The Queen v Willis [2019] VSC 398

1 Jamie Ian Willis, on 3 May 2019 in this Court, you pleaded guilty to the murder of your mother, Caroline Willis. The evidence reveals that you murdered her on Thursday 24 May 2018 by stabbing her to death at her home in Werribee.

2 Once again, this case raises the important community issues and the toxic connection between drugs (particularly methamphetamines), mental health and family violence. The evidence indicates that both you and your mother had significant mental health issues, which severely strained your relationship with her and ultimately led to this tragic and, as always, futile killing.

3 On Friday 3 May 2019, I heard the prosecution's summary of your offending; the circumstances of which are not in contention. I also heard submissions from your counsel, Ms Munster, and the prosecutor, Ms Ellis, as to the sentence that I should impose on you.

4 The maximum penalty for murder is life imprisonment. It is now my responsibility to sentence for this very serious offence.

5 At the time of her death, your mother was 70 years of age. She had six children, of whom you are the youngest. The two of you were living in a home you had jointly owned since June 2016 at Taworri Crescent, Werribee.

6 In the three years preceding her death, your relationship with your mother was mired in conflict. On 30 August 2016, an argument led to a Family Violence Safety Notice, which prevented you from living at home until it was varied in November 2016. That same month, a Family Violence Intervention Order ('Intervention Order') granted for the protection of the deceased. That order expired in November 2017. During this period, your mother was concerned about your attitude towards her and had expressed these concerns and her inability to cope to her doctor. There were also occasions when the police were called to attend the home in response to domestic disputes. In May 2018, your mother also disclosed to your father that, while you were doing better overall since taking your medication, she was afraid of you.

7 On 21 May 2018, the Magistrates' Court issued an Interim Intervention Order with full exclusion conditions to the deceased. In her application for that Intervention Order, she complained of your family violence citing verbal abuse, controlling behaviour and intimidation. She stated that these problems were almost daily events. She further alleged that your conduct also included stealing credit cards and her driver's licence. This behaviour seems to have arisen as a result of your drug use, mental health and paranoid delusions - to which I will refer in more detail later in these reasons for sentence.

8 One of the conditions of that order required you to actually leave the Taworri Crescent residence despite the fact that you and your mother jointly owned the property. Police served the Intervention Order on you three days later at 11:56 am. They attended your home where your mother permitted them to enter. Among other things, police told you that you had to leave the premises. You complied by packing some things, gave them your keys and left.

9 A very short time later, you used your mother's bank credentials to transfer $800 from her account into your own. As part of the transaction, you endorsed it as 'cunt mum'. You then withdrew $500 from an ATM. You do not deny that you did this. Your counsel advised that the money was intended for living expenses now that you were excluded from your home.

10 At about 1:19 pm, you returned to the Taworri Crescent residence. You entered the premises in contravention of the Intervention Order. Your mother was present. I would accept that there was some kind of argument about the Intervention Order and that ended with your act of violence. You attacked your mother with, what was in all likelihood, a kitchen knife, stabbing her multiple times and causing her death. You then left the residence at 1:23 pm. Although your counsel submitted that you attended the residence to confront your mother about the Intervention Order, it is not suggested that your mother did anything that might have in some way contributed to what followed. She was entitled to take steps to protect herself. Unfortunately, it was to no avail.

11 The post mortem later carried out on the deceased on 26 May 2018 identified 19 stab wounds to her torso, upper limbs and left leg. There were also rib fractures and multiple blunt force injuries to the head and neck. That suggests a very violent and frenzied attack by you.

12 Having stabbed your mother to death you left the house and later obtained some methamphetamine, which you used immediately. You later returned to the house with a friend and, on the way there, made admissions to that person as to what you had done.

13 Having returned to the residence, you remained there overnight. Sometime over the next several hours, you concocted a false explanation for your mother's murder. The next morning, affected by the drugs you had consumed, you rang the emergency number '000' and told the call-taker that four men had entered the house, kept you hostage and then stabbed your mother.

