DPP v Musso [2017] VSC 732

3 An autopsy revealed that Mr O'Connell had not died as a result of the fire, but rather from a stab wound to the front left side of his chest.

4 The precise circumstances in which you killed Mr O'Connell are unknown. What is known of the events has been pieced together from evidence of Mr O'Connell's friends, closed circuit television footage, highway traffic cameras, and telephone records.

5 You first met Mr O'Connell when you were both serving sentences in prison. You were released from custody in July 2015, and Mr O'Connell was released in October 2015. Your relationship continued after you were both out of prison.

6 You had been looking for Mr O'Connell for several days before his death, concerning the sum of $50 that you believed he owed you. You had repeatedly tried to contact him - directly, as well as through his friends.

7 You were very insistent on getting the $50 from Mr O'Connell. You phoned or texted him regularly during this period. You visited the home of Clayton and Renae, two of Mr O'Connell's friends, at least four times during the three or four days before the murder. Although Mr O'Connell had been staying with them, he was not there at the time of any of your visits. You also sent several texts to Clayton, asking him to call you when Mr O'Connell got home.

8 You continued to make calls and send texts to Mr O'Connell during the evening of 4 February. Several pieces of evidence confirm that, around 10:40 pm that night, Mr O'Connell drove to see you at your parents' home in Mernda, where you were staying at the time. Earlier that evening, two of Mr O'Connell's friends, Kelly and Rory, heard him speaking to you on the telephone around 10:15 pm, saying words like "I'm sick of this," and "I'm coming to see you now". Around 10:30 pm, Mr O'Connell told his friend, Natasha, that he was on his way to see you about a $50 debt that you were not happy about; he told her he would be back, but never returned. You were the last person Mr O'Connell spoke to on his phone, just before he arrived at your parents' place.

9 Cameras in the street captured the arrival of the Kia which Mr O'Connell was driving, around 10:38 pm. An unidentifiable person can be seen coming from your parents' house to the driver's side of the car, before possibly going around and getting into the passenger's side. Over the course of the next four hours, there were various movements in and out of your parents' house and garage, and around the Kia, but the poor quality of the CCTV footage does not allow me to make any specific findings about what was happening during this period. It is sufficient for present purposes to note that I am satisfied that you stabbed Mr O'Connell at some stage when the Kia was parked outside your parents' house.

10 At about 2:40 am on the morning of the 5th, the Kia can be seen leaving with a second car (a grey Honda sedan, which was registered to your father's company). Speed cameras record the two cars travelling in a convoy up the Hume Highway to Wandong. After setting fire to the Kia off to the side of the road, you returned with the other driver in the Honda.

11 There is no doubt that you were assisted by someone to drive the second car to the site where you ultimately disposed of Mr O'Connell's body and car. However, there is insufficient evidence before the court to determine who that person was.

12 It is not clear from the jury's verdict whether they were satisfied that you intended to kill Mr O'Connell, or only to cause him really serious injury. That said, the distinction between the two intentions can be a fine one in many cases; it is frequently more important to look at what actually happened, in order to assess the offender's moral culpability.

13 The knife went 15 to 20 cms into the left side of Mr O'Connell's chest, perforating his heart and lungs, and penetrating his oesophagus; the fatal wound was inflicted to a very vulnerable part of the body. The fatal wound required at least moderate force to inflict. Mr O'Connell is likely to have died very quickly after you inflicted that wound. You also inflicted two superficial stab wounds - one to his back, the other to the left side of his chest. The order in which you inflicted the three injuries is unknown. Although it was not a protracted attack, the fatal wound was not an isolated injury.

14 It is clear that you had been getting increasingly irritated and angry about the disputed $50 over the preceding days. However, there is no evidence that the stabbing itself was premeditated.

15 You have given no account of what occurred that night. Whilst I cannot speculate as to what did take place, there is nothing to suggest that you believed you were acting in self-defence.

16 You have shown no remorse for your actions. On the contrary, throughout the trial you continued to maintain that the murder was committed by someone else.

17 After Mr O'Connell's murder, you drove the car containing Mr O'Connell's body to Wandong, in an attempt to distance it from a house to which you could be connected. Once there, you drove the Kia between the wire safety barriers on the side of the highway, to an area of bush. You set fire to the Kia, causing Mr O'Connell's body to be severely burned. Your desecration of his body is an aggravating feature of this offence.

18 Thereafter, you did several things to make it seem that you were unaware of the fact that he was dead. At 7:00 am on 5 February, you tried to call Mr O'Connell's phone, even though you were well aware that he was dead. Around that same time, you also sent a text message to Clayton, asking him to tell Mr O'Connell to come around. Some days after his death, you showed up at Clayton and Renae's home, asking where Mr O'Connell was; you purported to express surprise, when Clayton told you that he was dead.

19 Victim impact statements were filed by members of Mr O'Connell's family and friends. Mr O'Connell's body was so badly burned that it took several days to positively identify him; in the meantime, his loved ones were left wondering whether the body was his. Until the results of the autopsy were released, they were also traumatised by the thought that he may have been burned alive. Many of them still suffer from sleeplessness, nightmares and depression. They are particularly sad at losing Mr O'Connell at a time when he was trying to turn his life around, after his most recent release from prison. Their sense of loss has been compounded by the fact that Mr O'Connell's father died from cancer only a few months later.

20 I turn to consider your personal circumstances. You were born in December 1978, and are now almost 39 years old. You were 37 when you murdered Mr O'Connell.

