R v Hopkins [2011] VSC 517

2 Ms Millar had made what could be described as very unfortunate choices in men in her life. She had previously been the victim of domestic violence and forced to flee abusive relationships. Since about 2005, she had been living in Ministry of Housing accommodation in Bayswater North. She had in her life predominantly worked as a cleaner but in more recent times had been working as a driver for an automotive spare parts retailer, located in Bayswater. Her daughter Ashlea had become quite ill and she had been a stay at home carer for a period of time, but around March 2010 she had returned, on a casual basis, as a driver with the automotive firm. Her daughter's health had improved and she had moved out, as had her older son, leaving just the youngest child residing with her.

3 Ms Millar had been involved in illicit drug use involving marijuana, heroin and amphetamines over a large period of her adult life.

4 You had met Ms Millar some time in 2008, as I can best ascertain, and commenced a sexual relationship with her, despite living in a de facto relationship with your then partner. After your partner left with the children you subsequently moved into the premises occupied by Ms Millar and, it would appear, continued the history she had of violent relationships.

5 Ms Millar had over the years sought assistance from a number of different agencies relating to drug and alcohol issues, parenting and family problems. In a meeting with her Anglicare worker, Judy Buitenhuis, Ms Millar disclosed incidents in which you had been violent towards her on a number of occasions. During a particular meeting in late May 2009, Ms Millar told her worker that she was no longer in a relationship with you as you had been violent to her on three occasions. Clearly the relationship must have resumed as you were living in the home with her at the time that you killed her.

6 There were occasions in which you demonstrated love, affection and kindness towards Ms Millar but also times in which you showed both anger and violence towards her, and some of those incidents were noted by different witnesses. For example on 19 November 2009, Kane Read was at home when you came into the premises in an angry state and commenced breaking items in the home, causing damage to the wardrobe and the mirror in Ms Millar's bedroom. In about May of 2010 Ms Millar's son Kane and her daughter Ashlea observed her to have marks on her arms, a bruised eye and a cut between her eyebrows. She initially said she received the injuries from tripping over and refused to blame you for it. But when you returned to the premises and were confronted by Ashlea you admitted that you had got annoyed with Ms Millar and threw a book at her hitting her in the face. You also volunteered to her younger son Kane the next day that you had hit his mother with the books whilst you were under the influence of magic mushrooms.

7 In the week leading up to the death of Ms Millar and more specifically the morning of 25 May 2010, Ms Millar was noted to have bandages on her forearm on her arrival at work. At about lunchtime on that day, you were seen in your car outside the premises where Ms Millar was working and heard to scream abuse her as she was trying to unload a utility. When you observed a member of staff coming to her aid you drove off. Ms Millar was found to be crying, but she composed herself and continued her delivery duties. Later that same day the employee telephoned her and during this call heard a male yelling at her and was unable to actually converse with her as she was not responding. At about 2.30 on the same day, a witness Antony Foster-Davies, went to investigate a male voice that he heard shouting - when he did he observed you seated in the driver's seat of a maroon vehicle, shouting at Ms Millar who was in a four wheel drive, the car of her employer. You had placed your car behind hers and kept accelerating into the back of her car attempting to push that vehicle into a stack of volcanic rock. You were accelerating so hard that the wheels of your car were forming holes in the gravel as you attempted to force her car onto the rocks.

8 Ms Millar got out of her vehicle and you physically forced her onto a display vehicle in the car yard of Mr Foster-Davies, held her down, placing your forearm across her chest and said in a very aggressive tone, whilst pointing with your finger close to her face, "Don't think you're gonna be safe tonight because I'll come round and kill you". You reiterated that threat again and said, "Don't think you're gonna be safe tonight".

9 Mr Foster-Davies then intervened by shouting. You reacted to that by letting go of Ms Millar and saying to Mr Foster-Davies, "Do you want some of this", walked to your car, opened the door and said to Ms Millar, "You're gonna get this". Mr Foster-Davies was most concerned and picked up a long heavy duty plastic coated wire and challenged you. Your reaction was to rush over and commence physically assaulting Mr Foster-Davies by punching and kicking him, and then returning to your vehicle and driving away.

10 Ms Millar appeared petrified and was physically shaking, crying and unable to speak, but eventually said to Mr Foster-Davies, "If he sees me talking to you it is going to make it worse for me" and she then drove away.

11 It would appear that shortly after this her employer phoned her again. She told him that you'd been chasing her and tried to run her off the road and that she was too scared to drive. The employer contacted you by telephone and requested that you leave Ms Millar alone to finish her job. Your reply to him was, "I will be chasing her for the rest of her fucking life, she'd better get used to it". When Ms Millar returned to the office she was crying and saying she was scared of you.

