Director of Public Prosecutions v Kurera
[2024] VSC 809
•19 December 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2023 0067
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| DINUSH KURERA | Accused |
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JUDGE: | Fox J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 December 2024 |
DATE OF SENTENCE: | 19 December 2024 |
CASE MAY BE CITED AS: | DPP v Kurera |
MEDIUM NEUTRAL CITATION: | [2024] VSC 809 |
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CRIMINAL LAW — Murder — Common assault — Convicted by jury — Offender attended family home late at night in breach of an intervention order and in possession of a hatchet, a tin of petrol and a lighter — Offender ambushed deceased on rear patio — Teenage children tried to intervene — Son ran for help and was struck twice by offender with the hatchet in the course of fleeing the house — Offender then killed deceased in the kitchen using hatchet and a knife — Daughter present during fatal attack on her mother and pleaded with offender to stop — Brutal and vicious attack — Murder not premeditated but confrontation planned — High moral culpability — No remorse — No prior convictions but some history of domestic violence — Poor prospects of rehabilitation — Standard sentence offence — Total effective sentence of 37 years’ imprisonment with a non‑parole period of 30 years’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M Gibson KC, with Mr P Pathmaraj | The Director of Public Prosecutions |
| For the Accused | Mr J Desmond, with Ms S Stanley | KPT Legal |
HER HONOUR:
Introduction
Dinush Kurera, you were found guilty by a jury of the murder of your wife, Nelomie Perera, and the assault of your teenage son, Deaken Perera.
Late at night on Saturday 3 December 2022 and in breach of an intervention order, you attended the family home where your wife and children were living. You had with you a jemmy bar, a hatchet, a tin of petrol and a lighter. You lay in wait and ambushed your wife when she unlocked the back door and went outside for a cigarette, striking her to the head with the hatchet. Her screams brought your two teenage children downstairs. Over the next 14 minutes, they tried in vain to reason with you and save their mother. At one point, your son ran from the house to get help, whereupon you chased him and struck him twice with the hatchet in a failed attempt to prevent him leaving. You savagely attacked Nelomie in the kitchen using the hatchet and a knife you had obtained from a kitchen drawer. Your daughter, Ayisha, pleaded with you to stop, but you did not stop. Ayisha said the last image she has is of you stabbing and hitting her mother with the hatchet and the knife. Her mother looked up at her from the kitchen floor and said, ‘I’m dead’. Ayisha then ran from the house.
The maximum penalty for murder is life imprisonment. The maximum penalty for common assault is five years’ imprisonment.
The offending
Nelomie was 43 years old at the time of her death. She was born in Sri Lanka and her family immigrated to Australia when she was aged 10. You are also from Sri Lanka. You and Nelomie met around 1999 and commenced a relationship. At the time Nelomie had a young baby son, Adam, and you took on the role of father to Adam. In February 2005, your son Deaken was born. You and Nelomie married a couple of months later. In May 2006, your daughter Ayisha was born. Deaken was 17 years old and Ayisha was 16 years old at the time of these events.
In 2014, your family moved into a house in Wodalla Circuit, Sandhurst. You had built this house, or at least helped build it, and regarded it as yours. In 2016, you purchased a business and by 2018 that business had failed. On 12 August 2019, the title to the Sandhurst house was transferred from your name into Nelomie’s name. It may be she did this without your knowledge, but whether she did or not is irrelevant. What is relevant is you believed she had, and this became a source of tension in the months before her murder.
Following the failure of your business, you would frequently travel to Sri Lanka. You had family there and plans to build a hotel. In September 2021, Nelomie learned you were having an affair with a woman in Sri Lanka. She confronted you, but you said you were only talking to the woman and promised to stop. You broke that promise and for a short period, you left the Sandhurst house and moved in with Nelomie’s brother. In late 2021, you returned home, and you and Nelomie tried to work things out. Throughout 2022, Nelomie continued to suspect that you were still having an affair with the woman in Sri Lanka. On 1 August 2022, you travelled back to Sri Lanka. Before you left and without your knowledge, Nelomie installed a tracking application on your mobile phone. Through this, she learned that your affair was continuing.
Nelomie again confronted you about your affair. In a phone call on 13 August, which she recorded in part, she said she could not live with you anymore but hoped you could stay friends. You told her you did not want a friend and she was still your wife.