14 You later told police that four men had taken you at gunpoint. According to you, they then took you back to your residence where they made you watch while they stabbed you mother. You then gave an elaborate account of this version of events that was, of course, all lies. Your counsel submitted that this attempt to conceal your actions was drug affected and was bound to be rejected by police as false, which it was. You were arrested shortly after the deceased's body was found in the premises.

15 On 25 May 2018, you took part in a record of interview with police where you confirmed your previous story about the kidnappers. However, the following day, a second interview was conducted and you admitted that you had stabbed your mother to death. You described her as 'fucking evil' and you were 'just shattered' about being excluded from the house pursuant to the Intervention Order. You claimed your mother had ruined your life, and you were contemptuous about Intervention Orders and courts. You said she was 'evil and abusive'.

16 When your father and your former partner, Michelle Pithie, visited you in custody, you made further admissions about your role in the murder to them. In both of those conversations you gave an account of what happened; explaining that an argument about you being required to leave the house preceded the stabbing. You told Ms Pithie that you disposed of the knife.

17 By your plea and conduct of the matter now before me, you admit that you killed your mother in the manner outlined by the prosecutor. As it was correctly conceded by Ms Munster, this offence is grave and tragic, as murder always is. The evidence does not suggest it was premeditated. However, you launched a frenzied, violent attack on your mother in her home. She was vulnerable and defenceless in the face of that attack. Once more a woman has been murdered in her own home where she should have felt safe, secure and protected, especially in light of the Intervention Order. As is all too common, her death was the culmination of a lengthy history of hostility and family violence between you.

18 During the plea hearing, the Court received five victim impact statements. One statement, written by Rhonda Cosgrove Lewis, the deceased's sister, was read to the Court by the prosecutor. I have read the other four, written by Colin Cosgrove and Charles Pawley, two of the deceased's sons; Lindsay Cosgrove, the brother of the deceased; and Alison Rowbotham, her daughter-in-law.

19 Each of these people must cope not only with the death of their family member but also the horror of the circumstances in which it occurred. The impact on these people is life long and, while its intensity may lessen over time, the sadness surrounding Caroline Willis's death is permanent.

20 I have taken the impact that your crime had on these victims into account in determining the sentence that should be imposed on you.

21 You were born on 7 September 1979 and are therefore almost 40 years of age. Significantly for sentencing purposes, you have no prior criminal history.

22 You are the only child of your biological parents and one of six children to whom your mother had from previous relationships. Your father was James Willis and, when you were two years of age, your parents separated. Given the age difference between you and your half-siblings, you were, in effect, raised as an only child by your mother.

23 You attended school up to year 11. You did not complete that year, and instead began working in warehousing and became a forklift driver for the Toll company.

24 Your history of substance abuse began as a teenager with the use of cannabis. Although after meeting Ms Pithie in 2002, it appears that you were able to stop using cannabis and remained drug free until about 2011. The relationship produced three children. In a letter written by Ms Pithie, which was provided to me during the plea, she claimed you are a dedicated and loving father. Unfortunately, your deteriorating mental health and increasing drug use, including the use of methamphetamines, led to the breakdown of that relationship and loss of your job in 2014.

25 Notwithstanding the end of that relationship, I am told that Ms Pithie regularly visits you in custody; although as I understand it, the Department of Health and Human Services has not permitted your three school-aged children to visit you. Ms Pithie's letter indicates that she continues to support you despite the offence you have committed. She appears to have good insight into your mental illness and the difficult relationship you had with your mother.

26 In 1998, you were diagnosed with a Delusional Disorder and managed through a Community Treatment Order ('Treatment Order') under the Mental Health Act 2014 (Vic). Antipsychotic medication was provided but you did not agree with the diagnosis and were non-compliant with the treatment. In 2001, you were twice treated as an inpatient with paranoid hypervigilance as a result of that non-compliance.

