R v Hachem

Background

1. Samah Baker and James Hachem first met when they worked together at Yodel, a company with offices at Macquarie Park. In 2015, they commenced an intimate relationship.
2. At the end of October 2015, there was evidence of an incident when the offender and Ms Baker stayed together in a hotel at Macquarie Park and during the night she contacted a friend, Mr Perera, to come and collect her from that area. Ms Baker was upset and said to Mr Perera, "I can't believe he hit me", although she did not identify who "he" was. Mr Perera observed some bruising to Ms Baker. The next morning, the offender and Ms Baker exchanged text messages in which he expressed regret and remorse for what had occurred including: "[JH]: I will not blame the alcohol u had. I should know better." "I didn't believe I could do that either." "How could an amazing night go so wrong. It's like someone flicked a switched in my head and I went from so happy and calm to miserable and angry. You deserve real beauty and I what you to start looking for it. At least u can rule me out. That's something I guess."
3. Accepting the offender's submission, I was not satisfied beyond reasonable doubt that the offender unlawfully assaulted Ms Baker on this occasion. Nonetheless, I was satisfied to the requisite standard that during this incident the offender became angry with Ms Baker causing him to do something which he did not believe he would normally do and of which he was ashamed. The incident also gave an indication of the volatile and angry nature of some of the offender's reactions to the deceased in the context of his relationship with her.
4. On 29 March 2016, there were text messages exchanged between the offender and Ms Baker which related to an incident in which the deceased had, in an intimate context, called the offender "Sam", instead of "James". A former boyfriend of the deceased, Selim, was also known as Sam. The text messages demonstrated that the offender was angry and jealous as a result of being called by another man's name. Those messages included: "[JH] Fuck you for calling me by another guys name. Fuck you for lying and trying to sleep it off like it's not a big deal. I'd Think if you loved me you'd atleast remember my name." "[SB] We are thru we are thru forever you violent ignorant piece of shit. [JH] Ignorant??!!! You called me by another mans name after we had sex and I am ignorant??? [JH] I am a piece of shit because I couldn't sleep next to someone I love because she is thinking about another man??? I'm a piece of shit" "[JH] What sort of person hugs and sleeps next to a woman and holds that woman tight after she says good night Sam!!! When his name is fuk JAMES!!!!!"
5. In addition, the exchange of text messages included Ms Baker accusing the offender of being violent towards her and his response that it was an accident. Those messages included: "[SB] Yea I deserved to get whacked in the face right? And u deserve the karma that you will get [JH] Yeah I do. [JH] You will never be the victim. [SB] U choose not to believe me and get violence I chose to stay by your side for all the lies and crap you did you disgust me u are a terrible person you see the difference between us [JH] Whacked in the face. Yeah okay. You came running to the door after that. Snatched my keys from me so I couldn't leave. You didn't seem fussed about that whack in the face then. Which was an accident. You seemed pissed off that I was leaving." "[SB] No I don't want to see because u don't trust me and because you whacked an iPad in face and wrist" [JH] It's okay. It's fine. [JH] Your right [SB] I don't want to see u because u've done so much crap to me and I let it go and you think I'm lying for an instant and get really violent at me".
6. On 30 March 2016, the deceased sent a photograph of her wrist, which was bruised, together with the message, "Your doing" to which the offender replied, "Oh wow. I thought it hit your face" and "Firstly. Sorry. Secondly you bruise so easily". Ms Baker responded, "It hit my face then landed on my wrist".
7. Once again, while I am not satisfied beyond reasonable doubt that any violent conduct on the part of the offender was deliberate and not accidental, I do accept that this incident demonstrated the depth of the offender's feelings for Ms Baker, his reactive nature and extreme jealousy when she mentioned another man's name. It also demonstrated the potential for some form of violence between them during such disagreements.
8. Nonetheless, the offender and the deceased reconciled to the extent that, between April and October 2016, they shared a unit in Monterey.
9. Apart from when he lived in Monterey, the offender generally lived at his parents' home in Hurstville Grove. Ms Baker did not visit him at his parents' house. The members of her family never knowingly met the offender and were not aware of her involvement with the offender until after her death.
10. On 7 August 2017, Ms Baker moved to Brisbane.
11. Between 7 August 2017 and 22 January 2018, while Ms Baker lived in Brisbane, she and the offender stayed in a hotel together in Queensland on many occasions. On two of those occasions, Ms Baker called 000 and reported that the offender had been violent towards her.
12. The first 000 call occurred on 4 September 2017, when Ms Baker and the offender stayed at a hotel in Surfers Paradise. On that day, Ms Baker made a 000 call in which she stated that she was "just attacked by my boyfriend in the room… it was really bad he tried to kill me … he tried to choke me … today was really bad. This is not the first time but today was really bad. … like it really escalated." The police attended but, by the time they arrived, Ms Baker had left the hotel. The police officers spoke to the offender who said that there had been an argument and Ms Baker had damaged his headphones and that he was going to take a flight back to Sydney. The offender offered for police to speak to Ms Baker using his telephone, and they accepted. Ms Baker told police there had been a verbal argument, she did not want police involved and she did not have any plans to see the offender again. It was determined that no further police action was required. Ms Baker, about a month and a half later, referred to this incident as involving the offender choking her and threatening to kill her in messages which she sent to a friend, Ms Penna.
13. Approximately three and a half weeks later, on 28 September 2017, the offender bought an Apple iPhone 8 for Ms Baker.
14. On 16 October 2017, the offender and Ms Baker were staying together in a hotel in Brisbane. On that day, Ms Baker made her second 000 call in which she stated that she was staying at the Meriton Suites and had been "attacked by her boyfriend/ex-boyfriend" who was from Sydney. She enquired whether an AVO could be put in place and said she had been "kicked in the gut by the person". Police attended the hotel but both the offender and the deceased had left by that time. Later, two police officers attended Ms Baker's home in Brisbane where she repeated, in substance, what had been said in the 000 call. On this occasion, police did not observe any injuries and Ms Baker said that she did not want to make a complaint but said she would make a private application for a no contact protection order. It did not appear that she ever made such an application. Police also contacted the offender concerning this incident and he maintained that Ms Baker was the aggressor and he had pushed her off and he also denied kicking her. He said that he was returning to Sydney that day and had no plans ever to see her again. Police offered the offender a police referral but he did not accept it and they took no further action. Later that same day, Ms Baker exchanged messages with Ms Penna concerning what occurred. The details given in that exchange were not entirely consistent with other information provided.
15. Once again, I am not satisfied beyond reasonable doubt that the offender committed criminal offences by choking or assaulting the deceased on 4 September and 16 October 2017 in Queensland. Nonetheless, I am satisfied to the requisite standard that on each occasion there was an altercation between the offender and Ms Baker involving some physical violence. While I cannot determine precisely what occurred on each of these two occasions, the altercation was sufficiently serious to cause Ms Baker to make the calls to 000 because she feared, at the time of the calls, for her safety in light of what had occurred between her and Mr Hachem.
16. The evidence concerning the four incidents established, in my view, that the relationship between the offender and Ms Baker was volatile, involved physical violence from time to time and was not just a casual intimate relationship with no strong feelings on either side.
17. This is further supported by the undated entry in Ms Baker's notebook as follows: "My Lord and God I love you I want to be near I want to recommit to you, I'm so angry at what James did to me for physically assaulting me for abusing me for making me fele fear I know he was lying I know he was talking to someone".
18. Evidence from friends of the deceased established that Ms Baker made numerous attempts to end her relationship with the offender but was unsuccessful in doing so. A feature of their relationship was that the offender continued to contact Ms Baker and make arrangements to see her whether she said she wanted this or not. In addition, the offender regularly lent or gave her money, when she asked for it, and paid for food, for credit for her mobile phone and for household items as well as arranging and paying for their accommodation together in hotels.
19. In her notebook entry dated 23 November 2017, Ms Baker wrote "leaving Sydney to escape that place and James" and "I'm so angry so angry at him I hate him and I hate myself even more for asking for his help whats wrong with me why am I always asking for help."
20. In late January 2018, Ms Baker returned to Sydney and, after unsuccessfully exploring involvement in religious groups and retreats, she returned to live with her parents for a short time.
21. In April 2018, Ms Baker commenced employment at Lidcombe TAFE.
22. In July 2018, Ms Baker moved into a shared unit in Parramatta. The unit was on the top floor of a three-storey block, which did not have a lift.
23. In July 2018, Ms Baker met Mr Dani Saka through her work at TAFE and they subsequently started meeting up once or twice a week. While Ms Baker indicated a desire to commence a relationship with him, Mr Saka said he preferred just to stay friends, although they did have sexual intercourse on one occasion approximately two months after meeting.
24. On 28 August 2018, the offender sent a text message to Ms Baker indicating that he was aware that she was seeing a person he described as "DANIIIII BOY".
25. In September 2018, Ms Baker and the offender attended the Floriade festival in Canberra together.
26. On the night of 26 October 2018, Ms Baker and Mr Saka stayed together at Meriton Suites North Ryde.
27. On the afternoon of the following day, 27 October 2018, Ms Baker and the offender exchanged text messages in which she asked the offender to recharge her phone for $10, which he did. When the offender asked whether the deceased was "busy all day and night again" and she responded that she was, he texted "I know that you fuked someone last night. It's so obvious" and he asked her a number of times to repay the $10 as well as making other offensive comments.
28. In November 2018, Ms Baker commenced employment at Ultimo TAFE.
29. At the end of November and into early December 2018, the deceased was apparently not seeing either Mr Saka or the offender.