Nelomie set about preparing to leave you. She told you that she had had enough and would not take you back. She wanted a divorce and the marriage was over. On 23 August, you and Nelomie spoke again on the phone. You argued about the divorce and the Sandhurst house. You told Nelomie that she should move out prior to the settlement because it is your house. You said you were not going to go and stay somewhere else, telling her ‘that’s my house, I built it’. Following the phone call, you sent Nelomie abusive and threatening text messages, including telling her to ‘fuck off bitch’. You said you still wanted to work out any problems with her and ‘settle this the nice way’, but if she ‘acted stupid’ you could not handle that and she should decide what she wants to do.
The next day, Nelomie went to the Frankston Police Station and reported her concerns. In her police statement, she wrote: ‘I am really terrified that he might try to do something when Dinush comes back to the country … Dinush might try break into the house and put myself in danger’. She was right to be terrified. Police applied for a family violence intervention order on her behalf and also provided her with information about family violence support services.
On 29 August, Nelomie attended a family violence service seeking support and advice. On 30 August, she had the locks on the Sandhurst house changed. On 12 September, she completed a risk assessment. Nelomie said she was ‘5/5’ fearful of you and believed you were capable of seriously harming or killing her. She also arranged to rent a storage unit and, after being placed on a waiting list, a unit became available in late October.
On 15 September, Nelomie was allocated a family violence support worker, Ms Hannah. Ms Hannah helped Nelomie develop a safety plan. Nelomie told her that you had previously taken her mobile phone away, which left her unable to communicate or call for help. Ms Hannah then assisted Nelomie to obtain a personal safety device or safety watch which she could activate in an emergency. Once activated, an emergency signal is sent to a control room. The operator can dial into the device and listen to see if it is an emergency situation. A recording of the audio commences as soon as the operator dials into the device. Police can then be notified in the event of an emergency. Ms Hannah had a number of conversations with Nelomie throughout September, October and November. In those conversations, Nelomie expressed her fears about what you might do when you returned to Australia.
Nelomie’s safety plan consisted of more than the safety watch. She had a room in the house which could be locked from the inside and if you attended, she could take the children in there and call the police. She was ensuring all her windows and doors were locked. She had set up a code word with her family and if she sent that code word via text, they would understand she was in danger and should call the police. She asked her neighbours to alert her if they saw you near the property. She made sure there was enough petrol in her car in case she needed to leave suddenly. Nelomie also spent time with friends and started moving on with her life. She dated a man, Thum, for a short time. The relationship ended after a few weeks but they remained friends.
Nelomie was committed to leaving you and wanted you to know that. On 27 September, she sent you a message saying ‘I want a divorce, I am not going to live my life afraid of you anymore’. On 12 November, she found details of your flight booking and learned you were due to land in Australia on the morning of 1 December 2022. She provided this information to police, who arranged for you to be ‘flagged’, meaning a red flag would come up as you passed through immigration and you would be served with the intervention order.
Around 28 or 29 November, you spoke with your friend, Jagath. You told Jagath about Nelomie’s decision to separate and said you were not allowed to go back home. Jagath said he would find you somewhere to stay and collect you from the airport. Meanwhile, Nelomie moved your belongings into the storage unit and went over her safety plan with Ms Hannah. She planned to put your car key and the storage unit key in the mailbox so you could access those items without needing to enter the house. She made sure there was fuel in your car so you could drive it away. At 7:10pm on 30 November, Nelomie sent an email to the AFP at Melbourne Airport. She said she was making them aware that she had taken out an intervention order against you as she was ‘terrified of what might happen tomorrow’.
On the morning of 1 December, you arrived into Melbourne Airport. As you passed through immigration, you were taken aside by members of the AFP and served with the intervention order. The conditions were read to you. You were specifically told by AFP officers that you were not to go to the Sandhurst house. You said words to the effect of ‘that’s my fucking house, where am I supposed to go now?’ Jagath gave evidence that you were upset and sad when he picked you up. You told Jagath that you did not understand why Nelomie was doing this to you. You did not like the room he had arranged so Jagath took you to his house instead. You were upset and crying about your own situation.
On Friday 2 December, Jagath took you to see his lawyer. The lawyer explained the intervention order and the importance of not attending the Sandhurst house unless in the company of police. You also discussed a divorce settlement with the lawyer. Later that afternoon, you went to the Carrum Downs Police Station and said you needed to attend the Sandhurst house. Police prioritised the matter because you told them you needed your medication. They immediately accompanied you to the house. Once there, you collected the keys from the mailbox and then drove your BMW vehicle to the storage unit. Apparently you could not find your medication in the unit. Jagath went with you and said you were upset with the state of the storage unit. You said words to the effect that you had built a house with many rooms but look at what has happened to you now.
