R v Acar [2011] VSC 310

3 Further breaches of the order were alleged to have occurred which Ms D'Argent consistently reported to the police and, consequently, Ms D'Argent denied you access to Yazmina and was advised by the police to change her telephone number to avoid further contact with you. Nonetheless, you were able to get in touch with her via her mother. You told Ms D'Argent that you believed you were going to gaol in respect of some driving offences and that you wanted to see your daughter before this happened. As a result, you met with Yazmina and Ms D'Argent at the Fountain Gate Shopping Centre. The three of you walked around the centre. You carried Yazmina on your shoulders and played with her and bought her gifts. In Ms D'Argent's view, you were well behaved, polite and grateful to see "Mimi", as she was known. Ms D'Argent then told you that you could see Mimi every fortnight.

4 Subsequently, on 13 November 2010, after a 43 minute telephone call between you and Ms D'Argent, it was decided that Yazmina could stay that night with you at your family home in Meadow Heights. You placed a number of postings on your Facebook page expressing your anticipation and delight at the prospect of Yazmina staying with you. By all accounts, the overnight visit went well, and you returned Yazmina to her mother the following Sunday afternoon.

5 Following that weekend, you recommenced telephoning Ms D'Argent up to several times a day, inquiring about Yazmina. Eventually, Ms D'Argent told you you could ring every few days to speak with the child, but not as frequently as you had been, and you appeared to accept this. On the Friday of the same weekend that Yazmina had stayed with you, you had met a girl called Gul Rose Ocal. On the next Tuesday, you went to see her at her place of work, and she told you that you were rushing the relationship. You appeared to react badly to this. At this time, you were working as a brickies labourer and you went to work on the morning of 17 November, but walked off the site, apparently resigning your job. At 1.00pm, you texted Rachelle D'Argent in the following terms:**

At 2.02pm, you texted again in the following terms:

"U wanted 2 convert ma kid. Do it. U wanted 2 lock me up. I did it. U wanted 2 b independent. Do it. U wana take full custdy. Do it. U wana 2 kill me. I'll do it. Wat eva makes u happy nw tel me".

**6 At about 3.27pm that afternoon, you were seen driving erratically on the Monash Freeway in the vicinity of the Heatherton Road exit, which is some three kilometres from where Ms D'Argent and Yazmina were living. You made threatening gestures to the driver of another vehicle and she and her passenger reported your behaviour and their concerns to "000". Minutes later, you texted Ms D'Argent, asking to speak to Mimi. Ms D'Argent texted back that Mimi was at the crèche, but that she would be home in 20 minutes, and when she arrived home accompanied by a girlfriend, Natalie Young, you were sitting in your car, parked out the front of her house. You then parked further down the street and Ms D'Argent went to your car and spoke to you. You told her you wanted to see your daughter and you showed her a large knife which Ms D'Argent later described as about 30 centimetres long. You told her that you had had enough of life and you showed her where you had slashed your abdomen and arms.

7 Ms D'Argent went back to her car and told Natalie that she had to get Yazmina from the crèche, as you wanted to see her. She told Ms Young that she thought you were drunk, that you had a knife and that you had slashed yourself. Ms D'Argent and Ms Young then drove to the crèche to collect Yazmina, and at 10 to 5 Ms D'Argent rang you to say that they were on their way, but when they arrived back at home, you were not there. Ms D'Argent then contacted you by phone and you came shortly thereafter, parking your car on the nature strip. Yazmina ran to you and you picked her up and placed her on your lap. You played with Yazmina in the car for about 20 minutes, Ms D'Argent, as I understand it, remaining at the car, and at one point you placed the knife on the dashboard.

8 At around 6.00pm, another friend of Ms D'Argent, Sonia Rita Mardirossion, arrived, and at a quarter past six, Ms D'Argent asked you to leave, as she had things to do with Yazmina. You asked her if you could take Yazmina to a nearby milk bar for a chocolate treat and, because it was close by, Ms D'Argent reluctantly agreed. That was the last time Ms D'Argent saw her daughter, Yazmina, alive.

9 A short time later, Ms Ocal received a call from you and she could hear your daughter talking in the background. At 6.18pm, you texted Ms D'Argent, asking her to call you, and she did. She asked where you were. You told her that you had gone to McDonald's at Fountain Gate. There followed a number of texts and telephone calls between you and Ms D'Argent. At one point, Ms Mardirossion got on the phone and told you that if you did not have the child home within ten minutes, she would call the police. You responded by abusing her. At 6.50pm, Ms D'Argent spoke to you. You said to her words to the effect, "How does it feel not to have your child when I did not have mine for three months?". Ms D'Argent told you to stop joking and you replied that you were joking and that you would be back soon. At 7.00pm Ms D'Argent contacted you again and you told her that you were in the park in Narre Warren. You asked if the police had been involved, and you told Ms D'Argent to go to the Narre Warren Police Station and withdraw her statements which she had made in respect of the breaches of the intervention order. This, she refused to do, and you told her that you would do her no favours. You were angry and terminated the call.