12 When she was advised to contact the police she said that she was too scared to do that, that you'd wrecked her house and she was worried because her son was due home from school and she didn't want him to be there by himself if you were going to be there.

13 It is clear that by 1 June 2010 there must have been a reconciliation of some nature in that you were again residing at the house and you and Ms Millar appeared to have on the previous night and on that morning, an amicable relationship. Nothing was noted about your behaviour or conduct in the statement by Kane who was present in the house. According to the statement of Kane, on the morning of the murder, Ms Millar said she was going to Woolworths to buy some cigarettes at about 7am and she left and returned a short time later. Ms Millar then discussed with you who was going to take Kane to school, with both of you expressing a willingness to do so. Finally, Ms Millar said how about we both take him, to which you replied, "great idea". Ms Millar drove in your red Holden Apollo. You got in the passenger seat and Kane got in the back seat. It was 8.05am when Ms Millar drove from the premises in Bayswater North to drop Kane at Bayswater Secondary College.

14 The three of you discussed Kane's day at school, which was described as being done in a pleasant manner. At 8.10am Kane was dropped off at school. These times are quite specific; Kane recalls looking at the clock and from this point on all is recorded on CCTV - the times are accordingly accurate.

15 At 8.16 you and Ms Millar drove into the west end driveway of Woolworths Supermarket in Mountain Hwy, Bayswater. Ms Millar drove in, veered left, with the apparent intention of going into the Safeway Service Station but stopped the vehicle just before entering. The vehicle remained stationary for approximately 11 seconds, then reversed a short distance changed direction, turning right to the Woolworths carpark where the vehicle was parked. It remained there for some four-and-a-half minutes. What occurred during that time is unknown to anyone but you. You say you have no memory of what occurred on that day and there has been no volunteering of information about what happened in the time sitting in the carpark.

16 Eventually after four-and-a-half minutes the vehicle reversed, drove into the Safeway Service Station, stopping alongside a petrol pump at 8.22am. Ms Millar remained in the driver's seat of the vehicle whilst you got out and commenced refuelling the vehicle, the petrol tank was on the passenger side of the vehicle and you refuelled for approximately 30 seconds. The next thing you did was that you took the petrol pump nozzle out from the petrol tank and carried it with you to the passenger side door, removing at the same time a knife that you had clipped to the left side of your waist belt. You then re-entered the front passenger side door, with the petrol nozzle in your right hand and the knife in your left hand, aimed the nozzle at Ms Millar and moving up close to her you commenced pumping fuel over her. It can be seen from the CCTV footage that Ms Millar immediately opened the driver's door in an attempt to escape and that you physically restrain her. She was screaming for help and continuously sounding the car horn, which is clearly ascertained from the statements of the witnesses. It appears to be at that point that you use the knife on Ms Millar, stabbing or slashing her in the neck/throat area whilst still pumping more petrol over her from the petrol nozzle in your right hand. Ms Millar can be seen frantically trying to get out of the vehicle to escape you, whilst you are physically restraining her and overpowering her. You then remove a cigarette lighter from your pocket and ignite the fuel on Ms Millar and in the car. The inside of the vehicle erupts into an explosion and flames, which also ignited Ms Millar and her clothing. When this occurs you immediately exit the vehicle via the passenger door, remove your burning jacket and shoes and commence pacing near the rear of the vehicle. Ms Millar, on fire from head to toe, eventually manages to remove herself from the vehicle via the drivers door which she had already opened in an attempt to escape from you. She stumbles a short distance before falling to the ground in an upright position next to the burning vehicle. Her entire body and whatever clothing she had on remains engulfed in flames.

17 I have viewed the CCTV footage of this horrific event. For a period of three minutes and 21 seconds Ms Millar sits on the forecourt of the garage burning from head to toe. It is beyond human comprehension that this is a person that is on fire and burning to death, as is apparent from the witness statements. Not only have you doused her in petrol and set her on fire, you then take even more horrific action, in that you then prevented any person coming to her assistance or aid. People are ringing triple 000 and attempting also to get to her to try and extinguish the flames. A person had a fire extinguisher. But anyone who came towards approaching her was told by you, "fuck off, I'm going to kill you" or "fuck off or I will stab you" and all the while you were brandishing the knife. You also stabbed yourself in the chest area, cut your own throat; none of which were indeed of any life threatening severity. Whilst you were preventing all of these people who were trying to assist Ms Millar you made comments to her - walking up close to her, ensuring that she could hear you and saying,

"burn bitch burn," - "I hope you die" - "burn let her burn" - "hurry up and burn".

