Sawyer-Thompson v The Queen [2018] VSCA 161 (22 June 2018)

Last Updated: 16 July 2018

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0097

BONNIE KATE SAWYER-THOMPSON	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL ACJ, TATE and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 March 2018
DATE OF JUDGMENT:	22 June 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 161
JUDGMENT APPEALED FROM:	[2016] VSC 767 (Croucher J)

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CRIMINAL LAW – Appeal – Sentence – Defensive homicide – Family violence – Applicant killed innocent victim – Excessive violence – Acting under threat from partner – Partner threatened to kill applicant’s family unless she killed victim – History of violent mistreatment of applicant – Judge accepted that applicant believed threat would be carried out unless she complied – Sentence of 10 years’ imprisonment with non-parole period of 7 years – Whether manifestly excessive – Relevance of family violence to offence gravity and culpability – Similarities to duress – Cooperation with authorities – Whether relevant that partner not prosecuted – Impairment of mental functioning – Appeal allowed – Resentenced to 6 years and 6 months with non-parole period of 5 years – DPP v Parker (a pseudonym) [2016] VSCA 101 applied – Crimes Act 1958 ss 9AG, 9AH.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms R Sleeth with Mr M Reardon	Victoria Legal Aid
For the Respondent	Mr B Sonnet	Mr J Cain, Solicitor for Public Prosecutions

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MAXWELL ACJ

TATE JA:

Summary

1 The applicant pleaded guilty to defensive homicide. On the facts of the case, she therefore fell to be sentenced on the basis that:

(a) she had killed the victim, Mr Nankervis, in the belief that it was necessary to do so to prevent her family from being killed; but

(b) she did not have reasonable grounds for that belief.^[1]

2 What makes this case unusual is that Mr Nankervis was not the source of the threat to the applicant’s family. That threat came, instead, from her partner, Phillip Mifsud (‘Mifsud’), with whom she had been in a violent and abusive relationship for 12 months. Mifsud threatened the applicant that he would kill her family unless she killed Nankervis, and she feared that he would carry out the threat.

3 The prosecutor told the sentencing judge that he could find no other instance of the offence of defensive homicide being committed when the threat came from someone other than the victim. The explanation is that the applicant’s defence to the original charge of murder was duress. If made out, duress would have been a complete defence to that charge, resulting in an acquittal. On the second morning of the trial, after a jury had been empanelled, the applicant abandoned the defence of duress and entered a plea of guilty to defensive homicide.^[2]

4 What was essentially a duress case was thus converted into a case of defensive homicide. But that did not alter the character of the threat which compelled the applicant to act, or its effect on her state of mind.

5 The sentencing judge described the applicant’s offence as ‘a very grave example of defensive homicide’.^[3] This conclusion rested on his Honour’s findings that:

(a) Nankervis was ‘completely innocent’ of any threat towards the applicant or her family;^[4]

(b) because Mifsud was absent at the time of the killing, the applicant had the opportunity to go to police or a neighbour, or simply run away;^[5] and

(c) the attack on Nankervis was ‘ghastly and disturbing in its execution’, in that he was ‘hacked and stabbed repeatedly ... well beyond [what] was necessary to kill him’.^[6]

6 With great respect to his Honour, we consider that this was a mischaracterisation of the seriousness of the offence, which in turn affected his Honour’s view of the applicant’s culpability. It was not in dispute that the violence which the applicant inflicted on Nankervis was grossly excessive. The extent of the injuries was deeply shocking. But the key question was what the applicant’s actions revealed about her state of mind.

7 As the judge found, the applicant had been the subject of repeated acts of violence, degradation and humiliation at the hands of Mifsud, who was — and was known to the applicant to be — a highly dangerous person. The fact that she proceeded to kill Nankervis rather than flee, and that she used excessive violence, could only be understood through the lens of the sustained family violence she had experienced.^[7]

8 Nor, with respect, was it relevant that Nankervis had made no threat to the applicant. As already mentioned, this was not an ‘ordinary’ example of defensive homicide. In substance, this was a case that had many of the hallmarks of what is ordinarily understood as duress. It is of the essence of duress that the offender feels compelled, because of a threat made by another, to harm the (innocent) victim. The fact that the applicant decided not to contest the murder charge, and instead pleaded guilty to defensive homicide, did not change the character of key elements of her conduct for sentencing purposes, including (relevantly to her level of criminal culpability) her fear that the threat of lethal violence would be carried out.

9 It follows, in our view that the sentence imposed (10 years’ imprisonment, with a non-parole period of seven years) was manifestly excessive. We would grant leave to appeal, allow the appeal, set aside the sentence imposed and resentence the applicant to six and a half years’ imprisonment with a non-parole period of five years.

The history of violence by Mifsud against the applicant

10 We have had the advantage of reading in draft the reasons for judgment of Beach JA. We gratefully adopt his Honour’s summary of the circumstances of the offending.

11 The applicant gave evidence on the plea, and was extensively cross-examined, about her relationship with Mifsud. The judge summarised that evidence as follows:

[The applicant] met Mr Mifsud about twelve months before the killing. They had a sexual relationship. They would take drugs together. He introduced her to the use of ‘ice’. He was involved in dealing drugs, and would have her assist him in that endeavour on occasions.

He was violent to and humiliating of her at times. He used a cigarette to burn her back and a lighter to burn her arm. While she used some drugs voluntarily, he also injected her with a syringe against her will. When they stayed together with [a friend of PM’s], on occasions, Mr Mifsud would make her sleep outside. He forced her to watch ‘snuff’ films. He punched and choked her. He forced her to swallow a drink containing nutmeg, which made her ill. He forced lit firecrackers down her top. He hit her across the head with a bottle, dragged her by the hair and then cut off her ponytail. He pushed her down some stairs. He made her sniff petrol and snort ‘dexies’ with nail polish remover. Under threat of being hurt if she revealed the truth, he made her part of his drug deals when he sold ‘fake’ drugs. She saw him assault another man and threaten him that, if he told police, he would come to his house. He ripped off her dress in front of others, exposing her bra and shorts underneath for all to see. He controlled what she was to say to others. He had put a gun to her head to make her break into a house. He forced her to swallow bullets. He threw a can of cat food at her head.^[8]

12 His Honour accepted the applicant’s account of her mistreatment at the hands of Mifsud. He made the following findings:

I am satisfied, on the balance of probabilities, that Mr Mifsud subjected her to cruel, humiliating and violent acts of the type disclosed in her evidence.

That he might behave in such a way is also supported, in part, by Mr Mifsud’s history of violence towards others. He has a substantial criminal history.^[9]

And further:

It is apparent that [Mifsud] used [the applicant] for various purposes. He used her home to deal in drugs. He experimented on her with combinations of drugs. He even made her overdose on nutmeg on one occasion, which caused her mother to call an ambulance.

As I have indicated earlier, I am satisfied that Mr Mifsud also engaged in a litany of other violent and humiliating behaviour towards [her].^[10]

13 His Honour also accepted the applicant’s account that Mifsud had threatened her, and that she had killed Nankervis because of the threat. He said he was satisfied

that the substance of her account about the threat is true. In particular, I am satisfied that Mr Mifsud threatened her to the effect that he would kill her family unless she killed Mr Nankervis and that she feared that that is what he would do. Her evidence before me and in the statement on this issue was comparatively clear and straightforward. When tested in cross-examination, she maintained her position in a convincing manner.^[11]

And further:

[The applicant] was vulnerable to the threats of Mr Mifsud because he had subjected her to serious violence and humiliation in the past and, in her mind, had a fearsome reputation for violence towards others.^[12]

And again:

I am satisfied that the substance of her account of Mr Mifsud’s involvement in ordering her to kill Mr Nankervis, and of his ill-treatment of her, is both full and frank.^[13]

14 There was, moreover, uncontested expert evidence before the judge about the effect on the applicant of the sadistic treatment meted out by Mifsud. In his reasons, the judge set out the following passages from a report by Dr Dion Gee, a forensic psychologist, which had been obtained by the Office of Public Prosecutions. Dr Gee described the applicant’s ‘unwavering submissiveness’ to Mifsud and compliance with his demands:

It is reasonable to suggest that at the point of the offence she was labouring under an untreated major depressive disorder, generalized anxiety, post-traumatic symptomology and possible substance use disorder. Moreover, her emerging personality pathology, psychosocial/interpersonal difficulties, and reduced cognitive capacities (albeit not intellectually disabled) would have all acted to ... impair [further] her mental functioning.

...

[Regarding the nexus between [the applicant’s] impaired mental functioning and the index offence, whilst it is difficult to assert the presence of a direct causal nexus,] there would seemingly be a significant association mediated through her presenting psychopathology; whereby her symptomology arguably impacted adversely on her social–moral reasoning, consequential thinking, insight and judgment. That is, [the applicant’s] deficits in autonomy, limited social connectedness and maladaptive self-regulation would predispose her to seek — and blindly attempt to maintain — intimacy and social connection through whatever means possible. Further, her trauma history (both her own experiences of abuse and exposure to past domestic violence) limited self-esteem, minimal self-worth, and impaired sense of identity would have set up an interpersonal platform of submission, compliance and subjugation. Within this type of context, it would be exceptionally difficult for [the applicant] to resist the requests of those in positions of influence over her. As a result, and being unable to repel the influences of those she becomes psychologically dependent on, [the applicant] would similarly be unable to physically escape such influence; as to do so would likely retrigger those experiences of past physical and psychological threat. In all likelihood, this sense of psychological ‘trapped-ness’ (both through fear and dependence) would have acted to reinforce what seemingly became [the applicant’s] unwavering submissiveness and compliance within a highly dysfunctional, exploitative, and at times somewhat sadistic relationship with Mr [Mifsud].^[14]

15 On the plea, counsel for the applicant submitted that the case fell ‘at the bottom end of the range’ for defensive homicide. Counsel relied on the evidence about Mifsud’s violence and its effect on the applicant in submitting that it was Mifsud who had brought about the crime, using the applicant ‘as a vehicle to achieve it’. Counsel submitted that, because of the applicant’s fear of Mifsud and her belief that he would carry out his threat if she did not kill Nankervis, her belief that it was necessary to kill him ‘was just shy of reasonable’.

