Director of Public Prosecutions v Anderson (Sentence)
[2024] VSC 565
•12 September 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0082
| DPP | Crown |
| v | |
| Stuart Anderson | Accused |
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JUDGE: | Fox J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 April & 12 July 2024 |
DATE OF SENTENCE: | 12 September 2024 |
CASE MAY BE CITED AS: | DPP v Anderson (Sentence) |
MEDIUM NEUTRAL CITATION: | [2024] VSC 565 |
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CRIMINAL LAW — Murder — Convicted by jury — Continued denial of responsibility — Offender beat 77 year old victim to death in her own home with a weapon — Sentenced on basis that offender broke in intending to commit burglary and was disturbed by deceased — Post‑offence conduct including pretending to find the deceased’s body and lying to police — Delay — Significant period on remand — Standard sentence offence — Serious violent offender — Sentenced to 27 years’ imprisonment with a non‑parole period of 20 years’ imprisonment — Sentencing Act 1991 (Vic) ss 5, 5A, 5B, 6B & 11A; Bugmy v The Queen (2013) 249 CLR 571; R v Verdins (2007) 16 VR 269.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr N Hutton with Mr M Cookson | Office of Public Prosecutions |
| For the Accused | Mr G Casement with Ms L Andrews (8 April 2024) | Stary Norton Halphen |
| Mr T Marsh with Ms C Williams (12 July 2024) | SLKQ Lawyers |
HER HONOUR:
Stuart Paul Anderson you have been found guilty of the murder of Vicki Ramadan.
The maximum penalty for murder is life imprisonment.[1]
[1]Crimes Act 1958 (Vic) s 3(1)(a). Additionally, pursuant to ss 3 and 5(2G) of the Sentencing Act 1991 (Vic) (‘the Act’), murder is a category 1 offence for which the Court must impose a term of imprisonment.
The offending
The deceased, Vicki Ramadan, was a 77 year old woman who lived alone in Marlborough Way, Sydenham. Photographs tendered during the trial show she was struggling to cope on her own. The house was disorderly, with clothing stacked in large piles throughout the various rooms.
In early 2019, you were living nearby to Ms Ramadan, together with your partner Ms Bennett and others. You met Ms Ramadan when she attended your house, asking for help to repair a section of her fence. Following this, you went with her to measure the fence, and while there, agreed to do a number of odd jobs for her. On 23 March 2019, you went to her home and partially completed some of those jobs. Ms Ramadan paid you $300 cash and the plan was for you to reattend and complete the unfinished work. Your partner, Ms Bennett, also attended briefly on this day. It was Ms Bennett who took the photographs showing the cluttered state of Ms Ramadan’s home. Ms Bennett was worried Ms Ramadan was not coping on her own. She intended to show the photographs to community services and obtain assistance for Ms Ramadan.
On 24 March 2019, Ms Ramadan attended your home and spoke with Ms Bennett, who informed her that you were not home. This is the last time that Ms Ramadan is said to have been seen alive. There was a ‘spike’ in electricity usage around 1:30pm on 25 March but no further activity or signs of life. Local papers delivered on 26 March were not collected and Ms Ramadan was not seen again by friends or neighbours. Ms Ramadan had a daughter who lived in Queensland and she would often go and stay with her daughter for extended periods of time, leaving around March or April. Friends and neighbours of Ms Ramadan knew this, and when they did not see her out and about, they assumed she had gone to Queensland.
Your defence at trial was that you did not kill Ms Ramadan — a position you maintained through two lengthy police interviews and continue to maintain. The prosecution case at trial was that you murdered Ms Ramadan in the context of a ‘burglary gone wrong’.
A friend of yours, Andrew Hunt, gave evidence in the trial. According to Mr Hunt, you had spoken about ‘the old lady’ and fixing her fence. Given the timing of the conversation, ‘the old lady’ must be Ms Ramadan. You also said she had a lot of valuables and joked about stealing from her. According to Mr Hunt, shortly after the time of the murder, you told him that you ‘robbed the old lady last night and got busted’.
