DPP v Todd

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2018 0289

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAYMES TODD

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JUDGE:	KAYE JA
WHERE HELD:	Melbourne
DATE OF HEARING:	15, 16 and 20 August 2019
DATE OF SENTENCE:	2 September 2019
CASE MAY BE CITED AS:	DPP v Todd
MEDIUM NEUTRAL CITATION:	[2019] VSC 585

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CRIMINAL LAW – Sentence – Murder, rape, attempted rape and sexual assault – Accused followed victim for 54 minutes – Attacked victim in an isolated area of a public park at night – Sexually assaulted victim and intentionally strangled victim to death – Accused enacted long-standing sexual fantasy to rape and strangle to death a female victim – Accused has sexual sadism disorder – Early plea of guilty – Grave motive – Premeditation – Standard sentence scheme – Instinctive synthesis – Most grave instances of those offences – Well above middle range of seriousness – High moral culpability – Young offender – No prior convictions – Dysfunctional circumstances at accused’s home – Limited remorse due to mild form of autism spectrum disorder – Poor prospects of rehabilitation – Unacceptable high risk of re-offending – Sentence of life imprisonment with a non-parole period of 35 years – But for plea of guilty, sentence of life imprisonment with a non-parole period of 43 years – Sentencing Act 1991 ss 5, 5A, 5B, 6AAA, 11A and 18(4) – Crimes Act 1958 ss 3, 38 and 40.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Dr N Rogers SC with Ms A Ellis	Solicitor for Public Prosecutions
For the Accused	Mr T Marsh with Ms B Franjic	Victoria Legal Aid

HIS HONOUR:

Jaymes Todd. You have pleaded guilty to the murder of Eurydice Jane Dixon at Princes Hill on 13 June 2018. In addition, you have also pleaded guilty to one charge of rape, one charge of attempted rape, and one charge of sexual assault, each committed by you in the course of the events that culminated in the murder of Ms Dixon by you.

You committed those offences when you attacked Eurydice Dixon as she was walking across Princes Park, Carlton North shortly after midnight on that date. During the preceding period of almost one hour, you had deliberately and furtively followed Eurydice over a distance of 4.2 kms as she made her way on foot from Flinders Street, Melbourne to Princes Park. The movements of both Eurydice and you, during that period, were captured on CCTV footage. The offences occurred after Eurydice had entered the park to walk across it to her home, a short distance east of the park. As Eurydice walked across the soccer fields in the park, you violently set upon her, committed the acts which constituted the offences of rape, attempted rape and sexual assault, and murdered her by choking her to death with your bare hands.

The circumstances in which you committed each of those offences were appalling and confronting. In order to adequately convey the seriousness of those offences, it will be necessary for me to describe them in some detail, and to set out the events which preceded the offences, and their immediate aftermath.

At the time of her death, Eurydice Dixon was just 22 years of age. She was then living at the home, which she shared with her father and younger brother. Eurydice was an aspiring comedian, and she regularly performed on the Melbourne comedy circuit. During the 2018 Melbourne International Comedy Festival, she was a regular performer at the Highlander Club that was situated in Highlander Lane, Melbourne on Tuesday nights.

On the evening of 12 June, Eurydice was one of four comedians who were scheduled to perform at that club. At 8.00 pm, she entered the upstairs function room of the club to prepare for her performance. She was met there by her boyfriend, Tony Magnuson. In due course, Eurydice went on stage at 8.50 pm. Her set lasted for about ten minutes. At 10.20 pm, after all the performances had concluded, she and Tony met with other friends and talked for about ten minutes, before they left the club.

At the time of the offending, you were 19 years of age. You resided in Broadmeadows with your parents and your two brothers. You were then undertaking a hospitality, employment and training program at the Hester Hornbrook Academy in Prahran. On 12 June, you completed your training at the Academy at about 3.00 pm. In company with three fellow students you caught a train from Prahran to Melbourne. After you arrived in the city, you walked with your friends to Batman Park, where you and they consumed a bottle of vodka, and a bottle of cider, and smoked a small quantity of cannabis that you had purchased.

In due course, at about 8.30 pm, you and two of your friends attended Southern Cross Railway Station. After having purchased a bottle of Jim Beam whiskey & Cola, you caught a Broadmeadows bound train with one of your friends. You exited the train at Newmarket, and some time later you returned alone by train to Flinders Street Railway Station, where you arrived at 10.25 pm.

It was at that time that Eurydice Dixon and Tony Magnuson walked east from Highlander Lane on Flinders Street towards the Flinders Street Railway Station. They walked to the corner of Swanston Street and Flinders Street, crossed over the road and waited there for Tony Magnuson’s southbound tram.

At 11.05 pm, Tony caught a tram towards St Kilda Road. At that time, you arrived at the intersection of Flinders Street and Swanston Street, crossed the road and walked towards the Flinders Street Railway Station. At the same time, Eurydice had crossed the road and momentarily entered the station, before cutting through it towards the Flinders Street and Swanston Street intersection.

It was at that stage that you caught sight of Eurydice. You loitered near a construction area as she walked past you to the pedestrian crossing at the intersection of Flinders Street and Swanston Street. At 11.08 pm, she commenced to cross Flinders Street. Once she was halfway across the intersection, you began to walk in the same direction as her.

Eurydice then walked north along Swanston Street on the western side of the road. As she did so, you followed behind her. As you approached Flinders Lane, you overtook her, sat on a stack of milk crates, and waited for her to walk past you. After you had allowed her to walk some distance ahead of you, you resumed following her, maintaining a constant distance behind her. Whenever Eurydice slowed down or stopped, you similarly slowed down or stopped. Whenever possible, you moved to the opposite side of objects which obstructed her view of you. As you did so, you would roll a cigarette in order to make your movements look innocent to casual observers.

You continued to follow Eurydice along Swanston Street, crossing Bourke Street and Lonsdale Street, and still maintaining a constant distance behind her. As Eurydice approached the intersection of Swanston Street and La Trobe Street, she walked down a set of stairs which lead into the Melbourne Central Shopping Centre. As you arrived at the stairs, Eurydice had walked around a large pillar and was walking back up the stairs onto Swanston Street. You slowed down, using the pillar as cover, and let her walk ahead of you as she resumed her course north up Swanston Street.

When Eurydice stopped at the intersection of La Trobe and Swanston Streets, and waited for the lights to change, you stopped at a nearby pillar and rolled a cigarette. Once the lights changed, and she resumed walking, you continued to follow her. When Eurydice arrived at the intersection of Swanston Street and A’Beckett Street, she found that pedestrian traffic was diverted to A’Beckett Street due to construction works that were then being undertaken. She turned west on that street, and you followed her. She then turned right into Elizabeth Street and headed north, with you still behind her.

Eurydice continued north on Elizabeth Street to the intersection of Victoria Street, opposite the Queen Victoria Market. She walked between the seating area and a restaurant that was at that location. You walked to the opposite side of the seating area, where again you stopped to roll a cigarette, so as to enable Eurydice to gain a lead on you.

Eurydice continued north along Elizabeth Street, crossing the intersection of Flemington Road and entering Royal Parade, Parkville. You continued to follow her, maintaining a steady fifteen to twenty seconds distance behind her. At 11.50 pm, Eurydice walked past the University of Melbourne on Royal Parade. You were then fifty seconds behind her. As she continued north, you increased your speed. Within two minutes, you had closed the time gap to only twenty-seven seconds behind her. The CCTV footage at 11.54 pm from the University of Melbourne was the last footage of her.

Eurydice continued to walk north along Royal Parade towards Princes Park. At 12.02 am on 13 June, she sent a message on Facebook Messenger to Tony Magnuson saying ‘I’m nearly home. Hbu [how about you]?’. Princes Park at that point comprises six soccer pitches arranged in two rows, with three pitches in each row. The area was dimly lit.

