Crown v Accused

1 Luay Sako, you have pleaded guilty to having murdered Celeste Manno on 16 November 2020.

2 The maximum penalty for murder is life imprisonment,[1] and the standard sentence for murder is 25 years.[2]

3 For the purposes of this sentence I will refer to Celeste by her first name, and I will also refer to her immediate family by their first names.

4 Born in November 1996 to mother Aggie and father Tony, Celeste was only 23 years of age when she was killed. She had a younger brother, Alessandro, and an elder half-brother Jayden. Celeste lived at home with Aggie and Alessandro and had been employed at the Serco Call Centre in Mill Park for two-and-a-half years prior to her death. She was a popular and respected team leader at Serco. Whilst there, she commenced a relationship with a co-worker, Christopher, but the couple kept their relationship to themselves until after Christopher left Serco in September 2020.[3]

5 As a result of meeting Celeste at Serco, you became obsessed with her and ultimately took steps to find out where she lived. On 16 November 2020, just before 4am, you drove to her house, broke in through her bedroom window, and killed her. The only other person home at the time was Celeste's mother, Aggie, as Alessandro had gone out for the evening.

6 At the time of the murder you were aged 35. You are now aged 39.[4]

7 The Crown produced a detailed Summary of Prosecution Opening on Plea ('SPO'),[5] but you raised some areas of factual dispute which I will deal with in due course.

8 The Crown alleges that the murder took place in the following manner.[6]

9 You left your home in Roxburgh Park at around 3.22am, driving your grey Peugeot sedan and headed to [Redacted] Road, Mernda where Celeste lived with her mother and brother. Initially, you drove past the [Redacted] Road residence. Celeste's Toyota coupe was visible in the driveway. You drove around the block and then, at about 3.48am, you parked your car facing west on [Redacted] Road, a short distance from Celeste's home. Roughly two minutes later, you approached[7] Celeste's house carrying a hammer and a large kitchen knife.[8] You scaled a side fence, and gained access to the backyard. You then proceeded towards Celeste's bedroom at the rear of the premises. You used your hammer to smash open the window, and climbed through into her bedroom. Celeste is believed to have been asleep in bed before you broke in. You attacked Celeste with your knife causing multiple sharp force injuries to her body, including to her chest, abdomen, back, legs, arms and scalp. The SPO refers to 23 such sharp force injuries. I will refer to this matter a little later.

10 According to the evidence of forensic pathologist Dr Paul Bedford, Celeste suffered several defensive-style wounds to her forearms and hands.[9] A very significant injury was inflicted to her chest and the cause of death was later determined to be a stab wound to the heart.[10]

11 After attacking Celeste, you dropped the knife on the bedroom floor and left via the broken window.[11] At some stage, you dropped the hammer in the yard, where it was later found by police. You sustained lacerations to your right hand during the offending and left a blood trail behind you. As you departed, you again scaled the side fence to the yard, depositing blood droplets on the top railing. You returned directly to your car, dripping blood along the footpath and road on your way. CCTV from a nearby house establishes that you were away from your vehicle for only 2 minutes and 39 seconds.

12 You drove away from the scene, and police were later able to determine the route you took. After turning right onto Bridge Inn Road and driving on towards Breadalbane Avenue, you discarded your Optus X Smart mobile phone into parkland ('the Optus Mobile').

13 At 3.57am, you arrived at Mernda Police Station, colliding with a bollard outside the station. Before you could enter, you were confronted by two police members who tried to engage with you. You made some disjointed references to what you had done, including the words 'She's dead, she's dead' and 'Go have a look at [Redacted] Street' and 'Where's Constable Vanderleest ... He knows what's happened'.[12] You declined to elaborate further and did not disclose the cause of the injuries to your hands. You asked the police to shoot you. The attending police gave a direction for checks to be made at Celeste's home address, but by then other police had already been dispatched there in response to a triple 0 call made by Celeste's mother, Aggie.

14 Aggie had awoken to the sound of breaking glass and had gone to check on her daughter. She found Celeste lying on the bed covered in blood. She could not comprehend what she was seeing and attempted to help her daughter but struggled to lift her from the bed and Celeste fell down onto the floor. Aggie then saw that the floor was covered with broken glass. After attempting CPR, Aggie ran to her own bedroom and called triple 0. The call connected at 3.56am. When police and ambulance arrived on scene, they found Celeste on the bedroom floor covered in blood and surrounded by broken glass. Celeste was declared dead a short time later.

15 In the meantime, while still with police, you spoke to First Constable Colosimo who had become aware of Celeste's death via police radio communications. You said: 'You know what happened, it's your fault. Ask Constable Vanderleest, he knows. Are the police there? Is she dead?' You were asked by another police officer[13] about what had happened and you responded: 'Go, you will see, [Redacted] Road, Mernda, is she dead?' When asked if you had killed Celeste, you did not respond further. You were then arrested, placed under police guard and conveyed to St Vincent's Hospital for treatment of your hands.

16 Police conducted a forensic examination of the [Redacted] Road premises and the nearby road. Investigators located various areas of bloodstaining and collected a number of exhibits from the scene.

17 At the time of your arrest, you had an Oppo F5 Youth mobile telephone ('the Oppo Mobile')[14] with you in your car, which had been recently connected on 3 November 2020. On the other hand, the Optus Mobile[15] that you had discarded was connected in May 2014 and had been used by you for a long time. It was only located after the SES performed a line search in parkland[16] on 20 November 2020. When examined by police, it was found to contain evidence of your persistent attempts to communicate with Celeste in the lead-up to the murder. The Oppo Mobile that was in your car when you surrendered to police had no incriminating material on it.

18 Following your arrest, police searched your bedroom under warrant and seized your personal computer and a folder containing police paperwork related to proceedings against you for the alleged stalking and harassment of Celeste.

19 By way of background to the above-mentioned events, you commenced employment at Serco in April 2018 as a customer service operator. Several months later, Celeste became your team leader. In June 2019, your employment was terminated for performance issues and Celeste was tasked with escorting you out of the workplace. As you were leaving, you thanked her for her kindness and, without any encouragement from her, kissed her on the cheek.[17] She was taken aback and informed her work colleagues about the incident.

20 From that point on you became infatuated with Celeste, but your feelings towards her were never reciprocated in any way.

21 About a week after you left Serco, you tracked down various social media accounts held by Celeste, including her Instagram account. You then began direct messaging her on Instagram. You declared your feelings for her, and she politely responded in such a way as to make it clear that she was not interested in you. Nevertheless, you continued messaging her until she blocked you on Instagram, seeking to deter you from pursuing her.

22 A few weeks later, you created a second Instagram account and again resumed messaging Celeste. Without accepting you as a follower on Instagram, she was able to view your messages, but did not respond to them.[18] Nevertheless, you continued messaging her, declaring your undying love and affection. Celeste occasionally replied, solely to request that you cease pursuing her, and she again blocked your messages. You continued to contact her via multiple Instagram accounts you had created, in order to circumvent her efforts to block you from further contact. Each time Celeste, or occasionally her mother, asked you to cease contacting her, you simply created further Instagram accounts, and persisted in your pursuit of her.[19]

23 Around the 31st of December 2019, you sent Celeste a series of sexually explicit and derogatory messages. Celeste began to fear for her safety, and reported the matter to her work colleagues who encouraged her to inform police.[20] She also told her work supervisor that she had seen you sitting in your car outside Serco, in a position where you could observe her car.

24 Several months later, on 1 July 2020, Celeste and Aggie went to Mernda Police Station and reported your continued stalking of her to Leading Senior Constable Vanderleest ('L/S/C Vanderleest'). Your behaviour had been ongoing over the preceding 12 months and Celeste produced each of the messages you had sent to her over that period. Two days later,[21] Celeste and Aggie went to the Heidelberg Magistrates' Court, and Celeste was granted an interim Personal Safety Intervention Order ('PSIO'), naming you as the respondent. That order was served on you on 8 July 2020. Following service of that order, your contact and pursuit of Celeste stopped for a while.

25 On 4 August 2020, Celeste returned to the Heidelberg Magistrates' Court to apply for the interim PSIO to be made final. You were at court that day but refused to consent to final orders, so the interim order was extended and the matter was set down for a contested hearing on 9 March 2021.[22]

26 On 10 August 2020, you were arrested and interviewed at Craigieburn Police Station about the repeated messages you had sent Celeste that led to her seeking the PSIO. During the interview, you admitted to repeatedly contacting Celeste from various different Instagram accounts you had created, despite being blocked by her. You also admitted that Celeste had asked you to cease contacting her and had blocked you, but you expressed the view that there was nothing illegal about your conduct and that sending the messages was therapeutic for you. You claimed that if Celeste was distressed by the messages, she should not have read them. You denied sending the sexually explicit messages to Celeste, and told police you had no further desire to pursue her given her application for a PSIO. You were released from custody pending further investigation.

27 On 11 August 2020 you purchased a 'Mint' brand kitchen knife from a Woolworths store in Craigieburn.[23]

28 At Celeste's workplace, a safety plan was put in place for other staff to escort her to her vehicle at the end of each shift. Celeste expressed concerns to a co-worker that you would kill her.

29 On 15 August 2020, in contravention of the interim PSIO, you contacted Celeste via Instagram to share a Google Drive link containing a three-and-a-half-page letter addressed to her. Celeste did not open the link and reported the incident to L/S/C Vanderleest. In the letter, you attempted to dissuade Celeste from pursuing a final PSIO and from maintaining her complaints to police. You denied your offending against her and outlined your desire to reach an undertaking and for Celeste to withdraw her complaint. You claimed you had no further interest in her, and attributed your behaviour to the effects of the COVID-19 lockdowns. You made a number of related assertions indicative of your view that you were a victim of unfair persecution.[24] You asked Celeste to withdraw the PSIO so you would not be made a 'criminal' and you pleaded with her not to report the letter to police.

