Crown v Accused

1 Ricardo Barbaro. You have been found guilty, by the jury empanelled on your trial, of the murder of Ellie Price on 29 April 2020.

2 At your trial, the presiding judge was Justice Lasry of this Court. Justice Lasry has since retired as a Justice of this Court, and, accordingly, pursuant to s 87(2) of the Constitution Act 1975, I have replaced him for the conduct of your plea and sentence. For that purpose, I have read the transcript of the trial, and I have been well assisted by the written and oral submissions made by counsel for both parties in the case.

3 In determining your sentence, it is necessary, first, to set out the circumstances in which you murdered Ellie Price, and to make some factual findings in respect of them.

4 At the time of her death, Ellie Price was 26 years of age. In October 2019, you had commenced a relationship with her. On 4 May 2020, her body was located on the floor of the bedroom of her accommodation in Park Street, South Melbourne. Ms Price had sustained six stab wounds to the upper body, three of which could each have caused her death, including a stab wound to the front of her neck, which transected her larynx.

5 At the trial, the critical issue was whether the prosecution could prove, beyond reasonable doubt, that it was you who had inflicted the fatal stab wounds. As part of your defence, it was put that there was a reasonable possibility that those wounds had been inflicted by Mark Gray, a person with whom Ms Price had had a close and supportive relationship over the preceding three years. By its verdict, the jury was satisfied, beyond reasonable doubt, that it was you, and not Mr Gray, who had inflicted the wounds, which were the cause of the death of Ms Price.

6 Ellie Price was born on 5 July 1993. She grew up with her family in Tasmania. At the age of 18 years, she moved to Victoria, first to Geelong, and then subsequently to work in Melbourne. During that time, she developed a strong friendship with Mark Gray, who was some 30 years her senior. After they met in 2017, Mr Gray provided Ms Price with substantial financial support. In about June 2019, they had a falling out, but in January 2020, they re-established their friendship and they continued to communicate with each other until very shortly before Ms Price's death.

7 As I stated, you met and formed a relationship with Ellie Price in October 2019. The evidence, that was put before the jury, demonstrated that the relationship was quite volatile, involving a number of acrimonious incidents between you and Ms Price, including incidents in which you acted in a violent manner towards her.

8 In particular, on 1 November 2019, during an argument in Ms Price's motor vehicle, you punched the windscreen, sideboard and dashboard, causing extensive damage to the vehicle. Police were summoned, and, as a result, the police obtained a family violence intervention order against you, by which Ms Price was the protected person. Subsequently, on 6 March 2020, that order was extended, prohibiting you from having any further contact with Ms Price.

9 In the meantime, in February 2020, you and Ellie Price travelled to Cairns for a short holiday. During that time, a number of incidents occurred, which demonstrated the degree of volatility and rancour that affected your relationship with her. On 14 February, some arguments took place between the two of you at the premises at which you were then staying. Police, who attended the incident, did not observe any injuries to Ms Price, and they formed the view that there were some discrepancies in her account.

10 Two days later, on 16 February, a further argument took place between yourself and Ms Price. As a result, Ms Price left the premises and made her way to the airport. Two members of the Australian Federal Police observed her in a distressed state and spoke to her. Ms Price told the police that she had had a fight with you on the previous day, and another fight on that day, in which you had assaulted her. The police assisted Ms Price to contact Mr Gray, and he arranged an air flight for her back to Melbourne. However, Ms Price changed her mind, returned to the accommodation at which you were staying, and then accompanied you on a two day trip to the Great Barrier Reef.

11 One week later, on 23 February 2020, you attended a winery in company with Ms Price. During the tour of the winery, you slapped Ms Price after an argument between the two of you. In the late afternoon, while you were driving home in Spencer Street North Melbourne, you braked heavily, causing Ms Price to hit her head, which resulted in an injury to her eye. Ms Price exited the vehicle, and you followed her on foot, yelling at her. You then re-entered your vehicle, and drove it towards Ms Price, who was sitting on the grass median strip. You stopped the vehicle near the median strip, and yelled at Ms Price that you were going to kill her. You then reversed, and again drove in the direction of Ms Price, and also other people who were on the grass. You reversed the vehicle again, and then drove forward onto the median strip at a fast speed, causing those on the median strip to move to the side in order to avoid being struck by your vehicle.

12 On 28 February 2020, you were remanded in custody on charges relating to that incident. Subsequently, you pleaded guilty to charges of reckless conduct endangering serious injury, making a threat to kill, and driving while your authority to do so was suspended. On 27 March 2020, you were sentenced, by the Melbourne Magistrates' Court, to 27 days' imprisonment, which was equivalent to time served.

13 In the meantime, in March 2020, Ellie Price visited her family in Tasmania. When her mother, Tracey Gangell, drove her back to the airport, Ms Price told her that it was her intention to come back to Tasmania, and that she would not again return to Melbourne until you were out of her life.