Ms Millar could be heard to scream for almost all of the time that she was on fire.

18 It was only when a citizen drove his car towards you and you moved out of the way of the moving vehicle that people were able to go to the assistance of Ms Millar. They extinguished the flames and carried her charred and incredibly damaged body away from the burning vehicle in an attempt to make her safe.

19 Whilst this was occurring, you had fled to an area a short distance away, approximately 200 metres west of the Safeway Service Station. where you were located on the steps of the rear of a church. You still held the knife in your hand, you were sprayed with capsicum spray on at least three occasions, it made no difference, you kept brandishing the knife.

20 Whilst at the location on the church steps, the short distance away from the Safeway Service Station, you behaved in a relatively bizarre manner, you paced around, you made growling noises but you kept brandishing the knife and making gestures about cutting someone's throat. You refused to comply with any directions by the police and at one point you cut a hole in a copper pipe and commenced sucking the gas from the line, the police closed that gas line. You also cut an electrical wire attached to a heating unit, it gave you an electric shock and you jumped back from the unit. Finally, at 11am you complied with the police requests and dropped the knife and you were taken into custody. You were able to tell the police the name of the deceased, referring to her as Nic and you gave your name as Dave. You made no further statements at that time and the ambulance officers took over and treated you.

21 Meanwhile, Ms Millar was treated at the scene by firstly witnesses who tried to help her and then ambulance personnel before ultimately being taken by air ambulance to the Alfred Hospital, arriving at approximately 9.43am. She was assessed by medical staff in relation to her injuries. It was found that her injuries were non-survivable. She was still conscious and in what could only be said to be indescribable pain. An anaesthetist attended at 10am that morning to intubate Ms Millar to help relieve her pain and suffering. She was asked if she knew who did this to her, to which she replied yes David Hopkins. She then said to the anaesthetist "please don't let me die". She was intubated and placed into an induced sleep and died at 6pm that evening. Ms Millar had full thickness burns to over 90 per cent of her body

22 You were taken to the Royal Melbourne Hospital where you were treated for burns and the self-inflicted stab wounds and cuts to your neck, chest and arms area. You made no admissions to police..

23 An examination of the premises where you and Ms Millar were residing on 2 June disclosed a yellow book titled 'A Brief History of a Car Bomb' together with drug paraphernalia and two bongs in a rear shed. The knife was identified as one which you carried on a regular basis.

24 I have received four victim impact statements. The first is from her daughter Ashlea, who has previously suffered from depression, which has been exacerbated by this tragedy. Whilst she refers to her loss and her distrust of people she also says that she is not going to let you and your actions control her life, but try and live her life as a tribute to her mother, by continuing her education. The other two children chose not to put victim impact statements before the court, which is their right, and it may well be that it is too distressing for them. I do not know and I draw no conclusions. It is not necessary to have a victim impact statement to appreciate the consequences and impact this trauma will have upon their lives, particularly as the children all saw their mother in hospital before she died. The three other victim impact statements are from the console operator in the service station, a passing trainee paramedic who went to assist and another untrained person who also went to her assistance. Mr Filmer who went to assist Ms Millar is now a shattered human being who has spent many months in a psychiatric hospital suffering from very significant post traumatic stress disorder, which has all but destroyed his life. The lives of both of the other persons who tendered victim impact statements have also been seriously affected but not to the degree of Mr Filmer. The words of Mr Allen, the trainee paramedic resonate:

While some time has passed since this incident, I still think about it most days. I can still see the victim's helpless eyes, hear her voice and even smell her charred flesh.

25 Equally the statements of some of the witnesses as to what they observed and the effect it had upon them should be noted, even though they are not contained in victim impact statements. To have witnessed the death of Ms Millar in this manner would be a life changing event for any person with a skerrick of humanity. I will refer to just some of those statements. The statement of Christopher John Murphy at page 74 of the depositions where he said:

I ran over to the woman with a bunch of people to help her. She wasn't on fire any more so I took off my red jumper and put it under her right arm and we dragged her away from the car because it was popping and too dangerous to be close to. We got her away from the petrol station and I remember that the woman had no clothes left on her. Her skin was yellow and she had only a small patch of hair left on her head. Her skin was falling off and I could smell her skin burning. I think that the woman may have been a black lady, maybe African, because of her features but it was hard to tell because of how badly burned she was. I remember that she was conscious because she said a few words but I couldn't make out what she was saying. She was very distressed but she wasn't screaming, as though it had gone past that stage.

I was afraid for my life and I genuinely thought that the man would kill me if I got too close. It was really traumatic seeing that lady on fire and I really wanted to help her but I couldn't do anything.

