Crown v Accused

2 Murder is a Category 1 offence under the Sentencing Act 1991 ('Act').[1] The maximum penalty for murder is life imprisonment.[2]

3 Ms Fraser was your estranged wife. You married in March 2007, had three children and settled in Cowes, Phillip Island. The marriage experienced difficulty and eventually broke down. You separated permanently in April 2017. After an initial period in which Ms Fraser lived with her parents, she returned to live with the children in the former matrimonial home at 19 Seagrove Way.

4 Ms Fraser lived in abject fear of you. Both during the relationship and after you had separated, she told friends and professionals that she was petrified of you, that you were monitoring her physical movements and electronic communications and that you had made threats that you would destroy her. Subsequent to the separation Ms Fraser obtained a Family Violence Intervention Order ('FVIO') to which you were the respondent. She changed the locks on the doors and windows of her home, had security equipment installed and the electronic remote control for the garage recoded. She also swore two police statements that detailed allegations of rape during the marriage. You were charged with rape in August 2017. You faced a contested committal hearing with respect to those charges on 30 July 2018.[3]

5 On the morning of 23 July 2018, having taken considerable measures to attempt to disguise your presence on Phillip Island, you approached Ms Fraser's home moments after she left to drive the children to school. You secreted yourself and lay in wait.

6 Upon returning, Ms Fraser drove into the garage and parked her car. Uninvited and in breach of the FVIO, you entered the garage on foot. You subjected her to a beating in which she sustained multiple injuries. You then tied a noose around her neck before hanging her from the garage door.

7 The post mortem examination established that Ms Fraser died of hanging in the setting of multiple blunt force injuries.

8 By any measure your offending was extremely grave. You invaded the legal and physical sanctity of Ms Fraser's home, surprising her and subjecting her to a savage beating before hanging her. Her last conscious moments would have passed in terror. You made some attempt to stage the scene as a suicide. You still maintain the palpable fiction that she was responsible for her own death.

9 An issue arose at the hearing of your plea as to whether your offending falls into the 'worst category' such as to justify the imposition of a life sentence.

10 The prosecution argued that your actions were premeditated and motivated by the desire to prevent Ms Fraser from giving evidence at the committal hearing of the rape charges listed for the following week as well as by your jealousy and loss of control over her. Your counsel argued that although your offending was a 'bad case of murder'[4] it falls short of being in the 'worst category', primarily because the evidence does not support a finding beyond reasonable doubt[5] that your actions were either premeditated or so motivated and further because of your previous good character and real prospects for rehabilitation.

11 To address this issue, it is necessary to examine the detail of much of the evidence led in the trial.

12 You were overseas between 6 and 19 July 2018. Upon returning to Australia you went to your sister's Chelsea Heights home, arriving at 1:29am on 20 July 2018. You left that address at 10:26am riding a black 2017 Kawasaki Ninja motorcycle. You were wearing a distinctive black and white motorcycle jacket and a black Rjays brand motorcycle helmet. You rode to Phillip Island and then San Remo. You left your usual mobile phone in Chelsea Heights and travelled with a different mobile phone with a number registered in the name of Kylie Munro. Ms Munro was a woman you had dated briefly. She gave evidence that she had set up the mobile phone with a new SIM card and lent it to you so that you could have private conversations with your father if you needed to.

13 You spent two nights at one friend's house in San Remo before moving to another for the night of 22 July 2018. That day was Ms Fraser's birthday. In contravention of the FVIO, at about 11:30am you rode your motorbike, slowly, past her house in Cowes. Ms Fraser was at home with the children and her sister and brother-in-law. The car of the latter with which, by inference, you were familiar, was parked outside.

14 Later that afternoon Ms Fraser held a small gathering of friends to celebrate her birthday. She had communicated to her new partner that her previous birthday had been horrible and that she had considered taking her own life because she was sick of you taking everything away from her. She later stated, in a text message to him on 23 July 2018, that she would remember this birthday as 'the beginning of a wonderful new stage of [her] life'.

15 Your movements the next day can be pinpointed by the combination of the Optus GPRS records for the Munro mobile telephone and various CCTV footage in which you are visible. You left the San Remo house at 7:20am and rode to Settlement Road, Cowes, arriving at 7:37am. You did not travel by the most direct route. You parked near the junction of Seagrove Way and Settlement Road and waited.

16 The Munro mobile telephone was detected to be in contact with the Cowes Esplanade mobile tower at 7:56am.

17 At 8:52am Ms Fraser left 19 Seagrove Way in her vehicle to drop the children off at school. She then met her friend Lija Matthews at a local café at about 9:00am.

18 Shortly before 9:00am you were observed walking along Seagrove Way and, at 8:55am, captured on CCTV footage walking past 13 Seagrove Way. You were not wearing your distinctive motorcycle jacket or helmet. The hood of the jacket you were wearing was up and tightly drawn around your face, your hands were in your pockets and you were looking around you as you walked.