16 The prosecutor’s submission was as follows:

While there is some substance to the allegations of family violence, it is submitted that this is not a case of battered women’s syndrome. This was a short term, off and on liaison accompanied by occasional violence. This was not a case of a husband beating his wife and causing serious injuries over years.

...

This is a serious example of defensive homicide. It was a brutal, sustained attack with severe force on a partially sedated or dozing man whom the [applicant] had only just met. She may have believed in a threat to harm her family. But there was no one present to carry out the threat when she killed [Nankervis]. The police station was a five minute walk away.

17 In substance, the judge said, he accepted the prosecutor’s submission.^[15] Although he accepted the expert evidence, he regarded it as

objectively, a very grave example of defensive homicide. It falls towards the upper end of the range of seriousness and would be far worse but for the mitigating considerations evident in the opinions of the psychologists.^[16]

18 Defence counsel had submitted, and the judge accepted, that the family violence provisions in the Crimes Act^[17] were applicable to the charge of defensive homicide. It is instructive to review the recent authorities which deal with those provisions.

Family violence and belief in the threat of harm

19 In Parker, this Court (Redlich, Osborn and Priest JJA) considered the requirement of ‘reasonable belief’ in the defence of duress, as then governed by s 9AG(2) of the Crimes Act. (This question came before the Court on a reference by the judge who was to preside over the applicant’s trial on the charge of murder.)

20 Section 9AG(2) provided as follows:

A person carries out conduct under duress if and only if the person reasonably believes that —

(a) subject to subsection (3), a threat has been made that will be carried out unless an offence is committed; and

(b) carrying out the conduct is the only reasonable way that the threatened harm can be avoided; and

(c) the conduct is a reasonable response to the threat.^[18]

21 It was common ground before the Court in that proceeding that the person’s belief must be objectively reasonable. The question for consideration was whether — and, if so, to what extent — the Court in assessing of the reasonableness of that belief should take account of factors personal to the accused. The Court concluded that personal factors must be taken into account. Whether the accused person had a ‘reasonable’ belief for the purposes of the subsection was to be assessed from the point of view of

a reasonable person possessing the personal characteristics of the accused that might have affected the accused’s appreciation of the circumstances.^[19]

22 Naturally, given the applicant’s then-proposed defence of duress, the Court paid close attention to the family violence provisions. Section 9AH made evidence of family violence admissible in connection with the defences of self-defence and duress, and the offence of defensive homicide, for the purpose of determining whether an accused person believed — and had reasonable grounds for believing — that his or her conduct was necessary ‘to defend himself or herself or another person’. It provided as follows:

9AH Family violence

(1) Without limiting sections 9AC, 9AD or 9AE, for the purposes of murder, defensive homicide or manslaughter, in circumstances where family violence is alleged a person may believe, and may have reasonable grounds for believing, that his or her conduct is necessary—

(a) to defend himself or herself or another person; or

(b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person —

even if —

(c) he or she is responding to a harm that is not immediate; or

(d) his or her response involves the use of force in excess of the force involved in the harm or threatened harm.

(2) Without limiting the evidence that may be adduced, in circumstances where family violence is alleged evidence of a kind referred to in subsection (3) may be relevant in determining whether —

(a) a person has carried out conduct while believing it to be necessary for a purpose referred to in subsection (1)(a) or (b); or

(b) a person had reasonable grounds for a belief held by him or her that conduct is necessary for a purpose referred to in subsection (1)(a) or (b); or

(c) a person has carried out conduct under duress.

(3) Evidence of —

(a) the history of the relationship between the person and a family member, including violence by the family member towards the person or by the person towards the family member or by the family member or the person in relation to any other family member;

(b) the cumulative effect, including psychological effect, on the person or a family member of that violence;

(c) social, cultural or economic factors that impact on the person or a family member who has been affected by family violence;

(d) the general nature and dynamics of relationships affected by family violence, including the possible consequences of separation from the abuser;

(e) the psychological effect of violence on people who are or have been in a relationship affected by family violence;

(f) social or economic factors that impact on people who are or have been in a relationship affected by family violence.

(4) In this section—

child means a person who is under the age of 18 years;

family member, in relation to a person, includes—

(a) a person who is or has been married to the person; or

(b) a person who has or has had an intimate personal relationship with the person; or

(c) a person who is or has been the father, mother, step-father or step-mother of the person; or

(d) a child who normally or regularly resides with the person; or

(e) a guardian of the person; or

(f) another person who is or has been ordinarily a member of the household of the person;

family violence, in relation to a person, means violence against that person by a family member;

violence means—

(a) physical abuse;

(b) sexual abuse;

(c) psychological abuse (which need not involve actual or threatened physical or sexual abuse), including but not limited to—

(i) intimidation;

(ii) harassment;

(iii) damage to property;

(iv) threats of physical abuse, sexual abuse or psychological abuse;

(v) in relation to a child—

(A) causing or allowing the child to see or hear the physical, sexual or psychological abuse of a person by a family member; or

(B) putting the child, or allowing the child to be put, at real risk of seeing or hearing that abuse occurring.

(5) Without limiting the definition of violence in subsection (4)—

(a) a single act may amount to abuse for the purposes of that definition;

(b) a number of acts that form part of a pattern of behaviour may amount to abuse for that purpose, even though some or all of those acts, when viewed in isolation, may appear to be minor or trivial.^[20]

23 The Court said of these provisions:

Section 9AH(2)(c) specifically contemplates that evidence of the type there referred to may be relevant in determining whether a person has carried out conduct under duress. The permissible evidence set out in s 9AH(3) may go to subjective belief or objective reasonableness and so be used in determining whether or not the actions taken by an accused were a reasonable response to the threat.^[21]

24 These provisions, and the significance of family violence, had previously been applied in Director of Public Prosecutions v Williams.^[22] In that case, the offender was found guilty, after a trial, of defensive homicide. She had killed her partner with whom she had been in a relationship for 23 years, by striking him to the head and neck 16 times with a pick axe. The defence had led evidence, including expert evidence, about what was said to be a long history of violence by the deceased against the accused and their two children.

25 The sentencing judge (Hollingworth J) noted that,

in coming to the verdict which they did, the jury must have been satisfied that the killing took place in the context of a history of family violence which was considerably more serious than the prosecution suggested.^[23]

Her Honour made the following findings about the extent of the violence:

I also accept that he was, over a long period, physically violent towards you and the children, in the sense of pushing and shoving you; he would also abuse and threaten you all. However, it is not possible, or necessary, for me to make definitive findings about the totality of [the deceased’s] physical or other family violence towards you or the children. I am satisfied that his behaviour towards you, over many years, was abusive, belittling and controlling, and involved both physical and psychological abuse.^[24]

26 In that case, as in the present, the prosecution and defence had put forward very different assessments of the seriousness of the offending. The prosecution said that the offence was ‘towards the upper-middle range of seriousness’ for the offence of defensive homicide, in part because of ‘the number and nature of blows inflicted’. Defence counsel, on the other hand, said that the offence was ‘very much at the lower end’.^[25]

27 In a passage which counsel for the present applicant read to the sentencing judge, Hollingworth J went on to describe the relevance of the family violence in these terms:

In finding you guilty of defensive homicide, the jury must have been satisfied beyond reasonable doubt that:

(a) when you hit [the deceased] with the axe, you intended to kill or cause really serious injury to him; and

(b) you did not have reasonable grounds for believing that it was necessary to do what you did to defend yourself from a threat of death or really serious injury.

In assessing the seriousness of a defensive homicide, courts have usually looked at the degree of disproportion between the perceived threat or violence and the offender’s response to it. However, there are problems in applying that principle too strictly in cases involving family violence, for the following reasons.

Firstly, the family violence legislation itself expressly provides that a person in a family violence situation may believe, and may have reasonable grounds for believing, that their conduct is necessary to defend themselves, even if they are responding to a harm that is not immediate, and even if their response involves the use of force in excess of the force involved in the harm or threatened harm.

The final act or acts of the deceased may well be relatively minor, if looked at in isolation; but what happens in such cases is that the victim of family violence finally reaches a point of explosive violence, in response to yet another episode of being attacked. In such a case, it is not uncommon for the accused to inflict violence that is completely disproportionate to the immediate harm or threatened harm from the deceased.

Secondly, in this case, the court heard detailed (and largely unchallenged) evidence from Professor Patricia Esteal, an academic and author. Since the late 1980s, she has conducted research, taught and written extensively on family violence, partner rape, and women who kill their violent partners. She gave evidence about the complex and varied manifestations and dynamics of family violence, and the reasons why women often do not leave their violent partners.

Professor Esteal also spoke about the use of weapons by female victims of family violence against their male partners. Her research shows that women in such a situation traditionally do not use the same weapon as their male attacker. A man usually uses his hands or his body, his physical force, against his female partner; whereas a woman invariably uses a weapon (including guns, knives and axes), out of fear that she would be likely to be overpowered and hurt even more by him if she only used her hands or body. It is also not uncommon in those cases for the woman to inflict multiple strikes with a knife or sharp instrument — substantially more strikes than may, objectively, have been required to incapacitate the man.

