DPP v Osborn [2017] VSC 535

3 Mr Osborn was subject to a final order made by the Magistrates' Court at Mildura in February 2014, pursuant to the Family Violence Protection Act 2008. As a consequence, Mr Osborn was on 1 May 2016 a prohibited person for the purposes of s 5(1) of the Firearms Act 1996.

4 The Director of Public Prosecutions originally filed an indictment charging murder. On 26 May 2017, pursuant to an agreement reached, the Director filed a new indictment charging prohibited person possess firearm and manslaughter. Mr Osborn pleaded guilty to those charges on that day.

5 Ms Belej was born in Mildura on 19 October 1984. At the time of her death she was aged 31 years. Ms Belej had grown up in the Mildura district. After completing her high school education, she commenced, but did not complete, a university degree in Melbourne. Ms Belej returned to live in Mildura late in 2004. For much of the period from that time until the date of her death she was employed at the Mildura Rural City Council. At the time of her death she held the position of human resources co-ordinator at the council. Ms Belej was a passionate supporter of the White Ribbon Foundation, aimed at preventing violence against women.

6 Mr Osborn was aged 36 when he committed the offence, and is now 37. He was born in Port Lincoln, South Australia. His parents separated when he was very young, and at the age of two years he moved to Mildura with his mother, where he grew up. Mr Osborn left school in 1997, before completing year 12. In the years since, he has completed various certificate courses, particularly involving security training. Since leaving school, Mr Osborn has been continuously employed, most often in the security industry. From October 2004 to the date of the offence, Mr Osborn was employed as security officer team leader, with Treasury Wine Estates at Lindeman's Winery, Karadoc. At the time of the offenses, Mr Osborn was a patched member of the Rebels Outlaw Motorcycle Club, Mildura Chapter. In the period towards the date of the offence, Mr Osborn was working towards dissolving the Mildura chapter of the Rebels.

7 In 2003 Ms Belej was living in Melbourne and studying at university, but returning to Mildura regularly to visit family and friends. During one such visit Ms Belej attended a social engagement at Dom's Tavern Restaurant and Nightclub, where she met Mr Osborn, who was at that time working at the venue as a crowd controller. Ms Belej and Mr Osborn commenced a relationship. In late 2004, Ms Belej made a decision to leave Melbourne and to return to the Mildura area, where she moved into rental accommodation with Mr Osborn. In late 2008, Ms Belej and Mr Osborn jointly purchased the Cardross home. The relationship between Mr Osborn and Ms Belej was ongoing at the date of Ms Belej's death.

8 The relationship between Ms Belej and Mr Osborn seems to have been characterised by Mr Osborn regularly pursuing ongoing extramural relationships with other women. One such relationship continued for an extended period from 2009 to early 2014. I am uncertain whether this resulted in the temporary separation of Mr Osborn and Ms Belej. At most times Mr Osborn continued to reside at the Cardross home, though in around 2011 that property was transferred to the sole name of Ms Belej. In early 2014 this extended extramural relationship ended. A short time later, Mr Osborn discovered the woman with whom he shared that relationship in bed with another man. Mr Osborn assaulted the man by punching him, and as a consequence was charged with various offences. Ultimately that matter resolved by Mr Osborn pleading guilty to one charge of recklessly causing injury, in respect of which he was sentenced in the Mildura Magistrates' Court to a fine of $2,500 without conviction. Also as a consequence of that incident, a final order was obtained against Mr Osborn pursuant to the Family Violence Protection Act. As a result, Mr Osborn was a prohibited person for the purposes of s 5(1) of the Firearms Act, and was not to possess, carry or use a firearm.

9 Extracts from diaries maintained by Ms Belej and text messages sent by Ms Belej to Mr Osborn in the days prior to the offence indicate Ms Belej was unhappy with Mr Osborn's extramural affairs. It seems her perception was that the level of her feeling for Mr Osborn was not reciprocated. Ms Belej was also unhappy with the level of Mr Osborn's consumption of alcohol, which was very high in the months leading up to the offence and, on the evening of the offence, that Mr Osborn had brought into the Cardross home the handgun which he ultimately discharged to cause Ms Belej's death. However, while there was disharmony in the relationship in relation to these issues there is no evidence of any violence or threat of physical violence by Mr Osborn towards Ms Belej prior to 1 May 2016.