Having arrived at the park, Eurydice then proceeded to walk across the soccer pitches from west to east. After she had crossed two pitches, and had just stepped onto the third pitch, you attacked her. You knocked her to the ground and quickly subdued her. The degree of force that was used in your initial attack on her is evidenced by the injuries sustained by her, including a prominent bruise to the forehead with an underlying haemorrhage. You then sat on her chest. In the course of the attack, you ripped Eurydice’s dress open to the waist, and pulled down her bra, exposing her breasts. You then tore her underpants in half, and raped her by roughly inserting two fingers into her vagina, causing bruising and two tears to the edge of the vagina. You attempted to rape her again by putting your penis into her vagina, but you were unable to maintain an erection. In order to try to stimulate yourself, you slapped your penis on the outside of her mouth, thereby committing the sexual assault which is the subject of charge 3. During the offending, you had at least one hand around Eurydice’s throat. At some stage, you placed both your hands around her throat and compressed downwards on her windpipe with your thumbs, which cut off her airways and killed her. While the prosecution cannot be precise as to the sequence in which each of the offences I have described occurred, it is common ground that Eurydice was alive when the rape, attempted rape and sexual assault each occurred. You then left Eurydice lying on her back with her legs bent.

Before leaving the scene, you took Eurydice’s mobile phone. After you had left Princes Park, you walked to the Royal Park Railway Station, where you arrived at 2.14 am. You fell asleep and remained there until 4.00 am. Shortly after you awoke, you began to look through Eurydice’s mobile phone. You then departed, and walked back to Princes Park. By then a crime scene had been established following the discovery of Eurydice’s body at 2.50 am. You then travelled on foot and by tram along Racecourse Road to Boundary Road, North Melbourne. There you purchased a pie and coffee, after which you caught a train, and then a bus, arriving at your home sometime after 6.15 am. It was then that you used your iPad to conduct various searches, which I shall shortly describe.

In the meantime, a passer-by, Mr Williams, who was walking home from work through Princes Park, came across Eurydice’s body. Having contacted triple 0, he applied CPR, and mouth-to-mouth resuscitation, to Eurydice, while he waited for the emergency services to arrive. Mr Williams is to be commended for the valiant efforts that he made to save Eurydice’s life, but tragically they were in vain.

An autopsy was carried out later that day. The findings of the pathologist included injuries consistent with vaginal penetration. They showed blunt force injuries to the head, torso and limbs, and bruises to the right jawline, hands, right knee and leg. There was also the bruise to the forehead with an underlying haemorrhage. The findings, relevant to the cause of death, included bruises to both sides of the neck, abrasions of the lower front of the neck, bruising to the muscles of the neck, and a haemorrhage adjacent to the left hyoid bone. The cause of death was, unsurprisingly, found to be compression of the neck causing asphyxiation or possibly reflex cardiac arrest.

Swabs, which were taken during the autopsy, were submitted for analysis. Semen was detected on a swab from the perineum and from two areas on the front of Eurydice’s dress. DNA analysis established, effectively, that you were the contributor of that semen.

Shortly after you arrived home, you used your iPad to conduct a Google search of the phrase ‘Princes Park’. That provided you with a number of results relating to the discovery of a woman’s body in the park. You repeated the same search five minutes later. Then, at 6.57 am, you conducted a Google search of the phrase ‘strangulation and rape porn’. That provided a list of websites. You selected the first website which provided a video category entitled ‘Strangled And Brutally Raped’. You navigated through that category to a subcategory entitled ‘Brutal Rape Choking Till Death Strangle Forced Videos’, and you viewed two pages of that search category.

Three minutes later you visited another pornographic website, where you viewed a number of pages from the homepage, conducting a search for the website for ‘brunette’ specific videos. At 7.03 am, you conducted a Google search on the phrase ‘curvy emo girl’. You selected the first website offered, and you searched through four pages of pornographic videos that were listed on that website.

During the morning, and later, in the afternoon, you conducted two further Google searches on ‘Princes Park’ to obtain news concerning the discovery of Eurydice’s body at the park.

In the meantime, after the police had obtained copies of the CCTV footage, they identified that the person depicted in the footage to be following Eurydice (that is, you) was connected with her death. As a consequence, excerpts from the footage were broadcast on news segments on live television. A friend, who had seen one of those broadcasts, contacted you and told you that your face was on the news in relation to the murder. She said that you had to go to the police or she would contact the police herself. As a result, at 7.09 pm, you contacted the Broadmeadows Police Station. You told the policeman, who took your call, that you had seen your image on the news, but that you were not involved in the death of Eurydice Dixon. You also said that you would attend the police station.

Accordingly, at 8.29 pm you attended Broadmeadows Police Station in company with your mother. During the interviews that were conducted that night, you gave to the police at least three different and conflicting accounts. As your counsel correctly conceded, you spun a farrago of lies to try to evade responsibility for what you had done.

At 9.15 pm, Detective Senior Constable Meade spoke to you, and cautioned you. You told Detective Meade that after you had had ‘a bit’ to drink, and had had some marijuana, you felt sick and the night became a blur. You said that you had caught the bus towards Williamstown, then returned by train to Flinders Street. You then walked down Elizabeth Street, and because there were no trains, you fell asleep at the Royal Park Railway Station. When you woke up, you had messages telling you that you were on television.

Following that, Detective Senior Constable Meade commenced a record of interview with you. You were again cautioned, and the interview was suspended at 10.00 pm. At 11.43 pm, the interview was re-commenced with two detectives from the Homicide Squad.

From the commencement of that interview, you denied any involvement in the death of Eurydice Dixon. You maintained that denial for a period of one hour and twelve minutes, in which you responded to some 660 questions. During that phase of the interview, you told the police that because you had missed the last train home, you started walking home down Swanston Street. You said that you then diverted around roadworks to Elizabeth Street, taking breaks and catching your breath, because you were not feeling well. You said that as you continued down Elizabeth Street, you asked someone (who you had later become aware was the victim) for directions, and that person told you the way to the zoo. You then said that you followed the signs to the zoo, walked on, and slept at Royal Park Railway Station for the night. You said that in the morning you retraced your steps to the main road and walked to Queen Victoria Market. You then made your way down Racecourse Road, got onto a bus, and ultimately arrived home.

The interview was then suspended at 12.55 am, in order for the police to prepare documentation in relation to a request for forensic procedures from you. Detective Sergeant Millar remained in the interview room with you. He explained to you the forensic process which would be undertaken, and which included a full examination to record your injuries, as well as comparing your DNA sample with those taken from the crime scene. At that point, you responded, ‘Don’t worry about the DNA, I did it, I will tell you everything’.

The interview was then re-commenced at 1.06 am. At the beginning of that part of the interview, you confirmed what you had said to Detective Sergeant Millar during the break. You then gave the following (second) version to the police. You said that you first saw Eurydice five or ten minutes ‘at the most’ before she had reached the park. You said that you did not cross the road purposely to get her, she just happened to be in front of you, so you asked her for directions. You said that, because she could barely tell you ‘which way was which’, you thought that once you were off the street, you would get her bag and run off. You then followed her into the park to urinate. You said that ‘she looked like she was stumbling around’ and was not in a position to defend herself. You told the police that you noticed that ‘she was really quite intoxicated, she looked like she was on drugs’. I pause to interpolate that that was completely untrue. There was no evidence at all that Eurydice Dixon had taken drugs or drunk alcohol on that night; samples taken from her during the post-mortem were negative for the ingestion by her of either such substance.

Returning to the version you then gave the police, you told them that you only wanted her wallet, because you ‘wanted a little bit of money’. You said that you went to grab her bag, and she hit you and ripped your shirt. You said that you attempted to defend yourself, that there was a struggle and that you both went to the ground. You said that you did not want to get into trouble for something as simple as ‘a little bit of money’, and so you started to choke her and did not stop. You told the police that you choked Eurydice for five or ten minutes, but it could have been less than that. You said that you could have just taken her bag and run off, but with all the alcohol and drugs that you had consumed, you were not thinking normally. You said that your sole goal was to get some money, you just wanted to leave, get home and forget, so you made your way to Royal Park Railway Station and went to sleep.

The section of the interview, that I have just summarised, covered answers given by you to approximately 100 questions.

Detective Sergeant Millar then asked you directly, ‘Did you rape her?’. It was only at that point that you first admitted to sexually assaulting and raping Eurydice. You responded, ‘I attempted to, yeah, unsuccessfully’. You then told the police that you were sorry that you had kept ‘lying’. Detective Sergeant Millar asked you to give a full account of everything. It was at this stage that you gave a further (third) version of what had occurred.

