The Queen v Stensholt [2014] VSC 668

3 In 2012, all three children lived with their father, with the younger two - Patrick, then aged eight, and Lauren, then aged six - spending every second weekend with you. On one such weekend in February 2013, you told Paul McDonald that Patrick and Lauren did not want to live with him permanently. Mr McDonald accepted the change in arrangements and, instead, Patrick and Lauren went to him every weekend. At all times, Jasmine, now aged 13, lived with her father and his new partner in Timmering, Victoria.

4 You first met Paul McDonald in 1999 when you were 28. The relationship developed quickly, and you moved to Moyston with your three eldest children to live with Mr McDonald. You became pregnant with Jasmine, and Mrs McDonald and her husband, Ian, lent you and Paul McDonald $10,000 as a deposit to purchase the house at 24 Campbells Reef Road, Moyston. The relationship between you and Paul McDonald was a volatile one, marked by his heavy drinking. There were a number of separations and reconciliations. Apparently, Mr and Mrs McDonald senior became concerned about losing their $10,000, so a caveat was placed on the property at Campbells Reef Road, and it appears that this was later to become the source of considerable resentment for you.

5 Paul McDonald attempted to address his drinking. He moved back to Campbells Reef Road and then, thinking that a change was needed, you, as a family, moved to a dairy farm at Kotta, where Patrick was later born, and then to Tongala, where Lauren was born. You suffered serious complications after Lauren's birth, which was both traumatic and difficult. When you returned home, the relationship again faltered through Paul McDonald's drinking, and you and he separated. Later, in 2007, you and all of the children moved back to the house at Moyston. There was one further short-lived attempt at reconciliation. A financial settlement was agreed upon, and you repaid Mrs McDonald the $10,000 and became the sole owner of the house in November 2009.

6 In May 2013, you were living at 24 Campbells Reef Road, Moyston with your eldest child - Kasha McCann - and her husband. This house was about 400 metres from Carol McDonald's house in Brook Street, Moyston. Mrs McDonald had lived there for over 27 years. It had been the family home, and she had lived there on her own since her husband died in 2006.

7 Turning now to the events of the weekend of 3 and 5 May 2013.

8 In order to share the travelling involved to facilitate access, it was arranged between you and Paul McDonald that on access weekends, you would meet each other at Dunolly to hand the children over. On Friday 3 May, you met each other with the two younger children at about 6.00pm, and agreed to meet at the same spot on the following Sunday at 5.00pm for the return of the children. It appears that, once in the car, Patrick told his father that he wanted to return to live with him, a sentiment which Lauren also expressed later that night. Lauren told her father that she wanted to come back to live with him because they were "better looked after" at his home.

9 The following day, Mr McDonald sought advice from the Department of Human Services, Child Protection and local police. As a result of that advice, he rang and told you he would not be returning the children to you on the Sunday and, instead, would be seeking court orders on the following Monday.

10 This angered and upset you, and you responded by threatening Mr McDonald that he would suffer financially and there would be consequences. There were a number of phone calls and text messages between you and he during that Saturday. You also sought advice from the police at Ararat, and it appears that you were told that, as there were no formal orders, Paul McDonald could not be forced to return the two children to you. It appears this made you increasingly angry and upset. You went to work that Saturday at Eventide aged care facility in Stawell, where you worked as a carer. While at work, you checked your phone and there were messages from Paul McDonald saying that the children were not coming back, and you told the police that you were "pretty rattled" and "pretty upset" by this. On the following morning, the Sunday, you told the police you woke up "pretty angry".

11 At this time of your life, you had recently commenced a relationship with another man. You spoke to him at 5.00pm on the Sunday evening and arranged to visit him at his house, which was near Ararat. You took with you a shopping bag containing stubbies of beer. When you arrived at his house, you were teary and upset, and told him you had had "the shittiest weekend ever", and that you were angry that Paul McDonald had not returned the children. You drank six or seven stubbies of full strength beer, you appeared to calm down and then, having spent some time together with your friend, you left at 8.30 that night. You appeared to your friend to be fine. Although you had been drinking alcohol, you did not appear to him to be intoxicated. You parted with the words addressed to him, "You don't know how much I really love you".

