The Queen v Klaussner [2015] VSC 296

3 In August 2013, you both moved into a cabin at a caravan park in Yarra Junction, after being evicted from a boarding house for the non-payment of rent. By the end of September, you were again having trouble paying rent.

4 On the morning of her death, Ms Barnes received her Centrelink payment of about $740. Neither of you had any other money. The two of you travelled to Yarra Junction, where she withdrew $200. She gave you $50, which you used to buy six cans of bourbon mixed drink. After buying a few other items, you both travelled to Warburton. On arrival, you bought a couple more cans of bourbon mixed drink, and she bought you some lunch.

5 You both met with one of your friends, Kevin Blain, and went to a nearby pub for a beer. Then you and Ms Barnes met a local real estate agent, and looked at a couple of potential rental properties. You went back to the pub, and continued drinking with Mr Blain. You and Ms Barnes discussed how much you would need for rent and bond, if you were successful in your rental applications. According to Mr Blain, you each drank about eight pots of beer at the pub.

6 After you returned to the caravan park, around 4.00 pm, you went to another cabin to drink with a neighbour. While you were there, around 5.30 pm, you sent a text to Kevin Blain to the effect of "can I kill her" or "should I kill her." The prosecution accepts that, when you sent the text, you were annoyed or fighting with Ms Barnes and just letting off steam. It is not suggested that this is evidence of premeditation.

7 You went back to your cabin around 6.00 pm. You wanted to buy some drugs; Ms Barnes did not want you to. The two of you argued about that. You killed Ms Barnes in the fight that followed.

8 You admit to holding her down on the floor, with your forearm across her throat. You said she stopped breathing, after what seemed like a couple of minutes, and blood started coming out of her mouth. You claim that you were acting in response to Ms Barnes attacking you with a knife.

9 Several neighbours heard noises from your cabin, around 7.30 or 8.00 pm. One of your neighbours heard a short sharp scream, a thump, and soft sobbing from a woman. Others variously heard thumping noises (on and off, over a period of about 10 minutes), a female scream, or a gargling sound (for 5 or 6 minutes).

10 After you killed Ms Barnes, you left her on the floor of the cabin, took her bank card and went out to buy drugs. You asked a neighbour to drive you to Yarra Junction, where you tried to withdraw money from Ms Barnes' account. You were unsuccessful, as you could not remember her PIN. You then asked your neighbour to drive you to Lilydale, where you met with your dealer and bought $100 worth of methamphetamine (ice) and $20 worth of cannabis.

11 You told your dealer that you had "strangled [your] missus and knocked her out." You demonstrated to him what you had done. You said you did not know if you had killed her, and were too scared to go back and see what had happened. Your dealer advised you to go back to help her, and call an ambulance. However, he did not believe you were telling the truth; he thought you were boasting and lying.

12 Around 10.00 pm, you returned to the cabin and injected the ice. Just after 10.50 pm, you used Ms Barnes' mobile phone to text one of her friends, trying to arrange to buy more ice. You also found Ms Barnes' PIN on the phone, and wrote it on your hand in texta.

13 Sometime between 10.00 pm and 12.30 am, a neighbour heard sounds like a woman groaning in a sexual manner. As Ms Barnes was dead by this time, it is likely that the sound was from pornography that you were watching in the cabin. For about quarter of an hour, around 3.00 am, you filmed and photographed yourself masturbating in the cabin, using Ms Barnes' mobile phone. You twice tried to use her bank card to access an on-line dating site.

14 At some stage, you moved Ms Barnes' body, and put a pillow under her head and a doona over her.

15 Just after 8 o'clock the next morning, you took a taxi to Yarra Junction. You took $280 out of Ms Barnes' bank account. You arranged to meet with your dealer that afternoon, and spent $200 on ice. You injected the ice with a friend, and spent the night sleeping in a park.

16 The next morning, Saturday the 28th, you called Ms Barnes' son, to cancel his proposed visit that day. You bought more alcohol, and caught the bus back to the caravan park, arriving around 12.30 pm.

17 You went to your cabin and drank more wine. Shortly after 4.00 pm, you called Mr Blain. You told him you had fought with Ms Barnes on the Thursday evening, gone out to buy ice, and come back the next day and found her dead. You then went to a neighbour's cabin, where you repeated that story. The police and an ambulance were called.