19 At about 9:00am you were observed to walk into the front yard of 19 Seagrove Way. It was heavily vegetated. You were not observed again until after Ms Fraser had arrived home, which she did at 11:22am. She drove, nose first, into the garage. You also entered the garage.[6]

20 Ms Fraser had two mobile phones. The second had been provided to her by a SalvoCare worker after it was discovered that her original phone had been connected to your iCloud absent her knowledge. At 11:36am Lija Matthews telephoned Ms Fraser. The call went unanswered. There was no further activity on either of her mobile phones after that time. Ms Fraser failed to attend a counselling session with Bass Coast Health at noon.

21 Inside the garage you savagely assaulted Ms Fraser. You admit to causing her non-fatal injuries.[7] Ms Fraser sustained 41 separate blunt force injuries in the nature of bruises and potential abrasions to the face, head, neck, upper limbs, lower limbs, fingers and hands. Some were visible on the skin and others were much more visible only under the skin. The injuries were consistent with the application of blunt force such as a punch, a kick or a fall. The injuries to the fingers were consistent with defensive injuries sustained while blocking. All of the blunt force trauma appeared to have been sustained at about the same time. It is possible that the injuries to Ms Fraser's legs were caused by decorticate movements following the hanging in which, if she was not already unconscious, was likely to have led to a loss of consciousness within about 10 seconds and seizures within about 18 seconds.

22 Ms Fraser also had a likely lower grade traumatic axonal injury. Such an injury is caused by force, either of rotation or acceleration, applied to the brain which disrupts the axonal functioning. The extent of injury is dependent upon the direction and the speed of the force. The force applied to Ms Fraser could not be quantified and whether she was conscious or unconscious at the time of its application remains unknown. But Ms Fraser survived for at least 10 minutes afterwards. Once hanged, she sustained ligature bruising to the neck.

23 Medical evidence could not establish whether Ms Fraser was conscious or unconscious at the time she was hanged.

24 Stephen Attrill, who was walking his dog with his wife, observed you at the top of the driveway next to the garbage bins doing something while the door to the garage was raised about two feet from the ground. He made eye contact with you but did not speak to you. Mr Attrill said that he turned away before looking back. You continued to look at him as he walked off, following him, more or less, with just a body movement. Mr Attrill said that your gaze startled him a bit.

25 The time at which that occurred was in issue in the trial. I will return to it below. Mr Attrill said that he had taken his regular walking route and the house at 19 Seagrove Way was 'maybe' about a 15 or 20 minute walk from home. He and his wife 'usually' left at about half past ten, it depended. His departure time on 23 July 2018 was 'something around about there'.

26 You were captured on CCTV footage running away from Ms Fraser's home at 12:04pm. You had your hood up, your hands in your pockets and appeared to have something stuffed up the front of your jacket. You retrieved your motorcycle, motorcycle jacket and helmet and returned to San Remo. Your motorcycle was observed to be parked on the footpath outside 6 Park Road, San Remo between about 12:30pm and 1:00pm.

27 You then rode to your father's house in Paynesville. En route, at 3:47pm, you were intercepted by police for speeding. The Senior Constables involved observed you to be quite agitated and visibly upset. You arrived at your father's house at about 5:15pm. He observed a scratch to your nose. Either then or later you told him that you had perhaps acquired it on a walk on the Lyrebird Track. You also told your father that that you had travelled on your motorbike at speeds that he regarded as astronomical and that scared him.

28 The Munro mobile telephone service made contact with the Paynesville mobile tower at 5:47pm, the first contact it had made with any tower since 7:56am.

29 Ms Fraser, described unanimously by witnesses as a devoted mother, failed to collect her children from Cowes Primary School. Staff alerted police. Her body was found at about 5:05pm after police forced entry to the garage via the rear pedestrian access door from the backyard. There were no signs of forced entry to the house. It was described as being 'fortified'.

30 Your father was telephoned by police at 1:57am on 24 July 2018. After arrangements were made, police attended your father's home at about 3:40am and notified you of Ms Fraser's death.

31 Later in the day on 24 July 2018 you told your friend Michael Lee that you had not been near Phillip Island at the time of Ms Fraser's death. You also made a comment that you 'did not use a credit card or EFTPOS or anything'.

32 Examination of the scene in the garage revealed that Ms Fraser was wearing black pants and a black singlet top. She was barefoot. The shoes she had worn while taking the children to school and to the café were found on the floor inside the hallway just inside the internal garage door. The white top she had worn was not located in the house, or elsewhere. Ms Fraser's feet were almost flat on the floor. There was a clump of apparent hair attached to the rope some distance above her head. The rope was wrapped around the track of the garage door and held in place by friction and the weight of Ms Fraser's body rather than by a knot affixing the rope to the garage door track. A 'hangman's noose' style knot was tied around her neck. There were several areas of apparent blood-staining on the rope between Ms Fraser's head and the garage door track. Her hair was unkempt and had come loose from her ponytail. It had become entangled in the rope, appeared wet at the front and displayed apparent blood-staining. Ms Fraser had apparent bruising to her scalp and an injury to the fingernail of her left little finger. She did not have any visible blood on her hands, save for a small amount on her little finger and under her fingernails.