14 As I have mentioned, after Mark Gray re-established contact with Ms Price in January 2020, they continued to communicate with each other. He last visited her at her apartment in the afternoon of Tuesday, 21 April. On that occasion, he noticed that Ms Price had a large mark on her neck. Ms Price told Mr Gray that the hickey-like bruises on her neck were from where her 'ex' had tried to choke her. She told Mr Gray that her ex's name was Ricardo. Mr Gray told Ms Price that she should go to the police, but Ms Price took offence at that advice and stormed off.

15 The evidence, relating to the incidents that I have just mentioned, was led at the trial as being relevant to the circumstances in which you murdered Ellie Price. As Justice Lasry instructed the jury, the evidence of those earlier incidents between Ms Price and yourself, involving violent conduct by you, was relevant as providing a context to what occurred on 29 April, by demonstrating that the events on that day, involving grave acts of violence by you against Ms Price, did not occur 'out of the blue'.

16 On 28 April, the day before her death, Ms Price had a video call with her mother, Tracey Gangell, which lasted nearly 12 minutes. Later that day, at 7:30pm, Ms Price and you attended the Sydenham Medical Centre for an appointment, which you had with a general practitioner. At the time of that appointment, the attending doctor did not observe any obvious injuries to Ms Price.

17 At 1:30 am on the following day, 29 April, CCTV footage captured Ms Price's Mercedes Benz vehicle returning to her premises in Park Street. Between 2:50am and 4:33am, she exchanged a number of text messages with Mr Gray. Ms Price's last message to him was at 3:57am. She did not respond to the message, which he sent to her at 4:33am.

18 The prosecution case at trial was that, shortly after 4:30 am, a violent altercation occurred between yourself and Ms Price, which culminated in you inflicting six stab wounds to Ms Price, as a result of which she died. It was during that altercation, that Ms Price scratched you on your right upper arm, and, in doing so, she inflicted a deep gash on your right forearm, in a vain attempt to defend herself. You then left the apartment in her vehicle, and you did not subsequently return to it.

19 On 1 May, Ms Gangell tried to contact Ms Price, but was unable to do so. In the following three days, she continued to try to make contact with Ms Price, but received no response. On 4 May, she contacted the police. As a result, police attended the premises at 8:10pm. There, they observed Ms Price lying deceased on the floor at the foot of the bed, in tracksuit pants, socks and a dressing gown, all of which were bloodstained.

20 On 5 May 2020, Dr Sarah Parsons, a forensic pathologist, conducted an autopsy on the body of Ellie Price. She observed that there were six stab wounds to the upper body, three of which were each individually capable of causing death. Dr Parsons also noted an area of deep bruising measuring 10 x 5 centimetres, on the right side of the head.

21 The first stab wound was a deep incised wound to the front of the neck that transected the larynx. The second stab wound was a wound to the left lower chest, near the eighth rib, that was 10 centimetres in depth, and which transected the liver, the small bowel and the left kidney. The third stab wound was a wound to the mid-back, which penetrated the lung, the diaphragm and the liver. It was 7 centimetres deep.

22 The three other injuries, which were each relatively superficial, consisted of two stab wounds to the left back, and a stab wound to the left flank.

23 As I have noted, immediately after you had fatally stabbed Ellie Price, you left the premises at Park Street and departed in Ms Price's Mercedes vehicle. You drove to Williamstown, where you met your father. You then proceeded to Diggers Rest, where you left your vehicle at the property of an acquaintance. On 5 May 2020, you departed from Diggers Rest in a hired Hiace van. You drove north on the Hume Freeway. On 7 May, you arrived at the address of a family member in the Australian Capital Territory. On the following day, you rented a room in an apartment in Wentworth Point, in New South Wales.

24 On 14 May 2020, you were arrested at that address. After your arrest, you were initially taken to hospital for treatment to the injuries to your forearm and abdomen, and you then returned to Melbourne. On examination in hospital, you were observed to have three principal scratch abrasions, one each to the abdomen, right upper arm and left forearm. The medical evidence at your trial was that those injuries were consistent with you being scratched by Ellie Price as she attempted to defend herself against your violent attack upon her.

25 At your trial, the prosecution case against you was essentially circumstantial. It was based on a number of factors. The prosecution adduced evidence as to blood pattern analysis, fingerprint analysis and DNA at the scene of the crime, all of which implicated you in the circumstances that resulted in Ms Price's death. Fingerprint examination demonstrated your fingerprint in bloodstains on the mirror of the dressing table in the room. DNA, matching your DNA, was extracted from bloodstains under the false fingernail of Ms Price, from under her right fingernails, and on bloodstains on various locations in the bedroom, including: a damaged plaster board on the side of the bed, the upper surface of the sheet of Ms Price's bed, the bedhead, the dressing table and the staircase. Analysis of your mobile telephone placed you in the vicinity of Ms Price's motor vehicle between 4:30am and 12:30pm on 29 April. The prosecution also relied on your tempestuous relationship with Ellie Price, and on your conduct in fleeing the scene and departing from Victoria almost immediately after her death.

26 You are the only person who knows precisely what occurred on that fateful early morning of 29 April, and why it occurred. However, based on the evidence, it is possible to draw sufficient conclusions, as to the circumstances in which you murdered Ellie Price, in order to be able to have an appropriate basis upon which to determine your sentence.

