//
[2025] ACTSC 529
General information, not legal advice.
Supreme Court of the ACT
2025-12-04
Baker J
Original judgment source is linked above.
Zoe will write a short plain-English brief of this judgment and email it to you: what it was about, what the court decided and why. It can take up to a minute.
General information, not legal advice.
Or create a free account to save it and ask Zoe follow-up questions.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: DPP v O’Connell (No 6) Citation: [2025] ACTSC 529 Hearing Date: 3 November 2025 Decision Date: 4 December 2025 Before: Baker J Decision: (1) For the offence of manslaughter (CAN4316/2022), the offender is convicted and sentenced to 10 years’ imprisonment, commencing on 15 October 2022 and expiring on 14 October 2032. (2) A non-parole period of 6 years and 6 months is imposed, expiring on 14 April 2029. Catchwords: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – manslaughter – re-sentence following Court of Appeal’s substitution of murder verdict with manslaughter verdict – where offender drove utility truck with victim on the bonnet – where victim fell from the vehicle and collided with the roadway causing her death – whether offender acted with the purpose of dislodging the victim – findings as to intent – where offending occurred within a family violence context – where offending occurred in presence of a young person – whether sentence imposed should be accumulated on sentence imposed by the Magistrates Court for unrelated offending – partial accumulation – 10 years’ imprisonment imposed – non-parole period of 6 years and 6 months Legislation Cited: Crimes (Sentencing) Act 2005 (ACT), s 33 Crimes Act 1900 (ACT), ss 15, 26 Criminal Code 2002 (ACT) Criminal Code Act 1899 (Qld), s 317 Migration Act 1958 (Cth), s 36 Cases Cited: Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Cheung v R [2001] HCA 67; 209 CLR 1 Davidson v R [2022] NSWCCA 153 DPP v O’Connell (No 5) [2024] ACTSC 17 He Kaw Teh v The Queen [1985] HCA 43; 157 CLR 523 Mill v The Queen [1988] HCA 70; 166 CLR 59 O’Connell v DPP (No 4) [2025] ACTCA 41 O’Connell v DPP [2025] ACTCA 20 R v Farrar (1991) 15 MVR 531 R v Isaacs (1997) 41 NSWLR 374 R v Kilic [2016] HCA 48; 259 CLR 256 R v Olbrich [1999] HCA 54; 199 CLR 270 R v Pullman (1991) 58 A Crim R 222 R v RB [2022] NSWCCA 142 R v Tuifua [2023] ACTCA 6 SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 Zaburoni v The Queen [2016] HCA 12; 256 CLR 482 Parties: Director of Public Prosecutions Michael O’Connell (Offender) Representation: Counsel K McCann (DPP) K Weston-Scheuber (Offender) Solicitors ACT Director of Public Prosecutions Legal Aid ACT (Offender) File Number: SCC 251 of 2022 BAKER J: REVISED EX TEMPORE REASONS Introduction
Background
The offender had been charged with and pleaded not guilty to one count of murder (CC2022/4316), contrary to s 12 of the Crimes Act 1900 (ACT). At trial, the statutory alternative of manslaughter on the basis of a dangerous and unlawful act was left open to the jury. On 15 June 2023, the jury returned a guilty verdict for the offence of murder.
Following the return of that verdict, I sentenced the offender to 15 years’ imprisonment, with a non-parole period of 10 years: DPP v O’Connell (No 5) [2024] ACTSC 17.
The offender appealed to the Court of Appeal. One of the offender’s grounds of appeal was that the jury’s verdict was unreasonable and could not be supported by the evidence. A majority of the Court of Appeal (Loukas-Karlsson and Taylor JJ, McCallum CJ dissenting) upheld this ground of appeal. As a result, on 27 June 2025, the offender’s conviction and sentence for murder was set aside: O’Connell v DPP [2025] ACTCA 20 (O’Connell (No 1) (CA)). The Court of Appeal reserved its decision as to what consequential orders should be made.
On 29 September 2025, a majority of the Court (Loukas-Karlsson and Taylor JJ, McCallum CJ dissenting) held that a verdict of manslaughter should be entered: O’Connell v DPP (No 4) [2025] ACTCA 41 (O’Connell (No 4) (CA)). The proceedings were remitted to me for resentence on that basis.
Further evidence adduced in the proceedings on resentence
1 The ACT legislature has recently created aggravated forms of the current offences, with higher maximum penalties which apply where the offence is committed in a family violence context: Family Violence Legislation Amendment Act 2022, which commenced on 17 August 2022. Those maximum penalties do not apply to the present offending, which occurred prior to the enactment of those provisions. The assessment of the appropriate penalties to be applied must occur against the yardstick of the maximum penalty that was in place at the time of the offending. Further evidence was also adduced in the resentence proceedings on behalf of both the prosecution and the offender.