18 Initially, you lied to the police and ambulance officers, giving a similar story about having come back to find Ms Barnes dead. You also maintained that version of events when interviewed by police the following day, the Sunday.

19 After making a prior arrangement to meet with police, on 18 October 2013 you were given a lift to the St Kilda Road police station. On the way to the station - a journey which took around one hour - you proffered the names of a number of people as potential suspects, including: a former boyfriend of Ms Barnes; the boyfriend of a female friend of hers; a neighbour at the caravan park; and a mutual friend. You offered considerable detail about each of those persons, and their possible motives for killing Ms Barnes. You also accused Ms Barnes of having been violent with you in the past, including having broken your nose three times. You claimed that you were not a violent person. You said several times how upset you were at not even knowing the cause of Ms Barnes' death.

20 During the formal record of interview at the station, you continued to maintain your earlier, false version. You said that after arguing about drugs, she had given you her bank card and told you to go get some drugs. You said that when you came back, you used the drugs in front of her, had another disagreement, and then left. You said that when you came back the next day, she was dead.

21 When shown the films and photos which you had taken of yourself on Ms Barnes' phone in the early hours of the Friday morning, you initially said you could not remember when you had taken them. Then you changed your story and said you had come home on the Thursday evening (not the Friday morning) and found her dead; you said you must have taken the photos later that evening, when you were "in a world of your own" on drugs.

22 Then, during a cigarette break, you finally admitted to killing Ms Barnes. In the resumed record of interview, you told police that Ms Barnes had picked up a knife and attacked you with it. You said she kept trying to stick the knife into you, and you were only acting to defend yourself. You said that you responded by picking her up by the throat, putting her on the floor, and holding her down with your forearm across her throat to subdue her. You said she stopped breathing, after what seemed like a couple of minutes, and blood started coming out of her mouth. You denied stabbing her or striking her with the knife. You said that after disarming her, and kicking the knife away, you did not know what happened to it. You said you could not explain the knife injuries which she suffered.

23 There is no dispute that the cause of Ms Barnes' death was strangulation. However, there were many cuts and bruises to her face and neck, the most substantial of which was a stab wound to the back of her neck. That stab wound was 3 cm long and 7 cm deep, and would have required at least moderate force. The depth and angle of the wound make it highly unlikely that it was inflicted accidentally. It is also highly unlikely that the stab wound was inflicted after death. Ms Barnes also had superficial, incised wounds to her face and left side of her neck, which were likely to have been inflicted by a sharp bladed instrument such as a knife. She had multiple lacerations and abrasions on her face and neck. Her injuries suggest she was struck to the face with blunt force. Blood stains on the floor suggest she had been bleeding from her head or neck, when her head hit the ground.

24 I accept that there was some sort of verbal argument between the two of you, concerning whether or not you could go and buy drugs. However, I agree with the prosecution that your final account to police of the physical aspects of the fight should be treated with some caution, for a number of reasons.

25 You have acknowledged that you have a poor, and partly contradictory, memory of the relevant events.

26 Your version does not explain in any way the stab wound to the back of Ms Barnes' neck, or the numerous other injuries to her face and neck.

27 Ms Barnes did tell a friend of an earlier occasion when she had hit you with a beer bottle. There is also evidence of an instance of the police being called; they found you both very drunk and suffering from minor physical injuries that you had apparently inflicted on each other. But there is no evidence to support your assertions that she had broken your nose on multiple occasions, or otherwise been violent towards you in the past.

28 In February 2013, Ms Barnes had attended hospital, after her right hand had been severely cut with a knife. As a result of those injuries, she had trouble firmly gripping items. She was going to require further surgery, to try to increase her ability to use her hand. If Ms Barnes did pick up the knife, it would have been either in her injured right hand, or her non-dominant left hand. You were much taller, heavier and stronger than her. In all the circumstances, it should have been apparent to you that she posed little threat to you, even if (as you assert) she did approach you with a knife in her hand.

29 The fact that you suffered no defensive injuries, and she suffered multiple injuries, indicates what a one-sided fight it was.

30 There is evidence that you had both been drinking over the course of the Thursday; that was not uncommon for either of you. Whilst the evidence suggests that you had drunk more than Ms Barnes, the precise extent of your alcohol consumption that day is unknown.