27 Based on the background evidence of your relationship with Ellie Price during the previous six months, it is clear that your murder of Ellie Price was the result of a total loss by you of your self-control, driven by a burst of anger, directed towards Ms Price. In losing control, you made a conscious decision to take hold of a knife for the purpose of venting your rage on her, and you then proceeded to stab her six times, three of which blows were struck deep into vulnerable parts of the upper body. The number and location of the stab wounds, and, in particular, the stab wound that you inflicted to her neck, were indisputable evidence that you could only have intended to kill her.

28 On your plea, your counsel submitted that the evidence at the trial supported a conclusion, on the balance of probabilities, that, at some point in the course of the incident, Ms Price had hold of a knife, which she used to inflict a stab wound on your abdomen. That submission was based on the evidence of Dr Barrett, who examined you on 15 May 2020, and observed an injury to your abdomen, which he described as being either an incision wound or a deep scratch abrasion. Dr Barrett considered that the wound could have been caused by a sharp or narrow-edged object, such as a blade or a fingernail.

29 I am not persuaded, by that evidence, that it is probable that, at some point in the incident, Ms Price was able to take possession of a knife and wound you in the abdomen with it. There was no evidence that Ms Price could have, or did, take possession of a knife. Rather, the evidence points unequivocally to a violent one-sided attack by you on her, in the face of which she was unable to do more than resist you by scratching you with her fingernails. Two other wounds to your arms, examined by Dr Barrett, were consistent with Ms Price scratching you with her fingernails. One of those other wounds involved quite a deep wound to the upper right arm. Your DNA was detected under Ms Price's fingernails and on a false fingernail, which was also located after the incident. In those circumstances, I am not persuaded that Ms Price had possession of and used a knife during the incident. On the contrary, it is quite clear that, throughout the incident, she was totally overwhelmed and helpless.

30 Your vicious attack must have been absolutely terrifying for Ellie Price, as she vainly tried to defend herself against you by scratching at your forearms and abdomen. She was alone and completely defenceless, and was, quite clearly, overpowered by you, as you rained a series of blows on her with the knife. Your murderous attack on her was cruel, vicious, and entirely merciless. Having inflicted the fatal stab wounds, from which she was then bleeding profusely, you fled the scene, leaving her either severely wounded and dying, or deceased. You have demonstrated no remorse either then, in the days which followed, or since, for your senseless and cruel crime.

31 The offence of murder, for which you have been convicted, is the most serious criminal offence in our justice system. The maximum sentence for murder is life imprisonment, reflecting the fundamental seriousness of the offence, and the value, which our society rightly places on each individual human life.

32 In the present case, there were a number of factors attaching to the offending, which aggravated the seriousness of it. It involved an attack, by you, with a knife, on your unarmed female partner, in her own home, in circumstances in which she was entirely helpless and defenceless against your savage onslaught. The murder, by you, of your intimate partner was, of itself, a seriously aggravating feature of your offence. That type of offending, which is commonly described as domestic violence, is entirely reprehensible. The fact that it occurred in circumstances when you were already subject to an intervention order, the purpose of which was to protect Ms Price from you, further added to the seriousness of the offence.

33 By your criminal conduct, you have intentionally taken the life of a fellow human being. At the time of her death, Ellie Price was just 26 years of age. She was a loving and caring mother to her young son, Mostafa (Mossi), who was just only four years old at the time of her death. The victim impact statements, which I have read, describe Ellie as a much loved person, who was devoted to her family, and who lived life to its fullest.

34 Ellie Price was, of course, the direct victim of your crime. She had much to live for, and, as a result of your cruel crime, she will never experience the joys of watching her son, Mossi, grow older and achieve life's milestones. Your vicious crime has deprived her of her most basic right, her right to life.

35 There are also a number of other victims of your crime, who have suffered, and who will continue to suffer, as a result of it. I have read the victim impact statements of Ellie's mother, Tracey Gangell, her grandmother, Sherreldon Bradford, her sister, Danielle Price, her brother, Dylan Taylor, and her niece, Jayda Braslin. I have also viewed a touching video of Mossi that was tendered on the plea, and I have read the statements of Tracey Gangell and Danielle Price, which describe the deep grief and loss, experienced by Mostafa as a result of the loss of his mother. Each of the victim impact statements were read in court on your plea. They depict, in most moving terms, the profound pain and grief suffered by Ellie's family as a result of your appalling crime. The lives of each of those persons, and of other members of her family, have been, and forever will be, blighted by the terrible tragedy that you have inflicted upon them.

36 The victim impact statements are relevant, because they are an important reminder of the extent and depth of the grief and suffering that have been, and will continue to be, the direct consequence of the murder, by you, of Ellie Price. Your sentence is to be based on a rational analysis of the facts of the case, and the application of relevant sentencing principles. Nevertheless, in applying those principles, it is important to keep in mind the grave effects of the crime that you have committed, and the profound pain that has been, and will continue to be, suffered by so many, as a consequence of it.

37 For the reasons that I have outlined, objectively, the murder by you of Ellie Price was a most serious instance of that criminal offence. In order to assess your moral culpability - that is, your personal subjective responsibility - for her murder, it is relevant to consider your background and personal circumstances, and to consider the mitigating factors, relating to them, that were relied on by your counsel on your plea.