On Saturday 3 December, Nelomie went Christmas shopping with her sister Minoli, Ayisha and Deaken. After they finished shopping, Nelomie dropped the children home and then she and her sister went to their brother’s house. Nelomie left at around 8:30pm or 9:00pm and made Minoli walk her out. Nelomie said she was very scared that you would come to her brother’s house and cause trouble, and she was also very afraid you were following her. Minoli watched her sister get into her car. That was the last time she spoke to her or saw her alive.
By 3 December, your self‑pity was changing to anger. You woke late and told Jagath that you needed to attend your family doctor and obtain a prescription for your medication. You left Jagath’s house at midday. At around 3:00pm, you arrived at the Fountain Gate Shopping Centre. Jagath spoke with you on the telephone; you told him that you had been unable to get your medication because the medical centre was closed and you were now at the shopping centre to try and clear your head. Jagath recalls telling you not to hang around the shopping centre as it is close to the Sandhurst house. He suggested you go instead to Chadstone or Dandenong. You ignored his suggestion.
At around 4:20pm, you entered the Bunnings store in Narre Warren where you selected and purchased a jemmy bar and a small fibreglass hatchet weighing 450 g. You messaged Jagath that you would be home late. You then went and watched a movie at the cinema. Shortly before 10:00pm, you attended at a United petrol service station wearing a dark t‑shirt, black pants, a black cap and black shoes. You purchased a 10 litre plastic jerry can which you filled with fuel and a cigarette lighter. You then drove and parked your car in McCormicks Road, approximately 550 m from the rear of the Sandhurst house. At 10:12pm, you were captured on CCTV footage, walking towards the back fence of the Sandhurst house carrying a reusable bag that you had purchased earlier in the day. The petrol was inside that bag.
Once at the fence, you donned a pair of black gloves. You used the jemmy bar to remove four fence palings and entered the backyard at around 10:30pm. You remained outside in the darkness and lay in wait for almost an hour. Your opportunity came when Nelomie unlocked the rear sliding door and went onto the rear deck to smoke a cigarette. You ambushed her and struck her to the head with the hatchet. Ayisha was upstairs talking to a friend and we know from the timing of that call that Nelomie screamed at 11:25pm. Her loud screams brought Deaken and Ayisha downstairs. They both saw you, dressed in all black and wearing black gloves, holding the hatchet around head height. Their mother was low down next to you and Ayisha described her as trying to get up from the ground. The crime scene photographs showed a pool of blood and a packet of cigarettes in the area where Nelomie would have been. You told your children that if they tried to run and leave you would set the house on fire and kill everyone, including you.
Deaken and Ayisha did everything they could to save their mother. They both displayed remarkable maturity and bravery as they tried to diffuse the situation. Ayisha placed her phone on the hallway floor before moving further forward. She came and hugged you in an effort to move you away from her mother and place herself between you. You were demanding Nelomie’s phone. Deaken yelled at her to give it to him and, when she did, he threw it away hoping you would forget about it. Nelomie was bleeding from the head and asking for an ambulance. Your children finally convinced you to let their mother go to the bathroom.
You then made your children sit on the couches and talk. You still had the hatchet with you. You asked your children if they would live with you, and Ayisha asked why they would want to live with you when you were threatening their mother with an axe. At this point, you placed the hatchet behind you but still close by. You were complaining about how your life had been ruined by Nelomie. Nelomie returned from the bathroom and sat in the couch area on a recliner chair. You asked Deaken if his mother was being a whore and Deaken said she had been speaking with several people. This provoked you to get up and swing the hatchet at Nelomie, stopping short of striking her. In the course of the conversation you did this around three times, and each time Ayisha also rose and placed herself between you and her mother.
Nelomie brought up the fact that you had been cheating and you flew into a rage. You stood up and struck Nelomie with the hatchet while she sat curled in the recliner chair. Deaken then ran towards the rear sliding doors and you chased him. You caught up to Deaken as he struggled with the door and struck him to the head with the hatchet. Deaken managed to open the door, but you hit him again to his shoulders and he fell to the ground on the outside deck. He grabbed a chair and tried to shield himself from you. You swung the hatchet again and struck Deaken’s left knee. Nelomie had rushed after you to protect her son. She dragged you away and this gave Deaken the chance to run down the side of the house and escape. Nelomie can be heard yelling, ‘Deaken, run Deaken’ and ‘get off him’ on the safety watch recording.