30 On 25 August 2020, police interviewed you regarding contravention of the interim PSIO and for attempting to pervert the course of justice through the sending of the letter. You admitted sending the letter in breach of the order, but claimed it told your 'story' and set out the impact on you of the pending criminal charges. You claimed that your conduct was not threatening towards Celeste and that she had lied in her PSIO application.[25] You also claimed your mental health had declined and that you were lonely and depressed as a result of COVID-19.

31 After the abovementioned interview on 25 August 2020, you did not attempt any further contact with Celeste until the date of the murder. A charge of contravening the interim PSIO was served on you by post on 6 September 2020 and you were summonsed to appear at the Heidelberg Magistrates' Court on 15 February 2021 to answer that charge. Additional charges were served on you on 19 October 2020 regarding your earlier repeated messages to Celeste.[26]

32 On 11 November 2020, only days before the murder, you emailed L/S/C Vanderleest, seeking an electronic copy of each of the briefs of evidence which had been served on you.[27]

33 The events I have just outlined formed the lead-up to the murder. Further information obtained in the police investigation following Celeste's murder includes the following.

34 After your arrest and medical clearance following treatment of injuries to your hands, Homicide Squad police interviewed you in relation to the murder.[28]

35 I have read that interview and note the following features of it. Answers given on the topic of your repeated attempts to contact Celeste via social media and your knowledge of the PSIO and pending charges, echo answers given in the interviews that preceded the murder.[29] You further claimed that after being told of the charges for stalking and harassment, you experienced severe bouts of despair and felt a loss of control over your thoughts and your future.[30] You said your depression was more intense than you had ever experienced in the past, and it stopped you from being able to sleep.[31] You admitted to locating an image of Celeste's house and identifying her suburb from her Instagram account and comparing it to images of houses on Google Maps to determine her address. You admitted that you drove past her house on a few occasions prior to the murder but did not specify when you did this. You admitted that on the night of the murder, you parked your car near her house and that you were carrying a hammer.[32] You admitted going in and out of Celeste's house very quickly, but you downplayed your awareness of what you did to Celeste, claiming it was too dark to properly see the person in the room and that the whole incident was over quickly.[33] You claimed that your memory of the event was 'fuzzy'.[34] You admitted injuring your hand at some stage, possibly from being cut by broken glass.[35] You agreed you had mentioned Celeste and her address when you turned yourself in to Mernda Police Station and that you had also mentioned L/S/C Vanderleest.

36 Although you admitted ownership of the Oppo Mobile found inside your car, you did not mention disposing of your other phone on the way to the police station.[36] You did not accept responsibility for killing Celeste, suggesting that the blame lay with law enforcement and others and that you had been transformed into someone you had no control over.[37] You claimed that you went to Celeste's house because you wanted 'the pain and the voices' to stop.[38] You complied with the taking of a DNA sample. Following the police interview, you were charged with Celeste's murder and remanded in custody. You have remained in custody since the date of your arrest on 16 November 2020.

37 DNA testing performed on the handle of the knife, the handle of the hammer and on post-mortem fingernail scrapings taken from Celeste's hands provided extremely strong support for the proposition that you were the source of the DNA detected in those samples.

38 The abovementioned overview of your offending is at best a summary, and the depositions and records of your attempted communications with Celeste set out a more fulsome picture of your obsession with her in the lead-up to the murder. I am not sentencing you for any charged or uncharged acts of stalking, harassment or contraventions of the interim PSIO.[39] That lead-up conduct is relied on by the Crown to show the context of the offending. Indeed, all extant charges were withdrawn following your plea of guilty to murder on 6 April 2023. Nevertheless, your behaviour leading up to the murder provides important evidence of motive and sets the framework for considering the gravity of the offence. It is relevant to both the objective and subjective circumstances of the offending.

39 Your personal history was summarised by forensic psychiatrist Dr Rajan Darjee at some length and touched on by Mr Marsh during the plea hearing, and I have extracted your background from those sources:[40]

(a) You spent your early childhood in northern Iraq where your father was employed in a military role. Your family are Chaldean Christians. Your father was exposed to danger when he left the army, and due to religious persecution your family were granted a humanitarian visa to Australia, migrating here after spending some time in a refugee camp in Turkey in 1992. You were seven years old when you arrived here.

(b) You grew up in Roxburgh Park and are the eldest of five children, having two brothers and two sisters with whom you had a good relationship. Your father worked in construction while your mother stayed at home until you and your siblings were older.

(c) Dr Darjee described your early childhood as 'traumatic and unstable' and opined that you experienced significant difficulties adjusting and fitting in and that you were bullied. You have never had any sustained intimate relationships and you have had increasing difficulty establishing friendships and social connections over your lifetime.

(d) You excelled in maths at school but struggled socially, particularly in the later years of your secondary education and during tertiary studies. You attempted science-based university courses[41] but dropped out of these when relations with other students led you to feel ostracised, persecuted and rejected. Dr Darjee noted these feelings were repeated in other contexts throughout your adult life.

(e) You family described you as a caring and supportive son and brother, but saw you become more isolated and withdrawn from your late teens onwards. In the years prior to your offending you reportedly became even more reclusive, spending most of your time in your bedroom in your parents' house.

(f) You worked in various retail roles over the years but also had significant periods of unemployment. In the few years before the offence you unsuccessfully attempted some courses and other ventures.[42] At the time of your arrest, you were unemployed and receiving Centrelink benefits.

(g) You have held longstanding concerns about your physical appearance attracting a diagnosis of body dysmorphic disorder ('BDD'), perceiving yourself and thinking others perceived you as deformed and ugly. Because of this, you underwent rhinoplasty and purchased many supplements and treatments aimed at improving your appearance.

(h) You made some desultory efforts at obtaining psychological help in the years before the offence but these were not sustained.[43]

(i) Your mental health declined over the course of 2020 and you had thoughts of suicide. In August 2020, after the police had engaged with you in order to deter you from contacting Celeste, your mental state worsened. During a phone call with L/S/C Vanderleest, you admitted you were near a train line and contemplating suicide.[44] Police apprehended you and took you to a hospital emergency department but you left before any psychiatric review was completed.

(j) Prior to 2020, you had had no contact with the criminal justice system and no history of antisocial or violent behaviour, nor any background of illicit substance or alcohol abuse. Your absence of criminal history was confirmed by the Crown.

40 Between the date you were charged with murder and the date you entered a plea of guilty in this Court, delay occurred due to a number of factors.

41 A filing hearing took place on 19 November 2020 in the Melbourne Magistrates' Court, and further committal mentions occurred in April and July 2021. Then, on 20 September 2021, the matter proceeded by way of straight hand-up brief without the need for a committal hearing and was listed for a directions hearing on 5 October 2021 in this Court. At that time, your lawyers advised the Court that there had been an initial assessment regarding your fitness to stand trial, but the assessor indicated that another opinion should be sought. Associate Professor Carroll was booked to do that assessment, and in February 2022, his report ('Carroll Report') was completed and he opined that you were unfit to stand trial.[45] It was not until late May 2022 that the Crown managed to obtain and file an independent fitness assessment by Dr McInerney ('McInerney Report').[46] On 30 May 2022, the Court was asked to set the matter down as a contested fitness investigation,[47] which was then fixed for 17 October 2022. However, the Crown applied to adjourn that hearing so as to enable the McInerney Report to be given to Corrections Victoria[48] and to seek an assessment from Professor Ogloff ('Ogloff Report'). On 3 November 2022,[49] due to delays in obtaining the Ogloff Report, the fitness hearing had to be adjourned until 14 February 2023. Meanwhile, in early February 2023,[50] the Court was informed that updated expert reports obtained by both parties indicated that you were now fit to stand trial and so your trial was set down for 16 May 2023. However, on 6 April 2023 you pleaded guilty to murder. Orders made by the Court at that time indicate that it was foreshadowed that some of the facts founding the SPO for the plea hearing might be contested, and that a psychiatric report was being sought for the purpose of the plea hearing.

42 The procedural summary I have described thus far does not indicate any particular dilatoriness on your part. There were some court delays during the COVID-19 pandemic.[51] There was inevitable delay in obtaining expert reports on fitness to stand trial, given the complexity of matters being considered by the experts and the time required to obtain their assessments. Unfortunately, following the listing of a plea date on 24 July 2023, there was some further delay in the matter being finalised before this Court for a mixture of reasons.

43 On 16 June last year, your lawyer[52] informed the Court that he was no longer acting for you, and on 23 June, the Court was told you would be self-represented at your plea.[53] You were considering revoking your plea at that time. Steps were taken to connect you with alternative representation, and on 30 June, Victoria Legal Aid ('VLA') indicated that following their advice to you, you would adhere to your guilty plea. After VLA began to act for you, and Mr Marsh and Mr Cooper were briefed,[54] the previous plea date was vacated,[55] and the matter was set down for 17 October 2023 to allow time for VLA to engage Dr Darjee[56] for your plea hearing. There were well-justified personal reasons for delay in Dr Darjee's report being filed,[57] so the plea date had to be refixed for December last year. The Court was subsequently told that the December date was no longer suitable to the Crown,[58] and the plea was then set down by me for 29 January this year.[59]

44 At a mention on 22 January this year, the Court was informed that you no longer wished to retain VLA and would represent yourself.[60] You announced that you intended to challenge aspects of Dr Bedford's autopsy report and certain other factual matters. Mr Marsh advised the Court that VLA would assist the Court by filing various documents that you wanted to rely upon. Those documents were ultimately received as exhibits on your plea.

45 The plea hearing commenced on 29 January this year. You were supplied with an iPad loaded with relevant materials to assist you in representing yourself.[61] Various documents were received from the Crown and from you in the course of the three-day plea hearing.