Mr Hunt was, on any view, a very unsatisfactory witness. His first police statement contained none of the matters I have just summarised, which did not emerge until he made a second statement on 14 June 2023. At trial, he failed to give evidence in accordance with his second statement and the prosecution were granted limited leave to cross‑examine him. Nonetheless, his evidence fits with at least some of the other evidence given during the trial. Ms Ramadan was seen to wear expensive jewellery, often wearing many pieces at the same time. She would attend the Watergardens Shopping Centre and was known to the security guards who worked there. She often withdrew thousands of dollars of cash at once and exposed that cash as she shopped for everyday items. There is no evidence you knew about her shopping centre activities, but given you had been to her home to do work, you would have at least known that she wore a great deal of jewellery and carried some cash. Mr Hunt’s statement that you said she had a lot of valuables and joked about stealing from her has a ‘ring of truth’ about it, as does his statement that you robbed her and ‘got busted’, meaning that she caught you in the act. It is not necessary for me to make any finding about Mr Hunt’s evidence to any particular standard. I am satisfied that you broke into Ms Ramadan’s property through the back door intending to steal from her and believing the house was empty. It may be that you thought Ms Ramadan had already gone to Queensland or it may be you simply thought she was not home. You are to be sentenced on the basis that you were surprised to find Ms Ramadan at home. It is possible that she saw and recognised you, and your fear that she would report you to police may be the reason you killed her, but I cannot be sure about those matters.
You spontaneously killed Ms Ramadan in the hallway of her own home using a weapon which may have been a hammer, based on the curved shape of the injuries. The prosecution suggested it may have been the circular base of a heavy torch, which is also possible. It was a brutal attack. The forensic pathologist gave evidence that Ms Ramadan suffered at least three impacts to her face, and at least nine separate impacts to her head. The lethal injuries were found on the right side of her head; there were at least four impacts caused by an implement and inflicted with severe force. The right side of Ms Ramadan’s skull was fractured and effectively caved in, and the bone beneath the right eye, her right cheekbone and her right jaw were also fractured.
After violently attacking Ms Ramadan, you left her lying in the hallway and returned home. It is not clear if you stole anything or just left. Ms Ramadan was most likely killed around 26 March and, for over a week, you did nothing. You then embarked on a course of conduct with the aim of distancing yourself from the killing but which ultimately served the opposite purpose.
On the morning of Saturday 6 April, you told Ms Bennett you were going over to Ms Ramadan’s house to collect your tools. Minutes later, you went to Ms Ramadan’s back fence and called Ms Bennett over. Ms Bennett met you midway on the grass reserve between the houses. You told her that Ms Ramadan was dead and to call emergency services, which she did. Ms Bennett described you as frantic, panicked and ‘freaked out’. In fact, this was all a performance by you with which you persisted. You told Ms Bennett there was blood everywhere and Ms Bennett herself entered through the back door and saw Ms Ramadan lying dead in a pool of blood. At one point, you spoke directly with the Triple Zero operator and explained how you had just found the body. You lied to police at the scene and lied again in two subsequent police statements which you signed as true and correct. On 16 April, you were interviewed by a reporter from A Current Affair and, once more, repeated the story of how you had found Ms Ramadan’s body. You even went as far as to say you were shocked and hoped they catch the person responsible.
The police doubted your version of events, in part because it was full of inconsistencies. They continued to investigate and you became a key suspect. You embroiled Ms Bennett in your lies which caused her a great deal of stress as police were also questioning her. Despite this, you maintained your false story for about three months.
In late August 2019, you contacted police and pretended to ‘come clean’. This consisted of replacing one set of lies with another; instead of finding Ms Ramadan’s body on the morning of 6 April, so your story went, you had actually gone around there at about 3:00am to retrieve your tools, broken in through her back door and seen her lying dead in the dark. Supposedly, you had to break in as you thought Ms Ramadan was away and you needed your tools which you had left there back in March. You were interviewed by police on 26 August 2019 and again in December 2019. Both records of interview were lengthy and filled with inconsistencies but you maintained the essential story that you had broken in to retrieve your tools and happened upon Ms Ramadan lying dead in the hallway. This version, unsurprisingly, was rejected by the jury.
Seriousness of offending
The most serious aspects of your offending are stark: you brutally attacked a defenceless and vulnerable woman in her own home; you used a weapon and struck her with severe force a number of times, shattering the right side of her skull; and you then left her lying dead or dying in her hallway.
