Director of Public Prosecutions v Charlton (No 2)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2022 0025

DIRECTOR OF PUBLIC PROSECUTIONS

PAUL CHARLTON

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JUDGE:	Elliott J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 August 2023
DATE OF SENTENCE:	29 November 2023
CASE MAY BE CITED AS:	Director of Public Prosecutions v Charlton (No 2)
MEDIUM NEUTRAL CITATION:	[2023] VSC 707

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CRIMINAL LAW – Sentence – Murder – Cold case – Domestic partner – Attacked in home – Skull fracture and strangulation – Concealment – Delay of 13 years before charged – Sentencing practices at time of offence – Advanced age – Prospect of deportation – Lack of remorse – Sentenced to 24 years’ imprisonment – Non-parole period of 19 years – Crimes Act 1958 (Vic), s 3 – Sentencing Act 1991 (Vic), ss 3, 5, 11, 18, 165A.

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APPEARANCES:	Counsel	Solicitors
For the Crown	P Bourke KC with P Pathmaraj	Office of Public Prosecutions
For the accused	M Tittensor SC with A Dixon	Galbally Parker

HIS HONOUR:

A. Introduction

Paul Ross Charlton, on 6 July 2023, you were found guilty of the murder of Joanne Howell at Hughesdale in Victoria on 21 April 2007.