In the original sentence proceedings, I had received victim impact statements from the deceased’s mother, Elizabeth Crump, and the deceased’s daughter. I have taken both of those statements into account on resentence. In the proceedings on resentence, the prosecution tendered a further victim impact statement from Ms Crump. In her further statement, Ms Crump explained the effect that the loss of her daughter has had on her and her granddaughter, noting that her daughter “has now been gone three and a half years”. She told the Court that the victim’s daughter “misses having parents like her other friends”. She refers to the victim’s last moments on a ventilator and life support and said “no young child should have to say goodbye to their mother that way”. Her statement concludes, “at the moment I can’t even breathe”.
The prosecution also tendered the offender’s updated criminal history, which indicated that, shortly after the murder sentence was set aside by the Court of Appeal, the offender was convicted and sentenced by the Chief Magistrate in the Magistrates Court for offences of stalking and contravening a family violence order (FVO), each of which were committed prior to the present offence.
The prosecution also tendered the Statement of Facts and presentence report relevant to this offending in the resentence proceedings. The Statement of Facts for the stalking offence indicates that the victim of those offences was a former partner of the offender, and not the present victim. In September 2021, the offender installed spyware on her telephone after he became suspicious of her infidelity. The offender used that spyware to monitor his former partner’s movements and her conversations. When the offender’s former partner confronted him about unusual things that were happening on her phone, he initially denied hacking the phone, and gaslit her, telling her that she was paranoid. The Statement of Facts for the offence of contravening a FVO records that on 22 January 2022, the offender attended his former partner’s home in breach of an FVO. The FVO prohibited the offender from attending his former partner’s home and also prohibited the offender from being within 100 metres of her. It was an agreed fact that the offender erroneously believed that he was entitled to attend the former partner’s home
In reply, the offender tendered two further character references in addition to the character references tendered on the original sentence proceedings. The first was from the offender’s father, John O’Connell. Mr O’Connell informed the Court that the offender had been raised primarily by his maternal grandmother, and that the offender’s parents were at various times “disconnected” from his upbringing. Mr O’Connell stated that he believes that this absence of a parental figure during the offender’s youth “played a part” in the offender failing to fully develop a sense of “emotional understanding”, which in turn led the offender to “wrong choices”, including drug use. Mr O’Connell assured the Court that the offender’s “approach to life” has now changed. He said that the offender continues to maintain meaningful connections with friends and family, and has built friendships with fellow inmates while in custody. Mr O’Connell said that the offender has also expressed a desire to attend counselling, although this has been difficult for the offender to arrange while in custody.
The offending conduct
In my reasons for sentence for the offence of murder, I made the following factual findings concerning the circumstances of the offending (at [5] – [17]): The offender was in an “on-again, off-again” relationship with Danielle Jordan (the victim). At the time of the present offending, the offender was subject to bail conditions which prohibited him from attending the victim’s home or contacting her. On 14 April 2022, the offender attended the victim’s home at Coutts Place in Melba in the Australian Capital Territory, in breach of these bail conditions. The offender left the victim’s home at about 10:00am, before returning at about 9:00pm. A young friend of the victim was staying with the victim at her home that night. The young friend was 13 years old at the time. At about 2:00am on 15 April 2022, the young person was woken by an argument between the offender and the victim and the sound of smashing. The young person went into the victim’s bedroom. The offender was trying to leave, but the victim was preventing him. At one point, the offender tried to leave through the bedroom window, which was on the ground floor. The victim held his sleeve to try to get him to stay. The offender removed his shirt and jumper and continued to climb out of the window, but then changed his mind and returned to retrieve his clothing. The victim and the offender then had a ‘tug of war’ over the offender’s clothing, during which the offender dragged the victim down the hallway because she would not let go of the offender’s clothing. Shortly afterward, the offender left the victim’s house. At approximately 4:00am on 15 April 2022, the offender returned to the victim’s home and a further argument ensued. The argument continued outside the house. Shortly before 4:40am, the offender got into his car, a black Mitsubishi Triton utility (“the ute”) to drive away. The victim climbed onto the bonnet of the ute and the young person climbed onto the bullbar. The offender left the ute and walked away, before again returning to the vehicle. The victim then dived inside the ute to retrieve a vape, before the offender dragged her out and sat in the driver’s seat. The victim then climbed onto the bonnet of the ute again. The young person was also on the ute, leaning on the window at this time. The offender began to drive away. The young person jumped off the ute, but the victim remained on the bonnet. The offender then slowly drove down Coutts Place towards the intersection of Coutts Place and Alfred Hill Drive. The victim was on the bonnet of the vehicle. The young person was walking backwards in front of the ute as the offender slowly drove the ute forwards. Before it reached the intersection of Coutts Place and Alfred Hill Drive, the vehicle either reversed or rolled back down Coutts Place for an unspecified distance (the ute was a manual vehicle and Coutts Place is on a slight incline). The offender then drove forwards towards toward the intersection of Coutts Place and Alfred Hill Drive and turned left onto Alfred Hill Drive. The young person’s evidence at trial was that the victim remained on the bonnet of the ute as the offender drove around the corner of Coutts Place and onto Alfred Hill Drive. By their verdicts, the jury must have been satisfied beyond reasonable doubt of the credibility and the reliability of the young person’s evidence in this respect. After turning the corner into Alfred Hill Drive, the offender drove the ute down Alfred Hill Drive with the victim on the bonnet for over 200 metres. In view of the expert evidence called in the trial, I am not satisfied that the offender was travelling in excess of [the] speed limit