27 You were next admitted as an inpatient at the Sunshine psychiatric unit in December 2015 because of paranoid delusions. You were discharged in April 2016 and placed on another Treatment Order, but that order was revoked following your unwillingness to participate in treatment. You were admitted again in September 2016. Before your discharge the following month, a Risk Assessment and Management report prepared had identified, somewhat fatefully, that your lack of insight, poor symptom control and likely future problems with accommodation and follow-up were factors that increased your risk of future violence. A further Treatment Order was made on 11 October 2016. That order was then extended in March 2018.

28 Pursuant to the Treatment Order, you were last reviewed on 15 May 2018 - nine days before you killed your mother. You were still receiving your antipsychotic medication, but it was reported that your insight into your illness was apparently poor. You stated that you did not prioritise attending appointments or taking medication because you did not feel it was necessary.

29 A report was prepared by Dr Nina Zimmerman, a forensic psychiatrist, for this matter. Originally that was done for the purposes of assessing the possible availability of the defence of mental impairment. She had also been asked to comment on the possible impact that mental illness may have had on your offending as well as the effect a custodial sentence might have on your mental state. She met with you once on 2 January 2019, and she also had the benefit of the brief materials and prior clinical notes. Having found that mental impairment was not available to you, her report was presented to assist with this plea hearing. No issue was taken by the prosecution in relation to opinions expressed in Dr Zimmerman's report.

30 Dr Zimmerman notes that you have a long history of major mental disorder and substance misuse, but you have no history of being violent or anti-social other than when you were psychotic or affected by drugs. Your conduct has been, from time to time, delusional and paranoid. She concluded that you suffer from paranoid schizophrenia with a substantial association with polysubstance abuse. Your illness was likely precipitated by your use of cannabis and aggravated by your use of methamphetamine.

31 Since you began using methamphetamine in 2011, your psychosis has relapsed and has never been in full remission. You admitted that in the four months prior to your mother's murder, you were self-medicating with methamphetamine, although you denied using it for a week or two before her death. Dr Zimmerman further diagnosed methamphetamine dependence and depression, which are in partial remission due your present incarceration and treatment.

32 Although Dr Zimmerman did not conclude the defence of mental impairment was available, she did conclude that, in her opinion, there is an 'association' between your illness and the commission of this offence. On the day of your mother's murder, your mental state was characterised by significant stress and anxiety in relation to your perceived difficulties of living with her. Dr Zimmerman believes that the stress of being confronted with the Intervention Order that required you to leave the premises caused significant aggravation to you. Further, she noted that your record of interview demonstrates the anger and vitriol towards your mother that is usually evident at times you are unwell.

33 Her report concludes your mental illness would have been in partial remission at the time of the offending. Because of your poorly treated illness, you would have struggled to make calm decisions, consider the consequences of your action and control your emotions.

34 It is not in contention that you had a significant mental illness when you committed this offence and that you still suffer from it. There was some debate in relation to the extent of its effect when concluding the appropriate sentence in this case.

35 The prosecution relies on the fact that your schizophrenia was in partial remission and that you were not suffering from active delusions in relation to your crime. Accordingly, they submit there should be a moderate reduction in my assessment of your moral culpability, but only to a limited degree.[1]

36 Your counsel submitted that there was a 'realistic connection'[2] between your long-term mental illness and the commission of this offence, which has the effect of some moderation, but not complete elimination, of moral culpability, general deterrence, specific deterrence and just punishment.[3]

37 It is clear to me that, but for your significant mental disorder, it is most unlikely that you would have murdered your mother in the way that you did.[4] I consider that there should be significant moderation in your moral culpability, which also operates to reduce the weight given to deterrence and denunciation as sentencing factors.[5]

38 Dr Zimmerman also expressed the opinion that, given your diagnosis of schizophrenia, a custodial sentence would weight more heavily on you than it would on a person in normal health.[6] She also observed that schizophrenia is a relapsing condition, and the stressors associated with the custodial environment may lead to a relapse. I accept that opinion.