I accept that your intention when you broke into the house was to steal items of value, and no doubt leave as quickly as possible. You did not expect Ms Ramadan would be home and you did not plan to kill her. You did not take a weapon but rather used an available item as a makeshift weapon. Your actions were spontaneous and unplanned and your brutal attack was swift and of relatively short duration. The deceased likely lost consciousness almost immediately and died soon after. Your post‑offence conduct was designed to avoid responsibility and aggravates your offending, but it consisted only of lies designed to deflect police attention away from you. You did not attempt to clean or destroy any part of the crime scene.
Murder is always a serious crime. In my view, this is an objectively serious example, sitting slightly above mid‑range. While you did not break in intending to kill Ms Ramadan, you nonetheless broke into her house for a criminal purpose. Ms Ramadan was security conscious and her home should have been a place of safety. Your moral culpability at the time you determined to kill Ms Ramadan was high. You knew she was elderly, frail and alone, but despite this you brutally and repeatedly struck and killed her.
Standard sentence
The standard sentence for murder is 25 years’ imprisonment and is one factor I must take into account.[2] The standard sentence is intended to represent the sentence for an offence ‘in the middle range of seriousness’ taking into account ‘only the objective factors affecting the relative seriousness of that offence’.[3] The standard sentence must not be treated as the starting point from which to add or subtract time.[4]
[2]Crimes Act 1958 (Vic) s 3(2)(b); Clarke (a pseudonym) v The Queen [2022] VSCA 89, [27] citing McPherson v The Queen [2021] VSCA 53, [31] (Priest and T Forrest JJA).
[3]The Act s 5A(1)(b); Pursuant to s 5A(3) of the Act, the ‘objective factors’ are to be determined —
[4]DPP v Lindemann [2024] VSC 220, [117] (Hollingworth J).
I am obliged to disregard sentencing practices for murder that predate the introduction of standard sentencing,[5] although the principles found in those cases remain of relevance.[6] I am also required to fix a non‑parole period of at least 70% of the head sentence unless it is in the ‘interests of justice’ to do otherwise,[7] which is not suggested here.
[5]The Act s 5B(2)(b).
[6]Brown, 464 [4].
[7]The Act s 11A(4)(b).
Victim impact
Ms Ramadan’s two adult sons wrote victim impact statements but did not want those statements read aloud in court. Both are traumatised by the violent murder of their elderly mother. One of her sons wrote of the enormous and ongoing emotional and psychological trauma he has suffered and continues to suffer. His grief has caused him to withdraw socially and he struggles to engage in activities he used to enjoy. Her other son has felt angry, hurt and frustrated. He too has lost the ability to find enjoyment in life. He keeps to himself a great deal and at times finds it hard to care about what happens to him. Ms Ramadan’s sons continue to be impacted by what you did and their grief is ongoing.
Personal circumstances and background
Your background was set out in your counsel’s submissions which relied substantially on the psychological report of Dr Barth. Your background was also outlined in a Forensicare Mental Health Service summary authored by Ms Stephenson, clinical psychologist, and referred to in the later neuropsychological report of Ms Zou who is employed by the same service.[8] Your accounts were not always consistent or plausible. For example, according to Ms Zou, you spent 13 months in an induced coma following a motorcycle accident in 2002. Your counsel clarified this was not correct. The following summary is extracted from the report of Dr Barth.
[8]Ms Zou relied on and referred to the earlier material authored by Ms Stephenson.
You were born in 1980 and raised in Traralgon by your mother and stepfather, Rodney. You are their only child but have a number of half‑siblings. You were led to believe Rodney was your biological father. Rodney was very violent towards you, your mother and your young half‑brother. Your descriptions of that abuse vary. You told Dr Barth that you sustained broken bones on numerous occasions which required medical attention, and that you were in a coma for three months when aged nine. However, you told Ms Zou that you did not recall receiving any medical attention as a child. Overall, I accept that your step‑father was verbally and physically abusive, without necessarily accepting all the details of your various accounts.
Your mother and Rodney separated when you were aged 11 and your mother formed another relationship with a man named Paul. Your relationship with Paul was hostile and, at age 14, you were evicted from home and sent to live with Rodney, still believing him to be your natural father. The conflict with Rodney continued, and you returned to live with your mother. This also did not work out due to your volatile relationship with Paul.