In that version, you told the police that you had asked Eurydice for directions, followed her into the park, grabbed her from behind, and pulled her to the ground, and she then started to scream. You said that your intentions at that time were ‘just to take her stuff’, but that when Eurydice started screaming and she was underneath you, you thought ‘well I’ve already taken it so far’. Accordingly, you said, you ripped her shirt and pants. In answer to specific questions from the police, you admitted to pulling her underwear down and choking her. In answer to the question whether you penetrated her, you said you did so using two fingers. You claimed that when you grabbed Eurydice and dragged her to the ground, it was not for the purpose of raping her, but that you had made that decision once you had pinned her underneath you.

You told the police that you had first noticed Eurydice about twenty minutes before the incident, at Flinders Street. However, you said that you did not have any intentions in relation to her until ‘much later on’. You told the police that you had followed her for quite a while, because of ‘how she was acting’.

The interview then suspended at 1.37 am, and you underwent a forensic examination. Subsequently, the interview re-commenced at 6.06 am. During that phase of the interview, when you were asked how Eurydice Dixon was strangled, you said ‘… it was just my two thumbs on the windpipe … I was over the top of her attempting to restrain her hands … I managed to get my knees up towards her shoulders in an attempt to keep her hands from hitting me’. You said that you leant on Eurydice’s throat ‘with [your] grip strength’. You said that in the course of the assault on Eurydice, you used your fingers to penetrate her, which you did for fifteen seconds. You said that you then attempted to rape Eurydice, but were unsuccessful, because you could not maintain an erection. You also said that you slapped your penis on her lips in order to try to get an erection, but you were unsuccessful. You said that Eurydice was still conscious, and fighting you, at that point. You said that you did not remove your hand from her throat during the whole of the attack.

On the plea, your counsel submitted that there is insufficient evidence to establish, beyond reasonable doubt, that you had an intention to actually kill Eurydice at the time you compressed her neck with your hands. Rather, it was submitted that you should be sentenced on the basis that, at that time, you either intended to cause her really serious injury, or that you acted recklessly, in that you knew that death or really serious injury would probably result from your actions.

I do not accept that submission. On your own admission, in the interview with the police, you stated that throughout the assault you had one hand on Eurydice’s throat. You also said that, at one point, you put both thumbs on her windpipe with your grip strength. As I have noted, you told the police that you choked Eurydice for five to ten minutes. While that estimate may, essentially, be inaccurate, nevertheless it constitutes an admission by you that you strangled Eurydice for more than a few moments. By that time, you had overcome most of Eurydice’s resistance, certainly to the extent that you were able to digitally rape her, attempt to rape her, and commit the sexual assault on her. Self-evidently, you would have known — as anyone else would — that the purpose of choking another individual is to prevent that person from breathing. The fact that you choked Eurydice over a period of time, during part of which you had both thumbs over her windpipe, is strong evidence on which to conclude, beyond reasonable doubt, that you intended to kill her by that action.

That conclusion is reinforced, first, by your conduct after you had returned home that morning, when you accessed on the internet, and viewed two pages of, a website entitled ‘Brutal Rape Choking Till Death Strangle Forced Videos’. Secondly, it is reinforced by a matter to which I shall shortly refer, namely, your fascination with pornography involving the violent rape of women culminating in the strangulation of the victim to death, and the fantasy to that effect that was preoccupying you during the period in which you trailed behind Eurydice Dixon on her way home. Thirdly, it is also supported by the evidence of Dr Thomas and Professor Ogloff that, based on what you told each of them, your violent attack on Eurydice, culminating in her death, constituted the enactment by you of the whole of that homicidal fantasy.

For those reasons, I am satisfied, beyond reasonable doubt, that you did have an actual intention to kill Eurydice when you strangled her. I should add that if, contrary to that conclusion, your intention was only to cause her really serious injury, by rendering her unconscious, or if you were reckless as to the outcome of your actions by knowing that you would probably cause her death in strangling her, it is inescapable that, at the very least, at the time you strangled Eurydice, you must have known that there was an extreme, if not almost certain, risk that Eurydice would die as a result of what you were doing to her.

Each of the offences committed by you are, by their very nature, particularly serious. The maximum sentence for the crime of murder is life imprisonment, reflecting the value which the law, and our community, place on the sanctity of each human life. The maximum sentence for the crime of rape is 25 years’ imprisonment, and for attempted rape is 20 years’ imprisonment, properly reflecting the gravity of such offences, which involve the violation of the sexual integrity and dignity of another human being.

Based alone on the circumstances of the offending that I have just outlined, each of the offences committed by you was a most serious instance of such offences. After you trailed Eurydice Dixon for almost one hour, you waited until she was well into the dark reaches of Princes Park. Eurydice was then doing what she — and any other person in our society — is entitled to do, namely, walking peacefully in a public area of our city. She was vulnerable and, in the circumstances, defenceless. In a most callous and cowardly manner, you set upon her, sexually assaulting and humiliating her, before cruelly strangling her to death. The sheer terror which Eurydice must have experienced during those dreadful moments is unimaginable. Her last moments on this earth must have been utterly horrifying for her. You inflicted that brutal assault, and took her life from her, by raping and murdering her in a most craven and sadistic manner.

In order to assess, fully, the objective gravity of the offences, and your subjective culpability for them, it is necessary to consider two further questions, namely, precisely why you set upon and killed Eurydice in the manner in which you did, and, secondly, for how long you had premeditated those offences.

As I have mentioned, when you were interviewed by the police, you stated that when you entered the park, and attacked Eurydice, you intended to rob her, and that you only formulated the intention to rape her when she fell underneath you. You also told the police that you strangled her to overcome her resistance, and to enable you to make good your escape from the park. However, in view of the conflicting and untruthful versions of the events that you gave to the police, and the matters which I shall now outline, I do not accept that those statements by you were a truthful account of your actual intention and motivation when you attacked and murdered Eurydice.

For the purpose of your plea, you were examined by Dr David Thomas, a consultant psychiatrist, on the instruction of your solicitors, and by Professor James Ogloff, a clinical and forensic psychologist, on the instruction of the Office of Public Prosecutions. Their examinations have shed important light on the true nature of your intention and motivation when you murdered Eurydice.

It is evident that for a number of years before the date of the offences, you had engaged in viewing pornographic material on the internet, which involved acts of violence and sadism. You told Dr Thomas that over a period of time your viewing habits had changed, with a marked increase in the time you spent watching pornography, and with a preference for more coercive and non-consensual content. During the period of twelve to eighteen months leading up to the offences, the pornography that you accessed had expanded to include rape pornography, and what is colloquially referred to as ‘snuff porn’, which is a term to describe pornography that purports to depict sexual activity that culminates with at least one participant dead. You told Dr Thomas that, during that period, you had active sexual fantasies, which involved you having rough non-consensual sex with women, and which became more consistent with the extreme violent pornography that you were viewing on the internet. In the same vein, you told Professor Ogloff and Dr Thomas that, over that period, your sexual fantasies became increasingly dark, and that you had invested a lot of time and emotion into those fantasies, in which you were always in control, and in which the other person was always female and always ended up deceased.

During that period, you had a steady girlfriend with whom you had a sexual relationship. At an early stage in that relationship, you persuaded her to engage in conduct in which you would place your hands around her neck and choke her during sexual intercourse. However, in engaging in that activity, she and you had pre-agreed signs, and you would stop whenever she indicated that she felt uncomfortable.

It was in that context that you chose to follow Eurydice Dixon when she caught your attention near the Flinders Street Railway Station. You told Dr Thomas that you thought that you may have been attracted by her ‘goth’ look, and that you found her sexually attractive. In that respect, it is significant that when the police searched your iPad, after your arrest, it revealed that just seventeen days before the offences, you had sought out and viewed pornographic videos involving women who dressed in a manner similar to Eurydice.