46 At the outset of the plea hearing, Mr Bourke read aloud from the SPO. You contested the Crown's allegation in the SPO, based on Dr Bedford's autopsy report, that you caused 23 sharp force injuries to Celeste.[62] Dr Bedford was called and cross-examined by you about other possible explanations for some of the injuries to Celeste. You also contested the allegation that you ran[63] from your car to the house immediately prior to the murder; in response, the Crown played CCTV footage capturing part of your approach to the house. I also understood you to have disputed the Crown's estimate of the number of times you messaged Celeste via Instagram, based on Celeste's earlier estimate of having been contacted by you approximately 140 times.[64]

47 The next part of the plea hearing was set aside for the reading aloud of victim impact statements. It was then intended that Dr Darjee would be called, since you had indicated that you relied on his report.[65] It was at that point, that Mr Marsh announced that he and Mr Cooper had been instructed to resume acting for you going forwards.[66] At the conclusion of Dr Darjee's detailed and lengthy evidence,[67] I heard final sentencing submissions and the plea hearing was concluded late in the afternoon on 31 January.[68]

48 In light of the procedural history, Mr Marsh conceded that there had not been a smooth passage of your matter through this Court, but submitted that the delays were partly a result of a necessary investigation into fitness to stand trial and mental impairment. He argued that the delays resulting from your changes of legal representation or expressions of ambivalence about the proceedings were a product of your personality disorder ('PD'), rather than an attempt to deliberately frustrate the passage of the case through the Court. I accept that submission in large part, although I will discuss the Crown's submissions concerning the timing of your guilty plea and the question of insight and remorse further on in these reasons.

49 In approaching the facts and circumstances of the offending, and all matters relevant to sentencing, the law requires me to not take into account factual matters adverse to you unless they are established beyond reasonable doubt. However, if there are circumstances relied on in your favour, it is sufficient for them to be established on the balance of probabilities.[69]

50 As mentioned, when you were self-represented, various documents authored by you were filed with the Court, indicating dispute about certain factual matters.[70] These documents were lengthy and it is not necessary to summarise them here.

51 Turning to the major focus of dispute, at autopsy Dr Bedford identified 23 sharp force injuries to Celeste.[71] In the course of his testimony, he opined that it was extremely likely the pattern of injuries to Celeste's body was consistent with being caused by an implement such as the knife found at the crime scene.[72] He strongly favoured that the majority of wounds were knife-related injuries, although the exact number was difficult to determine.[73] Under cross-examination by you, he conceded the possibility that glass shards could have caused some of the injuries.[74] He also accepted that, in relation to some injuries, a single thrust of the knife could have resulted in more than one injury.[75]

52 Having considered the materials filed by you and the matters raised by you in cross-examination of Dr Bedford, I make the following findings:

(a) I am satisfied, beyond reasonable doubt, that you stabbed Celeste multiple times after forcing your way into her bedroom. It is not necessary for me to determine the precise number of wounds you inflicted, but it appears highly likely that there were multiple thrusts of the knife. I accept Dr Bedford's evidence that the majority of the 23 sharp force injuries identified on Celeste's body were knife-related injuries. I also accept Dr Bedford's evidence that Celeste had defensive-type injuries on her body.

(b) Regarding the manner of approaching Celeste's house from your car, namely whether you ran or walked briskly towards the house, this is a matter of no moment, given the overall speed with which the offence was carried out.

(c) The precise number of messages or attempts to communicate with Celeste via Instagram is of no moment; on any view of the evidence, you persisted in pursuing contact with her well after she had made it known to you that such contact was unwelcome.

53 In conclusion, regarding the factual disputes raised by you,[76] none of the matters were of such significance as to impact the ultimate sentence to be imposed.[77]

54 In sentencing you, I must take into account the impact of your crime on its victims. It is very clear that Celeste was an exceptional young woman, who until her untimely death had the world at her feet. The outpouring of grief and anger that accompanied the delivery of victim impact statements in this case was entirely understandable. Celeste's family and friends are simply unable to fathom losing her in this horrific and senseless way. I make clear that in arriving at a just sentence in this case, I have taken full account of the admissible victim impact material before the Court.[78] The victim impact statements gave public voice to the visceral impact your crime has had on Celeste's family and friends. They sought to honour the person she was, while conveying the depths of shock and despair they felt as a result of her tragic murder.

55 I will not refer to the contents of each and every victim impact statement here. However, I will mention the description by Celeste's parents of the impact on them. Celeste's mother Aggie said: 'You extinguished one of the only two reasons I lived for. She was everything to me. Nothing to you.' Aggie believed her daughter was safe and protected. She could not have imagined otherwise. Celeste's father Tony lost the most beautiful and precious gift in his life when he lost his daughter. He feels himself now to be an empty soul burdened by grief that he cannot let go of: a broken man and father who can never get back what was lost.

56 In addition to the impacts on Celeste's parents, an enormous hole has been left in the lives of Celeste's brothers, cousin, aunts, wider family and friends. She had a special place in the family as the only daughter and niece. Her death left her partner Christopher completely devastated. Celeste deserved life - but you decided otherwise.

57 Crimes of this nature have a direct and egregious impact on the family and friends left behind, but they also have a ripple effect on the wider community, shocking the public consciousness and sowing fear and a profound sense of outrage in those who have learned of the details of this crime.

58 Pursuant to s 5 of the Sentencing Act 1991 ('Sentencing Act') the only purposes for which sentences may be imposed are to punish you to an extent and in a manner which is just in all the circumstances; to deter you or others from committing offences of the same or a similar character; to establish conditions within which it is considered by the Court that your rehabilitation may be facilitated; to manifest the Court's denunciation of your conduct; to protect the community from you; or a combination of two or more such purposes.[79]

59 Regarding the objective gravity of your offending, I am persuaded from the evidence that this was a very grave example of the already grave crime of murder.[80] I am unable to be satisfied beyond reasonable doubt that you had already decided to attack Celeste with a knife when you purchased the knife that you later used to murder Celeste.[81] However, I am satisfied that upon Celeste involving police so as to seek protection from you and obtaining the interim PSIO, you came to regard yourself as a victim of persecution by both the police and Celeste. It is likely that you were experiencing intermittent homicidal ideation towards Celeste in the weeks before the murder,[82] particularly after being interviewed on 25 August 2020 over the letter you had sent ten days earlier.

60 While I accept that you may have been aware of a relationship between Celeste and Christopher prior to her posting photographs of them together on Instagram on the night of her murder,[83] I am persuaded that your viewing of those images was the final trigger for the offending.[84] This finding is consistent with Dr Darjee's evidence and is supported by the material found on your electronic devices.[85] It is clear that that you had been actively monitoring Celeste's Instagram use, up until then.

61 The fact that your offending was in brazen contravention of the interim PSIO - which should have protected Celeste from you - and followed on from charges for contravention of that order, are matters that significantly aggravate the objective gravity of your crime.[86] Your crime is further aggravated by the planned and premeditated way it was carried out.[87] You researched where Celeste lived and drove past her house on earlier occasions. When you drove there in the early hours of the morning with the hammer and knife, you must have contemplated in advance how you would use those items. You carried out the attack with chilling efficiency. CCTV footage shows the brevity of the period you were away from your car, and is testament to the speed with which you carried out this terrifying attack.[88]

62 I have no doubt, as argued by the Crown[89] that you intended to kill Celeste when you stabbed her with a large kitchen knife to the heart.[90] The Defence submitted that my findings as to the disputed facts were relevant to assessing your likely intention at the time of the murder.[91] Given my earlier conclusions regarding Dr Bedford's evidence, those submissions fall away. The objective circumstances of your offence are very grave. As I have said, the precise number of knife thrusts or knife wounds is of no great moment in the sentencing exercise. The knife thrust to the chest was sufficient to kill Celeste. You made sure you had the advantage over her by breaking into her bedroom at night when she was unsuspecting and attacking her in her bed. It is understandable that Celeste's family regard the manner in which you carried out your crime as utterly cowardly.

63 After you attacked Celeste, you quickly made good your escape, and on your way to Mernda Police Station, discarded your Optus Mobile. I am satisfied you did this in order to conceal evidence that you had been stalking Celeste. You knew what you had done to Celeste when you presented yourself to police, as demonstrated by the comments you made implying blame to L/S/C Vanderleest. Of course, any such implication of blame was baseless. Whilst you later cooperated with the police investigation to some extent and made some admissions, you also concealed and minimised aspects of your offending, seeking to lay blame on others for your actions.[92]

64 Regarding the question of motive - imbued as it is with aspects of anger and jealousy - I accept Mr Marsh's submission that your psychiatric condition makes assessment of motive complex in your case. You were infatuated with Celeste, and felt angry and persecuted when she engaged with police to stop you from stalking her.

65 This question as to what motivated this appalling crime is relevant to consideration of your moral culpability and the subjective features of your offending.

66 In this context, it is necessary to consider Dr Darjee's evidence regarding your psychiatric condition in the lead-up to, and at the time of the offending.[93] Dr Darjee referred to various diagnoses applied to you by mental health professionals since your reception into custody.[94] These varying opinions are indicative of the complexity and idiosyncratic nature of your presentation and psychological condition. Dr Darjee's diagnostic opinion[95] favoured that:

(a) Your long-standing and significant life-long difficulties are due to an extreme[96] PD meeting categorical diagnostic criteria for paranoid, schizoid, schizotypal and anxious/avoidant PDs. Such conditions are related to very poor psychological and social functioning, and adverse long-term outcomes including suicide, offending and poor health. The functioning and outcomes for people with extreme PDs are as bad as those for people with severe mental illnesses.[97] Your PD is both extremely severe and highly unusual and atypical, even amongst people who commit serious violent offences.[98] You have a broad range of problematic and pathological personality traits, with a number of key aspects bearing on your functioning and behaviour.

(b) In addition, Dr Darjee also found that you had experienced several episodes of major depressive disorder ('MDD')[99] and BDD since you were young, but manifesting more and episodically throughout adulthood.[100] According to Dr Darjee you became severely depressed in the months before the offence, with negative and suicidal thinking.