in the area, which was 50 kilometres an hour. Other than driving with the victim on the bonnet of the ute, there was no evidence of any element of dangerous or furious driving present; in particular, there was no evidence of any rapid acceleration or deceleration or swerving on the part of the offender. After approximately 30 seconds of driving, the victim fell from the bonnet of the ute, near the intersection of Alfred Hill Drive and Cade Place. The victim’s head hit the road, resulting in a severe, and ultimately fatal, head injury. The victim sustained abrasions consistent with her falling to the road, but there was no indication that the victim had come into contact with any part of the car as or after she fell. When the victim fell, the offender braked, engaging the Automatic Braking System and causing the ute to rapidly decelerate and stop. When the ute came to a stop, the victim was lying unconscious at the rear of the vehicle. The offender picked up the victim and carried her to the passenger seat of the vehicle. By this time, the young person had run around the corner of Coutts Place down Alfred Hill Drive and was approaching the ute. She heard the offender say something to the effect of “I’m so sorry baby, I love you”. She yelled at the offender, asking him what he had done. The offender apologised and then drove the victim to hospital. The victim was admitted to hospital at 4:51am. The offender gave false accounts to medical personnel, and later, members of the victim’s family concerning how the victim had sustained her injuries. He also told the young person to falsely tell police that the victim had been injured when she fell down some stairs. (The young person did not do so). The victim’s head injuries were subsequently assessed as being unsurvivable, and the victim’s life support was turned off on 17 April 2022.
The offender’s intent
Although no challenge was made to my previous findings concerning the acts of the offender which gave rise to the offence, there was a significant issue between the parties concerning the inferences which I should draw from these factual findings in connection with the elements of manslaughter.
At trial, the prosecution relied on the statutory alternative of manslaughter by unlawful and dangerous act. The prosecution particularised the unlawful and dangerous act as an “assault” contrary to s 26 of the Crimes Act 1900 (ACT), by reference to the decision of the New South Wales Court of Criminal Appeal in R v Farrar (1991) 15 MVR 531, as discussed in R v Pullman (1991) 58 A Crim R 222. Farrar involved an accused who drove a truck with a police officer hanging from the window of the cabin. The accused swung the truck with the consequence that the officer struck a tree causing his death. The Crown case was that the accused had deliberately driven the truck so that the police officer would come into contact with the tree.
Consistently with Farrar, the prosecution case on assault in the present case was that the offender intentionally drove the vehicle with the intention that the victim would fall from the vehicle and collide with the roadway. At trial, I directed the jury that if they were not satisfied that the accused acted with this intention, the offence of manslaughter would not be established. I did not provide the jury with any further instructions as to the legal meaning of the word “intention”. Neither party requested that any further instructions be provided to the jury on this issue.
In this jurisdiction, the offences of manslaughter and assault are not offences to which the Criminal Code 2002 (ACT) applies. Accordingly, the element of intent is governed by the common law.
The seminal decision concerning intent at common law is the decision of Brennan J in He Kaw Teh v The Queen [1985] HCA 43; 157 CLR 523. In He Kaw Teh, his Honour explained (at 570) that: A specific intent to cause a prescribed result can be, but is not ordinarily, established by knowledge that such a result will probably (or is likely) to occur. Just as knowledge of the probable (or likely) results of an act establishes a specific intent to cause those results, so the doing of an act with knowledge that the circumstances are probably such as to make the act criminal establishes a general intent to do an act of that character. That is not to say that some state of mind less than knowledge is sufficient to establish intent. Actual knowledge is required but what is generally required to be known is at least the likelihood that the prescribed result of an act will occur (specific intent) or at least the likelihood that the existing circumstances are such as to give an act the character of the act involved in the commission of the offence in question (general intent).
In accordance with the decision in He Kaw Teh, the prosecution accepted that, at common law, the mens rea of the offence of assault may be satisfied either by the prosecution demonstrating that the accused acted with a purpose of achieving the result in question (that is, dislodging the victim so that she would fall and collide with the roadway), or by establishing that the accused had actual knowledge that the result would probably (or was likely) to occur (sometimes referred to as “advertent recklessness”).
The offender’s subjective case
Remorse
In respect of offender’s remorse, I previously found: [I]n the present case, there is no indication of remorse in any respect. Although the offender apologised when the young person reached the ute, he then lied to medical professionals and to the victim’s family about the circumstances in which the victim had sustained her injuries, denying his own involvement. Despite the offender’s claim to the authors of the Pre- Sentence Report that his initial dishonesty was intended to protect the victim’s reputation, it is clear that the offender provided these false accounts out of a desire to protect himself. More recently, the offender has maintained to the authors of the Pre-Sentence Report that the victim died “as a result of her irrational behaviours on the night of the offending”, and that the victim had “manipulated his caring, protective feelings toward her”. It is clear that the offender is distressed by the victim’s death. His distress for her loss is not remorse. The offender does not accept any responsibility for the victim’s death, maintaining even in his letter to the Court that the victim’s death was a “tragic accident”. Concerningly, he does not even appear to accept that his breach of his bail conditions, which prohibited him from contacting the victim or attending her home, played any role in the victim’s death. I do not accept that there is any evidence of remorse. O’Connell (No 5) at [55] – [57]
In their character references in the proceedings on resentence, the offender’s father and current partner spoke of the offender’s “remorse”. However, the offender continues not to accept responsibility for his offending. In these circumstances, there is no basis to make a different finding concerning remorse, nor did the offender’s counsel invite me to do so.