December 2018

1. On 7 December 2018, the offender arranged to visit the deceased late at night. In the early hours of 8 December 2018, Ms Baker in a distressed state telephoned a friend telling her that someone had come to her house and made her feel like she was worth nothing and that the person always threw in her face that the person had helped her out, without identifying who the person was. Not long after that, there was an exchange of text messages between Ms Baker and the offender in which he demanded, in offensive terms, that she repay him "50$ for sub way". The offender indicated that he believed he had observed a bruise on the deceased's breast and suggested she had been intimate with another man and called her a "lying slut" and a "whore" in a further series of offensive text messages, as well as saying, "I feel sick that you use me and spoke to me while you [were intimate with someone else]. And to think I missed you and believed you. Just pay me back and go away." Ms Baker responded with a number of messages in similarly offensive language and the offender replied: "Just pay me what u calculated 356.49 plus the 50 for subway which is a lot for subway but whatever, glad I could help when YOU need it. Keep the opal card I see that as payment for services [of a sexual nature]. Coz that what u are to me now. And that's why I can forget about you now. It was hard at first but not anymore. You are nothing to me but [something he was happy to use for sexual purposes]. … I tell myself things are not all that bad. But then I think of you and remember that things ARE really that bad. What I think is hope on the outside - is actually a whore on the inside. Enjoy the new guy. Or guys [emoji]"
2. Ms Baker then responded in terms which indicated that she did not intend to see the offender again and that she was glad to be rid of him as he was nothing but a constant pain in her life. He replied, "I'm only sorry for thinking you were anything different. I thought u were special I was wrong. I'm wrong and for that. I'm sorry That is all I'll ever be sorry for. That. Is. All. I won't make that mistake again".
3. Exchanges of text messages, similar in tone and content, between Ms Baker and the offender also occurred on 13 and 16 December 2018.
4. Viewed as a whole and in context, the text communications between the deceased and the offender demonstrated that Mr Hachem's feelings towards Ms Baker by December 2018 included anger, distress, jealousy and a sense of entitlement to her company and fidelity, based not only on his strong feelings for her but also on the fact that he had provided money and other benefits to her. It can be noted at this point, however, that it was not in dispute that throughout this period the offender was regularly seeing sex workers and also had his former girlfriend and close friend, Ms Bellamy, staying with him, which he had kept from the deceased.
5. On both 20 and 21 December 2018 and notwithstanding what had been communicated in earlier text messages, at the offender's instigation, he and Ms Baker spent two nights together but in a different hotel each night.
6. On 22 December 2018, Ms Baker arranged to meet Mr Saka in the evening and rebuffed the offender's attempts to arrange to meet up. The deceased and Mr Saka spent the night of 22/23 December together in her unit at Parramatta. She had her telephone on flight mode.
7. In the early hours of 23 December 2018, when the offender could not contact Ms Baker by telephone, he drove to her unit and waited outside.
8. At about 6:30 am on 23 December 2018, as Mr Saka was leaving the unit, he opened the door and the offender, who had been standing outside the unit at the door, walked in. Because he was concerned about what might happen, Mr Saka waited downstairs in his car. The offender was angry that Ms Baker had been with Mr Saka and that he had not been able to contact her. There was shouting and the offender demanded that she give him her phone, which was the iPhone 8 that he had bought for her in September 2017, and he took it with him when he left the unit. As the offender was leaving, Ms Baker called down to him and asked him to leave the sim card and threw an earring down so that he could remove the sim card from the phone. The offender left the sim card on a brick wall in front of the unit block and went off. When Ms Baker went down to collect the sim card, she appeared to Mr Saka to be scared and he drove her to his house in order to give her an old iPhone 4 and drove her back to her unit. Later that day Mr Saka drove Ms Baker to the airport so that she could take a flight to Queensland to join her family on vacation on the Gold Coast.
9. In the afternoon of 23 December 2018, the offender sent an email to Ms Baker which included: "I'm glad you've decided to end things properly before you go away. Thanks for returning the opal card and I expect the money by the end of January in which we agreed on. Just send me a screenshot or something to let me know it's paid or being paid via this email. Since we prefer not to text just to make your life easier. Coz let's face it. I'm always making things easier for you and why stop now. … Cheerio and I look forward to it being all Done with. As I'm sure you do too. I'm always here to help and be clear for your needs".
10. Between 23 and 28 December 2018, Ms Baker was with her family on holidays and during this time she bought an Alcatel mobile phone and the offender and Ms Baker communicated with one another by text message and telephone calls.
11. About 4:00 am on 28 December 2018, Ms Baker was dropped off at her unit in Parramatta after she had driven with her family back from Queensland.
12. At the offender's encouragement and instigation, he and Ms Baker spent the nights of 28/29 and 29/30 December together, in Parramatta, at a different hotel on each night.