67 Both your extreme PD and moderate to severe MDD played significant roles in your behaviour, both before, during and following the homicide.[101] Whilst your extreme PD led you to have severely impaired judgement,[102] your MDD tended to make some traits of your disorder more prominent, causing you to feel desperate, depressed, and suicidal, wanting to make the situation go away.[103] You became significantly disinhibited and self-absorbed, and came to see no way out of your situation. Dr Darjee opined that there was a narrowing of focus impacting your judgement and decision-making, leading you to focus on options which, viewed objectively, were appalling and horrific.[104]

68 In light of this analysis, Dr Darjee linked your extreme PD and your MDD to a significant impairment of judgement at the time of the offending,[105] therefore playing a significant role in the commission of the offence. While your extreme PD was the most salient disorder, it was exacerbated by your MDD in the months leading up to the offence.[106] These conditions were necessary for the stalking and murder to have occurred, but were not causally sufficient in themselves to have triggered those events.[107] When asked by Mr Marsh what other factors explained the offending, Dr Darjee referred to 'external' factors not uncommon in stalking cases, which were interacting with your psychopathology to lead to the progression towards the offence.[108]

69 Dr Darjee observed that although individuals with PDs are not usually conceptualised as wholly lacking responsibility for their behaviour in a moral or social sense, it is important to note that no one chooses to have a PD.[109]

70 The foregoing is relevant, because in the case of Verdins[110] the Court of Appeal observed that an offender's impaired mental functioning may be relevant to sentencing in one or more of six different ways, including by reducing moral culpability; moderating or eliminating general or specific deterrence; causing a sentence to weigh more heavily on the offender than a person in normal health; or where there is a serious risk imprisonment will significantly adversely affect the offender's mental health.

71 The applicability of certain Verdins factors was in issue between the parties during your plea hearing as I will explain below.

72 The Crown submitted that the Court should have little or no regard to Verdins factors when determining your moral culpability and the need for general and specific deterrence,[111] and that regardless of Verdins factors this case should be seen as falling within the worst category of murder.[112]

73 Whilst Mr Bourke did not challenge Dr Darjee's diagnoses, he submitted that Dr Darjee did not assert a direct causal link between your psychiatric conditions and your offence but rather adverted to an indirect link.[113] It was argued that your psychiatric condition could not be said to have contributed in any 'material sense' to your conduct in such a way as to properly attract mitigation of the need for deterrence, or the assessment of moral culpability. On the Crown's submission, even with allowance for Verdins, your moral culpability should be assessed as very high and any mitigation based on Verdins should be modest.[114]

74 In stark contrast to the Crown's position, Mr Marsh submitted that the contribution[115] of your psychopathologies fell just short of the kind of complete causal explanation seen in cases where a mental impairment defence is made out, so a reduction in the weight to be given to general and specific deterrence was appropriate. Mr Marsh did however concede that the assessment of moral culpability could not occur in isolation from other relevant matters such as community protection. I will discuss this dichotomy later in these reasons.

75 Returning to the application of Verdins factors to your offending, the Court of Appeal[116] has made clear that an offender with a diagnosed PD stands in precisely the same position as any other offender who relies on impaired mental functioning in mitigation of sentence based on Verdins factors.[117] I am persuaded by Dr Darjee's evidence that, on the balance of probabilities, your extreme PD and MDD caused a significant impairment of your mental functioning at the time of your offending, thereby enlivening Verdins limbs 1, 3 and 4.

76 In considering the contribution of these disorders to your ability to exercise sound judgment at the time of the offending,[118] I am not persuaded that the effect of these disorders was as great as contended for by Mr Marsh, nor am I persuaded by Mr Bourke that your mental condition did not contribute in any material sense to the offending.

77 Based on Dr Darjee's evidence, it appears to me that your thought processes and behaviour were profoundly abnormal both in the lead-up to and at the time of the offence due to your extreme PD and your MDD. Nevertheless, as opined by Dr Darjee, your psychopathology did not directly cause, impel or compel the commission of the offence.[119] In this regard, I observe that you were not affected by psychosis; you were capable of knowing the difference between right and wrong when you attacked Celeste, even allowing that your judgement was significantly impaired.

78 With the abovementioned considerations in mind, I conclude that Verdins factors do reduce your moral culpability and act to moderate, but not remove, the importance of general and specific deterrence. The moderation of moral culpability is plainly less than for a person who, through no fault of their own, is impelled to act under the influence of an active psychosis. However, your mental condition is important in understanding what motivated your crime. On the other hand, as will be discussed later, the same mental condition that allows for moderation of sentence by virtue of Verdins factors gives rise to countervailing considerations in the sentencing synthesis when considering the need for community protection.[120]

79 Pursuant to s 5(2)(e) of the Sentencing Act, the Court must consider whether an offender has pleaded guilty and the timing of the guilty plea. The Crown argued that your guilty plea was not 'early', although it was accepted that the timeline was complicated by issues of fitness to stand trial being enlivened.[121] The Crown referred to your contribution to delay including the suggestion at one stage that you might change your plea. Irrespective of timing, the Crown argued that the weight to be attributed to your guilty plea should be slight, since you have never expressed remorse for Celeste's murder, and instead have engaged in ongoing efforts to deflect responsibility.[122] The Crown cited your dispute about the number of knife wounds you inflicted, which would have adversely impacted Celeste's family and should be seen as undermining the value of your guilty plea.

80 In considering this argument, I note that in terms of any acceptance of responsibility close in time to the offence, you did make admissions linking yourself to the crime when you surrendered yourself to police and asked them to shoot you. Later in your record of interview, your answers contained a mix of partial admissions and denials or deflections of responsibility. You also concealed the existence of the Optus Phone.

81 I am satisfied that at that time, you significantly downplayed aspects of your offending, as is clear from my earlier reference to your police interview. You have continued to make a range of spurious and absurd statements since then, including to Dr Darjee.[123] Dr Darjee's evidence is relevant when considering your police interview after the offence and your behaviour since.[124] He agreed that you can demonstrate an obsessional focus on minutiae or small details or ideas.[125] One such example was your fixation with the number of wounds sustained by Celeste and your views as to what caused them. In his opinion, your attempt to downplay the number of knife wounds you inflicted was linked to your desire to avoid being seen as having committed a monstrous crime and also linked to your difficulty in seeing things from the perspective of others.

82 He opined that it would be too simple to boil down your response to your offending as being based on whether you were remorseful or not, or the degree of remorse shown.[126]

83 Under cross-examination by Mr Bourke, Dr Darjee maintained that whether or not someone is remorseful is not relevant to the potential risk of them doing something again, based on research and practice known to him.[127] In his view, you appeared to not really understand the impact of what you did and you tended to deny aspects of what had happened.[128]

84 Dr Darjee also addressed aspects of your behaviour since your arrest which were suggestive of you exaggerating or feigning symptoms,[129]noting the complexity of motivations for this behaviour.[130] He accepted that you sought a third consultation with him in the context of hoping to enliven a mental impairment defence,[131] although your desire to be found not guilty by reason of mental impairment was not merely a straightforward attempt to 'get off', but rather was fuelled by a complex combination of issues.[132]

85 Despite Dr Darjee's opinions concerning remorse, the Crown submitted that your lack of remorse or insight[133] significantly negatived your prospects for rehabilitation and increased your risk to the community. Mr Bourke submitted that the Court should view your prospects of rehabilitation as 'very poor' and urged the need for increased emphasis on specific deterrence and community protection, as I will discuss further below.[134]

86 The Defence conceded that remorse was not present in this case - at least in a conventional sense - but submitted that its absence was not an aggravating factor and was explicable by reference to your extreme PD.

87 In considering these submissions, I note that remorse, where present, can be a powerful mitigating factor. However, accepting that your plea of guilty was not accompanied by remorse or relevant insight, it seems likely, based on Dr Darjee's evidence, that the severity and nature of your PD impedes your capacity for remorse or insight into your offending. I also accept that your conduct in raising factual disputes on matters of little moment is in part a product of your disordered personality. At any event, absence of remorse is merely an absence of a mitigating factor that may be present in other cases.[135]

88 Your plea of guilty still attracts mitigation for its utilitarian value despite your absence of remorse and appropriate insight.[136] There are several reasons for this: firstly, when the matter was before the lower courts, you waived a committal process, and upon coming before this Court, you cooperated with both Crown and Defence experts appointed to investigate questions of fitness and mental impairment. Secondly, aspects of poor decision-making during the passage of this matter through this Court are reflective of your overall poor judgment stemming from your diagnosed psychiatric disorders.[137] Thirdly, the Court was spared a trial, with the obvious benefits that flow from that fact.[138] Fourthly, you are entitled to some modest benefit due to the application of Worboyes principles,[139] although this aspect has less force than it once had.[140] I also note that the conditions you would have been exposed to on remand during the pandemic were likely more burdensome and restrictive than would otherwise have been the case, notwithstanding your established tendency to self-isolate.[141]

89 Coming now to a consideration of your future prognosis and capacity for improvement in your overall functioning, Dr Darjee found that your PD has been present throughout your life,[142] and its features and severity have not attenuated with age; you clearly had the PD throughout the time you were stalking Celeste and in the lead-up to the offence.[143] He opined that - given the severity, nature, and course of your PD over the last 20-30 years - it is unlikely the severity of dysfunction of your core traits will ameliorate; and certainly not over the next decade or so.[144] Any improvement in your personality function will be dependent on the environment you are placed in, and may also depend on the treatment provided to you.[145]

90 If there is a natural attenuation in the severity and problematic traits of your PD, this would likely occur over decades. The importance of appropriate treatment of your PD while in custody was emphasised.[146] There was a possibility that with appropriate treatment there could be improvement in the longer term.[147] Many individuals with extreme PDs who commit serious offences achieve some improvement in personality function by the end of a long period in a secure setting; but predicting this in an individual case is 'challenging',[148] and it would be a 'long-term endeavour' to incorporate all the stages of the recommended treatment.[149]

