ABANDONED EX-WIFE ATTACKS EX-HUSBAND AND HIS NEW PARTNER

Wendy Hill v The Queen

[2020] VSCA 22

This is an appeal of the decision of the court finding ex-wife guilty of aggravated burglary and sentencing her to 6 years and 3 months imprisonment. Ex-wife broke into the house of ex-husband and violently attacked the ex-husband and his new partner. Ex-wife claims that her conduct was driven by a long history of family violence inflicted by her ex-husband, and that the sentence is manifestly excessive.

Facts: 

• Ex-wife is 54. She married Mr. Hill in 1990. They have a daughter AD.
• Couple separated 7 months before the offending occurred, when Mr. Hill formed a relationship with S.
• Ex-wife would occasionally threaten to kill Mr. Hill and his partner, to her daughter AD, but AD did not take these threats seriously.
• On 19 October 2017, an Apprehended Domestic Violence Order was made against the ex-wife to protect her daughter AD. This was after ex-wife threw an aerosol can and a lamp at AD, which struck her head and caused her to bleed.
• At 6:00 pm ex-wife called Mr. Hill’s neighbor threatening to kill him, Mr. Hill and S.
• At 8:30 pm ex-wife armed with a pipe and a knife smashed a window to gain entry to a house occupied Mr. Hill and S. She had consumed a number of Valium tablets on the way over.
• Ex-wife attacked S first and then Mr. Hill, stabbing them both.
• The police arrived and an ambulance took S and Mr. Hill to the hospital. They were discharged on 21 October 2017. Their injuries did not require surgical treatment.
• Ex-wife pleaded guilty to four charges: threat to kill, aggravated burglary, causing injury intentionally to Mr. Hill, and causing injury intentionally to S.
• Sentencing judge characterized the offending as an act of anger and punishment.
• Ex-wife disputed the judge’s characterization, and claims that her conduct was caused by a long history of violence inflicted on her by Mr. Hill during their marriage.

Issue: Was the offending brought about by a long history of domestic violence inflicted by the husband? Was the sentence manifestly excessive?

Law:

1. There is no room for an aggrieved party, however distressed by a relationship breakdown, to take violent action against the former spouse/partner. As the Court said in Director of Public Prosecutions v Meyers:

“Those who might, in a mood of anger or frustration or bitterness, contemplate this kind of violent entry into the home of a former spouse or partner must realise that, if they do so, they will almost certainly spend a long time in prison.”

2. Since Hogarth v The Queen, this Court has consistently emphasised the need for sentences for aggravated burglary offences of this kind to reflect both their objective seriousness and the need for general deterrence, appropriate regard being had to the very high maximum penalty of 25 years.

Analysis:

• The expert evidence of Dr. Cunningham, on which defence counsel expressly relied, confirmed that the ex-wife was devastated by the marriage breakdown. This emotional trauma was exacerbated by her dependent personality.
• There was no suggestion that the ex-wife had been driven to commit the acts complained of by things done to her during the marriage, whether true or not. On the contrary, all the evidence showed that what prompted this attack was her hurt and anger caused by the abandonment of her husband.
• This case exhibited a number of the aggravating features identified in Meyers: entry at night, with weapons, with intent to assault, and in the knowledge that the intended victims were inside. Primary judge described it a ‘very serious example’ of aggravated burglary.

Conclusion:

It was the anger— directed both at Mr. Hill and at S — which was the driving force behind the offending. The sentence imposed on the applicant for the aggravated burglary was within the range, considering a number of aggravating features present in the case.