33 A three-step ladder, tipped onto its side, was located beside her body. Two bicycles and two children's scooters were standing upright and apparently undisturbed immediately beside Ms Fraser's body.

34 Ms Fraser's handbag was undisturbed on the front seat of her vehicle. Her two mobile telephones were in the console.

35 The rope used to hang Ms Fraser belonged to her father. It was one of two lengths of rope that Mr Fraser had stored on some green shade cloth on top of a plastic tub, on the bottom shelf of a shelving unit in the garage. He gave evidence that he had stored the rope in the garage after you had left the former matrimonial home. DNA analysis of the blood on the rope confirmed the presence of your DNA at three locations on it: the outside of the knot, the surface of the knot when it was untied and the loop below the knot. You were a contributor to the DNA found underneath the fingernails of both of Ms Fraser's hands.

36 Ms Fraser's blood was found on swabs taken from the powder room floor, step ladder step, garage wall and bottom left-hand corner of the roller door. Hairs found on the side of the step ladder came from Ms Fraser and she was a contributor to the DNA found on the outer surface of the step ladder and the garage remote on the wall. Your DNA was not found on these surfaces.

37 Ms Fraser's DNA was found on one location on the fuel tank of your motorcycle. Her DNA was not found on the outside of your motorcycle gloves but she was not excluded as a contributor to the inner surface of your left glove.

38 On 26 July 2018 you were arrested, by appointment, at the Melbourne West Police Complex. You were observed to have a two centimetre abrasion to the right side of your nose and a superficial scratch of three centimetres to the inner aspect of your right forearm. The questions asked of you by police were as to whether you were on Phillip Island on 23 July 2018. You exercised your right to remain silent. You were released without charge.

39 At about 11:00am on 28 July 2018 you approached the premises of 4 Park Road, San Remo. You observed police taking written statements from your friends at a different address on the same road. You had an interaction with police before gaining access to the premises at 4 Park Road. You were then observed to jump over the back fence into the vacant block at 34 Park Road by Nola Monahan, the resident of [redacted] Park Road, although she could not see from which property you jumped. The configuration of the road is such that these numbered houses back onto one another. You reached the shed and bobbed down so that Ms Monahan could not see you until you got past the shed again and stood up. You walked towards the front of the block, looking from left to right and behind you. Once level with Ms Monahan's back porch, you made eye contact with her from about seven metres away. She said that it looked like there was something up your T-shirt, which she described as the shape of a little backpack, about 30cm wide and tall. You said to Ms Monahan, 'if the cops ask, you haven't seen a thing'.

40 Neither the white top worn by Ms Fraser on 23 July 2018 nor the distinctive two toned motorcycle jacket worn by you that day as well as on 20 July 2018, being the day you left your sister's house, and 22 July 2018, when you rode past Ms Fraser's home, have ever been found. The motorcycle helmet worn by you on 20 July 2018 and later, was later found by police in the rear shed of 4 Park Road, San Remo.

41 You were arrested and charged with murder on 2 August 2018.

42 The above summary of the evidence led in your trial, although not exhaustive, provides sufficient background to the findings of fact I make with respect to the major issue in contention at your plea.

43 I am satisfied beyond reasonable doubt that your murder of Samantha Fraser was premeditated. I find that you left your sister's house on 20 July 2018 with the intention of travelling to Phillip Island to kill your estranged wife. In so doing, I particularly note the following matters.

44 First, you attempted to disguise your presence near or on Phillip Island generally and around Seagrove Way in particular. You left your own mobile phone behind at your sister's house. Although you did not acquire the Munro mobile phone for the purpose of travelling to Phillip Island, you nonetheless chose to take a phone registered in a name other than your own. And, further, you turned it off after you had arrived in Cowes early in the morning of 23 July 2018 and did not turn it on again until after you had reached your father's house in Paynesville. On 22 July 2018 you rode past Ms Fraser's home, slowly. That she had family visitors was obvious by the car parked outside. On the morning of 23 July 2018 you rode to Cowes, not by the most obvious route. You left your motorcycle, motorcycle jacket and helmet some distance away from the house. Your approach on foot, captured by CCTV footage, can clearly be described as furtive. You had a hood pulled tight over your head and your hands were in your pockets. You were looking all around you as you walked. You were dressed in the same manner as you returned to your motorcycle, running. The witness who observed you enter the front yard was sufficiently suspicious of your activity to execute a U-turn to take a second look. You phoned your friend the day after Ms Fraser died to tell him that you had been nowhere near Phillip Island and, inferentially, had left no digital financial trace at the relevant time.

45 Second, you approached the address on foot moments after Ms Fraser left in her car with the children. This indicates that you were waiting and watching for her to leave. You gained access to the heavily vegetated front yard. You waited, hidden, until she returned. You were prepared to wait some two and a half hours.