You also told Dr Thomas that while you followed Eurydice, you were reliving your fantasies involving coercive sexual activity, and that ‘things escalated’. You said that when you saw her enter the park, you knew that you were going to act out your rape fantasy, although you denied having an intention to kill her at that time. However, you also told Dr Thomas that at some stage while you were assaulting Eurydice, you lived out the whole of the fantasy, culminating in her death. You told him that while you were committing the offences, you knew the ‘end game’, that is, you knew that the sexual assaults and rape that you were perpetrating on her would end in her death.

When you spoke to Professor Ogloff, you similarly told him that when you commenced to follow Eurydice, you were attracted to her, and you were thinking of carrying out your coercive rape fantasy on her. During the period in which you followed her, you said that you were immersed in that rape fantasy, which involved the act of strangulation. You told Professor Ogloff that, when you entered the park, you were entertaining in your mind the coercive rape fantasy, which included the death of your intended victim.

Based on those matters, it is clear, then, that it was because you had a sexual interest in Eurydice that you followed her. It is also clear that, during the period of one hour in which you trailed behind Eurydice, you were entertaining powerful thoughts of enacting the violent sexual fantasy to which you had become addicted, namely, the rape and strangulation to death of a female victim. It would be unreal to postulate that the thoughts that you were entertaining of choking her to death — and the fantasies that you had been engaging in during the period of twelve to eighteen months before the date of the offences — did not culminate in the acts in which you cruelly raped and strangled Eurydice to death. In that respect, you told Dr Thomas that while you had thought you were in control of your fantasy, you were wrong and you had lost control of yourself. That is, you had acted out the whole of the coercive rape fantasy that had obsessed you, including its climax — the death of the victim. In a similar way, you said to Professor Ogloff that, subsequent to the event, you realised you had the capacity to carry out your fantasies and to harm or kill people. In other words, you conveyed to Professor Ogloff that Eurydice Dixon’s death was the result of you carrying out the coercive rape fantasy in which you had become absorbed.

It is not possible to determine with precision when your line of thinking hardened into a specific intention by you to enact the whole of that fantasy. Clearly, as you became more engrossed in the fantasy while you followed Eurydice, your desire and intention to enact it grew stronger. As your counsel correctly conceded, the further that Eurydice walked from the safety of the central business district, the more definite became your fantasy, to, at least, sexually assault her in the way that you did. That intention became a certainty in your mind, at least when Eurydice left the footpath in Royal Parade and commenced to walk across Princes Park. On any view, that is the latest point at which, at the very least, you had formulated the definite intention to violently rape her.

It is, perhaps, more difficult to identify precisely when you formulated the specific intention to kill Eurydice. As I have noted, and as became clear to both Professor Ogloff and Dr Thomas, the fantasy that had preoccupied your mind, both in the months leading up to the offences, and in that critical hour in which you followed Eurydice, had, as an integral part of it, the coercive rape of a female, culminating in her death by strangulation. That fatal end to the rape was an inseparable and essential element of your fantasy. Throughout the time in which you raped and sexually assaulted Eurydice, you had at least one hand on her throat. I am satisfied, beyond reasonable doubt, that, at the very latest, your intention to kill her by throttling her to death hardened, from forethought to specific intention, at the time at which you commenced the attack on Eurydice. The formulation by you of that intention was not, of course, a sudden and cataclysmic event in your mind. Rather, it was the almost inevitable evolution and culmination of the dark thoughts that had been preoccupying your mind in the hour that preceded the incident.

Based on those matters, I am satisfied, beyond reasonable doubt, that the offences of rape, attempted rape, sexual assault and murder, were each motivated by the overwhelming urge that you had to enact the fantasy with which you had become obsessed. In other words, you intentionally killed Eurydice Dixon by choking her to death, in order to gratify your perverted and depraved sexual desires. As such, the offending by you was totally and categorically evil. Your conduct, and your intentions and motivation, struck at the very heart of the most basic values of a decent civilised society. In the absence of any mitigating circumstances, the objective gravity of, and your moral culpability for, each offence — and in particular, for the crime of murder — falls into one of the highest categories of such offences.

Eurydice Dixon was the primary victim of your offending. By your conduct, you have taken from her her life, in circumstances in which her last moments on this earth must have been utterly horrifying. At the time of her death, Eurydice was only 22 years of age. She was an aspiring and talented comedian, with her whole life ahead of her. Eurydice’s sister, Polly Cotton, in her victim impact statement, described her in the following terms:

Eurydice lived an honourable life. She was gutsy and determined and clever and when I think of her, I feel proud and I feel inspired.

While Eurydice was the primary victim of your offending, there are also a number of other victims of your crimes, who have suffered, and will continue to suffer, grievously as a result of them. Eurydice had three brothers and one sister. After her mother passed away when Eurydice was seven years of age, she and her younger brother were raised by her father. The victim impact statements of her elder sister, Polly, her boyfriend, Tony Magnuson, and the close family friend, Judith Shaw, eloquently depict the grief, anguish and trauma that they have each suffered as a result of Eurydice’s death, and the circumstances in which it occurred. I have no doubt that each of the other members of her family, and her close friends, have also suffered to the same extent as a consequence of the appallingly traumatic manner in which Eurydice was taken from them.

The victim impact statements are a salutary reminder of the extent and depth of the grief and suffering which have been, and which will continue to be, the inevitable consequence of the offences which you have committed. While you are to be sentenced based on a rational analysis of the facts of the case, and the application of relevant sentencing principles, it is important not to lose sight of the enormity of the crimes which you have committed, and the profound grief and pain caused to so many as a direct consequence of your offending.

As I have already stated, the maximum sentence for the offence of murder is life imprisonment, the maximum sentence for the offence of rape is 25 years’ imprisonment, and the maximum sentence for the offence of attempted rape is 20 years’ imprisonment. I should add that the maximum sentence for the offence of sexual assault, to which you pleaded guilty, is 10 years’ imprisonment. The relevant provisions of the Crimes Act 1958 provide that the standard sentence for the crime of murder is 25 years’ imprisonment, and for the crime of rape is 10 years’ imprisonment. In applying the provisions of the Sentencing Act 1991 that concern standard sentences, I have been significantly assisted by the careful and detailed consideration of those provisions by Champion J in R v Brown,[1] and by subsequent sentencing decisions, namely, R v Robertson,[2] R v Leigh[3] and R v Willis.[4]
[1][2018] VSC 742.
[2][2019] VSC 145.
[3][2019] VSC 378.
[4][2019] VSC 398.

Consistent with those decisions, the standard sentence regime does not alter the established principles by which a particular sentence is arrived at by a determination of the facts, and the application of legal principles to those facts. Ultimately, the sentence is the result of the instinctive synthesis by a judge of the facts, legal principles and other factors relevant to the case, in the exercise of the judge’s sentencing discretion.

In that process, the maximum sentence prescribed by statute is relevant as a guidepost to the determination of the sentence. Similarly, the standard sentences that are prescribed, for the crime of murder and the crime of rape, each constitute another guidepost. The standard sentence is not understood as being a starting point from which a consideration of your sentence is to be determined, nor does it take precedence over any of the other relevant factors that must be taken into account in determining that sentence.

Section 5A(1) of the Sentencing Act provides that the standard sentence, specified by statute for the offence is the sentence that, taking into account only the ‘objective factors’ affecting the relative seriousness of that offence, is in the ‘middle of the range’ of seriousness of the offence. Section 5A(3) provides that the ‘objective factors affecting the relative seriousness of an offence’ are to be determined without reference to matters personal to you, and wholly by reference to the nature of your offending.