B. Circumstances of the offending

B.1 Background to the offending

You murdered Ms Howell in her home in Hughesdale between approximately 9.00pm and 9.30pm on the evening of 21 April 2007. You and Ms Howell were in a relationship at the time and had been living together for approximately 5 months prior to her death.
Your relationship with Ms Howell started in 2006, following an introduction from a mutual friend. You offered to fix her computer and your relationship commenced shortly thereafter. You moved into Ms Howell’s unit in Hughesdale in around mid-December 2006. Before you moved in, you would visit Ms Howell at her home from time to time.
In the weeks leading up to Ms Howell’s death, you and Ms Howell were having increasing relationship difficulties. On the morning of Ms Howell’s death, Catherine Tormey, a friend of Ms Howell’s, visited Ms Howell at her home. Ms Tormey observed that Ms Howell was pale and shaky. Ms Howell told Ms Tormey that she wanted you out of the house and that she “couldn’t handle” you anymore. After some time, you joined Ms Howell and Ms Tormey in the kitchen. When you did so, Ms Howell told you that she wanted you out of the house in 4 weeks. In response, you performed a “Heil-Hitler” salute at Ms Howell and then left the kitchen.
Later that afternoon, Ms Howell spoke to Ms Tormey on the telephone on 2 separate occasions. In the first conversation, Ms Howell told Ms Tormey that you had moved your belongings into the spare room. She declined an offer from Ms Tormey to come over for dinner, saying she would not be good company and did not feel up to it. In a later call, Ms Howell again declined Ms Tormey’s invitation to come over for dinner.
At approximately 8.00pm that evening, Ms Howell had a telephone conversation with your mutual friend, Howard Williams. Ms Howell told Mr Williams that she had given you 30 days to move out. She said she could not live with you anymore. Towards the end of the phone call, she indicated that she thought you were coming in the door.
Sometime that evening, you left the unit to go to the local supermarket. Timestamped receipts show that you made purchases at 2 local supermarkets between 7.11pm and 7.40pm. During your first record of interview in 2007, you informed police that you ultimately returned home at approximately 8.15pm. You stated that you then left the house again at 9.20pm to walk your dog. Later, during the same interview, you said you left the house some time between 9.15pm and 9.30pm and that you had not checked the time when you left the unit.
In 2007, Raj Singh and Kylie Williams lived next door to you and Ms Howell in an adjoining unit separated only by a common wall. On the night of Ms Howell’s murder, they were watching a film with a friend, Amanda Burgess, when they heard a loud thud from Ms Howell’s unit. None of them could recall precisely when they heard the noise. Mr Singh said he heard the thud at approximately 9.15pm, although he accepted that this estimate could be off by up to 20 minutes. Ms Williams said her best estimate of when she heard the noise was sometime between 9.00pm and 9.30pm. Ms Burgess could not recall when she heard the noise. None of these persons heard anything other than this thud during the course of the night, despite the fact that Mr Singh and Ms Williams gave evidence that the sound of conversations often travelled through the common wall.
At 11.19pm on 21 April 2007, you called emergency services. You stated that you had returned home 2 minutes earlier and that your girlfriend, Ms Howell, was unconscious at the bottom of the stairs with “blood all over her face”. Your call was transferred to ambulance services, and paramedics and police attended the unit shortly thereafter. Upon arrival at the crime scene, ambulance personnel determined that resuscitation of Ms Howell would be futile.
Video footage and photographs of the crime scene showed that the wood panelling on the internal door to Ms Howell’s garage had been damaged. In addition, Ms Howell’s shirt had been lifted and her breasts were exposed. During your first record of interview, you told police that when you found Ms Howell unconscious her pants had been pulled down to her knees and that you had pulled them up before emergency services arrived.
During the early hours of 22 April 2007, Dr Michael Burke, a forensic pathologist, attended the crime scene. Upon arrival, Dr Burke examined Ms Howell’s clothing and her body and made a number of observations about her injuries. Later, Dr Burke performed an autopsy on Ms Howell.
Dr Burke observed that Ms Howell’s injuries, namely a fracture to the occipital bone at the back of her skull and ligature marks around her neck, were consistent with blunt force trauma and strangulation respectively. The evidence suggested that Ms Howell was struck in the back of her head with significant force by a perpetrator using a weapon with a “broad surface”. Dr Burke concluded that it was more likely that the blow to Ms Howell’s head came first and that the cause of her death was most likely strangulation. Dr Burke confirmed that he had formed this view on the basis that Ms Howell’s injuries suggested that she was still alive when she was strangled, although probably not conscious at the time of the strangulation as there were no signs of struggle. Dr Burke’s evidence was unchallenged at trial.
Based on the whole of the evidence, and consistent with the jury’s verdict that you murdered Ms Howell, I am satisfied beyond reasonable doubt that during the course of the attack on 21 April 2007 you:[1]
(1)Struck the back of Ms Howell’s skull with significant force.
(2)Strangled Ms Howell with a ligature.
(3)Intended to kill Ms Howell at the time of whichever was the latter of these events.
[1]R v Storey [1998] 1 VR 359, 369.6 (Winneke P, Brooking and Hayne JJA and Southwell AJA), cited with approval in R v Olbrich (1999) 199 CLR 270, 281 [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).
I cannot be satisfied beyond reasonable doubt as to whether the blow to Ms Howell’s head followed or preceded the strangulation, although I note Dr Burke’s evidence regarding the likely order of events. However, whatever act came first is not material; on the only 2 available alternatives, the evidence established beyond reasonable doubt that on either scenario you intended to kill Ms Howell.

B.2 Procedural history

Returning to the police investigation, at approximately 1.40am on 22 April 2007, you were placed under arrest. Your first record of interview was conducted at approximately 2.00am on 22 April 2007 at the Oakleigh Police Station. At approximately 1.30pm on the same day, whilst crime scene investigations were continuing, your second record of interview was conducted at the Victoria Police homicide squad offices. During both interviews, you denied any involvement in Ms Howell’s murder. Later that day, you were released from custody pending further enquiries.
On 27 April 2007, 6 days after you murdered Ms Howell, you asked police to locate the driver of a silver Audi you had seen on the road near Ms Howell’s unit whilst walking your dog on the night of her murder. You asked to show the police where you had seen the silver Audi and subsequently took the police to the premises where you had seen the car. Also in your interviews with police you suggested alternative suspects.
Following the initial police investigation, no charges were laid. Subsequently, in 2011, a coronial inquest into Ms Howell’s death was conducted.
Nine years later, in 2020, the investigation into Ms Howell’s death was revived and further investigations were conducted. On 6 January 2021, you were arrested and charged with Ms Howell’s murder. On 11 June 2021, you were granted bail.
For approximately 13½ years, you were able to live in the community without facing the full consequences of murdering Ms Howell. You must now face the full consequences of your crime.