Rehabilitation
In respect of the offender’s prospects of rehabilitation, I previously found (at [60] – [61]): In the present case, the absence of any acceptance of responsibility by the offender gives me hesitation when assessing his prospects of rehabilitation. The offender’s continued justification of his contravention of the bail conditions is of particular concern in this respect. The offender’s prior criminal history, which includes offences of family violence, albeit of a much less serious character than the present offending, is also cause for some concern. However, it is clear that the offender has a very supportive family, particularly his father. I am satisfied that this support will provide the offender with the guidance and protection that he requires so as not to engage in any further offending, particularly of a family violence nature. I also note that the offender has been employed in custody, and that he has received a positive behavioural comment for his work ethic.
The prosecution urged me to reconsider this finding in light of the further evidence adduced on sentence, particularly the evidence that the offender engaged in stalking and contravening a family violence order with respect to his previous partner not long before the present offending. In this respect, the prosecutor also noted that the presentence report author described the offender as “reluctant to discuss” the stalking offence, although he is also reported as having acknowledged that his behaviour was “wrong”.
In this connection, the prosecutor also made reference to the offender’s failure to undertake any rehabilitation programs in custody to date. The prosecutor withdrew this additional submission insofar as it referred to domestic violence programs after receiving advice from Corrective Services that domestic violence rehabilitation programs are not available to offenders whilst an appeal against conviction is pending. However, the prosecutor maintained the submission in relation to the offender’s failure to attend alcohol and drug rehabilitation programs, although she acknowledged in this respect that the offender has been abstinent from drugs and alcohol whilst in custody.
In re-assessing the offender’s prospects of rehabilitation, I have not taken into account his failure to undertake drug and alcohol rehabilitation programs in custody. Domestic violence programs are of the greatest significance for his risk factors, particularly given his present success in achieving abstinence from drugs and alcohol whilst in custody. Further, whilst the offender was engaged in methylamphetamine use for approximately a year prior to the offending, there is no evidence that the offender was affected by methylamphetamine at the time of the present offending.
The additional family violence offending for which the offender has been sentenced is relevant to the assessment of the offender’s prospects of rehabilitation, even though it occurred prior to the present offending.
Delay
Comparative cases
I am required to take into account current sentencing practice pursuant to s 33(1)(za) of the Crimes (Sentencing) Act 2005 (ACT). However, there are significant limitations when considering comparative cases of manslaughter. As N Adams J observed in Davidson v R [2022] NSWCCA 153 at [142]: The myriad circumstances of manslaughter offences render it unhelpful to speak in terms of a range of sentences, or tariff, for a particular form of manslaughter.
This observation has particular resonance in the present case. There are no cases which are comparable to the present, either in this jurisdiction, or in other Australian jurisdictions.
It cannot be assumed that cases of vehicular manslaughter are more serious than the present. Although there is no suggestion of the offender having been affected by drugs or alcohol or driving at an excessive speed, for the reasons I have found above, I have found that the offending was not only objectively dangerous, but also that the offender appreciated that the victim may be injured, potentially seriously so, when dislodged from the vehicle. His decision to continue to drive in these circumstances represents a degree of moral culpability which, if it can be compared at all, is potentially higher than the inadvertent negligence which often characterises offences of vehicular manslaughter.