Based on those principles, as I have already stated, objectively, the offences committed by you of murder and rape (and indeed attempted rape and sexual assault) were most serious. In particular, I am satisfied that the offence of murder committed by you was well above what could be described as the ‘middle range of seriousness’ of murder offences, taking into account only the objective factors relating to your offending. I have reached that conclusion for the following reasons:

(1)The murder committed by you was not spontaneous. Throughout the period in which you trailed behind her on her way to Princes Park, you were seriously contemplating, and indeed obsessed with the thought of, raping and choking her to death. During the whole of that period, you had ample opportunity to come to your senses, to desist from following her, and to prevent the happening of the dreadful events that ensued.
(2)At the time you attacked, raped and killed her, Eurydice Dixon was totally vulnerable, defenceless and helpless. You set upon her after she had crossed two soccer fields, so that you were well secluded from the view of any person who might be passing along Royal Parade. You had the advantage of surprise, and it would seem, quite clearly from what occurred, superior strength.
(3)The murder by you of Eurydice occurred in the context of the events that immediately preceded it, namely, the rape, attempted rape and sexual assault that you had committed on her.
(4)The method by which you murdered Eurydice was appalling. The act of choking her to death, so that she suffocated, was callous, cruel and brutal.
(5)Your actions, in the period that followed the murder, aggravated the objective seriousness of your offending. There is no evidence that the vicious acts, by which you had raped and murdered your victim, troubled your conscience at all. Rather, you used Eurydice’s mobile phone, slept and ate, and accessed pornographic websites, including a website of videos that involved acts of brutal rape culminating in the death of a victim by strangulation. In the immediate aftermath of your offending, you had an entire and utter lack of concern for what you had done to an innocent and decent young woman.

In that context, the murder by you of Eurydice Dixon was far in excess of what could be described as falling within the middle range of seriousness of such an offence, by reason of the objective factors that attended that murder alone.

The same conclusion may be drawn concerning the offence of rape that you committed. Again, the offence was not spontaneous; rather, you had been thinking about it and premeditating it for some period, of up to fifty minutes. During that period of time, you had ample opportunity, time and again, to resile from your intentions, and to break off. Again, when you raped Eurydice, she was defenceless and vulnerable. While you raped her, you had one hand around her throat. She sustained injuries to her vagina, which indicates that you raped her in a rough manner. Again, your actions after the rape (and murder) of Eurydice bespeak an utter callousness on your behalf about her terrible fate. Taken together, all of those factors, objectively, place the rape that you committed above the middle range of seriousness of such an offence.

I turn then to your personal circumstances. They are set out, in some detail, in the expert reports that have been tendered to the Court, and have been outlined in the thorough and helpful plea made on your behalf by your counsel.

You are the second of three children of your parents. You were raised by your parents in the family home in the Broadmeadows area.

From a quite early age, your parents and teachers noted issues relating to behavioural difficulties with you, particularly at school, where you had a history of being disruptive in class. As a result of that conduct, you had to change schools in your primary education, and, subsequently you were expelled from secondary college in 2012 while you were in Year 8. You then attended an alternative school for young people with difficulties. Due to problems that you experienced at that school, you did not complete Year 9. You then attended the Melbourne Academy in order to obtain your Year 10 equivalence. After having completing Year 10, you gained entry to the Hospitality, Education and Training course at Hester Hornbrook Academy, which, as I stated, you were attending at the time that you committed the offences that are before this Court.

As a result of your behavioural difficulties, you were referred to a number of specialists during your early teenage years. In November 2011, when you were 12 years of age, the school psychologist at your college referred you to the Royal Children’s Hospital Mental Health Service, in relation to concerns raised by your teachers about your learning, social interactions with peers, and your emotional state. You were seen by Professor Alasdair Vance, the head academic child psychiatrist at the hospital, during 2012. Professor Vance concluded that you had evidence of Attention Deficit Hyperactivity Disorder and of Asperger’s Disorder, and he commenced you on a course of medication to alleviate your symptoms of ADHD.

In February 2013, Dr Sian Hughes, a consultant paediatrician, examined you after you had been expelled from secondary college. She considered that you had a good intelligence, but that you had Asperger’s Disorder, and that your behaviour and emotional levels were not equivalent to your intellectual levels.

Subsequently, in September 2015, Professor Vance referred you to a psychologist, Dr Rhian Coram, for psychological therapy. During the following year, Dr Coram noted that you engaged well in the treatment sessions that were aimed at developing your ability to regulate your mood, particularly your anger and frustration. She considered that you were quite insightful in relation to the nature and management of your problems.

As I have mentioned, you have been examined, for the purpose of the plea, by Dr Thomas and Professor Ogloff. Both practitioners had the opportunity to interview you over a number of hours, and to have access to a substantial amount of material that is relevant to the case. Dr Thomas also had the advantage of interviewing members of your family. Professor Ogloff had access to Dr Thomas’s report, and was acquainted with what Dr Thomas was told in those interviews. Both practitioners compiled thorough reports, and gave lengthy evidence on the plea.

Dr Thomas and Professor Ogloff both concluded that you suffer, and at the time of the offending suffered, from a mild form of autism spectrum disorder. They both also concluded that you have, and at the relevant time had, a coercive sexual sadism disorder. Dr Thomas considered that both of those disorders contributed to your offending, but that the coercive sexual sadism disorder was the dominant cause of your conduct. On the other hand, Professor Ogloff concluded that your autism spectrum disorder did not directly contribute to your offending. Each practitioner did consider that your autism disorder played some role — albeit not the major role — in the development and evolution of your fixation on the pornography to which I have referred.

In essence, Dr Thomas has expressed the view that your autism spectrum disorder contributed to your offending in two respects. The first respect concerns your deficit in being able to perceive and comprehend the suffering that your actions might cause to other individuals, and, related to that, the difficulty that you might have in distinguishing between reality and fantasy. Secondly, Dr Thomas considered that your disorder led you to focus on your fantasy as you pursued Eurydice, rather than comprehending the ‘big picture’. In that way, he considered that while your autism did not impact on your ability to appreciate the wrongfulness of your actions, it reduced your ability to exercise an appropriate judgment, to make appropriate choices, and to moderate your behaviour.

On the other hand, Professor Ogloff disagreed with the opinion of Dr Thomas that your mild autistic disorder was a factor directly contributing to your offending. In particular, he considered that this was not a case in which you might have misinterpreted any cue given to you by Eurydice Dixon. On the contrary, you deliberately sought to take her by surprise and attack, rape and choke her, as part of your violent coercive rape fantasy. Professor Ogloff also considered that you had the capacity to, and did, understand the effect that your conduct was having on Eurydice, because you had previously engaged in consensual choking with your girlfriend during intercourse. In that way, your autism disorder had not previously precluded your capacity to desist from enacting your sexual fantasy while you were aroused. Professor Ogloff also considered that it is relevant that you pursued Eurydice for over an hour, during which period you had innumerable opportunities to desist from engaging in the sexual offending that you were contemplating. This was not an offence, therefore, that was a product of you feeling overwhelmed by reason of any deficit that was an aspect of your autism spectrum disorder.

The resolution of this issue is not simple. In order that I take your autism into account as a matter in mitigation of your moral culpability, I must be satisfied, on the balance of probabilities, that it did contribute in a material sense to your offending. Having carefully considered the evidence of Dr Thomas and Professor Ogloff, I am not so satisfied. Indeed, I am satisfied on the balance of probabilities, that your autism spectrum disorder did not directly contribute to the offending. I have reached that conclusion for the following reasons.

The starting point is the nature and degree of your two disorders. On the one hand, Professor Ogloff and Dr Thomas both told me that an autistic disorder does not, ordinarily, predispose a person to violent offending. In your case, your autism spectrum disorder is of a particularly mild degree. Before the offending, you were functioning well in the community. You had a number of friends, and two of them, in their statements to the police, described how you behaved normally and related appropriately with them. In addition, you were then maintaining a steady relationship with your girlfriend.

On the other hand, and by contrast, it is clear, from the evidence of both experts, that, in the months preceding the offences, your sexual sadism disorder was assuming a dominant if not overwhelming role in your thinking. Your particular paraphilic interest was focused on coercive violent sex involving suffering to the female victim, which culminated in her death. You became immersed in pornography, and in fantasies, to that effect. As I have noted, as you followed Eurydice during the one hour before you raped and murdered her, you were absorbed in that fantasy. That ideation by you, in that fatal hour, was clearly the product of the sexual sadism disorder. It was that ideation, and that disorder, which drove the commission by you of each of the offences.

