Director of Public Prosecutions v O’Connell (No 5)

[2024] ACTSC 17

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v O’Connell (No 5)

Citation: 

[2024] ACTSC 17

Hearing Date: 

11 December 2023

Decision Date: 

7 February 2024

Before:

Baker J

Decision: 

(1)   For the offence of murder (CC2022/4316), the offender is convicted and sentenced to a term of imprisonment of 15 years, commencing on 15 April 2022 and expiring on 14 April 2037, with a non-parole period of 10 years.

(2)   The offender will first be eligible for parole on 14 April 2032.  

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – murder – murder by way of reckless indifference – victim fell from bonnet of offender’s vehicle while he was driving – findings of fact related to specific aspects of driving – application of principles in R v Olbrich [1999] HCA 54; 199 CLR 270 – other than driving with the victim on the bonnet, no element of furious or dangerous driving – no excessive speed, undue acceleration or braking, or swerving – lack of remorse – reasonable prospects of rehabilitation – limited utility of comparable cases.

Legislation Cited: 

Crimes Act 1900 (ACT), s 12

Crimes (Sentencing) Act 2005 (ACT), ss 7, 33(1), 34B

Family Violence Act 2016 (ACT)

Cases Cited: 

Alseedi v R [2009] NSWCCA 185

Bufton v R [2021] VSCA 228; 97 MVR 190

DPP v Holder (No 2) [2023] ACTSC 167

R v Bidner (Sentence) [2023] NSWSC 880

R v Kutschera [2008] NSWSC 1271

R v Kilic [2016] HCA 48; 259 CLR 256

R v Lee [2017] ACTCA 30

R v MAK [2006] NSWCCA 381; 167 A Crim R 159

R v Massey (ACT Supreme Court, unreported, 28 July 2011)

R v Olbrich [1999] HCA 54; 199 CLR 270

R v Rowe [2019] NSWSC 1592

R v Smith (No 2) [2022] ACTSC 246

R v Smith [2023] ACTCA 23

R v Tuifua [2023] ACTCA 6

R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103

R v Verdins [2007] VSCA 62; 16 VR 269

Parties: 

Director of Public Prosecutions ( Crown)

Michael O’Connell ( Offender)

Representation: 

Counsel

M Smith ( DPP)

J White SC ( Offender)

Solicitors

ACT Director of Public Prosecutions

Legal Aid ACT ( Offender)

File Number:

SCC 251 of 2022

BAKER J:      

Introduction

1․The offender, Michael O’Connell, was charged with one count of murder (CC2022/4316) contrary to s 12 of the Crimes Act 1900 (ACT). In the alternative, the prosecution alleged that the offender was guilty of manslaughter.

2․The offender pleaded not guilty and was tried before a jury from 30 May 2023 to 15 June 2023. On 15 June 2023, the jury found the offender guilty of the offence of murder.

3․The offender now comes before me for sentence.

Background

The offending

4․When sentencing an offender following a jury verdict, the Court is required to find the facts based on the evidence at trial, consistently with the jury’s verdict. Where a particular fact would aggravate the offending, I must be satisfied of that fact beyond reasonable doubt: R v Olbrich [1999] HCA 54; 199 CLR 270 at 281 [27]. Where a particular fact would mitigate the offending, I must be satisfied of that fact on the balance of probabilities: Olbrich at 281 [27]. Bearing these principles in mind, I make the following findings of fact.

5․The offender was in an “on-again, off-again” relationship with Danielle Jordan (the victim). At the time of the present offending, the offender was subject to bail conditions which prohibited him from attending the victim’s home or contacting her.

6․On 14 April 2022, the offender attended the victim’s home at Coutts Place in Melba in the Australian Capital Territory, in breach of these bail conditions. The offender left the victim’s home at about 10:00am, before returning at about 9:00pm. A young friend of the victim was staying with the victim at her home that night. The young friend was 13 years old at the time.