21 You were born in Melbourne, to parents who had emigrated from Italy as children. You have an older brother.

22 You grew up surrounded by family violence, with a stern father who believed in corporal punishment. Your older brother was also physically violent towards you. The physical abuse stopped when you were in your mid-teens, and had started training in boxing to stand up for yourself.

23 The physical and psychological abuse of your childhood led to you often staying away from home, and getting in trouble at school.

24 You also began using drugs. You started using cannabis around the age of 15, and have continued to use it on and off since then. When you were 18, you began abusing prescription medication, for a period of about one year. Around the age of 19, you started using methamphetamine, amphetamine and heroin, eventually progressing to using them several times a week. Over the years, you committed various property crimes to support your drug habits. Apart from a three month stint in a private clinic, when you were in your late 20s, you seem to have made minimal attempts to address your dependency on drugs. You have been seeing a drug counsellor on a regular basis over the past 12 months in custody.

25 That said, there is no evidence before me as to whether or not you had used drugs on the night in question.

26 Your schooling was marked by truancy and involvement in playground fights. You were expelled or suspended a number of times. You were finally expelled at the end of Year 10 for fighting. You later went back to TAFE for Year 11.

27 Apart from working in a pizza shop when you were about 15, you have no steady employment history.

28 You were a successful amateur boxer until the age of 17 or 18, making it into the Victorian junior squad. You stopped boxing after you injured your hand in a fight.

29 You have a long history of offending, dating back to when you were a teenager. You were first sentenced to a term of imprisonment at the age of 19, although that sentence was wholly suspended.

30 Since you were 20, you have regularly been in custody. Among the more serious of your approximately 30 adult convictions are ones for armed robbery, intentionally and recklessly causing injury, aggravated burglary, and various weapons offences. Of the last 19 years of your life, you have spent all but three years and nine months in prison. Your counsel acknowledged that you are effectively institutionalised.

31 At the time of this offending, you had only been out of prison for about seven months, after completing a sentence for aggravated burglary, armed robbery, intentionally causing injury and negligently causing serious injury; that incident was described by the Court of Appeal as "extremely serious offending."[1]

32 Your relationship with your parents has improved considerably since your childhood. They have supported you throughout your trial. You are also the father of a one year old girl, who was born since you were remanded in relation to this matter; she and your partner have visited you in custody.

33 You instructed your counsel that, during your first three months on remand, you were kept in isolation in a single cell, and were denied any visitors. You claimed that this constituted a harsh condition of imprisonment.

34 Subsequent inquiries by the prosecution revealed that there was a ban on your mother and girlfriend visiting you in custody, which lasted for a few weeks during May 2016. That temporary ban was not unusual, given that Victoria Police (quite understandably) suspected at the time that one of those two had been the driver of the second car, and were still investigating the incident. Otherwise, Corrections Victoria records show that you received regular visitors throughout your first three months in custody, and your contrary memory must be inaccurate.

35 Even if your memory that you were kept isolated from other prisoners for the first three months in custody was an accurate one, I would give it little weight in sentencing you. First, I know nothing of the circumstances of the alleged isolation - such as whether you were in a protection unit, or a management unit, or the reasons for such placement. Secondly, there is no suggestion that you are likely to be kept in isolation, or in otherwise unduly onerous conditions, for the remainder of what is going to be a very lengthy sentence.

36 Although it was not suggested that any Verdins-type considerations apply here, two psychological reports were filed on your behalf. The first was a general psychological report by Patrick Newton, clinical forensic psychologist, dated 14 June 2008; it was prepared for a bail hearing around that time. The second was a neuropsychological report, dated 11 October 2017, by Jane Lofthouse, clinical neuropsychologist; it assessed your mental functioning for current sentencing purposes.

37 Mr Newton assessed you as having poor social skills, as well as anger management issues. He said that you relate to others in a suspicious manner, and are likely to misinterpret anything other than the most overt communication. You perceive hostility and threats in a wide range of social situations, even where they are unwarranted. You are impulsive, and have difficulty anticipating the likely consequences of your behaviour. You are prone to explosive and volatile outbursts of verbal or physical aggression. Mr Newton said that due to those characteristics, it is difficult for you to effectively control your behaviour. Although that report is almost 10 years old, there is no evidence of any real improvement in relation to those matters.

38 Ms Lofthouse conducted a range of tests, to determine whether you had an intellectual impairment, which might have played a role in this offending. She found your overall IQ to be within the low to average range, with some processing speed and memory deficits, suggesting a mild to moderate intellectual impairment. She said the results were consistent with an acquired brain injury, compounded by drug use over many years. She also noted that you have reported suffering from depression and anxiety for many years, and are currently being treated with an anti-depressant. However, she believed that it is your poor emotional and behavioural controls, rather than any cognitive deficits, that are likely to have contributed to your current offending.

39 You are not to be punished again for your prior offending. But your long criminal history and institutionalisation are very relevant to an assessment of your prospects of rehabilitation, as is the psychological evidence.

40 Having regard to all of the above matters, I consider your prospects of rehabilitation to be poor. Issues of specific deterrence and community protection loom particularly large in your case.

41 For the murder of Thomas O'Connell, I sentence you to 24 years' imprisonment.

42 I fix a period of 19 years as the period you must serve before becoming eligible for parole.

43 Further, I declare that the period to be reckoned as already served under this sentence is 608 days, not including today's date. I direct that there be noted in the records of the court the fact that such declaration was made and its details.

[1] Ristevski & Ors v R [2011] VSCA 53 at [13].