38 You were born on 18 October 1986 and are 38 years of age. You have a limited previous criminal history.

39 In 2009, you came before the Sunshine Magistrates' Court on one charge of driving while your authorisation to do so was suspended, and you were sentenced to one month imprisonment, which was wholly suspended for 12 months.

40 In August 2014, you came before the Southport Magistrates' Court on charges of forgery and uttering a forged document. On those charges, you were fined $800 without conviction. On the same day, you were also before the Southport Magistrates' Court on one charge of affray, in respect of which you were fined $900 without conviction.

41 More relevantly, as I have mentioned, in March 2020, you were sentenced, by the Melbourne Magistrates' Court, to an aggregate sentence of 27 days' imprisonment for the offences of reckless conduct endangering serious injury, making a threat to kill, and driving while your authorisation to do so was suspended.

42 In terms of your personal history, you had a quite unsettled upbringing. Your father had two children by a previous relationship before his relationship with your mother, by whom he had three sons, including yourself. After your parents separated, your father had successive relationships with two further women, by each of whom he had further children.

43 Your mother remained a single parent after she divorced your father, and, in the years that followed, she struggled to cope with yourself and your brother, Rossario. In 1998, your mother relinquished custody of you to your father, and she relocated to the Gold Coast. You remained living in Canberra with your father, but he was often absent and, as a result, you were left unsupervised for periods of time. Subsequently, your father moved to Sydney, and you lived there with him, and also with your grandmother and uncle, for a period of time. Later, you relocated to live with your mother on the Gold Coast.

44 You attended two different schools for your primary education. When you relocated to live with your mother on the Gold Coast, you commenced Year 8 at Aquinas College, but you were expelled in the following year, following a verbal altercation with a teacher. You completed Years 10 to 12 at Trinity Lutheran College in 2003.

45 After you left school, you completed examinations for entry into the Air Force. However, you were not accepted into the Force as a result of your family's criminal history and connections. You then enrolled in a Bachelor of Engineering course at Griffith University, but you deferred after six months, as your father requested you to move to Melbourne, as he was then on bail there. You commenced a carpentry apprenticeship, but you had difficulties with a number of your employers. You then worked in a number of factory jobs, before conducting your own concreting business for about two years. You then relocated to the Gold Coast, where you established a logistics company.

46 In mid-2015, you returned to Melbourne, and, over the next few years, you were involved in several businesses with your father, that included antique furniture, concreting, security, investments and another logistics company. Your businesses, however, had some difficulties, as a result of emotional issues that you experienced in the context of problems with your brothers, and the breakdown of your marriage. In the twelve months before your offence in the present case, you had purchased, and were operating, two trucks, and you were also involved in a loan business, and establishing another business.

47 In 2011, you entered into a relationship with your wife, Rose, by whom you had four children. There were difficulties in the relationship, and it ultimately failed in 2019. You then had some short-term relationships with other women, before you met and entered into a relationship with Ellie Price.

48 It is evident that you have suffered a number of significant traumatic events in the course of your lifetime.

49 When you were three years of age, your paternal grandfather was murdered, following an attempted murder of him in the preceding year.

50 At an early age, between the ages of six years and eight years, you were the victim of several instances of abuse by an extended family member. In addition, your half-brother, Pasquale, was physically violent to you and your brother, Rossario.

51 In 2004, your half-sister was abducted and she was later found at an abandoned house, alone. In 2007, your former stepmother, Tania, was killed as a result of injuries, sustained in a motor vehicle accident that occurred while she was driving your siblings to school. In 2011, you, yourself, were assaulted outside a pizza shop, following an altercation with another person. In the following year, your brother, Pasquale, attempted to stab you while you were asleep, as Pasquale wrongly suspected that you had stolen items from him.

52 In 2014, your brother, Rossario, was seriously injured when he was shot in Tweed Heads during an attempted murder of him. Two years later, a close friend of yourself was murdered in New South Wales. In November 2015, there was an attempted murder on your brother, Pasquale, and, ten months later, in September 2016, he was killed. In June 2017, your brother, Rossario, committed suicide.

53 In the same year, in October 2017, there was an attempt on your life. In the following year, there was a further attempt on your life. In January 2019, your wife obtained a Family Violence Intervention Order against you, and she then took the children to live with her in Perth. In the same year, in March and April, there were two further attempts on your life by shooting. At the end of 2019, you were accosted and stabbed outside Ellie Price's home.

54 You have a longstanding addiction to drugs. You commenced using cocaine in your mid-20s, initially recreationally. Subsequently, in 2015, you ruptured your shoulder and were unable to participate in physical sport. As a result, you began to associate with former friends, and, during that time, your cocaine use increased. After the murder of your brother, Pasquale, in 2016, you used the substance daily, and you became totally dependent on it. At the same time, you were using benzodiazepines to assist with your sleep, and you commenced to consume alcohol frequently and heavily.