12 You left and drove directly to Mrs McDonald's house in Moyston, a distance of approximately 15 kilometres, a 14-minute drive. You arrived there at about 9.00pm and knocked on the front door; in response to the knock, Mrs McDonald went to another door further down the verandah. This door leads down a hallway into the kitchen. You told the police that Mrs McDonald would not let you in, so you threw a small statue through the glass panel of the front door and went to walk away.

13 You then returned to the door where Mrs McDonald stood. You grabbed her around the throat and forced her backwards down the hallway into the kitchen. In the kitchen, you continued to hold her by the throat and forced her down onto her back on the kitchen floor. You then opened one kitchen drawer and, finding nothing, you rummaged through another kitchen drawer and found a 20-centimetre Wiltshire Staysharp knife. Mrs McDonald struggled with you, attempting to get hold of the knife and, in so doing, she suffered severe wounds to her hands. You told the police that Mrs McDonald was crying out, "Please don't", and "What have I ever done?", and you replied, "Don't fuck with me, you bloody evil bitch".

14 You stabbed her once in the throat as you held her on the ground. You withdrew the knife, washed the blood from it and left it in the kitchen sink. You left and drove directly to your house.

15 A neighbour - Anthony Bradshaw - heard yelling, crashing and screaming coming from Mrs McDonald's house. He went outside and saw a Rav 4 drive off. He called 000 as he walked towards the house and, once inside, discovered Mrs McDonald lying in a pool of blood on the kitchen floor. Whilst still on the phone to 000, he went and got another neighbour, Karen Rose, who was a nurse. She administered CPR for 25 minutes until the ambulance arrived, but Mrs McDonald was dead.

16 In the interim, you had returned home, covered in blood, and screaming, "I killed the fucking witch! Nobody thought I would do it, but I did. Fuck them, I hate the McDonalds". Kasha asked, "How could you do this?", and you replied, "I slit her throat like a lamb". At 9.04pm, Kasha McCann called 000 and asked the police to attend. You then called Paul McDonald and left a message for him, saying, "You'd better answer your phone, I've got some news for you. Answer". You then called again and told him, "I've just killed your fucking mother and you're next. I'm coming for you". You taunted him: "Ring your mother. You won't get her, I've just killed her". Mr McDonald did indeed try to call his mother. The phone did not answer and he then called the Ararat police and told them what you had said. He later called his mother's phone again, and it was answered by Mrs Rose. She told him that his mother was dead.

17 You also called 000, and advised them that you had killed Mrs McDonald. You also contacted two friends, one an off-duty policeman, Senior Constable David Cosgriff. You told him what had happened and he later came to the house. Another friend, Jillian Marshall, also came to your house. You told her you killed Mrs McDonald with a knife, and she asked you if you had gone there with that intention, and you said, "No, no". At approximately 9.47pm, police from Ararat attended and you admitted to them that you had killed Mrs McDonald and showed the police the clothing you had been wearing. You were immediately placed under arrest and later conveyed to the Ararat Police Station. Police there interviewed you shortly after midnight. You again admitted that you killed Mrs McDonald. You told the police that you knocked on her door and initially she did not answer, but then she came down to the door and you said, "Open the door and we'll come and have a cup of tea", but Mrs McDonald said no. You then told the police that you "got angry and picked up a statuette and threw it through the front door". Mrs McDonald then came to the second door, which you were apparently able to unlock. You grabbed Mrs McDonald by the throat and took her down to the kitchen, saying, "You can't get me now. I'm sorry, but you played the wrong person this time. I'm going to win this time. I'm sick of this", and, with that, whilst still holding Mrs McDonald, you opened the kitchen drawer, looking for a knife.

18 You told the police that you went around to Mrs McDonald's "because she's the one that started it years ago, making out that I was crazy". You went on to give an account to the police about what had happened over the years; that Paul McDonald had been a terrible alcoholic, that you had lived in a half-gutted house with no money and that you had repaid the $10,000, yet Paul McDonald still had the right to take the children. You said to the police you had tried to play fair, but you were "an absolute sucker".