Given Professor Esteal’s evidence, it may not be appropriate in a case such as this one to assess the objective seriousness of the offence primarily by reference to the degree of disproportion between the perceived threat or violence from the male partner and the woman’s response to it.

In a case of violence between men, particularly between men with little or no prior history, the infliction of 16 blows with an axe in response to a verbal and minor physical attack by an unarmed attacker may rightly be seen to be so totally disproportionate as to make it a very serious example of the offence. That may not necessarily be the right conclusion in a case involving family violence, particularly with a female offender.

It does not appear that evidence or arguments such as these were considered in the other defensive homicide cases which involved female offenders and their male victims, in a family violence context.^[26]

28 We recognise that her Honour was dealing with the response by a victim of family violence to the perpetrator of that violence, which is different from the circumstances here. Nevertheless, in our respectful opinion, what her Honour said had direct application to the present case.

29 Earlier, in Director of Public Prosecutions v Bracken (Ruling No 12),^[27] Maxwell P said of s 9AH:

It is quite clear from the language of this provision that Parliament intended that, when a jury has to consider a defence of this kind in a family violence context, the jury should be able to be assisted by evidence of a specific nature — dealing with the relevant domestic relationship — and of a general kind, dealing with characteristics of relationships affected by family violence and the effects on the person being abused of being in such a relationship.^[28]

30 In Bracken, the accused was charged with murder. His defence was self-defence, based on a history of violence by the deceased towards him. The defence proposed to call expert evidence on the effect of family violence but the prosecution objected on the ground that the expert had not assessed the accused man and could not therefore say whether what was true generally of the impact of family violence was applicable to him. In ruling the evidence admissible, Maxwell P said:

As I have already pointed out, the provisions of the Act expressly make evidence of a general kind admissible. It is both appropriate and necessary, so Parliament has decided, that the factual and expert evidence about the particular relationship be able to be assessed by the jury against the background of expert evidence about the general characteristics of relationships of this kind, and of the effect on the abused person.^[29]

31 As was suggested during the hearing of this appeal, we think it highly desirable that expert evidence of this kind should be available to a sentencing judge in any case where a history of family violence is said to provide relevant context for the commission of a violent offence.

32 We turn to consider the significance for sentencing purposes of the violence inflicted on the applicant by Mifsud, and of the threat under which the judge found she was acting.

The applicant’s conduct

33 As noted earlier, the judge’s assessment of the gravity of the offence was substantially based on the violence which the applicant inflicted on Nankervis. As the judge described it, the applicant

took to Mr Nankervis with the mattock, and then a knife, while he laid on her bed, completely defenceless. She struck and stabbed him repeatedly to the head, face and neck. He suffered about 70 separate injuries, including seventeen knife wounds. Plainly, she meant to kill him, and she did. But the attack went much further than that: it was merciless, grisly and disturbing. Mr Nankervis’s face was caved in to the point that he was unrecognizable.^[30]

34 The defence have not disputed, either before the judge or on this application, that the violence inflicted was grossly disproportionate to the objective of killing Nankervis. He was, as the judge noted, in a drug-induced stupor and was completely defenceless. The critical question, however, was what inference should be drawn about the applicant’s state of mind at the time, from the fact of her having inflicted such gross violence and from the surrounding circumstances.

35 In a number of first instance decisions, the sentencing court has viewed the offence of defensive homicide as being more serious where the offender’s response is disproportionate to the actual or perceived threat.^[31] As Hollingworth J pointed out in Williams, however, there are problems with applying that analysis to cases involving family violence.^[32]

36 On the plea, counsel for the applicant relied on the following passage from Creamer, in which this Court (Weinberg JA, with whom Bongiorno JA and T Forrest AJA agreed) said:

The gravity of this offence must depend, to a considerable degree, upon the strength of the circumstances said to give rise to the belief that self-defence was warranted. Of course, in any case where the verdict is one of defensive homicide, the offender’s belief must have been unreasonable. Otherwise, the jury would have acquitted entirely, on the basis of self-defence.

However, there are degrees by which a belief may be said to have been unreasonable. In some cases, the line is just barely crossed. In others, the belief is wholly unjustifiable, almost to the point of being fanciful. The present case strikes me as falling within the latter category. The appellant had to be sentenced on the basis that she believed she was threatened with death or really serious injury. However, given the unchallenged findings by the sentencing judge, rejecting much of the appellant’s account of what took place, she clearly had no basis whatever for that belief.^[33]

37 The submission for the applicant, both on the plea and in this Court, was that this should be seen as a case where — in the language of Creamer — ‘the line [was] just barely crossed’. Counsel argued that, because of the threat by Mifsud that he would kill the applicant’s family unless she killed Nankervis and because of the cumulative effect on her of Mifsud’s sadistic and controlling behaviour, her grounds for believing that she needed to kill Nankervis fell ‘just shy’ of being reasonable grounds.

38 In our respectful opinion, that submission should have been accepted, given his Honour’s acceptance of the evidence of Dr Gee and of the applicant herself. That evidence demonstrated, compellingly, the applicant’s extreme vulnerability and submissiveness to a threat of this kind from Mifsud, made as it was against the background of his prior violence to her, and to others.

39 As counsel for the applicant submitted on the plea, it was that evidence which made explicable what might otherwise have seemed inexplicable. First, it made explicable the fact that, even with Mifsud absent, the applicant did not go to the police or flee. Because she believed that Mifsud would carry out his threat to kill her family unless she killed Nankervis, running away was simply not an option. Her flight would not prevent Mifsud carrying out his threat.

40 In the view of the sentencing judge, the fact that the applicant

had the opportunity to go to police or a neighbour or simply run away makes her actions both difficult to fathom and all the more serious.^[34]

For the reasons we have given, we respectfully disagree.

41 Secondly, the evidence about Mifsud’s brutality towards the applicant, and her fear of him, made explicable the extent of the violence which she inflicted on Nankervis. As her counsel submitted on the plea, the inference which ought to have been drawn was that the applicant was ‘in such a state of heightened fear’ at the prospect of him carrying out his threat to kill her family. This was not a dispassionate execution by a practised killer. On the contrary, the applicant was — unsurprisingly — overwhelmed by having to kill a person she hardly knew. It was a task for which she was wholly unprepared. Like most people, she had no idea of how to do it.

42 There was no basis, in our view, for drawing an adverse inference from the excessive violence that the offence fell ‘towards the upper end of the range of seriousness’.^[35] That would be to deny the force of the surrounding circumstances, the history of violence by Mifsud and the applicant’s submissiveness and compliance. The applicant had had no prior association with Nankervis, less still any grievance against him. Unlike other cases of defensive homicide occurring against a background of family violence, where the victim of the violence kills the perpetrator, there was no basis for inferring that the disproportionate violence was fuelled by anger, or hatred, or a desire for revenge. Defence counsel’s submission to that effect should have been accepted.

43 Once the violence is seen in its proper context, the seriousness of the offending must necessarily be assessed quite differently. This was a shocking killing but, for the reasons we have given, the judge erred in concluding that the offence fell ‘towards the upper end of the range of seriousness’.

Innocent victim

44 Contrary to his Honour’s finding, the fact that Nankervis had made no threat to the applicant was not an aggravating factor. As we said earlier, it is of the nature of conduct that resembles duress that the person intended to be harmed is not the person who makes the threat. It is true that Nankervis was innocent. But that factor cannot be permitted to overshadow the other circumstances of the case.

45 Counsel submitted that ‘duress [was] operating at that time’, because the applicant was under Mifsud’s influence and was ‘terrified of him’. That being so, the innocence of the victim, sad as it was, ultimately made no difference to the applicant’s moral culpability. What was critically important was the threat by Mifsud, and the applicant’s belief that he would carry it out unless she complied.

46 When the prosecutor objected on the plea that the defence of duress (to murder) had been abandoned, counsel for the applicant submitted — and the judge accepted — that the applicant had to be judged on the basis of her operative belief at the time of the killing. As the judge recognised, the outcome of the plea negotiations was that a duress case had had to be fitted — rather artificially — into the defensive homicide provisions, to which it did not properly belong.

47 We respectfully agree with what Beach JA has written on that subject. Since the defensive homicide provisions have now been repealed, it is unnecessary to comment further on the appropriateness of that course.

Offer to assist the authorities

48 As the judge noted, the applicant sought to assist the authorities in the investigation and prosecution of Mifsud by providing a statement on 13 February 2017. This occurred after the judge enquired of the prosecutor whether, in light of the applicant’s sworn evidence on the plea implicating Mifsud in a murder, the police or the Director would be investigating or prosecuting him. Explaining this in his reasons, his Honour said:

Part of my concern was that, if such a course were to be taken and [the applicant] were to assist in that investigation and/or prosecution, that should be a matter taken into account in sentencing.^[36]

49 The prosecutor subsequently informed his Honour that the applicant had made a statement but that, after a full review of the materials, the Director had determined that there would be no further investigation and no prosecution of Mifsud. The applicant nevertheless gave sworn evidence, adopting the truth of her statement, and giving an undertaking to assist the authorities in investigating or prosecuting Mifsud if called on to do so. The parties then filed written submissions on the significance for sentencing of her providing the statement and the undertaking.