39 The prosecution also does not dispute that imprisonment would weigh more heavily upon you. It was submitted on your behalf that the stress of being in custody may itself exacerbate your condition.

40 Your counsel has told me that your mental health has stabilised, though you are still prescribed antipsychotic and antidepressant medications. You now contemplate and understand the need to take antipsychotic medication for the rest of your life. It was conceded by your counsel that your substance abuse has abated whilst in custody and that your treatment is likely to be more regimented and your compliance monitored in custody.

41 On your behalf it was submitted that you pleaded guilty at a relatively early stage of these proceedings. You did not conduct a contested committal as your lawyers properly concentrated on whether a defence of mental impairment was open to you. By 19 February 2019, you had indicated a willingness to plead guilty to murder. You were not arraigned until the plea hearing before me on 3 May 2019. I accept that this is a relatively early plea of guilty, and you should not be penalised for investigating the availability of the defence of mental impairment.

42 There is an important utilitarian value in your plea. Witnesses, particularly family members, have not been required to endure the rigours of trial, and the community has been spared the expense of a contested trial.[7]

43 There is some material to suggest that your plea of guilty might also be indicative of remorse for what you have done. Although you attempted to lie to avoid responsibility for the death of your mother, your deception did not last long. You have since said you are bewildered at what you have done and you have expressed regret. There is, I consider, an element of remorse in your post-offence conduct, though the hostility you felt towards your mother has not totally abated.

44 As I have already noted, you have no criminal history. Whilst in custody you have made efforts to improve yourself through education and work opportunities. That time in custody has been difficult as you have been in a protection unit at the Metropolitan Remand Centre since the second half of 2018. Your placement in protective custody has arisen due to threats apparently made by another prisoner in relation to your offending.

45 Dr Zimmerman has expressed the view that it is paramount that you undertake counselling and intensive psychoeducation. That will help you process the loss and trauma of what has occurred, and to gain insight into your illness and remain compliant with treatment in the future. As your prospects of rehabilitation are closely linked to your mental health and substance misuse, this treatment will be very important to you. There is some evidence before me that you are capable of leading a law-abiding and productive life.

46 After 1 February 2018, the offence of murder has become a 'standard sentence offence'[8] under the 'standard sentencing scheme' established by ss 5A and 5B of the Sentencing Act 1991 (Vic) (the 'Act'). The standard sentence for murder, pursuant to s 3(2)(b) of the Crimes Act 1958 (Vic), is 25 years' imprisonment.

47 The standard sentence is the period of specified by the Act that is the appropriate sentence for the middle of the range of seriousness, taking into account only the objective factors affecting the relative seriousness of that offence.[9]

48 Those objective factors are to be determined wholly by reference to the nature of your offending.[10] Those factors are what can be proven that you intended to do, what you actually did - in all its detail - and what occurred afterwards, to the extent that it illuminates your actions. The nature of your offending is defined without reference to your personal circumstances.[11]

49 In summary, the objective factors that go to seriousness of your offending include the fact that the offence was committed in the context of family violence. It was the culmination of a period of family violence; though it must be acknowledged that by virtue of mental health issues, your relationship with the deceased was difficult for some time. Further, you committed this offence by entering premises in breach of a recent Intervention Order, which had been obtained to protect the deceased from you. The offence itself was committed in circumstances of extreme violence using a weapon to inflict multiple injuries. After you had attacked your mother, you did nothing to assist her and left her for dead in the house. You later attempted, for a short time, to avoid responsibility by lying about what had occurred as I have already described. The offending is thus very serious.

50 But that is not the end of the sentencing decision. The imposition of the standard sentence is not mandatory in any sense. It is, rather, only one more factor the Court is required to take into account when determining the appropriate sentence. Put another way, the standard sentence can be considered another legislated guidepost, like the stated maximum sentence.[12] The Act itself provides that 'instinctive synthesis' is still the correct approach to sentencing,[13] which requires the simultaneous balancing of many factors including the nature and seriousness of the offending as well as your personal circumstances.