10 At 7.15pm, Rachelle contacted you again, and at this stage, you told her "Pay back's a bitch. How does it feel?". Rachelle pleaded with you to return the child, and you replied, "Guess what, baby, you're not getting her back. I loved you, Rachelle, and look what you've made me do". You then asked Rachelle as to whether you should kill the child by essentially driving 120 kilometres an hour into an oncoming car or use the knife and put it through her throat. You told her, "I loved you more than her, and that's why I am doing this". The call was then terminated.

11 After that call, "000" was contacted and the matter was reported as a kidnapping and a threat to kill. At 7.23pm, you posted on your Facebook page "Bout 2 kill ma kid". At 7.24pm, a message was sent to Rachelle D'Argent which stated, "I love you". At 7.32pm, another message, "It's ova I did it", and at 7.34pm you posted on your Facebook, "Pay bk u slut". At 7.36pm, Ms D'Argent sent you a message, "Ramsie, please just bring Yazmina back. We can work things out. Just bring our daughter back".

12 By this time, the police had become involved and had attended at Ms D'Argent's home. At 8.15pm, Ms D'Argent received a text from you, "Call me now", and at 8.21pm Ms D'Argent spoke to you on a speaker phone in the presence of Leading Senior Constable Flower, by this time, Ms D'Argent having been taken to the Narre Warren Police Station. You said to Ms D'Argent, "I'm going to kill her", and Ms D'Argent begged you to return the child, but you replied, "It's too late, I'm going to do it. Do you have any last words for her?", and at this point Yazmina came on the line and said, "I love you", to which Rachelle replied, "I love you too". You then terminated that call, and that was the last time that Rachelle spoke to her daughter.

13 At 8.23pm, some two minutes later, you texted Ms D'Argent in the following terms: "Too lat cya". At 8.44pm, you posted on your Facebook page, "I love you", and at 8.47pm, you texted Ms D'Argent, "Call me". She rang you, and you told her, "I've killed her. She's just lying there next to me in her leggings her top covered in blood and her guts are hanging out". Ms D'Argent told you not to be stupid and to tell her where you were. You replied, "It doesn't matter anymore. All I need to know is should I dump the body somewhere and how much time do you think I'm going to get for this? I killed my daughter, man, I killed her. I killed her to get back at you. I don't care. Even if I go behind bars, I know that you are suffering. I've killed her. I swear to God, I killed her. You know those shows on Foxtel that you watch on the crime channel with the psycho people? I feel like one of them now. Seriously, I'm sorry". That call lasted for some eight minutes.

14 At 9.27pm and 9.28pm, Ms Ocal texted you, asking where Mimi was, and at 9.30pm she received a one word reply, "Dead". You texted Ms Ocal, asking her to meet with you, and at 9.35pm, you returned to your family home at Meadow Heights. You remained in your car, but spoke to your mother, who was concerned for the whereabouts of Mimi. An older brother approached you, asking what was happening, and terse words were exchanged and you drove off.

15 At 9.44pm, you texted Ms D'Argent with the words, "I'm sorry", and eventually you met Ms Ocal at the McDonald's restaurant at Campbellfield at about 10.00pm. You told her Yazmina was dead and then you tried to change your story. You told Ms Ocal you had done something and you could not leave your vehicle where you were, so together you drove in convoy to the Merri Creek Concourse at Campbellfield. While Ms Ocal remained in her car, you set your car on fire, and then you and Ms Ocal drove off in her car.

16 At 10.24pm, you rang your mother and told her "It's all over, it's finished", and when asked where the child was, you replied, "She's in safe hands". Your mother pleaded with you to take the child home. At 10.40pm, you texted Ms D'Argent, "I hate you", and you also telephoned her and told her that you were going to hand yourself in to the Broadmeadows Police Station, and that Yazmina was in heaven. At 11.00pm, you texted Ms D'Argent, "She's in heaven. I feel like shit". At 11.20pm, you posted on your Facebook page, "I love you Mimi". At 11.30pm, you and Ms Ocal were intercepted by the police in Epping. You were both taken into custody, but Ms Ocal, after further investigation, was released. She was not complicit in your crime in any way.

17 At the time of your arrest, you were spoken to by Detective Sergeant David Butler, who asked you if you knew why the police were there, and you replied "Yes". "Why do you think that is?". "Because I've done something really bad". "What do you mean by that?". "I killed my daughter". When asked where she was, you told the police you had placed her at Shannon Rise, Greenvale, near a display home and you agreed to take the police to that location.

18 En route, you told Detective Butler that you had stabbed your daughter multiple times and that this had occurred in Providence Road, Greenvale, near the airport and that you had taken her body to Shannon Rise at around 7.00 or 8.00pm when the sun was going down. You also told the police that you had disposed of the knife elsewhere.

