DPP v Aleluia [2017] VSC 204

2 Later that day, you described her as a wonderful woman. She did everything for you.[1] She bought all your clothes. She put food in your stomach. She got you shelter and brought you into her house. She bought you a car. Not only did she do everything for you, but she had 2 beautiful girls. These are the words that you used on the day that you killed her.

3 Brittany Harvie was 22 years old at the time of her death.[2] Her parents separated when she was 5 years old. She was raised by her mother for a period of time, then by her father and grandparents. She then moved back to the care of her mother from the age of about 14.

4 You commenced your relationship with Brittany in late December 2014, when you were both living at a boarding house.[3] You moved from the boarding house and lived with Brittany's mother for approximately 1 month. After that time, you were both homeless.

5 In the time leading up to Brittany's murder, you were living in a car together, which Brittany had purchased in April 2015. On the night in question, the car was parked in a car park at Keeley Park Reserve in Clayton South.

6 In a statement to the police, you said you suspected Brittany had been unfaithful to you. Apparently as a result of this suspicion, in the early hours of 3 June 2015, in an "outburst of anger and violence,"[4] you started to assault Brittany in the car, including by kneeing her to the head. You then dragged her out of the car and pushed her to the ground, before repeatedly punching her to her head and body. The attack was violent and ongoing. It lasted up to 15 minutes,[5] for the most part interrupted only by intermittent verbal abuse. On the account given to the police, you suggested that towards the end of the assault you waited for a while, rolled a cigarette and then punched her again.

7 The attack involved numerous separate applications of force to the head, neck and body. You admitted to the police that you "laid into her"; that you punched her face "a lot"; and that you "jabbed her and punched her and just kept punching her and punching her". After this protracted assault, you then dragged Brittany across the car park, which was partially covered in gravel.

8 Having seriously injured Brittany, you made no attempt to obtain assistance for her. You explained this inaction by later stating that you "thought she'd make it till the morning". Instead of getting help, once you had placed Brittany back in the car, you removed some items of your clothing and, together with a blanket, placed them on her in an attempt to keep her warm. You then went to sleep.

9 You woke in the morning to find Brittany Harvie cold and her heart not beating. You realised that she was dead.

10 The circumstances of Brittany's death were horrific. An autopsy was carried out on 4 June 2015.[6] A large number of injuries were recorded, the most significant being to the head, neck and chest.

11 According to the autopsy report, the injuries to the head were indicative of multiple episodes of blunt force trauma and included "widespread bruises, abrasions and lacerations, extensive degloving injury to the scalp,[7] a fractured nose, and a blow-out fracture of the right orbit".[8] Examination of the brain showed evidence of multi-focal traumatic axonal injury, consistent with blunt force trauma delivered to the head.

12 There were areas of bruising and abrasion to the skin of the neck. The deep structures of the neck showed bruising, suggesting compressive force was applied to that region.

13 Further, there were bruises and abrasions to both sides of the chest, associated with fractures of ribs 5, 7, 8 and 9 on the right side.

14 Furthermore, there were bruises and abrasions to all limbs, particularly the forearms and back of the hands. These injuries were consistent with the adoption of defensive type actions.

15 In addition to injuries associated with blunt force trauma, areas of shallow penetrating injury were identified on the forehead, right upper arm, left upper arm, left forearm and hand and the right thigh.

16 Although it was not possible to identify the mechanism of death specifically, the cause was complications of blunt force trauma. It was considered very likely that death had been caused and contributed to by factors including:

(1) Concussive head trauma with suboptimal protection of airway.

(3) Chest trauma with rib fractures and pneumothoraces.[9]

(4) Acute systemic inflammatory response in the setting of multiple widespread injuries.

17 Victim impact statements were tendered in court on behalf of Brittany's mother, Lorene Stevenson,[10] her father, Kevin Harvie, her grandmother, Dawn Harvie, her uncles, Sean and Dirk Harvie, and her grandaunt and godmother, Rhonda Jansz.