91 Dr Darjee also summarised your management whilst on remand. You have spent most of the last two years in management units isolated from other prisoners at your own request. Issues in custody have included: suicidal ideation and an attempt to hang yourself; periods of starving yourself; pervasive and profound problems in interactions with others;[150] and episodes of depression with concerns that you were becoming psychotic in early 2022.[151] Dr Darjee was emphatic that you are likely to experience prison as more burdensome than would somebody without your particular collection of psychopathologies.[152]

92 He opined that - within the current systems and services in custody - given your complex set of risk factors and intervention needs and the guarded prognosis for your mental health,[153] your prospects for rehabilitation may be limited. You are likely to have significant difficulties[154] and will continue to find prison more difficult to cope with than for those not suffering the conditions applicable to you.[155] Regarding future risk to the community, he opined that without intervention, supervision or management you would in the future pose a moderate to high risk of further stalking; and if you did return to stalking, there would be a high risk of serious violence.[156] He outlined your high treatment needs and assessed you as requiring a high level of monitoring, supervision and intervention to address the risk you pose. However, he opined that risk management should be able to reduce the risk of further stalking and related violence.[157]

93 The Crown's submissions concerning community protection emphasised the need to protect other women in the community from you engaging in similar conduct at any future time. The entrenched nature of your PD was emphasised and it was argued that you would be unlikely to engage in treatment in the future.[158]

94 On the other hand, Mr Marsh submitted, regarding the challenges for effectively treating you in custody adverted to by Dr Darjee, this was a matter for the executive, not the courts, as discussed by the Court of Appeal in DPP v Herrmann ('Herrmann').[159] Accordingly, your prospects of rehabilitation must be assessed without regard to the practical reality of whether or not Corrections Victoria is currently able to facilitate the treatment you require while in custody.[160] Mr Marsh submitted, drawing on Dr Darjee's evidence, that your prospects of rehabilitation must be assessed as open and that Dr Darjee's endorsement of the need for supervision to manage future risk, meant that there was a basis for fixing a lengthy parole period to manage any such risk.[161]

95 In considering the competing arguments on the topic of your prospects for rehabilitation, the risk that you would re-offend in the community at some point in the distant future and the question of specific deterrence: I acknowledge that you face many challenges in being successfully treated and your prospects for rehabilitation are limited. I do not disavow that with adequate psychiatric treatment and monitoring your prospects might improve with the effluxion of time over the course of the lengthy sentence to be imposed. As Dr Darjee observed, there could be an improvement in your functioning over the long term, but any such improvement is contingent on a number of factors. He was unwilling to give any specific prediction for you beyond the decade.[162]

96 I am not persuaded that I should find that throughout the course of the lengthy sentence I must impose, you will be unwilling to accept treatment for your disorders. Unlike in DPP v Todd ('Todd'),[163] the evidence in this case does not rise so high as to indicate that your condition is effectively untreatable, decades into the future. The Crown's submissions appear similar to the submissions in Herrmann positing a 'definitive - and pessimistic' approach to the question of your rehabilitation.[164] The sentencing judge in that case - whose judgment was upheld on appeal - rejected such an approach, and I also reject it in this case. As the Court of Appeal acknowledged in that case, the occasions in which a condition, found to be causative of offending, is effectively untreatable - such that a sentencing judge can predict there will remain a risk of reoffending even decades into the future - will be rare.[165] I accept the submission of Mr Marsh that Herrmann is authority for the proposition that it is for the executive to ensure you receive the treatment and supervision you require over the course of your sentence.

97 In respect of limbs 5 and 6 of Verdins, I accept the Defence submission that you will find prison more burdensome than for an offender without those conditions,[166]and that there is a 'serious risk' that imprisonment will have a 'significant adverse effect' on your mental health.[167]

98 The parties made competing submissions regarding where your offence fits in comparison to other cases of murder. The Crown submitted, with the standard sentencing regime in mind, that your offence should be viewed as falling 'well above the middle range of seriousness',[168] and that, as in Todd, life imprisonment should be imposed with an appropriate non-parole period.[169] The Crown relied on the objective gravity of your offending; your poor rehabilitation prospects; and the need for general and specific deterrence, punishment and denunciation.

99 Mr Marsh argued that life imprisonment was not justified, taking into consideration your impaired psychiatric state leading up to and at the time of the offence, thereby reducing your moral culpability and making you an inappropriate vehicle for a deterrent sentence;[170] noting also your guilty plea; the absence of some aggravating factors seen in other cases; the impact of Verdins factors 5 and 6; and the fact that your chances of being rehabilitated should be seen as open. It was submitted that a sentence measured in decades would be a stern sentence and would still meet the purposes of sentencing in this case. Even if a life sentence were open to the Court, it was submitted that the principle of parsimony should weigh against such a sentence.

100 In considering these arguments, I observe that while Todd has some relevance, it is distinguishable from the present case and should not dictate the sentencing outcome here. Todd both raped and murdered his victim after following her for some hours and was obsessed with fantasies of homicidal sexual violence. He was diagnosed with a sexual sadism disorder. The sentencing judge, whose sentence was affirmed on appeal, was persuaded that Todd's disorder could not be successfully treated and considered that life imprisonment should be imposed.

101 The parties also referred to the sentencing[171] and appeal[172] judgments in Herrmann. There are some parallels with Herrmann, although again, the context differs since that case also involved both the rape and murder of the young female victim. Herrmann was diagnosed with a severe PD which was found on the expert evidence to be a necessary, but not sufficient, element in explaining his offending. His offending was described by Associate Professor Carroll as the 'angry type of sexual homicide'. There was limited pre-planning but the offence involved some element of premeditation. Herrmann's psychiatric condition was found to reduce his moral culpability. There was limited remorse, and there were some aggravating features not present in your case such as attempts to burn the body to conceal the crime. Herrmann had a substance abuse disorder and a deprived upbringing.[173] Associate Professor Carroll acknowledged that the rape showed the offender's 'capacity' for deviant sexual arousal and that this was a risk factor for reoffending in the future. He qualified this remark, saying it was 'very difficult to say anything meaningful' about the risk of reoffending because best practice risk assessment involves looking at dynamic changeable factors and those factors were going to change between then and the time of any future release. He opined that Herrmann had 'some' prospects of rehabilitation but whether they would be realised would depend on a number of factors, including the provision of 'appropriate treatment' which he had no way of knowing at that time.[174] Professor Brewer, who also assessed Herrmann, presented a dimmer view of his prospects, but the sentencing judge found that his prospects were fair if he had access to appropriate treatment, support and supervision. From this summary, it can be seen that there are some parallels with your case.

102 Along with Todd and Herrmann, I have considered other sentences imposed for serious examples of murder[175] since the standard sentencing regime was put in place.[176] Some of these cases engaged Verdins principles, whilst others did not. In R v Robertson,[177] the offender became jealous over his partner and engaged in surveillance of her via social media and other means. After being told she wished to separate, he used an iron dumbbell to savagely attack her while she was lying on the bed talking on the phone. The couple's daughter was asleep in another room at the time. The offence was described by the sentencing judge as a grave example of the offence of murder falling above the middle range of seriousness. Tables produced by the parties at the hearing of your plea included several other cases of intimate partner violence where the victims had rejected the offender in some way or had sought intervention orders to keep the offender away.[178] A distinguishing feature in this case is the absence of any pre-existing intimate relationship.[179]

103 Two cases worthy of mention did not involve intimate partner violence. In DPP v Bednar,[180] the offender targeted his elderly mother with a campaign of intimidation and harassment leading up to a planned murder. He broke into her home in breach of an intervention order and inflicted a ferocious beating and then returned two days later to take steps to conceal his involvement. There was no remorse and moral culpability was described as 'exceedingly high', with the offence falling comfortably in the upper range of seriousness. R v Leigh[181] involved a guilty plea where the offender committed a pre-planned, brutal and callous murder of the disabled victim whilst visiting him on the pretext of discussing an unpaid debt. He lured the victim into the bathroom and stabbed him 34 times. The murder was described as falling above the mid-range of the spectrum of seriousness.

104 I have considered current sentencing practice as I am required to do, but previous sentences do not create a precedent which must be followed unless capable of being distinguished.[182]

105 I have had regard to the maximum sentence as well as the standard sentence for murder.[183] As noted by Hollingworth J in Herrmann, a standard sentence looks at the objective factors affecting the relative seriousness of the offence and excludes any matters personal to the offender.[184] Justice Hollingworth said:

A standard sentence is not the same thing as a mandatory sentence. Nor is a standard sentence the primary sentencing consideration, or the starting point from which to add or subtract time. It is just one of the many matters to be taken into account by a court in performing the instinctive synthesis method of sentencing.[185]

106 In my view, the objective factors attaching to your offence place it well above the 'middle of the range' of seriousness. However, in sentencing you, I am required to synthesise all of the matters I have discussed, including matters personal to you.

107 In Herrmann, the Crown cited Todd to argue in favour of the imposition of life imprisonment. Justice Hollingworth found that while there were some similar features there were also important points of difference, notwithstanding that Todd, like Herrmann, concerned a murder in the context of a rape. In the present case, Mr Bourke also cited Todd and argued in favour of life imprisonment. However, as discussed above, I am also persuaded that there are important points of difference between this case and Todd. Having regard to all of the matters I have discussed, despite the objective gravity of the offence, I consider that your offending does not warrant life imprisonment, although it does warrant a very stern sentence.[186]

108 Your rehabilitative prospects have already been referred to. You are now 39, and cannot rely on youthfulness to mitigate your offending, but given that your sentence will be measured in decades, you will be of very mature years before you could even be considered for release. I have accorded significant prominence to community protection because of the risks posed by you, whilst acknowledging that the courts have repeatedly warned of the difficulties of accurately making long-range predictions regarding future dangerousness.[187]

109 In announcing the non-parole period, it is well to keep in mind that the non-parole period is merely a direction as to the minimum term before a prisoner can even be considered for parole, and is not a separate sentence.[188] In this case, the non-parole period will be fixed for a very long time in the future. By then your prospects will be much clearer,[189] and it will be a matter for the authorities as to whether you are capable of being released under supervision of parole.