19 You sat with Constable Franco in the rear of the police car in Somerton Road, Greenvale, while the police were searching for Yazmina's body. By this time, the canine unit had been called in and one dog had been left in the rear of that unit's vehicle. You were crying and asking yourself why you had done it, you said you were drunk and stupid, and said to Constable Franco, "Just put me in a room to rot. That dog's psycho, you should put me in there with them. I deserve a belting. Can you give me a belting? Can you guys give me a hiding please, and I want to die now, I've always wanted to do it". Then you said to Constable Franco, "No, I want to live so I could suffer the pain for it". And then, "Ah, this is scary, what the fuck did I do? Why?".

20 At 1.37am, police found Yazmina's body in scrubland at the northern end of the Greenvale Reservoir Reserve. She was lying on her right side, fully clothed, with multiple stab wounds to her chest and abdomen, which had exposed her organs, and a sizeable wound was observable on her right elbow. A further search located what has been described as a "fantasy style knife".

21 You were initially assessed as unfit to be interviewed, but after six hours sleep, you were declared fit and thus an interview commenced at 4.57pm later that day, 18 November 2010, in the presence of a third person. You made admissions to the police but, when questioned directly about the stabbing, you became emotional and declined to answer those questions. The police told you that they had located a knife in the scrub at the Merri Concourse, and you told them that that would have been the knife that you used. You had thrown it there to hide it because, you told them, you were embarrassed by the size of it.

22 At question 232, you told them, "I was burning the car and I'd seen that knife, I just got it and threw it. I don't know, I didn't want youse to see it because the size of the knife and the size of my daughter, the knife's bigger than her, it's a fucking embarrassment". You admitted setting fire to your car because you said it had many bad memories of your drug use, and you told the police, as I understand it, that in the days leading up to this, you wanted to punish yourself, but you did not, "have the balls to kill" yourself (question 224).

23 Also on 18 November 2010, a post-mortem was conducted by Dr Melissa Baker. She observed a large number of stab wounds noted on the lower chest and abdomen, with extrusion of bowel through the wounds. Stab wounds were also noted to the back. She determined the cause of death was multiple stab wounds to the chest and abdomen, with the mechanism of death being one of acute blood loss, and with regard to the blood loss, the most significant injuries involved the aorta and the left renal artery. Dr Baker opined that at least a moderate degree of force was required to inflict the injuries.

24 Victim Impact Statements made on behalf of Yazmina's grandmother, Micheline D'Argent, and Yazmina's mother, Rachelle, were tendered in evidence as Exhibits "A" and "B" respectively. Rachelle D'Argent read her statement to the Court. She recounted the shock and horror of the events of that night, and in the days after and her irreplaceable loss, grief and sadness. Her reading of that statement, bravely done, no doubt as a testament to her daughter, appeared to move you to tears. No sentence this Court can impose can restore to Rachelle D'Argent or to Yazmina's grandmother, Micheline D'Argent, their loved daughter and granddaughter, and no sentence this Court can impose can mitigate the consequences of your conduct to them.

25 You are 24 years old, one of five children born to your parents, Mehmet and Zeynet. Your father came to Australia from Turkey at the age of six. At the age of 17, he returned to Turkey and married your mother, who was 16 at the time. Your father has worked as a taxi driver and, presently, as a tow truck driver with the RACV. He is regarded as a hard working man and well respected in the Turkish community. He is regarded by you as patriarchal and authoritarian, stern and controlling in his dealings with the family. Your mother, who also worked for many years until she assumed the full time care of your grandmother, is regarded by you as a paragon of womanhood; a loving, caring mother and wife.

26 You attended Campbellfield Primary School and Fawkner Secondary College to Year 9. You had been very good at sport, but in secondary school, your academic performance deteriorated while you continued to enjoy sporting and social success. You left school at 15 and you worked that year at a local panel beaters and then doing some house painting and roof tiling. In 2005, your father sold the family home and your parents, you and one of your brothers moved to Griffith in New South Wales, where you worked as farm labourers. You had already met Rachelle D'Argent at that stage, and so she, accompanied by her mother, travelled to Griffith to join you. Your father was working and living at a farm away from Griffith, and your mother was pregnant and also working. You had been expected to remain in Griffith to assume responsibility for the family. Instead, you and Rachelle returned to Melbourne. In your mind, your counsel Mr Meredith submitted, this had meant choosing your new relationship above your loyalty to your family; a significant decision and one, he said, which represented the emotional capital you had invested in your relationship with Rachelle.

27 You and Rachelle went to live with her father in Hampton Park. An incident occurred in January 2006 which involved you stabbing yourself with two steak knives and threatening Rachelle by holding a knife to her throat. The police were called, capsicum spray was used to subdue you, and you were ultimately hospitalised and then remanded in custody. Upon your release, you returned to live with your family in Griffith until they eventually returned to Melbourne in 2006, initially living in Glenroy and then purchasing the family home where you had most recently lived in Meadow Heights.