According to Dr Barth, you then lived in various youth transitional accommodations in New South Wales and Queensland for periods of time or were homeless. During this period, you claim to have been sexually assaulted by two older males. Your Children’s Court prior convictions between the ages of 15 and 17 suggest you were frequently in or around the Traralgon area. It is tolerably clear that your life during your late teens was unstable and turbulent. You socialised with other disaffected youth and abused drugs.
You attended primary and secondary school in Traralgon and left school at the end of Year 10. You had learning difficulties from an early age and report being diagnosed with ADHD aged six. You were prescribed medication which was seemingly largely ineffective, and your academic and behavioural problems continued. You were oppositional, verbally abusive towards teachers and fought with other students.
You maintained a relationship with your mother throughout her life and described that relationship as close but complex. You were your mother’s carer between 2011 and 2014. It was during this time that you learned Rodney was not your real father. You contacted your biological father and discovered you have Aboriginal heritage with which you now identify.[9] You were desperate to develop a connection with your biological father, however this did not eventuate and you are no longer in contact. Your mother committed suicide during the time you were her carer and the family blames you for her death.
[9]Mr Anderson is a proud Gunaikurnai man.
You report a long history of drug abuse commencing with the use of cannabis when you were 14 years old. You consumed cannabis on a daily basis, using it to alleviate anxiety and lessen the intensity of angry outbursts. You also used methamphetamines, amphetamines and MDMA during your early 20s. You ceased using these drugs over 10 years ago and, at the time of the offending, were only using cannabis.
After leaving school, you were unemployed for several years before obtaining casual work in the construction industry. You subsequently obtained various casual jobs but experienced periods of unemployment. Your substance abuse problems impeded your ability to sustain employment, as did periods in custody. At the time of the offending, you were working as a casual handyman at Timber Truss Solutions.
You have four children from three different relationships — one son aged 25, a daughter aged 21, and two further daughters aged 14 and 11. You have no contact with your two youngest daughters. It seems you have had limited or intermittent contact with your two eldest children over the years, but currently have no contact with any of your children.
Your most recent relationship was with Jaide Bennett, commencing in August 2016. That relationship was positive and prosocial. However, it was impacted after you were charged and ultimately Ms Bennett ceased contact with you in January 2020. This caused you considerable distress.
Criminal history
Your involvement with the criminal justice system commenced as a child aged 15. You have a lengthy adult criminal history dating back to 1996, including prior convictions in New South Wales and Queensland. You have numerous prior convictions for dishonesty including theft and burglary, as well as trespass, property damage, making threats to kill and breaching suspended sentences. In December 2014, you received an aggregate terms of 15 months’ imprisonment for offences of trespass, assault and recklessly cause injury. Three months earlier, in September 2014, you had received a total effective sentence of six months’ imprisonment for offences including make threat to kill, contravene a family violence intervention order and recklessly cause injury. While your criminal history is lengthy, it is confined to the Magistrates’ Court.[10]
[10]Or the equivalent local courts of NSW and Queensland.
Given your history, you fall to be sentenced as a serious violent offender pursuant to Part 2A of the Sentencing Act 1991 (Vic) (‘the Act’).[11] Pursuant to s 6D(a) of the Act, I must regard protection of the community from the offender as the principal purpose for which the sentence is imposed. In order to achieve that purpose, I may impose a sentence longer than that which is proportionate to the gravity of the offence considered in the light of its objective circumstances.[12] The prosecution did not seek a disproportionate sentence and such a sentence is not warranted here.[13]
[11]Mr Anderson has two prior convictions for make threat to kill for which he received a term of imprisonment (as part of an aggregate term), and which is a serious violent offence pursuant to Schedule 1, clause 3(b)(iii) of the Act. Murder is also a serious violent offence pursuant to Schedule 1, clause 3 of the Act and a term of imprisonment will be imposed this day. Therefore, pursuant to s 6B(2) of the Act, the accused is a serious violent offender.
[12]The Act s 6D(b).
[13]The imposition of a disproportionate sentence pursuant to s 6D(b) of the Act has been described as ‘of a kind which is rarely imposed’ and ‘rightly considered rare’. See R v Tutchell [2006] VSCA 294, [35], [76] (Ashley JA).