7․At about 2:00am on 15 April 2022, the young person was woken by an argument between the offender and the victim and the sound of smashing. The young person went into the victim’s bedroom. The offender was trying to leave, but the victim was preventing him. At one point, the offender tried to leave through the bedroom window, which was on the ground floor. The victim held his sleeve to try to get him to stay. The offender removed his shirt and jumper and continued to climb out of the window, but then changed his mind and returned to retrieve his clothing. The victim and the offender then had a ‘tug of war’ over the offender’s clothing, during which the offender dragged the victim down the hallway because she would not let go of the offender’s clothing. Shortly afterward, the offender left the victim’s house.

8․At approximately 4:00am on 15 April 2022, the offender returned to the victim’s home and a further argument ensued. The argument continued outside the house. Shortly before 4:40am, the offender got into his car, a black Mitsubishi Triton utility (“the ute”) to drive away. The victim climbed onto the bonnet of the ute and the young person climbed onto the bullbar. The offender left the ute and walked away, before again returning to the vehicle. The victim then dived inside the ute to retrieve a vape, before the offender dragged her out and sat in the driver’s seat. The victim then climbed onto the bonnet of the ute again. The young person was also on the ute, leaning on the window at this time.

9․The offender began to drive away. The young person jumped off the ute, but the victim remained on the bonnet. The offender then slowly drove down Coutts Place towards the intersection of Coutts Place and Alfred Hill Drive. The victim was on the bonnet of the vehicle. The young person was walking backwards in front of the ute as the offender slowly drove the ute forwards.

10․Before it reached the intersection of Coutts Place and Alfred Hill Drive, the vehicle either reversed or rolled back down Coutts Place for an unspecified distance (the ute was a manual vehicle and Coutts Place is on a slight incline). The offender then drove forwards towards toward the intersection of Coutts Place and Alfred Hill Drive and turned left onto Alfred Hill Drive.

11․The young person’s evidence at trial was that the victim remained on the bonnet of the ute as the offender drove around the corner of Coutts Place and onto Alfred Hill Drive. By their verdicts, the jury must have been satisfied beyond reasonable doubt of the credibility and the reliability of the young person’s evidence in this respect.

12․After turning the corner into Alfred Hill Drive, the offender drove the ute down Alfred Hill Drive with the victim on the bonnet for over 200 metres. In view of the expert evidence called in the trial, I am not satisfied that the offender was travelling in excess of speed limit in the area, which was 50 kilometres an hour. Other than driving with the victim on the bonnet of the ute, there was no evidence of any element of dangerous or furious driving present; in particular, there was no evidence of any rapid acceleration or deceleration or swerving on the part of the offender.

13․After approximately 30 seconds of driving, the victim fell from the bonnet of the ute, near the intersection of Alfred Hill Drive and Cade Place. The victim’s head hit the road, resulting in a severe, and ultimately fatal, head injury. The victim sustained abrasions consistent with her falling to the road, but there was no indication that the victim had come into contact with any part of the car as or after she fell.

14․When the victim fell, the offender braked, engaging the Automatic Braking System and causing the ute to rapidly decelerate and stop. When the ute came to a stop, the victim was lying unconscious at the rear of the vehicle.

15․The offender picked up the victim and carried her to the passenger seat of the vehicle. By this time, the young person had run around the corner of Coutts Place down Alfred Hill Drive and was approaching the ute. She heard the offender say something to the effect of “I’m so sorry baby, I love you”. She yelled at the offender, asking him what he had done. The offender apologised and then drove the victim to hospital.

16․The victim was admitted to hospital at 4:51am. The offender gave false accounts to medical personnel, and later, members of the victim’s family concerning how the victim had sustained her injuries. He also told the young person to falsely tell police that the victim had been injured when she fell down some stairs. (The young person did not do so).

17․The victim’s head injuries were subsequently assessed as being unsurvivable, and the victim’s life support was turned off on 17 April 2022.

Victim Impact Statements

18․The Court received two Victim Impact Statements: one from Elizabeth Crump, the victim’s mother, and the other from [redacted], the victim’s daughter.

19․Ms Crump’s statement described the impact of her daughter’s death on her and her granddaughter. She described the decision to cease the victim’s life support as “the hardest decision of [their] lives”.