10 Mr Osborn has a history of holding firearm licences dating from 1992 when he was first issued a junior permit. In 2004, Mr Osborn was issued with a category A and B longarm licence, pursuant to the Firearms Act. Mr Osborn completed a firearms safety course as part of his application for that licence. In 2005, Mr Osborn applied for and was issued a general category handgun licence. The application was accompanied by evidence of Mr Osborn's membership of the Sunraysia Pistol Club. In May 2006, Mr Osborn applied to vary that licence to include the purpose of armed security guard. That application was accompanied by evidence of Mr Osborn's employment by Karadoc Armed Escort and Security Services, a statement of competency titled 'Control Security Risk Situation Using Firearms', as was required when the licence was for use as an armed guard, and evidence of holding a private security individual operator licence for authorised activity of 'security guard'.

11 Mr Osborn renewed his category A and B longarm licence in November 2009. In August 2010, he applied for a paintball marker licence. That application was supported by evidence of completion of a firearms safety course on 7 August 2010. In May 2011, Mr Osborn applied for and was granted a renewal of his general category handgun licence.

12 On 19 February 2014, following the final intervention order having been made against Mr Osborn, Victoria Police served on Mr Osborn a 'Notice of Suspension and Proposal to Cancel' under s 47 of the Firearms Act. The effect of that notice was to suspend all firearm licences held by Mr Osborn. As a consequence, on 1 May 2016, Mr Osborn was not licensed or permitted to possess or use a firearm under the Firearms Act.

13 During the various licensed periods to which I have referred, Mr Osborn had a total of 29 firearms registered to him, including 11 individual handguns of various makes and models. Mr Osborn had completed at least two firearms safety courses. Mr Osborn had previously lawfully owned one revolver-type handgun. The cylinder of that weapon rotated clockwise.

14 The handgun which Mr Osborn discharged causing the death of Ms Belej was identified as a Ruger Security-Six model, centrefire revolver action, .357 Magnum calibre handgun. The serial number on the heel of the butt of the handgun had been 'pin punched' over, making it unidentifiable. As a consequence of having no visible serial number, the handgun was not a registered firearm pursuant to s 8A of the Firearms Act.

15 Mr Osborn purchased the handgun in mid-April 2016 for the sum of $3,000. Bank records show that that amount was transferred on 12 April from a joint account in the names of Mr Osborn and Ms Belej to Ms Belej's sole account and was withdrawn from that sole account on the same day. Mr Osborn said Ms Belej withdrew the cash amount of $3,000, which she handed to him, and that he then completed purchase of the handgun. Through his counsel at the hearing of the plea Mr Osborn said the handgun was purchased because it was cheap and the intention was to make a profit on the resale of the handgun. Mr Osborn stated Ms Belej was aware of the purchase.

16 The handgun was examined by ballistics expert, Sergeant Farrar. That examination revealed Sergeant Farrar was unable to make the handgun discharge by any means other than pulling the trigger. The trigger pull required 2.3 kilograms of pressure to discharge the handgun. The cylinder of the handgun rotated counter clockwise.

17 Just prior to 7.00 pm on 1 May 2016, Ms Belej attended Fishers IGA supermarket in Irymple. A short time later she left the supermarket and travelled just over seven kilometres to the Cardross home. CCTV footage at the Cardross home shows the following movements of Ms Belej and Mr Osborn:

• 6.59 pm Mr Osborn arrives home.
• 7.04 pm Mr Osborn walks to the rear shed from the back door.
• 7.05 pm Mr Osborn returns to the house from the rear shed, carrying a drink.
• 7.08 pm Ms Belej arrives home.
• 7.11 pm Ms Belej enters the house through the rear door, carrying grocery items.
• 7.32 pm Ms Belej briefly appears on the rear patio area before returning inside.

At some time between 7.32 pm and 7.39 pm Mr Osborn pulled the trigger of the handgun, causing it to discharge and instantly kill Ms Belej.

18 Mr Osborn had been drinking alcohol during the evening up to the time the offence occurred. However, it was not suggested Mr Osborn's capacity was impaired to any significant degree by his consumption of alcohol.