18 Ms Stevenson spoke of her whole world falling apart. She spoke of the impact on other members of the family. Not only did Ms Stevenson speak of her pain and loss being heartfelt, but she spoke of the many joys that Brittany brought to the world.

19 Brittany's father spoke of his trauma from the loss of his only child, including nightmares on a daily basis. He spoke of being completely despondent and inconsolable. He also spoke of Brittany's kindness and her love of life.

20 The authors of the remaining victim impact statements each spoke of her or his deep love for Brittany and the sense of loss felt upon her death. It is plain that Brittany enjoyed a close relationship with her extended family members and played a special part in their lives. They each expressed concern, sorrow and uncertainty for the 2 young children she has left behind.

21 The contents of each of the victim impact statements have been taken into account.

22 You have had an unfortunate background. You do not know whether you were born in the Cook Islands or in New Zealand. You had no meaningful contact with your biological parents. You have no knowledge of your mother, who abandoned you. Your father was in gaol at the time of your birth.

23 As your parents were unable to care for you, your aunt and uncle took you into their care. When your aunt passed away many years ago, her eldest daughter, your cousin, took on the role of "mother" to you and her 2 younger brothers.

24 Although the timing is not entirely clear, you moved to Australia with your adoptive family.[11] You settled in Clayton with them and grew up in that area.

25 From the age of 8, you were introduced to "chroming".[12] Then, at 12, you became a daily user of cannabis.[13] You also drank alcohol from around this time. Being introduced to these substances at such a young age was most unfortunate, and was at a time when you completely lacked the maturity to understand the seriousness of such conduct and its repercussions.

26 You attended Westall Primary School and then Westall Secondary College until year 9. Academically you performed very poorly. However, on the sporting field you enjoyed considerable success. You represented Victoria in the under 16 State rugby league team. But this did not allay your problems at home, and, when you were only 15 years old, you were asked to leave the family home. Although there were short periods of time where you returned to stay with your adoptive family, from this time on you never really had a place that you could call home.

27 As to your adoptive family, you have said you never felt part of the family. You always perceived that they did not want you. Further, you say that you were physically and psychologically abused by your uncle.

28 Upon leaving school, you worked with a meat packing company in Dandenong for 1½ years. You also worked as a furniture removalist for approximately 3 months. Other than this, you have had no gainful employment.

29 Since leaving the family home, you have moved from place to place, often living in shelters, on the streets or in cars. For a period of approximately 2 months you lived with your cousin in Highett. It was there that you met your first girlfriend, who is the mother of your son.[14] Some time after this, you spent approximately 9 months living in a residential care unit in Berwick, before being evicted because of your drug use.

30 In short, in the 3 years after you were asked to leave your family's home, your life was in a constant state of uncertainty and insecurity. Although you received some assistance from social workers, you generally lacked guidance or direction.

31 At both the initial trial, which was aborted through no fault of your own,[15] and at this trial, you pleaded not guilty to murder. You were entitled to plead not guilty to murder and your sentence cannot be increased by reason that you chose to do so.[16]

32 At the same time as each of your not guilty pleas, you also pleaded guilty to manslaughter. It was submitted on your behalf that such a plea should give rise to a reduced sentence, albeit with "some qualification [to] the normal reduction that would flow from a plea of guilty" to the offence as charged. No authority was relied upon in support of this submission.

33 Your guilty plea to manslaughter provided little, if any, real utilitarian value in this case. It was still necessary to have a jury trial with respect to the only real issue in the proceeding, namely whether or not you had the necessary murderous intent. Putting that element of the crime of murder in issue required a substantial number of witnesses to be called,[17] and the relatives and friends of Brittany to endure a trial concerning her gruesome death. Further, given the available evidence at the time the trial commenced, intent was the only issue that could have been properly disputed.

34 In these circumstances, no reduction ought to be given by reason of your guilty plea to manslaughter.

35 In returning a guilty verdict, the jury found that you had the requisite murderous intent. The Crown's case put to the jury was that you had either an intention to kill or an intention to cause really serious injury. The guilty verdict is consistent with either of these intentions.