20․Ms Crump noted that since the victim’s death, her husband has been diagnosed with cancer, leaving her without “time to grieve in a way a parent should be able to”. She stated that “[b]eing everything to everybody is a massive weight of which I get no respite”. She also spoke eloquently about her grief for the loss of the victim’s future – the opportunity for the victim to see her children’s weddings and birthdays, for the victim to become a grandmother, and to “find love with someone who valued her”.

21․Ms Crump also described her grief at the loss of a mother for her three grandchildren (the victim’s children), and particularly emphasised the effect of the victim’s death on her granddaughter, [redacted]. She recalled that [redacted] insists on hugging the victim’s memorial to “give Mummy a cuddle”, something Ms Crump will “never be okay with”; that every night, she and [redacted] “find the brightest star so we can say ‘Goodnight Mummy’”; and that [redacted] “believes that butterflies are her mum checking in on us”. Ms Crump described how [redacted] struggles to be apart from her grandparents because of her fear that something will happen to them. [Redacted] has had difficulty going to school and attending sleepovers, and has started sleeping on her grandparents bedroom floor. Ms Crump said that [redacted] “greatest fear is losing me, if [her grandfather] is no longer here, and being alone with no one to love her…”.

22․Ms Crump stated that she hopes the offender one day has “real remorse” for the loss of the victim.

23․[Redacted] also provided the Court with a statement which powerfully expressed her grief on the loss of her mother. That statement read as follows:

To Michael, my emotions. Frustrated, mad, lonely, sad. I am really upset not only you murdering my mumma, I only got to see her once before seeing her in hospital. Thanks to you, she was my only parent left out of my mummy and dad. Crying, mad, lonely.

Subjective circumstances

24․The offender’s subjective circumstances were outlined in a range of documents tendered in the sentence proceedings.

The pre-sentence report

25․A pre-sentence report dated 20 July 2023 was prepared in relation to the offender. This report outlines the offender’s family background and relationship history, and is largely consistent with the history given by the offender’s father (discussed below).

26․The offender was raised largely by his grandparents. He is the father of five children with three ex-partners. He has been estranged from his first son since his son was six months old; however, his first son has contacted him as an adult. He also has two adult children from his first marriage, who were raised by their grandparents (Mr O’Connell’s father and his wife). The offender also has two young children born to another significant relationship. These children live with their mother, and have limited telephone contact with the offender.

27․The offender left school in Year 9 (though he briefly returned in Year 11). He completed an apprenticeship as a greenkeeper and reported stable employment in this vocation until experiencing a workplace injury. Following this injury, he opened a café with a former partner, which ultimately failed. He then returned to greenkeeping.

28․Prior to the offending, the offender reported living between the homes of a friend and the victim. The offender’s father stated that the offender kept his belongings in his car. The offender reported limited pro-social activities. While the offender said that he has pro-social friends, he acknowledged that these associates engaged in drug use and had criminal records. He reported making friends with other detainees since entering prison.

29․The offender reported trying cannabis as a teenager but discontinuing use. He said that he first used methylamphetamine at 41 years old with friends and the victim, and was engaging in regular use for approximately one year prior to his arrest. He reported first using amphetamine at 29 years old with his first wife, and engaging in regular use for a period of six months until he discontinued use after experiencing drug-induced psychosis. However, urinalysis samples taken in March and April 2022 indicated continued use of both amphetamine and methylamphetamine. The offender’s father indicated to the pre-sentence report author that illicit drug use has a “profound negative impact on [the offender’s] life”.

30․The offender reported no significant physical health issues other than two workplace-related hand injuries. He indicated that he had a history of mental health issues including a childhood diagnosis of Attention Deficit Hyperactivity Disorder (ADHD). This diagnosis was confirmed by his father. The offender also reported issues related to anxiety, depression, drug psychosis in 2009, and post-traumatic stress disorder following the death of the victim. However, custody records indicated there was no evidence of major mental illness and Senior Counsel for the offender did not submit that any Verdins considerations arose; cf R v Verdins [2007] VSCA 62; 16 VR 269.