It is unknown precisely when Nelomie activated the safety watch. The operator received an event notification at 11:36pm. The time between the watch being activated and the recording starting was approximately 20 seconds. The recording itself lasts for 1 minute and 28 seconds but the total time between the operator receiving the event notification and the recording disconnecting was 2 minutes and 41 seconds. The audio went silent at 11:39pm, after the watch was destroyed by you in the course of your frenzied attack. Pieces of the safety watch were later found on the kitchen floor.
The recording itself is harrowing. It captures the last moments of Nelomie Perera’s life. After she tells Deaken to run, you call her a ‘worthless cunt’. She then starts screaming for help. Nelomie screams ‘help’ or ‘help me’ 20 times. Ayisha can be heard screaming and saying ‘please, please, dad please’. She is pleading with you to stop and telling you she loves you. You tell Ayisha ‘stop, I’ve got nothing left to lose, get out of here’. Ayisha starts to speak and the recording abruptly ends.
Ayisha witnessed much of what you did. After Deaken ran, Ayisha collected her phone and went to the small downstairs bathroom. She tried unsuccessfully to call 000. She could hear Deaken screaming and then heard her mum scream for help. Ayisha said in evidence that she immediately left her phone and ran out because she wanted to help her mum, if she could. When she reached the kitchen, which was only a few steps away, she saw you standing over her mother who was on the floor. There was a big puddle of blood. You had the hatchet in one hand and you were trying to open the knife drawer with the other. Ayisha closed the drawer on your fingers but you told her to stop and grabbed a 30 cm knife from the drawer. You then continued to hit and stab Nelomie with the knife and the hatchet. Ayisha decided to grab a knife herself. She contemplated stabbing you in the back but was worried she would get into trouble. She also felt like her mother was going to die either way and she did not know what else to do. Your attack continued and Ayisha either dropped the knife or put it on the bench — she cannot remember which — and her mother started saying that she was dead. At that point, Ayisha fled out the front door. She rushed to the neighbours and told them that her dad has an axe and a knife and is killing her mother.
Police arrived on the scene and entered via the rear door. You were in the downstairs bathroom having soiled yourself. The police waited for you to emerge from the bathroom and you were immediately arrested. You told police, ‘I killed my wife, she is dead over there’. You said she tried to stab you and bit your finger. You told police the house was yours and your wife was ‘fucking with other people’.
Nelomie was declared deceased at the scene by ambulance officers. You were examined by a paramedic and found to be entirely uninjured. During that time, you said you did not want to live anymore and asked the paramedic to just finish you off. A few minutes later, you said ‘this bitch kicked me out from my own house — the bloody kids. I’m living in the fuckin’ car, what else you want me to do. I have no one. The only family I have, she fuckin’ with other people. You think I’m gunna be okay?’ This was captured on police body worn camera footage. You were taken to hospital for observation due to concerns about your heart rate, diabetes and blood pressure. You were then conveyed to the Dandenong Police Station and interviewed. You said Nelomie had pushed you over, and complained that your hand was numb. You denied striking Deaken and said he had just fallen over. You claimed you had not harmed anyone.
Deaken was treated by an ambulance officer at the scene and conveyed to hospital. He suffered a 3 cm long laceration to the back of his head which was closed with three staples. A later CT scan showed he had suffered bruising in the area around the injury. He had a 1 cm long superficial cut to his left kneecap which required one stitch. He also sustained abrasions to his shoulders and chest.
An autopsy was conducted on the deceased the following day. There were at least 35 separate penetrating injuries to Nelomie’s body caused by a heavy but sharp weapon. One blow or swing could have caused more than one injury, so it is not possible to be exact about the number of times you struck her, but it was somewhere between 26 and 35 times. The cause of death was head and neck injuries. Most of the significant head and neck injuries were caused by the hatchet and the force you used to inflict those injuries was severe. There were multiple fractures to the face and underlying bone, including the skull which is the hardest bone. The brain itself was damaged and the carotid artery had been severed. There were defensive type injuries on her hands and forearms, suggesting Nelomie had tried to shield herself from your blows.
Your defence at trial never rose above hopeless. You gave evidence and tried to claim you were acting in self‑defence. The jury rejected your account beyond reasonable doubt. You admitted attending the property in breach of an intervention order and provided ridiculous explanations for taking the hatchet, tin of petrol and lighter with you. The prosecution case was overwhelming and there were three matters in particular you could never overcome: the number of injuries you inflicted on Nelomie, the safety watch recording, and the evidence of your children. Ayisha and Deaken were both impressive, honest and credible witnesses.