46 Third, I am satisfied that your physical attack on Ms Fraser happened moments after she had driven into the garage. I consider it most likely that you surprised her as she sat in the driver's seat after entering the garage in her car. Ms Fraser's handbag remained undisturbed on the front seat. Her mobile phones, one of which was a dedicated safety phone, remained in the console. Ms Fraser was terrified of you. Less than 48 hours before her death she had said that she was more vigilant about her safety because you had recently been sighted on the island. She sustained defensive injuries to her fingers. The combination of these matters makes it highly likely that if she had been aware of your presence in the garage she would have immediately attempted to ensure her own safety by phoning for help or driving away. She simply would not have voluntarily remained in your presence for any reason. Accordingly, I find that your admitted, savage physical assault did not occur as a result of a momentary loss of temper following a discussion or argument with Ms Fraser.

47 Fourth, while there are aspects of the murder that appear ad hoc, I find that you intended and planned for Ms Fraser to die. I consider your use of the rope, the existence of which you did not know about prior to entering the garage, and your clumsy rearrangement of the scene to suggest that she took her own life by hanging, to have been opportunistic. It followed a brutal beating which, at the very least, incapacitated Ms Fraser. The rope was in an open location, clearly visible. The manner of your dress on approach to the house leaves open the possibility that you had a concealed weapon on your person. You may have considered that your physical strength coupled with the element of surprise was sufficient to achieve your purpose absent a weapon. In any event, your improvisation whilst at the scene does not detract from the matrix of evidence establishing premeditation.

48 It is to be remembered that you could not have improved your position if Samantha Fraser was alive when you left the scene. You were on bail and facing a committal hearing for rape charges the following week. Your mere presence was a breach of the FVIO. Given every effort Ms Fraser had made to totally separate from you, including the FVIO, the Family Court proceedings, the complaint of rape, the disabling of tracking capabilities you placed on her electronic devices and the fact that her parents had moved in to assist her,[8] it is inconceivable that you could have thought that you could persuade her to withdraw the rape complaint or make concessions in the Family Court proceedings by turning up unannounced and arguing with her. You would have expected that Ms Fraser's response would have been to call the police.

49 Fifth, I consider that Ms Fraser was either unconscious or dead by the time Ms Matthews telephoned at 11:36am. This strengthens my conclusion that the attack was immediate and was your long held, sustained goal. I consider that at the time Mr Attrill saw you doing something on top of the garbage bins whilst the roller door was about two feet off the ground, Ms Fraser had already been hanged inside the garage and you were attempting to alter the scene to suggest she suicided. Mr Attrill's evidence as to the time he saw you was imprecise. I reject the submission that he must have seen you before Ms Fraser returned at 11:22am, and therefore you had access to the family home independent of Ms Fraser. There was no sign of forced entry to the garage or elsewhere in the home. All of the locks and security codes to the premises had been changed. And, given the level of fear experienced by Ms Fraser, I consider it fanciful that you had possession of a missing set of keys to the new locks, as argued on your behalf to the jury.

50 Sixth, the suggestion that Samantha Fraser took her own life after you had so brutally attacked her is ludicrous. The staging of the would-be suicide scene was part of your fictional conceit that you were not at Phillip Island at the relevant time. While it is not possible for the medical evidence to establish whether she was conscious or not at the time she was hanged, I consider it close to impossible that she was not, at the very least, significantly incapacitated. Despite your relative sizes and weights, it would have been a difficult task to hang a struggling woman. You removed her white shirt before she was hanged. Again that would have been a difficult task if she was struggling against you. Even if she had done something as improbable as removing her own shirt, the garment would have been found at the scene. I consider it likely that you washed her face and hair to remove as much blood as possible and removed her shirt because it was badly bloodstained. Ms Fraser's feet were bare and nearly flat on the floor. If she had kicked off her shoes prior to hanging herself, they would most likely have been near to her rather than placed neatly in the hallway of the house next to other shoes which appeared to have been previously removed and haphazardly configured. And, given the position of her feet, it is likely that she would have been able to support her own weight, preventing the hanging.

51 Seventh, there was no point in you removing the white shirt if Ms Fraser was alive when you left. I consider that you had that shirt concealed in the front of your hooded jacket when you ran away from the scene. And it is likely that it was the item you retrieved from 4 Park Road on 28 July 2018 when you were seen by Nola Monahan and warned her to say nothing to police. If you ran away because you had assaulted Ms Fraser and nothing more, you would have known that she would seek help. The presence or absence of her shirt would not alter the level of legal trouble you would then encounter. The extent of her injuries would have been apparent from the bruises and abrasions.

52 Eighth, there was unanimous evidence that the depression Ms Fraser experienced in the immediate aftermath of her separation from you had dissipated. She told many people that she was feeling stronger and looking forward to a new life. She had an appointment to have her hair done so that she would be presentable when giving evidence in court on 30 July 2018. She had told a friend that she was feeling strong and determined to have her voice heard. She had just celebrated her birthday with friends and, whatever course the relationship might have run, she had a new partner. Her text message to him in the early morning of 23 July 2018 speaks volumes. And, she was a most devoted and loving mother.