19 You were later conveyed to the Ballarat Criminal Investigation Unit. You were seen by a forensic medical officer, who observed that you had sustained several small wounds to your hands as a result of sharp force trauma, and you were assessed as fit to be interviewed. Accordingly, at 11.03am on 6 May, you were once again interviewed. On this occasion, you recounted how you had gained entrance to Mrs McDonald's house by putting your hand through the flywire and opening the second door. You explained the difficulties in your relationship with Paul McDonald, your desire to keep the children together and the children's variable attitude as to which parent they wanted to live with. You told the police that when you were driving to Mrs McDonald's, you were "really angry at Paul and Mrs McDonald for all that they had put you through over the years" and that you were angry because Mrs McDonald had suggested that you were insane and that when you left the house in Moyston, Mrs McDonald had sold everything in it, and that you had to pay Mrs McDonald the $10,000. You also told the police that the last time you had had any contact with Mrs McDonald was over five years earlier when you went to her house to ask to have the caveat removed. You told the police that as you were driving the car to Mrs McDonald's house, you were thinking you were going to kill her, although you could not say when it was that you had made that decision. When asked if Mrs McDonald did anything to provoke you, you said, "No, just her little laugh. She used to say, hey, she's a witch of a thing".[1] You also said that when you knocked on the door, you did not think Mrs McDonald was going to open it, so you went to walk out, but she did answer the door. But, upon refusing to let you in, it was then that you grabbed the ornament and smashed the glass panel.

20 You went on to describe to the police what you did to Mrs McDonald; that you wanted to hurt her and wanted her gone, and that you did not want her to be part of the children's life. You could not explain to the police how it was that you had gone from saying you were going to kill Mrs McDonald to actually doing it, and indeed you told them that when you were there, you wanted to walk off the veranda and go home. You expressed that you were sorry for ruining the children's lives and the many lives that would be affected by your actions. At the conclusion of the interview, you were charged with murder and remanded in custody.

21 The pathologist who conducted the autopsy, Dr Baber, noted that Mrs McDonald had sustained a stab wound to the right side of the neck, which bisected the right carotid artery and passed behind the trachea without injury. It then passed through the vertebral body of the sixth cervical vertebra and entered the spinal canal. The stab wound had an approximate depth of 5.25 centimetres. Multiple lacerations to both hands were also observed, and a fractured hyoid bone with associated haemorrhaging and haemorrhaging within the strap muscles of the neck were noted. The pathologist opined that the cause of death was hypovolaemic shock from a stab wound to the neck, which severed the right carotid artery and subsequently penetrated through the C6 vertebral body which passed from right to left in a horizontal plane. The pathologist opined that at least severe force would be required to inflict the stab wound, as the knife penetrated the full thickness of the cervical vertebral body.

22 Carol McDonald was 65 years old. She was a mother, grandmother, and great-grandmother. Victim Impact Statements made by her sons, Paul McDonald and Douglas McDonald, were tendered in evidence, and the statement of Douglas McDonald was read to the Court. Both statements speak eloquently of the grief her sons and grandchildren have suffered, and this great tragedy which has befallen the family. Paul McDonald acknowledged that your children now have to live with the fact that their mother committed what he described as "this horrible act". The children have lost any chance of a normal relationship with you and have lost their grandmother as well. He and his partner are left to comfort the children about missing a person that he said he would rather never hear of again. By your actions, you have robbed Mrs McDonald's sons of their mother, and her grandchildren - including of course your own children - of their grandmother. No sentence this Court can impose can ameliorate their grief or restore to them their loved one. Of course, it is a further tragedy that, by your own actions, you have now effectively deprived your own children of the presence, comfort and support of you, their mother, as they go about their young lives now and into the future.

23 I turn now to your personal circumstances. You have admitted prior offences of recklessly causing injury, theft and criminal damage for which - on appeal - you were fined $750 without conviction. These offences occurred when you and Paul McDonald went to a neighbour's place to confront him about certain rumours. You were intoxicated and a tussle ensued. You took a shovel from the neighbour and hit his car with it. You pleaded guilty to the charge. This occurred in May 2001. No other matters are alleged against you. You are 42 years old, and the mother of six children by three unions. You have three sisters and a half-sister. Your family is not close. When your parents were together, life was characterised by your father's alcoholism and violence. Your relationship with your mother has always been extremely difficult. You felt you were unloved and that she paid you no attention. Despite your father's inadequacies, you preferred his company to that of your mother. You did, however, have a loving relationship with your grandmother. Upon your parents separating, your mother formed a new relationship, but you never had a functional relationship with your stepfather and, indeed, it appears that your mother preferred her new partner to you, and you were told to leave the family home when you were 15. At this time, you were attending the Sacred Heart College at Oakleigh, but because of the issues at home, you left school and later went to Moorabbin Technical School in an effort to complete Year 9. By this time, you were living with friends or extended family. Also around this time, you began a relationship with a young man, which proved to be dysfunctional and violent. Friends extracted you from it, and you went to live in emergency housing.