50 As noted earlier, his Honour was satisfied that the substance of the applicant’s account of Mifsud’s involvement in ordering her to kill Nankervis, and of his ill-treatment of her, was ‘both full and frank’.^[37] His Honour continued:

Secondly, I am satisfied that [the applicant’s] offer and undertaking to assist, and the provision of her statement, reflect contrition and a genuine desire to bring a person to justice but also a hope of obtaining the potential sentencing benefit that might flow from such behaviour.

Thirdly, while I accept the substance of her account on the balance of probabilities, I can well understand how it is that the Director has come to the view that there is no reasonable prospect of a conviction based on her evidence. Plainly, she is a witness who suffers from many afflictions and might not be believed on the criminal standard of proof. Indeed, without more supporting evidence, I would not be prepared to act on her account if I were required to apply the (much higher) criminal standard of proof. Thus, I accept [the prosecution’s] submission that, at least at this point, the practical value of her offer, statement and undertaking amounts to nought.

Fourthly, I accept that it is likely that, while in prison and perhaps beyond, [the applicant] will suffer at least some odium, and in any event may well fear reprisals, from cowardly types who regard informers as fair game. I note that, at the time of the last hearing, [the applicant] was in protective custody.

It is for these reasons that I consider that some weight – but moderate rather than substantial weight – should be given in mitigation to [the applicant’s] assistance to, and offer and undertaking to assist, the authorities in the investigation and potential prosecution of [Mifsud], even though the Director has declined to take the matter any further. I have given this factor less weight than otherwise on account of the fact that, at least at present, it is reasonable to conclude that there is no practical value in her offer, statement and undertaking. But the other features of her attempt and offers to assist mean that at least moderate weight must be given to this factor. By way of comparison, in the circumstances of this case, the weight I have given this factor, while still significant, is somewhat less than that which I have given to the plea of guilty.^[38]

51 In this Court, the manifest excess ground was argued by reference, amongst other things, to the applicant’s assistance to the authorities and the fact that she was serving, and would serve, the sentence ‘more onerously due to her status as a police informer’. On the plea, counsel had submitted that a sentencing discount for assisting authorities should be granted ‘regardless of whether the information or assistance provided is ultimately effective’. Reliance was placed on the decision of the New South Wales Court of Criminal Appeal in R v Cartwright.^[39]

52 In Cartwright, in a passage which has been applied by this Court,^[40] Hunt and Badgery-Parker JJ said:

It is clearly in the public interest that offenders should be encouraged to supply information to the authorities which will assist them to bring other offenders to justice, and to give evidence against those other offenders in relation to whom they have given such information.

In order to ensure that such encouragement is given, the appropriate reward for providing assistance should be granted whatever the offender's motive may have been in giving it, be it genuine remorse (or contrition) or simply self-interest. What is to be encouraged is a full and frank cooperation on the part of the offender, whatever be his motive. The extent of the discount will depend to a large extent upon the willingness with which the disclosure is made. The offender will not receive any discount at all where he tailors his disclosure so as to reveal only the information which he knows is already in the possession of the authorities. The discount will rarely be substantial unless the offender discloses everything which he knows. To this extent, the inquiry is into the subjective nature of the offender's cooperation. If, of course, the motive with which the information is given is one of genuine remorse or contrition on the part of the offender, that is a circumstance which may well warrant even greater leniency being extended to him, but that is because of normal sentencing principles and practice. The contrition is not a necessary ingredient which must be shown in order to obtain the discount for giving assistance to the authorities.

Again, in order to ensure that such encouragement is given, the reward for providing assistance should be granted if the offender has genuinely co-operated with the authorities whether or not the information supplied objectively turns out in fact to have been effective. The information which he gives must be such as could significantly assist the authorities. The information must, of course, be true; a false disclosure attracts no discount at all. What is relevant here is the potential of the information to assist the authorities, as comprehended by the offender himself. Information which turns out to be significant, but which is neither comprehended nor intended as such by the offender, has not been given in the spirit of willingness which the discount is designed to achieve. The circumstance that objectively the information subsequently turned out to be effective may perhaps demonstrate that the information possessed such a potential if it is not otherwise obvious upon the face of the information itself, but such effectiveness is not a requirement. As we have already pointed out, the offender will not lose the discount because in fact (unknown to him) the authorities are already in possession of that information. Nor should he lose it if the authorities do not in the end act upon his information, because (for example) they subsequently receive or they have already received more cogent information from another source — or if the offender does not in the end give evidence as promised, because (for example) the person who is the subject of his information has pleaded guilty.

All of these matters should be dealt with in a broad and general way and without descending into minute detail. It would entirely subvert the benefit otherwise afforded to the public interest if, in cases where information has been given to the authorities, it became necessary for the sentencing judge to inquire into the investigative and prosecuting procedures in order to ascertain the extent objectively to which that information was in fact effective.^[41]

53 In Su, this Court (Winneke P, Hayne JA and Southwell JA) expressed agreement with those statements of principle. Their Honours went on to say that they did not interpret the joint judgment:

as stating that the question of effectiveness of the information is irrelevant. We think it is relevant, for one thing, the degree of effectiveness might well throw light upon the questions whether and to what extent the informer has made full and frank disclosure.^[42]

54 In the present case, the ‘degree of effectiveness’ of the information provided by the applicant was unconnected with the extent of her disclosure. As already noted, the judge was satisfied that her evidence about Mifsud’s role in the killing of Nankervis was ‘full and frank’. In the circumstances, therefore, there was no basis for reducing the weight to be attached to the applicant’s cooperation merely because there was to be no prosecution of Mifsud. As his Honour made clear in the passage set out above, the Director’s decision not to pursue the matter could be seen to reflect the ‘many afflictions’ from which the applicant suffers.

55 In our opinion, the applicant’s provision of assistance called for a significant sentencing discount. This was particularly so given the judge’s acceptance that her undertaking to assist, and the provision of her statement, reflected contrition and a genuine desire to bring a person to justice.^[43]

56 It is precisely because those who assist authorities expose themselves to the risk of reprisals that discounts for cooperation need to be significant. The encouragement of cooperation, described in Cartwright, requires nothing less. It was not contested that ‘there [was] some personal risk’ to the applicant, as a result of which she had already spent some time in protective custody.

Other mitigating factors

57 The manifest excess submission also drew attention to a number of other mitigating factors which the judge accepted. The first was the applicant’s plea of guilty, which his Honour described as ‘a very important mitigating factor’.^[44] His Honour noted that the applicant had offered to plead guilty to defensive homicide well before trial, and that her plea had avoided

what would have been a stressful trial and spared the witnesses the ordeal of reliving these events and being cross-examined about them.^[45]

58 The plea involved the applicant’s acceptance of legal responsibility for her actions, and a willingness to facilitate the course of justice, his Honour said.^[46] Furthermore:

the plea was entered despite the possibility that the defences of duress, (reasonable) self-defence and/or (reasonable) defence of another might have succeeded, in which case, as I have said, there would have been a complete acquittal. There might be thought to be a fine line between whether a belief is held and whether it is held on reasonable grounds. To be sure, as is commonly the case, this plea of guilty reflects a compromise by both parties. But, because she has foregone what, in my judgment, was at least some chance of an outright acquittal, [the applicant’s] plea of guilty is all the more worthy in mitigation.^[47]

59 As to remorse, his Honour accepted that the applicant was ‘genuinely sorry’ for her involvement in the killing of Nankervis and ‘the terrible grief it has caused his family’.^[48]

60 The next significant factor was the applicant’s youth. As his Honour noted, she was only 19, nearly 20, at the time of the offence. She was 22 at the time of sentencing. Both of the expert witnesses considered her to be immature for her age. His Honour considered, however, that ‘the extreme gravity of the attack and its disturbing nature’ meant that youth could not have the same prominence in sentencing as it might have had in a less serious case of defensive homicide.^[49]

61 His Honour said:

Despite the fact that [the applicant] believed her family would be killed unless she killed Mr Nankervis, I think that the extreme and disturbing violence employed by [the applicant] demand that denunciation and protection of the community are significant considerations in sentencing her, which, in turn, tends to leave less room than otherwise for the mitigating effect of her youth.^[50]

It follows from what we have said, about the mischaracterisation of the seriousness of the offending due to the excessive violence, that the mitigating effect of the applicant’s youth should not have been discounted in this way.

62 Next, his Honour considered the delay of nearly three years between the killing of Nankervis and the sentencing. His Honour noted that the delay was the result of several factors, none of which was attributable to the applicant. His Honour said:

Delay is relevant in mitigation in two ways. First, I accept that there must have been a considerable strain on [the applicant] in awaiting her fate. Secondly, however, she has used the time well, by doing courses in prison and, ultimately, by pleading guilty to a serious crime, both of which auger well for her prospects of rehabilitation, to which I now turn.^[51]

63 Finally, his Honour concluded that the applicant had ‘reasonable to good’ prospects of rehabilitation.^[52]

64 What also needed to be brought to account, in our view, was the applicant’s impaired mental functioning as described in the expert reports. We refer here not to the effects of the family violence, but to what Dr Gee described as the applicant’s ‘major depressive disorder’ and her ‘reduced cognitive capacities’.^[53] On ordinary principles, those factors were directly relevant to the assessment of the applicant’s moral culpability and of her suitability as a vehicle for general deterrence.

Conclusion

65 For the reasons we have given, the sentence imposed reflected a mischaracterisation of the gravity of the offending and of the applicant’s culpability. Furthermore, insufficient weight was given to the important mitigating factors of cooperation with authority and youth.

66 In our opinion, both grounds of appeal succeed. The sentence imposed should be set aside, and we would resentence the applicant to six and a half years’ imprisonment, with a non-parole period of five years.