The point at which you determined to kill Nelomie was an issue on the plea hearing. The prosecution submitted that you determined to kill her at the time you commenced striking her while she was seated in the recliner chair. Your actions were interrupted by Deaken running from the house and, after he escaped, you resumed your murderous attack on Nelomie. Your counsel submitted the court should find that you did not form murderous intent until after Deaken had fled and sought to characterise your offending as ‘spontaneous’. Another issue that arose was whether your offending is deserving of life imprisonment. For these reasons it is necessary to set out in more detail the factual matters I am satisfied of beyond reasonable doubt for the purpose of sentencing.
You formed your plan to attend the Sandhurst house during the afternoon of 3 December. You purchased the jemmy bar to remove the rear fence palings. You purchased the hatchet for the sole purpose of using it as a weapon to threaten, scare or potentially harm Nelomie. The petrol and lighter were purchased later but for the same reason. You watched a movie to pass the time, and waited until it was dark before you broke onto the property to reduce the risk you would be seen by neighbours or passersby. I reject your evidence that the reason for going to the Sandhurst house late at night and in breach of an intervention order was to obtain your medication and see your children. Your evidence about this was entirely implausible. The intervention order did not prevent you contacting your children and if you had genuinely wanted to see them, you could have made lawful efforts to do so. If you had really needed your medication so badly, you could have obtained a prescription on the Thursday, or the Friday, or attended a different clinic on the Saturday. You could also have used telehealth and obtained a prescription over the telephone. I accept, consistent with the prosecution case, that you did not attend the Sandhurst house with the intention of killing Nelomie Perera. However, I am satisfied that you intended to physically confront her, threaten her and potentially assault her in some way.
It is not known exactly what occurred once Nelomie stepped outside. She would have been completely terrified to see you and I do not accept your evidence that there was any discussion between you, given you were holding a hatchet and had planned to confront her. Probably one of the few truthful things you have said was in your record of interview, when you told police that she started yelling when she saw you. I am satisfied that whatever occurred, you quickly determined to assault her and struck her to the side of her head with the hatchet. The pool of blood and cigarette packet are located just inside the rear sliding door, which suggests you struck her as she was trying to return to the house. The arrival and intervention of Deaken and Ayisha thwarted any further assault by you at this point. You told them you had poured petrol around the house and would set fire to it and kill everyone, including yourself, if they tried to leave or call the police. You deny saying this but I am certain you said it. The bag containing the petrol was outside where you had placed it prior to striking Nelomie and neither Deaken nor Ayisha knew you had that item. You were controlling everyone through threats and intimidation. You did not remove your gloves and you did not relinquish the hatchet.
You flew into a rage after Nelomie, who was still seated in the recliner chair, brought up the topic of you cheating with the woman in Sri Lanka. I am satisfied of this for two reasons. First, at this point, Deaken described seeing an anger in you that he had never seen before. The ferocity of your assault on his mother is what caused him to run. Secondly, Ayisha no longer felt able to step between you and her mother because you were so angry she was worried that, if she did, you might hit her too. When she was in the downstairs bathroom trying to call for help, she locked the door in case you tried to find her. Your children were clearly terrified of you at this time. However, I am not able to conclude to the criminal standard that you had formed murderous intent at this point. You probably had but, within seconds, your focus shifted and you chased Deaken.
Your claim that Deaken just fell over and this is what caused his injuries was frankly unbelievable. You struck Deaken twice with the hatchet, including to his head. I accept the assault was spontaneous but it is an extremely serious example of common assault. You used a weapon, the victim was your own child and you struck him to a very vulnerable part of his body, namely his head. You deliberately attacked him in an effort to stop him calling the police, because if police or even neighbours arrived, you knew they would try and restrain you and police would arrest you.
After Deaken escaped, you resumed your fatal attack on Nelomie. I am satisfied that by this stage you intended to kill her. You were likely even more enraged given she had physically intervened and helped Deaken escape. The blood smear mark shows you dragged her from near the back door to the kitchen area. You picked up a second weapon, the knife, stood over her and repeatedly struck her until she was dead. I am satisfied that Nelomie never picked up a knife on this night. Ayisha was clear that her mother never had a knife. There was no opportunity for Nelomie to obtain a knife, given she ran from the recliner chair to outside, after which you commenced attacking her just inside the rear sliding door. She was unarmed and utterly defenceless.
Your offending cannot be described as spontaneous. The murder itself was not premeditated but the confrontation was well‑planned. You maintained possession of the hatchet throughout the approximately 14‑minute ordeal. You had ample time during the course of the afternoon and evening to reconsider your plan. After initially assaulting Nelomie, you had another opportunity to come to your senses when your children arrived downstairs. After chasing Deaken outside, you could have stayed outside or even left. In the final moments, you were unmoved and undeterred by Ayisha’s presence and her pleas for you to stop.