New Year's Eve 2018

1. During the day on 31 December 2018, the offender made repeated attempts to arrange to spend New Year's Eve with Ms Baker, but she had already purchased tickets for New Year's Eve at Luna Park where she intended to be with Mr Saka. Nonetheless, in the afternoon of 31 December 2018, the offender waited at Parramatta Westfield for Ms Baker to have her hair done, paid for the hairdresser and then dropped her home. Later that afternoon, Ms Baker sent text messages to the offender indicating that she thought she might go to her mother's and that she wasn't feeling well. The offender offered to drive her there "if u want a nice clean air-conditioned ride to ur mums", which she declined.
2. Ms Baker celebrated New Year's Eve at Luna Park with Mr Saka and the offender apparently spent the evening alone, driving around the city. The offender sent Ms Baker a number of text messages wishing her a happy New Year which were not delivered because her telephone had run out of battery.

Early January 2019

1. Early on 1 January 2019, while travelling back from Luna Park on the train, Ms Baker borrowed Mr Saka's phone in order to call the offender and it was as a result of that call that Mr Saka had Mr Hachem's telephone number in his phone.
2. On 2 January 2019, Ms Baker contacted the offender and, in effect, asked him to lend her money because she had rent due and did not have the funds to pay it because she had not been paid for two weeks and she would not be paid during the holiday period. The offender suggested they meet up and Ms Baker said she did not want to and asked whether she had to. The offender replied that she did not have to hang out with him at all. Eventually, they did meet and spent the night at the Vibe hotel in North Sydney and the offender transferred a total of $350 to Ms Baker on 2 and 3 January 2019. This was the last transfer of money made by the offender to Ms Baker.
3. On 3 January 2019, Ms Baker contacted her mother was a view to meeting up with her but this did not occur. At around the same time, Ms Baker made arrangements to meet Mr Saka and they spent the evening together, attending a church in Belfield, having pizza and beer overlooking Coogee beach and having a late meal in Chinatown. During this time the deceased texted the offender indicating that she was busy but would talk to him later. The offender offered to pick her up if she wanted. The text message exchanges between Ms Baker and Mr Hachem from about this time were incomplete as the offender had deleted a number of the messages from his telephone before it was examined by police. On his account, this was because they contained sexual content and he did not want Ms Baker's mother to see those messages.
4. While Mr Saka was driving Ms Baker to Chinatown, she texted the offender that she was good but had forgotten her telephone charger and asked what he was doing. The offender offered to drop a charger off, which Ms Baker did not accept but asked where he was. At 11:04 pm, the offender texted that he was at home and bored, when in fact he was in his car outside the deceased's unit block in Parramatta. The deceased's phone ran out of battery and Mr Hachem's further attempts to call and send text messages to her accordingly failed.

4 January 2019

1. On 4 January 2019, at about 1:30 am, Ms Baker and Mr Saka arrived at the parking area underneath her unit block in Parramatta. After a little conversation, they kissed and Ms Baker went up to her unit and Mr Saka drove away. The offender observed all of this because he was waiting for the deceased in his car in the street outside her unit block.
2. Ms Baker apparently plugged her telephone in to charge it and sent text messages to the offender saying, "Fell asleep", "how u going" and "So hard to find a charger that works lol". These messages were disingenuous and, as a result of the offender seeing Ms Baker kissing Mr Saka, Mr Hachem knew they were false and was greatly angered and upset.
3. Thereafter, there was a text message sent by the offender to Ms Baker, which was deleted, and telephone calls between her and the offender lasting 18 minutes, five minutes and six minutes, respectively. Shortly after the last of these calls, at 2:24 am, Ms Baker phoned Mr Saka and said that she wanted to wish him good night and that it had been a nice day. She also told him that she had received a call from a friend and that her friend had told her that their parents had been involved in a car accident and that she had to finish the call as her friend was calling again. It was the offender who had told Ms Baker that his parents had been involved in a car accident but this was not true.
4. At 2.29 am, the offender called Ms Baker; the call lasted about two minutes. Ms Baker then telephoned Mr Saka at 2:32 am and told him that she was going to go to sleep and wanted to say good night to him. The offender then attempted to call Ms Baker but the call forwarded.
5. The Crown contended that the story of the car accident was a "ruse" designed to convince the deceased to agree to see the offender. The offender submitted that this was not a "ruse" but a role-play which both the offender and Ms Baker knew was untrue but was typical conduct that was part of their relationship. In light of what Ms Baker told Mr Saka, I do not accept the offender's submission that Ms Baker knew that the story of Mr Hachem's parents being involved in a car accident was false and was a role-play. In the absence of the text messages which were deleted from the offender's telephone and any other information about the calls between Ms Baker and the offender, I am also not satisfied beyond reasonable doubt that it was a "ruse" designed to cause Ms Baker to agree to meet up with the offender against her will. In any event, Ms Baker did meet up with the offender.
6. At 2:37 am, the offender sent a text message to Ms Baker, "?" and she messaged, "Fell asleep". A minute later, and after another deleted text message, Ms Baker texted "I'll buzz" and the offender responded "ok", and Ms Baker sent a text message to the offender which was deleted by the offender and which was the last outgoing message from her telephone. The offender sent three text messages, which were deleted, to Ms Baker at 3:10 am.
7. I accept beyond reasonable doubt that the offender and Ms Baker met up in the vicinity of her unit at about this time, but I cannot determine more precisely when this occurred or whether this was inside or outside her unit in Parramatta.
8. By the time the offender and Ms Baker met up in the early morning of 4 January 2019, he was frustrated, angry and jealous because she had stayed at hotels with him and accepted money from him in the days before she went out with and kissed another man, which he witnessed, and because she had lied to him suggesting that she had fallen asleep at her unit when the offender knew that she had been with Mr Saka.
9. At about 5:12 am, CCTV of Marsden Street in Parramatta captured the offender driving his car northbound on that road.

The murder

1. Sometime between 3:11 am and 5:11 am on 4 January 2019 and in the vicinity of her unit in Parramatta, the offender killed the deceased. After 5:11 am, the offender removed the deceased's body from the Parramatta area in the boot of his mother's car.
2. There was no evidence as to the physical act or acts carried out by the offender which caused the death of the deceased or where, precisely, they occurred. Given the evidence that the deceased's housemate heard nothing untoward and the difficulty and risk of detection that would have been involved in moving the deceased's body down the stairs from her unit and into the car the offender used and all the other evidence as a whole, I find on the balance of probabilities that the deceased was not killed in her home but in or near the car the offender used, parked in the vicinity of the deceased's unit block, by a method that was not so loud, disruptive or protracted so as to draw attention.
3. The Crown did not allege that the murder involved planning or prior preparation and I accept that this was correct in light of all the evidence as a whole. The killing was spontaneous and unplanned. Furthermore, this finding, together with the absence of evidence as to how the deceased was killed, effectively precluded a conclusion being reached beyond reasonable doubt that the offender intended to kill the deceased when he did whatever was done that led to her death. In these circumstances, the jury's verdict of guilty of murder compels me to conclude that the offender did the act or acts which caused the deceased's death with the intention of causing her grievous bodily harm.
4. Their communications, their previous history of arguments sometimes involving a degree of violence, separations and reconciliations, and the evidence as a whole established that the motivation for the offender's fatal assault on the deceased was a combination of his jealousy of Mr Saka, his resentment as a result of Ms Baker taking money and assistance from him but not reciprocating his affection, his anger as a result of her reluctance to spend time with him preferring to be with Mr Saka but lying about where she had been and his distress as a result of her seeking to end their relationship. These conclusions are supported by the notes Mr Hachem recorded on his telephone and tried to delete between about 11:23 am and 12:06 pm on 4 January 2019 which included: "If you feel guilt. Please read" "DON'T FORGET WHAT THEY MADE U DO. IT WOULDN'T OF HAPPENED IF IT WASN'T" "I wanted to spend nye with u. Nothing special just same as last time" "Said. I don't l u anymore" and "She lied about the hickey banged it on a desk".
5. The offender and Ms Baker had been in an intimate personal relationship of a sexual nature. By his persistent offering of attention, money and favours over a considerable period, the offender tried to keep the deceased's affection or, at least, attention focused on him, even when she had attempted to end their relationship. When, in December 2018 and January 2019, it appeared that the deceased may eventually have met another man with whom she wanted to spend her time to the exclusion of the offender, he persisted in trying to contact her, organising to stay with her at hotels, providing services for her and monitoring where she was. The offender could not accept Ms Baker's statement that she did not love him anymore nor could he accept that she might choose another potential intimate partner.