19 Mr Osborn states that when Ms Belej returned home that evening, he was in the bedroom of the home. He retrieved the handgun from where it was hidden, and was sitting on the bed playing with it. He took all the rounds of ammunition out of the handgun. Ms Belej came into the room and said to Mr Osborn, 'Get that thing out of the house or I'm probably gunna use it.' I note Mr Osborn's history to psychologist Mr Newton that Ms Belej expressed disapproval of his drinking and the handgun, and that they argued briefly. Mr Osborn stated Ms Belej walked into the kitchen, and he then put the handgun in a gun bag with all the bullets and walked into the kitchen with the gun bag and a drink, intending to take the handgun to the rear shed. As he was walking through the kitchen, Ms Belej said something to him. Mr Osborn said as a consequence he stopped, pulled the handgun out of the gun bag, opened the revolver chamber, put one round of ammunition in the chamber, spun the chamber, closed it and said, 'Will this make you happy?'. Mr Osborn looked at the left side revolver chamber and saw there was no round in that chamber. He put the handgun to his head and pulled the trigger. Mr Osborn stated Ms Belej then said to him, 'You're pointing that at the wrong person.' Mr Osborn then cocked the hammer of the handgun and pointed it at Ms Belej, holding it so that it was within five millimetres of Ms Belej's forehead. Mr Osborn stated he looked again at the left side chamber of the revolver and could see no round in that chamber. Mr Osborn acknowledges that he pulled the trigger of the handgun causing it to discharge and to shoot Ms Belej. The prosecution submitted I should be cautious before accepting any part of Mr Osborn's account of the circumstances. Mr Osborn's account is consistent with the settled facts which form the basis of the plea, I accept the above aspects of Mr Osborn's account.

20 At 7.39 pm, a few minutes after he had shot Ms Belej, Mr Osborn called 000 and requested an ambulance be sent to the Cardross address. Mr Osborn said to the operator that there was a gun shot, that Ms Belej had been shot in the head, and that she was dead. With instruction from the operator Mr Osborn attempted resuscitation of Ms Belej over an extended period. At 8.43 pm Mr Osborn was instructed to exit the premises and presented himself to waiting police, who then took him into custody. MICA ambulance officers arrived at the Cardross address at 8.48 pm, observed Ms Belej lying supine on the kitchen floor of the home, and noted that she was clearly deceased.

21 Subsequent examination by forensic pathologist Dr Dodd identified an entry wound in Ms Belej's mid forehead region, and an exit wound to the rear occipital region, just left of midline. Dr Dodd stated the bullet discharged from the handgun caused catastrophic damage to Ms Belej's brain, causing death almost instantly.

22 Police crime scene investigators observed Ms Belej lying on her back with her head near the centre of the kitchen and her feet near the base of a free-standing kitchen island bench. The handgun was lying on the kitchen floor between Ms Belej's feet and the island bench. On the kitchen bench was the zip up gun case, inside which were found five live rounds of ammunition. The bullet which caused the death of Ms Belej was retrieved from a kitchen cabinet located in the kitchen behind her body. A pan containing fried bacon pieces sat in an angled position on the island bench near a plate containing baked potatoes. A spatula lay on the floor below. Ms Belej was preparing the evening meal before she was shot.

23 Mr Osborn was arrested and conveyed to the Mildura police station. He was formally interviewed in stages, commencing very early in the morning of 2 May 2016 and concluding on 3 May. Mr Osborn was initially charged with the murder of Ms Belej. However, the matter resolved by way of a plea to manslaughter because, the Crown conceded, the available evidence did not enable the exclusion of the reasonable possibility that when Mr Osborn deliberately pulled the trigger of the revolver, he did so not intending for it to discharge. The Crown accepted a plea of guilty to manslaughter by unlawful and dangerous act. The foundation offence accepted to be the unlawful act which brought about Ms Belej's death is the indictable offence of prohibited person use a firearm pursuant to s 5(1) of the Firearms Act.

24 The Director of Public Prosecutions submitted that Mr Osborn made a number of dishonest statements when interviewed by police: first, to the effect that Ms Belej had grabbed or hit the handgun, inferring this had contributed to or was the cause of it discharging; secondly, that Mr Osborn was leaning with his elbows on the kitchen bench when the handgun discharged, that he initially pointed the handgun at Ms Belej's upper chest/lower neck, that Ms Belej was leaning down towards the counter and moved forward or leaned forward immediately before the handgun discharged; thirdly, there was inconsistency between a statement by Mr Osborn that he unloaded the handgun of all bar one bullet while in the bedroom and statements that he had emptied the handgun of all bullets while in the bedroom and loaded a single bullet into the handgun while in the kitchen.