This is a very serious example of murder. Nelomie was in her own home where she should have been safe. Her final moments would have been truly terrifying, and the fear can be heard in her voice as she screams for help. Your counsel submitted this was a ‘relatively short incident’ but it was not a single blow or stab wound. You brutally attacked her for at least a minute, based on the safety watch recording, and that does not capture the whole attack. You killed her in front of 16‑year‑old Ayisha, who witnessed much of the horrific scene which unfolded in the kitchen. Nelomie was still alive through much of your attack and she knew she was about to die. Her last words to her beloved daughter were ‘I’m dead’. Your moral culpability is extremely high. You were motivated by anger and saw everything through the prism of entitlement and ownership: she was your wife, that was your house and they were your children. In your mind, Nelomie Perera deserved to be killed for leaving you, excluding you from your house and seeing other men.
Victim impact
I have received and read 27 victim impact statements. Nelomie’s mother, brother, sisters, children, extended family and friends are all devastated by her death.
Adam, the eldest of Nelomie’s three children, has felt great pain and anger since his mother’s death. He is disgusted by your cowardice. His mother was his best friend and closest confidante. She knew everything about him, from the best to the worst. He expects he will forever carry a level of resentment, anger, sadness and loss.
Ayisha said that her mother was her best friend and someone she could tell anything and everything to. Having you kill her mother in front of her will haunt her forever. She has difficulty sleeping and feels unsafe and paranoid in her own house. The vivid image she has of her mother and her last moments will always be in the back of her mind. The family has been disrupted; she misses living with her brothers and worries about them. Her mother will not get to see any of her future accomplishments and milestones, such as her graduation or her wedding. She misses her mother so much and every plan they had is gone forever. If she could ask for anything in the world, it would be one last hug from her mother.
Deaken never saw a life without his mother, who has been taken from him. He misses her company and spending time with her, and feels numb and sad when he thinks about his mother not being here. She was the only person he could truly trust. She would cheer him up if he was depressed and calm him down if he was angry. He misses the comfort and guidance she provided and he misses joking around with her. He has feelings of drowning, anger and frustration. He feels anger and hatred towards you for betraying his trust and killing his mother.
I will not refer in detail to the balance of the victim impact statements. When I read them, I was struck by three common themes that emerged. First, the fact and manner of Nelomie’s death has caused overwhelming grief, sadness, heartache and a profound sense of loss. She was much loved by her mother, siblings, extended family, friends and everyone who knew her. They all describe a loving, caring person and a devoted mother. Nelomie’s friends and family are utterly devastated by her death and their grief is ongoing.
Secondly, many wrote of how they feel they failed her somehow, or should have been able to save her. They did not fail her. The reality is Nelomie’s friends and family did everything they could to protect her, love her and care for her. No one but you is to blame for her death.
Thirdly, a prominent common theme is anger; anger that this happened, anger that it was somehow allowed to happen and anger that, despite everything, her death could not be prevented. This reflects the deep anger felt by the broader community who are rightly sick and tired and angry at the number of men who kill women in circumstances of domestic violence.
Personal circumstances
You are 47 years old. You have no prior convictions. You do have a minor prior court appearance for shop theft dating back to 2000 but that is of no relevance when sentencing you today. You completed the equivalent of Year 12 in Sri Lanka and commenced studying information technology (‘IT’). You came alone to Australia in 1997 on a student visa to continue those studies and attended Holmesglen TAFE, completing certificate levels III and IV in IT. You are now an Australian citizen.
After forming a relationship with Nelomie, you commenced working to support her and Adam. You worked with a car manufacturing company for approximately seven years making car components. You then worked briefly at a Coca Cola factory but struggled with night shifts and ceased that work. Following this, you worked as a contractor for Australia Post for approximately 10 years. You attempted a number of business ventures which failed and you also worked as a bus driver for some time.
You are the middle of three boys and your siblings reside in Sri Lanka. Your parents are both alive and also living in Sri Lanka, but their health is frail. During your childhood, you were close with your mother but your father was often working overseas for extended periods of time. Your parents would often verbally argue but you never witnessed any physical abuse or violence between them. Your father was a strict disciplinarian and drank heavily at times, but it is not suggested you were exposed to violence at home as a child. There was a great deal of civil unrest in Sri Lanka and you recall being afraid of bombings occurring at school.