36 It was submitted on your behalf that, for the purposes of sentencing, I could not be satisfied beyond reasonable doubt that you had an intention to kill. On this basis, it was submitted that a lesser sentence than might otherwise have been imposed should be given on the basis that you only possessed the intention to cause really serious injury. In contrast, the Crown submitted that the evidence demonstrated an intention to kill beyond reasonable doubt.

37 In my opinion, the evidence does not establish beyond reasonable doubt that you had an intention to kill at the relevant time. It is unlikely that any single punch or other act amounted to a fatal assault. The specific cause of Brittany's death was unclear.[18] Further, although very seriously beaten, she was conscious at the time that you ceased to assault her.

38 Therefore, you will be sentenced on the basis that you had the intention to cause really serious injury. That said, this does not necessarily mean a lesser sentence is appropriate. The violent and protracted bashing of a defenceless woman must, subject to the matters set out below,[19] be considered as involving a high level of moral culpability.[20]

G. The applicability of the principles in R v Verdins

39 In R v Verdins,[21] the Court of Appeal reformulated the principles applicable to the relevance of impaired mental functioning (whether temporary or permanent) to sentencing. By reference to this judgment, your senior counsel submitted that your permanent impaired mental functioning might reduce the moral culpability of the offending conduct, as distinct from your legal responsibility.[22] It was also submitted that your condition should result in general deterrence being moderated as a sentencing consideration.[23]

40 The applicability of the R v Verdins principles was said to be evidenced by a report dated 7 March 2017 prepared by a clinical neuropsychologist.[24] The psychologist was not called to give evidence. The report was tendered in your case without objection.

41 The psychologist administered a number of tests.[25] The results of those tests exposed a significant discrepancy between your verbal and perceptual intellectual capabilities. It was accepted by the Crown that this evidence provided a basis upon which the court might be satisfied of an impairment in your mental functioning. Establishing the existence of a mental impairment, however, is only the first step towards enlivening the R v Verdins principles.[26] In short, the relevant principles do not apply unless the following are also satisfied:

(1) If such an impairment exists, there is cogent evidence of the nature, extent and effect of the impairment at the relevant time.[27]

(2) There is a connection between the impairment and the offender's moral culpability or the need for general and specific deterrence. That is, at the time of the offending, the impairment must have had some "realistic connection" with the offending, or the impairment must have "caused or contributed" to the offending or be "causally linked" to the offending.[28]

(3) The mental impairment must have affected the offender's ability to appreciate the wrongfulness of the conduct, or obscured the offender's intent to commit the offence, or impaired the offender's ability to make calm and rational choices or to think clearly at the time of the offence.[29]

With respect to each of the above matters, the onus is upon the offender. Further, in making the relevant assessment, the court must give careful consideration to whether the evidence establishes that the offender's mental capacity has been impaired and which of the circumstances set out in R v Verdins have been engaged, and must act with rigour.[30]

42 Although the Crown did not object to the tender of the report, it submitted the findings made, and opinions expressed, did not attract the R v Verdins principles. In order to address this issue, it is necessary to set out the key findings and opinions. In doing so, I will follow the structure of the report.

43 To the extent that the tests administered were validly completed, the psychologist recorded that you received a percentile score which reflected an impairment with respect to "verbal comprehension" and "attention and processing speed". Your difficulty with respect to verbal comprehension affected your results with respect to "memory and new learning" and "executive functioning". However, significantly, it was noted that your impairments to verbal reasoning indicated "difficulties in reasoning with information that is heard and said, as opposed to seen". The psychologist also noted that you "demonstrated adequate ability to organise and reason with visual information within a structured context".