Disposal of the body

1. Shortly after killing Ms Baker, the offender took steps to dispose of her body and remove both physical and electronic evidence that could link him to the crime. The offender left the body in the boot of the car during the day of 4 January 2019 when he was required to attend MTC at Hurstville. He sent deliberately false messages to her telephone number in an attempt to convey that there were no problems between them and he was not concerned that she had not contacted him. He made a shopping list and bought items that could be used for the disposal of the deceased's body including garbage bags, heavy duty gloves and a shovel or spade. In the afternoon and evening of 4 January 2019, he travelled to the rural area near Breadalbane, which is northeast of Canberra and west of Goulburn, and spent several hours in that area during the night before returning to Sydney.
2. On 5 January 2019, the offender bought a knife and carpet from Bunnings which he used to remove the carpet from the rear of the seats and the floor in the boot of his mother's car and cut out a replacement piece of carpet which was fitted into the floor of the boot. The carpet covering the passenger's side wheel arch in the boot was also removed. This piece of carpet was subsequently located in the offender's bedroom and it was found to have the deceased's blood on it.
3. The Crown submitted that the offender also attended the deceased's unit and removed her telephone at about this time and disposed of it. While this is a possibility given the mobile telephone cell tower location data, I am not satisfied beyond reasonable doubt that this is what occurred.
4. The offender made additional purchases of heavy duty gloves and garbage bags and made further journeys out of Sydney in the days following 5 January 2019, including to the Breadalbane area, but I can make no findings as to what occurred on these occasions.
5. The deceased's body has never been found.
6. During the period immediately after the death of Ms Baker, the offender purported to co-operate with the police investigation and with the deceased's family in their efforts to locate her.
7. The disposal of the body and the offender's conduct in the days immediately following the murder demonstrate a callous disregard for the dignity of the deceased, whose life the offender had just taken. As such, they are relevant to the assessment of objective seriousness. [4]

Form 1 offences

1. The facts in relation to the offending involved in the fraud offences on the Form 1 were set out in a statement of agreed facts signed by or on behalf of the parties. The relevant facts may be briefly summarised as follows. As to the first offence, on 25 December 2018, the offender came into possession of two credit cards stolen from a vehicle parked in Blakehurst. On 26 December 2018, the offender made 14 successful unauthorised transactions and four unsuccessful attempted transactions using the stolen credit card. The offender bypassed the requirement to enter a personal identification number by making deliberate purchases of less than $100. The total value of the unauthorised transactions was $1,347.60. As to the second offence, on 2 February 2019, the offender came into possession of four stolen credit or debit cards. Between 2 February and 6 February 2019, the offender used the four stolen cards to make 48 unauthorised transactions totalling $3,135.97. Included in these transactions were the purchase of gift cards, which were subsequently used by the offender between 17 February 2019 and 8 March 2019. When the offender was arrested and charged on 8 March 2019, investigators located four items that were direct proceeds of the unauthorised transactions. A further examination of the offender's residence identified 15 items which had been purchased using the stolen cards or through associated gift cards.

Objective seriousness

1. The Crown submitted that, in the circumstances of the present case, the offence of murder fell within the middle of the range of objective seriousness. The offender's contention was that the offending in this case fell "below the mid-range, albeit not to any significant extent".
2. As R A Hulme J overserved in R v Edwards (No 3) [5] at [49], the circumstances in which murders occur are quite varied but towards the higher end of the range of seriousness are, for example, those committed with premeditation and a specific intent to kill, and those committed for financial reward. Relevant factors in assessing objective seriousness include intention, method and motivation, as well as whether the offence was committed in the victim's home and how the body was disposed of or treated by the offender.
3. In my assessment, having regard to all matters relevant to objective seriousness, this offence falls in the middle of the range but below the midpoint of that range.
4. As to the fraud offences on the Form 1, these, in my view, fall below the mid-range for such offending.

Aggravating and mitigating circumstances

1. Since it was not established where precisely the murder occurred, it could not be concluded that the offence was committed in the home of the victim. Thus, this aggravating circumstance [6] was not made out in the present case. It was not submitted that, in this case, there were other relevant aggravating factors, beyond what was inherent in the offending itself.
2. The offender submitted that various mitigating factors were applicable in the present case, namely, that the offence was not part of a planned or organised criminal activity, [7] the fact that the offender did not have any record of previous convictions [8] , was a person of previous good character, [9] was unlikely to re-offend in the future, [10] and has good prospects of rehabilitation. [11] In addition, it was submitted that consideration should be given to the way in which the offender conducted the trial and a lesser penalty should be imposed having regard to the degree to which the administration of justice has been facilitated by the defence. [12]
3. In assessing objective seriousness, I have already taken into account the fact that the offence was not part of a planned or organised criminal activity as a mitigating factor. The other matters were personal to the offender and I shall return to these matters when considering his subjective case.