51 The Act further instructs that for standard sentence offences, I may only have regard to sentences imposed by this Court under the standard sentencing scheme.[14] Having the effect that I must disregard established sentencing practice and work from a 'clean slate'.[15]

52 In addition, s 11A of the Act states that I must fix a non-parole period of at least 70 per cent of the sentence imposed on standard sentence offence of murder, unless it is in the interests of justice not to do so.[16] The sentence I will impose will give effect to this direction.

53 Taking into account the seriousness of this offence as I have outlined, you fall to be sentenced on the factual basis that your actions, in causing the death of your mother, were spontaneous, unplanned and immediately followed a brief and acrimonious conversation with the deceased on your return to the premises. I am also satisfied that the principles arising from Verdins, and later developed in subsequent authorities, mean that your moral culpability for this offence is significantly reduced. Likewise, there should be a moderation of general and specific deterrence. I am further satisfied that, as I have described, your time in custody will weigh more heavily on you than it would on someone in normal health. Assuming your serious mental health issues are properly managed, which will depend in part on your compliance, you would not then be a person from whom the community needed to be protected.

54 In my view, the appropriate sentence to be imposed on you for the offence of murder is a sentence of 20 years' imprisonment and that is the sentence I impose on you. I further direct that you serve a term of 14 years before you become eligible to apply to be released on parole.

55 In sentencing you, I would urge the relevant authorities to continue to ensure that your mental health be treated as required so that, by the time you are released, your prospects of rehabilitation and living a law-abiding life thereafter are enhanced.

Section 5B(5) of the Sentencing Act

56 Section 5B(5) of the Act requires me to refer to the standard sentence for the offence of murder in this case and explain how the sentence I have imposed on you relates to the standard sentence. For good reasons, which I have identified, the sentence imposed on you is lower than the standard sentence and those reasons have been spelt out in detail.

Section 6AAA of the Sentencing Act

57 Pursuant to s 6AAA of the Act, I declare that, had you not pleaded guilty to this offence, the sentence I would have imposed on you would have been a period of 24 years' imprisonment with a minimum term of 18 years before being eligible to apply for release on parole.

58 I declare that the pre-sentence detention is 392 days, including today, and direct that that period be reckoned as time already served. I direct that those matter be entered into the records of the court.

59 I have already made the disposal order sought by the prosecution.

[1] Green v R [2011] VSCA 311 [24].

[2] See e.g.DPP v O'Neill [2015] VSCA 325 (O'Neill) [74]; Carroll v The Queen [2011] VSCA 150 [20]; Arthars v The Queen; Plater v The Queen [2013] VSCA 258 [13]-[15].

[3] See e.g. R v Verdins; R v Buckley; R v Vo [2007] VSCA 102 ('Verdins'); Charles v The Queen [2011] VSCA 399.

[4] See O'Neill, above n 2, [74]-[75]; R v Flood [2016] VSCA 37 [31].

[5] Verdins, above n 3, citing R v Vardouniotis [2007] VSCA 62.

[7] Siganto v The Queen [1998] HCA 74 [22].

[8] Sentencing Act 1991 (Vic) s 3 ('Sentencing Act').

[9] Ibid s 5A(1)(b).

[10] Ibid s 5A(3)(a).

[11] Ibid s 5A(3)(b).

[12] R v Brown [2018] VSC 742; Sentencing Act, above n 8, s 5B(2)(a).

[13] Sentencing Act, above n 8, s 5B(3)(b).

[14] Ibid s 5B(2)(b).

[15] Explanatory Memorandum, Sentencing Amendment (Sentencing Standards) Act 2017 (Vic) 6.

[16] Sentencing Act, above n 8, s 11A(4)(b).