You have a history of depression which has been treated with medication. You currently suffer from anxiety and depression, hypertension and type 2 diabetes. All these conditions are being appropriately managed in custody and you receive the necessary medication. You claim to have been abused by other prisoners at times, in particular because of the violence you perpetrated on your own son, but you are housed in mainstream prison. Whatever abuse you have experienced has not necessitated moving you to protection. You were assaulted once during the course of the trial while in a holding cell but there is nothing to suggest the assault was connected to the trial or your crimes. You were treated with mild analgesics and the trial was able to continue.
Your counsel submitted I should find, on balance, that you are a person of previous good character. I accept you have no prior convictions but, as has been said before, the question of your character is entirely different.[1] There is some history of domestic violence. In 2013, you were living in a house in Lynbrook. Adam gave evidence of an argument in 2013 during which you pushed his mother over, and then grabbed a knife and threatened to slash the car tyres. Minoli gave evidence that on another occasion in early 2013, she saw her sister Nelomie with bruises and struggling to walk. Nelomie told her that you had struck her with a hammer. On 30 March 2013, police were called to the Lynbrook house and Nelomie reported that you had assaulted her. She later signed a statement saying she did not want to pursue the complaint. I am satisfied you were violent in the ways described by Adam and Minoli in early 2013 but I make clear that you are not to be sentenced for that conduct. There was also evidence, which I accept, that you threatened to kill Nelomie over the telephone around late August 2022. After that time, she blocked you on social media and there was little further contact.
[1]R v Basham [2023] VSC 79, [95] (Taylor JA) (‘Basham’).
There is no evidence of any domestic violence during the nine years prior to August 2022, and some evidence that you seemed happy at times. In the course of the 13 August telephone call, Nelomie herself refers to you sitting together almost every night during lockdown listening to love songs. She reminds you she had not wanted you to go to Sri Lanka because she was worried the affair would resume.
Your offending was not an isolated instance of family violence, but nor is this a case where there was a pattern of substantial and repeated episodes of family violence. You are entitled to the benefit of having no prior convictions but overall, on the material I have, I would not describe you as being of good character prior to this offending. I also note that I have absolutely no positive evidence of good character and not a single character reference was tendered on your behalf.
More significantly, you are entirely without remorse. You do not accept the jury verdict, despite the overwhelming strength of the prosecution case and the jury’s clear rejection of your evidence. At trial, and in your evidence, you blamed Nelomie and sought to portray her as unstable. Your children were cross‑examined extensively and accused of lying. You have expressed no sympathy or empathy for what they have endured or for killing their mother. You must not be punished for running a trial,[2] but these matters reveal you are entirely without remorse, insight or even regret.
[2]Defence conduct, including the impact of cross‑examination on victims, must not be treated as an aggravating factor when sentencing, even if the defence have presented a time‑wasting or scurrilous defence: see R v Kolicic [2007] VSCA 87 and the cases referred to therein.
Your comments in the recorded prison calls show that you continue to blame Nelomie for your actions. Many of your comments are a combination of ‘she deserved this’ and ‘look what she made me do’. You refer to her using coarse and demeaning language. You discuss with Jagath how the separation could have been handled ‘nicely’ and if she had done what she was told, she would not have died and you would not be in prison. You repeat those sentiments, including stating:
·‘You tell my parents what was done to me, this would not happen without cause’.
·‘She was cheating and got intervention order to stop me coming to my own house, cannot be tolerated’.
·‘A woman should remember and respect how she was treated, if you want a divorce, will divorce, you take your share, you do not do this kind of thing … She has also gone to some place regarding family violence and used the system cleverly. She knows the system’.
·‘I have helped those fuckers [referring to Nelomie’s family] so much, what happened has happened. [Nelomie] was not a saint, done all the dirty things to me’.
Assessing a person’s prospects of rehabilitation when they are facing a lengthy prison sentence is always difficult. Given your current attitudes and lack of remorse, your prospects of reformation and rehabilitation are fairly characterised as poor. You are now aged 47 and you will be very much older before you are eligible for parole. There is some need for any sentence to deter you personally from further offending, but given your age, the weight to be afforded to that purpose is reduced.