C. Legal principles

C.1 Sentencing guidelines

The only purposes for which sentences may be imposed are prescribed under section 5(1) of the Sentencing Act 1991 (Vic). These purposes include to punish the offender to an extent and in a manner which is just in all of the circumstances; to deter the offender or other persons from committing offences of the same or a similar character; to establish conditions which may facilitate the rehabilitation of the offender; to manifest the denunciation by the court of the conduct in question; and to protect the community.[2] I must adhere to the principle of parsimony and not impose a sentence on you that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed.[3]
[2]See also Veen v The Queen (No 2) (1988) 164 CLR 465, 476.8 (Mason CJ, Brennan, Dawson and Toohey JJ).
[3]Sentencing Act, s 5(3).
I must also have regard to a number of other considerations, including but not limited to the maximum penalty prescribed for the offence, current sentencing practices, the nature and gravity of the offence, the impact of the offence on any victim, your culpability and degree of responsibility for the offence, and the presence of any aggravating or mitigating factors.[4] The weight and emphasis to be given to various factors is a discretionary exercise which depends on the facts and circumstances of each case.[5] Through the process of instinctive synthesis, I must balance different and conflicting factors to arrive at a sentence that is just in all the circumstances.[6]
[4]Sentencing Act, s 5(2).
[5]Director of Public Prosecutions (Victoria) v Dalgliesh (2017) 262 CLR 428, 434 [7] (Kiefel CJ, Bell and Keane JJ), 452 [79] (Gageler and Gordon JJ); Markarian v The Queen (2005) 228 CLR 357, 371 [27] (Gleeson CJ, Gummow, Hayne and Callinan JJ); R v Williscroft [1975] VR 292, 300.8-301.3 (Adam, Starke and Crockett JJ).
[6]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). See also Markarian v The Queen (2005) 228 CLR 357, 373-375 [37]–[39] (Gleeson CJ, Gummow, Hayne and Callinan JJ).

