relationships in your life.

33 As I have already said, Mr Simon Bucsko is the father of your eldest child. Your relationship with him commenced in 2000 and ended about ten years later. Importantly for both you and that child, your friendship survived the 2009 knife incident. That child, now nine years old, resides with your sister during the week and her father each weekend. Mr Bucsko remains supportive of you, provided a written character reference and was present in court during the plea hearing.

34 In 2012 you commenced a relationship with Mr Craig Seamer. A child was born of that relationship on 6 April 2013. The pregnancy was unplanned and the relationship ended later the same year. While you had custody of that child during the first years, that child, now five years of age, resides with his father.

35 You met Mr O'Brien in 2013. As I have already detailed, that relationship was marred by illicit drug use and domestic violence. And, as I have already noted, that relationship produced your youngest child. During that relationship and prior to her birth, you had suffered two miscarriages. That child, now aged two, resides with your sister. Mr O'Brien's family have ongoing and loving contact with her.

36 While your counsel did not press the issue as a wholly exceptional circumstance, it nonetheless remains true that one of the consequences of your offending is that despite regular visits from all three of your children, your incarceration means that you have and will continue to miss significant years of their childhoods. And they will miss the opportunity to mature cloaked in the love of their biological mother.

37 I have had the benefit of reading the psychological assessment report of Ms Alison Mynard and of hearing her evidence during the plea hearing. I have also read the report of forensic psychologist Pamela Matthews, prepared in 2009 with respect to the knife incident with Mr Bucsko.

38 Ms Mynard diagnosed you as suffering post-traumatic stress disorder and excoriation disorder. Although the latter diagnosis was challenged by the Crown, I accept that irrespective of the diagnostic label attached, you have observable sores on your body, these subsist even though you have demonstrably remained drug free in custody, you pick at the sores and the condition causes you some level of anxiety.

39 Your counsel, correctly in my view, made no suggestion that your psychological condition warrants the application of the principles in R v Verdins.[1] At the same time there is no doubt, and it is common ground, that your experience of abusive relationships framed your response to the situation as you perceived it on 9 December 2016. Ms Mynard summarised it in this way:

Over most of her relationships, Ms Jones suffered domestic violence; either emotionally, verbally or physically abused by the men she was with. She was often terrified, scared to stand up for herself, feeling trapped in the relationship. When she did report the violence to the police, she was abused even more by her partner, as punishment for telling the police. She became isolated from her family and friends, and her self-esteem and self-confidence decreased significantly. Ms Jones became traumatised, on edge and did not feel safe, becoming worse with Mr O'Brien's violence.[2]

40 It is necessary to say something about your drug use. Although you denied to

Ms Mynard regular use of illicit substances, on 9 December 2016 you told the forensic medical officer who examined you that you had used methylamphetamine for eight years, the most recent occasion being three days prior to your offending. Your counsel conceded that the latter statement was true. There is no suggestion that you were drug affected at the time of Mr O'Brien's death.

41 I have received a bundle of urine analysis results spaning some nine months which show that you are and have remained drug free while in custody. Additionally, you have completed the "6-Hour Ice Effects Program". Indeed I have received copies of numerous certificates for courses you have completed in custody, as well as references from service providers with whom you have engaged, indicating that you have enthusiastically taken advantage of the programs available to you in custody. These include, but are not limited to, those aimed at understanding family violence, managing worry, and conflict resolution and communication. You have also been awarded a Certificate II in both Cleaning Operations and Kitchen Operations.

42 At the hearing of your plea, there was some dispute between the parties as to whether there was any physical violence between you and Mr O'Brien on the morning of 9 December 2016.

43 You told police that you and Mr O'Brien had argued over money and that he had purported to end your relationship, telling you that he had not loved you for a long time. You responded by calling him unpleasant names.

44 You went to pack your bag and pick up the child when he told you not to touch the baby and that he would not let you leave with her. You said "he got in my face and was threatening me and grabbed me around the throat and said, 'I'll squeeze the life out of you before you take my daughter anywhere'". You slapped him and went to take the baby when he punched you to the back of the head. Further verbal unpleasantries took place.

45 Mr O'Brien then sat on his chair at the table while you placed the infant in the bassinette. You then approached the table asking Mr O'Brien why he went out of his way to hurt you. He told you to go "fuck yourself". As you got close to him he picked up the syringe, you thought he might stab you with it and as he stood up you took the knife from the table and stabbed him.

46 The Crown submit that the only evidence that you experienced physical violence that morning comes from that account given by you to police later the same day and that I should exercise care in accepting that version in the absence of objective, corroborating evidence. It was said that your credibility was poor and you told a number of lies both in that record of interview and to others.