44 Next, the psychologist referred to the account given to her of your early learning difficulties, your poor education, your limited vocational success and the findings from her assessment, which revealed "a unilateral discrepancy between verbal and perceptual intellectual abilities". She concluded that the primary contributor to your profile was "considered to be a specific language impairment". The report continued:

The additional deficits in high-order attention, which in turn impact upon memory and new learning, as well as executive functioning, are considered multifactorial in nature, specifically:

1. Mr Aleluia's reports of substance history indicating extensive poly-drug abuse, with onset early in adolescence - at a critical period given brain maturation is continuing to develop, particularly within the prefrontal cortex.
2. Mr Aleluia's long standing history of aggressive and impulsive behaviour, as well as consistent irresponsibility and lack of capacity to appreciate cause and effect relationships - features consistent with traits associated with Cluster B personality disorders.[31]
3. Reports of ongoing, albeit low grade, paranoia and auditory hallucinations, which in the context of possible negative symptoms (ie avolition, affective blunting) raise concerns about the possibility of an early prodromal phase of a psychotic disorder, such as schizophrenia or schizoaffective disorder. (Emphasis added.)

45 Pausing there, it was not suggested that what is contained in paragraph 1 above was specifically relevant to the R v Verdins principles.[32] As to paragraph 2 above, reliance was placed upon the inability to appreciate "cause and effect relationships". However, to the extent the psychologist speaks in terms of a personality disorder, rather than a mental impairment, such a disorder, of itself, does not attract the R v Verdins principles.[33] Finally, as to paragraph 3 above, the opinion expressed only talks in terms of mere possibilities. Such evidence does not satisfy the burden of proof with respect to the matters there set out.

With the above in mind, it is considered that Mr Aleluia demonstrates moderate cognitive deficits secondary to a specific language impairment, which are in turn exacerbated by factors associated with personality and mood. Therefore, while Mr Aleluia has potentially developed a mild acquired brain injury associated with polysubstance abuse with onset in early adolescence, the nature and extent cannot be fully determined at the current time - due to other more predominating factors. (Emphasis added.)

47 The first sentence of this passage refers to the mental impairment previously discussed and the consequential moderate cognitive deficits, which is discussed further below. But, to the extent the passage deals with the possibility of brain injury, the opinion only talks in terms of potentiality rather than any actual findings with respect to the matters raised.[34]

48 Finally, after referring to your specific language impairment, characterised by poor verbal comprehension and expression, the psychologist concluded:

With consideration to responses about offending behaviours, on a background of impaired reasoning, limited comprehension skills and impulsive tendencies, Mr Aleluia's ability to acknowledge or anticipate the consequences of his actions in situations of stress is considered poor. Therefore, the degree to which he possesses the cognitive skills necessary to fully and independently appreciate the wrongfulness of his actions is moderately compromised. Mr Aleluia displays highly unsophisticated and immature thinking as a consequence of impaired verbal reasoning skills, limited appreciation about "cause and effect" relationships on a background of impulsive thinking - which places him at high risk of opportunistic offending. Therefore, the aforementioned cognitive limitations are considered to have contributed to the offending behaviour. Furthermore, this may be further exacerbated in the context of acute drug use.

49 Before turning to the effect of these opinions on your sentence, there are some observations that must be made.

50 First, to the extent that the conclusion refers to drug use, your counsel stated that it was not relied upon.

51 Secondly, accepting the cognitive skills you possess have not enabled you to fully and independently appreciate the wrongfulness of your actions generally, it must be noted that there is nothing expressed in the body of the report that directly addresses the question of whether you might not have fully appreciated the wrongfulness of the particular actions in question, namely committing a murder by inflicting the injuries that you did, to the extent that you did. Indeed, the report addressed matters other than the offence you committed. For example, the conclusion includes the opinion that you are at a "high risk of opportunistic offending", but there was no suggestion that the murder of Brittany was opportunistic.

52 Thirdly, whilst the psychologist found a link between your mental impairment and the crime you committed, the contents of the report raise questions about the extent of that link and of the "realistic connection" to Brittany's murder.