Personal background

1. There was some conflict in the evidence concerning the offender's upbringing and background. The offender's brother swore an affidavit and gave oral evidence at the sentence hearing. In his affidavit, he described their father, a taxi driver, as "a very big gambler", "a big drinker" and "very abusive", stating that he would beat the two of them with branches of a tree that had thorns on it so that "as he whipped us with it the thorns would get stuck in our skin and then get ripped out as he's moving away". He stated that he and the offender poisoned the tree with chemicals. The offender's brother also said that he remembered times "we would see our cousins getting a beating from their parents and we would joke that they have it easy. The idea of being hit with just a belt seemed like a blessing to us". His brother estimated that they were hit at least four to five times a week and recalled times where they were hit by their father with the branch, his first and a belt and it would last for at least ten minutes. Furthermore, the offender's brother described their mother as "distant" because she did not have time for them due to their father's gambling as well as her full-time work as a chef which meant that she would come home, make dinner for them and then go to sleep. He did, however, note that she looked after them and was a loving person.
2. In cross examination, however, the offender's brother acknowledged that he had sworn, in any earlier affidavit prepared for the bail application, that his brother did "the heavy lifting" in caring for his parents and nothing was said concerning any difficulties in relation to their childhood or any abuse suffered by the offender at the hands of his father. The failure to mention such abuse was explained by the offender's brother on the basis that: "it wasn't relevant because we were so young and my dad stopped beating me when I was bigger, so when I got to about 18, 19 when he hit me, I hit him back. And he stopped." The offender's brother acknowledged that he did not complain about what he said his father had done to his brother either to his mother, or to any member of the family, or to police, nor did either of the brothers ever seek medical attention in relation to the beatings. It was accepted that the first time the issue of abuse by the offender's father had been raised was in the affidavit prepared for the purposes of the sentence hearing. When it was put to the offender's brother that the evidence of abuse was "something that you have made up in order to support your brother in relation to his sentencing proceedings", he responded, "[it] started when I was seven years old so no." It was also acknowledged that the offender's brother lived in his parents' house until he was about 36 years of age and the offender continued to live there, caring for his parents, until he was arrested.
3. The evidence also included an affidavit dated 23 June 2020 from a cousin of the offender who was about two years older than the offender. This affidavit had been relied upon in support of the offender's bail release application and contained the following: "9. [The offender] is my first cousin. His father is my mother's brother. My mother has 2 brothers who live next to each other in the Hurstville Grove, as a consequence we spent a lot of time with our extended family. 10. [The offender] and his brother … are very similar in age to me and my siblings. This is also the case with our sisters and as a result we spent a lot of social time together, particularly involving our common interests like soccer and video gaming. 11. As we grew older and my focus became very much my own family, we naturally did not socialise as frequently as we used to but our extended family held regular family events. 12. [The offender's] parents are wonderful people. His father is a very gentle man and his mother is an incredibly warm and affectionate woman. I would say [the offender] is very much like his father in manner, he is a very calm personality and I can honestly say I have never seen [the offender] even raise his voice in anger. …".
4. This evidence from the offender's cousin, especially par 12, was difficult to reconcile with the offender's brother's evidence.
5. The offender did not give evidence. Clinical psychologist, Dr Ram, who prepared a report dated 28 November 2022 on the offender's behalf, however, said that she based her opinions on the information provided to her by the offender, which she referred to in her report and included that: 1. he experienced a lot of racism from neighbours; 2. there was significant domestic violence in his parent's relationship and his father was an alcoholic and a problem gambler, and was physically and emotionally violent to his mother who was scared of her husband and did not intervene when his father was physically abusive toward him; 3. his father was physically and emotionally abusive to him and his siblings; 4. his father whipped him with branches with thorns which ripped his skin leading to his arms and hands bleeding; 5. his grandmother sexually abused him between the ages of six and nine by being "aggressive around his genital region" when bathing him and by putting food or a treat between her thighs and making him grab it from her; in this regard, the offender told the psychologist, "[n]o one ever noticed. She did it out in the open in the lounge room but no one was really paying attention to me"; 6. he was physically, verbally and emotionally bullied by his siblings and was "blackmailed" by them and he "indicated that he would have to be their 'slave' whereby he had to do their chores or whatever they asked and stated, 'I didn't mind doing chores for them. It was nice to feel wanted otherwise it was arguing all the time or fighting. It was probably the most peaceful time in the house'"; 7. he reported having no happy memories from childhood.
6. Although the offender did not give evidence before me, I had the benefit of watching his lengthy recorded interview with police after his arrest and the body worn video of his conversation with police after the incident at the Surfers Paradise hotel. His demeanour and the content of what he said on those occasions, together with his admitted commission of the fraud offences which he asked to be taken into account on the Form 1, caused me to have substantial doubts as to the reliability of the answers and information he provided to Dr Ram. In forming that assessment, I have also taken into account that: 1. the offender was not under oath or affirmation when he had that conversation with police in Surfers Paradise and participated in his recorded interview with police after his arrest, and that caution was required in forming any assessment based on that material; and 2. Dr Ram was of the view that the offender displayed a "repressor pattern" profile on the Paulhus Deception Scale, opining that such persons have "a trait-like style towards self-enhancement as well as a tendency to be influenced by situational demands to respond in a socially acceptable manner".
7. Having regard to the evidence as a whole, the affidavits to which I have referred, and the cross-examination of the offender's brother, I accept that the offender's cousin's affidavit and his brother's affidavits and evidence in cross-examination were a genuine attempt to tell the truth as they perceived it but their evidence was affected, probably subconsciously, by a desire to achieve a beneficial outcome for the offender either in relation to his bail application or sentence proceedings and consequently, their evidence involved a significant degree of exaggeration and did not present a complete picture of relevant circumstances. Furthermore, I am not prepared to accept what the offender told Dr Ram except where the information was supported by other evidence which I accept or where the information was independently verifiable, for example, in relation to his academic qualifications and work history.
8. My findings as to the offender's background based on my assessment of all the evidence as a whole are as follows.
9. Mr Hachem was born in 1986, the youngest of three children. His parents had migrated to Australia from Lebanon in their late 20s and they lived in a four bedroom house in Hurstville Grove. For much of the time, the offender's aunt, uncle and cousins lived next door and the families socialised with one another as well as with other relatives. The evidence did not establish that the offender's family was socio-economically deprived to such an extent as to be significant for the purposes of sentencing the offender.
10. Indeed, the offender and his elder brother both attended St Raphael's Primary School and then St George Christian School, in Hurstville. The offender's brother had a very close relationship with him, playing soccer and video games together and sharing similar groups of friends so that even outside the family home, they were always socialising together. I accept the offender's brother's description of the offender as "a perfectly normal kid" noting, when they were playing soccer and it got heated, his brother was always the first one who would de-escalate the situation and stop his brother from getting into fights with their opponents.
11. I am not prepared to find on the balance of probabilities that the punishments inflicted on the offender by his father were as severe or prolonged as he recounted to Dr Ram or as his brother said in his affidavit. Nonetheless, I find that the offender's father probably imposed discipline on his sons which was harsher than might have been considered usual or reasonable in the wider Australian community now or at the time. The treatment of the offender by his father did not, however, involve abuse which was of such severity as to cause the offender or his brother to make any complaint to family or to any person in authority, nor did it lead to their receiving any medical or mental health treatment. In addition, the clinical notes from when the offender was interviewed by a forensic psychiatrist in custody on 11 and 16 April 2019 indicated that he told the psychiatrist his childhood was "good", he denied "physical … abuse" and he stated that he had "good relationship with parents + brother + sister".
12. There was no significant mention in the offender's brother's evidence of domestic violence between his father and mother and a finding that there was would be inconsistent with the affidavit evidence of the offender's cousin, which has been quoted above. In addition, there was evidence that there were no reports of domestic violence made to police involving the offender's parents or siblings. In those circumstances, I am not prepared to find on the balance of probabilities that there was any significant level of domestic violence in the relationship between the offender's parents or other members of his family when he was growing up.
13. While I accept that there may have been some comments and taunts at school or in the community concerning the offender's Lebanese heritage, I do not accept that this has been proved to have amounted to such a level of racist abuse as to be significant for the purposes of sentencing the offender. Furthermore, the clinical notes from the forensic psychiatrist in custody on 11 April 2019 indicated that the offender said "school was good".
14. In the absence of any sworn evidence or independent, documentary evidence relating to the offender's being sexually abused by his grandmother, as he reported to Dr Ram, I do not accept that the offender has established on the balance of probabilities that he was abused in this manner. I am confirmed in these conclusions by the fact that the notes from when the offender was interviewed by a forensic psychiatrist in custody on 16 April 2019 indicated that he denied "physical/sexual abuse".
15. As to his education and employment, in the absence of any challenge to what is recorded in Dr Ram's report and in light of what was included in the clinical notes of interviews by a psychiatrist with the offender, I accept that the offender completed high school at St George Christian School and then completed a Business Marketing Advanced Diploma and a Certificate IV in Advertising. While at school, he worked at a Video Ezy store and after finishing school he worked as a data entry clerk for Telstra, at Yodel Australia, a digital marketing company, "dealing with angry clients all the time", at The Lido Group which was a company that made hotel accommodation bookings and then at Toll Global as a forklift driver and logistics clerk. At the time of the offending, Mr Hachem had been unemployed for approximately one year, although he apparently did some cash in hand work for his father, who, at that time, managed his uncle's warehouse called "Bathroom Emporium".
16. As to his alcohol and drug use, Dr Ram recorded that the offender said that "he was not drinking heavily but rather drank enough alcohol to keep his anxiety levels down" and in relation to drinking at work he reported that "[i]t was nothing excessive. [He] was usually patient to wait to have a drink until after work". The evidence of the offender's spending from one bank account over a period of about 13 months indicated that only a relatively small amount appeared to be spent on alcohol and Dr Ram accepted that, if that were so, it would not indicate that the offender had an alcohol problem. Mr Hachem did not provide a history of serious drug abuse to Dr Ram and denied any gambling behaviours. This information was consistent with the "Star Notes" completed by the offender on 29 September 2022 in which he said that he had no problem with drugs and alcohol and that his charge was unrelated. It was also consistent with what was recorded in his intake screening questionnaire dated 11 March 2019 concerning drugs and alcohol. In light of the evidence as a whole, I find that Mr Hachem did not have any significant history of drug or alcohol abuse.
17. Dr Ram also recorded that the offender reported that, prior to going into custody, he had no formal diagnosis of mental illness and he had never sought psychological treatment or taken medication and he reported no concerns as to his physical health. Apart from one appointment with a psychologist on the day he was arrested, I accept what Dr Ram recorded.
18. As to Dr Ram's report that the offender said he suffered symptoms of anxiety and depression, both in childhood and as an adult, and engaged in self-harm at about the ages of nine to eleven, there was no direct evidence from the offender or any other witness of those matters and, in the absence of such evidence and based on the evidence as a whole, I do not accept that these matters were established on the balance of probabilities. This conclusion is confirmed by the fact that the offender's treating general practitioner, Dr Ghosh, wrote in a referral letter to a psychologist dated 1 March 2019 that there was "[n]o family history of mental health issues. … No risk of self harm".
19. At a more general level, my findings to which I have referred are supported by the letter dated 8 March 2019 to his general practitioner from the psychologist, Nasreen Ajam, who saw the offender on the day he was arrested, in which it was stated: "He denied substance abuse. He denied feeling stressed or anxious. He denied a family history of mental health issues and he denied experiences of trauma or abuse".