110 Your appalling crime is deserving of condign punishment. Despite your plea of guilty, the sentence to be imposed must be of sufficient severity to uphold the sacrosanct value of human life and vindicate the rights of all persons to safety and security of person. Crimes such as this are profoundly disturbing to all who hear about them and must be firmly denounced. I have kept in mind the devastating impact of your offence on Celeste's family and friends. The objective gravity of your offending is extremely high, but your psychiatric condition at the time of the offending reduces your moral culpability to some degree. General and specific deterrence, denunciation and just punishment remain relevant in sentencing you. I am also cognisant of the principles of parsimony[190] and proportionality.[191]

112 Luay Sako, I sentence you to 36 years' imprisonment.[192]

114 Pursuant to s 18(4) of the Sentencing Act, I declare that you have already served 1200 days by way of pre-sentence detention, not including today's date, and I direct that this be reckoned as time already served under the current sentence.

115 Pursuant to s 6AAA of the Sentencing Act, I declare that had you not pleaded guilty, I would have imposed a sentence of 40 years' imprisonment with a non-parole period of 36 years.

[1] Pursuant to s 3(1) of the Crimes Act 1958 (Vic), murder is a category 1 offence within the meaning of the Sentencing Act 1991 (Vic).

[2] Pursuant to s 3(2)(b) of the Crimes Act 1958 (Vic).

[3] Mr Sako claims he was aware of a relationship whilst he was still working at Serco, having witnessed friendly encounters between the couple. Nothing turns on this matter.

[5] Originally dated 17 April 2023; amended SPO dated 19 January 2024.

[6] Mr Bourke punctuated his reading of the SPO at the plea hearing to refer to the content of specific Instagram messages sent to Celeste during the period 1 July 2019 to 1 July 2020 (drawn from pp. 341-464 of the Depositions). The messages fit in with the later evidence of Defence expert Dr Rajan Darjee that during his pursuit of her Mr Sako idealised Celeste but also came to hate her and denigrate her. I have considered that material for the limited purpose of background context.

[7] The Crown SPO alleges running. This disputed fact is referred to later.

[8] An 'Ingco' brand hammer and a 'Mint' brand kitchen knife are depicted in the crime scene photographs (Photos 366-71 and 362-3 respectively).

[9] Refer to autopsy report findings at p. 167 of the Depositions.

[11] The knife was photographed by police in situ on the bedroom floor beside Celeste's right foot, but Celeste had been moved from where she was first discovered by her mother on the bed.

[12] Statements from Constable Kondam (pp. 219-21 of the Depositions) and Senior Constable Gwynne (pp. 222-4) and transcripts of body-worn camera footage of Constable Kondam (pp. 648-59) and First Constable Colosimo (pp. 660-78).

[13] Detective Senior Constable Mion: refer p. 234 of the Depositions.

[16] In the vicinity of Bridge Inn Road.

[17] Mr Sako claims he kissed Celeste's hair, not her cheek. Nothing turns on this distinction.

[18] Statement of Celeste Manno, pp. 335-7 of the Depositions.

[19] Often these new accounts would reference Mr Sako's first, middle or last name.

[20] In a subsequent statement, Celeste described the messages as being of an explicit sexual nature that were 'disgusting and completely unwanted': Statement of Celeste Manno, p. 336 of the Depositions.

[22] There was a longer-than-usual delay due to the COVID-19 pandemic.

[23] Statements of Sandra Sweeney (pp. 154-9 Depositions) and Sue Hodgson (pp. 160-2) containing transaction history of Mr Sako's Woolworths 'Everyday Rewards' account and referencing CCTV surveillance footage of Craigieburn Woolworths.

[24] Blaming Celeste for not explaining that the behaviour was causing her distress, criticising police for not issuing a warning prior to the arrest on 10 August, claiming persecution and expressing concern about being imprisoned for 10 years and being taken advantage of: refer pp. 643-6 of the Depositions.

[25] It was not explained how or why this was so.

[26] Three charges of use carriage service to harass/menace/offend. These three charges were filed in the Heidelberg Magistrates' Court.

[27] Statement of L/S/C Vanderleest, p. 202 of the Depositions.

[28] Statement of Detective Senior Constable Drew (pp. 287-8 of the Depositions); record of interview (p. 714 of the Depositions).

[29] Admissions were made to sending constant messages to Celeste, despite being blocked by her, and to being served with the interim PSIO whilst holding the belief that the treatment by Celeste and by the police was unfair and unjust. Mr Sako claimed he was messaging Celeste out of loneliness. He did however, at this time, admit sending sexually inappropriate messages at an earlier stage.

[36] Mr Sako admitted he had used another phone number in the past but claimed he did not remember it or when he stopped using it: Depositions, p. 729.

[39] Applying the De Simoni principle to these other charged or uncharged offences: R v De Simoni (1981) 147 CLR 383. See also DPP v McMaster [2008] VSCA 102; (2008) 19 VR 191, 200 (Ashley JA, Neave JA and Lasry AJA agreeing); LN v R [2020] NSWCCA 131, [40]-[41] (Basten JA, R A Hulme J agreeing); R v Nobile [2006] VSCA 211, [8] (Nettle JA); and the discussion in Jackson v The Queen [2020] VSCA 95, [66] (Croucher AJA).

[40] Darjee Report, p. 6; Defence Submissions on Sentence, [37].

[42] In 2017-18 Mr Sako completed a course in security equipment installation hoping for a career in that field but this was not pursued. He next made efforts to sell IT products online but was unsuccessful.

[43] Darjee Report, p. 11 [33]; see also p. 13 [39].

[44] When interviewed by police on 25 August 2020 in relation to the charges of breach interim PSIO and attempt to pervert course of justice, Mr Sako said that his mental health had declined in recent times and he was lonely and depressed as a result of COVID-19 restrictions: SPO, [33].

[45] The Carroll Report dated 17 February 2022 was filed by the Defence on 21 February 2022.

[46] McInerney Report dated 18 May 2022; filed 2 June 2022.

[47] The Crown relied on the McInerney Report and the Defence relied on the Carroll Report.

[48] Recommendations had been made by Dr McInerney directed to appropriate treatment and management of Mr Sako by the authorities pending the fitness hearing.

[51] Charges were laid on 19 November 2020 but committal via straight hand-up brief did not occur until 20 September 2021.

[53] Mr Sako appeared before me at a mention in the matter on 30 June 2023.

[54] On 12 July 2023 the Court was informed VLA had been retained.

[56] A forensic psychiatrist with extensive experience and expertise in the assessment of people who have committed homicide, people who have stalked or harassed others, and people with complex clinical presentations including personality disorders.

[57] In the lead-up to the October 2023 plea date, Dr Darjee's UK-based father became ill and died, and he also was beset with personal ill health and needed further time to provide his report.

[58] The Court was advised that Celeste's father was unavailable in December along with other authors of victim impact statements.

[59] A short hearing took place on 20 December 2023 regarding whether certain passages of the victim impact statements were inadmissible and should not be read in open court.

[60] The 22 January 2024 mention was called to air these issues.

[61] It appears there was cooperation between VLA and the Office of Public Prosecutions in ensuring provision to Mr Sako of relevant materials to enable him to represent himself at the plea hearing.

[62] Based on material filed on Mr Sako's behalf and comments made by Mr Sako at the 22 January 2024 mention.

[64] SPO, [20]. Mr Sako submitted it could be considered that some messages were part of one continuous communication that was interrupted when the character limit for Instagram messaging had been reached.

[65] At the mention on 22 January 2024; refer to p. 10 of the transcript from that proceeding.

[66] Mr Marsh initially sought to appear as amicus on Mr Sako's behalf to make submissions about the application of Verdins principles relevant to Mr Sako's mental state. This application was made because of the serious nature of the charge, the likely sentence that could be imposed, and the significance of Verdins considerations to sentencing. Ultimately, after further discussion over the lunch hour of 29 January 2024, Mr Sako decided to renew his retainer with VLA, with Mr Marsh and Mr Cooper acting on his behalf.

[67] Dr Darjee said he thought his 125-page report was the longest report he had produced in his 25 years as a psychiatrist: Transcript (30 January 2024), p. 173.

[68] On the third day of the plea hearing.

[69] R v Storey [1998] 1 VR 359, 369 (Winneke P, Brooking and Hayne JJA and Southwell AJA); adopted in The Queen v Olbrich (1999) 199 CLR 270, 281 [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

[70] Being SPO Response 1-4; autopsy diagram; email from Mr Sako to L/S/C Vanderleest dated 8 October 2020; and sharp force injuries report.

[71] Autopsy report p. 3 (refer p. 167 of the Depositions).

[73] Transcript, p. 62: No glass was found in the wounds to which he was taken by the Crown in his evidence-in-chief.

[76] When Mr Marsh and Mr Cooper resumed acting for Mr Sako they touched on some of the disputed factual issues raised by their client. I note that while the disputed issues were described by Mr Marsh as being of importance to Mr Sako, none of the matters Mr Sako propounded appeared relevant to mitigation of sentence or a reduction of moral culpability: see, eg, Transcript, 22 January 2024, p. 20.

[77] Such as the number of text-based messages he sent Celeste; or how fast he approached the house; or whether there was an altercation inside Celeste's bedroom; or whether he stabbed Celeste more than twice; or whether he could, in fact, see her in the dark of the bedroom.

[78] Because I had to rule on aspects of the victim impact statements that were not to be read aloud, I read and viewed the material more than once. I have disregarded any inadmissible material.

[79] Other factors I am obliged to have regard to include the maximum penalty and the standard sentence prescribed for the offence, current sentencing practices, the nature and gravity of the offence, and your culpability and degree of responsibility for the offence.