53 Finally, I am also satisfied beyond reasonable doubt that a large part of your motive in killing Ms Fraser was to prevent her from giving evidence against you in the rape proceedings. You had, until 22 July 2018, complied with the terms of the FVIO. There was no reason for you to attend her home, in the manner you did, otherwise.

54 In this regard I note that you murdered Ms Fraser one week before she was to give evidence on oath in the committal proceedings. I consider it fanciful, as suggested on your behalf at trial, that you did not know she would be doing so on 30 July 2018. Evidence was given at trial of the series of mentions that had taken place in the Magistrates' Court. You were legally represented at the committal mention on 14 December 2017 at which date leave to cross-examine Ms Fraser was granted. A series of special mentions followed on 8 February 2018, 5 April 2018, 3 May 2018 and 6 July 2018. You were legally represented at each of them. They concerned whether leave to cross-examine another witness would be granted and whether there would be any application pursuant to s 32C of the Evidence (Miscellaneous Provisions) Act 1958. It is inconceivable that your legal representative would not have discussed the committal procedure with you or that you would not have provided instructions relevant to the cross-examination of Ms Fraser in that forum.

55 In so saying, I make it clear that no part of the sentence I will impose upon you for murder is referrable to the rape charges, for which you are entitled to the presumption of innocence and which have now been discontinued. I further make plain that while evidence of the fact and level of family violence you perpetrated on Ms Fraser is relevant to the circumstances in which you are to be sentenced for murder, you are not being sentenced for any criminal act involved in that violence.

56 I also consider that your anger at her for leaving the marriage, preventing you from having contact with your children and the looming financial settlement contributed to your actions. So did your jealousy of her interactions with others, particularly men. While your bizarre and entitled actions of publicly accosting friends and neighbours of Ms Fraser and accusing them of having affairs with her or taking her side against you might have cooled somewhat from its peak in 2017, in July 2018 you were far from sanguine about her basic right to choose how she lived and with whom she associated.

57 I will return to consider whether these findings mean that your conduct falls within the worst category of murder after considering both the impact it has on the victims of your crime and your personal circumstances.

58 I now consider the impact your crime has had on the many people who loved and supported Samantha Fraser. She confided in these people and they speak of the attempts they made to keep her safe from you.

59 I have received and considered 16 victim impact statements. They reveal that Ms Fraser was a woman who had an evident capacity to form meaningful, loving relationships and to become significant in the lives of many others.

60 Samantha Fraser was the eldest daughter to Janine and Trevor Fraser. As Mrs Fraser says, her middle name - Joy - barely did justice to the delight that she brought to her parents. Mrs Fraser describes the magnitude of grief and irreparable hurt that she feels at the loss of her beautiful daughter. This trauma is compounded by the narrative that she had committed suicide. Mrs Fraser says that one of the hardest things she has had to endure was seeing her daughter vulnerable and afraid of you and not being able to protect her. She describes the image of her daughter hanging in the garage, broken and bruised, as a nightmare from which she cannot wake. She relies on medication to get through symptoms of depression, anxiety and post-traumatic stress disorder ('PTSD') and cannot go anywhere near her daughter's former house without suffering panic attacks. As a published poet and former children's author, she no longer has the energy or time to write.

61 Trevor Fraser speaks of how Samantha was college captain and dux in her final year of secondary school and went on to university to become a psychologist. Words cannot describe his grief at losing her or the trauma associated with how she died. His memory of her vibrant personality is clouded by the terrible physical trauma she endured in the garage before her death. His plans for a quiet, uncomplicated retirement have been replaced with caring for and comforting Ms Fraser's three traumatised children, driving them to after school activities and looking after their pets.

62 Despite embracing the responsibility of caring for their three grandchildren, the emotional, financial and social impacts of that responsibility are acutely felt by Mr and Mrs Fraser. And the children worry about their grandparents not being around as they grow older.

63 Mr Fraser attached several photographs of his daughter to his statement, including the image chosen for her funeral service and others taken of her with her children. She was a vibrant woman at the peak of her life.

64 Mr Fraser also submitted a second victim impact statement following the adjournment of your plea hearing consequent upon the withdrawal of counsel who had acted most ably on your behalf at trial. Mr Fraser, who gave evidence in the trial, has at all times conducted himself with remarkable restraint and dignity, never more so than describing the prolonged difficulties associated with these proceedings for him, Mrs Fraser and your three children. Despite looking forward to starting 2023 afresh, another school year has commenced under the cloud of these proceedings. The financial burden of delaying the Confiscation Act 1997 matters continues. As Mr Fraser so eloquently stated, every court hearing draws his family back to the garage and the image of his daughter's final minutes of life.

65 Janine and Trevor Fraser describe Samantha as a mother who loved her children fiercely, delighted in their smallest achievements and was absolutely present to them. She was a mother who was the very centre of their universe. Your children continue to suffer the unbearable loss of their mother at the hand of their father.