It has remained etched in my mind, her on the ground burning and asking for help. You see her burning, you try to get there, but you can't.

When I first saw this person that was burning I couldn't make out whether they were male or female. I thought it was a black Samoan person, but I now know that it is a female, this female was a flame ball.

Other people were trying to get to her, but couldn't get near her. As soon as someone would try to get anywhere near her, he became aggressive and would aggravate the situation. He was definitely guarding her, you could not get anywhere near her.

This incident affected me with work, I can only do half-days, I cannot put petrol in the car, I can't even go into petrol stations to buy cigarettes.

I continued to watch the man and it is probably only four or five car lengths away. I could see his face, put it that way. I heard him yell out "burn, hurry up and burn" or something very much like that. He said it several times and each time it was in an aggressive way. As he said it he sort of leaned down a little bit towards the girl. I could see that there was a girl there and she was on fire. She looked like she was in the car and trying to get out. It was just sort of a burning mass that fell out of the car. The girl looked little and she was just on the driver's side on the ground beside the car. This girl was screaming the most unbearable screams you've ever heard in your life. The man was pacing around and stopping people from getting to the girl to help.

I grabbed two 15 litre water bottles and ran outside. I carried two bottles by myself, I don't know how I did it because under normal circumstances I just couldn't. I got down to where the girl was I put the water bottles down and I took one look and I just ran away, I could not bear to look at the girl. She had plenty of people to help and the sight of her was just horrific. It was best I just went back to the store, my legs went like jelly and I couldn't talk. Somebody took me under the car park and got us a cup of tea. I had a blanket around me but I couldn't swallow the tea because I thought I'd be sick. I haven't been able to sleep at all since it happened. I'm really affected by what happened and keep seeing the girl's head and skin. I wish I hadn't seen her like that.

26 So many people have been traumatised by what you did. The behaviour you exhibited that day is an example of the worst kind of viciousness and sadistic behaviour that a court is likely to ever see. For some unknown reason, you set this young woman on fire, you immolated her and then proceeded to prevent anyone coming to her assistance whilst she was burnt alive in front of many people and CCTV cameras. She remained conscious and aware of what you were doing to her. You not only burnt her, you actively, during this very long three minutes and twenty-one seconds, told her to die and to burn in hell - appearing immune to the pain and suffering that she was undergoing. She would have been aware, as she was conscious, that there were people there potentially trying to help her, assist her in some way to extinguish these flames, and that it was only your behaviour that was preventing that occurring. You approaching close to her and stating what you did to make sure she could hear you was an indication of your depraved indifference to the feelings and suffering of this woman.

27 It is often said in this court that it is possible to imagine a scenario in which the facts could be worse than the example before the court. In this case that cannot be said. The murder of Nicole Millar falls into the worst case scenario that a court can imagine for a charge of murder. Whilst there may be other cases that may also fall into the worst case scenario and possibly even be worse than this it defies my capacity to imagine them. What you did to this woman on this day was unspeakable. You had demonstrated animosity towards her previously, you had threatened her life previously, but nothing would have prepared her or anyone else for a scenario such as you unveiled on this day and in the most public of manners.

28 Your counsel when asked if this was a situation in which the appropriate head sentence was one of life imprisonment did not demur. In fact, all that was said in relation to that was that he would be seeking that a minimum term be imposed to reflect a number of matters to which I shall shortly refer. The passage relating to this is contained at page 60 of the plea:

Her Honour: I said is this a case in which you should be talking to me about whether it merits life imprisonment as the head sentence? It's a worst case scenario.

Mr Moen: We suggest your Honour can place it in the position of the worst case, however we say that there is scope for you looking at a parole period that would give him some hope, at the end of the day, for the purposes of getting out and indeed, putting himself into the community. Specific deterrence, yes looms very large.

Her Honour: I agree that they're somewhat dated (referring to his prior convictions) but this is such a bad murder, such a bad murder.

Mr Moen: We would suggest, your Honour, that there are factors which would indicate that your Honour can impose a non-parole period which would give him the opportunity, at least, to get back into the community.

29 It is my view that the circumstances of your offending are such that it calls for the imposition of the maximum penalty allowed under our law for the crime of murder and you will be sentenced to life imprisonment for this crime. I will however be imposing a minimum term as a result of a combination of various factors. One of those factors is your plea of guilty.

30 You pleaded guilty to this count of murder at the committal proceedings on 8 March 2011. On 22 March 2011 you appeared before me and said that you had some concerns in respect of the medical material and information. You were informed that if you intended to plead guilty that the plea would be a binding plea, and the matter was adjourned for a week to give you sufficient time to confer with your legal advisors and be satisfied in respect of the materials. The matter came on for mention again on 29 March 2011 at which point you were arraigned and you pleaded guilty to one count of murder.