31․The pre-sentence report stated that the offender discussed the impact of the offending on himself, but that he did not show insight into the impact the offending had on others (including the young person and the victim’s family). The author reported that the offender “did not take responsibility for his actions and minimised his culpability by attributing blame to the victim”, including indicating that she “manipulat[ed] him” to contravene his bail conditions and that her “irrational behaviours” led to the incident. He disagreed with various facts in the prosecution’s Case Statement and stated that the incident was a “tragic accident”. The offender asserted that his initial dishonesty about the events leading to the victim’s death was due to a concern for the victim’s reputation.

32․The pre-sentence report also noted that the offender acknowledged, but did not take responsibility for, his criminal history in relation to family violence offending, instead attributing blame to the victims of his offending. The offender claimed his past relationships have ended amicably and/or as a result of the irrational behaviours of his former partners. The offender maintained that he avoided conflict and that a current Family Violence Order (FVO) that was in place against him was the result of a vengeful former partner retaliating over money he owed her parents.

Character references

33․The offender tendered four character references, from his father, a family friend, and two members of the bowling club where the offender both worked and played bowls. The offender’s family friend described his childhood and family background, including the offender’s devastation at the loss of his mother from cancer and his sister’s subsequent diagnosis with cancer. He described the offender as “a loving caring well-mannered person”. Both members of the bowling club described the offender as being hard-working, reliable, and taking pride in his work, as well as being “popular” or “on good terms” with other club members.

Criminal history

34․The offender has two convictions in the ACT for family violence offences from 2021 with respect to a former partner, consisting of one charge of using a carriage service to menace/harass/offend for which he received a fine of $300, and one charge of destroy/damage property not exceeding $5,000 for which he was fined $300. The offender also has a conviction in New South Wales for destroy/damage property not exceeding $2,000, in respect of which he was placed on a two-year good behaviour bond with no conviction.

Letter from the offender

35․In a letter to the Court, the offender described his relationship with the victim and his sadness following her death. He described meeting the victim 22 years ago. He said that he and the victim had the “same sense of humour and personality”. The appellant said they fell in love after reconnecting many years later. He said that he was “still in love with [the victim] now. Even after the tragic accident”. The offender stated that the victim was also the godmother to his two children with his first wife, stating “my children all loved her to bits, and also miss her terribly”.

36․The offender noted that the victim was always there for him, and said that he also tried to be there for her. He said that “words cannot describe how much I love and miss [the victim] on a daily basis”. He described the victim as “incredible, amazing and … beautiful”. He referred to his distress when her life support was turned off. He also described his sadness that the victim’s family, including [redacted], “think bad” of him, and that [redacted] has no mother.

Evidence of the offender’s father

37․The offender’s father provided a reference letter and gave oral evidence in relation to the offender’s family background and character.

38․The offender’s parents separated when he was around 3 years old, and the offender then lived partly with his father and partly with his grandparents until he was about 7 years old. The offender then lived largely with his grandparents. The offender’s father described several positive aspects of the offender’s childhood, including the stability of his grandmother, his enjoyment of rugby, and the presence of positive male role models when he commenced his apprenticeship and groundskeeping work.

39․The offender’s father confirmed that the offender’s grandfather passed away in 2008, his grandmother passed away in 2012, his mother passed away in 2014, and his sister passed away in 2017.  The offender’s father stated that the offender and his sister were estranged as a result of a dispute over his mother’s will (in which the offender had been left a gift over his sister). This resulted in the offender assaulting his sister, causing a nose fracture; however, the offender was not finally convicted of any offence relating to this incident.

40․The offender’s father outlined the offender’s previous relationships at length, including the brief relationship leading to his first son’s birth in 1999. The offender’s first marriage involved substance abuse by the offender and his wife, and significant financial pressure, as a result of which the offender’s father raised their two children. He indicated that the offender remains close with both of these children. The offender’s second son lived with the offender in Canberra from 2016 – 2020. The offender’s second marriage lasted from 2012 – 2015. The offender entered a relationship in 2016 which resulted in the birth of two children in 2017 and 2019. The offender maintains some contact with these children; however, they are not aware of his incarceration. The offender’s father did not have any insight into the offender’s relationship with the victim.