25 Mr Osborn concedes that there were some inconsistencies or inaccuracies in answers he gave when interviewed by police. An instance is that when he was first spoken to by police Mr Osborn suggested as a cause of the handgun discharging Ms Belej grabbing or knocking the handgun. By the later stages of the formal interview Mr Osborn had stepped away from that possible explanation, and he now concedes Ms Belej did nothing to cause discharge of the handgun. Mr Osborn submits any inaccurate or inconsistent answers he gave to police are better explained by the difficulty he experienced recollecting exactly the events leading to the discharge of the handgun and Ms Belej's death. It was submitted by Mr Osborn that the events occurred very quickly, that he was extremely traumatised by the death of Ms Belej, and that the contents of the record of interview establish a genuine attempt by him to assist in explaining what occurred, but that he understandably had some uncertainty as to events.

26 For the following reasons I am not satisfied beyond reasonable doubt that Mr Osborn was dishonest in the manner alleged when interviewed by police. First, I accept that Mr Osborn was traumatised by the death of Ms Belej. Mr Osborn caused Ms Belej's death in clearly traumatic circumstances. A very short time later he telephoned 000 and then under instruction from the operator attempted resuscitation for an extended period. Transcript of the 000 call demonstrates Mr Osborn to have been significantly distressed during this period. Likewise transcript of Victoria Police interviews with Mr Osborn demonstrate that he was frequently distressed. Arguably, the level of distress Mr Osborn was experiencing explains inconsistencies and inaccuracies in his answers to some of the police questions.

27 Secondly, transcript of the police interviews record Mr Osborn expressing uncertainty as to the details of what occurred, not just in relation to events going to his responsibility for discharge of the handgun, but also in relation to incidental events irrelevant to his guilt. This is adequately demonstrated by the following questions and answers:

Question: Ok. What - what was Karen - Karen was - you said she was at the counter. What was she doing at the time?

Answer: I don't remember. I - I don't remember. She was just standing in front of the counter. I don't know if she was cooking tea or getting something ready, I don't know, but just everything happened so quick, it all happened - it all happened in, like, five seconds.

28 Thirdly, despite having received advice from his solicitor to make a 'no comment' record of interview, Mr Osborn chose to answer police questions about the details of events at each stage of the interview process, including during an attempted re-enactment. It might be inferred that Mr Osborn's cooperation in this regard is consistent with him having made a genuine attempt to answer the police questions.

29 Twenty two victim impact statements were read or tendered at the plea hearing. They include statements by Ms Belej's parents, three brothers, two sisters-in-law, a nephew, other family members, friends and work colleagues.

30 Louisa Belej, mother of Ms Belej, described the heartbreaking loss of her much loved daughter, and said that she misses her daughter's physical presence, her voice, her phone calls and her daughter's involvement in family events such as birthdays and Christmases. Mrs Belej said there was no end in sight to the pain of the loss of her daughter, which was with her every day, and that the bond of mother and daughter was shattered forever by her daughter's death. Mrs Belej described her heart breaking for her three sons and her husband. Gerald Belej said the loss of his only daughter was the hardest thing he had ever faced in life. He described being told of his daughter's death when he woke in a hospital recovery room after treatment for a heart condition. Mr Belej spoke of the waste of his daughter's life, that he missed her so much, and that the circumstances of her death had brought anger to his family. Mr Belej spoke of his family being consumed by the court process. He said his daughter was always on his mind, that memories of her are there all the time, that he frequently breaks down crying, and that the pain at the loss of his daughter is hard to describe.

31 Each of Ms Belej's brothers, Chris, Jonathon and Timothy, spoke of the enormous personal impact they had suffered as a consequence of their sister's death, which included feelings of despair, immense loss, grief, mood disturbance and social withdrawal. Each brother also described that Ms Belej was a central and loving figure within the Belej family, so that a previously happy family life had been fractured. Especially poignant was the description by each brother of the difficulty he experienced explaining to his children the death of their aunt. This was reinforced by the statement of nephew Jacob, who described his sadness, anger and frustration in relation to his aunt's death, and that he feels terrified, scared and upset that he will never see his aunt again. Sisters-in-law, Rebecca and Tate Belej, described the acute loss of Ms Belej as a friend who had provided great support to them and who was central in the Belej family, organising family events. Both reinforced the pain and grief experienced by their husbands, the negative impact on relationships within their families, and the detrimental consequences faced by their children as a result of their aunt's death. These themes of extended and ongoing family loss were reinforced by the statements by aunt, Ms McMahon, uncle, Mr Filippi, and cousins, Ms Manfield and Ms Dichiera.