53 That said, with respect to your moral culpability, I will take into account the mental impairment identified and opinions expressed. The weight to be given will be considered in the context of the observations made above and the fact that your conviction of murder carries with it the necessary implication of an appreciation of the wrongfulness of your conduct.[35]

54 As to general deterrence, the nature and severity of your mental impairment are such that your ability to appreciate the wrongfulness of your conduct was only "moderately compromised". The extent to which general deterrence ought to be moderated must be to a commensurate level.

55 Although there was no dispute before me as to the applicable principles, and your counsel accepted the extent to which mental impairment was to be taken into account was a question of degree, for completeness, I refer to your reliance upon the decision of the High Court in Muldrock v The Queen.[36] That case was concerned with an offender with an intellectual disability. Further, the passage relied upon was concerned with offenders with a mental illness or an intellectual handicap.[37] Your mental impairment, as identified in the report, is of a lesser severity. Further, a case such as this, involving a physically strong male beating his defenceless girlfriend to such a degree as to cause her death, demands that general deterrence, together with punishment and denunciation, be given considerable weight.

56 On the issue of specific deterrence, that factor is relevant given the nature of the murder you committed. In this regard, I note the psychologists' reference to your "longstanding history of aggressive and impulsive behaviour".[38] That said, given the other applicable factors, this factor does not add significantly to your sentence.

57 The Crown submitted you lacked genuine remorse. Although there are some matters which might have supported this position,[39] I do not accept this submission.

58 Your remorse was apparent from your conduct in the time immediately after you discovered you had caused Brittany's death. You went to your uncle's house a few blocks away and were extremely upset. After this, you were seen running through the streets, very quickly, looking frantic, scared and as if you were "freaking out". From around 9.00 am on 3 June 2015 you spent approximately 6 hours presumably composing yourself.[40] You then travelled to Dandenong to meet with social workers you knew. In a clearly distressed state, you told them you had killed Brittany. When police arrived, your distressed state continued. None of the police suggested your apparent distress was anything other than genuine. Further, although you were not entirely frank to the police about your whereabouts that day, you co-operated with them.

59 The demeanour you displayed up until this time may, in part, be explained by your own self-interest, given the predicament you found yourself in and the concern you must have had for your own future.[41] However, a consideration of all the relevant events demonstrates that, in the events that followed shortly after Brittany's death, you were sorry for what you had done.

60 Further, the psychologist's report referred to you experiencing remorse and feeling angry with yourself for what you had done. You told the psychologist that you felt bad for Brittany's family because "they had to go through this".[42]

61 In short, I accept you were significantly remorseful.

62 You are 20 years of age and are a "young offender" for the purposes of the Sentencing Act 1991 (Vic).[43] You were only 18 when you committed the offence.

63 Your young age was relied upon in 2 ways. First, it was submitted that, as an immature person, you lacked the degree of insight, self-control and judgment that might be expected of a more mature person. This was said to render it less likely that you would reason your way out of difficulty as opposed to giving into powerful emotion and impulse. Secondly, your age was relied upon with respect to your prospects of rehabilitation.

64 It was common ground that the degree of criminality involved in the crime of murder requires "the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus".[44] Accordingly, with serious crimes "there will be a corresponding reduction in the mitigating effects of the offender's youth".[45]

65 It is relevant to consider your prospects of rehabilitation in determining the extent to which the consideration of youth might be reduced or extinguished.[46] You relied upon your "swift confession" and your remorse as demonstrating your prospects of rehabilitation. Further, since your incarceration, you have engaged in basic literacy courses and have requested to participate in a drug and alcohol course.[47]

66 Whilst the Crown did not assert that you were beyond rehabilitation, it contended that the prospects were not encouraging and that little weight should be given to the factor of youth. With respect to your level of insight, self-control and judgment, the Crown submitted that you were not a young, naïve child, noting you had lived away from parental supervision for a number of years. The Crown submitted that you knew you were involved in treating your partner with violence and that that was something you should not do. Further, the Crown contended that the court was not concerned with an impulsive act, relying upon the extended period of time over which the injuries were inflicted.