47 In the event, I find it unnecessary to express a concluded view. The prosecutor did not press the submission that your action in stabbing Mr O'Brien was simply one of anger and of having had enough. She accepted that you had a history of domestic violence with Mr O'Brien, - including being the subject of physical assault - that you had had a loud verbal argument and, at the time you stabbed him you held the belief that Mr O'Brien may well be planning to hit you. In those circumstances and, as conceded by the Crown, whether he had previously hit you that morning or not is of little weight in the assessment of the gravity of your offending.

48 Family violence is insidious. It need not find expression in physical violence to be described as grave or create a mindset in its victims of fear and helplessness. That mindset arises from all forms of violence experienced by victims and is not triggered only at the time of a physical assault. Your relationship with Mr O'Brien was one plagued by family violence of varying kinds.

49 I note that if it were necessary to express a view, I would accept, on the balance of probabilities, that physical violence had occurred that morning. While you gave untruthful answers to some questions asked of you by police on 9 December 2016 and later, such as your denial to Ms Mynard of illicit drug use, your account of what had occurred at the boarding house was voluntary, spontaneous and immediate. Notwithstanding some inconsistencies in your various accounts of that morning and your relationship with Mr O'Brien more generally, they had an internal logic and coherence. In that regard I accept the evidence of Ms Mynard that many women who have experienced domestic violence and have post-traumatic stress disorder manifest an incoherent way of telling their stories.

50 But, as I say, given the Crown concession, such a finding is unnecessary. The gravity of your offending is to be assessed in the context of your history of family violence and the perception you had at that time of physical threat.

51 Having been charged with murder, your offer to plead guilty to manslaughter was made and accepted after a contested committal. I note that the witnesses cross-examined during those proceedings were limited and none shared a special relationship with Mr O'Brien.

52 While the plea was not made at the earliest opportunity, it was nonetheless made well prior to trial. It involves an acceptance by you of your responsibility for Mr O'Brien's death and a willingness to facilitate the course of justice. It has significant utilitarian benefit and has spared the witnesses, particularly Mr O'Brien's family, the ordeal of a trial.

53 Additionally, I accept that your plea is an expression of your genuine remorse for your actions and the death of Danny O'Brien. Immediately after the incident you went to the Williamstown Police Station with your baby in your arms and, in a distressed state, asked for an ambulance to be called because you had stabbed Mr O'Brien. You made no attempt to alter the scene or hide the knife. Throughout the course of your interactions with police that day you made many heartfelt statements of contrition.

54 I take into account that your time in custody will be more burdensome because you are separated from your young children, your post-traumatic stress disorder and your condition of picking at skin lesions.

55 Your counsel submitted, and the Crown agreed, that your prospects for rehabilitation are best described as guarded. Your immediate response to police and your plea of guilty both suggest some prospect of rehabilitation. It is encouraging that you have used your time in custody productively, fully engaging with available courses and work opportunities and have also remained drug free. You have strong support from your family, particularly in ensuring that you are able to maintain relationships with your three children.

56 But your demonstrated capacity to reach for a knife when in a situation of conflict

• and, particularly, to use it - must temper an assessment of your rehabilitation prospects. I agree with the characterisation of those prospects as guarded.

57 And the sentence I impose on you must give significant weight to specific deterrence.

58 General deterrence and denunciation are also a significant sentencing factors. This Court must pass a sentence that denounces your behaviour and deters others from resorting to the use of knives or other sharp objects during conflicts. Fatal consequences from such behaviour all too readily follow.

59 Manslaughter by unlawful and dangerous act encompasses a broad spectrum of offending. I consider this offence falls in the middle to upper range of that spectrum given that the victim was stabbed in the chest with a large knife during a domestic dispute.

60 I have been referred to a number of manslaughter cases to assist me with the range of sentences for an offence such as this[3] as well as the Sentencing Advisory Council Sentencing Snapshot.[4] I have had regard to current sentencing practices.

62 Balancing, as best as I am able, the competing considerations laid down in the

Sentencing Act 1991 ('the Act') and having regard to the matters I have just discussed, for the offence of manslaughter, I sentence you to imprisonment for nine years. You must serve a minimum of seven years before being eligible for parole.

63 I declare that you have already served 599 days of that sentence by way of pre-sentence detention.

64 I am required by s 6AAA of the Act to indicate what sentence I would have imposed but for your plea of guilty. As such, I declare that I would have imposed a sentence of eleven years' imprisonment with a non-parole period of nine years.

65 I make the disposal order sought by the Crown in respect of the knife and other items listed in the Schedule.

[1] R v Verdins [2007] VSCA 102; (2007) 16 VR 269.

[2] Report of Alison Mynard Clinical Psychologist dated 12 July 2018 at [35].

[3] R v Pitt [2012] VSC 591; R v Hudson [2013] VSC 184; DPP v Kerr [2014] VSC 374; R v Clark [2015] VSC 377; R v McLaughlin [2016] VSC 189; DPP v Walker [2018] VSC 83; R v Johnston [2015] VSC 16; R v Kells [2012] VSC 53.

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