28 On 19 February 2007, in respect of those matters you were convicted of unlawful assault, threat to kill, threatening serious injury and criminal damage. You were sentenced to three months' imprisonment wholly suspended for two years. That sentence was in fact breached in June 2008 when you were dealt with for driving charges, and the sentence of three months' imprisonment was restored.

29 You resumed your relationship with Rachelle, but each of you continued to live at your respective parents' home. When Rachelle was seven months pregnant, you began living together with Ms D'Argent's mother at Hallam. By then, you were 20 and working as an apprentice panel beater. When you went to gaol in respect of the breach of the suspended sentence in June 2008, this affected your apprenticeship and, when you were released, you went back to living with Rachelle, but the relationship was under considerable stress and you separated in January 2009. You returned to live with your family at Meadow Heights.

30 At this point, Rachelle took out a number of intervention orders, which she said in her statement she would ultimately let lapse.

31 In June 2009, you and Rachelle resumed living together, renting a house at Nicholson Crescent, Meadow Heights. You were working full time in the bricklaying trade. When the lease on that property expired in June or July 2010, you again separated. Rachelle rented a unit in Hallam, and you again returned to live with your parents at Meadow Heights. At this time, it was said that you were using amphetamines and working sporadically.

32 During 2009, you participated in a program operated by Kildonian Uniting Care directed at male family violence. In a letter dated 9 November 2009 from the coordinator of that program and which appears to have been written in anticipation of your Court appearance later that month, you are described as displaying empathy for your actions and how your actions impact upon others, and you are also described as "a young man with very strong views that will require ongoing work in the area of change".

33 On 19 November 2009, you were convicted of recklessly causing injury, which related to an incident where you hit Rachelle. On that occasion, you were sentenced two months' imprisonment, which was wholly suspended for 12 months. By reason of that sentence, it follows that you were serving a suspended sentence of imprisonment at the time you committed this offence.

34 In September 2010, you expressed interest in the family dispute resolution program operated by the Family Relationships Centre at Broadmeadows, but you did not progress beyond the initial inquiry (Exhibit "3"). You were also referred by Centrelink to a psychologist, Mr Peter Stanislawski. His report, dated 8 June 2011, was tendered in evidence as Exhibit "4". That referral had identified what was said to be three barriers to your employment, noted as follows; your limited employment history, your social isolation and anger. (Ex-offender history, suspended sentence).[1] It appears that you attended four sessions and the discussions concerned your cannabis use and dependence, which Mr Stanislawski said you appeared to be motivated to address. You told Mr Stanislawski that you regretted being violent towards your ex-partner and that you wanted to be a good father to your daughter. Mr Meredith submitted that this demonstrated that, at least at this time of your life, you were willing to obtain professional help and access the appropriate channels and you were displaying a degree of insight and were prepared to make changes, and that these were the prevailing circumstances which brought you to the events of 17 November 2010.

35 Mr Meredith submitted that after you returned Yazmina to her mother on that Sunday afternoon, you went to a park and smoked cannabis and began to ruminate on your place in your daughter's life. Apparently, you could see yourself being squeezed out of it, with Rachelle moving on with her life (she having met another man), but you being constrained by the intervention orders. You went to work the following day and, that night, went out with Rose Ocal, staying out all night. You got drunk and went to work without sleep, smoked cannabis at work, knocked off early and went to see Rose. It was at that time she told you that the relationship was moving too fast, and it appears that you reacted badly. You sent her a text in Turkish, saying, "You were my last breath, but I'm not shit. You've burnt my heart", and Mr Meredith submitted that you felt worthless and overwhelmed, and it was in these circumstances that you purchased alcohol, went to a park, smoked cannabis and drank, and started to slash your stomach and arms.

36 You eventually went to the Broadmeadows Police Station. You had told family members that you were going to walk into the police station with a knife so that the police would either arrest you or shoot you, because you would be going to gaol for the outstanding driving matters and the breach of the intervention order. Your father and your brother's father-in-law attended at the car-park of the police station and eventually got you away from there. In the process, you had been extremely abusive to your father and you were drunk and saying things like, "Life is at an end for me". This, Mr Meredith submitted, was indicative of how fraught you had become. You slept that night in the garage at your brother's house and went back home and then to work at about 6.30am but did little work and then left.

37 You again purchased alcohol and drank it, and went to a local park and again started cutting yourself. You then visited your grandmother's grave and that of a close friend, and you continued to drink. Then you sent the text, "RIP Ramazan Kerem Acar 1987-2010". These were then the circumstances immediately prior to your attending Rachelle's home that afternoon.