31 You have given a number of different accounts as to whether you had used ice before you killed Ms Barnes. You did initially tell police that you had used ice in Ms Barnes' presence on the Thursday night; but that was in the context of your false account of leaving her alive in the cabin, and coming back the next day to find her dead. When you did eventually confess to the police that you had killed her, you only told them of using ice after you had killed her. Indeed, on this later account, the very thing that the two of you fought about was whether you could use some of the Centrelink money to go and buy drugs; she was refusing to let you do so, and you were desperate to have another hit.

32 It is not entirely clear from the report of Jeffrey Cummins, a forensic psychologist who assessed you for the purposes of the plea, whether you told him that you had used ice before you killed Ms Barnes; his report is rather confusing and inconsistent in that regard.

33 In fact, there is no evidence that you had obtained or used ice before you killed Ms Barnes. But even if you had already taken ice, that might help explain, but it would certainly not justify, your behaviour.

34 I do accept that you acted spontaneously, in the heat of an argument, without any premeditation. The prosecution accepts that your intention while you were strangling Ms Barnes was to cause her really serious injury, not to kill her. However, this was not a fight involving a single, reactive act. The evidence suggests a sustained attack by you, using a knife as well as the continued application of pressure on her throat, over a period of at least some minutes.

35 Your behaviour over the days after the killing demonstrates a complete lack of remorse and disregard for anything except your own interests. Your immediate impulse was to go and buy drugs, not to seek help or tell anyone what had happened. Your consumption of ice may explain your sexual behaviour in the cabin later that night; it may also explain why you left Ms Barnes' body lying on the floor for two days. But the fact remains that you were concerned only for yourself.

36 There is no doubt that after you killed Ms Barnes, you took her bank card and spent her money for your own pleasure. However, I do not accept the prosecution submission that that fact should be treated as an aggravating feature in itself; I do not regard your conduct as akin to stealing from a dead person. It is clear that the two of you pooled your resources, and lived from one of your welfare payments to the other's. You both treated your money as joint property.

37 Once you did tell people that Ms Barnes was dead, you gave a false account in which you played no role in her death. You persisted with that lie on numerous occasions, over the next three weeks. You went even further, and tried to direct police suspicion onto other people. In your recorded conversations with police on 18 October, you appeared calm, coherent and confident; you did not appear to be affected by drugs or drug withdrawal at that time. I regard those various lies as an aggravating feature, and not merely as demonstrating a lack of remorse.

38 In her very helpful submissions, the learned prosecutor referred to a number of cases that contained features similar to this case. The current case may fairly be characterised as being within the mid-range of seriousness for this offence.

39 Before I consider your personal circumstances, I want to say something of the impact your actions have had on others. Elizabeth Barnes was one of three children born to Sandra and David Waterton. She was 37 years old when she died. At that time, her only child, Mitchell, was 20 years old, and she had a young grandson.

40 Victim impact statements have been provided by Ms Barnes' son, her mother and brother. They are all struggling to come to terms with losing her, and think of her often. At times the sense of grief is overwhelming. Her grandson is too young to understand what has happened to her, but frequently asks after her.

41 I turn to consider your personal circumstances. You were born in August 1974. Your parents separated when you were about 6 or 7. There was ongoing conflict between them after they separated, and you moved around a lot between them.

42 You attended secondary school until you were about 15, when you left after failing Year 9. After leaving school, you began a panel beating apprenticeship; however, you left after only six months. Over the next 10 years or so of your life, you infrequently obtained employment in various short term casual jobs. Your longest form of employment has been as a furniture removalist. Your longstanding addictions have affected your ability to hold down regular employment. You have frequently lost your driver's licence because of drink driving offences. You have lived on welfare payments for much of your adult life.

43 You started abusing alcohol when you were about 14; you have continued to do so throughout your life, except for a period of about three years in your early 20s.

44 You started using cannabis when you were about 17 or 18. By your mid-20s, you were regularly bingeing on amphetamines. After about one year, you had largely moved from amphetamine to methamphetamine (ice). Thereafter, you used ice on a regular basis. You have also intermittently used ecstasy.