It is common ground that, at all times, you knew that what you were doing to Eurydice was wrong. You well understood the effects of choking a female victim, as a result of the experience you had of undertaking that activity with your girlfriend. In particular, you understood that it involved suffering to her. At the centre of your paraphilic interest, and the sexual sadism disorder, was the coercive infliction of suffering to the female victim. In those circumstances, I am well satisfied that, at the time that you set upon, raped and murdered Eurydice, you well knew that you were causing her severe distress. You understood that, and that was part and parcel of what the sexual sadism disorder drove you to do. Her suffering was the essence of the sexual arousal that drove your actions. Insofar as you failed to exercise an appropriate judgment, I am satisfied that that was due to your sexual sadism disorder. Your obsessive fixation on enacting your dark and sick fantasy was what distorted the exercise by you of a proper human judgment, not your autism.

On the other hand, I accept the evidence of both Dr Thomas and Professor Ogloff that your autism did play a role in your addiction to violent online pornography. However, as Dr Thomas noted, your autism was not the only reason why you engaged in that perverted interest. In that respect, I note that Professor Ogloff observed that the log of your online activities, leading up to the offending, did not indicate the type of repetitive conduct that could be ascribed to your autism. Notwithstanding that consideration, I am satisfied, on the balance of probabilities, that your mild autism spectrum disorder did play a role — albeit not a major role — in your obsession with the type of pornography that fed the fantasy which, in turn, culminated in the appalling crimes that you have committed. To that limited extent, I accept that your autism disorder did, to a small degree, mitigate your moral culpability for the offending.

I should add that your counsel, quite correctly, did not contend that the role of your sexual sadism disorder in the offending could, or should, in any way mitigate the gravity of the offending or your moral culpability for it. Plainly, that disorder could not be rationally considered to be a factor that mitigates the sentences that are to be imposed on you.

In assessing your moral culpability, it is relevant to consider the circumstances in which you were then living. As I stated, at that time you were residing with your parents and two brothers in a housing commission home in Broadmeadows. In the course of the plea, counsel tendered on your behalf a video recording of a walkthrough of the premises that was conducted by the police shortly after your arrest. Your counsel accurately described the premises as constituting an ‘environment of rotting refuse, vermin and complete squalor’. In his evidence, Dr Thomas, having observed the video, considered that the circumstances, in which you were then residing, would have affected your emotional state in the period leading up to the offending. In particular, the squalor, severe neglect and disrepair of the premises reflected the human environment in the home, in which contact by you with your other family members was more functional than relational.

Your counsel, correctly, did not rely on that evidence as establishing a causal explanation for your offending. However, you are not to be sentenced as a person who has had the advantage of a normal, stable, and regular home environment. In particular, the circumstances of your home could not have assisted you to resist the impulses that drove the development of the sexual disorder that lay at the heart of your offending. To that limited extent, they mitigated the severe gravity of your offending and your subjective culpability.

The disorders that affect you, as diagnosed by Dr Thomas and Professor Ogloff, are relevant to an assessment of your prospects of rehabilitation. In particular, they raise the question whether the sexual disorder, that drove the offending, can be sufficiently treated during your term of imprisonment, so that you can be safely returned to the community after you have completed serving the non-parole period that I shall set in respect of your sentence.

Dr Thomas and Professor Ogloff both expressed views on that matter. There was some common ground in their evidence, but they ultimately disagreed as to their conclusions.

In particular, Dr Thomas noted that in the course of his interviews with you, you had demonstrated a desire to explore the events and factors that led to the offending, and that you had been appropriately distressed and remorseful when discussing your offending and its impact on Eurydice and her family. As a consequence, and in light of your young age, he was reasonably optimistic about your prospects of rehabilitation.

Dr Thomas noted that both psychological therapies and pharmacological treatments are available to treat offending which culminates in a sexual homicide. Based on a study, that he described as the Cochrane Report, he considered that the pharmacological treatments are more effective than psychological therapy. He noted that that treatment cannot eliminate the underlying paraphilic interest that you have. Rather, the medication would reduce your sex drive while it is being taken. However, he considered that it would also be necessary that you receive behavioural therapy to address the manner in which you respond to the paraphilic interest that had driven the offending behaviour, and that was part of your disorder.

On the other hand, Professor Ogloff was more pessimistic about the prospects of addressing the sexual disorder that underlay your offending. He noted that large scale studies have revealed that sexual deviance has been reliably found to be the most potent predictor of sexual re-offending. Like Dr Thomas, he noted that it is not possible to treat the paraphilic interest that underlies the disorder. Further, there is little evidence that the disorder itself can be effectively treated to prevent sexual re-offending, by remediating the behaviours that are part and parcel of the sexual sadism disorder. He considered that the Cochrane Report, relied on by Dr Thomas, does not provide sufficient evidence that pharmacological treatment results in a reduction in sexual recidivism. Further, medication is only effective while the subject takes it, and a high percentage of people drop out of that treatment because of the undesirable side effects of it.

It is thus clear, on the evidence, that in the absence of appropriate and effective treatment, there is an unacceptable risk that, on your release into the community, you would re-offend in the same manner in which you have in this case. In particular, there is an unacceptable risk that you would re-offend in a manner which would involve the enactment by you of the whole of your sexual fantasy, culminating in the death of a victim. As Professor Ogloff stated in his report, and in his evidence, the conclusion, to be drawn from some 82 large scale studies, involving almost thirty thousand sexual offenders internationally, is that the presence of sexual deviancy has the strongest relationship with sexual re-offending.

In that respect, I note that in his report, Dr Thomas summarised an assessment he had made of your risk of sexual re-offending and your risk of violent re-offending using applicable guides. That assessment was that you are well above an average risk for being charged with, or convicted of, another sexual offence in the future. In particular, the sex offender guide, when applied in your case, suggested an 80 per cent chance of recidivism within a ten year period. Dr Thomas concluded that the assessment tools identified you as being more likely than not to engage in sexual and violent offences in the future short to medium term, in the absence of active treatment or risk mitigation measures.

As I have noted, both Dr Thomas and Professor Ogloff have stated, in clear terms, that it is not possible to eliminate the paraphilic interest that is the foundation of your disorder, namely, your fascination with and obsession about coercive violent sex involving the death of a victim. Treatment in the form of medication only reduces the aberrant sex drive while the medication is taken, but it does not moderate or eliminate the paraphilic interest, or the behaviours driven by that interest which constitute your disorder. Dr Thomas has not discussed with you whether you are willing to take that medication, he has not outlined to you the potential side effects of it, and he has not, other than in a most general sense, indicated whether in his view you would be willing to take that medication for the long term.

Importantly, as Professor Ogloff has noted, the rape and murder by you of Eurydice, which was the response by you to your paraphilic interest and disorder, was the last sexual encounter that you had before your arrest and imprisonment. Professor Ogloff stated and I quote:

[h]e will be in prison for a considerable time and for him who had these significant fantasies over such a period of time, and based on what he said, this is the only time he actually was able to carry them out, then that event will be profound for him in his ongoing thinking about sex and fantasy.

Professor Ogloff, when explaining why he said the event would be ‘profound’ for you, said (and I quote):

… when he was sexually aroused and excited in the past he was driven by … increasingly dark pornography, what he called rough sex, snuff films … he knows these films are usually staged and to him that was less satisfying knowing that someone is not really dying.

In those circumstances, it is inevitable that I must conclude that, based on the present evidence, the prospects of successfully addressing the disorder that underlay your offending are poor. Accordingly, I am satisfied that your prospects of rehabilitation are very limited. The evidence adduced on your plea is such that it must be concluded that, at least for the foreseeable future, you would pose an unacceptable risk to the community, and in particular to women, if you were to be released.

I do note that you have expressed to Dr Thomas, and I accept, that you have a motivation to gain an insight into why you committed the offences. In that respect, I note that when interviewed by Dr Thomas and Professor Ogloff, you opened up and revealed to them, much about your internal ideation, and thought processes, which would otherwise be largely a matter of conjecture. I therefore do accept that at this point you are, at least to some extent, sincere in your desire to address the issues that drove the terrible crimes perpetrated by you. I also note the evidence of Professor Ogloff that, notwithstanding his reservations about the prospects of your rehabilitation, it is most important that such therapy, that is currently available, be directed to treating your disorder at an early stage of your incarceration, while you still maintain the motivation to gain insight into your disorder and to addressing it.