41․The offender’s father said that the offender had a “very good work ethic”. He noted that a workplace injury in May 2021, which affected the offender’s ability to work for over 6 months, had “impacted his mindset”.

42․The offender’s father confirmed that he is close with the offender. He observed that the offender has made significant mental and physical progress while incarcerated, and in particular, that he has a “measure of mindfulness … he speaks clearly, he thinks clearly, he's reflective”. He noted that the offender has been given a position of responsibility while working in the jail kitchen, and that he has also been consulted in relation to greenkeeping matters within the jail. He also reported that the offender has been more open about his grief in relation to the victim’s death.

43․The offender’s father reflected at length on the issues the offender has faced in his life: in particular, that the offender “has found it challenging to openly discuss the many issues and pressures he has faced”. He believes these issues includes economic and relationship pressures; and that the offender may not have fully processed his emotions relating to the loss of his mother, sister, and grandparents. He stated that the offender “is kind and caring and needs to be more measured, more mindful, and make more informed choices”. He confirmed that the offender will continue to have support from himself, his wife and the offender’s children into the future.

Time in custody referable to these charges

44․At the date of sentencing, the offender has spent 663 days in custody referable to the present offending.

Sentencing considerations

Nature and circumstances of the offending (s 33(1)(a) of the Crimes (Sentencing) Act 2005 (ACT)

45․I am required to assess the nature and circumstances of the offending, by identifying the features of the offending which inform the objective seriousness of the offending: s 33(1)(a) of the Crimes (Sentencing) Act 2005 (ACT) and R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 at [24].

46․In assessing the nature and circumstances of the offending in the present case, I have had particular regard to the following:

(i)The relevant state of mind in the offending was recklessness, rather than an intent to kill or to cause serious harm: Lee v The Queen [2017] ACTCA 30 at [67]. The prosecution did not contend that the offender intended to kill the victim or that he intended to cause her serious harm. The offending conduct was deliberately driving the ute, knowing that the victim was on the bonnet, and foreseeing that this act would probably cause the victim’s death, but continuing to drive nonetheless;

(ii)Other than driving with the victim on the bonnet of the ute, the offender did not engage in any dangerous or furious driving; in particular, the offender was not driving significantly in excess of the speed limit and he did not engage in any rapid acceleration or deceleration, or swerving whilst the victim was on the bonnet;

(iii)The offending occurred in breach of two bail conditions related to a charge of assault against the victim, which first prohibited the offender from contacting the victim and secondly prohibited him from attending the victim’s residence;

(iv)The offending was witnessed by a young person;

(v)There was no planning and the offending was spontaneous, but it was not momentary. The offending occurred over a duration of approximately thirty seconds.

47․In his written submissions, the prosecutor invited me to find that:

The Offender started to drive off and [the young person] jumped off the vehicle but the Victim remained on the bonnet. At a point at or about the intersection of Coutts Place and Alfred Hill Drive, the Offender reversed the vehicle back down Coutts Place for a distance. With the Victim positioned on the bonnet of his vehicle, the Offender then accelerated the vehicle towards the intersection of Coutts Place and Alfred Hill Drive, before turning left onto Alfred Hill Drive. At or about that time the young person was forced to jump out of the way of the vehicle. After turning left, the Offender’s vehicle headed in a generally southerly direction down Alfred Hill Drive. (emphasis added)

48․In his oral submissions, the prosecutor clarified that, in view of the CCTV footage that was admitted in evidence in the trial, “it's not [the prosecution’s] case that the offender reversed all the way back down Coutts Place”. The prosecutor also clarified that his submissions were that there was “a degree of reversing”, whether by way of the vehicle rolling back (it was a manual, on a slight incline), or by way of reversing. I have proceeded in accordance with these concessions.