31 From that time until early September of 2011, you sought to delay the hearing of the plea and ultimately made application to change your plea on the basis that you had a defence of mental impairment open to you as a result of being in "a drug induced psychosis". The application to change your plea was dismissed for a number of reasons, including the fact that a drug induced psychosis does not and cannot amount to defence of mental impairment under the Act[1], together with the fact that there was no psychiatric evidence to indicate that you were suffering from a drug induced psychosis at the time of the commission of this offence. In fact the evidence is to the contrary.

32 Accordingly, I accept that you have entered a plea of guilty, that you entered that plea at an early stage, but I do not find it to be demonstrative of remorse. It is however a valuable plea in that it saves the court and the community the expense and difficulty of a trial, it spares the various witnesses from having to come and relive what it was they saw and endured on that day in June. The community is well served by that plea of guilty even though it ultimately became a reluctant plea of guilty. Although the crown could have easily proven the case against you, as the entire murder was filmed, as well as many eyewitnesses being present, you still receive the benefit of that plea. All pleas of guilty, even if they serve only a utilitarian purpose must be given credit and encouraged. I will do that in respect of your plea. I do not however find your plea to be any indication of remorse.

33 I accept that around the time in question you had consumed large numbers of assorted drugs. You stated to the staff at the Royal Melbourne Hospital that you had within the last 24 hours consumed hash (otherwise known as cannabis resin), speed (otherwise known as methylamphetamine), methamphetamine (otherwise known as ICE), Viagra, testosterone and ethanol (commonly known as alcohol). All of that is consistent with your drug use over the previous year or more. As a result of the injuries you had inflicted upon yourself and your burns you were fairly immediately treated with morphine in respect of pain relief, so it would have been quite difficult to ascertain the precise quantities or levels in your blood of any of these substances.

34 Reports were obtained from the hospital and your records were also obtained as a result of subpoenas that were served. You were transferred after a number of days to St Vincent's Hospital to the custodial unit. Your previous instructing solicitors obtained a report from Dr Adam Deacon, a consultant forensic psychiatrist, dated 9 November 2010, as to your mental health and particularly as to how it may have been on that day. There are various aspects of that report that need to be noted At page 2 he states:

Mr Hopkins presented as a calmly mannered man dressed in prison greens. He appeared to generally engage openly and candidly, the only period of hesitation occurred when he was asked to describe the day of the offence. He reported complete amnesia for the offence. Mr Hopkins was genuinely lucid and attentive. He did not present with any signs of cognitive impairment. He briefly and episodically presented as vague and indifferent, but this was not consistent with any obvious organic process or mental illness, and...

Mr Hopkins contained his emotions when reflecting and discussing his offence. He appeared to be genuinely perplexed by his actions on the day of the offence. He denied a history of relationship acrimony prior to the offence. He emphasised his prominent level of illicit drug use over 2008 to 2010 but particularly in the week prior to the offence.

In relation to your drug use, the following was what you told Dr Deacon:[2]

Mr Hopkins has an extensive illicit drug use history. He smoked cannabis from aged 18 to 27. He ceased using after being caught growing marijuana plants. He was given a suspended sentence. He had smoked cannabis 'socially' since the age of 27. He smoked one gram of cannabis in the week prior to the offence. Mr Hopkins has a 22 year history of amphetamine use, commencing at age 18. He used amphetamines on a social basis up until 2008 on a weekly to monthly basis. From late 2008 through 2009 his use increased to three times weekly. He experienced insomnia with periods of up to five days without sleep. He used methamphetamine in a similar pattern from 2008, having commenced use in 2002.

Mr Hopkins started using heroin at age 18. He ceased at age 20 and then resumed in late 2008. He denied ever establishing a heroin dependency, however he periodically 'binged' for periods particularly with his ex-partner Ms Millar. He continued to use heroin in 2010. In the last two years he had maintained abstinence for periods.

Mr Hopkins used ecstasy in late 2008-9, on a social basis with occasionally bingeing in 2009. Mr Hopkins used benzodiazepines including Diazepam and Temazepam and Oxycontin, an opioid analgesic to assist with sleep. He would intermittently use combinations of pills in quantities of over 100 over a period of five days to assist with sleep. Mr Hopkins used anabolic steroids including Deca - durabolin, and testosterone over a seven week course in 2005. In May of 2010 he used a combination of Sustanon 250 and another anabolic steroid (name not recalled) for a fortnight. He injected the steroids intramuscularly. He obtained eight bottles of anabolic steroids on the black market. He most recently used the steroids approximately eight to 10 days prior to the offence on 30 May 2010. He had proposed to work out at a gym.