66 Your elder daughter, J, prepared a statement that she read in court. She did so to show others that she is a fighter. She said that her mother had a limitless amount of love for those in her life. In taking that life, you destroyed so many others. J speaks of the hurtful and mean comments made by other kids about 'an event that you would only hear about in movies.' Despite struggles with physical health, anxiety and suicidal thoughts, she is slowly regaining confidence and becoming the person she wants to be. She wants justice for her mum and for the life she deserved, for friends and family who broke down and struggled to cope and for herself.

67 Your younger daughter, A, also prepared a statement. She said that your actions flipped her life upside down. On special occasions, she comes to realise that her mum is not waiting for her. Her mum will not be there as she goes through the challenges of life. It is hard to describe what that feels like, and how challenging and heartbreaking that is. There are too many of these moments to name. The absence of her mum feels like a gap in her heart. You took the best part of her heart by taking her mum away. Her mother will always be the angel that lights up her sky.

68 Nadine Leed shared a very close friendship with Samantha Fraser. Ms Fraser confided in her about the violence in her relationship with you. The grief and suffering following her death left Ms Leed unable to eat properly or perform daily activities for weeks. She suffered from depression, experienced nightmares and psychological distress and could not initially attend to her children's emotional needs due to her own grief. She has sought ongoing mental health counselling. Her sense of safety - and that of her children's - feels compromised. This has resulted in renovations and the installation of security equipment in her home. Her work as a kindergarten teacher has been disrupted. She is unable to relate to people who are happy, smiling and enjoying their lives. Her heart feels broken as her best friend is no longer here.

69 Samantha Fraser was Lija Matthews' first friend on Phillip Island and became her best friend. They shared many adventures and confided in each other. Ms Matthews speaks of her best friend 'taking off her mask' and 'revealing a very unhappy marriage and a whole lot of fear.' Samantha's death left her unable to eat, sleep or leave the house without having a panic attack. She has since been diagnosed with PTSD.

70 Peter Matthews is Lija Matthews' husband. He describes Ms Fraser as a bright, caring person whose presence is missed by many people, and whose murder changed the course of his family's life forever. He has had to care for his wife and look after his family whilst struggling with stress and isolation. He has worked with a trauma counsellor and sought the help of other medical practitioners. He has thought about leaving his profession as a teacher.

71 I have also received victim impact statements from Christina Aitken, Emma Bradford, Matthew Dengerink, Peta Le Roy, Dayne Lewis, Rachael Lewis, Rebecca McFarlane and Alice Munro. It suffices to say that they all feel the acute loss of a cherished friend and have found it difficult to move past this life-altering event.

72 I have considered all the victim impact statements submitted and read. They are deeply affecting.

73 It is necessary to consider your personal circumstances.

74 You were born in September 1976 and are now aged 46 years. Your early upbringing in suburban Melbourne was secure and stable. In primary school you excelled in both academic and sporting roles and had a strong friendship circle. However, you experienced bullying and ostracisation following the transition to secondary school. You were later able to re-establish a supportive social network when you changed schools in year 10. Your parents had a positive relationship when you were growing up, but separated when you were 28. Your mother passed away in 2019. You remain on good terms with your father and older sister.

75 After obtaining a Bachelor's degree at RMIT university, you completed a carpentry apprenticeship and a number of other accreditations related to carpentry, construction and occupational health and safety. You worked in commercial construction for two decades prior to your arrest in 2018.

77 You have the support of your father, sister and several close friends. I have received and considered 14 character references and letters prepared by them on your behalf.

78 Your sister, Amanda Baptist, has fond memories of the two of you growing up. She describes your strong work ethic and your role as a caring, supportive brother to her. She considers you to be polite, empathetic and thoughtful of others, as well as one of the most helpful, positive, considerate and honest people in her life. Your father, James Basham, says he has proudly witnessed your achievements through schooling, employment and family life. He says that you have continuously shown initiative and support within your network of friends, and easily found employment.

79 Your friends describe you as a kind, loyal and caring friend and a devoted father to your children. Those who have also known you in a professional capacity describe you as hard-working, driven and reliable. Shonna Read, a friend and former girlfriend, describes only fond memories of her relationship with you and describes you as the most selfless person she has ever met.

80 Counsel who appeared on your behalf at the plea hearing on 19 September 2022 argued that these references provide substance to your character beyond your offending. It was argued that the offending was out of character and that you were not beyond redemption.

81 You maintain your innocence in respect of the offending.

82 I have received a letter from Ms Jenny Hosking, Assistant Commissioner of Corrections Victoria, about the conditions you have faced during your remand.

83 The four years you have spent on remand constitute your first time in custody. You currently reside in a protection unit at the Melbourne Assessment Prison. You were classified as a prisoner with protection status upon your reception into custody given the significant media attention surrounding your offending. You were moved to a different protection unit upon receiving threats from other prisoners who found out about your offending through media reporting.

84 Ms Hosking states that protection status does not necessarily require restricted living conditions in comparison to mainstream prisoners. However, you are limited in the number of prisoners you may interact with and the hours out of your cell are more limited than in other prisons. It is argued on your behalf that your conditions are restrictive and that this is a relevant factor given this is your first time in custody.