32 Carmody Forbes described Ms Belej as her best mate whose death had left her feeling heartbroken, sad and lost. She said she is no longer able to sleep properly and suffers nightmares, is anxious and has had several panic attacks. She described being changed as a person, no longer being happy and bright. Similar statements of pain and loss were made by friends Janette Appleby, Kate Scholar and Cassandra Jennings. Statements by family friends Cietje King, Neil King and Marry Gobbo emphasise a number of things: first, the devastating effect on the Belej family of Ms Belej's death; second, the particular impact of her death on Ms Belej's young nieces and nephews; and third, that the pain and devastation associated with Ms Belej's death extends beyond family to friends and the local community. This picture is further reinforced by statements of three work colleagues, Ms Joslyn, Mr Jose and Ms McMillan, each of whom spoke of the grief which affected them personally and which they observed affected other work colleagues of Ms Belej.

33 These many victim impact statements are evidence that Ms Belej was an enormously important, valued and loved member of her large family, her friendship group, her workplace and the broader community. It is clear from some of the references tendered in support of Mr Osborn that feelings of pain and grief associated with Ms Belej's death have also been experienced by members of his family.

34 In this state, manslaughter is a common law offence, the maximum penalty for which is set by statute at 20 years imprisonment.[1] Manslaughter involves the loss of human life and is manifestly a serious offence. Given the central and loved role Ms Belej played within her family, among her friends, at work and in the community, the fact of and circumstances of her death are all the more unbearable. The offence prohibited person possess or use a firearm carries a maximum penalty of 1,200 penalty units or 10 years imprisonment.

35 The Director of Public Prosecutions accepted that unlike the revolver Mr Osborn had previously lawfully owned, the cylinder of the handgun that killed Ms Belej rotated counter-clockwise. The Director accepted that the available evidence did not enable the exclusion of the reasonable possibility that when Mr Osborn deliberately pulled the trigger of the handgun, he did so not intending for it to discharge because of his misunderstanding of the direction of the revolver barrel rotation. The Director therefore accepted a plea of guilty by Mr Osborn to manslaughter by unlawful and dangerous act.

36 The circumstances of commission of manslaughter, and the resulting sentences, vary widely. For the prosecution it was submitted this was a serious example of manslaughter. I accept that Mr Osborn pulled the trigger of the handgun not intending for it to discharge. That factor tends towards a lower level of gravity of manslaughter. However, the fact that Mr Osborn did not intend the handgun to discharge must be considered in the context of all of the circumstances leading to the death of Ms Belej.

37 Those circumstances indicate an appalling level of recklessness on the part of Mr Osborn. Knowing the handgun was loaded with one round, he cocked it, placed it against Ms Belej's forehead, checked only the live round was not in the left chamber of the revolver, and pulled the trigger.

38 Mr Osborn, by virtue of previous firearm licences which he had held, the numerous firearms which had been registered to him and firearm safety courses which he had undertaken, was very familiar with firearms and the fundamental safety issues associated with handling firearms. As a consequence of his training and familiarity with guns Mr Osborn was very well aware of the danger associated with loading the handgun in the kitchen of the Cardross home, cocking it, pointing it at Ms Belej and pulling the trigger. These are aggravating factors in relation to the offence.

39 Mr Osborn was in a relationship of trust with Mrs Belej. His actions constitute an appalling breach of that trust. There was nothing in what was said or done by Ms Belej which in any way excuses Mr Osborn's actions. The actions of Mr Osborn were completely unwarranted. Placing the loaded handgun against Ms Belej's forehead, cocking it and pulling the trigger were acts of violence.

40 Mr Osborn's behaviour was extremely reckless and dangerous, and profoundly stupid. I regard Mr Osborn's culpability as being very high.

41 It was submitted for Mr Osborn that there were a number of mitigating factors which should be taken into consideration when deciding Mr Osborn's sentence. I will address each of those factors.

42 There was an offer communicated by Mr Osborn's solicitor prior to the committal to plead guilty to manslaughter. However, the basis upon which that offer was made was not specified, and the matter ran to contested committal in March 2017. Following the committal there were ongoing discussions as a consequence of which resolution on the plea of guilty to manslaughter by unlawful and dangerous act and to prohibited person possess firearm was announced to this court on 26 May 2017. Had the matter not resolved it was due to proceed to trial in Mildura on 2 October 2017. For Mr Osborn it was submitted that whilst the offer to plead guilty was not made at the earliest opportunity it was made well prior to trial and prior to the need for any significant preparation for trial.