[80] The seriousness of the offending was not in dispute between the parties, with the Crown describing the offending as extremely serious and of very high objective gravity, and the Defence conceding this was serious example of a serious crime. Both parties discussed essentially the same aggravating features: see Prosecution Sentencing Submissions, [6]-[32] and Defence Submissions on Sentence, [19]-[34].

[81] I acknowledge that the knife was bought the day after Mr Sako's first arrest for offences against Celeste, on 11 August 2020, but note that the high standard of proof pertaining to this issue.

[82] This finding accords with the evidence of Dr Darjee regarding Mr Sako in the 3 weeks preceding the murder; he opined that in this period Mr Sako was ambivalent, sometimes moving towards the idea of homicide but not thinking about it all the time: Transcript, pp. 221-2.

[83] Either from viewing Instagram stories or from other means.

[84] Dr Darjee referred to the posting of the photos on 15 November 2020 as 'the straw that broke the camel's back': Darjee Report, p. 112 [370] and Transcript, pp. 221-2, 245.

[85] Analysis of Mr Sako's Apple MacBook Pro computer seized by police under warrant on 16 November 2020 identified, inter alia, two photographs of Christopher; Google and LinkedIn searches of Christopher's name; and access to the website of The Provincial Hotel, being the venue attended by Celeste and Christopher on 14 November 2020. A screenshot of Celeste's Instagram post with Christopher was also located on Mr Sako's recovered Optus Mobile. Refer SPO, [65]-[66]; Prosecution Submissions on Sentence, [18]-[19]; Darjee Report, pp. 46 [181], 55 [203], 81-2 [291]-[292] and Transcript, pp. 221-2.

[86] See, eg, DPP v Paulino [2017] VSC 794, [11] (Bell J).

[87] I accept the Crown submission, based on Hudson v R [2010] VSCA 332; (2010) 30 VR 610, 619 [39] (Ashley, Redlich and Harper JJA), that premeditation is a recognised circumstance of aggravation.

[88] To attack a victim in their bed aggravates the offence, as does the use of the hammer to break in and the use of the knife as a weapon.

[89] Prosecution Sentencing Submissions, [22].

[90] Dr Bedford classified wound 1 - being the 'ragged incised' fatal chest injury that penetrated Celeste's heart - as a stab wound, and was very clear that it was not, in his opinion, related to glass in any way, shape or form: Transcript, pp. 48-50 and 76.

[91] Defence Submissions on Sentence, [19].

[92] Examples of Mr Sako minimising his awareness of what he did are included in my earlier references to answers given in his police interview (see paragraphs 35 to 36 of this sentence). Dr Darjee opined that Mr Sako tends to project blame onto others which is a self-protective mechanism for someone with a fragile personality: see, eg, Transcript, pp. 226-7. The demand for a third visit by Dr Darjee and references to 'Isha' at that time were seen as attempts to portray a psychotic phenomenon - wanting sympathy, not wanting to be seen as a monster or stalker and externalising blame: Transcript, p. 235.

[93] For the purposes of preparing his report, Dr Darjee interviewed Mr Sako three times, and had regard to the brief of evidence; court documents; documents prepared by Mr Sako in custody; photographs, videos and audio files; victim impact statements; chronology; indictment; SPO; previous psychiatric and psychological reports prepared when fitness and/or mental impairment was being considered (Dr McInerney, Associate Professor Carroll, Professor Ogloff); an email dated 8 October 2020 to L/S/C Vanderleest; and the letter Mr Sako sent to Celeste via Instagram on 15 August 2020.

[94] Dr Darjee listed the range of conditions attributed to Mr Sako in his report: Darjee Report, p. 88 [307]).

[95] Outlined at p. 89 [309]-[313] of the Darjee Report.

[96] The Darjee Report (see at p. 86 [303]) used the alternative terms 'extreme' and 'severe', noting the alternative frameworks for classifying PD: ICD-11 ('severe') and DSM-5 ('extreme'). In oral evidence the terms were used interchangeably, and Dr Darjee observed that these terms - which represent the highest level of personality pathology under the respective two diagnostic frameworks - are both equivalent to each other: Transcript, p. 175. For convenience and simplicity, during these reasons I will use the word 'extreme' to refer to the PD diagnosed by Dr Darjee as he used that term very frequently.

[97] Like bipolar affective disorder and schizophrenia: Darjee Report, 91 [320].

[98] Dr Darjee stated that he had rarely seen a person (in his forensic and clinical practice over the last 25 years) with the combination of unusual traits and extreme personality pathology found in Mr Sako: Darjee Report, p. 91 [320]. He also said that it is very rare for individuals, even in the criminal justice system, to have extreme PDs of this severity.

[99] With anxious distress and sometimes perhaps psychotic symptoms. Dr Darjee noted that Mr Sako also had episodes of MDD when in prison: Darjee Report, p. 90 [311]; Transcript, p. 183.

[100] Dr Darjee considered a number of other conditions to be probably not applicable. Autism spectrum disorder ('ASD') or attention deficit hyperactivity disorder ('ADHD') were probably not present, and there was no evidence of a long-term psychotic disorder such as schizophrenia or delusional disorder, and no evidence of bipolar affective disorder: Darjee Report, p. 89 [312].

[102] See, eg, Darjee Report, p. 118 [383].

[105] He opined that when considering the nexus between these mental conditions and the offending, they led to significantly impaired judgement, disinhibition, impaired ability to make calm and rational choices and to think clearly, and impaired appreciation of the wrongfulness of actions taken (although not completely): Darjee Report, p. 118 [383]. He mentioned that the BDD was less relevant to this analysis.

[106] Transcript, pp. 174, 180-1; Darjee Report, p. 118 [383]. Dr Darjee also noted (at Transcript, p. 175) that the BDD played a lesser role in the offending but it played a more significant role in some of the initial stalking behaviour.

[107] The language of 'necessary' and 'sufficient' conditions was the subject of some focus in the examination and cross-examination of Dr Darjee on days 2 and 3 of the plea hearing.

[109] Darjee Report, p. 91 [320]. This view accords with the findings of the Court of Appeal in DPP v Herrmann [2021] VSCA 160; (2021) 290 A Crim R 110, 135 [113] (Maxwell P, Kaye, Niall, T Forrest and Emerton JJA).

[110] R v Verdins (2007) 16 VR 269; refer also, eg, to the summary of Verdins principles in DPP v Gargasoulas [2019] VSC 87, [128]-[129] (Weinberg JA) and DPP v Herrmann [2019] VSC 694, [66] (Hollingworth J).

[111] Submissions made subject to the Court's receipt of Dr Darjee's oral evidence at the plea hearing; although I understood the Crown's fundamental position to remain unchanged after receiving that evidence: see Prosecution Sentencing Submissions, [33].

[114] Prosecution Sentencing Submissions, [38]; see also Transcript, pp. 317-8.

[115] Contrary to the Crown's submissions, the Defence argued there is no requirement for an offender's mental impairment to be a causal explanation for the offending, but rather (and only) a realistic connection between the two: see, eg, Transcript, pp. 372-4, 394-5, 398.

[116] Brown v The Queen [2020] VSCA 212; (2020) 62 VR 491.

[117] Ibid 507-9 [59]-[69] (Maxwell P, Niall, T Forrest, Emerton and Osborn JJA).

[118] (and therefore on Mr Sako's moral culpability.)

[119] Mr Sako was not 'driven, impelled, or compelled directly by symptoms of mental disorder', but both his PD and depression played a major indirect role in leading to the stalking behaviour and the murder: Darjee Report, p. 118 [383].

[120] See also, eg, DPP v Herrmann [2019] VSC 694, [84] (Hollingworth J).

[121] The Crown also noted that Mr Sako had indicated a desire in recent times to change his plea, requesting a third interview with Dr Darjee for the express purpose of him assessing whether Mr Sako could avail himself of a mental impairment defence: Prosecution Sentencing Submissions, [43].

[122] Citing R v Hall (1994) 76 A Crim R 454, 470 (Crockett and Southwell JJ).

[123] See, eg, Prosecution Sentencing Submissions, [42].

[124] Including the often pedantic disputes raised about the facts founding the offence.

[125] (given in re-examination): Transcript, p. 282.

[126] See, eg, Darjee Report, p. 113 [373]. He stated that there is no evidence remorse can be reliably assessed or is a valid or meaningful psychological (as opposed to moral or legal) construct.

[127] Transcript, pp. 207-8, 212, 229. Dr Darjee opined that remorse is not a valid or meaningful psychological construct, although it might be important for various reasons when coming to treatment, rehabilitation and risk, but it is not evidence-based: Darjee Report, p. 113 [373] and Transcript, pp. 196-7.

[129] One such example was Mr Sako's reference to an imagined entity 'Isha', who Mr Sako said encouraged him to commit the offending.

[130] Referring to Mr Sako's idiosyncratic but genuinely felt way of conceptualising his reality, Dr Darjee opined (Darjee Report, p. 101 [348]):

The most likely explanations for his exaggeration or feigning of symptoms are broadly: him pushing to understand and convey his genuine mental distress and anguish, his hope and wish to be viewed sympathetically by others, and at the same time not wanting to be considered a 'monstrous stalker' by himself and others.

[133] The Crown pointed to instances of Mr Sako minimising or denying aspects of his behaviour as being evidence of his lack of insight or remorse: Prosecution Sentencing Submissions, [9]-[10], [21], [42], [44], [45].

[134] Prosecution Sentencing Submissions, [53], [60]-[61].

[135] In DPP v Gargasoulas [2019] VSC 87, Weinberg JA said at [183]:

The law provides that the onus rests upon an offender who seeks to rely upon remorse to establish that it is genuine. An absence of remorse is not, of itself, an aggravating factor. However, a profession of remorse which is not genuine cannot be given any weight by way of mitigation.