45 In early August 2013, you spent a week in a residential drug and alcohol program. You had clearly resumed drug and alcohol use between then and Ms Barnes' death.

46 Although you have suffered from depression from time to time, according to Mr Cummins that condition is being adequately managed on your current medication. There is no suggestion that any Verdins issues arise in your case.

47 You have 11 prior convictions between February 1993 and September 2011; they are almost all for driving-related offences. You have one minor subsequent matter. You do not have any prior convictions for crimes of violence, and have never served a sentence of imprisonment before now.

48 Although you do not have prior convictions for violence, you have admitted to engaging in some other violent acts. In March 2013, you said you had been throwing a punch at Ms Barnes, but pulled the punch at the last minute, breaking your wrist in the process. You also told police and a doctor about a very violent attack which you had made upon a man in a boarding house.

49 At the committal hearing, in August 2014, you pleaded guilty to murder. Then, at the first directions hearing in this court, you asked for time to consider your position; that was because you had engaged new lawyers, who wanted time to consider your case. After a series of further mentions, in the course of which the matter was listed for trial, you pleaded guilty to murder in this court on 4 March 2015. The prosecution accepts that this should be treated as a very early plea.

50 You are entitled to a discount on the sentence to be imposed upon you in recognition of your plea, and its utilitarian value. Your plea has facilitated the course of justice. The community has, by your plea, been spared the time and cost of a trial of the charges against you. The family and friends of Ms Barnes have been spared what would have been a very traumatic trial.

51 Over the 20 months that you have been in custody, you have made a number of positive steps towards rehabilitating yourself. You have not returned any positive drug screens. Until recently, you have held down a responsible and trusted position in the prison laundry. You have undertaken a number of courses. You have demonstrated some remorse for your actions.

52 You still enjoy the support of some members of your family. You do not suffer from any relevant mental health problems. Provided you do not resume abusing drugs and alcohol, after you are eventually released from prison, you have reasonable prospects of rehabilitation. I am satisfied that there should be sufficient time for you to receive any necessary counselling and support, and have an adequate opportunity to try to live in the community free of drugs and alcohol, during the non-parole period which I propose to set.

53 For most of the time that you have been in custody, you have been in the general prison population. However, after the initial plea hearing, you requested to be placed in protection. You told the sentence management panel that you had received unspecified abuse and safety threats from other prisoners, and had been advised by your lawyer to seek protection given the media reports of the plea. On 20 May, you were transferred to the protection unit into which you requested to be moved.

54 On being moved into protection, you could no longer continue working in the laundry with the general prison population. Since 7 June, you have been working as a billet in the visit centre, albeit for shorter hours than your laundry job. You are currently in a shared cell with another prisoner. Your out of cell hours are the same as for a mainstream prisoner, but you are currently only able to mix with a more limited number of prisoners.

55 After sentencing, you are likely to be moved from the Metropolitan Remand Centre to one of a number of maximum or medium security prisons. Whether or not you will remain in protection after the move will be determined by prison authorities in the coming weeks.

56 More than a quarter of all prisoners in the Victorian prison system are held in protection at any time. Conditions in protective custody can vary over time, and between different prisoners and prisons; but I accept that they are generally more onerous than for prisoners in the mainstream prison population. In determining an appropriate sentence, I have had regard to the fact that there is some possibility that you will remain in protection, at least for the immediate future.

57 As far as general deterrence is concerned, the taking of a human life is a most serious offence. The courts not only have a duty (by imposing appropriate sentences) to uphold the sanctity of human life, but must also try to deter others who, by resorting to violence, may cause loss of life. There is also a need for denunciation of what you did to Ms Barnes, and just punishment.

58 Balancing as best I am able the competing considerations laid down in the Sentencing Act 1991, and having regard to the matters I have just discussed, for the offence of murder, I sentence you to 19 years' imprisonment.

59 I fix a period of 15 years before you become eligible for parole.

60 I declare, pursuant to s 6AAA of the Sentencing Act 1991 that, but for your plea of guilty, I would have sentenced you to a total of 21 years and 6 months' imprisonment, with a minimum non-parole period of 18 years.

61 Further, I declare that the period to be reckoned as already served under this sentence is 619 days, inclusive of today's date. I direct that there be noted in the records of the court the fact that such declaration was made and its details.