BEACH JA:

67 On 20 June 2014, the applicant, who was aged 19, attacked Mr Jack Nankervis with a mattock and a knife. She inflicted 70 separate injuries on Mr Nankervis, including 17 knife wounds. Mr Nankervis’s face was caved in to the point that it was unrecognisable. The applicant intended to kill Mr Nankervis, and she did.^[54]

68 The applicant was originally charged with murder. On the second morning of her trial, however, the applicant pleaded guilty to defensive homicide. The plea was made by agreement with the Crown. The agreed basis for the plea was that, at the time she killed Mr Nankervis, the applicant believed it was necessary to kill him in order to defend her immediate family from being killed, in circumstances where she did not have reasonable grounds for that belief. The basis of the applicant’s belief was a threat made to her by her boyfriend, one Phillip Mifsud, that he would kill her family if she did not kill Mr Nankervis.

69 Following a contested plea hearing, on 20 April 2017, the judge sentenced the applicant to a term of imprisonment of 10 years with a non-parole period of seven

years. The maximum term of imprisonment for the crime of defensive homicide was 20 years.^[55]

70 The applicant now seeks leave to appeal against the sentence imposed upon her. Her proposed grounds of appeal are:

1. The sentencing judge erred in concluding that the offending fell towards the upper end of the range of seriousness.
2. The sentence of imprisonment and the non-parole period imposed were manifestly excessive having regard to:

(a) the applicant’s reduced moral culpability;

(b) the applicant’s age and level of maturity;

(c) the applicant’s remorse and prospects of rehabilitation;

(d) the applicant’s limited antecedents;

(e) the delay between offending and sentence;

(f) the applicant’s plea of guilty and assistance to the authorities;

(g) the applicant serving her sentence more onerously due to her status as a police informer; and

(h) current sentencing practice.

Circumstances of the offending

71 On Friday 20 June 2014 at approximately 3:30 am, Mr Nankervis broke into the home of Mr Noel Patton by forcing open the back door. Mr Patton is the father of Mr Nankervis’ former partner, with whom he had one child. There was an altercation between Mr Nankervis and Mr Patton in Mr Patton’s bedroom before Mr Nankervis apologised and left. Police attended the property shortly after Mr Nankervis left.

72 Mr Nankervis was driven to and from the Patton property by Mifsud. After breaking into Mr Patton’s house, Mr Nankervis was taken by Mifsud to the applicant’s unit so he could ‘lie low’. Mr Nankervis and the applicant had not previously met. Mifsud and the applicant had been in a relationship for some months and Mifsud regularly spent time at the applicant’s unit. During their relationship, Mifsud had subjected the applicant to serious violence and humiliation. She had also witnessed his violence towards others.^[56]

73 Mr Nankervis, Mifsud and the applicant spent the day together in the unit, consuming variously alcohol, methylamphetamine, cannabis, gamma-hydroxy-butyrate (‘GHB’) and Valium. Mifsud left the property on several occasions to sell drugs. At some time between 4:50 pm and 5:40 pm, on one of the occasions Mifsud was away from the property, Mr Nankervis was killed by the applicant.

74 Throughout the day, Mifsud had attempted to kill Mr Nankervis in multiple ways. Mifsud had tried to force Mr Nankervis’ hand into an electric toaster, slipped him GHB against his will, and tried to shove a coin down his throat. The motive for this is unclear.

75 Mifsud then threatened the applicant and ordered her to kill Mr Nankervis. Mifsud told her that if she did not kill Mr Nankervis, he would kill her family. The applicant took this threat seriously because she believed Mifsud to be dangerous. Mifsud went to his car and brought back a mattock. He told the applicant to kill Mr Nankervis with the mattock and tell people that Mr Nankervis had tried to rape her. He then left the flat.

76 When Mifsud returned to the unit and discovered Mr Nankervis’ body, he exited the property and vomited in the gutter. He then drove the applicant to his brother’s house and then her mother’s house. At 9:50 pm, he attended Morwell Police Station and reported Mr Nankervis’ death. The police attended the property and found Mr Nankervis’ body. At 12.40 am, the applicant was found walking from her mother’s house to her sister’s house. She was arrested. She made full admissions that she had killed Mr Nankervis, albeit with varying explanations as to why.

Applicant’s background

77 The applicant was 22 at the time of sentencing and, as we have already noted, 19 at the time of her offending. Her parents separated when she was very young. When young, she witnessed domestic violence between her father and her stepmother. She also suffered sexual abuse as a child at the hands of three different perpetrators.

78 The applicant attended primary school at Yallourn North. She commenced Year 7 at Deer Park Secondary College, before relocating to Morwell with her mother and her mother’s partner. She attended Kurnai College in Year 8 and then left at the start of Year 9, as she was bullied for being overweight. She found it very difficult to read and write at school, and also had speech difficulties.

79 The applicant left home at 16. She did a hairdressing course. Later, she worked in Cobden, as a dairy hand for 18 months. At some point during her time in Cobden, the applicant became so depressed that she tried to hang herself.

80 When she was a teenager, the applicant was involved in a schoolyard fight with another girl. This resulted in her being charged with assault. Ultimately, she received a bond, without conviction.

81 The applicant began drinking alcohol in her mid-teens and smoking marijuana regularly from the age of 17. When she met Mifsud, he introduced her to amphetamines and LSD.

82 The applicant met Mifsud on Facebook and became involved with him about 12 months prior to her offending. Mifsud had another girlfriend with whom he had two children. As the judge put it, ‘It is apparent that he used [the applicant] for various purposes’.^[57] He used her home to deal drugs. He experimented on her with combinations of drugs and, again as the judge put it, he ‘engaged in a litany of other violent and humiliating behaviour towards [her].’^[58] That behaviour included using a cigarette to burn her back and a lighter to burn her arm; injecting her with drugs against her will; requiring her to sleep outside on occasions; forcing her to watch ‘snuff’ films; punching and choking her; forcing her to swallow a drink containing nutmeg, which made her ill; forcing lit firecrackers down her top; hitting her across the head with a bottle; dragging her by the hair and then cutting off her ponytail; throwing a can of cat food at her head; forcing her to swallow bullets; and ripping off her dress in front of others, exposing her underwear for all to see.^[59]

Plea and sentencing reasons

83 A number of facts were still in dispute following the applicant’s plea of guilty to defensive homicide. The judge was, therefore, required to make findings concerning various background matters, and findings about what actually occurred on the day of the applicant’s offending.

84 In the course of the plea hearing, the applicant gave evidence and was cross-examined. The judge largely accepted the applicant’s evidence about the serious abuse and humiliation perpetrated on her by Mifsud. The judge, however, rejected the applicant’s evidence that she thought she only hit Mr Nankervis ‘five or so times’.^[60] The judge said he was satisfied, beyond reasonable doubt, that the applicant struck Mr Nankervis in the order of 70 times with two weapons; and that at least 17 of the resulting wounds were inflicted by the use of the knife, and at least a large part of the balance were caused by the mattock.^[61]

85 On the plea hearing, the prosecutor submitted that the applicant’s offending was a ‘bad’ example of defensive homicide, and one that fell towards the upper end of the range of seriousness. Counsel for the applicant submitted that it fell towards the lower end of that range. The judge accepted the prosecutor’s submission, saying that, in his view, the applicant’s offending was a ‘very grave example of defensive homicide’.^[62] The judge gave six reasons for his conclusion:

First, Ms Sawyer-Thompson’s behaviour has taken the life of a young man in the most horrendous of circumstances. Her behaviour has deprived a mother of her son, a sister of her brother, a wife of her husband and a son of his father. Mr Nankervis’s family will never be the same.

Secondly, the threat did not emanate from Mr Nankervis. Instead, he was completely innocent of any threat towards Ms Sawyer-Thompson or her family.

Thirdly, while the threat came from Mr Mifsud, he was absent at the time of the killing. Thus, while the essence of the offence is that, even in his absence, Ms Sawyer-Thompson believed her conduct to be necessary to defend her family, that she had the opportunity to go to police or a neighbour or simply run away makes her actions both difficult to fathom and all the more serious.

Fourthly, the attack was ghastly and disturbing in its execution. Mr Nankervis was hacked and stabbed repeatedly and well beyond the point that was necessary to kill him.

Fifthly, a related point is that his facial injuries were so grave that he was rendered unrecognizable. This must be a terrible thought for Mr Nankervis’s family.

Sixthly, Mr Nankervis was in a drug stupor and completely defenceless at the time, which Ms Sawyer-Thompson knew.^[63]

86 Next, the judge said that he would have regarded the applicant’s offending as ‘being close to the worst, if not within the worst, category of defensive homicide’,^[64] but for the following factors, which reduced the applicant’s culpability and degree of responsibility ‘somewhat’:^[65]

First, the killing was not Ms Sawyer-Thompson’s idea. Rather, she was driven to it because of the threat by Mr Mifsud.

Secondly, Ms Sawyer-Thompson was vulnerable to the threats of Mr Mifsud because he had subjected her to serious violence and humiliation in the past and, in her mind, had a fearsome reputation for violence towards others.

