The Queen v McLaughlin [2016] VSC 189

2 The background to your offending is bound up in your relationship with Mr Stevens. Words such as 'volatile', 'turbulent' and 'violent' have been used to describe it. These adjectives, while convenient, do not capture what was a complex relationship characterised by a large age difference, drug use, physical and emotional violence (which travelled both ways) and, also travelling both ways, a deep affection for each other.

3 You were interviewed by police several hours after the incident. I have viewed this interview in its entirety. In my view you gave an honest, if slightly incomplete, account of the events of that day. You told the police that you were arguing with Mr Stevens; you yelled at each other, he put his fist in your face, he hit you, slapped you, and kicked you. You told the police that he threw a piece of long glass tubing at you, and the tubing broke. You screamed at him, and told him to stop breaking things. You picked up a piece of the broken tube and shaped as if to hit him. He flinched and you struck him with the shard of glass in the right upper back. You told the police you were angry and 'went back at him'. For reasons that I shall set out, I think it is likely that at some stage during this prolonged conflict he also applied pressure to your neck and throat area. By your plea, you admit that your actions were unlawful and dangerous, and that you were not acting in self-defence. It is clear that you had no intention to kill or cause really serious injury.

4 Your account to the police is supported by the findings of Dr Kashyap, who examined you at Frankston Police Station at 12.30 am on 22 December 2014. I do not propose to set out the findings in full, but it is sufficient to say that Dr Kashyap observed multiple bruises and abrasions to your head and neck, together with multiple petechiae, particularly on the left side of the face, under the left ear and on the left side of the upper neck near the angle of the lower jaw. These petechiae injuries are consistent with an attempted strangulation, although other traumatic causes cannot be excluded. The doctor also observed older bruising (yellow/green) to both breasts, and more recent reddish bruising to the right shoulder. There were multiple reddish-blue bruises to the right and left arms, particularly the forearms, and also multiple bluish-purple bruises to both legs. In short, I am positively satisfied that many of these injuries, in particular the red, red/blue and red/purple bruises and the petchiae, were of recent origin at the time of the examination. They provide cogent support for your account to police of the events that led up to you stabbing Mr Stevens.

5 The only major sign of injury on Mr Stevens was at the fatal wound site itself. There was an abrasion to his left knee, which is in my view insignificant. I propose to sentence you on the basis that your actions were the product of anger in the face of considerable emotional and physical abuse.

6 I shall turn briefly to your background. You are now 50 years old and, as I have observed, Mr Stevens was considerably younger. You are the third of four children and your family lived in the Noble Park area. You have been short-sighted since birth, and I accept that it impaired your academic progress. You left school just before your 15th birthday and it was only when you entered the workforce that your true potential emerged. After working for a short period at a supermarket you commenced to work in pharmacies, initially as a sales assistant. Through hard work and allied to considerable ability, you were promoted to sales manager level and beyond. You were married in 1999 and there were three children to the marriage. You were the major breadwinner and the family lived a comfortable lifestyle. Despite the apparent normality of your domestic arrangements you were covertly using amphetamines to keep up with work demands. You had used drugs intermittently since early adulthood.

7 Tragically, in 2008, in a family boating accident, your youngest boy Zane, then five, was taken from you. He died in your arms. Although the accident was neither your fault nor that of your husband, the marriage did not survive this tragedy. All involved grieved profoundly. You retreated inward and resorted to drug use, self-medicating for your grief. Your drug use before Zane's death appears generally to have been controlled; however, whatever control you may have exercised was swept away by the events of 2008.

8 Your life spiralled downwards. You lost your well paid job, your marriage failed, and you used increasing levels of amphetamines together with prescription opiates and Benzodiazepines. It was during this phase of your life that you met Mr Stevens. You got on well with him and you told your psychiatrist, Mr Newton, that he supported you extensively during this period. Your friendship developed in 2013 into something more serious. The problem was that you both used drugs, and you mutually commenced to abuse methylamphetamine, or ice. Predictably, your relationship with Mr Stevens deteriorated.