49․I have accepted the evidence of the young person that she moved out of the way of the ute as the offender drove forward towards the intersection of Coutts Place and Alfred Hill Drive. However, I cannot be satisfied beyond reasonable doubt that the offender intentionally drove at the young person, or that the ute would have collided with the young person if she had not moved out of the way. It is apparent from the expert evidence that the offender did not heavily accelerate (or brake) the vehicle at any time whilst the victim was on the bonnet and that the vehicle was not travelling at an excessive speed in Coutts Place (or at any time). I note that the incident occurred on a dark road, in the very early hours of the morning, and was a traumatic event for the young person, culminating in the young person seeing her close friend badly injured in the offender’s car. There is a reasonable possibility that the young person perceived (or recalled) a necessity to jump out of the path of the vehicle, even though the offender was not intentionally driving at her at speed. In this respect, I also note that the offender was not charged with any offence with respect to endangering the safety of the young person.  Accordingly, the fact that the young person had to move out of the way of the vehicle does not aggravate the seriousness of the offending.

50․I have referred above to the false accounts that were told by the offender to medical personnel and to the victim’s family concerning the way in which the victim sustained her fatal injuries. Those lies are not relevant to the objective seriousness of the offending, although they are relevant to the offender’s lack of remorse, which is discussed further below.

51․I do not accept the prosecution’s contention that the accused used the vehicle as a weapon. This was not a case such as R v Kutschera [2008] NSWSC 1271, where the accused deliberately drove his vehicle over the victim, causing the victim’s death. In that kind of case, it can readily be seen that the vehicle was used to inflict harm on the victim, with the accused fully appreciating (and indeed, intending) that the size and weight of the vehicle would significantly increase the harm inflicted. In contrast, in the present case, the prosecution did not contend before the jury that the accused had any intention to harm the victim at all. In these circumstances, the vehicle cannot be characterised as a “weapon”.

52․Finally, bearing in mind the “intentionally broad” definition of “family violence”, s 34B of the Sentencing Act may apply. This section requires that, when sentencing an offender for a family violence offence, the court must consider the nature of family violence and the context of the offending, including the matters mentioned in the preamble to the Family Violence Act 2016 (ACT); whether the offending occurred in the home of the victim; whether the offending occurred when a child was present; and whether the offender has other convictions for serious family violence offences. These mandatory considerations are also relevant at common law and under s 33 of the Sentencing Act: R v Smith (No 2) [2022] ACTSC 246 at [107] (an appeal was allowed, but not on this issue in R v Smith [2023] ACTCA 23). As outlined above, I have taken into account the context of the offending, whilst noting that, as the prosecutor conceded, the offending did not involve “an attempt to exercise dominance or control”. I have taken into account the offender’s prior criminal history pursuant to s 33(1)(m) of the Sentencing Act. I have also taken into account the fact that the offending occurred in the presence of a child, namely the young person.

Remorse

53․Senior Counsel for the accused submitted that the offender had demonstrated a degree of remorse, despite continuing to maintain his innocence. In particular, Senior Counsel submitted that the offender demonstrated aspects of remorse in his “solicitous regard” for the victim’s welfare in the immediate aftermath of the offending; his evident anguish and pain while the victim was in hospital; and his “considerable patience” and attempts to defuse the situation prior to the offending.

54․As understood both at law and in the general community, remorse is an acceptance of wrongdoing. Remorse may be full, or it may be partial, in that an offender may wholly accept their wrongdoing, or an offender may accept that they acted wrongly in respect of some, but not all, of their actions.

55․However, in the present case, there is no indication of remorse in any respect. Although the offender apologised when the young person reached the ute, he then lied to medical professionals and to the victim’s family about the circumstances in which the victim had sustained her injuries, denying his own involvement. Despite the offender’s claim to the authors of the Pre-Sentence Report that his initial dishonesty was intended to protect the victim’s reputation, it is clear that the offender provided these false accounts out of a desire to protect himself. More recently, the offender has maintained to the authors of the Pre-Sentence Report that the victim died “as a result of her irrational behaviours on the night of the offending”, and that the victim had “manipulated his caring, protective feelings toward her”.