The psychologist's report

1. As noted already, the offender relied on a report of the psychologist, Dr Ram, dated 28 November 2022. Her opinion as to the offender's diagnoses was based upon assumptions that the offender had: "an emotionally deprived and very traumatic childhood characterised by: racism in his neighbourhood; low socio-economic status; significant physical and emotional abuse from his father…; His father's alcoholism/problematic gambling behaviours; ongoing exposure to significant domestic violence perpetrated against his mother; sexual abuse perpetrated by his grandmother; being blamed for his grandfather's death; bullying, racism and discrimination by both peers and teachers throughout his schooling; and being picked on both physically/emotionally by various family members including his siblings, uncles and cousin."
2. For the reasons I have already given, I do not accept that these assumptions have been established on the balance of probabilities. In these circumstances, I do not accept the psychologist's opinion that: "Holistic and collateral information suggests that during the commission of the index offence (and currently), [the offender] was suffering with the following comorbid DSM-5 diagnoses: … Major Depressive Disorder with the Anxious Distress, recurrent episode … Posttraumatic Stress Disorder (PTSD) … Cannabis Use Disorder (currently in sustained remission) … Alcohol Use Disorder (currently in sustained remission)".

Moral culpability and general and specific deterrence

1. In all the circumstances, it has not been established that the offender's background and upbringing, mental health issues or alcohol or drug use are significant enough such as to justify a conclusion that either his moral culpability or his suitability as a vehicle for general deterrence was reduced. For similar reasons, I also do not accept that the need for specific deterrence was lessened in the offender's case.

Absence of any prior criminal record and prior good character

1. The offender does not have any record of convictions prior to the offence for which he is to be sentenced and the offences on the Form 1. This is a factor [13] which I have taken into account as mitigating the sentence to be imposed.
2. It can be noted at this point that Mr McMahon of counsel, who appeared for the offender, did not contend that the offender was of good character on any basis other than his having no prior criminal record. [14] Consequently, good character was not a further mitigating consideration which was to be taken into account in this case in addition to the offender's lack of any prior criminal record.

Likelihood of re-offending

1. Dr Ram applied the Level of Service Inventory - R (LSI-R) actuarial assessment tool to assess Mr Hachem's risk of reoffending and her opinion was: "Based on a social learning model of crime, the LSI-R has 54 items, which are grouped into 10 subscales: criminal history; education/employment; finances; family/marital; accommodations; leisure/recreation; companions; alcohol/drug; emotional/personal; and attitude/orientation. On the LSI-R, [the offender] falls within the Low Risk classification for re-offending (i.e., approximately 11.7% chance of recidivism)."
2. In addition, Dr Ram assessed the offender using the HCR-20 Assessing Risk For Violence-Version 2 and noted that his score placed him at "low risk for (future) violence."
3. While I have not accepted Dr Ram's mental health diagnoses and a number of the assumptions on which her more general opinions were based, it appears probable that my findings as to the offender's personal circumstances would tend to decrease the risk of the offender's reoffending rather than increase it.
4. On the whole of the evidence, including Dr Ram's assessments, I find that the offender is unlikely to re-offend and I have taken this into account as mitigating the sentence to be imposed. [15]

Remorse

1. Mr McMahon expressly acknowledged in the written submissions of the offender that "having taken the matter to trial and maintaining his innocence, … there is no real scope for a finding of remorse". Taking into account all the relevant circumstances, including the offender's plea of not guilty and his concealing of the deceased's body and not disclosing its location, I accept that this is the appropriate approach to the consideration of remorse in this matter. Nonetheless, I also note that the offender is not to be punished more severely than he would otherwise have been because of these circumstances.