38 Mr Meredith has submitted that you did not attend at the house with the knife with the intention to do what you did, but that this was a situation which evolved and unfolded after you had taken the child with you, and that your threatening texts were part of the dynamics of what was occurring between you and Rachelle in the context of the intervention order and the frustration you felt with regard to access. In particular, reference was made to the text, "It's ova. I did it", which was sent at 7.32pm when Yazmina was in fact still alive. This, in Mr Meredith's submission, did not indicate that you had at this stage formed an intention to kill your daughter, but rather was to be regarded as an example of you raising the stakes. Mr Meredith submitted that your state of mind was that you assumed the police had become involved, you had now breached the intervention order in an unparalleled way, you had outstanding matters hanging over your head and you thought, effectively by your conduct, you had lost what slim chance you had to maintain access to your daughter, and, as a result, he said, of all those things coming down on top of you, you did what you did. Such an analysis, which I appreciate you effectively recounted to Dr Sullivan, is not consistent either with your answers in your record of interview or with what you were in fact doing in the hour or so up to the time that Mimi met her death and completely ignores the fact that, at the time, you expressed your motivation for killing your daughter as "payback" and after you had killed Yazmina you told Ms D'Argent "I've killed her to get back at you".

39 I accept that what happened via text and telephone was occurring within the dynamics of the relationship between you and Ms D'Argent and that in the beginning, you were taunting Ms D'Argent and seeking to increase her stress and anxiety. You admitted to the police that the trip to the milk bar had been a ruse, and I accept that it may not have been your intention to kill your daughter then, but I am satisfied that you were intending to kill your child; certainly from the time at 7.15pm you spoke to Rachelle by telephone asking her how you should kill your child and telling her "Payback's a bitch. How does it feel?". Certainly, by the time you had posted on your Facebook page at 7.23pm "Bout 2 kill ma kid" and your succinct statement as to your motive also posted on Facebook at 7.34pm "Paybk u slut", no other inference could be reasonably drawn from that fact, given the context of the previous conversations and what subsequently transpired; driving around the suburbs, taunting Rachelle, demanding that she withdraw the intervention order, threatening to kill your daughter, then cruelly posting on Facebook that you had killed her when you had not, and then the unmistakably chilling act of putting your daughter on the phone, having told her mother, "It's too late, I'm going to do it, I'm going to do it. Do you have any last words for her?"

40 The only descriptions as to what actually occurred are contained in the report of Dr Danny Sullivan, Consultant Psychiatrist, which was tendered in evidence as Exhibit "2" and the report of Mr Bob Ives, Psychologist, whose report dated 13 February 2011 was tendered in evidence as Exhibit "3". You told Dr Sullivan that when you initially stated that you would kill your daughter, you did not mean it and you did not think it through. You said you drove around the city to Broadmeadows, but got lost, ending up at the airport. You became increasingly panicked, thinking that the police would be after you and that you had been drink driving and concerned that you would never see your daughter again. You told him that you felt you could not give her back. You told Dr Sullivan, as he reported it: "When he determined to kill his daughter, he stated she was playing outside the car and as he exited the car with the knife, he said that it felt slow-mo. He stated he remembered a feeling of rage and noted a worried look in her eyes but was unable to describe more". You told Mr Bob Ives that your daughter had started to cry and looked at you in fear "as though he were the devil".

41 As stated previously, in the record of interview, you declined to answer questions about what you did, but you did tell the police that alcohol, tiredness and frustration had played a part (question 222), and that Rachelle had wanted to take full custody and you had wanted her to feel how you felt, "She took that kid away from me and I went through hell. She won't understand what I went through, like, I wanted her to feel it". You also told the police that you had the knife in the car for three or four weeks, it had been left there by a friend, and that you were surprised that Rachelle had let you take the child to the shops (question 172):**

"I was pretty surprised too when she let me go, like, all she had to do was call the cops and like, nothing would have happened, fucking idiot, and the night before this I was going to hand myself in to the cops, coz I was cutting myself. I was just fed up, man, just fed up with everything. Nothing goes my way. I didn't know why she let me go, coz I was sitting there, just having a good time with my kid right next to me and it was all nice. It was all smiles and laughs".

"She put her trust back in me to like see my kid and everything was going fine, and she went and got the kid and she came back to the property and then my kid ran up, she ran to my car with a big smile. She was happy to see me, and I put her in my car and she was playing in my car and she was just scribbling with pens and stuff and then we sat down for a nice probably 45 minutes with mum standing next to the car just watching over us, coz I don't think she trusts me and I asked her, 'I want to take my kid to the shops', I really wanted to take my kid with me. I just wanted to take her ... I asked her do you want anything from the shops just to make her believe me so she thinks I'm really going there coz I'm not, so she thinks that I'm not lying".

**43 Then you told the police how you took off and travelled along the Monash Freeway because that freeway did not have any lights and you thought that Rachelle would have called the police and they would have been following you.