Determination
In determining the sentence to be imposed for the offence of murder, I made the following findings (at [68] – [76]): Section 7 of the Sentencing Act confirms the common law principle that the sentence to be imposed must “recognise the harm done to the victim of the crime and the community”. In the present case, the offending has taken the victim’s life. The offender’s actions have also taken a daughter from her parents and a mother from her children. As their eloquent Victim Impact Statements describe, the victim’s mother is overwhelmed by her grief and justifiably angry and the victim’s young daughter is understandably lonely and sad. The victim’s daughter now lives with the fear of losing her grandparents and “being alone with no one to love her”. While recognising that no sentence that the Court could impose on the offender can ever bring back the victim or make good the loss to the victim’s family, the sentence to be imposed on the offender must recognise the taking of a human life, and the profound, lifelong harm which the offender’s actions have caused to the victim’s family. Because they involve the taking of a human life without justification, all murders are objectively serious. The maximum penalty for murder is life imprisonment. However, although all murders are objectively serious, I am required to assess the criminality that is involved in this particular offending: s 33(1)(a) of the Sentencing Act and R v Kilic [2016] HCA 48; 259 CLR 256 at [19]. This task, which is mandated by law, is a necessary component of the determination of the sentence to be imposed. It is not in any way an assessment of the value of the victim’s life. As the prosecutor acknowledged, the present offending is not as serious as many offences of murder that come before this Court. The prosecution does not allege that the offender intended to kill the victim. There was no premeditation or planning. The offender did not act out of greed, hatred or revenge; cf R v Tuifua [2023] ACTCA 6 at [26]. For the reasons outlined above, I have rejected the prosecution’s submission that the offending involved the use of a weapon. The offending was not fleeting, but nor was it particularly long. The offending lasted approximately 30 seconds, during which time the offender drove with the victim on the bonnet of his car. By their verdicts, the jury must have accepted that the offender foresaw the probability of the victim’s death, and persisted regardless. As the victim was on the bonnet of the ute, the offender was aware of the victim’s position on the car at all times whilst he was driving. I cannot say exactly when the offender foresaw the probability of the victim’s death. However, it remains the case that the offender could have stopped driving at any time during the period that he drove before the victim fell from the bonnet. It is also significant that the whole of the offending conduct occurred in breach of bail conditions that were imposed to protect the victim. For the reasons outlined above, I have accepted that the offender has reasonable prospects of rehabilitation by reason of the support of his family. However, I am not satisfied that the offender has any remorse. I accept that the offender is distressed that the victim has died, but he does not take any responsibility for the victim’s death.
Totality
The offender was sentenced by the Chief Magistrate on 25 July 2025 for the offences of stalking and contravening a family violence order. For the stalking offence, the offender was convicted and sentenced to 12 months’ imprisonment, backdated to 15 April 2022. That term of imprisonment expired on 14 April 2023. As the term of imprisonment had expired on 14 April 2023, which was prior to the date of the Chief Magistrate’s sentence, a non-parole period was not set. For the offence of contravening a family violence order, the offender was convicted and fined $2,700. No term of imprisonment was imposed for that offence.
The prosecution submitted that the sentence to be imposed for the present offence should be fully accumulated on the sentence imposed by the Chief Magistrate. The prosecution acknowledged that, if this course were adopted, it may be appropriate to adjust the ratio of the non-parole period to the head sentence.
In contrast, the offender submitted that, as the Magistrates Court sentence was imposed wholly concurrent on the previous sentence for murder, this Court should impose a sentence that is wholly concurrent with the sentence imposed by the Chief Magistrate. In the alternative, the offender submitted that if some accumulation was afforded, the continued period of custody should be taken into account in setting the non-parole period as proposed by the prosecution.
I do not accept the offender’s submission that the sentence imposed by the Chief Magistrate was served “concurrently” with the sentence previously imposed for murder. At the time that the Chief Magistrate sentenced the offender, the sentence previously imposed for murder had been set aside. In other words, there was no existing sentence for the stalking sentence to be accumulated on at the time the stalking sentence was imposed.
I accept the prosecution submission that there should be some accumulation of the present sentence upon the sentence previously imposed, so as to reflect the separate offending, the separate victim, and the separate harm that was occasioned by the two sets of offending. I do not accept the offender’s submission that accumulation of the present sentence upon the stalking offence would penalise the offender for his successful appeal against his conviction for murder. If the offender had originally been sentenced for manslaughter, the entirely separate nature of the two sets of the offending would have compelled the Chief Magistrate to order partial accumulation of the stalking sentence on the manslaughter sentence.
However, I do not agree that there should be full accumulation of the sentence for the present offending upon the sentence imposed by the Chief Magistrate. When applying principles of totality, it is necessary to bear in mind the total period of custody that will be served by the offender, even for unrelated offending: Mill v The Queen [1988] HCA 70; 166 CLR 59 at 63.
I certify that the preceding seventy-three [73] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Baker.
Associate: Date: 4 December 2025
DPP
O'Connell
(1991) 15 MVR 531
(1997) 41 NSWLR 374
The second further character reference tendered was from the offender’s current partner, Tara Needham. In her reference, Ms Needham told the Court that the offender is “deeply affected by what happened”, and that he holds deep remorse. Ms Needham believes the offender is now a “changed person”, whose prospects of rehabilitation are aided by the support of his family.
Three issues arose during the oral hearing of the proceedings on resentence: first, what findings should be made with respect to the mental state associated with the offender’s “intent”; second, whether the sentence for manslaughter should be accumulated on the sentence imposed by the Chief Magistrate for the stalking offence; and third, whether the offender has failed to undertake any programs in custody that are available to him particularly in circumstances where he was appealing his conviction.
The parties were granted leave to adduce further evidence, and to rely on further submissions in respect of these issues.
On 10 November 2025, the prosecutor provided the transcript of the proceedings on sentence and the ex tempore reasons of the Chief Magistrate when sentencing the offender for the offences of stalking and contravening the FVO, two extracts of an email chain between the prosecutor and ACT Corrective Services, and a document titled “Alcohol and Drug Programs and Interventions Pathways for Male Detainees”.