I turn, then, to the factors that have been relied on in mitigation of your sentence. First, of course, is your plea of guilty. You pleaded guilty to the charges on the indictment at the committal mention hearing. That was the earliest opportunity for you to formally announce your plea of guilty. Your plea has, quite plainly, facilitated the course of justice, by avoiding the necessity for a committal proceeding and a trial. It has spared witnesses the stress of giving evidence in such a tragic case. Importantly, it has had the effect that the family members, and close friends, of Eurydice, have not been subjected to the trauma and strain of a contested committal proceeding and a trial, or of the expectation of such a contested proceeding. I take all of that into account in your favour.

As earlier discussed, during your interview with the police, you ultimately admitted to each of the offences, to which you have pleaded guilty. Certainly, for quite some time during the interview, you attempted to avoid accepting responsibility for your actions. For the first hour of the interview, you provided a false account of your movements, which you had clearly thought out, in order to explain how you were depicted on CCTV footage following Eurydice as she made her way north towards the point at which she was fatally assaulted. Nevertheless, it does stand to your credit that, ultimately, you did confess to your offending. In particular, in making those admissions, you revealed that you had committed the offences that constituted the attempted rape and sexual assault, which might otherwise not have been detected by the police.

In the course of being interviewed by Dr Thomas and Professor Ogloff, you expressed some remorse for your offending. An issue arose in the course of your plea as to the genuineness and depth of that expression of remorse by you. In his report, Dr Thomas stated that you had been appropriately distressed and remorseful when discussing the offending and its impact on Eurydice Dixon, her family and friends. On the other hand, Professor Ogloff was of the view that your capacity for empathy is limited, and that your expression of remorse and empathy was ‘very much intellectual rather than emotional’.

In any case, it is difficult, if not impossible, to adequately gauge whether expressions of remorse are truly reflective of subjective contrition, or whether they amount to no more than regret for the consequences that have ensued to the offender as a result of his or her actions.

In this case, the question of your remorse has been complicated by the impact of your mild autistic disorder. Dr Thomas and Professor Ogloff have both noted that you tend to intellectualise the way you think about things. Thus, Dr Thomas stated, and I accept, that the remorse expressed by you is the product of you thinking the matter through, rather than being the consequence of an immediate emotional reaction to what you have done. Professor Ogloff stated that your expression of remorse does not have the emotional depth that an average person would have. However, I accept that that limitation is due to your autistic disorder. Taking that into account, I am prepared to accept, in your favour, that you do genuinely feel a degree of remorse, not simply in relation to the consequences that have and will flow to you, but because of the appalling harm that you have inflicted on Eurydice Dixon, and her family, and her close friends.

An additional mitigating factor is your young age. At the time of the offending, you were 19 years of age, and you are now 20 years old.

Ordinarily, and in particular in cases of less serious offending, the law considers that the youth of an offender is an important, and, at times, pre-eminent mitigating circumstance. An offender’s youth may have had an effect on his or her offending, by reason of the offender’s immaturity. In addition, the law regards the rehabilitation of young offenders to be in the best interests of society, so that priority is given to a sentencing disposition that places greater emphasis on rehabilitation than on punishment.

However, in your case, those considerations are accorded significantly less weight. There is no suggestion that your young age, and immaturity, were relevantly causative of the offending. Rather, as I have discussed, it was the development by you of the sexual sadism disorder, and the enactment by you of the fantasy that was driven by that disorder, that propelled your offending. Further, it is well established that as the level of the seriousness of the criminality increases, there must be a corresponding reduction in the weight to be given to an offender’s youth by way of mitigation. In the present case, in view of the most grave circumstances in which you committed the offences, and the depraved motivation that lay at the heart of them, the weight to be given to your young age must be significantly moderated. In a case such as this, the sentencing purposes of general deterrence, community protection and denunciation must assume a much greater role in the determination of your sentence than your youth and your rehabilitation.

It is relevant that you do not have any previous convictions. It is particularly to your credit that that is so, notwithstanding some of the behavioural difficulties that have been connected with your autistic disorder in the past, and, also, considering the largely dysfunctional domestic circumstances in which you were living at the time of the offending.

I also accept that, as a result of your autistic disorder, you may experience more difficulty during your term of imprisonment than an offender who is not affected by such a condition. Your autistic disorder affects, not so much the content of your conversation, but rather the tone and style with which you communicate with others. You have already experienced some conflict with at least one other prisoner. It is likely that that difficulty might recur in the pressured and highly charged atmosphere of prison, in which some inmates tend to overreact to misperceived slights directed at them. Further, due to the nature of your offending, you have been kept in a protection unit since your arrest. It is probable that, during your sentence, you will need to be held in such circumstances at least for the foreseeable future. As such, your opportunities for participating in employment, training and education, and other activities, will be limited.

In the course of sentencing submissions, your counsel relied on the sentences imposed in the four cases to which I have earlier referred, namely Brown, Robertson, Leigh and Willis, as demonstrating the current sentencing practices which have been in place since the introduction of the standard sentencing regime.

The sentences, that were imposed in those cases, do not constitute precedents for the sentence which I am to impose upon you. Each of those cases involved facts which, in many respects, were quite different to the circumstances of the present case. They do, in the broadest sense, provide some information as to general sentencing practices in serious cases of murder since the introduction of standard sentencing. However, in light of the unusual and most serious circumstances of this case, the assistance to be derived from those cases is limited.

The principles, which apply to determining your sentences, are well established. It is necessary that the sentences, which I impose on you, be sufficient to adequately express the condemnation by the Court, and by the community, of the appalling crimes committed by you. As such, the sentences must be of sufficient severity to uphold the sanctity of human life, which is the most precious value in our society, and to vindicate the right of all persons, but in particular women, to be safe in the streets and open spaces of our State.

In addition, it is important that the sentences, that I impose on you, be of sufficient severity to serve as a general deterrent to others in the community, by delivering a clear and unequivocal message that the kind of outrageous and depraved conduct in which you engaged will be met with the most severe of sentences, in which mercy plays no role. It is only in that way that this Court can do its best to protect the lives and safety of women, and other vulnerable members of our society, from the type of predatory conduct in which you engaged.

It is also important that the sentences be of sufficient duration to provide protection to those members of our society from you, at least until you are properly assessed to be safe to return to the community. The conclusion, that I have reached about your prospects of rehabilitation, and the risk that you will re-offend by succumbing to your sexual sadism disorder, means that substantial weight must be given to the protection of the community, but bearing in mind the principle that that consideration does not justify the imposition of sentences that are disproportionate to the seriousness of your offending.

In addition, it is important that the sentences, which I impose on you, are sufficient to ensure that you yourself are personally deterred from further wrongdoing of the kind in which you engaged in this case, and to instil in you some understanding of, and insight into, the horrifying nature of the crimes that you committed.

Ultimately, the sentences, which I am to impose upon you, must give effect to the purposes of sentencing to which I have just referred. In determining those sentences, I have taken into account the circumstances of the offending, and the gravity of each of those offences. In particular, as your counsel realistically conceded, each of the offences were an extremely serious example of particularly serious offences. In summary, the offences were not spontaneous, but, rather, you had thought about them, and in that way premeditated them, for a substantial period of time as you stalked Eurydice Dixon while she walked towards the scene of the offending. Your conduct during that period of time was predatory and disturbing. You had plenty of opportunity to come to your senses and to desist from where your dark desires were leading you. Your offending involved a most cowardly violent attack on an innocent decent young woman who was defenceless and helpless in all the circumstances. Each of the three sexual offences — the rape, the attempted rape and the sexual assault — constituted a gross violation by you of her person and her dignity. Your actions in performing each of those offences were cruel and despicable. The intentional killing of her by you — the murder — was an act of extreme callousness. You subjected Eurydice to a most horrifying ordeal. Your motivation for that crime was a reflection of the darkest form of human thinking. To intentionally murder someone, for the purpose of gaining sexual gratification, places your offending in one of the highest categories of the offence of murder. Your actions in doing so were those of pure and unmitigated evil. For those reasons, the offences for which I am to sentence you must be viewed as being among the most grave instances of those offences. Your moral culpability in respect of each of them was most high.