C.2 Sentencing practices

In sentencing you, not only am I required to have regard to current sentencing practices.[7] The principle of equal justice also requires me to direct my attention to sentencing practices in place at the time of your offending. In Stalio v The Queen the Court of Appeal observed:[8]
[T]he concept of equal justice requires regard to be had to sentencing practices at the date of the offence if those practices can be demonstrated to have required the imposition of a materially lesser sanction for like offences than current sentencing practices would impose for the offence…
[7]It has been determined that “current sentencing practices” in section 5(2) of the Sentencing Act is intended to refer to sentencing practices at the date of sentence: see Stalio v The Queen (2012) 46 VR 426, 432 [9], [11] (Neave and Osborn JJA and King AJA).
[8]Ibid, 432 [9]. See also Lowe v The Queen (1984) 154 CLR 606, 610.9-611.2 (Mason J, dissenting) regarding the notion of equal justice.
The court went on to explain that it would be wrong for an offender to be sentenced to a substantially higher sentence than an offender who committed like offences at or about the time of the offences in issue, simply because of the lapse of time.[9] In the later decision of Carter v The Queen,[10] it was emphasised that the sentencing judge is not required to sentence in accordance with the prevailing sentencing practices at the time of offending; the sentencing judge is only required to have regard to sentencing practices at that time.[11]In addition, the weight to be given to that factor will depend upon the circumstances of the case.[12]
[9]Stalio v The Queen (2012) 46 VR 426, 441 [54].
[10](2018) 272 A Crim R 170.
[11]Ibid, 182 [55] (Weinberg, Beach and Hargrave JJA). See also Hague v The Queen [2019] VSCA 218, [252] (Ferguson CJ, Niall and Weinberg JJA). Compare section 114 of the Sentencing Act which is not enlivened in this case as at all relevant times the maximum penalty has been the same, namely, life imprisonment.
[12]Carter v The Queen (2018) 272 A Crim R 170, 182 [55].
In some cases involving delay, an offender may not be entitled to be treated as if criminal responsibility had been established earlier. For example, in Bradley v The Queen,[13] a case in which an offender was sentenced in 2015 for a murder committed in 1984, the Court of Appeal observed:[14]
It was the applicant’s own conduct, in leaving Victoria and concealing his responsibility for this murder for over thirty years, which made it impossible for him to be sentenced contemporaneously with the offending. For that reason, it may be said, he is not entitled — following his much-delayed conviction for murder — to seek to be treated as if his criminal responsibility had been established in 1984 or thereabouts.
[13][2017] VSCA 69.
[14]Ibid, [124] (Maxwell P, Weinberg and Tate JJA).
As now, at the time of your offending, the maximum penalty for murder was life imprisonment.[15] In relation to the sentencing practices in place at the time of your offending, the prosecution provided the court with a table of cases involving sentences imposed for domestic murders from 2007 to 2017,[16] prior to the introduction of the standard sentence scheme.[17] I accept the prosecution’s submission that those cases are “instructively different” to your case, and should be distinguished accordingly.[18] For example, many of those cases involved early guilty pleas, the application of the principles set out in the case of R v Verdins,[19] and did not involve concealment by the offender. Referring to the table, your counsel accepted that a lengthy term of imprisonment is the only available disposition in the circumstances of your case.
[15]Crimes Act 1958 (Vic), s 3(1)(a). The standard sentence for murder is 25 years’ imprisonment, however, at the time of the relevant offending, murder was not a standard sentence offence, nor was it a category 1 offence as defined in section 3 of the Sentencing Act.
[16]In relation to offences that occurred from 2001 onwards.
[17]Director of Public Prosecutions v Aleluia [2017] VSC 204; Director of Public Prosecutions v Whitelegg [2016] VSC 412; Director of Public Prosecutions v Browning [2016] VSCA 153; Director of Public Prosecutions v Azizi [2013] VSC 16; R v Constantinou [2013] VSC 474; R v Mulhall [2012] VSC 471; Felicite v The Queen (2011) 37 VR 329; R v Mamour [2011] VSC 113; R v Penglase [2011] VSC 356; R v Baxter [2009] VSC 180; R v Gojanovic (No 2) [2007] VSCA 153. See also Sentencing Amendment (Sentencing Standards) Act 2017 (Vic).
[18]Kulafi v The Queen [2021] VSCA 369, [52] (Maxwell P and Niall JA).
[19](2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA).
In determining the weight to give to past sentencing practices, I have had regard to the circumstances of your case. In particular, the active steps you took to conceal your involvement in Ms Howell’s murder.[20] However, I accept your counsel’s submission that your conviction was based on a body of evidence that was available around the time of your offending in 2007.[21]
[20]See par 44 below.
[21]With only minor and insignificant exceptions.
In considering both current sentencing practices and the sentencing practices in place at the time of your offending, I have also reviewed material published by the Sentencing Advisory Council.[22] Further, although the standard sentence scheme does not apply,[23] its inapplicability does not preclude current sentencing practices being taken into account in sentencing you.[24]

D. Sentencing considerations

D.1 Circumstances of the offender

[22]Sentencing Advisory Council, ‘Sentencing Snapshot’ (No. 273, Sentencing Advisory Council, 2023) 3; Sentencing Advisory Council, ‘Sentencing Snapshot’ (No. 109, Sentencing Advisory Council, May 2011) 3.

[23]Sentencing Act, s 165A(2).

[24]Ibid, s 165A(3).