Psychological material
Dr Barth assessed you in custody on 20 February 2024. Dr Barth considered there was a degree of exaggeration or hyperbole contained in your account to him and took a conservative approach when reaching conclusions.
You reported a long history of emotional instability, anxiety, intense anger and hostility upon being challenged. You have had sporadic contact with mental health services throughout much of your life and have obtained various diagnoses including bipolar disorder and antisocial personality disorder. While in custody, you have attended on Dr Radovic, psychologist, who has diagnosed you with complex post‑traumatic stress disorder. You continue to see Dr Radovic and Ms Stephenson, the clinical psychologist I referred to earlier.
According to Dr Barth, you suffer from ‘major depressive disorder with anxious distress and recurrent episodes of moderate severity’, ‘borderline personality disorder with antisocial features’ and ‘cannabis use disorder’, which he describes as severe. He describes you as presenting with ‘entrenched personality and behavioural problems’ which can be traced back to your childhood and chaotic upbringing.
Your history of violent behaviour, previous involvement with the justice system, borderline personality disorder, antisocial traits, history of substance abuse issues, negative peer involvement, violent attitudes and childhood abuse have culminated in what Dr Barth described as ‘entrenched dysfunction’. You lack insight into your behaviour, your coping skills are poor and you have no personal support. Positively, you have displayed a high level of engagement in treatment with Dr Radovic. You have expressed a strong commitment to continuing treatment and a motivation to remain abstinent from substance abuse. Using risk assessment tools, Dr Barth assessed you as posing a ‘moderate‑high’ risk of violent reoffending, but noted that the results are of limited value given the significant period of time you will spend in custody and your likely age when released.
‘Bugmy’ principles
Your counsel relied on your disadvantaged background as enlivening the principles in Bugmy in a ‘general’ sense.[14] The prosecution submitted that there are various inconsistencies in your accounts and that your assertions as to the disadvantage of your upbringing lack an evidentiary basis.
[14]Bugmy v The Queen (2013) 249 CLR 571; DPP v Herrmann [2021] VSCA 160, [36].
Dr Barth described your childhood as one of abuse, instability and abandonment. This severely and adversely impacted your psychosocial development, and your behavioural and personality problems can be traced back to your abusive and unstable upbringing. Ms Stephenson described you as experiencing ‘severe physical abuse from an early age’ and having a history of complex trauma. Overall, despite the various inconsistencies in your accounts, I am prepared to find that your early years were marred by verbal and physical abuse, instability and turbulence.
The application of the Bugmy principles is not straightforward. You continue to deny the offending so there is no explanation from you for your conduct. Further, at the time of this offence, you were enjoying a period of stability. You were in a positive and supportive relationship; you were not using drugs other than cannabis; and you had employment. You had not been before the courts since 2015 other than for one charge of contravene a family violence intervention order in January 2018, for which you received a without conviction bond. There is no evidence that your childhood deprivation was causally connected to this offending.
Nonetheless, I accept overall that your unstable childhood and early exposure to damaging violence has some significance when sentencing you. Your criminal history is also significantly explained by your background and early adverse life experiences. As Dr Barth noted, your chaotic upbringing led to a raft of difficulties and you have ‘mainly lived on the periphery of society since your early teenage years’. The murder of Ms Ramadan was a crime of sudden and extreme violence. The psychological material contains frequent references to your tendency to become intensely angry and hostile when challenged, and Dr Barth noted that your abusive childhood has impacted your propensity for aggressive behaviour. I am prepared to find that the principles in Bugmy have some application, however any mitigation of sentence for this reason is modest.
‘Verdins’
Your counsel relied on your personality disorders as falling within the scope of mental impairment for the purposes of Verdins.[15] Your counsel submitted that a term of imprisonment will weigh more heavily on you than on a person of normal mental health.[16] In his report, Dr Barth considered that your depressive disorder and borderline personality disorder in combination are likely to make your experience of long term imprisonment ‘quite arduous’. It was also submitted that there was a serious risk of imprisonment having a significant adverse effect on your mental health.[17] The prosecution accept that principles 5 and 6 of Verdins have some application in your case.
