The Queen v McPhee [2013] VSC 581

3 In November 2011, Mrs McPhee consulted a psychologist, expressing concern at the state of her marriage and uncertainty as to whether she wanted it to continue. During 2012, she attended at least six further sessions with the psychologist, a number of which you also attended. At such a meeting in December 2012, when Mrs McPhee said she regarded the marriage as over, you became agitated and aggressive, and said that you might as well kill yourself and throw yourself in front of a truck. Mrs McPhee told the psychologist that you had previously produced a knife and threatened to self-harm. You and Mrs McPhee also consulted a solicitor in September 2012 and discussed plans for Mrs McPhee to move back to the property she owned in Deakin Avenue, and financial arrangements in the event of a separation. Indeed, you had obtained a loan against your mortgage with a view to making good the house at Deakin Avenue and building a granny flat at the rear to facilitate a trial separation. So it is that by the end of 2012, the parlous state of your marriage was well known to you.

4 On 29 December of that year, Mrs McPhee travelled to Melbourne to spend time with three of her sons over the new year period. During this visit she told her son, Jason Holtham, that 2012 had been one of the hardest years of her life and that she wanted 2013 to mark a new beginning and to be the start of happier times. She also told him that she was concerned about returning home to you and concerned about your recent behaviour. She discussed with Jason her plans to leave the relationship and to move back to the Deakin Avenue property.

5 While in Melbourne, you were incessantly ringing her, wanting to know where she was and who she was with. On 2 January, Mrs McPhee telephoned her friend, Caroline Cramp, and told her she was returning to Mildura the following day. She told her she did not want to come home and face you, and was trying to work out a way to tell you that she wanted to leave you. Mrs McPhee did return to Mildura the following day and met Caroline Cramp at 2.00pm at a shopping centre. She there gave her various photos and other items which related to her trip to Melbourne, which she did not want you to see, as she did not want you to know she had enjoyed herself with her sons while in Melbourne.

6 Mrs McPhee then returned home, and what then occurred is recounted by you in your record of interview with the police. You helped her unpack the car, and she then had a shower and joined you on the front patio, where you discussed beginning the new year on a positive note. The conversation turned to your marital problems, and Mrs McPhee said she did not trust you and no longer loved you the way she once had. You then went and had a shower and returned to the front patio. You tried to kiss Mrs McPhee and pull her onto your lap, but she resisted. You told the police you felt rejected and agitated. You left the patio and went to the back of the house to an outside fridge to get a can of beer, and Mrs McPhee went into the living room and laid down on the couch and listened to music.

7 You returned inside and went to a kitchen drawer, and there got a knife which measured some 28 centimetres, with the blade some 16 centimetres long. You went into the loungeroom and stood over Mrs McPhee as she lay on the couch, and stabbed her in the chest. She screamed and tried to wrest the knife from you, but you stabbed her a second time. You then panicked and removed her skirt and used it to wipe blood and fingerprints from the knife. You also tried to wipe blood from Mrs McPhee before going to the kitchen and calling 000. You told the operator that a woman called Cathy had stabbed herself twice in the chest. You tried to stem the blood flow from Mrs McPhee's wounds, and gave her mouth to mouth resuscitation, following the instructions from the 000 operator.

8 The police arrived at 8.29pm and an ambulance shortly thereafter. Despite the efforts of the paramedics, Mrs McPhee was unable to be resuscitated. When spoken to initially by the police, you lied to them and said that Mrs McPhee had stabbed herself. You were taken into custody and, prior to an initial interview being conducted, you admitted to stabbing Mrs McPhee twice. You were interviewed by the police more comprehensively the following day and said that you could not explain why you stabbed her. You said that you had been arguing and that this had been the case for about 12 months. Indeed, this argument was no different and probably was not as bad as some of them. But the arguments had always been verbal. You told the police you were jealous of each other and that Mrs McPhee had accused you of having an affair with a work colleague. You said you did not know what made you snap, but you had had enough of the fighting. You admitted that you had drunk six or seven cans of beer and that you felt upset and rejected when Mrs McPhee said she did not want to sit on your knee. You told the police that you niggled each other and you "seen red, grabbed the knife and stabbed her". You also told the police there would have been something said to each other for you to have done what you had done (question 273), but you could not recall what it was and that once you had stabbed Mrs McPhee the first time, she said to you, "I love you, Steve, I love you", but by then it was too late, you had already stabbed her once and you were going for the second time, and she was trying to stop you (question 407). You also told the police that you wished it had never happened.