85 You are able to access educational services through Box Hill Institute, and indeed I note you have completed various certificates during your time in custody.

86 You have been in custody throughout the COVID-19 pandemic which has brought extra restrictions to your regime, both in terms of your daily conditions and the ability to interact with your friends and family.

88 Returning to the major issue on your plea and whether your offending falls within the 'worst category' of murder, the High Court said in R v Kilic:[9]

What is meant by an offence falling within the 'worst category' of the offence is that it is an instance of the offence which is so grave that it warrants the imposition of the maximum prescribed penalty for that offence. Both the nature of the crime and the circumstances of the criminal are considered in determining whether the case is of the worst type. Once it is recognised that an offence falls within the 'worst category', it is beside the point that it may be possible to conceive of an even worse instance of the offence.

89 On your behalf it was argued primarily that this was a bad case of murder short of the worst category because murderous intent was not formulated until some moment after the assault on Ms Fraser commenced. For the reasons articulated above, I reject that submission.

90 I now turn to the other arguments advanced in writing on your behalf.[10] First, the reasonably efficient manner in which your trial was conducted. There were agreed facts between the prosecution and defence concerning the allegations of your sexual misconduct, indicative of the fact that a significant proportion of the prosecution case was never in dispute. Second, your good character including your absence of prior convictions and your good prospects for rehabilitation. Third, sentencing considerations of specific deterrence and protection of the community being of limited relevance in light of your character and also because you will be elderly when you are eventually released from custody. Fourth, the conditions of your custodial regime as outlined above. Fifth, comparable cases and current sentencing practices.

91 As to the first of these considerations, while your defence was conducted efficiently and with appropriate cooperation, the 'admissions' you made as to breaching the FVIO and 'causing the non-fatal injuries' must be seen in light of the overwhelming evidence against you.

92 As to the last of these considerations, the Court is precluded from having regard to sentencing practices for murder that predate the introduction of the standard sentencing provisions.[11] I have been referred to cases of murder which postdate the standard sentencing provisions and which are presented as having in common conduct characterised as and contextualised by domestic violence.[12] I find none of these cases to be of particular assistance. Not all followed a finding of guilt by a jury and the circumstances of the offenders and offending are various but, in particular, none share the premeditation and motive unique to your crime.

93 In oral submissions counsel emphasised that both the nature of the offence and the characteristics of the offender must be considered. In this context it was argued that your previous good character and prospects for rehabilitation prevent a finding that your crime falls into the worst category.

94 While it is undoubtedly correct that both the crime and the criminal must be considered, I do not accept that the two considerations are of equal weight or that a man lacking prior convictions and/or who is otherwise of good character cannot commit a crime which falls into the worst category. Your crime was objectively heinous. It was the ultimate act of family violence. Such violence is pernicious largely due to the fact that it is often invisible in public life, committed disproportionately by men who might otherwise enjoy a reputation for being good fathers, hard-working providers, reliable friends or community minded citizens. The character evidence submitted on your behalf describes you in these terms. But that evidence is nearly silent as to your behaviour towards Samantha Fraser. Tom Everest states that as a fly-in fly-out worker you would try and pack as much adventure into your days off 'as well as take the load off Samantha' as much as you could. That single statement is at odds with all other evidence of your treatment of and attitude towards Ms Fraser.

95 While you fall to be sentenced as someone lacking prior convictions, the question of your character is entirely different. The evidence of the nature of your relationship with Ms Fraser during the course of your marriage and after the separation was incontrovertible. You were emotionally and psychologically abusive as well as threatening, domineering and coercive towards Ms Fraser. And, you exposed your children to the effects of that behaviour. Your general reputation cannot mask or excuse that conduct.

96 Further, you are utterly without remorse. You do not accept the returned jury verdict in what was an overwhelming prosecution case. You continue to maintain that Ms Fraser took her own life. You are unmoved in the face of numerous statements detailing the pain you have caused your children, as well as Ms Fraser's family and her friends, whose lives you have forever scarred. Your behaviour towards Ms Fraser within your marriage and your premeditated murder of her to prevent her giving evidence of rape against you is conduct that is selfish in the extreme and displays an extraordinary degree of entitlement.

97 And, there is no explanation for or amelioration of your conduct by your personal circumstances. There is no evidence that you suffer any psychological condition or any effect of unusual trauma or difficulty in your upbringing.

98 Your decision to execute Samantha Fraser, a woman who had found the courage to defy you, keep her children safe from you and live a life free from you, was cold. She had made complaints of serious criminal offending against you. The legal process in which she was the primary witness against you was rapidly approaching a significant juncture. Hard against the reality of her decisions, you determined that her life was expendable. The steps that you took to disguise your presence on Phillip Island and stage a suicide scene shows that you had the arrogance to think that you would not be caught. Your moral culpability is at the highest end.