[15]R v Verdins (2007) 16 VR 269 (‘Verdins’). See also Brown v The Queen [2020] VSCA 212.
[16]Relying on Verdins principle 5.
[17]Relying on Verdins principle 6.
It is difficult to disentangle your childhood deprivation, personality disorders and other mental health problems. I accept that a term of imprisonment would weigh more heavily on you than a person of normal mental health. I am less persuaded that principle 6 has been enlivened but I do accept that there may be risks to your mental health if, for instance, your ongoing psychological treatment was reduced or ceased. Dr Barth considered it is imperative that the provision of treatment remains ongoing, and that without it, destabilisation of your mental health may occur. Currently, your personality disorders are well managed and you are able to derive a benefit from therapy, but if the situation changes, there may be potential for deterioration. I take these matters into account when sentencing you.
Experience in custody
As with much of the material concerning your personal circumstances, there is some contradiction. On the one hand, it was submitted that you have been verbally abused and threatened by other prisoners due to the nature of your offence. You have been held in a protection unit together with other prisoners. You do not receive any personal visits and the only people who visit you are your lawyers. Your counsel submitted that you ‘regularly receive threats on your life’ and referred to a file note of Dr Radovic dated October 2023. The file note itself refers to you self‑reporting ‘insensitive or offensive comments made by co‑prisoners and a correctional staff member’. You instruct that you have been assaulted by another prisoner, being the same person who sexually assaulted you when you were ‘in state care’. I assume the reference to ‘state care’ is a reference to the unidentified youth transitional accommodation you resided in for periods in New South Wales and Queensland. You claim to have been stabbed multiple times by this prisoner, including in the neck, but there is no independent or medical evidence to support this.
Your counsel submitted that your ‘adverse and traumatic’ experiences whilst in custody are a mitigatory factor and the Court can be satisfied that your time in custody has been and will likely continue to be more onerous. On the material I have, I am not prepared to draw any such conclusions.[18]
[18]In written submissions, Mr Anderson’s counsel stated that ‘Mr Anderson can give evidence by way of affidavit if the court requires further proof of these matters’. It is for the accused to put before the court all evidence and other material on which he seeks to rely in mitigation. It is not the task of the sentencing judge to assess the material and advise the accused in advance of sentencing as to what conclusions the court has reached and whether the court requires ‘further proof’ of any matter. It was made clear to counsel on the plea that the veracity of Mr Anderson’s various accounts of his life were questionable and not necessarily accepted by the court.
On the other hand, it was submitted that your custodial experience has been ‘largely positive’ in many ways. You get along well with both prisoners and staff and have made ‘strong connections’ with other inmates. You have an elected role as a prisoner representative and have been offered a position as an alcohol and other drugs peer educator. You have worked in horticulture and are very involved with Aboriginal cultural engagement mentoring and awareness programs. You have helped to enact positive changes within the prison, including working to obtain funding to establish a Koori garden and assisting to paint a mural. You have successfully completed a number of short courses. You have also meaningfully engaged with Dr Radovic and intend to continue with psychological treatment.
I am prepared to accept that the roles and activities you have undertaken in the prison reflect positively on your commitment towards rehabilitation. A letter from GEO Healthcare confirms you have been appointed as a peer educator. Overall, your prospects of rehabilitation are difficult to assess. I would describe them as reasonable, if somewhat guarded. They are certainly not extinguished and, despite the somewhat contradictory nature of the material, I find you have used your time in custody productively. This is to your credit and your long term rehabilitation remains a relevant sentencing purpose.
You were remanded just prior to the Covid-19 pandemic and, as a result, you have experienced more difficult conditions in custody. First, there was the initial fear and uncertainty as to whether Covid-19 would enter the prison system and what would happen if it did. Little was known about the virus and there was no vaccine. Additionally, prisoner movements were increasingly restricted, including being confined to cells when the prisons were locked down. Access to courses and programs was reduced or suspended at times. I accept that being on remand for the entire of the pandemic would have been considerably more onerous and isolating than usual, and I take this into account by way of mitigation.
Delay
Your counsel relied on the delay between your arrest and sentence as a mitigating factor, relying on both limbs of delay: first, unfairness to you in that having the charge ‘hanging over your head’ has caused you stress and anxiety, and second, your rehabilitative progress during the period of delay. The prosecution conceded that delay is a relevant factor to be considered when sentencing.