Prospects of rehabilitation

1. The offender's education, family support and background as well as his lack of any prior criminal record tend in favour of a finding of good prospects of rehabilitation. On the other hand, however, his absence of remorse and contrition and his failing to accept responsibility for his offending, apart from the fraud offences on the Form 1 tend in the opposite direction. Nonetheless, I am satisfied in all the circumstances that the offender has reasonably good prospects of rehabilitation and I have taken this into account in mitigating the sentence. [16]

Facilitation of the administration of justice

1. Mr McMahon also submitted that the way in which the trial was conducted involved the defence facilitating the administration of justice for the purposes of s 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW) by: "(i) Agreeing where possible as to facts; (ii) Allowing for the reading of evidentiary statements where appropriate; (iii) By taking a reasonable approach to the substantial quantity of summary documents tendered during the Crown case. (iv) Allowing for much of the investigative evidence (including the numerous proof of life checks, email/social media analysis and other enquiries) to be led through the police informant."
2. It was noted in oral submissions that the Court did not have to quantify any reduction in the sentence as a result of the degree of facilitation but it may be appropriate to do so.
3. The Crown submitted that, although there was an efficient and professional approach to the conduct of the trial by the defence, this did not rise to the level of a willingness to facilitate the administration of justice; it did not go beyond what was expected of the proper and competent conduct of a trial. It was noted that this was not a case where the offender made any admission or concession about an element of the offence or a significant evidentiary matter.
4. Section 22A of the Crimes (Sentencing Procedure) Act provides: "22A Power to reduce penalties for facilitating the administration of justice (1) A court may impose a lesser penalty than it would otherwise impose on an offender who was tried on indictment having regard to the degree to which the administration of justice has been facilitated by the defence (whether by disclosures made pre-trial or during the trial or otherwise). (2) A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence."
5. The language of s 22A does not create a legal requirement for a sentencing judge to specify a percentage discount or to quantify arithmetically the extent by which the sentence has been reduced, if the section is applicable. [17] Where the facilitation has made a significant difference to the sentence which would otherwise have been imposed, it has been held that it would be desirable to specify the penalty that would have been imposed but for the facilitation of the administration of justice. [18] Nonetheless, a failure to do so is not generally an error.
6. In the present case, I accept that the trial was conducted efficiently and professionally by the defence and a number of facts were agreed, evidentiary statements were in some cases read by agreement, a reasonable approach was taken to the adducing of evidence by way of summaries and a substantial amount of evidence concerning the issue of whether the deceased was still alive was led through the officer in charge by agreement. Furthermore, it would not, in my view, have been improper for the defence not to have agreed to proceed in this way. Nonetheless, it is also relevant that the defence obtained some forensic advantages by so agreeing, including a shorter trial and a more focused presentation of his case.
7. In all the circumstances, in my view, the administration of justice was facilitated by the approach taken by the defence and this should be taken into account in mitigating the sentence. The degree of facilitation was not, however, so great as to justify specifying a substantial percentage discount to be applied. Rather, the present case was one in which this factor was more appropriately taken into account as a mitigating factor as part of the instinctive synthesis approach to sentencing.

Other matters

1. In considering the appropriate sentence, I have also taken into account the additional hardship which has been encountered in custody by the offender and which may possibly be encountered in the future as a result of the COVID-19 pandemic.
2. Evidence was led and submissions were made on behalf of the offender concerning the impact of media attention after the offender's arrest on him and his family. In my view, this did not amount to extra curial punishment and it was not submitted that it should be taken into account as such. Nonetheless, I have had regard this matter in considering the general subjective circumstances of the offender.

Comparable cases

1. The Crown, in annexure B to its written submissions, provided a summary of a number of cases that bear some similarity to the present and noted the sentences imposed in those cases. There are obvious differences between, and some features in common in those cases and the present matter.
2. I have taken those cases into account, noting the similarities and differences, along with a consideration of the purposes of sentencing, and the particular objective and subjective circumstances of the present case.

Form 1 offences

1. As has already been noted, the offender has asked that two offences of dishonestly obtaining financial advantage contrary to s 192E(1)(b) of the Crimes Act on the Form 1 be taken into account when he is sentenced for the offence of murder. In such a situation, although the Court is sentencing for the particular offence of murder, it may take into account these fraud offences for which guilt has been admitted. [19] In doing so, the Court may increase the penalty that would otherwise be appropriate for the murder offence as a result of giving greater weight to the need for personal deterrence and the community's entitlement to extract retribution for serious offences where they are offences for which no punishment has in fact been imposed. [20] There are, however, limits on the extent to which this may be done, including: the maximum penalty for the primary offence; the principle of totality; and, consideration of the weight to be given to the competing purposes of sentencing having regard to all the circumstances of the case. [21]
2. In the present case, the Form 1 offences have little, if any, direct connection with the offending involved in the offence of murder. Nonetheless, having regard to the principle of totality, the offence of murder for which the offender is being sentenced, and the other circumstances of this case, the offences on the Form 1 do not call for any significantly increased penalty in the present case.

Special circumstances

1. Neither party submitted that I should make a finding of special circumstances so as to support a variation of the statutory ratio of the non-parole period to the head sentence. [22] Given the length of the sentence to be imposed, the period of parole calculated by reference to the statutory ratio will be adequate to assist the offender to reintegrate into the community should he be released to parole. There were no other factors that were identified and that have not already been taken into account that would require a finding of special circumstances in this case.

Victim impact statements

1. The Court heard and read victim impact statements from the deceased's sister, Elena Baker, and stepfather, Andrew Baker. Those statements made clear that her death has caused grief and distress to the deceased's family to such an extent that the harm suffered by the deceased's mother, sister and step-father could not be adequately conveyed in words and that the inability to say goodbye to her and bring her home continues to cause emotional anguish.
2. The Crown, in its written submissions, applied for the Court to consider the impact of Ms Baker's death as disclosed in the victim impact statements when determining an appropriate punishment for the offender.
3. The use that may be made of victim impact statements is governed by the Crimes (Sentencing Procedure) Act. [23] Victim impact statements may, in certain circumstances, be taken into account in connection with the determination of the punishment for the offence on the basis that the harmful impact of the victim's death on the victim's close family and wider circle is an aspect of harm done to the community.
4. Courts have said in the past that it seems unthinkable that receiving and taking into account victim impact statements reflects an acceptance by Parliament that some lives are more valuable to the community than others. Rather, they should be seen as an important mechanism for ensuring that the evidence of family victims is placed before the Court to give real content and texture to the undoubted proposition that every unlawful taking of a human life harms the community in some way. [24]
5. I accept that a greater sentence cannot be imposed because of the impact on the victim's family. Nonetheless, I consider it appropriate to take into account the victim impact statements that were read to the Court so as to recognise that the harm done to the deceased's parents and sister is an aspect of harm done to the community. The punishment for homicide does not vary according to the personal qualities and characteristics of the victim. Rather, the qualities of a particular victim may serve, as in this case, as a salutary and powerful reminder of the quality of human life itself, and of all that is involved in taking it away. [25]