In DPP v Todd [2019] VSC 585, Kaye JA said at [99] when discussing the genuineness of asserted remorse:

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

[136] Including the abovementioned ongoing attempts to deflect responsibility.

[137] Including invoking factual disputes about matters of limited significance to the sentencing process.

[138] Worboyes v The Queen [2021] VSCA 169, [17]-[41] (Priest, Kaye and T Forrest JJA) provides a detailed explanation of the utilitarian benefits of guilty pleas even outside the circumstance of a global pandemic.

[139] Brief written submissions regarding Worboyes were received from the parties after the plea hearing concluded.

[140] This is because the impacts on courts from the pandemic have reduced over the passage of time. See, eg, DPP v Gardner [2022] VCC 1284, [87]-[89] (Dempsey J); DPP v Pearson [2023] VSC 484, [87]-[88] (Jane Dixon J); R v Surtees [2022] VSC 124, [122] (Tinney J); Surtees v The King [2023] VSCA 42, [9], [10], [43], [64] (Kyrou, Walker and Kaye JJA); Biba v The Queen [2022] VSCA 168, [28]-[32] (McLeish, T Forrest and Kennedy JJA); DPP v Batsanes & Smith [2023] VSC 693, [52] (Hollingworth J).

[141] It is to be recalled that there was a great deal of fear in the early phase of the pandemic about COVID-19 entering Victorian prisons.

[142] Since at least adolescence, continuing into adulthood.

[143] Darjee Report, pp. 93-4 [326].

[144] He qualified this under cross-examination, saying, 'I think you have to be careful about saying anything in the long, long term': Transcript, p. 274.

[145] Darjee Report, p. 94 [327]. Dr Darjee agreed that Forensicare is an organisation with clinicians capable of delivering relevant psychological interventions that Mr Sako would require: Transcript, pp. 202-3.

[150] Including being the victim of prison assault but on at least one occasion assaulting another prisoner.

[152] Dr Darjee could be 'pretty clear about that', referring to 'three plus years of evidence'. Mr Sako was distressed, struggled, had problems with his behaviour, and the prison had struggled to deal with him: Transcript, p. 204.

[154] Being similar to difficulties already experienced in custody over the last three years or so, including difficulties interacting with staff, difficulties with other prisoners, and self-isolation which has not necessarily been helpful in terms of reality testing and vulnerability to depression: Darjee Report, p. 124 [398].

[155] Darjee Report, p. 124 [398]. Dr Darjee also stated in the same paragraph that: 'Prison has clearly weighed more heavily on him in terms of its impact on his psychosocial functioning that on most other prisoners'.

[156] (particularly if Mr Sako felt thwarted and desperate). Dr Darjee explained that whilst these are ratings of risk without future intervention, supervision or management, Mr Sako is unlikely to receive no/a low level of custodial monitoring, supervision and intervention for a period, and when eventually back in the community he should be subject to appropriate management: Darjee Report, p. 123 [396].

[158] Transcript, pp. 319, 320; the Crown sought to distinguish Mr Sako from Todd and Herrmann in this regard.

[159] [2021] VSCA 160; (2021) 290 A Crim R 110.

[160] In this regard see, eg, DPP v Herrmann [2021] VSCA 160; (2021) 290 A Crim R 110, especially at 135 [112]-[113] (Maxwell P, Kaye, Niall, T Forrest and Emerton JJA), as was referred to in oral argument at the plea hearing by Mr Marsh (see, eg, Transcript, pp. 343, 378-9).

[161] See, eg, Defence Submissions on Sentence, [90] citing R v Nguyen [2003] VSC 62, [30] (Warren J) and R v PP [2003] VSCA 100; (2003) 142 A Crim R 369, 376-7 [16], [17] (Callaway JA, Winneke P and Buchanan JA agreeing); Mr Marsh argued that enabling conditional release on parole at some point in the future, subject to close monitoring and supervision, would aid rehabilitation whilst safeguarding the community.

[163] [2019] VSC 585.

[164] DPP v Herrmann [2021] VSCA 160; (2021) 290 A Crim R 110, 134 [108]-[109].

[166] Transcript, p. 381. Note also that based on Dr Darjee's evidence as to Mr Sako's progress in prison since his arrest and his likely future progress, the Crown did not dispute that imprisonment would weigh more heavily upon Mr Sako than other prisoners due to his combined mental disorders: Prosecution Sentencing Submissions, [39].

[167] Mr Sako tends to prefer isolation which is potentially problematic; see also, eg, DPP v Gargasoulas [2019] VSC 87, [154] (Weinberg JA).

[168] Prosecution Sentencing Submissions, [56].

[169] If a life sentence were to be imposed, I would be obliged to impose a non-parole period of at least 30 years (unless I consider it is in the interests of justice not to do so): Sentencing Act 1991 (Vic), s 11A(4)(a).

[171] [2019] VSC 694 (Hollingworth J).

[172] [2021] VSCA 160; (2021) 290 A Crim R 110.

[173] Enlivening Bugmy factors; see Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571.

[174] DPP v Herrmann [2021] VSCA 160; (2021) 290 A Crim R 110, 133 [101].

[175] Including those contained in tables provided by the parties.

[176] Refer s 5B(2)(b) of the Sentencing Act 1991 (Vic).

[177] [2019] VSC 145: 24 years' imprisonment, non-parole period ('NPP') 19 years.

[178] R v Cameron [2020] VSC 334 - guilty plea to a 'very serious example of murder', offender inflicted multiple stab wounds on victim while she was lying on the bed: 29 years' imprisonment, non-parole period ('NPP') 23 years; DPP v Coman [2023] VSC 159 - early guilty plea, the offender was suffering psychotic depression when he stabbed his pregnant partner to death, described as falling above the mid-range of seriousness: 25 years' imprisonment, NPP 20 years; DPP v Gonzalez [2022] VSC 331 - guilty plea to planned murder of ex-girlfriend by trespass into her home and shooting her twice at close range, previous rejection by victim: 24 years' imprisonment, NPP 17 years; R v Margolis [2021] VSC 341 - conviction following trial, the offender choked his 26 year-old girlfriend to death during an argument, the pair had been in a brief relationship, offender's moral culpability reduced by his severe PD and PTSD, guarded prospects for rehabilitation: 23 years' imprisonment, NPP 17 years; DPP v Bell [2020] VSC 664 - guilty plea, the offender strangled his partner in breach of family violence intervention order ('FVIO'), Verdins applicable but rehabilitative prospects guarded: 21 years' imprisonment, NPP 15 years; DPP v Fairhall [2022] VSC 444 - conviction after trial, stabbing of intimate partner in breach of FVIO, Verdins and Bugmy factors applied: 25 years' imprisonment, NPP 18 years and 6 months; R v Basham [2023] VSC 79 - conviction following trial, planned murder by trespass into garage of home of estranged wife in breach of FVIO and infliction of 41 blunt force injuries, motivated to prevent her giving evidence on charges of raping her, victim's body placed in a noose to appear as it suicide, offending described as 'far exceed[ing] the middle of the range of seriousness' and 'at the highest end of that scale': life imprisonment, NPP 30 years.

[179] Refer, eg, Defence Submissions on Sentence, [88]: 'Sentences that are comparable to the instant offending are difficult to identify. ... Many of the cases involve offending against former partners; this is an inelegant fit for the offending before the Court'.

[180] [2023] VSC 67: 29 years' imprisonment, NPP 23 years.

[181] [2019] VSC 378: 28 years' imprisonment, NPP 22 years.

[182] See, eg, Todd v The Queen [2020] VSCA 46, [54] (Ferguson CJ, Priest and Beach JJA); Likiardopoulos v R [2010] VSCA 344; (2010) 30 VR 654, 690 [172] (Buchanan, Ashley and Tate JJA).

[183] See Sentencing Act 1991 (Vic), ss 5(2)(a), (ab), 5B(2)(a). Consideration of the standard sentence does not impact the accepted 'instinctive synthesis' approach to sentencing and is to be treated as a 'legislative guidepost' only, having the same function as the maximum penalty: Brown v The Queen [2019] VSCA 286; (2019) 59 VR 462, 464 [4] (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA).

[184] Sentencing Act 1991 (Vic), ss 5A(1)(b), (3).

[185] DPP v Herrmann [2019] VSC 694, [104] (Hollingworth J).

[186] See, eg, R v Kilic [2016] HCA 48; (2016) 259 CLR 256, 265-6 [17]-[20] (Bell, Gageler, Keane, Nettle and Gordon JJ).

[187] See, eg, Fardon v Attorney-General (QLD) [2004] HCA 46; (2004) 223 CLR 575, 623 [124]-[125] (Kirby J), citing Kable v DPP (NSW) [1996] HCA 24; (1996) 189 CLR 51, 122-3 (McHugh J); Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458, 563-5 (Stephen J); McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121, 141-2 [61] (Kirby J) ('McGarry'). See also Hunter v R [2013] VSCA 385; (2013) 40 VR 660, 672 [40]-[41], 673 [45] (Maxwell P and Coghlan JA) and R v Lyons [1987] INSC 47; [1987] 2 SCR 309, 367 (La Forest J) as cited in McGarry 142 [61] n 71 (Kirby J).

[188] See, eg, DPP v Gargasoulas [2019] VSC 87, [161] (Weinberg JA).

[189] See DPP v Bednar [2023] VSC 67, [122] (Tinney J).

[190] Sentencing Act 1991 (Vic), s 5(3).

[191] '[A] sentence should not be increased beyond what is proportionate to the crime in order merely to extend the period of protection of society from the risk of recidivism on the part of the offender': Veen v The Queen (No. 2) (1988) 164 CLR 465, 472 (Mason CJ, Brennan, Dawson and Toohey JJ), referencing Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458, 467 (Stephen J), 468 (Mason J), 482-3 (Jacobs J), 495 (Murphy J).

[192] This is higher than the standard sentence for murder, for all the reasons discussed above: refer s 5B(5) of the Sentencing Act 1991 (Vic).