24 When you were 18, you met another young man who was a busker, and the two of you lived together in a squat. You then travelled together to Queensland and later returned to Melbourne. You became pregnant, and so moved to Sydney to be near his family, but you miscarried. The two of you returned to Melbourne and became pregnant with Kasha. You were then 19 or 20. The relationship with this man, Kasha's father, came to an end when she was less than 12 months old.

25 You then met a man called Wayne, who is the father of your sons, Eric and Martin. Eric is now aged 21, and Martin is now aged 20, and they live with their father in Queensland. This relationship lasted six or seven years, but was also a dysfunctional relationship, marked by drugs, alcoholism and violence, and that relationship ended when Eric was 2½ years old. Your next relationship was with a man called Shane. In 1998, when you were 28 or 29, you were living with Shane at Horsham. You were involved in a very serious car accident. Your pelvis was fractured and you spent many months in rehabilitation. It was during this time that you met Paul McDonald. He was the friend of a man whose wife was caring for you. As stated previously, your relationship with Paul McDonald progressed very quickly. However, it was blighted by Paul McDonald's heavy drinking and violence, some of which was reported to the police. It was submitted that, despite all of this, you still loved him and, indeed, there were a number of house moves and attempts at reconciliation. The last straw, it appears, was on an occasion when you were arguing with Paul McDonald and, in a drunken state, he struck Kasha. Eventually, Mr McDonald sought the assistance of Alcoholics Anonymous and there was one very brief reconciliation after that. After separating from Paul McDonald, you formed a relationship with another man who suffered a myocardial infarction and you became his carer, as I understand it, until his death. At the time of this offence, both you and Paul McDonald had found new partners.

26 You have always been able to obtain work, and you have variously worked in semi-skilled jobs. Prior to this offence, you had obtained a Certificate 3 in Aged Care and you were undertaking Certificate 4 in Disability Care. You were also working part-time at an aged care facility in Stawell. Prior to that, you had worked at a local service station.

27 You have a documented history of high levels of stress and anxiety, and your general practitioner had referred you to a counselling service in 2009, and again in 2012. Your counsellor diagnosed you as having traits consistent with borderline personality, and recorded high levels of stress and anxiety as at April 2013. On 2 February 2012, you were admitted to Ballarat Health Services for two days, presenting with paranoid suspicions in the context of family conflict, anxiety, self-injury and cannabis use. Also in 2012, you were diagnosed with cervical cancer, and had a partial hysterectomy. You also suffer from fibro-myalgia and you continue to suffer from the effects of the serious motor vehicle incident, and Ms Murphy has today advised the Court of the injury you have more recently received to your back. Your counsel, Ms Murphy, submitted that as at May of last year, you were doing the best you could with what you had, and that your well-rounded children and work - which gave you much satisfaction - was a source of pride to you.

28 Testimonials from your eldest daughter - Kasha McCann - your friends - Donna McManus and Rae Halls - your work colleague - Geradine Sawer - and your sister - Kari Stensholt - were tendered in evidence on your behalf. Kari Stensholt refers to your estrangement from your mother for the last 20 years and your difficult early life. Your daughter, Kasha McCann, details the nature of your relationship with Paul McDonald and that you were broken when, on that weekend, Paul McDonald said he was not going to return the children. She describes you as a caring and selfless person, devoted to all of your children. Rae Hall also describes you in similar terms, and Geradine Sawer spoke of your attributes in the workplace, your willingness to learn, your initiative and insightfulness, your humour and loyalty. Donna McManus referred to your selflessness, kindness to others, resilience and devotion to your children. I accept that your daughter and these friends hold you in high regard and you are regarded by them as a person of good character and as a good mother; and that your personal qualities are such that your rehabilitation is not without hope.