9 You have no relevant prior convictions. You remained in custody for 537 days. I have read various psychiatric and psychological reports prepared over the last few years. In November 2010, Mr Michael Epstein, clinical psychiatrist, reported to your personal injury solicitors that you had developed a post-traumatic stress disorder and a major depressive disorder in the context of your son's death and the resultant marriage breakdown. He considered you to be suffering from a 'frank psychiatric illness' with at that stage, no work capacity at all. By February 2016, Mr Patrick Newton, psychologist, considered your depressive illness had become chronic, although somewhat milder in severity. He also offered the opinion that your pre-incarceration drug use qualified you for a diagnosis of severe stimulate use disorder, although specified to be in remission in a controlled environment. He considered you to be emotionally vulnerable and still recovering from the events of 2008 onwards. He noted that a significant component of your complex emotional state was due to your grief and distress at the death of Mr Stevens and your part in it.

10 It is also too easy to view complex human relationships in black and white terms. Graham Stevens' family loved their son or brother unconditionally and I am sure there was much to love; you admitted as much yourself to your psychologist. His family has struggled to come to grips with what you have done and I must take their suffering - as expressed in their moving victim impact statements - into account, and I do.

11 Having said that, I consider that this is a case that demands a measure of leniency. On any view, you were the victim of a sustained physical assault carried out by a man almost 20 years your junior. You were entitled to be angry, you were entitled to be distressed, but you were not entitled to stab him. There was no aspect of self-defence to your conduct and, as I have said, I consider your conduct was the product of anger. It certainly was not premediated, and the anger was the inevitable consequence of Mr Stevens' attack upon you. In my view, these factors operate substantially to reduce your moral culpability and blameworthiness for this offending.

12 There are other sentencing factors that I must consider. You have pleaded guilty at the earliest opportunity. I am satisfied that the remorse expressed throughout your record of interview and to Mr Newton is genuine, and it operates in your favour. Whilst I must give some weight to the need to deter others from similar offending, the unusual circumstances of this case allow me to soften the impact of this usually significant sentencing consideration. The need for denunciation and punishment is also diminished by those unusual circumstances. There is no need for specific deterrence. As I have observed, you have spent 537 days in custody - that is roughly 18 months. I have reached the view that no further immediate custody is called for, provided you agree you enter into a 2-year Community Corrections Order that I will explain to you shortly. I am reinforced in this conclusion by the submissions of senior counsel for the prosecution, which are essentially to the same effect.

13 Since your plea was conducted you have been assessed for a Community Corrections Order and you are considered suitable. I have endeavoured to tailor the order I propose to what I consider to be your specific needs. In addition to the standard terms, I would order that:

• you perform 100 hours of unpaid community work as directed by the Secretary;

I have moderated the hours so that you may pursue employment during currency of the CCO. I would also order that:

• you undergo any assessment and treatment (including testing) for drug abuse or dependency as directed;

• you undergo any assessment and treatment (including testing) for alcohol abuse or dependency as directed;

• you undergo mental health assessment and treatment as directed;

• you participate in programs or courses aimed at addressing factors relating to your offending behaviour as directed;

• for the first year of this order you will be supervised, monitored and managed as directed; and

14 If you breach the terms of your CCO, you will be returned to Court to be resentenced. I am going to hand a copy of the proposed order to your counsel and he will explain the standard terms and the additional conditions to you. If you consent to the order being made, you should sign it. I will stand the matter down for a short time.

Lisa McLaughlin stated that she understood the Community Corrections Order, and that she consented to it.

15 I note that you have consented to the making of a Community Corrections Order and you have signed it. Whilst I will impose a term of imprisonment of the time that you have already served, ordinarily I would be required to set a minimum term before parole eligibility. I do not propose to do so because the CCO disposition, together with time served, is an alternative to a longer term of imprisonment with a minimum term (see Bolton v R;[1] De Bono v R[2]).

16 Pursuant to s 6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty I would have sentenced you to four years' imprisonment with a minimum term before parole eligibility of two years, six months.

18 On the charge of manslaughter, I sentence you to 537 days' imprisonment. I declare that you have served 537 days' imprisonment by way of pre-sentence detention. I further order that you undertake a two-year Community Corrections Order commencing today with the standard conditions and the additional conditions that are set out in the order that you have signed.

[1] Boulton v The Queen; Clements v The Queen; Fitzgerald v The Queen [2014] VSCA 342 (1st Revision: 30 September 2015, paras [21], [245] and [247], Maxwell P, Nettle, Neave, Redlich and Osborn JJA, at [199].

[2] Debono v The Queen [2016] VSCA 16, Weinberg and McLeish JJA, at [6].