D.1.1 Personal background

You were born in the United Kingdom on 19 November 1954. You were 52 years old at the time of your offending, and you are now 69 years old.
You have a brother who is 4 years younger than you. In 1961, when you were 7 years old, your family moved to Australia. The circumstances of your childhood were far from ideal.[25] Your father was preoccupied with work and your mother suffered from mental health issues which sometimes resulted in her flying into rages over the slightest issue. She used corporal punishment on you and would lock you in your room for long periods of time. In your estimation, her condition became progressively worse over the years. Both your parents are now deceased. Due a dispute over your inheritance, you and your younger brother are estranged.
[25]Compare Bugmy v The Queen (2013) 249 CLR 571, 594-596 [42]–[46] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).
At around 16 years of age, you left the family home to reside with your grandparents. You lived with them until you were able to afford to rent privately.
You attended your local public primary and high schools. However, you withdrew from high school at the age of 14 after suffering a breakdown when someone close to you was killed in a car accident. You continued your education by correspondence for some time before attending a local technical college. Your formal education concluded when you were in year 11.
From the time you left school, you were employed in a variety of unskilled jobs in Melbourne. At approximately 18 years of age, you commenced travelling around Australia and engaged in short contract work. You lived in Perth from 1977 for approximately 6 years. You worked during that time, including as a taxi driver. You also commenced a welding apprenticeship which you subsequently abandoned when your employer ceased operating.
In the early-to-mid-1980s, you returned to Victoria where you worked as a factory worker for a number of years. After obtaining employment at a printing company in the late 1980s, you developed an interest in computers. In the early 1990s, you completed a course in computer maintenance. From the 1990s until 2007, you worked as an information technology contractor. You found continued employability in this line of work stressful given the ever-changing nature of the technology and the flow of younger graduates entering the industry.

You met your first wife in 1982. You had 2 children together, born in 1983 and 1986 respectively. You and your first wife separated in around 1991. You found the last period of this marriage and the turmoil that followed the separation difficult and fell into depression. You were married for a second time in 1994. You and your second wife separated in the late 1990s. You had 1 other significant relationship in the early 2000s before meeting Ms Howell in 2006.
Since Ms Howell’s death in 2007, you have undertaken very little work due to your experiences of insomnia and feelings of anxiety and depression. At various times, you have sought to treat these issue with therapy and antidepressants. In 2013, you met your current partner, Linda Barry. Upon being granted bail in 2021, you sold your house and moved in with Ms Barry. You lived with her until you were taken into custody at the conclusion of your trial in this proceeding.

D.1.2 Health

In 2017, you had an operation on your liver to remove a large cyst. In 2019, you were in a motorcycle accident and suffered fractures to your left tibia, which required multiple operations. You continue to experience difficulties walking as a result. In 2022, you were diagnosed with blood clots in both lungs and you were prescribed anticoagulant medication. Earlier this year, you were prescribed anti-depressant medication and melatonin to treat your insomnia.
Your counsel submitted that, in a general way, your existing health conditions would contribute to making your experience of custody more burdensome than it otherwise would be. I have taken your health concerns into account in determining the appropriate sentence to impose on you, noting that the probative evidence before the court of your mental health is limited.[26]
[26]There was no expert medical evidence before the court regarding your mental health. At the plea hearing, defence counsel confirmed that no reliance was placed on the considerations set out in R v Verdins (2007) 16 VR 269, esp at 275 [27] (Maxwell P, Buchanan and Vincent JJA).

D.1.3 Age and immigration status

Given your age, there is a very real prospect that you will spend the remainder of your life in custody. However, this weighty consideration must be balanced against the severity of your offending.[27] The general desirability of avoiding a sentence that would deprive you of any realistic prospect of useful life after release is a relevant factor which I have considered in determining the appropriate sentence to impose on you.
[27]CCR v The Queen [2012] VSCA 163, [73] (Hansen JA, with whom Warren CJ and Redlich JA agreed), citing R v Bazley (1993) 65 A Crim R 154, 158.3 (Crockett, Hampel and Smith JJ); R v RLP (2009) 213 A Crim R 461, 476 [39] (Neave and Redlich JJA and Hollingworth AJA); R v Iles [2009] VSCA 197, [32] (Redlich JA).
In addition, you face the prospect of deportation. As you are not an Australian citizen, there is a strong likelihood that, upon the completion of your sentence, your visa will be cancelled and you will be deported.[28] As observed in Loftus v The Queen,[29] the potential for an offender to be deported at the completion of a sentence is relevant to sentencing in 2 ways:[30]
First, the prospect of deportation renders the imprisonment more onerous because the prisoner will face the prospect of deportation. This, in turn, may render the incarceration more difficult. Secondly, the deportation, should it occur, would constitute an additional punishment because it destroys the opportunity to settle permanently in this country.
[28]Migration Act 1958 (Cth), s 501(3A).
[29][2019] VSCA 24.
[30]Ibid, [79] (Whelan AP and Niall JA).
You have a longstanding connection to this country. Your friends, family and long term partner are based in Australia, whereas you have no friends or connections in the United Kingdom. While the potential of deportation is a relevant mitigating factor, the weight to be given to it is limited given the nature and gravity of your offending.[31]
[31]Fichtner v The Queen [2019] VSCA 297, [96] (Maxwell P and Kaye JA).