44 You have been in custody since your arrest on 18 November 2010. At the committal on 3 May 2011, you indicated your plea of guilty and you were originally arraigned in this Court on 18 May 2011 and did in fact plead guilty. You have admitted 31 prior convictions and appearances, including Children's Court matters, various driving offences and, in January 2007, possession of an unregistered general category handgun, which was said to be a cigarette lighter in the shape of a handgun which you had had with you on a train, for which you were fined $750. Your prior convictions also include the offences of unlawful assault, threat to kill, threatening serious injury, criminal damage and recklessly causing injury, which related to the incidents concerning Ms D'Argent.

45 Also, on 5 April 2011, that is, while you have been in custody, you were dealt with for breach of the suspended sentence which was imposed in respect of the offence of recklessly causing injury in November 2009. You have been convicted of intentionally damaging property and tampering with a motor vehicle, which related to an incident on 12 September 2010 when you slashed the tyres of Ms D'Argent's car and carved the word "slut" into a wooden pole outside her home. You were sentenced to a total effective sentence of two months' imprisonment in respect of those matters.

46 Since being held on remand, you were accommodated initially at the Metropolitan Remand Centre as a protective prisoner. As a result of publicity concerning the committal, authorities regarded your life as in jeopardy and you were transferred to Port Phillip Prison and held in special protection. You are currently on anti-depressants and it appears that you spend the hours in lock-down, ruminating over your conduct. You feel as if you are a marked man within the system and you are concerned about what might happen to you.

47 The report of Mr Bob Ives details your personal history and the history of your relationship with Ms D'Argent, and the extensive testing and analysis of your personality undertaken by him. Mr Ives has assessed you as having a high average IQ of 106. You reported a history of cutting yourself from the age of 13 and Mr Ives opined that this was most likely to be an indication of emotional intensity and an attempt to express and control emotional stress, particularly conflict through extreme action.[2] You also, in his opinion, suffer from particularly rigid thought patterns, in that you do not seem to be able to moderate or compromise between two opposing points of view and, given your rigid view, Mr Ives thought it likely that you meet the criteria of borderline personality disorder or paranoid personality disorder. Mr Ives noted it to be of interest that while you appear to express profound and genuine remorse, as he said, "He does not appear to question the nature of his views of the world which underpinned this tragedy".[3] Mr Ives also noted your history of heavy drug use, including amphetamine and ice, and that you were drinking and using drugs on 17 November and in the days leading up to it.

48 Dr Danny Sullivan, in his report dated 8 June 2011, recounted your history of drug use; cannabis since you were 13, amphetamines and ice, the latter while you were in Griffith. In his opinion, you had a clear diagnosis of poly substance abuse, but at the time of the offence, alcohol was the only drug demonstrably associated with the offending. Dr Sullivan was of the view that you had a mixed personality disorder with borderline antisocial and narcissistic traits. You described to him longstanding emotional volatility and difficulties constraining anger. You have resorted to substance use to deal with mood problems. You had a propensity to self-harm, but in his view, your suicidal statements before the offence were neither persistent nor pervasive.

49 You described to Dr Sullivan a preoccupation with what was referred to as "thug life", and Dr Sullivan referred to witness statements which described you in the relationship with Ms D'Argent as domineering, aggressive and entitled.

50 Dr Sullivan was of the opinion that there was no sign of significant cognitive impairment, no indication of psychotic illness or psychotic symptoms apparent at the time of the offence, although you may have had some depressive symptoms.

51 At the time of the offence, Dr Sullivan said you appeared to have been consumed with hatred for your ex-partner and a desire to punish her for restricting access to your daughter, despite your violence towards Ms D'Argent. There were no psychotic elements to your behaviour at the time, although you were clearly intoxicated with alcohol. Dr Sullivan was of the opinion that your personality and substance intoxication were relevant to the offence in that you were unable to think calmly and clearly or make rational choices, but he could not determine with confidence whether this was due to your intoxication or personality. You were, he said, disinhibited due to intoxication, your judgment was impaired and you were unable to appreciate the wrongfulness of your conduct because you were consumed with hatred for your ex-partner and sought to punish her.

52 Dr Sullivan also gave evidence on the plea, after describing that the term "personality disorder" refers to persistent, pervasive and maladaptive difficulties which are not the result of a supervening mental illness but are part of a person's character and temperament. He went on to say that he was not able to distinguish which aspect of your conduct was simply attributable to your personality and which to substance use and intoxication. He considered that your were significantly intoxicated and consequently disinhibited and that your judgment was impaired and he would attribute that to both personality and the substance use. He was of the belief that your significant anger at the time was associated with an impairment in your appreciation of the wrongfulness of the conduct but he said that was mixed with the effects of substance abuse. As I understand his evidence, persons with a personality disorder may act impulsively and have difficulties handling anger and in his view anger was a significant part of your offending behaviour, and an inability to find a more constructive way of manifesting your anger was germane to the offence. In his opinion, you were consumed with hatred for Ms D'Argent and this impeded your appreciation of the wrongfulness of your conduct but on some level you knew of the wrongfulness but on another level you were blinded by that hatred. He was of the opinion that there was, he said, a causal chain which mediated through your inability to manage anger so that difficulties in anger control were a critical part of the offence and underlying the difficulties in emotional control, were both your personality disorder and substance use. In cross-examination, he confirmed that you suffered no significant cognitive impairment, no indication of psychotic illness or psychotic symptoms at the time of the offending, that you were capable of understanding that to stab your child was wrong, that you were consumed with hatred for your ex-partner and that you desired to punish her for restricting you from access to your daughter. And he agreed that this was an overwhelming picture of a man who had become so consumed with punishing his ex-partner that everything else fell by the wayside. Dr Sullivan believed that there was an impairment of your appreciation of the wrongfulness of your conduct, but not to the level that you did not understand that it was wrong.