99 Self-evidently the sentence I impose must reflect the sanctity of human life and the abhorrence with which society regards violence towards domestic partners.[13] General deterrence, denunciation, protection of the community and just punishment are all important sentencing factors. As the Court of Appeal said in Pasinis v The Queen:[14]

General deterrence is of fundamental importance in cases of domestic violence. The victims of such violence are often so enveloped by fear that they are incapable of either escaping the violence or reporting it to the authorities. The key to protection lies in deterring the violent conduct by sending an unequivocal message to would-be perpetrators of domestic violence that if they offend, they will be sentenced to a lengthy period of imprisonment so that they are no longer in a position to inflict harm.

100 The question of whether your crime falls into the worst category remains. This was a premeditated killing, with a notable degree of planning, with the murder scene then staged to suggest suicide. The method of death - hanging - after a brutal assault was particularly vicious. It occurred against a background of sustained family violence. It was motivated primarily by your desire to avoid being committed to stand trial on rape charges and, to some extent, by rage at and jealousy of your estranged wife for forging a life absent your control.

101 The standard sentence for murder is 25 years. That sentence is for an offence that is in the 'middle of the range of seriousness', taking into account only the 'objective factors' affecting the relative seriousness of the offence.[15] That is, without matters personal to you and wholly by reference to your conduct. For the reasons I have articulated, your offending far exceeds the middle of the range of seriousness and is at the highest end of that scale.

102 The determination of 'worst case' offending requires me to consider both the objective seriousness of your offending and your personal circumstances. I am of the view that your lack of previous convictions and the lesser importance of specific deterrence in the sentencing synthesis coupled with what prospects for rehabilitation you may have cannot overcome the impetus to characterise your abominable conduct as worst case. It deserves a life sentence.

103 Having determined that, unless I am of the view that it is not in the interests of justice to do so, I must fix a non-parole period of at least 30 years.[16] In this regard I am particularly cognisant of your age and issues of specific deterrence and rehabilitation.

104 You are now 46 years of age. You have no criminal history. The twin issues of specific deterrence and rehabilitation are difficult. They are complicated by the unique circumstances of your crime and lack of criminal history as well as by your lack of remorse and complete denial of any behaviour that may be characterised as family violence. I am of the view that specific deterrence is of some relevance and that any assessment of your prospects for rehabilitation is of small utility given that you will be an elderly man if and when released. Balancing these and other relevant factors, the interests of justice do not require a lesser non-parole period than the statutory minimum.

106 Balancing as best I am able the competing considerations laid down in the Act and having regard to the matters I have just discussed, for the offence of murder I sentence you to life imprisonment. You must serve a minimum of 30 years before you are eligible for parole.

107 I declare that you have already served 1670 days of that sentence by way of pre-sentence detention, not including today.

108 I make the disposal order in the terms sought by the Crown.

109 I will in due course hear further submissions in respect of the forfeiture order application.

[1] Act, s 3. Accordingly, the Court must impose a term of imprisonment. The standard sentence for murder is 25 years: Crimes Act 1958, s 3(2)(b).

[2] Crimes Act 1958, s 3(1)(a).

[3] Subsequent to the murder conviction, the Director of Public Prosecutions withdrew the three extant rape charges.

[4] Hunter v The Queen [2013] VSCA 385; (2013) 40 VR 660, 690-1[127]-[129] (Priest JA); [2013] VSCA 385.

[5] See, e.g. Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47, 72 [70] (French CJ, Bell, Keane and Nettle JJ); [2015] HCA 29.

[6] The prosecution case was that you were either already in the house or entered the garage immediately after Ms Fraser drove in. For the reasons later discussed, I consider it likely that you entered the garage after Ms Fraser entered the garage in her car.

[7] That admission was made shortly before the trial commenced. Until then your position as stated in the Defence Responses to Prosecution Opening filed on 1 October 2021 and 31 January 2022 was that you were at 'the premises' (but not necessarily in the garage) 'at the invitation of' Ms Fraser'. You 'spoke with her and there was a limited physical confrontation'.

[8] Mr Trevor Fraser and Mrs Janine Fraser were overseas visiting their son, daughter-in-law and grandchildren on 23 July 2018.

[9] [2016] HCA 48; (2016) 259 CLR 256, 265-6 [18] (Bell, Gageler, Keane, Nettle and Gordon JJ) (citations omitted); [2016] HCA 48.

[10] Detailed written submissions were filed on your behalf by counsel who acted for you at trial and who appeared at your plea on 19 September. These submissions were adopted by your subsequent counsel.

[11] Act, s 5B(2)(b). Sentencing principles remain of relevance.

[12] The cases were DPP v Fairhall [2022] VSC 444; DPP v Gonzalez [2022] VSC 331; R v Margolis [2021] VSC 341; DPP v Kingdon [2021] VSC 858; R v Cameron [2020] VSC 334 and R v Robertson [2019] VSC 145.

[13] Felicite v The Queen [2011] VSCA 274; (2011) 37 VR 329, 33 [20] (Redlich JA); [2011] VSCA 274.

[14] [2014] VSCA 97, [57] (Neave and Kyrou JJA).