56․It is clear that the offender is distressed by the victim’s death. His distress for her loss is not remorse. The offender does not accept any responsibility for the victim’s death, maintaining even in his letter to the Court that the victim’s death was a “tragic accident”. Concerningly, he does not even appear to accept that his breach of his bail conditions, which prohibited him from contacting the victim or attending her home, played any role in the victim’s death.

57․I do not accept that there is any evidence of remorse.

Prospects of rehabilitation/risk of reoffending

58․The prosecutor, pointing to the absence of remorse, submitted that the offender’s prospects of rehabilitation are “at best, guarded”. In contrast, Senior Counsel for the accused, relying on the evidence of the offender’s support from family and friends, submitted that the offender had good prospects of rehabilitation.

59․As I observed in DPP v Holder (No 2) [2023] ACTSC 167 at [59]:

Remorse (or its absence) will often be an important consideration in assessing an offender’s prospects of rehabilitation: R v MAK [2006] NSWCCA 381; 167 A Crim R 159 at [41]. This is because a recognition of the harm caused by offending will often be the first step in an offender choosing not to engage in similar conduct again in the future. … However, it is established that “there can be rehabilitation without confession”: Alseedi v R [2009] NSWCCA 185 at [65].

60․In the present case, the absence of any acceptance of responsibility by the offender gives me hesitation when assessing his prospects of rehabilitation. The offender’s continued justification of his contravention of the bail conditions is of particular concern in this respect. The offender’s prior criminal history, which includes offences of family violence, albeit of a much less serious character than the present offending, is also cause for some concern.

61․However, it is clear that the offender has a very supportive family, particularly his father. I am satisfied that this support will provide the offender with the guidance and protection that he requires so as not to engage in any further offending, particularly of a family violence nature. I also note that the offender has been employed in custody, and that he has received a positive behavioural comment for his work ethic.

62․In view of the offender’s family support and his positive behaviour in custody, I consider that the offender’s prospects of rehabilitation are reasonable.

Current sentencing practice (s 33(1)(za) of the Crimes (Sentencing) Act)

63․Senior Counsel for the accused drew my attention to two comparative cases: R v Massey (ACT Supreme Court, unreported, 28 July 2011) and The Queen v Lee [2017] ACTCA 30. Senior Counsel for the offender submitted that the offending considered by these decisions was more serious than the present offending.

64․In Massey, the offender stabbed the victim (with whom she had a long history of animosity) three times with a small knife, during a fight. The sentencing judge accepted that Ms Massey had acted recklessly with a foresight of the probability of death, rather than with an intention to kill or to cause serious harm. After the event, Ms Massey lied to police and took steps to involve others in disposing of the knife used in the stabbing and the clothing that she was wearing. Ms Massey had an extensive criminal history as an adult, and was the subject of a good behaviour bond at the time of the offending. However, it appeared that she may have been suffering from an undiagnosed mental illness at the time of the offending, and had been addicted to drugs since she was young. At the time of sentence, she was responding well to drug and alcohol treatment and was found to have relatively favourable prospects of rehabilitation. Following a trial by jury, Ms Massey was convicted and sentenced to a term of imprisonment of 16 years with a 10 year non-parole period.

65․In Lee, the offender repeatedly punched the victim (his mother’s de-facto partner) during an altercation while trying to enter their house. The victim sustained fatal injuries as a result of the altercation. Mr Lee was remorseful “from the outset” and accepted full responsibility for his actions. Mr Lee was sentenced to a term of imprisonment of 12 years (reduced from 15 years by reason of Mr Lee’s early plea of guilty). Mr Lee was also sentenced to a partially concurrent sentence for theft, resulting in a total head sentence of imprisonment for 13 years and 6 months with a non-parole period of imprisonment for 7 years. A Crown appeal against the leniency of the sentence was dismissed.

66․The prosecutor did not rely on any comparative cases. He submitted that the case was not comparable with either domestic violence cases or driving cases. In particular, the prosecutor accepted that the driving involved in this offence was significantly different to the type of driving “often associated” with “cases of this type”, namely, where the offender has intentionally driven at the victim with the express intent of killing the victim or causing them harm; contrast, for example, Kutschera; R v Bidner (Sentence) [2023] NSWSC 880; R v Rowe [2019] NSWSC 1592; Bufton v R [2021] VSCA 228; 97 MVR 190.