53 In Dr Sullivan's opinion, you are immature and your adult personality is yet to form, noting as he did, that that would now occur in a prison environment. In his opinion, the degree of the disorder tends to diminish over time. Nonetheless, in regard to your prospects for rehabilitation, he would be fairly guarded about your prognosis, and he said he was guardedly optimistic that you would learn emotional control in the years to come, no doubt with the intervention of therapeutic programs and the like.

54 Mr Meredith submitted that you are remorseful for your conduct. He submitted that you acknowledged responsibility for your actions to the police at the time of your arrest, in the car when you spoke with Constable Franco and in your record of interview. I accept that when you spoke with Constable Franco that this was the beginning of the realisation of the enormity of what you had done. You went on to ask Constable Franco, "Am I going to be on the news? My face and all?". Then you expressed a concern for your safety in gaol and asked him, "Is this murder?". He replied, "What do you think?", and you said, "Yes, but I was drunk when it happened. I can't believe it". You also asked him, "How long do you think I'll get? Do you reckon it may be life?", and then you were crying and asked, "Why did I do it?". So although you may be said to be there expressing remorse, you were also expressing concern for your own predicament. Mr Meredith submitted that you have engraved black marks under your eyes, to represent tears, and Yazmina's initials on your stomach so as to represent your remorse and repentance. Letters from your two brothers and sister-in-law tendered in evidence as Exhibit "7" also state that you have expressed to them your remorse.

55 Mr Meredith submitted that it is appropriate to impose a head sentence with a non-parole period, as distinct from a sentence of life imprisonment with a non-parole period. In support of that submission, he relied upon your age; your plea of guilty, particularly given at the earliest opportunity which, he said, was deserving of a clear and transparent discount; your mental state at the time of the offending which, he submitted, invited the application of the principles of Verdins' case, so that your moral culpability is reduced and considerations of specific and general deterrence should be moderated. Mr Meredith also relied upon your previous preparedness to engage in counselling as indicative of a degree of insight that you had then attained, and the lengthy period that you will spend in custody which, he said, together point to some positive prospects for your rehabilitation.

56 Mr Rose SC, who appeared on behalf of the Crown, submitted that a life sentence was here appropriate and that a non-parole period in the range of 29 to 33 years is appropriate in all the circumstances. Mr Rose submitted that Verdins did not apply and that the principal factors in your favour in mitigation of the penalty to be imposed are your plea of guilty and your age. He further submitted that there was very little in the way of remorse and none in respect of the consequences of your actions to Ms D'Argent, her family and, indeed, your family. Mr Rose described this as a horrific killing[4] and that you were an angry young man, consumed by hatred of your former partner and that hatred, being all-consuming, has overtaken any thought of the welfare of your child.

57 I accept that you admitted to Detective Sergeant Butler and to Constable Franco and to the interviewing police in your record of interview your responsibility for killing your daughter, but that acknowledgment of responsibility must be placed in the context of the record of interview in which you expressed very little, if any, remorse and where you were also prepared to blame Ms D'Argent, drugs, alcohol and frustration and, indeed, as reported by Mr Ives, you were still prepared to blame alcohol and protracted drug use and, indeed to blame others, as reported by him; Ms D'Argent for not stopping you from driving off; the police for not arresting you for the earlier for breaches of intervention orders; and your father for not letting you hand yourself into the Broadmeadows Police Station the night before. Dr Sullivan, in his report, stated that you now appreciate that you have offended egregiously in killing your daughter, and that you will take some time to process the magnitude of your actions. Dr Sullivan considered your guilty plea was a significant step towards acceptance of responsibility and, as stated previously, you expressed to Mr Ives what he regarded as profound and genuine remorse. I accept that you are remorseful for your conduct, but you have yet to express any remorse and contrition for the irreparable pain and loss you have caused the mother of your daughter, her family and, indeed, your own family.