In the email correspondence between the prosecutor and ACT Corrective Services, ACT Corrective Services confirms that “[s]ome programs [offered by ACT Corrective Services] are offered to all detainees whereas others are only offered to sentenced detainees”. Material attached to that email indicates that the Equip Domestic and Family Violence program is not available to prisoners on remand; however, six of the eight alcohol and drug programs are available to prisoners on remand. As the offender has been on remand since the Court of Appeal’s decision setting aside his conviction, the offender has not been eligible to attend the Equip Domestic and Family Violence program. Factual findings
As the prosecution submitted, those findings have not been called into question by the Court of Appeal’s decision. There is no basis to disturb those findings.
In assessing the nature and circumstances of the offending, I noted (at [46]) that: (i) The relevant state of mind in the offending was recklessness, rather than an intent to kill or to cause serious harm: Lee v The Queen [2017] ACTCA 30 at [67]. The prosecution did not contend that the offender intended to kill the victim or that he intended to cause her serious harm. The offending conduct was deliberately driving the ute, knowing that the victim was on the bonnet, and foreseeing that this act would probably cause the victim’s death, but continuing to drive nonetheless; (ii) Other than driving with the victim on the bonnet of the ute, the offender did not engage in any dangerous or furious driving; in particular, the offender was not driving significantly in excess of the speed limit and he did not engage in any rapid acceleration or deceleration, or swerving whilst the victim was on the bonnet; (iii) The offending occurred in breach of two bail conditions related to a charge of assault against the victim, which first prohibited the offender from contacting the victim and secondly prohibited him from attending the victim’s residence; (iv) The offending was witnessed by a young person; (v) There was no planning and the offending was spontaneous, but it was not momentary. The offending occurred over a duration of approximately thirty seconds.
I also found that the offence involved family violence, requiring the application of s 34B of the Crimes (Sentencing) Act: O’Connell (No 5) at [52].
Other than the first finding concerning the offender’s intent (which is addressed below), none of these matters have been called into question by the Court of Appeal’s decision. There is no basis to disturb those findings.
Nonetheless, the prosecution contended that, as the jury was not expressly directed otherwise, the offender should be sentenced on the basis that he drove the vehicle with the purpose of dislodging the victim from the vehicle. In contrast, counsel for the offender submitted that the offender should be sentenced on the basis that he drove with foresight of the probability that the victim would be dislodged from the vehicle and would collide with the roadway.
In support of her submission, the prosecutor relied on the decisions of the High Court in Zaburoni v The Queen [2016] HCA 12; 256 CLR 482 and SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362. Zaburoni concerned the proper interpretation of the word “intent” in s 317 of the Criminal Code Act 1899 (Qld). The plurality judgment (Kiefel, Bell and Keane JJ) held that common law concepts of foreseeability, likelihood and probability are not relevant to proof of the offence under s 317 of the Queensland Criminal Code, and that “[w]here liability for an offence requires proof of the intention to produce a particular result, the prosecution must establish that the accused had that result as his or her purpose or object at the time of engaging in the conduct”: Zaburoni at [13] and [17].
SZTAL concerned the proper construction of the term “intent” in s 36(2A) of the Migration Act 1958 (Cth), which, together with s 36(2)(aa) of that Act, had the effect that a non-citizen would be entitled to a protection visa if a foreseeable consequence of the non-citizen’s removal would be that torture (defined as including severe pain or suffering, whether physical or mental) would be “intentionally inflicted” on the person. A majority of the High Court (Kiefel CJ, Nettle, Gordon and Edelman JJ, Gageler J dissenting) held that the definition of “intent” in s 5 of that Act required that the person “meant to produce that particular result”, and did not include foresight of the probability that severe mental or physical harm would be inflicted. Accordingly, the fact that SZTAL would be remanded in an overcrowded prison in Sri Lanka for a short period following his return did not entitle him to a protection visa, because the poor prison conditions were due to a lack of resources, and not because Sri Lankan officials were acting with the purpose of inflicting severe pain or suffering.
As can be seen from the above brief descriptions, Zaburoni and SZTAL each concerned the proper interpretation of the word “intent” in a specific statutory context. The present task is very different. It does not concern a question of the scope of a defined term of legislation, but instead concerns the common law offence of assault. As outlined above, it is clear from Brennan J’s decision in He Kaw Teh that the element of intent for common law assault may be satisfied where the accused knew that it was probable or likely that the result (here, dislodgment and collision with the roadway) would occur as a consequence of the accused’s act (here, driving with the victim on the bonnet).
As counsel for the offender submitted, because the jury convicted the offender of murder, rather than manslaughter, the jury had no occasion to consider what was encompassed within “intent” in the directions for the offence of manslaughter. For this reason, the inquiry as to the offender’s intent must instead begin with the findings of the majority of the Court of Appeal in setting aside the jury’s verdict of murder and substituting a verdict of manslaughter.
The jury found the offender guilty of murder by reckless indifference. In so finding, the jury must have been satisfied that: (i) The offender drove the vehicle, knowing the victim to be on the bonnet of his car; (ii) The offender had foresight of the probability that the victim would be dislodged from the vehicle and would collide with the roadway; and (iii) The offender had foresight of the probability that the victim’s death would result from her being dislodged from the vehicle and colliding with roadway. (It may be noted in this respect that the prosecution did not rely on an intent to cause grievous bodily harm as an alternative basis of liability for murder.)