67 On the issue of rehabilitation, although your prospects could not be described as strong, your youth, remorse and willingness to engage in rehabilitation courses demonstrate this sentencing factor must be given weight.

68 As has been previously observed, in addition to other possible factors concerning moral culpability,[48] youth gives rise to the potential that immaturity may affect moral judgment to some degree. That said, "[y]oung adult age of itself is not, however, conclusive proof of immaturity".[49] At the time, although unemployed and homeless, you were living an adult life and were in an adult relationship with Brittany. In short, there was nothing to show that you were led to commit the murder of Brittany in the manner that you did because of immaturity.[50]

69 In conclusion on this issue, your youth is a factor to take into account, particularly with respect to rehabilitation. Your non-parole period will reflect this.[51] However, the extent it is to be taken into account is limited by reason of the nature and seriousness of the crime you committed.

70 By reason of the abandonment of the first trial,[52] you have had to face a second trial, with some consequential additional stress and also some delay, although relatively minor.[53]

71 Further, since your incarceration you have experienced some difficulties beyond what would reasonably be expected. You have been placed in isolation for extended periods of time, on occasion because of your own conduct,[54] but also because of the need to protect you.[55] You were also placed in "lock down" because of riots that occurred at the Metropolitan Remand Centre.

72 Your criminal record was also referred to. There are no previous convictions relating to domestic violence, though you have convictions for assault. It is unnecessary to detail your criminal history beyond stating it could not be described as extensive.

73 Each of these further factors has been taken into account.

74 Taking each of the matters referred to above into account, and balancing the factors as best as I am able, on the count of murder you are convicted and sentenced to be imprisoned for a period of 23 years. I fix a minimum non-parole period of 18 years.

75 Pursuant to the Sentencing Act, s 18(4), I declare that 709 days of imprisonment (not including today) have been served by way of pre-sentence detention, and that this period be reckoned as a period of imprisonment already served. I shall direct that declaration to be noted on the records of the court.

76 I further note that a disposal order sought by the prosecutor (and not opposed by your counsel) has already been made.

[1] You were unemployed and received no social security benefits.

[3] At this time, Brittany had 1 daughter. She gave birth to her second daughter on 25 February 2015. Neither daughter was in her mother's care at the time of Brittany's death.

[4] To adopt the language of your senior counsel. There was no suggestion the crime was premeditated.

[5] Initially your counsel submitted the murderous intent was held for a "relatively short period of time" in the context of an assault which occurred for up to 15 minutes. However, in reply submissions, I understood this position was not pressed: see T82.20. If my understanding is correct, in my view the ultimate position adopted by your senior counsel was the proper position to take. If I am incorrect in my understanding, it suffices to say that no part of your case involved any suggestion that you had a different state of mind to the murderous intent found by the jury at any time during the protracted assault.

[6] The autopsy was conducted by Dr Noel Woodford, a registered medical practitioner specialising in forensic medicine and pathology, who is employed as a senior forensic pathologist and director of the Victorian Institute of Forensic Medicine.

[7] Degloving injuries are those in which sections of skin and subcutaneous tissue are separated from deeper tissue layers, thereby depleting their blood supply. Dr Woodford posited the cause of this injury could be the significant pulling of the hair or shearing force being applied across the scalp by glancing-type blows, or a combination of the 2.

[8] Being the bone cavity of the skull which contains the eye.

[9] The leaking of air from the lungs into the chest cavity.

[10] Ms Stevenson read her victim impact statement out in open court.

[11] On 1 account you did preparatory school and grade 1 primary school in New Zealand before moving to Australia, but on another version of events you left New Zealand when you were 3 years old.

[13] According to your former girlfriend, there were some periods where you would not take cannabis daily because you did not have the financial means to purchase it.

[14] Your son was born on 22 March 2014.

[15] Your first trial commenced on 17 August 2016 before Lasry J. Upon an application by your counsel, supported by the Crown, the jury was discharged on 22 August 2016: see R v Aleluia (Ruling No 1) [2016] VSC 497. See also Director of Public Prosecutions v Johnson [2016] VSC 699, [4]-[7] (John Dixon J).