9 A post-mortem was subsequently conducted by forensic pathologist Dr Jacqueline Lee. She determined that the cause of death was two stab wounds to the chest. The first was 15 to 17 centimetres in depth and had perforated the heart and passed through the cartilage of the third left rib, and in Dr Lee's opinion, the force required to inflict such a wound was "at least moderate". The second stab wound was 12 to 15 centimetres in depth and had perforated the liver, pancreas and splenic vein.

10 At the time of her death, Cathy McPhee was 58 years old. She had four adult sons from her first marriage to Gary Holtham. She worked as a disability carer at the Christie Centre in Mildura, caring for people with intellectual and physical disabilities. She had worked at that facility for 15 years, and the victim impact statement of Florence Catherine Davidson, the Executive Officer of the Christie Centre, attests to the high regard in which she was held, the dedication and competencies she brought to her work and the impact her death has had upon her colleagues and the workings of the Centre generally.

11 Victim impact statements were also tendered on behalf of Mrs McPhee's former husband, Gary Holtham, and her four sons, Shane, Jason, Daniel and Jesse. Mrs McPhee and Gary Holtham had been married for 20 years, and when they separated, their two youngest sons were only two and four years old, and Mrs McPhee had the principal responsibility in raising the boys. Mr Holtham paid tribute to the job Mrs McPhee had done in raising their sons, mostly on her own, and he expressed his grief at her loss, but in particular the loss especially felt by their sons.

12 Jason Holtham wrote of the close relationship he shared with his mother and his devastation at her untimely and brutal death, and the emotional and financial consequences of your crime. He described his mother as tender, caring, and the most helpful person in his life.

13 Shane Holtham, in his victim impact statement, expressed his shock and sadness at what had happened to his mother and his sense of loss in not having her help and support in his life.

14 Jesse Holtham, in his statement, expressed his sense of abandonment and loss, that he always relied upon his mother for her emotional and financial support, and now has an overwhelming sense of uncertainty about his future.

15 Daniel Holtham, in his statement, spoke of the loss of his mother and its affect upon him, including the loss of her pride in his future achievements.

16 Mrs McPhee's parents, Tony and Maria Scali, her brother, Donald Scales, and sister-in-law Sue Scales, also made victim impact statements. They each attested to the loss that they had suffered and the impact of your crime upon them. Your crime has had a terrible impact on Mrs McPhee's parents, sons, brother and sister-in-law, workmates and former husband. Cathy McPhee was clearly a devoted daughter, mother, a loving sister and a well respected friend and work colleague. Of course, the greatest impact has been upon Cathy McPhee herself. Her life has been taken from her in an untimely and brutal fashion by the very person who had once professed to love and honour her. No sentence this Court can impose can restore to Mrs McPhee's loved ones their mother, child, sister and work colleague, and no sentence this Court can impose can ameliorate their grief and sorrow.