67․I have taken into account these comparative cases as required by law: s 33(1)(za) of the Sentencing Act. Apart from the limited number of comparative cases provided, both the nature and circumstances of the offending, and the subjective circumstances of the offenders in those cases, are too different from the present case for those decisions to provide any real guidance in determining the sentence to be imposed.

Determination

68․Section 7 of the Sentencing Act confirms the common law principle that the sentence to be imposed must “recognise the harm done to the victim of the crime and the community”.

69․In the present case, the offending has taken the victim’s life. The offender’s actions have also taken a daughter from her parents and a mother from her children. As their eloquent Victim Impact Statements describe, the victim’s mother is overwhelmed by her grief and justifiably angry and the victim’s young daughter is understandably lonely and sad. The victim’s daughter now lives with the fear of losing her grandparents and “being alone with no one to love her”.

70․While recognising that no sentence that the Court could impose on the offender can ever bring back the victim or make good the loss to the victim’s family, the sentence to be imposed on the offender must recognise the taking of a human life, and the profound, lifelong harm which the offender’s actions have caused to the victim’s family.

71․Because they involve the taking of a human life without justification, all murders are objectively serious. The maximum penalty for murder is life imprisonment.

72․However, although all murders are objectively serious, I am required to assess the criminality that is involved in this particular offending: s 33(1)(a) of the Sentencing Act and R v Kilic [2016] HCA 48; 259 CLR 256 at [19]. This task, which is mandated by law, is a necessary component of the determination of the sentence to be imposed. It is not in any way an assessment of the value of the victim’s life.

73․As the prosecutor acknowledged, the present offending is not as serious as many offences of murder that come before this Court. The prosecution does not allege that the offender intended to kill the victim. There was no premeditation or planning. The offender did not act out of greed, hatred or revenge; cf R v Tuifua [2023] ACTCA 6 at [26]. For the reasons outlined above, I have rejected the prosecution’s submission that the offending involved the use of a weapon.

74․The offending was not fleeting, but nor was it particularly long. The offending lasted approximately 30 seconds, during which time the offender drove with the victim on the bonnet of his car.

75․By their verdicts, the jury must have accepted that the offender foresaw the probability of the victim’s death, and persisted regardless. As the victim was on the bonnet of the ute, the offender was aware of the victim’s position on the car at all times whilst he was driving. I cannot say exactly when the offender foresaw the probability of the victim’s death. However, it remains the case that the offender could have stopped driving at any time during the period that he drove before the victim fell from the bonnet. It is also significant that the whole of the offending conduct occurred in breach of bail conditions that were imposed to protect the victim.

76․For the reasons outlined above, I have accepted that the offender has reasonable prospects of rehabilitation by reason of the support of his family. However, I am not satisfied that the offender has any remorse. I accept that the offender is distressed that the victim has died, but he does not take any responsibility for the victim’s death.

77․In formulating the sentence to be imposed, I have taken into account each of the purposes of sentencing (see s 7 of the Sentencing Act), in particular, the strong need for recognition of the harm caused by the offender’s actions and the need to hold the offender accountable for the harm that he has caused, as well as the need for denunciation, deterrence and punishment. I have also taken into account the nature of the offending and the need to facilitate the offender’s rehabilitation.

78․In all of the circumstances, I consider that the appropriate head sentence is one of imprisonment for 15 years with a non-parole period of 10 years’ imprisonment. This sentence will be backdated to take into account the 663 days that the offender has spent in custody referable to the present offending.

Orders

79․For the above reasons, the following orders are made:

(1)For the offence of murder (CC2022/4316), the offender is convicted and sentenced to a term of imprisonment of 15 years, commencing on 15 April 2022 and expiring on 14 April 2037, with a non-parole period of 10 years.

(2)The offender will first be eligible for parole on 14 April 2032.

I certify that the preceding seventy-nine [79] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Baker

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