Mr Hopkins had previously used magic mushrooms and LSD.

Mr Hopkins rapidly became a heavy alcohol drinker from aged 16. He mostly consumed alcohol at pubs on weekends. In his 20s he drank a couple of times per week. His consumption had increased daily over the last 10 years. He typically drank six cans per day. He was charged with drink driving in 1990. Mr Hopkins accepted he was alcohol dependent over the last 10 years. He needed to drink alcohol, whilst he mostly controlled his drinking to six cans per day he occasionally consumed alcohol in the morning. Mr Hopkins described himself as a happy drunk. He denied a history of aggression when intoxicated.

That appears to be the most reliable history of your drug involvement that I have been able to ascertain from all the materials in this case. You have a drug history that is extensive, it is not dependent on your association with Ms Millar, considering you had been using drugs and alcohol at different levels since you were 16. This information is consistent with the information you provided to the ambulance officers and the hospital upon your arrival.

35 In respect of how this drug history and your drug consumption during the prior week is connected to the murder of Nicole Millar, reliance was placed upon the report of Dr Deacon and Mr Bernard Healey, psychologist. Whilst I have looked at the report of Mr Healey, I find the report of Dr Deacon to be of more assistance in this area.

36 In his conclusion referring to your mental state Dr Deacon noted:[3]

Without reliable corroborative evidence it is difficult to be precise in determining Mr Hopkins' mental state in the week prior to the offence and on the day of the offence. The only person who witnessed his mental state was Ms Millar's son, Mr Kane Robertson. I note Mr Robertson reported that Mr Hopkins was not presenting as unusual on the evening prior to the offence. It is possible that Mr Hopkins was experiencing mild paranoia, but was able to adequately contain his behaviour to a level that he appeared to be objectively normal. It is possible, particularly given the reported quantities and type of illicit drugs used, that Mr Hopkins was experiencing the emergence of a psychotic episode, secondary to the psychotogenic properties of combination amphetamine, methamphetamine, cannabis and anabolic steroids. However there is a lack of evidence to confirm that Mr Hopkins experienced an acute drug induced psychotic episode. It is very difficult to explain Mr Hopkins' report of complete amnesia. Assuming this report to be authentic, it may represent a combination of an extremely agitated mind state, independent of a psychotic process, and/or as a by-product of a transient psychotic state. It is clinically unusual for such a psychotic state, if it occurred, to so promptly settle as it would appear based on the medical notes following Mr Hopkins' admission to hospital.

Mr Hopkins medical files did not support the suggestion that he was acutely mentally ill in the days following arrest. It is worth noting that Mr Hopkins was sedated with a combination of Midazolam and Diazepam during his admission in intensive care whilst recovering from burns. A psychiatric assessment conducted on 4 June 2010, three days after the offence, did not confirm a psychiatric illness. I note he was described as agitated, paranoid and angry on 2 June 2010, one day after the offence. These descriptions are non-specific and could be explained by his sedated state alone. Mr Hopkins when assessed at the Melbourne Assessment Prison on 3 July 2010, a month after the offence, confirmed that Mr Hopkins was mentally stable with no residual symptoms or signs suggestive of a psychotic process.

37 In the report of Dr Deacon he said:[4]

The DVD of the media coverage was mostly unhelpful in assisting in determining characteristics of Mr Hopkins' mental state during the period when he was being arrested. Mr Hopkins certainly presents as agitated and distressed, but without clear audio it is not possible to specify other qualities to his mental state. I note that Mr Hopkins was relatively calm immediately following his arrest.

Mr Hopkins' medical file notes did not support the suggestion that he was acutely mentally ill in the days following arrest.

Mr Hopkins when assessed at the Melbourne Assessment Prison on 3 July 2010, a month after the offence, confirmed that Mr Hopkins was mentally stable, with no residual symptoms or signs suggestive of a psychotic process. Mr Hopkins does not need psychiatric treatment during the period he has been incarcerated.

On the balance of the limited information available, it would be reasonable to suggest that Mr Hopkins' mental state was unduly affected by a combination of illicit drugs and alcohol but the nature and quality of the effect of these substances is very difficult to determine. It is difficult to determine if there was an association between Mr Hopkins' drug affected mental state and the offence, although on the balance of clinical information available, it is possible.