43 The Director submitted that caution should be exercised in accepting the plea by Mr Osborn as indicative of remorse, particularly in circumstances in which the committal was contested and Ms Belej's brother, Christopher, was a required witness and was cross-examined at the committal.

44 I accept Mr Osborn's plea of guilty is relevant in a number of ways. First, it was made some five months prior to trial, and in the context of a pre-committal offer to plead guilty to manslaughter, though on an unspecified basis. Secondly, a plea at that stage has spared the witnesses and the Belej family the ordeal of approaching and experiencing a trial. This of course must be offset to a degree by the fact that the Belej family, and in particular Christopher Belej as a witness, were required to face a contested committal. Thirdly, I accept that the plea of guilty by Mr Osborn does demonstrate some acceptance of responsibility by him and a willingness to facilitate the course of justice.[2]

45 It was submitted for Mr Osborn that events following the offence, commencing as early as the police interview, indicate genuine remorse by Mr Osborn for his actions in causing the death of Ms Belej. The Director, on the other hand, submitted that what Mr Osborn had expressed was regret for the circumstances in which he finds himself as a consequence of his own actions, rather than true remorse which has, as a feature, complete acceptance of culpability and responsibility for the acts which bring about the outcome. The prosecution relied as evidence of the limits of Mr Osborn's remorse on the description of the offence, in tendered references and in the plea submissions made on his behalf, as a 'tragic accident'. It was submitted for the prosecution there was nothing accidental in the deliberate actions of Mr Osborn which brought about Ms Belej's death.

46 For a number of reasons I accept that the evidence indicates a level of genuine remorse by Mr Osborn. First, within minutes of the offence, Mr Osborn telephoned 000 requesting an ambulance for Ms Belej, and then remained with her attempting resuscitation for an extended period under instruction from the 000 operator. The transcript demonstrates Mr Osborn was distressed throughout the period of the call, but that despite his distress he did not wish to leave Ms Belej.

47 Secondly, during interviews with police Mr Osborn, against legal advice, gave extensive details of what occurred in answer to police questions. Again he was often recorded as being distressed. Towards the end of the police interview when asked to describe what he had done, Mr Osborn said he had been stupid, that he just wanted Ms Belej back, that he should never have pointed the gun at her, and that he did not mean to cause Ms Belej's death. On the other hand, at no stage during the 000 call or police interview did Mr Osborn accept that he pulled the trigger of the handgun causing it to discharge resulting in Ms Belej's death.

48 Thirdly, the references tendered in support of Mr Osborn at the plea hearing speak strongly of Mr Osborn's remorse in causing Ms Belej's death. It is true that a number of those references describe Ms Belej's death as an accident. However that appears to be a description in each case by the author of the reference rather than a record of Mr Osborn's own expression. Certainly Mr Osborn's letter of regret to the Belej family does not describe Ms Belej's death as an accident. Counsel for Mr Osborn did characterise the offence as a tragic accident during the plea hearing. However, that was a characterisation made from the bar table and in the context of concessions of Mr Osborn's culpability, and that Mr Osborn's acts in pointing the handgun at Ms Belej and pulling the trigger were violent, stupid and reckless. In my view, references in the materials to Ms Belej's death being a tragic accident do not reflect on Mr Osborn as lessening the degree of remorse which he has expressed.

49 Fourthly, I note a very supportive report from Ms Diane Morrison, Prison Fellowship Change On The Inside Director, in which Ms Morrison records:

He [Mr Osborn] has been assertive, transparent and in my belief; genuinely remorseful. He has also been accountable for his actions and has prepared himself to do his sentence in a positive way.

In relation to the issue of remorse I also note the contents of the report of clinical and forensic psychologist Mr Newton in which Mr Newton observes Mr Osborn as being downcast and grief-stricken, with symptoms of depression and anxiety which Mr Newton considered had arisen almost entirely in response to the death of Ms Belej. Mr Newton observed that Mr Osborn regularly:

...finds himself experiencing states of grief, sadness, regret and longing for a future that now cannot be. These feelings interact with ruminations of his own culpability and stupidity for his behaviour and his sense that there is no action he can now take that will ever remedy the damage he has caused or expiate the guilt he feels.

I accept these observations by Mr Newton to be consistent with remorse being felt by Mr Osborn mixed with feelings of regret as to the effect of his actions on his own future.