29 Reports by consultant psychiatrist, Dr Kevin Ong, dated 9 September 2013 and 24 January 2014, were tendered in evidence as Exhibit 1 and Exhibit 2 respectively. A report by forensic psychologist, Pamela Matthews, dated 24 December 2013, was also tendered in evidence as Exhibit 3. Those reports generally confirm your personal circumstances and antecedents as submitted by your counsel, Ms Murphy. You reported to Dr Ong a history of being on antidepressants intermittently since you were 17, and you are still prescribed sodium valproate - a mood stabiliser - and Zoloft - an antidepressant - and have been for some years. You also told Dr Ong that you had been hospitalised on three occasions at Ararat and been assessed by the local area mental health service in the context of stress in your home life and relationship with Mr McDonald. You also reported to him escalating alcohol use, mostly on weekends, leading up to the offence and regular cannabis use, and reported in the last few years a history of self-harm, including overdosing, cutting wrists and chronic thoughts of being better off dead.

30 You told Dr Ong that you had decided to go around to Mrs McDonald's place for a cup of tea in the hope that you could convince her to be a grandmother, and that she would intervene in the dispute between you and Paul McDonald, an account which you did not convey to the police on the two occasions when they interviewed you. When Mrs McDonald indicated she did not want to hear it, it was then - you said - that you lost it. You acknowledged to Dr Ong that you had had a difficult relationship with Mrs McDonald, and that you had not had any significant interactions with her for some years, although you claimed that Mrs McDonald would say things about you. You acknowledged the resentment that you felt at Mrs McDonald placing a caveat on the house. When asked about your expressed intention of killing Mrs McDonald, as you stated in the record of interview, you told Dr Ong that that was just words, that you called her an evil bitch all the time, but that it was different from saying things and doing things, and that when you were at Mrs McDonald's place, you were not thinking of killing anyone, even though you had thought enough is enough. You told him you felt "pretty calm".

31 You reported to Dr Ong that you spent your days in prison working in the bakery, which you enjoyed, and you had fluctuating mood and anxiety. Dr Ong was of the opinion that your history was strongly suggestive of having, at the very least, borderline personality traits, which he said had been exacerbated in the past by your use of alcohol and that, due to your personality disorder, you are more prone to impulsive, poorly thought out and ill-judged actions borne out of anger. Dr Ong concluded that you had a fragile mental state secondary to your personality structure, with a history of self-harm and depressive episodes, which would make any custodial sentence weigh more heavily upon you.

32 Dr Ong, in his second report, went further and diagnosed you as having borderline personality disorder, characterised by effective instability, proneness to anger, fear of abandonment, chronic feelings of emptiness, impulsivity, repeated self-harm and an unstable and chaotic pattern of relationships. Dr Ong opined that this would be exacerbated in the past by your alcohol use and your personality would make you prone to decompensation into major depression when faced with significant psychological stresses. In Dr Ong's opinion, the condition is permanent, but likely to fluctuate in its severity. He stated that someone suffering from borderline personality disorder is more impulsive, prone to anger and subject to mood swings, and less likely to make calm or reasoned decisions under stress, and in this way it would clearly affect judgment. Those with borderline personality structure, he stated, are more likely to engage in impulsive, ill-judged actions due to a reduced ability to calculate their own advantage.

33 Dr Ong opined that your current mental state is stable, although you remain fragile and prone to decompensation, with a lowering of mood and increasing self-harm ideation, dependent on psychosocial stresses. Nonetheless, you are coping well in the prison environment, you appear to have benefited from the routine of prison life, and life is less chaotic. You have expressed to Dr Ong your remorse and motivation to reconnect with your children in the future. In Dr Ong's experience, those with borderline personality structure are more likely to require interventions by the mental health services within prison and, indeed, since he last saw you, you had spent one week at Marmak, the psychosocial rehabilitation unit in the prison.