As I understand the Court of Appeal’s judgments in O’Connell (No 1) (CA) and O’Connell (No 4) (CA), the division between the majority (Loukas-Karlsson and Taylor JJ) and the dissent (McCallum CJ) in the Court of Appeal concerns the third issue described above. All three judges agreed that it was open to the jury to be satisfied beyond reasonable doubt that the offender drove with the victim on the bonnet of his vehicle: O’Connell (No 1) (CA) at [270] (Taylor J, Loukas-Karlsson J agreeing); [16], [46] and [105] (McCallum CJ). All three judges also agreed that it was open to the jury to be satisfied beyond reasonable doubt that the offender had foresight of the probability that the victim would be dislodged by his driving: McCallum CJ at [236]; Taylor J (Loukas-Karlsson J agreeing) at [340]. The difference between the majority and the dissent concerned whether it was open to the jury to find that the offender’s knowledge extended to foresight of the probability of the victim’s death from any injury sustained as a result of the victim being dislodged from the vehicle: Loukas-Karlsson and Taylor JJ concluded that it was not so open (at [305]); McCallum CJ concluded that it was (at [236]).
In substituting a verdict of manslaughter, Loukas-Karlsson and Taylor JJ noted (O’Connell (No 4) (CA) at [79]) that: [The alternative offence of manslaughter] did not require the prosecution to establish that the [offender’s] intention contemplated anything beyond dislodging the [victim] from the bonnet of the vehicle so that she would collide with the roadway. The prosecution did not need to establish that the appellant’s state of mind included an intention to cause any harm or injury to [the victim] (though that may have been the result of driving with the intention that she be dislodged from the vehicle and collide with the roadway).
Their Honours continued (at [84]): Proof alone of an intention to dislodge [the victim] from the vehicle did not prove reckless indifference. But knowledge that [the victim’s] death was probable required realisation on the [offender’s] part that by continuing to drive, she would be dislodged from the vehicle and fall onto the roadway. In our view the jury verdict for murder, in circumstances where they were satisfied that the appellant knew [the victim’s] death was the probable result of driving with her on the bonnet, necessarily meant that the jury must have been satisfied that when he drove the vehicle with [the victim] on the bonnet the appellant intended that she would be dislodged from it and collide with the roadway. (emphasis added)
In reaching the conclusion that the jury’s verdict of murder necessarily encompassed a finding that the offender had intended to dislodge the victim from the ute, the majority did not expressly state whether the offender’s ‘intent’ was driving with the purpose of dislodging the victim, or whether the ‘intent’ was driving with actual foresight of the probability that the victim would be dislodged. However, the emphasised portion of the above extract strongly suggests that their Honours were contemplating the latter, rather than the former.
An understanding of the element of intent as being satisfied by the offender’s foresight of the probability of the result (dislodging of the victim from the vehicle) also accords with their Honours’ ultimate finding, namely that “the jury must have determined the question of the appellant’s intention with respect to manslaughter ‘adversely’ to him”: O’Connell (No 4) (CA) at [85]. As outlined at [32] above, in order to find the offender guilty of murder, it was necessary for the jury to be satisfied beyond reasonable doubt that the offender had foresight of the probability that the victim would be dislodged from the vehicle. The jury was not required to be satisfied that the offender acted with the purpose of dislodging the victim from the vehicle.
Accordingly, I find that the intention which is necessarily satisfied by the substituted verdict is one of foresight of the probability that the victim would be dislodged, rather than acting with the purpose of dislodging her.
Of course, I am not required to sentence the offender upon the basis of the view of the facts, consistent with the verdict, which is most favourable to the offender: R v RB [2022] NSWCCA 142 at [21] – [22], quoting R v Isaacs (1997) 41 NSWLR 374 at 377 – 378 and Cheung v R [2001] HCA 67; 209 CLR 1 at [5] – [8], [10]. It is open for me to find that the offender acted with the purpose of dislodging the victim if I am satisfied beyond reasonable doubt of that fact: R v Olbrich [1999] HCA 54; 199 CLR 270 at [24].
On balance, I am not so satisfied. The combined effect of the evidence before the jury was that the offender reversed some way (the actual distance is unclear) back down Coutts Place, before then accelerating towards the young person, who jumped out of the path of the vehicle, and then travelling up Coutts Place and turning left onto Alfred Hill Drive. The total distance travelled was approximately 266.8 metres.
Other than making a left hand turn from Coutts Place into Alfred Hill Drive, the offender did not otherwise turn or swerve the vehicle. After turning onto Alfred Hill Drive, the offender did not brake the vehicle until after the victim fell onto the roadway. Although Senior Leading Constable Smurhun initially estimated the offender’s vehicle as travelling up to 63 kilometres an hour when the brakes were applied, in cross-examination he conceded that the vehicle may have been travelling as little as 42.5km per hour at the time of braking, and 35km per hour at the time that the vehicle travelled past the CCTV camera shortly before the victim fell. The evidence in the trial was that the vehicle was capable of much more rapid acceleration. If the offender had been driving with the purpose of dislodging the victim, it might have been expected that he would have accelerated, swerved or braked suddenly at an earlier point on Alfred Hill Drive.