55 A central aspect of the plea, made on your behalf, focused on your mental and psychological state. For that purpose, you have been examined by Ms Carla Ferrari, a forensic psychologist. Ms Ferrari undertook eight consultation assessments with you, between 13 March and 1 October of this year. In the course of those assessments, Ms Ferrari formed the view that there may be a neuropsychological issue involved in your functioning, which required exploration, in view of your history of professional boxing, chronic and heavy substance abuse, assaults, and motor vehicle accidents. For that purpose, you were referred to Dr Elissa Pasula, a clinical neuropsychologist, who examined you on 7 May.

56 In her report, Dr Pasula noted that you have had a complex psychosocial and medical history, which has included repeated head knocks from assaults, motor vehicle accidents and contact sports, and an extensive history of substance abuse. Your performances on formal cognitive assessment indicated a significant impairment in the areas of processing speed and attentional functioning. In particular, you were easily overloaded by new information, you had difficulty learning and retaining information, your thinking was rigid and inflexible, and you struggled with problem-solving and reasoning.

57 Based on those findings, Dr Pasula considered that you are currently experiencing significant mental health difficulties, which are impacting on your thinking processes. Your history of multiple head knocks raises the possibility that you might have experienced an acquired brain injury, but it was not possible for Dr Pasula to confirm that, in view of the lack of medical information available to her. Dr Pasula considered that it was likely that there were a number of longstanding and acute factors that contribute to your cognitive difficulties, which, on current assessment, are of a severe nature.

58 With the assistance of that report, and based on her eight assessments of you, Ms Ferrari compiled an extensive report, which was tendered on your plea. The report set out in detail your family, education and employment history, the history of the traumas, which I have outlined, and the history of your relationships. Ms Ferrari also outlined your mental health and medical history. She noted that, since you have been in custody in Barwon Prison, you have been attended by Ms Krista Ozolnieks, a senior psychologist with the Forensic Intervention Services. Ms Ozolnieks has conducted 10 sessions with you, in which she noted that your mental health had significantly declined since you have been convicted at your trial.

59 In her consultations with you, Ms Ferrari conducted a series of tests and examinations, the results of which are set out in some detail in her report. In her conclusion, Ms Ferrari noted that you have a significant history of trauma, in which you have experienced family violence, childhood abuse by an extended family member, parental separation, and exposure to your paternal family's lengthy history of criminal behaviour. You have also experienced a number of traumatic events, including the loss of significant family members to murder and suicide. During your developing years, you experienced instability in your living arrangements, moving between your parents, and, at times, your grandmother and uncle.

60 Ms Ferrari concluded that you have developed Post-Traumatic Stress Disorder (PTSD) as the result of the cumulative trauma you have experienced in your life. She considered that your symptoms appear to be reflective of complex PTSD, which involves the four core symptoms of that disorder, in addition to three disturbances, comprising emotional dysregulation, interpersonal difficulties and negative self-concept.

61 In addition, Ms Ferrari considers that you have a Major Depressive Disorder, with recurrent episodes. She also notes that you have the core symptoms of Attention Deficit Hyperactivity Disorder, but she did not make a definitive diagnosis in that respect.

62 Ms Ferrari explained that persons with PTSD are more prone to respond disproportionately to situations when their threat system is activated, and that that can result in dysregulated emotions and aggression. Ms Ferrari was of the opinion that the negative states inherent in your PTSD and Major Depressive Disorder have the capacity to alter your thinking and behaviour, by impairing your ability to consider alternative responses to situations, and impacting on your decision-making.

63 In addition, Ms Ferrari has noted your long history of self-medication with illicit substances, such that you would have met the criteria for alcohol and stimulant use disorders. In that respect, she observed that substance use may lead to reduced self-inhibition and to loss of cognitive and behavioural self-control.

64 Finally, Ms Ferrari has noted that you are at a heightened risk of suicide as a result of your psychological conditions. She has expressed the view that your protracted period, of what she referred to as solitary confinement, during the last four years on remand, has exacerbated your mental health symptoms, and might have resulted in long-term deleterious effects on your brain functioning. Ms Ferrari has expressed the view that a prison sentence is likely to weigh more heavily on you than someone who does not suffer from the conditions, which she has diagnosed. She considers that your mental health symptoms have deteriorated, and will continue to deteriorate, while you are in custody.

65 Ms Ferrari noted in her report that she did not canvass the circumstances of the offence with you. However, she noted that you believe that Ellie Price overheard a telephone conversation you had with a friend, who was going to drive you to Queensland, and, as a result, she made attempts to delay your departure. You told Ms Ferrari that you believed that medication, that Ellie Price gave you for your headaches and migraines, which you thought to be painkillers, were, in fact, benzodiazepines, which caused you to fall asleep. You gave an account to Ms Ferrari of falling asleep and waking to being attacked. You told Ms Ferrari that you genuinely believed that your safety was at risk and your life was in danger, and that you probably woke in a state of panic, disoriented and in fear.

66 In her report, Ms Ferrari expressed the view that an individual, who does not have your psychological profile, would be unlikely to have reacted in the same disproportionate manner that you did, as outlined in the prosecution summary. She considered that your reaction, in the circumstances, would have been further impacted by your intoxication with substances, including sedatives.