D.2 Impact on the victims

Victim impact statements of Ms Howell’s daughter, Tanya Stevenson, Ms Howell’s sister, Lisa Hennessy, Ms Howell’s nephew, Nathan Harris, and Ms Howell’s friend Ms Tormey, were provided to the court. Ms Stevenson, Ms Hennessy and Mr Harris also read their statements in court at the plea hearing. Ms Stevenson and Ms Hennessy spoke eloquently of their grief and the impact that Ms Howell had on their lives. Mr Harris detailed the devastation experienced by his late grandmother, Ms Howell’s mother, following Ms Howell’s murder. Each of the victim impact statements clearly demonstrates the devastating and lasting impact that Ms Howell’s death has had on her family and friends. I have taken each of these statements into account in determining the appropriate sentence to impose on you.

D.3 Nature and gravity of the offending

Murder is a gravely serious offence. You brutally murdered Ms Howell in her home where she was entitled to feel safe.[32] It is a significant aggravating factor that your offending was an extreme act of domestic violence.[33] In sentencing you, the principles of general deterrence, denunciation and just punishment must be given primacy. As observed by the Court of Appeal in Felicite v The Queen:[34]
The taking of a domestic partner’s life undermines the foundations of personal relationships and family trust upon which our society rests. The sentence must reflect both the sanctity of human life and society’s abhorrence of violence towards vulnerable and trusting partners who could legitimately have expected the offender to be a protector from, not the perpetrator of violent abuse … The community expectation is that the punishment assigned to such conduct must be condign so as to denounce in the strongest terms the abhorrent nature of domestic murder and to deter others from taking a similar course. Accordingly, the principles of general deterrence, denunciation and just punishment will ordinarily be given primacy in sentencing for the murder of a partner in a domestic setting even where there are present, circumstances of provocation or great emotional stress.
[32]Director of Public Prosecutions v Ristevski [2019] VSCA 287, [10] (Ferguson CJ and Whelan JA); Director of Public Prosecutions v Zhuang (2015) 250 A Crim R 282, 301 [53] (Redlich, Priest and Beach JJA).
[33]Director of Public Prosecutions v Ristevski [2019] VSCA 287, [78] (Priest JA, with whom Ferguson CJ and Whelan relevantly agreed).
[34](2011) 37 VR 329, 333 [20] (Redlich JA, with whom Harper JA and Robson AJA agreed). See also Director of Public Prosecutions v Paulino [2017] VSC 794, [19], [23] (Bell J).
Further, you carried out the murder with the use of weapons. Although the murder weapons were never found by police, consistent with Dr Burke’s evidence,[35] the weapons can be described as an object with a broad surface and a ligature.
[35]See par 12 above.
Furthermore, I am satisfied beyond reasonable doubt that you took deceitful steps to conceal your involvement in the murder. Far from maintaining your right to silence, you actively sought to deflect suspicion away from you in the immediate aftermath of Ms Howell’s death,[36] namely by:
(1)Removing Ms Howell’s clothing in an attempt to create the impression that she was a victim of a sexual attack, which demonstrated your complete disregard for her dignity in death.[37]
(2)Damaging the wood panelling on the internal door to Ms Howell’s garage in an attempt to create the impression that Ms Howell’s attacker was an intruder.[38]
(3)Taking your dog for a walk shortly after attacking Ms Howell in an attempt to establish an alibi. I pause here to note that rather than immediately calling emergency services, you left Ms Howell laying at the bottom of the stairs in her home, either dead or dying, for more than 90 minutes.
(4)Disposing of the murder weapons.
(5)Requesting that police make enquiries with the driver of the silver Audi you claimed to have seen whilst walking your dog, in an attempt to bolster your alibi.[39]
[36]Compare Director of Public Prosecutions v Ristevski [2019] VSCA 287, [6]–[7] (Ferguson CJ and Whelan JA).
[37]See par 10 above.
[38]Ibid.
[39]See par 16 above.
These factors are not merely reflective of your lack of remorse, but are also aggravating features which make your offending more serious than it otherwise would have been had you not engaged in this conduct.[40] I accept the prosecution’s submission that your moral culpability is high.
[40]Director of Public Prosecutions v Ristevski [2019] VSCA 287, [6]–[7], citing Director of Public Prosecutions v England (1999) 2 VR 258, 263 [17] (Brooking JA, with whom Batt JA relevantly agreed and Chernov JA agreed).
Your lack of remorse is further evidenced by the lies you told to police. During your first record of interview, you suggested to police that Ms Howell was alive when you left to take your dog for a walk on the night of her murder. You disingenuously claimed to police, “If I’d been there, she’d still be alive”. In addition, you lodged an application for financial assistance with the Victims of Crime Assistance Tribunal in 2007 in relation to Ms Howell’s death, despite knowing that you were responsible for her murder. Whilst your lack of remorse is not an aggravating feature of your offending, it does represent the absence of what is often a significant mitigating factor.[41]
[41]Director of Public Prosecutions v Ristevski [2019] VSCA 287, [74] (Priest JA, with whom Ferguson CJ and Whelan JA relevantly agreed).