On the other hand, I also take into account the mitigating circumstances that I have already discussed. In summary, they include making some allowance for the indirect contribution that your autism made, not to the offending, but to the development of the sexual sadism disorder that precipitated the offending. The early plea of guilty by you was of considerable value, both to the community, and also to the victims. Your cooperation with the police, albeit somewhat limited, was also of value and importance. Your youth is a relevant mitigating circumstance, but in light of the seriousness of your offending, the weight to be given to it is limited. You have no previous convictions, which is to your credit, given your autism disorder and the circumstances of your upbringing. As I have found, you have come to feel remorse for what you have done to Eurydice and her family. I take into account the dysfunctional circumstances in which you were living, and I also take into account that, because of your autism, and because of the nature of the offences for which you have been convicted, you will suffer some hardship during the sentence of imprisonment which I am to impose upon you.

The decision, as to the appropriate sentence in your case, by balancing those conflicting considerations, has been particularly difficult. In light of the very serious nature of the offending, and in particular in light of the evidence as to your motivation, I raised with your counsel, and with the prosecution, the question whether, in those circumstances, a sentence of life imprisonment, with a parole period, should be imposed upon you on the charge of murder. In considering that question, I have been fully mindful that you may be required to serve every day of that sentence in prison. A sentence of life imprisonment has been properly described as a dreadful sentence which should be reserved for dreadful cases. The fact that you are so young — only twenty years of age — is an important factor weighing against the imposition of such a sentence in your case.

In the course of her submissions, senior counsel for the prosecution contended that I should not impose a sentence of life imprisonment on you, but that I should impose a very lengthy term of imprisonment. I make it plain that the decision as to your sentence is for myself, as the presiding judge, and not the prosecution. That ultimate issue is for the judge alone to decide.

In the end, and after giving this matter truly anxious consideration, and giving full weight to the mitigating circumstances to which I have referred, I have come to the conclusion that the only appropriate sentence, for the offence of murder in this case, is one of life imprisonment, with a fixed minimum period of years before you are eligible to be considered for release on parole. I have reached that conclusion because of the enormity of your offending, and the extremely high level of the objective gravity of, and your subjective culpability for, that offending. In my view, only a sentence of life imprisonment, with a fixed non-parole period, could properly vindicate the central sentencing purposes of general deterrence, denunciation and community protection.

In particular, any sentence less than a term of life imprisonment would detract from the effect of the sentence as a deterrent to others who might be tempted to succumb to their own impoverished impulses to offend in the manner in which you did. Only by a sentence of life imprisonment can this Court make it absolutely plain, with no qualification, that any person, who is minded to offend in the manner in which you did, will be met with the full force of the law, and lose their right to be at liberty in society for the remainder of their lives.

Allied to that, only a sentence of life imprisonment can adequately express the true and full measure of the condemnation by the Court, and thus by the community, of the appalling depravity that lay at the centre of your offending, and thus uphold the most basic values of a decent civilised society.

In addition, in light of the conclusions that I have reached about your poor prospects of rehabilitation, and of your risk of re-offending, it is simply impossible to set, in 2019, a date by which the Court could consider that it would be safe for you to live in the community without the important safeguards of the supervision, oversight and management that can be provided by the parole system. The requirement of community protection, thus, weighs heavily in favour of the sentence that I have considered is necessary to impose in your case.

In respect of the non-parole period that I will set for you, it is important for you to understand, and indeed for all of those who are here to listen to or who later read these reasons for sentence to understand, that you will not ‘walk free from prison’ on completion of that period, as has been misleadingly stated by sections of the media who have purported to report on this proceeding. At the end of your non-parole period, you will be eligible to apply for, and, if appropriate, be granted, release on parole. In any case, and in particular in cases such as this, release on parole is by no means certain. The Parole Board will give careful consideration, among other matters, to the facts and circumstances of your offending, to the materials that have been put before me on this plea, and to my reasons for sentence. I would also expect that the Parole Board would take into account your progress during your term of imprisonment, and the steps that you have taken to address your sexual disorder, in determining whether it is safe to release you into the community under supervision. If you are granted parole, you will be released subject, no doubt, to appropriate conditions tailored to ensure that you re-enter the community safely, and on the basis that you are subject to proper supervision to ensure that you do not re-offend.

In fixing your non-parole period, I have taken into account, and given weight to, the mitigating circumstances to which I have referred. I have also taken into account my assessment that, based on the evidence in this case, you have limited prospects of rehabilitation. However, in saying that, I again emphasise that, as Professor Ogloff stated in his evidence, it is most important that Corrections Victoria makes available to you, and that you undertake, therapy and treatment directed to the sexual sadism disorder that was at the core of your offending, and that you receive that treatment at an early stage during the term of your imprisonment, while you still have the motivation to gain insight into your disorder and to address it.

In determining the sentences to be imposed on you for the offences of rape, attempted rape and sexual assault, I have been mindful that it is necessary to avoid imposing double punishment on you, arising from the circumstance that my assessment of the gravity of the murder took into account the fact that that offence was committed in the context of the three crimes that immediately preceded it. Nevertheless, each of those three offences added measurably to your offending and is deserving of separate punishment. They may have formed part of the one event, but they were each separate and additional aspects of your offending. They each added, not only to your offending, but most relevantly to the suffering of Eurydice Dixon. In view of the sentence of life imprisonment that is to be imposed in respect of the charge of murder (charge 4), it follows that the other sentences, that I shall impose on you in respect of the first three charges (rape, attempted rape and sexual assault), will be served concurrently with that sentence. I should note that, if your head sentence for murder had been one of a term of years imprisonment, and not life imprisonment, I would have directed that a part of each of the sentences on those three charges be served cumulatively on that head sentence.

Taking into account the matters to which I have referred, I sentence you, Jaymes Todd, as follows:

(1)On charge 1 (rape) — I sentence you to 11 years’ imprisonment.
(2)On charge 2 (attempted rape) — I sentence you to 7 years’ imprisonment.
(3)On charge 3 (sexual assault) — I sentence you to 2 years’ imprisonment.
(4)On charge 4 (murder) — I sentence you to life imprisonment.

In view of the life sentence on charge 4, the sentences on charges 1, 2 and 3 will be served concurrently with each other and with the life sentence.

Thus your total effective sentence is one of life imprisonment. I direct that you serve a minimum of 35 years’ imprisonment before you are eligible for parole.

Pursuant to s 18(4) of the Sentencing Act 1991, I declare that the period of 447 days, including this day, be reckoned as already served under the sentence which I impose. I shall cause a notation to be made in the records of the Court that that declaration is made.

As I have already stated, I have taken into account, as a mitigating circumstance in your favour, the fact that you have pleaded guilty. Section 6AAA of the Sentencing Act requires me to state the sentence and the non-parole period which I would have imposed but for your plea of guilty. For the purpose of that provision, but for your plea of guilty, I would have imposed a sentence of life imprisonment, with a minimum non-parole period of 43 years.

As I have already discussed, the Crimes Act 1958 stipulates standard sentences for the offence of murder and the offence of rape. The Sentencing Act requires that I explain how the sentences imposed by me relate to those standard sentences. The sentence that I have imposed for the offence of murder, and the sentence that I have imposed for the offence of rape, are higher than the standard sentences prescribed for those offences. The non-parole period that I have fixed is also higher than that prescribed by the Sentencing Act. As I have mentioned, I have considered the relevant standard sentences in respect of those offences as one of the factors in the exercise of the instinctive synthesis by which I have determined the sentences that I have imposed on you. I am deeply conscious that the sentence that I have imposed on you for the charge of murder is a severe sentence, particularly when it is compared with the standard sentence that is prescribed for that offence. The non-parole period that I have set is also substantially higher than the period fixed under the standard sentence regime. However, for the reasons that I have set out at length, I have concluded that any lesser sentence would be quite inadequate in light of the enormity of your offending, and would fail to properly fulfil the important sentencing purposes of general deterrence, denunciation and community protection.

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DPP v Todd [2019] VSC 585

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[2019] VSC 585

2 September 2019