67 In the course of her consultations with you, Ms Ferrari conducted a detailed risk assessment. Based on that assessment, she considers that your current risk of committing future spousal or family violence is moderate. However, that risk level would immediately increase, if you were to relapse to substance abuse, or if you did not engage with mental health professionals to address your severe depression and anxiety, and trauma symptoms. Ms Ferrari considers that appropriate supervision of you should include monitoring of your mental health by professionals involved in your ongoing treatment.

68 Ms Ferrari gave evidence on the plea. Her evidence was focused on two principal issues, namely, the nature of the psychological conditions, which she had diagnosed, and the question, whether your psychological conditions had any connection with your actions in murdering Ellie Price.

69 In respect of the first issue, Ms Ferrari considered that, of your conditions, it was the complex PTSD that had a relevant link with your actions in murdering Ellie Price. In cross-examination, Ms Ferrari agreed that the psychological condition of complex PTSD is not recognised in the current edition of the Diagnostic and Statistical Manual of Mental Disorders, and she said that it is presently being researched for inclusion in the next edition. Ms Ferrari also accepted that there is some debate about whether the condition is, in fact, no more than a subset of borderline personality disorder. She accepted that you demonstrate traits that are consistent with a personality disorder, and she said that the question, whether you have a personality disorder, and not complex PTSD, is a matter which requires further consideration.

70 In respect of the second issue, whether your psychological conditions played any role in your murder of Ellie Price, Ms Ferrari explained that you had told her that, at the time of the offence, you had been asleep, and that you had woken to someone attacking you, and that your reaction in those circumstances had been to attempt to defend yourself. As noted by your counsel, the jury, by its verdict, had rejected that explanation for your offending. In that respect, Ms Ferrari explained that a person with your psychological disorders, who believes that they are being provoked or threatened, lack the capacity to think and respond calmly and rationally in some circumstances.

71 In cross-examination, Ms Ferrari accepted that you did not explain to her what had caused you to stab your female partner six times. Ms Ferrari said that she had not discussed that topic in detail with you, because you had contested your guilt on the trial. She accepted that that circumstance limited her capacity to express an opinion as to how, and to what extent, your psychological condition, and, in particular, your PTSD, affected your conduct on the day.

72 In that respect, Ms Ferrari noted that, at the time of the events with which we are concerned, you were functioning in your employment, you were in the process of setting up a new business with a business partner, and you were entering into contracts to buy a cafe and a Maserati motor vehicle. Ms Ferrari also accepted that it is difficult, in retrospect, to determine the extent to which your psychological conditions were active and operative at the time at which you killed Ellie Price, and it is, accordingly, difficult to determine whether, and to what extent, they had affected your actions.

73 The questions addressed by Ms Ferrari, whether you did suffer from complex PTSD, and, if so, the extent to which that condition affected your actions, are by no means straightforward.

74 In respect of the first issue, it is relevant that, in your earlier years, and, in particular, in the years leading up to your murder of Ellie Price, you had been exposed to a number of significantly traumatic events. Taking those matters into account, and with some reservations, I am persuaded, on the balance of probabilities, that you do, and, in the years preceding your murder of Ellie Price, you did, suffer complex PTSD.

75 The issue, as to whether, and to what extent, that condition was operative, and affected your actions, at the time at which you murdered Ellie Price, is even less clear.

76 As noted in the course of your plea, in the time leading up to Ellie's murder, you were employed, you were opening a business, you had travelled to Cairns on a holiday, and you were living what was otherwise a relatively normal life, albeit that you were frequently changing your place of address as a result of your criminal connections.

77 Further, there is very little evidence as to your actual psychological condition, and as to whether your complex PTSD was at all operative and active, at the time of the murder.

78 Your counsel pointed to your conduct in the motor vehicle incident in November 2019, and to your conduct in the North Melbourne incident that occurred on 23 February 2020, as indicators of your mental state at that time. It is also noteworthy that, about one week before your murder of Ellie Price, she told Mark Gray that you had choked her with your hands.

79 Those incidents, however, do not shed any significant light on your then psychological state. Your conduct in those incidents was certainly violent and disturbing. However, that conduct was equally consistent with a loss of temper and control by you in the context of the volatile relationship in which you were then involved with Ellie Price.

80 On the day before you murdered Ellie Price, 28 April 2020, you attended your general practitioner, Dr Reda Makarious, of the Sydenham Medical Centre, in order to obtain a mental health plan, which would enable you to access Medicare benefits for your attendance on a psychologist, who you were then consulting. In fact, you had attended the same medical practice in the previous year, in order to obtain such a plan in respect of anxiety and stress that you were then suffering as a result of your separation from your wife and children.

81 When you saw Dr Makarious on 28 April 2020, the issues, which you related to him, concerned your fluctuating mood, and symptoms of anxiety and depression. Dr Makarious noted that you did not report any of the following symptoms, namely: irrational fear; panic attacks; compulsive behaviour; delusions; suicidal thoughts or visual hallucinations. You did tell the doctor that you were hearing noises, but they were not voices. Dr Makarious considered that you had good insight into your condition, and that you were demonstrating good judgment and the capacity to make appropriate, considered decisions. He did not consider that you were a risk of harm to others. Relevantly, for present purposes, you did not report to Dr Makarious, nor did the doctor detect, any symptoms that would have indicated that your underlying PTSD was active and affecting your emotional and psychological states.