To be clear, I am satisfied beyond reasonable doubt that, in driving with the victim on the bonnet, the offender actually foresaw the probability (indeed the certainty) that the victim would be dislodged from the vehicle and would collide with the roadway. Central to this conclusion is the distance and speed travelled by the offender, the height of the utility truck and the precarious position of the victim on the bonnet, which was in the offender’s direct line of sight as he drove. In particular, like McCallum CJ, I consider that it is beyond doubt that the offender was “driving too fast down Alfred Hill Drive not to foresee the probability that [the victim] would fall onto the road”: O’Connell (No 1) (CA) at [236]. I do not understand the majority to have held otherwise. The majority’s finding concerned the offender’s foresight of the consequence of such a fall; specifically, that it was not open to the jury to find that the offender knew or realised that the deceased’s death was probable: O’Connell (No 1) (CA) at [345] (per Taylor J; Loukas-Karlsson J agreeing at [257]).
Of course, as the offender is being sentenced for manslaughter, the offender is not to be sentenced on the basis that he actually foresaw the probability of the victim’s death. However, this does not preclude a finding that the offender appreciated that the victim would be injured, potentially seriously so. I am satisfied beyond reasonable doubt that, although the offender’s purpose was not to seriously injure the victim, in driving with the victim on the bonnet and in his immediate line of sight, the offender appreciated that, as a slight female, the victim might be injured, and potentially seriously injured, when dislodged from the moving vehicle.
The protective matters to which I have previously referred, specifically, the offender’s supportive family, and his positive behaviour and employment in custody remain unchanged. Although unremorseful, I am satisfied that the offender’s grief as a result of his involvement in the death of the victim will provide a measure of specific deterrence.
Nonetheless, whilst I continue to assess the offender’s prospects of rehabilitation as generally positive, this finding is more guarded than was the case prior to the offender’s most recent convictions.
A number of these factual findings also remain unaffected by the Court of Appeal’s decision, or by the further evidence that has been adduced in the proceedings on resentence.
My previous finding concerning the need for the sentence to recognise the harm done to the victim, to her family and to the community remains of continued force, as do my findings concerning the need for the sentence to be imposed to recognise the taking of a human life and the profound, lifelong harm which has been occasioned to the victim’s family, particularly her mother and her daughter.
My finding as to the offender’s lack of remorse is unchanged. He continues to take no responsibility for the victim’s death. As outlined above, my finding as to the offender’s prospects of rehabilitation is more guarded in light of the evidence of additional family violence offending which is now before me. I have taken into account the offender’s background as a part of my instinctive synthesis. The offender’s counsel did not submit that the offender’s background reduces his culpability for his offending; cf Bugmy v The Queen [2013] HCA 37; 249 CLR 571. The offender is 45 years old. His age is not a mitigating factor.
Of course, the maximum penalty that applies to the offence of manslaughter, 20 years imprisonment, is considerably less than the maximum penalty which applies to murder, of life imprisonment. The sentence to be imposed must be assessed against this very different yardstick. The lesser maximum penalty reflects the different moral culpability of an offender who has been found guilty of manslaughter, as compared to the moral culpability of an offender who has been found guilty of murder.
As outlined above, my factual findings as to the offender’s conduct have not changed. The objective seriousness of the offence is high. The offending occurred in a family violence context. The risk of serious injury was readily apparent. The terror caused to the victim in the final moments of her life was extreme. As the prosecutor submitted, the offending must also have been a terrifying experience for the young person, who witnessed the events, and who was in a particularly close relationship with the victim.
My findings as to the offender’s state of mind have been altered in one important respect. The offender is not to be sentenced on the basis that he foresaw the probability of death. However, I am satisfied beyond reasonable doubt that, in driving as he did, the offender appreciated that his act of driving with the victim on the bonnet may have exposed her to an appreciable risk of serious injury. The offender’s moral culpability for the offence of manslaughter is high.
As I previously found, the offender was on bail at the time for an alleged assault against the victim. He was prohibited from contacting the victim or from attending her home. As the prosecutor submitted, it is significant that the breach of these bail conditions occurred within a month of the first grant of bail, and within a day of the bail condition being continued.
Taking into account each of these matters, the need for general deterrence, personal deterrence, denunciation and recognition of the protection of the community is high. Comparatively less weight should be given to rehabilitation, given my guarded, albeit generally positive, finding in this respect.
I will accumulate the sentence to be imposed by 6 months. The sentence for manslaughter will therefore be backdated to 15 October 2022. I will also bear this accumulation in mind when considering the appropriate non-parole period to be imposed. Orders
The orders of the Court are: (1) For the offence of manslaughter (ALT CAN4316/2022), the offender is convicted and sentenced to 10 years’ imprisonment, commencing on 15 October 2022 and expiring on 14 October 2032. (2) A non-parole period of 6 years and 6 months is imposed, expiring on 14 April 2029.