Thirdly, she was suffering the effects of PTSD, depression and anxiety, is of low intelligence, was addled by drugs, and was rather submissive to and dependent upon Mr Mifsud, all of which are likely to have impaired her judgment at the relevant time.^[66]

The judge observed that the third of these matters was supported by the psychological evidence — including testing that showed that the applicant had a full-scale IQ of only 70.^[67]

87 The judge concluded that when one balanced all of the matters to which he had made reference, this was still objectively to be regarded as a very grave example of defensive homicide, falling towards the upper end of the range of seriousness.^[68]

88 After describing the applicant’s background,^[69] the judge turned to other mitigatory factors. The judge identified these as:

• the applicant’s admissions to police;
• the applicant’s plea of guilty;
• the applicant’s assistance to, and offer and undertaking to assist, the authorities;
• the applicant’s remorse;
• the applicant’s limited criminal history;
• the applicant’s youth;
• the long delay between the offending and sentence; and
• the applicant’s ‘reasonable to good’ prospects of rehabilitation.

89 In respect of the applicant’s admissions to police, the judge observed that the applicant ‘never shirked from admitting that she was the one who killed Mr Nankervis’.^[70]

90 So far as her plea of guilty was concerned, the judge said that the plea was a very important mitigating factor in several ways.^[71] The judge accepted that the plea avoided what would have been a stressful trial, spared the witnesses the ordeal of reliving relevant events, involved an acceptance by the applicant of responsibility for her actions and a willingness to facilitate the course of justice, and was entered despite the possibility of an outright acquittal at trial.^[72]

91 In dealing with the applicant’s assistance to, and offer and undertaking to assist, the authorities, the judge observed that the applicant offered assistance ‘as long ago as the committal hearing’.^[73] The judge discussed the issue of assistance in some detail, ultimately concluding that there was ‘no practical value in [the applicant’s] offer, statement and undertaking’.^[74] The judge said, however, that he would give the issue moderate weight, accepting that the applicant’s assistance reflected contrition, and that it was likely that the applicant would suffer at least some odium ‘from cowardly types who regard informers as fair game’.^[75]

92 On the issue of remorse, the judge said that he was satisfied that the applicant was ‘genuinely sorry for her involvement in the killing of Mr Nankervis and the terrible grief it has caused his family’.^[76] The judge said that he was satisfied that the applicant’s assistance and offers to assist had been motivated in part by remorse and of desire to do justice — but also in part by self-interest.^[77]

93 In respect of the applicant’s limited criminal history, the judge observed that it was ‘only a very limited criminal history’ — with two appearances in the Children’s Court for shoplifting and the non-conviction disposition of the assault in the schoolyard to which we have already referred.

94 So far as the applicant’s youth was concerned, the judge recorded that she was only 19, nearly 20, at the time of the offence. The judge also recorded the opinions of the psychologists, Dr Gee and Mr Cummins, that the applicant was immature for her age. The judge, however, observed that the applicant’s youth could not be given the same prominence as it might have been in a less serious case.^[78]

95 The judge dealt with delay saying that there had been a long delay between the offending and sentence and that the causes for the delay could not be said to be of the applicant’s making. The judge said that delay was relevant in mitigation in two ways. First, there had been a considerable strain on the applicant ‘in awaiting her fate’. Secondly, the judge accepted that the applicant had used the time well, by doing courses in prison and, ultimately, by pleading guilty.^[79]

96 As to the applicant’s prospects of rehabilitation, the judge balanced, on the one hand, the applicant’s plea of guilty, her participation in courses while in custody and the support she enjoyed from her family with, on the other hand, the applicant’s ‘rather entrenched history of drug use and the particularly disturbing nature of her crime’. The judge concluded that, in balancing these matters, the applicant’s prospects of rehabilitation were ‘reasonable to good’.^[80]

97 Having dealt with the various matters in mitigation, the judge turned to the purposes of sentencing. The judge said that general deterrence, denunciation, just punishment and protection of the community were significant considerations in sentencing the applicant.^[81] As to specific deterrence, the judge said that the applicant’s plea of guilty, attempt to assist the authorities, remorse, limited prior criminal history and prospects of rehabilitation suggested that that sentencing purpose (specific deterrence) should attract less weight than otherwise.^[82]

98 In discussing rehabilitation, protection of the community and parsimony,^[83] the judge accepted that rehabilitation was an important sentencing purpose in the applicant’s case — particularly given her plea of guilty, attempt to assist the authorities, remorse, limited criminal history, youth and prospects of rehabilitation.^[84]

99 Finally, the judge turned to current sentencing practices. The judge referred to sentencing statistics being of ‘limited utility’ but ‘giving some guidance’. Having considered the authorities referred to him and ‘all of the other cases of defensive homicide that [the judge] was able to locate’, the judge said that none of the cases were ‘quite like this one’.

The parties’ submissions

100 The applicant submitted that the sentence imposed by the judge was manifestly excessive having regard to the circumstances of the applicant’s offending and all of the mitigatory factors that were referred to by the judge in his reasons for sentence. The cause for the manifestly excessive sentence imposed by the judge was submitted to be the judge’s erroneous characterisation of the applicant’s offending as ‘a very grave example of defensive homicide’ that ‘[fell] towards the upper end of the range of seriousness’.^[85]

101 In support of those submissions, the applicant advanced two principal reasons why the judge erred in his characterisation of the seriousness of the applicant’s offending. First, it was submitted that the judge was wrong in relying upon the objectively ‘ghastly and disturbing’ nature of the applicant’s attack as a matter going to the applicant’s moral culpability. It was submitted that, on the whole of the evidence, there was no basis for concluding that the applicant was aware that her attack was more than was reasonably necessary to avert the threat made by Mifsud — namely, that he would kill her family unless she killed Mr Nankervis. The applicant was a young naïve woman with a low IQ. There was no basis upon which it could be contended that she knew how many blows it might take to kill Mr Nankervis. Moreover, there was no basis upon which it could be concluded that she struck more blows than she knew were required to kill Mr Nankervis.

102 Secondly, the applicant contended that the judge erred in concluding that the fact that Mr Nankervis was a wholly innocent victim made the applicant’s offending more serious. It was submitted that the innocence of Mr Nankervis did not increase the applicant’s moral culpability, or make her offending more serious. In support of this contention, the applicant submitted that there were many cases of defensive homicide where the victim might objectively be regarded as innocent – the accused’s perception of a threat from the deceased being unreasonable or unjustified. It was submitted that the issue that determined the accused’s moral culpability, and thus the gravity of the offending, in a defensive homicide case, was the degree of unreasonableness in the accused’s belief that her conduct was necessary in self-defence (or defence of another) rather than whether the victim was ‘innocent’ or otherwise.^[86]

103 Finally, the applicant submitted that, having regard to the applicant’s youth, inexperience, low IQ and genuine fear of Mifsud brought about by his abusive treatment of her, general deterrence should not have been a matter of primacy in the sentencing synthesis. General deterrence should have been moderated in favour of rehabilitation and considerations associated with the applicant’s youth and intellectual functioning.

104 The respondent, however, submitted that the judge was correct when he characterised the applicant’s offending as ‘towards the upper end of the range of seriousness’.^[87] Moreover, the sentence imposed by the judge could not be said to be wholly outside the permissible range of sentencing options open to him.

105 While the judge had not made a finding that the applicant knew that her actions were excessive to achieve the purpose of ameliorating the threat posed by Mifsud, the judge was correct to regard the excessive number of blows struck by the applicant as making her offending objectively more serious than it might otherwise have been.

106 The respondent submitted that the judge was also correct when he regarded the innocence of Mr Nankervis as a matter that made the applicant’s offending objectively more serious. It was submitted that it was one thing for an accused to kill a person who posed a threat, or who was perceived by the accused to pose a threat, to the accused, but an altogether different thing to kill a person who was known by the accused to be wholly innocent and posing no threat to the accused or anyone.

107 In the circumstances of the present case, it was open to the judge to conclude that the applicant’s offending fell towards the upper end of the range of seriousness. That conclusion being open, it could not be said that the sentence imposed by the judge was manifestly excessive.

Defensive homicide

108 The offence of defensive homicide was created, on 23 November 2005, by the insertion of a new sub-division (1AA) in Division 1 of Part I of the Crimes Act 1958. The new sub-division was inserted by s 6 of the Crimes (Homicide) Act 2005 (the ‘2005 Act’). As to self-defence and defensive homicide, the 2005 Act inserted sections 9AC and 9AD as follows:

Section 9AC – Murder – ‘self-defence’

A person is not guilty of murder if he or she carries out the conduct that would otherwise constitute murder while believing the conduct to be necessary to defend himself or herself or another person from the infliction of death or really serious injury.

Section 9AD – Defensive homicide

A person who, by his or her conduct, kills another person in circumstances that, but for section 9AC, would constitute murder, is guilty of an indictable offence (defensive homicide) and liable to level 3 imprisonment (20 years maximum) if he or she did not have reasonable grounds for the belief referred to in that section.

109 At the same time as sections 9AC and 9AD were inserted into the Crimes Act 1958, s 9AG, dealing with duress, was inserted. Section 9AG provided:

9AG Duress

(1) A person is not guilty of a relevant offence in respect of conduct carried out by him or her under duress.

(2) A person carries out conduct under duress if and only if the person reasonably believes that—

(a) subject to sub-section (3), a threat has been made that will be carried out unless an offence is committed; and

(b) carrying out the conduct is the only reasonable way that the threatened harm can be avoided; and

(c) the conduct is a reasonable response to the threat.

(3) However, a person does not carry out conduct under duress if the threat is made by or on behalf of a person with whom the person is voluntarily associating for the purpose of carrying out violent conduct.

(4) This section only applies in the case of murder if the threat is to inflict death or really serious injury.