34 Ms Matthews, in her report, stated that she agreed with Dr Ong that you were a person with a highly fragile mental state secondary to your personality structure, with a history of self-harm and depressive episodes, and that your mental health would require monitoring by prison mental health services. Ms Matthews opined that, on the day of the murder, the prospect of losing the two younger children was a significant psychosocial stressor, and this had an impact upon your self-image, effect and cognition, and therefore this psychosocial stress and your response to it was a significant contributing factor to your behaviour. Ms Matthews also concurred with Dr Ong that the impulsivity of the behaviour, including alcohol consumption and acting out behaviour, as well as intense anger, had been contributing factors to your offending and that, without the trigger of acute psychosocial stress, the intensity of your anger and what she called the behavioural boundaries, it would have been far less likely that you would have acted as you did. Ms Matthews considered that the impact upon your self-image, effect and cognition of the perceived loss of your children was the most significant factor in your offending behaviour, and that it was possible that the deceased's laugh, which you perceived as derogatory, had been a hair trigger factor moving you from assaultive anger to murderous anger.

35 A report by neuropsychologist, Ms Jane Lofthouse, was also tendered in evidence as Exhibit 4. She assessed you as having low average intelligence. Her testing of you confirmed that you were suffering significant levels of depression, anxiety and stress. You also showed mild executive dysfunction, which, in her opinion, may have impinged on your capacity for reasoned and considered problem solving, and there may have been mild behavioural change over time which may have been relevant to mild brain injury. In Ms Lofthouse's opinion, you would benefit from psychological intervention.

36 Ms Murphy submitted that Paul McDonald's decision not to return the children to you and to seek custody was the trigger for your conduct. Although you had not had a relationship with Mrs McDonald for five years and, by all accounts, it had been a difficult one, you nonetheless went to her house, thinking you may have been able to discuss these matters with her. This, Ms Murphy submitted, was an illogical and irrational thought, and Mrs McDonald's refusal of entry and her laugh, as you suggested in your interview, triggered historical resentments as to how you had been treated in the past and hence, and thus you snapped. Ms Murphy further submitted that the murder occurred in this context of a well of past resentments, frustrations and ill-feeling, and that the brutal and cruel remarks you made both to Kasha and Paul McDonald were really the product of your inability to moderate and rationally consider what it was you were saying.

37 Such a submission has merit, and is certainly consistent with the opinions of Ms Matthews and Dr Ong as to the manifestations of borderline personality disorder and its causal connection to the offence. The Crown, represented by Mr Grant of counsel, concedes that the Verdins[2] principles apply to a degree, and I proceed on that basis. To do so, however, is not to deny, but rather to go some way towards explaining, why it is that you acted out of such murderous anger. You told the police on a scale of ten, your anger was ten. You drove to the house saying you were going to kill Mrs McDonald, although you later resiled from that statement. I accept at least on the balance of probabilities that it is likely that the actual intention to kill was formed at the time you went to the second door on the verandah, grabbed Mrs McDonald forcibly by the throat and marched her down the hallway. Certainly, this was not a planned or premeditated murder, but once you did form the intention to kill, you acted upon it immediately and you were not dissuaded from your intent by Mrs McDonald's entreaties or cries, or your inability to find a knife in that first drawer.

38 This was a cruel and vicious murder. The intensity of your anger is reflected in the force required to inflict the injury and the fracture to the hyoid bone, indicative of the strength which must have been applied as you grabbed Mrs McDonald around her neck. Mrs McDonald was an older woman, of relatively small stature, weighing 58 kilograms and 150 centimetres tall. At that time, she had done nothing to provoke you; indeed, you had had nothing to do with her in the past five years. She was not involved in the children's desire to live with their father and, although she may have known of the most recent developments concerning the children, there was nothing to suggest that she was instrumental in it or involved in it in any way. It was 9.00 o'clock on a Sunday night. Mrs McDonald was alone in the sanctuary of her own home, where she was entitled to feel safe and secure. She was entitled to deny you entrance, and your sudden and brutal actions - first, in grabbing her by the throat, then marching her down to the kitchen and pushing her down onto the floor - must have been a great shock to her and, no doubt, the struggle with the knife a terrifying ordeal for her.