[16] Siganto v The Queen (1998) 194 CLR 656, 663 [21]-[22] (Gleeson CJ, Gummow, Hayne and Callinan JJ).

[17] A total of 17 witnesses gave evidence.

[18] See par 16 above.

[19] See pars 39-52 below.

[20] Walters v The Queen [2013] VSCA 164, [25]-[26] (Priest JA, with whom Maxwell P agreed); cf at [7], [9]-[10] (Coghlan JA, with whom Maxwell P also agreed).

[21] [2007] VSCA 102; (2007) 16 VR 269.

[24] The clinical neuropsychologist, Dr Linda Borg, is a director of Community Health Partners Pty Ltd.

[25] You were assessed by the psychologist on 22 February 2017.

[26] Director of Public Prosecutions v O'Neill (2015) 47 VR 395, 413 [71] (Warren CJ, Redlich and Kaye JJA).

[27] Ibid, at 415 [77] and 416 [82].

[28] At 414-415 [74] and the cases there cited.

[30] At 415 [78] (and the cases there cited) and 416 [80]-[81].

[31] This is an amended version of this part of the report, which was amended by a further report dated 20 March 2017. There was no objection to the substitution of the amended version of paragraph 2.

[32] See fn 34 below.

[33] Director of Public Prosecutions v O'Neill (2015) 47 VR 395, 413-414 [71]-[72] (Warren CJ, Redlich and Kaye JJ).

[34] When this issue was raised with your senior counsel, he frankly accepted that no weight could be given to this evidence, whilst also acknowledging that there was no reliance upon any injury associated with drug or alcohol abuse.

[35] As was acknowledged by your senior counsel.

[36] [2011] HCA 39; (2011) 244 CLR 120 (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).

[38] See par 44 above. Further, in your recorded interview with the police, you acknowledged that you had previously punched Brittany: answers to questions 308 and 312.

[39] These matters included: (1) the fact that, having really seriously injured Brittany, you did nothing to get her the help she needed; (2) the next morning you left her body in the car and did not report her death to the authorities for approximately 6 hours; and (3) you did not reveal to the police where you were between approximately 9.00 am and 2.00 pm on 3 June 2015.

[40] You were seen on closed circuit television at various train stations between approximately 2.00 pm and 3.00 pm, when your demeanour was far more composed.

[41] Cf Barbaro v The Queen (2012) 226 A Crim R 356, 365 [36] (Maxwell P, Harper JA and T Forrest AJA); R v Whyte [2004] VSCA 5; (2004) 7 VR 397, 403 [21] (Winneke P, with whom Bongiorno and O'Bryan AJJA agreed).

[42] With respect to your feelings towards Brittany's family, I note you gave a very different response to police on 3 June 2015 when reference was made to Brittany's family: record of interview, answers to questions 186 and 187.

[43] Section 3(1).

[44] Azzopardi v The Queen [2011] VSCA 372; (2011) 35 VR 43, 57 [44] (Redlich JA, with whom Coghlan and Macaulay AJJA agreed).

[47] At the time of the pre-sentence hearing, you were still waiting to be accepted into the drug and alcohol course.

[48] See pars 39-54 above.

[49] R v Bradley [2015] VSC 768, [64] (Osborn JA), upheld on appeal: Bradley v The Queen [2017] VSCA 69, [109] (Maxwell P, Weinberg and Tate JJA).

[50] Nothing in the psychologist's report indicated otherwise.

[51] See, for example, R v Nguyen [2003] VSC 62, [30] (Warren J).

[52] See par 31 above.

[53] Cf Director of Public Prosecutions v Azizi [2013] VSC 16, [55] (Kaye J).

[54] The psychologist's report notes that you had been placed in isolation at times for fighting with another inmate which had reportedly occurred with some degree of regularity.

[55] This was in light of an anonymous message suggesting, given the circumstances of this offence, your life was in danger.