110 The 2005 Act implemented legislative recommendations made by the Victorian Law Reform Commission in its report Defences to Homicide: Final Report (October 2004) (‘the VLRC Report’). In the Second Reading Speech for the Bill that became the 2005 Act, the Attorney-General (the Hon Mr Hulls) said that the Bill would ‘implement key legislative recommendations made by the Commission’. Relevantly, the VLRC Report recommended that excessive self-defence be reinstated as a partial defence to murder^[88] and that duress be recognised as a complete defence to murder.^[89] In recommending that excessive self-defence be reinstated as a partial defence, the VLRC Report stated:

In the Commission’s view, people who kill another person, genuinely believing their life is in danger, but who are unable to demonstrate the objective reasonableness of their actions, are deserving of a partial defence. In this case, the person intends to do something which is lawful, and is therefore in a very different position from someone who intends to kill unlawfully and intentionally due to provocation or a mental condition. This person’s lower level of culpability, we believe, should be recognised in the crime for which he or she is convicted.

111 In his Second Reading Speech, under the heading ‘Self-defence’, the Attorney-General said:

Under the earlier common law rule of excessive self-defence,^[90] and the provisions in other jurisdictions, a person who has a genuine belief that his or her conduct is necessary in self-defence, but who is not considered to have acted reasonably is guilty of the lesser offence of manslaughter. However, there could be confusion about the basis of the jury’s verdict, as there were several potentially inconsistent ways that a jury could reach a manslaughter verdict. The new offence of defensive homicide will clearly indicate the basis of the jury’s verdict to the sentencing judge. This will enable the sentencing judge to impose a sentence that accurately reflects the crime that the person has committed.

The offence of ‘defensive homicide’ will operate as a substantive offence in its own right as well as a lesser alternative offence in cases where a person is on trial for murder.^[91]

112 Under the heading ‘Duress and sudden or extraordinary emergency’, the Attorney-General said:

Although a person will not be guilty of most crimes if he or she acts under duress, the common law rule is that duress does not excuse a person from liability for the offence of murder. The common law continues to apply in most Australian jurisdictions.

...

Under this Bill, a person will not be guilty of murder if he or she acts under duress. A person is acting under duress if the person reasonably believes that:

a threat of either death or really serious injury will be carried out unless they kill another person; and

there is no other reasonable way to avoid death or really serious injury.

This provision recognises that a person might be placed in the position of ‘kill or be killed’. Where a person has no realistic choice, it is not appropriate to hold such a person responsible for the offence of murder.^[92]

113 Section 9AD, like all statutory provisions, fell to be considered by reference to its text, context and purpose. While the text of s 9AD may literally have encompassed the fact situation of the present case,^[93] when considered by reference to its context and purpose — and noting the enactment of s 9AG — one might take leave to doubt whether s 9AD had any real application in the present case. The concept of duress has generally been regarded as discrete from the concepts of self-defence and defence of another. While both concepts (duress on the one hand, and self-defence and defence of another on the other hand) involve an accused responding to a threat or perceived threat, in a case of duress the threat usually comes from a third party, whereas in the self-defence/defence of another cases, the threat usually comes from the deceased or someone acting jointly, or in concert, with the deceased. So much explains why the common law (before the passing of the 2005 Act) did not recognise duress as a defence to murder.

114 Additionally, it is of some note that under s 9AG, if the accused’s relevant belief was not reasonable then no defence of duress could succeed. It is not immediately apparent why the failure of a duress defence, brought about by the lack of reasonableness in a belief essential to duress, might then lead to the question of whether such an accused was guilty of defensive homicide – even if the language of s 9AD was, on a literal interpretation, wide enough to encompass this possibility. On this wider^[94] construction of s 9AD, however, there would be a very limited (if any) operation for s 9AG. Indeed, as was conceded by counsel in argument, on the literal interpretation of s 9AD contended for by the parties before the sentencing judge, the concept of duress would be wholly subsumed within the concepts of self-defence and defence of another contained in s 9AC.

115 While the Crown was prepared to accept a plea to defensive homicide, in my view, a contextual and purposive application of ss 9AB to 9AJ, as they were at the time of the applicant’s offending, would likely have seen the issue in the case as being one of duress and whether s 9AG (or perhaps, but less likely, s 9AI) applied. That said, no party before this Court sought to impugn the plea deal and I see no basis now upon which the plea deal might be set aside.

Ground 1: did the judge err in concluding that the offending fell towards the upper end of the range of seriousness?

116 The judge gave six reasons for his conclusion that the defensive homicide committed by the applicant fell towards the upper end of the range of seriousness and was ‘a very grave example of defensive homicide’.^[95] In his first, fourth and fifth reasons, the judge referred to Mr Nankervis’s life being taken ‘in the most horrendous of circumstances’; the attack being ‘ghastly and disturbing in its execution’, and ‘well beyond the point that was necessary to kill’; and that Mr Nankervis’s facial injuries ‘were so grave that he was rendered unrecognisable’ and that this must be ‘a terrible thought for Mr Nankervis’s family’. Each of these matters undoubtedly goes to the objective seriousness of the applicant’s criminal conduct. In Creamer, Weinberg JA (with whom Bongiorno JA and T Forrest AJA agreed), when discussing the gravity of the defensive homicide in that case said:

In addition, it must not be forgotten that the appellant acted upon that belief [a belief that was by definition unreasonable] by viciously bludgeoning the deceased to the head and body, and stabbing him to the upper abdomen. This was grossly disproportionate, as well as being objectively unnecessary in order to defend herself.^[96]

In discussing of the objective seriousness of the defensive homicide in Creamer, the Court did not make any finding that the appellant knew that her actions were grossly disproportionate or more than was reasonably necessary in order to defend herself.

117 Similarly, in the present case the judge did not make any finding that the applicant knew that what she did was excessive or more than was necessary to kill Mr Nankervis. The judge confined himself to considering the objective seriousness of the result of the applicant’s actions. Having regard to the evidence tendered on the plea, it would have been difficult for the judge to conclude beyond reasonable doubt that the applicant knew that her actions were excessive and beyond what was necessary to kill Mr Nankervis.^[97] I see no error in the judge’s approach.

118 The second complaint about the judge’s reasons for concluding that the applicant’s defensive homicide was one that fell towards the upper end of the range of seriousness concerned the judge’s conclusion that Mr Nankervis was an innocent victim. In his second, third and sixth reasons, the judge referred to the threat not emanating from Mr Nankervis; the threat coming from Mifsud, who was absent at the time of the killing; and Mr Nankervis being in a drug stupor, and being completely defenceless — which the applicant knew.

119 In Creamer, again discussing the gravity of defensive homicide, Weinberg JA said:

The gravity of this offence must depend, to a considerable degree, upon the strength of the circumstances said to give rise to the belief that self-defence was warranted. Of course, in any case where the verdict is one of defensive homicide, the offender’s belief must have been unreasonable. Otherwise the jury would have acquitted entirely, on the basis of self-defence.

However, there are degrees by which a belief may be said to have been unreasonable. In some cases, the line is just barely crossed, in others the belief is wholly unjustifiable, almost to the point of being fanciful. The present case strikes me as falling within the latter category. The appellant had to be sentenced on the basis that she believed she was threatened with death or really serious injury. However, given the unchallenged findings by the sentencing judge, rejecting much of the appellant’s account of what took place, she clearly had no basis whatever for that belief.^[98]

120 In the R v Copeland,^[99] Maxwell P, in sentencing an offender for defensive homicide that had involved a single stab wound, said:

An analysis of the sentencing decisions provided reveals that this range of possibilities has been dealt with by use of the notion of proportionality between the (perceived) threat or violence and the offender's response to it. As Kaye J said in R v Baxter, the degree of culpability of the offence there under consideration was

to be gauged by the disproportionate extent to which [the offender] overreacted to the danger, which [he] believed there was of [the victim] killing [him] or causing [him] really serious injury.

In a number of the first instance decisions which I have read, the sentencing court has viewed the offence as being more serious because the offender’s response was ‘grossly disproportionate’ to the actual or perceived threat. Naturally, it is in this area of (dis)proportionality that the severity of the attack on the victim is relevant. In some of the cases which have attracted head sentences of 10 or 11 years (that being, as will appear, the range put forward by the Crown for the head sentence in this case), the striking feature is sustained brutality — repeated stabbing or bashing of the victim — when the circumstances objectively provided no justification for such a response.^[100]

121 In my view, the fact that the victim is a completely innocent victim is capable of bearing upon the issue of the objective seriousness of the offending. It is one thing for an offender to kill someone who is then mounting a serious attack against her or who has, over time, subjected the offender to extreme violence and humiliation. It is, I think, another to kill, based on a genuinely held but unreasonable fear, a totally innocent and helpless victim from whom the offender perceives no threat. The difference between the two situations is capable of being analysed both by reference to the reasonableness of the offender’s conduct in committing the intentional killing, and by reference to the consequences of the offender’s acts so far as the victim’s relatives and friends may be concerned.

122 First, one might well find an unreasonable belief in a need to kill an attacker ‘less unreasonable’ than an unreasonable belief in a need to kill a person who, to the accused’s perception, poses absolutely no threat to the accused and is wholly innocent.

123 Secondly, a relative or friend of a victim from whom the offender perceived (albeit unreasonably) some threat might, at least, be capable of more understanding than the same person whose loved one was killed in circumstances like the present.

124 In my view, it is not reasonably arguable that the judge erred in concluding that the applicant’s offending fell towards the upper end of the range of seriousness. As I have noted, the judge gave six reasons for his conclusion.^[101] Those reasons are, with respect, compelling.