82 There is, in fact, no evidence at all as to what, if anything, precipitated your vicious actions in stabbing and murdering Ellie Price, and why you engaged in that conduct. The account that you gave to Ms Ferrari - waking up with someone attacking you - is entirely unsupported by evidence, and is inconsistent with the verdict of the jury.

83 The only evidence, concerning the incident, comprises the objective facts. Put simply, you brutally stabbed and murdered your vulnerable partner, who was much smaller, and far less strong, than you. The defensive wounds that you sustained are evidence of her desperate efforts to protect herself against your onslaught. All of those facts bespeak nothing more than a total loss of temper and self-control by you.

84 In those circumstances, it can only be concluded that your complex PTSD played, at the most, a quite limited role in your murder of Ellie Price. I am prepared to accept that, being a person afflicted with that condition, your capacity to control your temper, and to maintain some degree of self-control, might have been, to some extent, compromised by your condition. To that limited extent, I am prepared to accept that your complex PTSD played a minor role in your offending.

85 Allied to that consideration is the fact that, in your childhood and adolescent years, you experienced an unsettled and unstable home life. As the High Court explained in Bugmy v The Queen,[1] the culpability of a person such as you, for the offending in which you engaged, could not be fairly equated with the culpability of a person who had committed the same offence, but who had had the advantage of a normal, stable and regular upbringing.

86 For those reasons, I am prepared to accept that your psychological condition (complex PTSD) and your disturbed childhood are relevant factors that do mitigate your moral responsibility for your vicious murder of Ellie Price. However, the extent to which they do so must be limited. Notwithstanding those considerations, your subjective culpability for viciously and mercilessly stabbing to death your defenceless and helpless partner can only be properly characterised as high.

87 In mitigation of your sentence, I do take into account the difficult circumstances in which you have been detained, and, it seems, may continue to be detained, in prison since your arrest.

88 Following your arrest, you were ascribed a maximum security rating as a result of your family's criminal associations. You were initially accommodated in the Metropolitan Remand Centre at Ravenhall, where you were immediately separated from other prisoners. In September 2020, you were transferred to Port Phillip Prison as a remand prisoner in the Major Offenders Unit. Subsequently, on 27 August 2022, you were transferred to the Banksia Management Unit at Barwon Prison. That unit is a high security management unit, that is used to accommodate high risk prisoners.

89 During your time in custody, you have had access to a minimum of 1.5 hours 'out of cell' time each day, and you often receive up to two hours per day. You are currently employed as a Laundry Prison Services worker. You have access to make up to 35 telephone calls, and you engage in two Zoom calls, each week.

90 The documentation, that was provided on your plea, noted that you would retain your maximum security rating while you were on remand. Although the material does not indicate what will happen in the future, based on the reasons for your disposition in custody over the last four years, it is appropriate to sentence you on the basis that you will continue to be detained in the restricted conditions of a management unit, or in other, similar, accommodation during the period of your sentence. That consideration is a relevant mitigating circumstance, which I take into account.

91 Further, in that respect, as I have noted, Ms Ferrari, in her report, and in her evidence, expressed the view that your protracted period of confinement, in those circumstances, has seriously aggravated your psychological disorders, and she has expressed the view that a prison sentence is likely to weigh more heavily on you than on a person who does not suffer from the conditions, which she has diagnosed.

92 In those circumstances, and based on that evidence, I do accept that, due to your psychological conditions, a sentence of imprisonment will be more onerous for you than it would be for an offender who would be in otherwise ordinary mental health. I also accept that there is a material risk that imprisonment may have a substantial adverse effect on your mental health.

93 Allied to that, I also take into account, as a mitigating factor, the additional onerous conditions of imprisonment, which applied after your arrest as a result of steps that were taken by the authorities to prevent the spread of the COVID-19 virus within the prison population. I accept that those restrictions added, to some extent, to the already difficult circumstances in which you were detained.

94 In addition, it is apparent that, in the last decade, you have suffered a number of injuries to your shoulder, which have required surgical intervention. In particular, in 2020, you were involved in a physical altercation in prison, which resulted in a further dislocation of your shoulder, and, since then, there have been other incidents in which you have sustained dislocations of it. As a consequence, you underwent a further operation in 2023. However, there were complications resulting from that surgery, due to an accumulation of fluid on your lungs and a blood clot.

95 I also take into account that there has been some delay in the finalisation of this case. The delay has resulted from a number of causes, including the discharge of two juries, and also the retirement of Justice Lasry. I do note that, since your conviction, there has been a substantial delay, principally due to the time it has taken to obtain appropriate psychological reports for the purposes of your plea. In the circumstances, you have had this matter hanging over your head for more than four years, in which you have been held in confined circumstances, and in which your mental health has deteriorated.

96 In respect of your character and antecedents, it is relevant that you have limited previous convictions. It is to your credit that, since leaving school, you have had a steady work record, and that you have demonstrated a degree of enterprise in establishing small businesses, which you have conducted.