You were first charged with murder in December 2019. Three matters are relevant when considering the mitigatory impact of delay. First, due to the Covid-19 pandemic, your matter was significantly delayed as jury trials were suspended for much of 2020 and 2021. Secondly, your first trial resulted in a hung jury. Thirdly, your retrial was listed in June 2023 but could not proceed after a prosecution witness provided additional evidence just prior to trial, necessitating an adjournment. The matter finally proceeded in November 2023 and, on 7 December 2023, the jury convicted you of murder. I accept that you have been on remand for an unusually lengthy period due in large part to the three matters to which I have referred. In those circumstances, I take into account the uncertainty and stress you would have experienced as a result of the delay.
Your counsel also relied on the rehabilitative progress you have made during the period of delay. There are two aspects to the rehabilitation limb of delay: the first is whether the offender has accepted responsibility for the offending, acknowledged its wrongfulness and expressed remorse; the second is whether the offender has taken steps to reform.[19] Both aspects of rehabilitation — remorse and reformation — must be demonstrated for the Court to give full weight to this limb.
[19]Tones v The Queen [2017] VSCA 118, [41].
You maintain your innocence and thus there is no evidence of remorse. Your counsel suggested that, despite this, you have expressed ‘emotional distress’ about Ms Ramadan’s death to Dr Barth and shown a capacity to reflect on the loss experienced by her family. Your counsel submitted this was ‘something’ and, despite your denials, you have not displayed callous indifference. In my view, your comments to Dr Barth were made as part of your continued denials — that is, you are troubled that people would think you would do this. In those circumstances, there is nothing mitigatory about your claims of being ‘shattered’ by Ms Ramadan’s death or feeling ‘sorry’ for her family.
You have taken steps to reform, including engaging with psychological counselling despite finding it confronting and difficult at times. Ongoing psychological treatment is critical in your case if you are to achieve long term positive changes. I accept that you have taken steps to rehabilitate yourself and this engages the second limb of delay, albeit not fully. Your prospects of rehabilitation are limited by your refusal to accept the jury’s verdict.[20] However overall, delay moderates the sentence I would otherwise have imposed.
[20]R v Schioparlan & Georgescu (1991) 54 A Crim R 294, 301.
Sentence
This was a brutal attack on a defenceless elderly woman in her own home. Murder committed in these circumstances must be publicly condemned. General deterrence, just punishment and denunciation are all important sentencing principles in this case. I have balanced the various sentencing considerations as best I can,[21] including all matters in mitigation. For the reasons I have been through, including the seriousness of your crime, the sentence I impose will be higher than the standard sentence.[22]
[21]The Act s 5(2). See also Director of Public Prosecutions (Victoria) v Dalgliesh (2017) 262 CLR 428, 434 [5] (Kiefel CJ, Bell and Keane JJ), 452 [79] (Gageler and Gordon JJ), citing Wong v The Queen (2001) 207 CLR 584, 611 [75] (Gaudron, Gummow and Hayne JJ).
[22]The Act ss5B(4)(a) and (5).
On the charge of murder, you are sentenced to 27 years’ imprisonment. I fix a non-parole period of 20 years’ imprisonment.
I declare that you have served 1728 days by way of pre-sentence detention, and such time is reckoned as time already served under this sentence.
Pursuant to s 6F of the Act, your serious violent offender status will be noted in the records of the Court.
I make the disposal order sought by the Crown.
(a) without reference to matters personal to a particular offender or class of offenders; and
(b) wholly by reference to the nature of the offending.
This narrow definition of ‘objective factors’ ignores a range of matters which a sentencing judge must consider when assessing both the nature and gravity of the offending, and an offender’s moral culpability. Those matters, both aggravating and mitigating, must still be taken into account and their significance is not displaced or reduced by the standard sentence regime. See Brown v The Queen (2019) 59 VR 462, 479 [57] (‘Brown’), citing McLaren v R [2012] NSWCCA 284, [28]. See also ss 5(2)(c) and 5(2)(d) of the Act. See Brown, 479 [55], where the Court stated that the seriousness of an offence must still be assessed in the conventional way, by considering both objective gravity and moral culpability.
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