17 I turn now to matters personal to you. You are 56 years of age. Your parents adopted you when you were 20 months old. You were raised in Mildura and have one sister. Your sister and your parents, who live in Irymple, continue to support you. You were educated at the Sacred Heart Primary School, St Joseph's College and Mildura Technical School. Since leaving school at 15, you have always worked, and for 30 years you worked as a shearer, eventually becoming a shearing contractor, operating two teams. I accept that you were working in this capacity at the highest level, that this was hard work and that you were very good at it. As a shearer, you were regarded as a "gun shearer", and as a contractor as reliable, trustworthy and well respected. Indeed, you became the president of the Wentworth Committee of the Australian Workers Union and played a significant role in the district at the time of the shearers' disputes in the 1980s. Your work as a shearing contractor, however, fell away from 1999 as the drought took hold. In 2004, you purchased a lawn mowing and gardening business, which was very successful until the drought took hold in the town. This resulted in the demise of your lawn mowing business, but you continued with the gardening business and supplemented that work with work as a relief bus driver with the Christie Centre, which is how you came to meet your wife. By January 2013, you had progressed to working as a disability support worker employed by the Department of Human Services and had completed various qualifications to enable you to perform that role.

18 You were also previously married. Your work as a shearer necessitated, at times, long absences from home and when you were home, you were working hard to maintain a fruit block, where you grew asparagus and grapes. When the shearing ceased, your first marriage did not survive, and you and your wife separated in 2004 after 23 years of marriage. There are two children of that marriage, and both your former wife and your children support you in your present predicament. At the time of that separation, you were depressed and took an overdose of tablets, resulting in a hospitalisation overnight at the Mildura Base Hospital, and it appears that there was another suicide attempt, more recently, in late 2012. Otherwise, you have never required any psychiatric or psychological intervention. You describe yourself as a social drinker, although Mr Jeffrey Cummins, in his report dated 14 October 2013 and tendered in evidence as Exhibit 1, formed the opinion, based on the history that you gave him and what he thought was a level of denial concerning your drinking, that you suffered from an alcohol use disorder of mild severity. You have, as a younger man, intermittently smoked cannabis, but you have never used any other illicit drugs. You have otherwise been a law abiding person, you have no prior convictions and Mr Cummins regarded you as a person of average intelligence.

19 You told Mr Cummins that you and Mrs McPhee loved each other, but that you were jealous of each other. On this day, Mrs McPhee was drinking champagne and you were drinking beer, and Mrs McPhee said something that made you angry. You told Mr Cummins, "I grabbed a knife and walked over and stabbed her. I just snapped". You explained to Mr Cummins that you snapped because you thought you had endured a significant build-up of unresolved emotions over the months leading up to the incident, but you conceded that you were upset that your wife had wanted a trial separation. You had been drinking on this day, but did not consider that you were drunk when you stabbed your wife. You conceded, however, that alcohol must have had a disinhibiting effect upon you.

20 You expressed to Mr Cummins your disbelief that you could have stabbed and killed anyone, let alone your wife. In Mr Cummins' opinion, you regard yourself as a law abiding citizen who has now committed the most extreme act. Mr Cummins further opines that you are at risk of developing an adjustment disorder with anxiety and possibly depression in response to your offending behaviour.

21 While in prison, you have been regarded and have conducted yourself as a model prisoner, and you have been classified as an essential working prisoner, working as the head cleaner in the timber industries. Several certificates which attest to your efforts to rehabilitate yourself and constructively occupy yourself while you have been in custody have been tendered in evidence as Exhibit 3.

22 Various testimonials have also been tendered on your behalf. Your parents describe you as hard working, well liked and respected, loving and kind, a caring son. Your sister describes you as a generous, caring and supportive brother, a loving father and, indeed, grandfather. Friends, Michael and Lisa Tyas, and Graeme Barker, speak of these actions as being out of character and that you are a hard worker and liked by all who meet you. The Salvation Army Chaplain at the Melbourne Remand Centre, Mark Creasey, in his testimonial, refers to the high regard in which you are held by your peers and custodial staff. You are regarded by them as a good, hard worker, dependable, and you are well liked. Chaplain Creasey has spoken of your "uncontrollable and emotional expressions of deep remorse for the irreparable damage you have caused to so many".