Consideration
The standard sentence for murder is 25 years’ imprisonment.[3] It 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 the offence.[4] Here, the head sentence will be greater than the standard sentence for the reasons I have been through. The real question to be considered is whether a life sentence should be imposed on the charge of murder. A life sentence has been described as a ‘truly dreadful sentence’,[5] reserved for cases falling within the worst category of the crime of murder. When determining whether an offence is of the worst type, both the nature of the crime and the circumstances of the criminal must be considered.[6] As the High Court has stated, the fact that it is possible to imagine an even worse instance of the offence does not mean the offending under consideration does not fall within the ‘worst category’.[7] I would add to that, the fact that it is possible to point to an earlier sentencing decision where the offending was worse does not mean the offending under consideration is incapable of falling within the ‘worst category’.
[3]Crimes Act 1958 s 3(2)(b).
[4]The standard sentence regime is established by s 5A of the Act. The principles to be applied are set out in Brown v The Queen (2019) 59 VR 462. Fixing of non‑parole periods for standard sentence offences is governed by s 11A of the Act.
[5]Shaptafaj v The King [2023] VSCA 91, [57] (‘Shaptafaj’).
[6]R v Kilic (2016) 259 CLR 256, 265 [18] (‘Kilic’).
[7]Ibid.
Both parties referred me to a number of previous sentences for murder, many of which occurred in circumstances of family violence. I have had regard to the cases provided by both parties but there is little to be gained from detailing those decisions or identifying the different factors that are or are not present. There is no single factor which determines the appropriate sentence. In the context of sentencing, no two cases are identical, and each sentencing decision ultimately turns on its own unique facts. [8]
[8]Fares v The King [2024] VSCA 108, [216].
One of the most aggravating features of your offending is that it occurred in the presence of your children. It was a shocking breach of trust as both a husband and a father. It is hard to comprehend how you were not moved to lay down your weapon and leave once your children arrived downstairs. It is even harder to comprehend how you could ignore the pleas of Ayisha and brutally kill her mother in front of her. You displayed a callousness and cruel disregard for your own children and you still maintain that they are not telling the truth when they most certainly are. As I have been through, the murder itself was not premeditated but the confrontation was planned. There is nothing in your post‑offence conduct that aggravates your offending. The police arrived very quickly and arguably there was no time for you to do much at all but, nonetheless, you did not flee the scene or attempt to destroy it. You have no criminal history and while there is a history of family violence, it dates back to 2013. On the evidence I have, it cannot be said that your act of murder was the culmination of years of continuous, serious family violence.
The High Court in The Queen v Kilic (‘Kilic’) discouraged the use of the expression ‘worst category’ but it is difficult to avoid. I appreciate that for anyone listening, if a crime is not said to be in the worst category, it may seem the court is underestimating the seriousness of the crime. I want to stress that this is not what is occurring. This was serious, brutal and terrible offending, and the impact on all the victims has been devastating. However, in sentencing, it is necessary for me to consider and then state whether the offence is or is not so grave as to warrant the maximum penalty.[9] In my view, for all the reasons I have been through, this is a very serious murder but not one that is so grave that it warrants a life sentence.
[9]Kilic (2016) 259 CLR 256, 266 [20].
While much of the focus of these reasons has understandably been on the charge of murder, the seriousness of your assault on Deaken must not be overlooked. While both offences occurred as part of the one incident, your decision to deliberately chase and assault Deaken constituted distinct offending, giving rise to separate criminality. It is an extremely serious example of common assault. Taking into account the principle of totality, a portion of the sentence on charge 2 must be cumulated.
General deterrence and denunciation are both very important sentencing considerations. Serious violence continues to be committed by men against their female partners or former partners. Too often, as here, it is motivated by anger, jealousy and a sense of entitlement. Nelomie had every right to leave you, see whoever she liked, and remain in the Sandhurst house while the separation occurred. She understood, better than anyone, the danger she was placing herself in by taking such actions. Just over one week before she was killed, police attended at the Sandhurst house looking to serve the intervention order on you. Nelomie was home but you were still in Sri Lanka. Nelomie told police that, with or without an intervention order, she believed you would kill her when you got back home. Tragically, she was proved right. She had tried in vain to protect herself, including with a court order and a safety device, but you blatantly ignored that order and killed her in her own home. This was a very serious example of murder committed against an innocent woman who was just trying to escape from her life with you.
On charge one, the charge of murder, you are sentenced to 36 years’ imprisonment.
On charge two, the charge of common assault, you are sentenced to four years’ imprisonment.
I direct that 12 months of the sentence on charge two be served cumulatively on the sentence on charge one, making a total effective sentence of 37 years’ imprisonment.
I fix a non‑parole period of 30 years’ imprisonment.
I declare you have served 746 days by way of pre‑sentence detention, such period to be reckoned as time already served under this sentence.
I make the disposal order sought by the prosecution.
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