50 There are a number of factors suggesting that Mr Osborn has good prospects of rehabilitation. First, Mr Osborn has an excellent work history. The references from Mr Garraway and Mr Tanginoa show that Mr Osborn was, to the date of his arrest, a valued employee. Secondly, Mr Osborn has strong family support, evident from the references tendered on his behalf and the attendance of family members at the plea hearing and sentence. Thirdly, Mr Osborn has pleaded guilty and I accept has demonstrated a level of remorse. Fourthly, I take into account Mr Osborn's limited prior convictions. The offence which led to Mr Osborn's one prior conviction involved an intention by Mr Osborn to harm the victim. In this case I sentence Mr Osborn on the basis he did not intend the handgun to discharge. This difference limits the relevance of that prior conviction. Fifthly, I have the evidence of Mr Newton, who concludes:

A comprehensive review of the operation of risk factors which have demonstrated empirical utility in predicting violent recidivism suggests that Mr Osborn would pose a relatively limited risk of violent recidivism.

51 However, Mr Newton identifies a number of significant issues which negatively impact the prospects of Mr Osborn's rehabilitation. First, Mr Newton observes concerning egocentricity by Mr Osborn in his intimate relationships, referring in particular to the extramural relationships in which Mr Osborn engaged throughout his relationship with Ms Belej. In my view, a fair reading of Mr Newton's report leads to the conclusion that there is also a degree of egocentricity in Mr Osborn's reaction to his current circumstance which is mixed with the genuine remorse I have concluded he feels as a consequence of causing Ms Belej's death. Secondly, Mr Newton comments on Mr Osborn's traditional 'masculine' view of gender roles emphasising bravado and an assertive approach to conflict. Mr Newton links those traits to the incident of prior violent offending which occurred in the context of relationship conflict; and to possession of the handgun which Mr Osborn discharged to cause Ms Belej's death. There was an element of very dangerous bravado in the actions of Mr Osborn which caused Ms Belej's death. Thirdly, Mr Newton refers to Mr Osborn's affiliation with the Rebels Outlaw Motorcycle Club, which Mr Newton said demonstrated a concerning alienation from the mores of mainstream society. These matters in combination caused Mr Newton to conclude that Mr Osborn demonstrated traits of antisocial personality. Finally, Mr Newton comments on Mr Osborn's significant alcohol dependence, noting that whilst Mr Osborn expresses no desire to return to drinking, in the absence of appropriate treatment and given what he considered to be Mr Osborn's relatively limited understanding of the risks of heavy drinking and appropriate strategies for the exercise of control, there remained a significant risk of Mr Osborn relapsing upon his release from custody.

52 There are a number of further matters which must be balanced against the negative factors identified by Mr Newton. First, having identified and carefully articulated these negative risk factors, and I infer, having taken them into account, Mr Newton comes to the conclusion that Mr Osborn represents a relatively limited risk of violent recidivism. Secondly, balanced against the one prior conviction is the fact that at 37 years of age Mr Osborn has an otherwise unblemished record. Again, balanced against possession of the unregistered handgun when he was a prohibited person is the fact that for some decades Mr Osborn held gun licences and was the registered owner of firearms and has no previous relevant conviction relating to firearms. Thirdly, there are relevant contents of the custody reports detailing Mr Osborn's conduct and engagement in activities in the period since his arrest. A report of Luke Casey, acting disability co-ordinator, Port Phillip Prison, confirms Mr Osborn has been acting as a disability mentor for prisoners with cognitive impairment since September 2016 and that, according to Mr Casey, Mr Osborn shows genuine empathy for prisoners with a cognitive impairment. Mr Osborn completed a peer supporters program in July 2017. There are a number of certificates confirming Mr Osborn's successful completion of other education and self-assistance programs. Mr Osborn has applied to participate in an Offending Behaviour Program, but is unable to complete that program until he has been sentenced. Mr Gutsell, another prison disability mentor, also comments on Mr Osborn's empathy and compassion to disabled prisoners. M Schrader, assistant manager, sentence management division, notes Mr Osborn's demonstrated ability to manage himself appropriately and engage in meaningful activity while in custody. Mr Osborn has completed substance use and relapse prevention programs. I have already referred to the letter of Diane Morrison, Prison Fellowship Change On The Inside Director, in which Ms Morrison speaks very positively of Mr Osborn. These reports demonstrate that Mr Osborn has used the period of his incarceration to date in a positive manner, specifically addressing the concerning personality traits and the alcohol dependence issues identified as risk factors by Mr Newton.