23 You have also expressed your remorse, guilt and regret to the police, and in your interview with Mr Cummins. You have expressed your remorse also to your parents and to your sister, who wrote, "The sorrow and despair he expresses to me is not for him, but for the pain he has caused to all by his actions". I accept that you are genuinely remorseful and contrite for your actions and for the pain you have inflicted on Mrs McPhee, her sons, her ex-husband, her work colleagues and, indeed, your own family, who themselves have only recently had to cope with the personal tragedy of an untimely death as a result of the actions of another person.

24 The maximum penalty for the crime of murder is life imprisonment. Murder is the most serious offence on the criminal calendar. In sentencing you, I must have regard to the nature and gravity of the offence here committed. Although your actions were unpremeditated and spontaneous, you clearly acted out of anger and, no doubt , alcohol played its part. It was not news to you that your wife wanted a separation, although you may not have wanted one. You went along with the idea of it and, indeed, up until that day, had acted reasonably and somewhat responsibly in working on your marital issues and working towards a trial separation. You had spent that afternoon with your wife convivially enjoying each other's company and, it seems, to a point, discussing the state of your marriage without rancour. Your wife did nothing to provoke you, although you say she must have said something. She was defenceless and must have been taken utterly by surprise by your attack. She was doing no more than lying on the couch in the sanctuary of her own home.

25 Your explanation that you "snapped" masks the reality that you acted out of anger when you stabbed your wife not once but twice, and in the face of her cries for you to stop, although I accept that this must have all happened very quickly. Although the marriage had its strains and you had reacted aggressively in the presence of the psychologist, the marriage was not marked by violence, you have no history of violence and you have no prior convictions for violence or, indeed, any other offences, and you are regarded as a person of good character. I accept then that this conduct was totally out of character for you and, apart from "snapping", as you describe it, is otherwise inexplicable, which only serves to compound the great tragedy of this crime both for Mrs McPhee, her family and, indeed, for you.

26 Any sentence imposed must not only serve to punish you, but act in denunciation of your conduct and give due weight to general deterrence, so that spouses and partners will know that the law recognises and upholds the sanctity of life and that the killing of one partner by another, even in circumstances such as these, is totally unacceptable and will attract salutary and condign punishment.

27 In sentencing you, I take into account that you have made full and frank admissions, and that you have acknowledged your responsibility for murdering Mrs McPhee effectively from the outset. I take into account your plea of guilty, given at the earliest opportunity, and give you a discount for it. I take into account that a committal was not conducted and that by reason of your plea, you have saved the community the cost of a trial and the witnesses the ordeal of one. I take into account that your plea of guilty has facilitated the course of justice and has effected a timely resolution of the Court process for Mrs McPhee's family. I take into account also that you are a person of good character for whom this behaviour is out of character, that you are hard working and reliable. I take into account that you have no history of violence, you have no prior convictions and no matters since the commission of this offence. I take into account also that you are genuinely remorseful and have expressed your remorse as early as when you were interviewed by the police, and that your plea of guilty is also indicative of that remorse. I take into account also the way in which you have conducted yourself in custody to date and the way in which you have applied yourself to programs designed to assist you. I take into account also that you have the continued support of your parents and your own family, all of which leads the Court to conclude that your prospects for rehabilitation are very favourable indeed. I also take into account your age and that, at the age of 56, you will be serving a sentence of imprisonment, and a very substantial one at that, for the first time, and that, at the age of 56, a significant period of your remaining life will be spent in custody. In short, I take into account all things which go in your favour.

28 Accordingly, without in any way diminishing the nature and gravity of the offence here committed, and acknowledging that your prospects for rehabilitation are favourable and therefore less weight may be given to consideration of specific deterrence, for the murder of Cathy Mary McPhee you are convicted and sentenced to 20 years' imprisonment. I declare that you serve a period of 16 years imprisonment before becoming eligible for parole and I declare that you have already served by way of pre-sentence detention a period of 292 days. Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), I declare that, were it not for your plea of guilty, I would have otherwise sentenced you to 22 years imprisonment with a non-parole period of 18 years.