58 I have had due regard to the principles of Verdins and Tsiaras' case and have come to the view that they are not here applicable so as to reduce your moral culpability for the offending or to effect a moderation in specific and general deterrence. The law allows that a disorder falling short of serious psychiatric illness may operate to reduce the moral culpability for the offending and consequently considerations of general and specific deterrence may be moderated or eliminated in the appropriate case. In order to attract the application of the principles, there must be a causal connection between the offending conduct and the disorder.

59 Dr Sullivan cannot say whether your anger, which, he said, was a critical part of your offending, was due to your intoxication or your personality, and in those circumstances I am satisfied that a causal connection has not been established. In Dr Sullivan's opinion, your judgment was impaired by reason of your intoxication, you knew what you were doing and, although consumed by hatred, you knew it was wrong. I am satisfied that what was impairing your judgment at the time was your hatred and your desire for revenge in the context of you having consumed alcohol. As such, considerations which may apply to reduce your moral culpability are here absent. It follows then that you remain an appropriate vehicle for general and specific deterrence. There is nothing in your presentation, that is, in the nature and the severity of your personality disorder, which would lead to a moderation of specific and general deterrence. Indeed, in the circumstances before the Court, those two sentencing considerations carry very considerable weight. Further, there was no evidence or submission made that by reason of your personality disorder, a sentence of imprisonment would weigh more heavily upon you or would have an adverse effect upon your mental health. Accordingly, I am satisfied that the principles of Verdins and Tsiaras are not here applicable to either reduce the seriousness of your offending, your moral culpability in respect of it or to moderate considerations of general and specific deterrence.

60 Certainly, I accept the evidence that you are an immature young man with very fixed views. You have had problems with anger and, indeed, you seek emotional release from self-harming and I accept that in the days leading up to this offence you had been drinking heavily, at times smoking cannabis, and appeared to be suffering a degree of emotional turmoil and I take into account all of those matters.

61 Any sentence I impose must address the nature and gravity of the offence here committed. I accept the Crown's submission that this was a chilling and horrific murder. More than that, the victim was your infant daughter, and she was killed by the one man in the world whose duty it was to love, nurture and protect her. As such, your conduct was a fundamental breach of the trust that reposes between parent and child; a fundamental breach of a parent's most fundamental obligation. Further, you committed this murder for the worst possible motives; revenge and spite. You killed your daughter to get back at her mother. You used your daughter, an innocent victim, as the instrument of your overarching desire to inflict pain on your former partner. This murder occurred in the context of a relationship which had, at times, been violent, where intervention orders were in place and where you were serving the operational period of a suspended sentence imposed in respect of an assault on Ms D'Argent. Despite this, Ms D'Argent was fundamentally well disposed towards you. She was cooperating with you and had recently permitted you to have overnight access to Yazmina, and it appears she was prepared to encourage your relationship with her.

62 So stated, this offending places your conduct in the category of the worst murders. Any sentence I impose must serve to punish you and act in denunciation of your conduct. Further, by reason of your conviction in respect of the offence of threat to kill, you are to be sentenced as a serious violent offender. As such, pursuant to section 6D of the Sentencing Act the protection of the community is the principal purpose for which the sentence is imposed. I do not, however, propose to impose a sentence which is longer than that which is proportionate to the gravity of the offence, as I regard the sentence I propose to impose as one which will protect the community from you for a very long time. Any sentence I impose must serve to specifically deter you from re-offending and must seek to deter like-minded members of the community so that they will know that life is sacrosanct and if they choose to act as you have done, they can expect stern and salutary punishment.

63 In sentencing you, I take into account your plea of guilty and give you a discount for it. I take into account also that you have saved Rachelle D'Argent and her family the ordeal of a trial and the community the expense of one, and that your plea of guilty has facilitated the course of justice. I take into account your relatively young age and that you have admitted your responsibility for your conduct and have expressed remorse to the degree that you have. Taking into account all of these matters, I am nonetheless satisfied, however, that given the nature and gravity of this offence, and despite your young age and your plea of guilty, a sentence of life imprisonment is the only appropriate sentence.

64 Given your young age, and it is hoped that with the continued support of your family, your evolving maturity and insight, and with the assistance of professional therapeutic intervention, your rehabilitation, one hopes, may well be achievable, although I note Dr Sullivan's cautious prognosis in that regard. Nonetheless, so as to enhance your prospects for rehabilitation and not to impose a sentence which is crushing and taking into account your plea of guilty and all matters which go in your favour, and acknowledging as I do that you may well have a very hard time of it in prison and as such prison may be more onerous for you, I propose to order that you serve a period of 33 years before becoming eligible for parole.

65 Accordingly for the crime of murder you are convicted and sentenced to imprisonment for the term of your natural life and I order that you serve a period of 33 years before becoming eligible for parole.

66 I declare that you have already served by way of pre-sentence detention a period of 168 days.

67 Pursuant to s 6AAA of the Sentencing Act, were it not for your plea of guilty, a sentence of life imprisonment would have been imposed with a non-parole period in the vicinity of 38 years, if at all.**