38 As was noted by Justice Smith in the case of The Queen v Sebalj,[5] when considering whether a drug induced psychotic state could amount to a mental impairment stated:

Unless some limits are imposed upon the term 'a mental impairment', the statutory defence and the statutory regime would apply wherever the mind of a person charged with an offence had been adversely impaired to a material degree by alcohol or other drugs. This would be a dramatic and extremely wide-ranging change to the law and vast numbers of accused people could seek to rely on and be made subject to the statutory regime.

39 I am satisfied that your drug consumption during the week had some impact upon your behaviour, but not to such a level that you were not in control of your own thoughts and actions. I am satisfied that you were not psychotic either on that day of the murder or for the whole of the previous week, be that a drug induced psychosis or otherwise, but I do accept that you were in a drug fuelled rage. The evidence indicates that you were not psychotic at the time that you arrived at hospital and that is highly inconsistent with any presumption of a psychosis. There was nothing over the time that you were in hospital that supports such a diagnosis, nor any time thereafter. It is your anger erupting into rage that has allowed you to commit this offence and to commit it in a manner that if you had not been in that drug fuelled rage you may not have committed. Rage - drug fuelled or otherwise - is not an excuse, it is no more than part of an explanation for your behaviour. Like the consumption of alcohol and other drugs, it may go some way towards explaining your behaviour which was inexplicable behaviour towards another human being for whom you supposedly had affection. Many murders are to a degree inexplicable in that persons are so often murdered by someone who they loved or who loves them and it is passion that turns often in the heat of rage into deadly force.

40 In your case, you had at times been caring and considerate to Ms Millar as can be seen from the statement of her son Dean and her daughter Ashlea, but equally you had at times, as indicated, been violent and abusive, including pushing her out of a moving vehicle at one point, although you denied any history of relationship acrimony prior to the offences to Dr Deacon.

41 Your drug and alcohol consumption is something I take into account, but the person consuming all of those substances over the years is the person who is to be punished, not the one that through forced incarceration is no longer, at this moment, drug addicted. Whilst I can and will take into account your current drug free status, that is a matter that will go towards the issue of your rehabilitation.

42 I have to take into account your personal circumstances and history. You were born on 1 October 1969 and aged 40 at the time of the murder, you are now 42 years of age. You were born in Box Hill, one of seven children, being four girls and three boys - you have a twin brother. Your mother is aged 72 and your father 75. He is a retired metropolitan fire brigade officer and your mother was a stay-at-home-mother until 1986 when she then worked part-time clerical at St Vincent's Hospital.

43 You attended St Peter and Paul's Primary School in Doncaster and according to the report by Dr Deacon you were a disruptive and readily distracted child who required assistance with literacy, although you denied any major behavioural problems. You told Mr Bernard Healey, psychologist, that you were diagnosed with a measure of dyslexia when you were at primary school. You attended East Doncaster High School and you repeated Year 7. You were part of a program which required the attendance at different schools for different classes including at Blackburn Secondary College and Blackburn Technical School. It was part of a special program. You attended Templestowe Technical School in Year 8 from which you were expelled in third term following an outburst against the principal. In Year 7 you had struck a teacher at the school at you were then attending. You have since then worked in a variety of predominantly unskilled jobs, including tree lopping, carpentry in respect of construction sites, construction of pool tables and pumping petrol.

44 You informed Mr Healey that for eight years you owned a division of Coates Hire and operated as Coates Prestige, a firm that provided sheds for public events. There are other reports that indicated that was a group to which you subcontracted - either way you built a business over a period of time. I am unable to say precisely what happened but it would appear from the reports tendered by your family members in support of you that you lost that business and in the reference by your sister Nicole Bromfield from the United Kingdom, she stated,

David was working extremely hard for their family which eventually led to him setting up his own business Hopkins Fabrications. At one point he was doing the work of 10 men, working really hard, feeling good about himself. I remember coming home one Christmas and hearing all about what Dave had been doing and being extremely proud of him, everyone was! From a boy that really struggled, to then doing really well for himself. Two beautiful boys, Kathy and his own business! But over time the pressures were getting to him and keeping up with the demands were hard. I think accompanied with his underlying low self-esteem ability to cover up how he is feeling and coping he turned to drugs.

From your sister, Michelle Louise Mesley, in her reference she referred to it in this manner:

It wasn't until September 2008 that our family were informed by Kathy that she had become aware of David's increasing drug habit... particularly with methamphetamines or ice as it is more commonly known. This came as a terrible shock to everyone as David had built up a successful business and had appeared to be doing well in all areas of his life but what unfolded was that he had started using cocaine and ice probably as a means to prop himself up whilst working unbelievable hours, trying to do the work of 10 men in order to complete his jobs in time as he had some incredible deadlines to meet. By the time we were informed of the severity of his drug taking the wheels had already begun falling off and with unbelievable speed David lost his job, his house, his family and his car as a result of his addictions.