39 Yours was a cruel, callous, brutal and vindictive act, and the way in which you referred to Mrs McDonald after the murder and in the two records of interview, and the cruel taunting of her son in the immediate aftermath - while it may be explicable by reason of your mental state - is nonetheless indicative of the depth of ill-feeling that you held towards Mrs McDonald. Although you have since expressed your remorse and, through your counsel, offered an apology to the McDonald family, there was very little by way of expressed remorse in the immediate aftermath of the murder. You did, however, admit your responsibility almost immediately. You rang 000 and told the operator you had killed Mrs McDonald. You summoned an off-duty policeman to your home, awaited the arrival of the police and cooperated with them at all stages. You made full and frank admissions and a full confession to the police. Further, you indicated your plea of guilty at the earliest opportunity (being the committal mention), and I accept that all of these matters, including your plea of guilty, are indicative of your genuine remorse. I acknowledge that, by your plea of guilty, given at the earliest opportunity, you have facilitated the course of justice, obviated the need of a trial and saved the witnesses - in particular Mrs McDonald's family - the ordeal of one. I acknowledge also that your plea of guilty entitles you to a significant discount on the sentence that would otherwise be imposed.

40 As to your prospects for rehabilitation, Ms Murphy submitted that the events of the weekend of 3 to 5 May were preceded by changes in the custody arrangements over the previous 12 months, which had left you feeling anxious and meant that you had spent less time with the younger children. Your elder daughter, Kasha, and her husband were living with you, Kasha had suffered three miscarriages and you had been caring for her and caring for your partner, Darryl, who had suffered a heart attack at your feet. These events, Ms Murphy submitted, are unlikely to be repeated again, at least with the same intensity, especially given that when you are released, your children will not be young. Ms Murphy submitted that, while in custody, you will be able to receive treatment for borderline personality disorder and there are other protective factors, and thus the risk of re-offending is significantly reduced.

41 Borderline personality disorder is a permanent condition, although it may fluctuate in its intensity. While in prison, you will have the benefit of psychological counselling and monitoring and, accordingly, it may be expected that - in particular, if you can learn to moderate your anger and impulsive response to stress - your risk of re-offending will be reduced and that your rehabilitation, therefore, is not without prospect.

42 The maximum penalty for the crime of murder is life imprisonment. Clearly, this is a serious example of the offence, especially as it occurred in the setting of domestic tensions. Any sentence this Court imposes must take into account the nature and gravity of the offence committed and your moral culpability for it, even allowing for the application of the principles of R v Verdins. In sentencing you, I must impose a sentence which serves to punish you and act in denunciation of your conduct. It must also acknowledge the sanctity of human life and the community's condemnation of those who take the life of another, especially in circumstances such as these. Any sentence imposed must also give due weight to general deterrence and specific deterrence, although these considerations are to be moderated. As to whether imprisonment will weigh more heavily upon you by reason of your borderline personality disorder, I do take into account that you appear to be relatively stable in the prison environment, you appear to be coping relatively well, your psychological state is monitored by a psychiatric nurse and you are currently on the appropriate medication. I take into account also that you will be effectively estranged from your young children in the years to come and, although you have had the benefit of regular visits from Kasha, your older children live in the country and interstate. Thus, your time in custody is not likely to be ameliorated by the comfort of regular visits by your children.

43 In sentencing you, I take into account your plea of guilty given at the earliest opportunity and give you a discount for it. I take into account also your age, your modest prior matters, your otherwise good character, and that you have been diagnosed with borderline personality disorder, which is relevant to the exercise of the sentencing discretion so as to reduce considerations of general and specific deterrence to a degree. I take into account also the impact of that condition on you while you are incarcerated. I take into account your difficult early life and the difficulties of your relationship with Mr McDonald, and the history of your anxiety, depression and self-harm. I take into account also your remorse as reflected in your record of interview, your plea of guilty and your apology to the McDonald family. I take into account also that you accepted responsibility for the murder of Mrs McDonald almost immediately after the event, that you made full and frank admissions to the police and that you cooperated with them. In short, I take into account all matters which go in your favour.

44 Accordingly, without in any way diminishing the nature and gravity of the offence here committed, for the crime of murder you are convicted and sentenced to 20 years imprisonment and I declare that you serve a period of 16 years before becoming eligible for parole. I declare that you have already served by way of pre-sentence detention a period of 323 days, and I declare, pursuant to s 6AAA of the Sentencing Act that, were it not for your plea of guilty and an early one at that, I would have sentenced you to a sentence of 23 years with a non-parole period of 19 years.

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