Domestic violence

1. There are two aspects of a consideration of domestic violence that are relevant in the present case.
2. First, the Crown submitted that a direction should be made under s 12(2) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) that the offence be recorded on the offender's criminal history as a domestic violence offence. Section 12(2) relevantly provides: "If a person … is found guilty of an offence and the court is satisfied that the offence was a domestic violence offence, the court is to direct that the offence be recorded on the person's criminal record as a domestic violence offence."
3. A "domestic violence offence" means, inter alia, an offence committed by a person against another person with whom the first person has or has had a domestic relationship and the offence is a "personal violence offence". [26] A "domestic relationship" includes "an intimate personal relationship with the other person, whether or not the intimate relationship involves or has involved a relationship of a sexual nature". [27] The offender and Ms Baker had such a domestic relationship. A "personal violence offence" includes "an offence … mentioned in s 19A … of the Crimes Act 1900" [28] . Section 19A concerns, and thus, mentions the offence of murder, which is defined in s 18(1)(a). In all the circumstances, I am satisfied that the murder committed by the offender was a domestic violence offence, within the meaning of s 12(2) of the Crimes (Domestic and Personal Violence) Act and thus I am required to direct that the offence be recorded on the offender's criminal record as a domestic violence offence.
4. Secondly, it is appropriate to bear in mind the principles which have been established as applicable to sentencing in domestic violence cases.
5. In Cherry v R Johnson J explained: [29] "78 … It is undoubtedly the case that the criminal law, in the area of domestic violence, requires rigorous and demanding consequences for perpetrators for the purpose of protecting partners, family members and the wider community. 79 In the context of domestic violence offences, the High Court has observed that it is a longstanding obligation of the State to vindicate the dignity of each victim of violence, to express the community's disapproval of that offending and to afford such protection as can be afforded by the State to the vulnerable against repetition of violence: Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38 at 620 [54]."
6. In R v JD, Hoeben CJ at CL in the Court of Criminal Appeal said: [30] "... this Court has repeatedly stated that crimes of domestic violence towards female partners are to attract sentences of sufficient severity to deter others who might offend in a similar way. ...".
7. In my view, the present case demonstrates attributes of the "pattern" identified in Patsan v R in the following terms: [31] "a male attacks (or kills) a woman with whom he is, or has been, in an intimate relationship when she expresses a wish to leave that relationship. Typically, the male is physically stronger than the female. The male is thus generally in a position to inflict considerable harm to the female and there is no real prospect of spontaneous physical retaliation because of the disparity between their respective strengths."
8. In this case, the offending involved fatal violence towards a female partner of the offender arising out of his jealousy and anger because of her being with another man and attempting to end the relationship with the offender. In such circumstances, significant weight is to be given in determining the appropriate sentence to the purposes of denunciation of such conduct as well as general deterrence and the need to recognise the harm done to the victim and the community.

Additional remarks

1. Before formally announcing the sentence of the Court, it remains important to acknowledge that the death of Samah Baker is a human and personal tragedy. Her death should not be treated only as the subject of a criminal trial. The evidence in this matter confirmed that she was a dynamic, cheerful presence in her sister's and her parents' life, a captivating person who made those around her feel whole. Ms Baker's unnecessary death in such distressing circumstances has devastated her family leaving them a grieving, heartbroken and destroyed trio. Her murder has caused a great loss, the extent and impact of which cannot be adequately expressed in these remarks.
2. The Court extends its very sincere sympathy for their loss to Ms Baker's family and all those affected by her tragic death.

Sentencing

1. In determining the appropriate sentence to be imposed on the offender, it is to be borne in mind that the offence of murder involves the criminal violation of the sanctity of human life. Any conviction for murder warrants a substantial sentence because the purposes of denunciation, punishment and general deterrence are of particular importance. Ultimately, the sentence to be imposed must appropriately reflect the gravity of the offence. In addition, in this case, the sentence must also take into account the offences on the Form 1.
2. The offender has been in custody since he was arrested on 8 March 2019 and it is appropriate that the sentence commence on that date.
3. I have considered all the possible alternatives and I am satisfied that no penalty other than full-time imprisonment is appropriate.
4. Taking into account all the relevant facts, including the objective seriousness of the offending and the subjective circumstances of the offender, and having regard to the purposes of sentencing and the other applicable principles as well as the statutory guideposts of the maximum penalties for the relevant offences and the standard non-parole period for murder, I determine that the appropriate sentence is imprisonment for 24 years, made up of a non-parole period of 18 years and a balance of term of imprisonment of 6 years.
5. Therefore, the orders of the Court are: 1. The offender is sentenced for the murder of Samah Baker, taking into account the two offences of dishonestly obtaining financial advantage by deception on the Form 1, to imprisonment for a non-parole period of 18 years commencing on 8 March 2019 and expiring on 7 March 2037 and a balance of term of 6 years expiring on 7 March 2043. 2. Pursuant to s 12(2) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), it is directed that the offence of murder be recorded on the offender's criminal record as a domestic violence offence.
6. If the offender becomes eligible for release on parole, the earliest date on which he could be released is 8 March 2037.
7. The offender is warned that, having been convicted of murder, which is a serious violence offence for the purposes of the Crimes (High Risk Offenders) Act 2006 (NSW), the State of New South Wales can make an application prior to his sentence expiring that he should continue to be detained or that he should be subject to an extended supervision order impacting on his liberty, notwithstanding the completion of his sentence.

Endnotes

1. See Crimes (Sentencing Procedure) Act 1999 (NSW), s 61(1).
2. GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22 at [30].
3. The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [24]-[27].
4. R v Edwards (No 3) [2019] NSWSC 1815 at [48]-[49] (R A Hulme J).
5. [2019] NSWSC 1815.
6. Crimes (Sentencing Procedure) Act, s 21A(2)(eb).
7. Crimes (Sentencing Procedure) Act, s 21A(3)(b).
8. Crimes (Sentencing Procedure) Act, s 21A(3)(e).
9. Crimes (Sentencing Procedure) Act, s 21A(3)(f).
10. Crimes (Sentencing Procedure) Act, s 21A(3)(g).
11. Crimes (Sentencing Procedure) Act, s 21A(3)(h).
12. Crimes (Sentencing Procedure) Act, s 22A.
13. Crimes (Sentencing Procedure) Act, s 21A(3)(e).
14. Tcpt, 14 April 2023, p 68(41 - 49).
15. Crimes (Sentencing Procedure) Act, s 21A(3)(g).
16. Crimes (Sentencing Procedure) Act, s 21A(3)(h).
17. Droudis v The Queen (2020) 103 NSWLR 806; [2020] NSWCCA 322 (Droudis) at [104] (Bathurst CJ, Hoeben CJ at CL and Hamill J).
18. Droudis at [105].
19. In accordance with the procedure in ss 32-35 of the Crimes (Sentencing Procedure) Act.
20. Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (NSW) (2002) 56 NSWLR 14; [2002] NSWCCA 518 (Re Attorney-General's Application) at [42].
21. Re Attorney-General's Application at [42] and Lloyd v R [2022] NSWCCA 18 at [13] (McCallum JA, Hamill and Cavanagh JJ agreeing).
22. As provided in s 44(2) of the Crimes (Sentencing Procedure) Act.
23. Relevantly s 30E(3) of the Crimes (Sentencing Procedure) Act, which substantially re-enacted provisions previously found in s 28(4) of that Act. The relevant transitional provisions are found in Sch 2, cl 92(a) of the Act which provides that Div 2 of Pt 3 of that Act applies only to proceedings commenced after the date on which that Division was substituted by the Crimes Legislation Amendment (Victims) Act 2018 (NSW).
24. Based on the comments of McCallum J (as her Honour then was) made in R v Halloun [2014] NSWSC 1705 at [46] in relation to s 28(4) of the Crimes (Sentencing Procedure) Act.
25. Adapting the words of Street CJ in R v Hill (1981) 3 A Crim R 397 at 402.
26. Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 11(a).
27. Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 5(1)(c).
28. Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 4(a).
29. Cherry v R [2017] NSWCCA 150 at [78] and [79] (Johnson J, Macfarlan JA and Harrison J agreeing).
30. R v JD [2018] NSWCCA 233 at [103] (Hoeben CJ at CL, Meagher JA and Fagan J agreeing).
31. Patsan v R [2018] NSWCCA 129 at [39] (Adamson J, Bathurst CJ and Leeming JA agreeing). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 May 2023