45 It would appear that you lost your business in approximately 2006. Your most recent employment was for some two years as a night shift tunnel worker/foreman at East Link. You were terminated from that employment in 2008, once again, it would appear, that was related to your drug usage.

46 You have a large and loving family all of whom care about you immensely. I have read each of the references provided and although in some aspects they are a little unrealistic in terms of refusing to accept that you have any real responsibility for the situation you are now in, preferring to blame the government for failing to you're your addiction, they do demonstrate a strong level of love and support that is available to you and will remain available to you.

47 There is a theme throughout the references from your family that your turning to drugs was a consequence of low self-esteem as a result of learning difficulties relating to dyslexia. The reasons that persons become involved in drug taking of this level are indeed complex and not something that I can determine. The reasoning is also at this point not an entirely relevant matter, as it does not impact upon your sentence.

48 The family members who've written about you refer to a loving, kind, caring brother, and son. There is no doubt that that is the person that they know - the brother and son that they care about. They did not recognise the person portrayed on the video shown in the standoff with police. To them you were never violent abusive or aggressive in their memories. They remember you as hardworking, caring, great father, wonderful uncle, devoted brother. I understand that this is, in so many ways, an ordeal for them. It is difficult to watch a person you love and care about descend into the depths of a drug dependency, and become involved in a crime of an unspeakable nature. They love you and their hearts will be breaking over what has happened to you.

49 You had three children as a result of relationships over a period of time. You had a child, Jamie, who is described as the product of a one-night stand with a woman called Lisa, who you did not see for the first 10 years. You have had some limited contact with Jamie since then. You met your now ex-partner Kathy when you were aged 29. You had a relationship which lasted eight years and that relationship ceased as a result of your having an affair with Ms Millar. You have two sons to that relationship who are now aged nine and six. Your partner and you had purchased a home in Ringwood and she left that home, taking the children with her after she discovered that you had once again commenced drug use and were having a sexual relationship with the deceased. The house was sold, and you lived in motels initially until moving in with Ms Millar. You went through the small amount of money that you got from the sale of your house buying drugs and paying for the motels. Your partner did not permit you to see the children for the first three months, but since that time you had access, and she has brought the boys to prison to see you since you have been on remand. She has been supportive and caring of you and she also wrote a very kind and loving reference on your behalf. There is no doubt that until you again became involved in heavy drug use you had been a good and caring partner and father.

50 I do not understand to this day why people start using illicit drugs like speed, ice and heroin, thinking that they will not become entrapped by them unlike everyone else. It is painful to sit in this court and watch what drugs do to people and the evil that flows from its use. I accept that as a result of your incarceration and lack of taking of drugs in gaol you are now a person that has, at least, a prospect of being rehabilitated in the future, and I will take that into account.

51 Nicole Millar died an horrendous death at your hands. I have no doubt that you are regretful about her death, but I do not accept that you are truly remorseful. At no stage do you really refer to her, the person, Nicole Millar. You certainly acknowledge through your counsel and in your discussions with the professionals the terrible thing that you have done, although denying any memory of what occurred. But at no time do you really express great sorrow or sympathy or pain for Nicole Millar. There is reference to the pain and suffering caused to her children, but Ms Millar is rarely mentioned in a personal capacity. So I accept that you regret your actions, but I have formed the view that your true remorse and sympathy is directed at yourself and the situation in which you find yourself, rather than what you have done to Nicole Millar.

52 I have to balance all of the factors to which I have referred and arrive at a just and appropriate sentence including factors such as just punishment, general and specific deterrence, both of which are important in this case, your prospects of rehabilitation, your plea of guilty, your level of remorse, your personal history together with other matters.

53 This case is in the category of the worst type of murder and should attract the maximum sentence that parliament has legislated for this offence. Accordingly for the murder of Nicole Millar you are sentenced to be imprisoned for life. I will impose a minimum term as requested by your counsel, but it will be a substantial period. I direct that you are to serve a period of 30 years imprisonment before becoming eligible for parole.

54 Pursuant to s 6AAA of the sentencing Act declare that but for the plea of guilty the sentence would have been life imprisonment with a minimum of 33 (thirty three) years.

55 Declare that there have been 502 days served in pre sentence detention in relation to this matter and such is to be noted in the records of the court.

56 Application for the taking of a forensic sample 464ZF(2) is granted.

[1] R v Sebalj [2003] VSC 181

[5] [2003] VSC 181, page 5.