53 It was submitted for Mr Osborn that his handwritten letter to the Belej family demonstrates remorse and an acceptance of responsibility and is a significant factor balancing against the negative risks identified by Mr Newton. It is difficult to reach any conclusion about the extent to which the sentiments expressed in Mr Osborn's letter are genuine, and the extent to which the letter is self-serving in the context of Mr Osborn's impending plea and sentence. I accord that letter little weight by comparison to the other factors to which I have referred.

54 I conclude that Mr Osborn has reasonably good prospects of rehabilitation. In reaching that conclusion I have not disregarded the significant negative risk factors identified by Mr Newton which will remain relevant now and into the future.

55 Section 5(1) of the Sentencing Act provides that the only purposes for which a sentence may be imposed are just punishment, specific deterrence, general deterrence, rehabilitation, denunciation and protection of the community from the offender. Of these factors general deterrence, just punishment and denunciation are especially important in the circumstances of this case. The community should understand that extremely reckless use of a handgun in a domestic setting causing the death of a young woman is to be denounced and must result in a substantial term of imprisonment.

56 Balanced against the weight to be given to specific deterrence is Mr Osborn's plea of guilty, remorse, limited criminal history and relatively good prospects of rehabilitation. I have concluded that it is unlikely Mr Osborn will reoffend in this way. The length of sentence required to give appropriate weight to general deterrence, just punishment and denunciation result in a sentence of more than sufficient severity to protect the community. No additional component is required for community protection. Rehabilitation remains a very important consideration having regard to the risk factors identified by Mr Newton and the positive progress made by Mr Osborn to date in addressing those risk factors. It was submitted for Mr Osborn that, having regard to his plea of guilty and remorse, pre offending history and good prospects of rehabilitation, a longer than usual parole period was appropriate. The Director of Public Prosecutions submitted the circumstances of the case did not demand any alteration to general practice in fixing an appropriate non parole period. Mr Osborn should be encouraged to continue taking positive steps in the process of rehabilitation during the period of his sentence. I take into account that consideration, together with the other relevant matters to which I have referred, in fixing the sentence, including the non-parole period.

57 I note that a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed.[3]

58 I was provided with the sentencing snapshot for manslaughter in the period 2011-12 to 2015-16 prepared by the Sentencing Advisory Council, and I have had regard to those statistics and the current sentencing practises for manslaughter. The survey demonstrates a range of sentences imposed reflecting the circumstances and objective gravity of the offending. I note sentences for manslaughter in that period ranged from less than two years to something in excess of 12 years, with non-parole periods of less than one year to something in excess of nine years.

59 In submissions at the plea hearing I was referred to a number of authorities.[4] I have been assisted by considering the circumstances of each of those cases and the sentences imposed by this court and by the Court of Appeal in other cases of manslaughter. The circumstances of Mr Osborn's offending mean that this is a bad instance of manslaughter by unlawful and dangerous act. In that context I have regard to the sentences imposed for manslaughter in other cases to which I was referred, particularly those where the deceased was killed by the unintended discharge of a firearm. However, there are always differences in circumstances between cases which limit the usefulness of comparisons between the present case and those to which I was referred.

60 Pursuant to s 18 of the Sentencing Act, I declare that 489 days (including today) be reckoned as already served under this sentence.

61 The prosecution has applied for a disposal order in respect of various items of property and a forfeiture order in respect of the handgun and associated items. Neither application was opposed. I will make the disposal order and forfeiture order as sought.

63 I conclude that for the manslaughter of Karen Belej, Mr Osborn is convicted and sentenced to nine years' imprisonment. On the charge of prohibited person possess firearm, Mr Osborn is convicted and sentenced to a period of twelve months imprisonment, ten months of which is to be served concurrently with the sentence imposed for the count of manslaughter. That represents a total effective sentence of nine years and two months. I direct that Mr Osborn serve a minimum of six years before being eligible for parole.

64 I also declare, pursuant to s 6AAA of the Sentencing Act that, but for Mr Osborn's plea of guilty, I would have imposed a total effective sentence in the order of eleven years imprisonment with a non-parole period of eight years.

[1] Section 5 Crimes Act 1958 (Vic).

[2] Carr v R [2012] VSCA 299 [69]-[71].

[3] Section 5(3) Sentencing Act.

[4] Sherna v R (2011) 32 VR 668; Mocenigo v R [2013] VSCA 231; R v Torun [2014] VSCA 146; DPP v Torun [2015] VSCA 15; R v Rapovski [2016] VSC 706.