125 The matters of greatest relevance that demonstrate the seriousness of the applicant’s offending, and the appropriateness of the judge’s description of the offending as a ‘very grave example of defensive homicide’ are the fact that the victim was completely innocent and defenceless in the face of the applicant’s extraordinary attack on him, and the fact that the attack was so brutal and excessive — going well beyond what was necessary merely to kill Mr Nankervis.

126 If s 9AD properly had application to the applicant’s offending, then this was an exceptional case — involving as it did a completely innocent victim, rather than one who had launched a serious (or indeed any) attack on the accused or another person. The difference between killing an innocent victim because of an unreasonable fear about what a third person might do, and an act of self-defence (or defence of another) that was excessive or not founded by a relevant reasonable belief is manifest. So much was made clear in this case by the ‘extremely powerful and moving’ victim impact statements that were read to the judge.^[102]

127 This was the brutal killing of an innocent man. It was unreasonable, and the acts of the applicant, that were committed with murderous intent, objectively went far beyond what was necessary to kill Mr Nankervis. The judge’s characterisation of the offending as being at the upper end of the range of seriousness, for defensive homicide, was entirely correct.

Ground 2: was the sentence manifestly excessive?

128 The applicant’s complaint of manifest excess is without merit. In careful and very detailed reasons, the judge dealt with each of the mitigatory factors upon which the applicant relied on the plea, and now relies in this Court.

129 The sentencing task for the judge was a very difficult one. First, the sentencing task was made more difficult by the Crown’s acceptance that the facts of the case fell within s 9AD — when they more properly fell to be determined by reference to the concept of duress. Secondly, while the applicant’s crime was, objectively, an appallingly serious one, there were the powerful mitigatory factors, to which his Honour gave so much attention in the course of his reasons, that had to be taken into account.

130 As has been said before, in order to establish that a sentence is manifestly excessive, an offender must demonstrate that the sentence was ‘wholly outside the range of sentencing options’ available to the judge.^[103] Manifest excess is a stringent ground, that is difficult to make good. In essence, in order to succeed on this ground, the applicant must demonstrate that the sentence imposed on her was so excessive as to bespeak error in the exercise of the sentencing discretion, notwithstanding that no specific error can be identified in the reasons for sentence given by the judge.^[104]

131 Notwithstanding the brutality of the applicant’s crime, there were powerful mitigating factors in this case. The judge dealt with these comprehensively, and no complaint was made by the applicant about his Honour’s findings in respect of them. The applicant, however, submitted that, while the judge concluded that general deterrence was a significant consideration, that consideration should have been moderated because of the applicant’s ‘unique situation’. The respondent accepted that a ‘slight moderation’ of general deterrence was appropriate.

132 No submission was made that general deterrence had no part to play in the sentencing synthesis. In the end, it is a question of weight. The sentence imposed was required to be an appropriate sentence to uphold the sanctity of human life. As was said in a different context, by Osborn J (as his Honour then was):

There must never be any doubt about the commitment of the community, and the Court through which it speaks, to defend the importance of human life with the imposition of substantial penalties where an offender kills another member of the community with murderous intent and without lawful justification or excuse.^[105]

While his Honour was there talking of appropriate sentences of murder, it is to be remembered that the applicant killed Mr Nankervis with murderous intent — albeit that she possessed a belief (unreasonable) that reduced her crime from murder to defensive homicide.

133 While it might be accepted that the sentence imposed by the judge in this case was a stern sentence, that, of course, is a far cry from a conclusion that the sentence was manifestly excessive.^[106] There is no substance in the applicant’s complaint that the sentence imposed upon her was manifestly excessive.

Conclusion

134 I would refuse the application for leave to appeal against sentence.

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---

^[1] Crimes Act 1958 s 9AD (‘Crimes Act’), as in force at the time. The section was repealed in 2014; see Crimes Amendment (Abolition of Defensive Homicide) Act 2014.

^[2] A question of the statutory interpretation of the defence of duress was referred to this Court during the proceeding in the court below: DPP v Parker (a pseudonym) [2016] VSCA 101 (‘Parker’).

^[3] R v Sawyer-Thompson [2016] VSC 767 [162] (‘Reasons’).

^[4] Ibid [163].

^[5] Ibid [164].

^[6] Ibid [165].

^[7] See, eg, Black v The Queen [2012] VSCA 75 [18], [21], [28], [33].

^[8] Reasons [108]–[9].

^[9] Ibid [145]–[146].

^[10] Ibid [192]–[193].

^[11] Ibid [139].

^[12] Ibid [169].

^[13] Ibid [211].

^[14] Ibid [175]–[176] (emphasis added).

^[15] Reasons [162].

^[16] Ibid [179].

^[17] Formerly s 9AH. See now ss 322J and 322P.

^[18] Parker [2016] VSCA 101 [3].

^[19] Ibid [8].

^[20] Ibid [39].

^[21] Ibid [40].

^[22] [2014] VSC 304 (‘Williams’).

^[23] Ibid [19].

^[24] Ibid [26].

^[25] Ibid [28].

^[26] Williams [2014] VSC 304 [29]–[37] (emphasis added) (citations omitted).

^[27] [2014] VSC 351 (‘Bracken’).

^[28] Ibid [8].

^[29] Ibid [20].

^[30] Reasons [4].

^[31] See, eg, R v Svetina [2011] VSCA 392 [30]; R v Ghazlan [2011] VSC 178 [3]; R v Vazquez [2012] VSC 593 [12]; R v Baxter [2009] VSC 178 [10]; R v Talatonu [2012] VSC 270 [16]; Creamer v The Queen [2012] VSCA 182; (2012) 221 A Crim R 284, 294 [51] (‘Creamer’).

^[32] See [27] above.

33. ^[33] Creamer [2012] VSCA 182; (2012) 221 A Crim R 284, 293 [49]–[50]; see also McEwan v The Queen [2013] VSCA 329 [114]–[115].

^[34] Reasons [164].

^[35] Reasons [179].

^[36] Reasons [204].

^[37] See [13] above.

^[38] Reasons [212]–[215] (emphasis added).

^[39] (1989) 17 NSWLR 251 (‘Cartwright’).

^[40] R v Su [1997] 1 VR 1, 78-9 (‘Su’); Saner v The Queen [2014] VSCA 134 [78].

^[41] Cartwright (1989) 17 NSWLR 251, 252-3 (emphasis added).

^[42] Su [1997] 1 VR 1, 79.

^[43] Reasons [212].

^[44] Ibid [197].

^[45] Ibid [199].

^[46] Ibid [200].

^[47] Ibid [201].

^[48] Ibid [219].

^[49] Ibid [229]-[230].

^[50] Ibid [230].

^[51] Ibid [235].

^[52] Ibid [236].

^[53] See [14] above.

^[54] Reasons [4].

^[55] See s 9AD of the Crimes Act 1958 as in force between 23 November 2005 and 31 October 2014.

^[56] Reasons [3].

^[57] Ibid [192].

^[58] Ibid [193].

^[59] Ibid [109], [145].

^[60] Ibid [148].

^[61] Ibid [149].

^[62] Ibid [162].

^[63] Ibid [162]–[167].

^[64] Ibid [168].

^[65] Ibid.

^[66] Ibid [168]–[170].

^[67] Ibid [171]–[178].

^[68] Ibid [179].

^[69] Ibid [181]–[193].

^[70] Ibid [196].

^[71] Ibid [197].

^[72] Ibid [198]–[201].

^[73] Ibid [210].

^[74] Ibid [215].

^[75] Ibid [212]–[215].

^[76] Ibid [219].

^[77] Ibid [224].

^[78] Ibid [228]–[231].

^[79] Ibid [232]–[235].

^[80] Ibid [236]–[241].

^[81] Ibid [244].

^[82] Ibid [245].

^[83] Ibid [246]–[248].

^[84] Ibid [246].

^[85] Ibid [161].

^[86] See Creamer v The Queen [2012] VSCA 182; (2012) 221 A Crim R 284 293, [49]-[50] (‘Creamer’).

^[87] Reasons [161].

^[88] Excessive self-defence was a partial defence to murder until the High Court’s decision in Zecevic v Director of Public Prosecutions (Vic) [1987] HCA 26; (1987) 162 CLR 645 (‘Zecevic’).

^[89] At common law, duress was not a defence to murder.

^[90] Before the High Court’s decision in Zecevic.

^[91] Victoria, Parliamentary Debates, Legislative Assembly, 6 October 2005, 1351.

^[92] Ibid.

^[93] Reasons [20].

^[94] Or perhaps ‘not so limited’ construction accepted by the judge at Reasons [20].

^[95] See [85] above.

^[96] Creamer [2012] VSCA 182; (2012) 221 A Crim R 284, 294 [51].

^[97] As such a conclusion would be adverse to the applicant, it could not be reached unless proved beyond reasonable doubt: See R v Storey [1998] 1 VR 359, 369; quoted and approved in R v Olbrich [1999] HCA 54; (1999) 199 CLR 270, 281 [27].

^[98] Creamer [2012] VSCA 182; (2012) 221 A Crim R 284, 293 [49]–[50].

^[99] [2014] VSC 39 (‘Copeland’).

^[100] Ibid [53]–[54] (citations omitted).

^[101] See [85] above.

^[102] Reasons [155]–[158].

^[103] See, eg, Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, 384 [89].

^[104] Hayes v The Queen [2017] VSCA 285 [47] (Kaye JA and T Forrest AJA).

^[105] R v Gemmill [2004] VSC 30 [57].

^[106] Creamer [2012] VSCA 182; (2012) 221 A Crim R 284, 293 [45].