97 In respect of your prospects of rehabilitation, as I have noted, Ms Ferrari, having conducted a risk assessment, has concluded that your current risk of committing future spousal or family violence is moderate. Ms Ferrari also considers, however, that your risk level would immediately elevate if you were to relapse to substance use, or if you did not engage appropriately with mental health professionals to address your psychological conditions.

98 That assessment, by Ms Ferrari, however, must be considered in light of the extraordinary degree of violence to which you resorted in murdering Ellie Price, and the previous incidents involving violent assaults by you of her. It is also relevant to take into account that you have not demonstrated any degree of insight into the enormity of the crime for which you have been convicted, nor have you expressed any remorse in respect of it.

99 In those circumstances, the views, expressed by Ms Ferrari, as to your potential rehabilitation, must be qualified.

100 The principles, that apply to the determination of your sentence, are well-established. It is necessary that the sentence, that I impose on you, be sufficient to express the condemnation by the Court, and by the community, of your offence, and to vindicate the value of the life of each individual member of our community. In addition, the sentence must be sufficiently severe to constitute a general deterrent, by serving as a clear message to any person, who might be minded to engage in the kind of lethal violence resorted to by you in this case, that such conduct will be met with a severe sentence, involving the deprivation of the offender's right to be at liberty within our society for a substantial period of time. As the Court of Appeal of this State has made clear, in cases such as this, involving the murder of a domestic partner, the sentencing purpose of general deterrence must be accorded particular priority.

101 In addition, it is important that the sentence, that I impose on you, is sufficient to ensure that you, yourself, learn and understand that any further acts of violence, of the kind in which you engaged in this case, will be met with severe consequences. In view of your lack of insight and remorse in the present case, and in view of the gross degree of violence involved in the murder of Ellie Price, that sentencing principle must be accorded appropriate weight in the circumstances of this case.

102 In determining your sentence, I have had regard to current sentencing practices. In that respect, I have been assisted by the sentencing decisions, to which counsel for the prosecution have referred me, namely, DPP v Tan,[2] R v Fairhall,[3] Bednar v The King,[4] R v Basham,[5] DPP v Brown,[6] and R v Cameron.[7] In considering those decisions, I should note that the sentence in Basham was imposed for offending, which was premeditated, and which was considered by the sentencing judge to be an example of the 'worst' case of murder. In those circumstances, I do not consider that the facts of that case are sufficiently comparable to be of assistance in determining your sentence.

103 In reviewing the other sentencing decisions, I bear in mind that, for any criminal offence, the range of factors, relating to the offending itself, and to the circumstances of the offender, necessarily vary significantly, so that it is never a straightforward task to identify the appropriate range of sentence. Nevertheless, the decisions, to which I have been referred, have, in a broad sense, assisted to indicate the current sentencing practices that are relevant in respect of the offence committed by you. As the High Court has emphasised, it is important to keep in mind that current sentencing practices are but one factor, out of many, which are relevant to be taken into account in determining your sentence.[8]

104 As the offence, for which I am to sentence you, was committed after February 2018, I take into account that the standard sentence for murder, prescribed by the Sentencing Act 1991, is 25 years' imprisonment. The Act provides that that period constitutes a sentence for an offence of murder that, taking into account only the objective factors of the offence, is in the middle range of seriousness. As the Court of Appeal has noted in Brown v The Queen,[9] the standard sentence is only one factor to be taken into account, in determining your sentence in this case, and it is to be treated as a legislative guidepost.

105 In summary, for the reasons that I have discussed, the murder by you of Ellie Price was a most serious instance of that criminal offence. Notwithstanding your underlying complex PTSD, I consider that your moral culpability (that is, your subjective responsibility) for the offending was substantial.

106 Taking into account the gravity of the offending, and your criminal responsibility for it, and giving appropriate weight to the personal and mitigating factors, which I have discussed, I sentence you as follows.

107 For the murder of Ellie Price, I sentence you to 28 years' imprisonment. I fix a minimum non-parole period of 22 years.

108 Pursuant to s 18(4) of the Sentencing Act 1991, I declare that 1632 days (not including today) be reckoned as served under this sentence, and I shall cause a declaration to that effect to be noted in the records of the Court.

109 As required by s 5B(5) of the Sentencing Act, I note that the sentence that I impose on you is more than the standard sentence. I have imposed that sentence, having regard to the standard sentence specified for the offence of murder, and based on my assessment of the seriousness of your offending, my assessment of your subjective culpability for the offending, and the mitigating circumstances that I have outlined.

[1] [2013] HCA 37; (2013) 249 CLR 571.

[2] [2023] VSC 416.

[3] [2022] VSC 444.

[4] [2024] VSCA 180.

[5] [2023] VSC 79.

[6] [2023] VSC 311.

[7] [2020] VSC 334.

[8] DPP (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41; (2017) 262 CLR 428, 434 [5]-[9] (Kiefel CJ, Bell and Keane JJ), 453-4 [82] (Gageler and Gordon JJ).

[9] [2019] VSCA 286; (2019) 59 VR 462.