D.4 Delay, rehabilitation and character

The delay between the date of your offending and you being charged is significant. The prosecution has properly conceded that the delay has had the effect of causing this matter to hang over your head for more than 16 years. Your counsel submitted that the state of uncertain suspense you have experienced as a prime suspect throughout this time has caused you anxiety and stress.[42] I accept that the delay has been onerous for you and I have taken this mitigating factor into account in determining the appropriate sentence to impose on you.
[42]Mackie v The Queen [2022] VSCA 28, [33]–[34] (T Forrest and Walker JJA).
That being so, the delay cannot simply be characterised as undue and nothing more in circumstances where you took active steps to conceal your involvement in Ms Howell’s murder. Clearly, the delay in this case has had a significant toll on Ms Howell’s family and friends.[43]
[43]Compare R v Hague [2018] VSC 323, [41] (Lasry J).
Turning now to your prospects of rehabilitation, I accept your counsel’s submission that need for community protection and specific deterrence is lowered in circumstances where you have not engaged in any violent reoffending in the 16 years since you murdered Ms Howell.[44]
[44]Bromley v The Queen [2018] VSCA 329, [52] (Kyrou and Niall JJA).
However, it cannot be said that you fall to be sentenced as a man of otherwise unblemished character.[45] On 10 May 2018, you pleaded guilty to serious child sexual offences.[46] The offending the subject of those convictions predated the murder of Ms Howell. Later, on 12 January 2022, you were fined in the Magistrates’ Court of Victoria for failing to comply with your reporting requirements under the Sex Offender Registration Act 2004 (Vic). I accept your counsel’s submission that due to the nature of your prior offending, you may require additional protections in custody which may in turn make your experience in custody more burdensome.
[45]Sentencing Act, s 5(2)(f).
[46]You were sentenced to 2 years and 4 months’ imprisonment, which was wholly suspended for 3 years.

E. Sentence

Taking each of the matters referred to above into account including those in your favour, and balancing the factors set out in the Sentencing Act as best as I am able, for the murder of Joanne Howell, I sentence you to 24 years’ imprisonment. I fix a period of 19 years’ imprisonment as the period you must serve before you become eligible for parole.[47]
[47]Sentencing Act, s 11(1)(b).
Pursuant to section 18 of the Sentencing Act, I declare that 302 days of imprisonment, not including today, have been served by way of pre-sentence detention. This period is to be reckoned as a period of imprisonment already served.[48]
[48]Sentencing Act, s 18(1) and (4).

F. Ancillary orders

Disposal orders will be made substantially in the terms sought by the prosecution. I note that these orders were not opposed by your counsel.
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[2023] VSC 707

29 November 2023