[2013] HCA 37
Frigiani v R [2007] NSWCCA 81
Jonson v R [2016] NSWCCA 286
Muldrock v The Queen (2011) 244 CLR 120
[2011] HCA 39
R v Archer [2015] NSWSC 1487
R v Lulham [2016] NSWCCA 287
R v MMK (2006) 164 A Crim R 481
[2006] NSWCCA 272
R v Sean Lee King [2013] NSWSC 801
Veen v The Queen (No 2) (1988) 164 CLR 465
Source
Original judgment source is linked above.
Catchwords
[2013] HCA 37
Frigiani v R [2007] NSWCCA 81
Jonson v R [2016] NSWCCA 286
Muldrock v The Queen (2011) 244 CLR 120[2011] HCA 39
R v Archer [2015] NSWSC 1487
R v Lulham [2016] NSWCCA 287
R v MMK (2006) 164 A Crim R 481[2006] NSWCCA 272
R v Sean Lee King [2013] NSWSC 801
Veen v The Queen (No 2) (1988) 164 CLR 465
Judgment (10 paragraphs)
[1]
Solicitors:
Director of Public Prosecutions (Crown)
Just Defence Lawyers (Offender)
File Number(s): 2016/237325
[2]
Judgment
On 3 December 2018 a jury found Onitolosi Etuini Latu guilty of having murdered Rhonda Baker on or about 7 August 2016.
The evidence establishes that Rhonda Baker was subjected to multiple blows to her head causing her death. There were other injuries to which I will return in detail, as reference to them is necessary for an understanding of the violence and ferocity with which this much loved young person, only 26 years old, was killed by her partner.
The offender is also charged with the offence of contravene prohibition in an apprehended domestic violence order contrary to s 14(1) Crimes (Domestic and Personal Violence) Act 2007 (NSW).
He continues to deny being responsible for Ms Baker's death, despite the jury's verdict.
The facts of the offending
As stated by Bellew J in R v Sean Lee King: [1]
"In determining the circumstances of the offending, any factual findings I make must be consistent with the verdict of the jury. In particular, I must accept such facts as are established by that verdict, and I must not determine any factual issue in a way which is inconsistent with it (see R v Isaacs (1997) 41 NSWLR 374). The Crown bears the onus of satisfying me, beyond reasonable doubt, of any finding of fact against the offender. The offender bears the onus of proving factual matters in mitigation on the balance of probabilities."
Rhonda Baker was born in February 1990. Her parents are Darcel Baker and Tim Tetava. She has a younger brother Noel and a half-sister Tamania Stampoulis. Rhonda loved her family and was very protective of them. She was close to them and saw them often. She was also very close to her grandfather Noel Baker Snr, whom she would visit at least once a week.
Rhonda had many friends and colleagues who clearly admired her and looked out for her wellbeing and did their best to assist her. Many tried to help her with her dire situation with the offender, which the evidence at trial revealed included many physical attacks and a pattern of psychological violence and control from as far back as 2010. Her best friend Sharnee Marfutenko was valiant, present and helpful in her efforts to assist her friend Rhonda. Her family also tried very hard to help Rhonda in every way.
Rhonda met the offender when she was about 17 years old. There is evidence that the relationship was "on again/off again" type of relationship and that during times when Rhonda was not with the offender, she became her normal self; bubbly and happy.
At the time of the murder, the offender and Ms Baker were living together in an intimate domestic relationship at an apartment in Liverpool. Ms Baker was paying the couple's rent and living expenses.
The offender had a tendency, whilst in an intimate domestic relationship with women, namely Ms Baker and, in 2013, Hayley Bingley, when angry with them, to be violent towards each of them by the use of physical force to the head region.
There was an escalation in the offender's violence and controlling behaviour towards Ms Baker in the months leading up to the offence. This was demonstrated by the evidence of what the deceased told a number of her friends and colleagues and the injuries observed by witnesses who saw her during that period.
It is also consistent with the email that Ms Baker sent herself on 8 April 2016 which provides some insight into the dynamics of the relationship:
"…Like I've said many times before you have won! Your [sic] still trying to seek revenge over me and you already got it. If you wanted me to be as shit as I've ever been, then yes you got it, right now.
But its [sic] properly not enough for you, your [sic] still looking for ways to fuck me completely to the point maybe you can do the worse [sic] & one day I will be dead or suicidal like I haven't had those thoughts before.
And I'm still around, because part of me somehow still has some sort of hope in this.
Makes it worse because I can't even talk to you because yes, I am scared of your reaction, I say something you don't like, looks like I'm going to get bashed now. I tell you what I'm thinking, it's stupid.
You tell me off & I respond, I have a rat mouth. I'm talking back. I can't even say what's on my mind in fear of your reaction, anger or temper.
Maybe things might be better for you if I wasn't around. Besides you tell me every single day how shit I am, how you can do better and you don't need me & on top of that you treat me like shit & I still get hit/bashed or whatever so if you don't want this anymore then you can do all those things you say every day.
It just confirms for me again that I don't exist, I mean nothing to you or do anything & there's no future."
An apprehended domestic violence order (ADVO) was issued at the end of April 2016 as a result of Ms El-Hage witnessing the offender assaulting Ms Baker in their car. The ADVO required the offender not to assault or intimidate Ms Baker. Despite the ADVO, he continued to be violent towards her.
In a discussion with her friend Ms Gray, Ms Baker begged Ms Gray not to go to the police about the offender breaching the ADVO because she was afraid of what the offender would do if Ms Gray went to the police.
The offender had threatened the deceased that if she left him, he would go after her family and burn her grandfather's house down. He made other threats that he would go after her family if she told anyone what was going on in the relationship.
On 11 July 2016, the offender sent Ms Baker a number of abusive and threatening emails. In the exchange, Ms Baker wrote:
"…it's hard especially when you're going off at me and making threats (to the point where I don't want to come home in case something happens). I can't keep living in fear like this every time something happens."
She also referred to a previous threat made by the offender to her to "cave her head in":
"…you just don't need to make threats like that! Of course if your [sic] going to say things like "you better shut the fcuk [sic] up or I'm going to cave your head in" wouldn't you be in fear too?"
On 27 July 2016, 10 days before her death, Ms Baker was severely assaulted by the offender and arrived at work with significant facial injuries. She told a work colleague, Alicia Marix-Evans, that she had been punched in the face that morning "because she answered him back". She told Ms Marix-Evans that the offender was becoming increasingly controlling and violent and that she was trying to leave the relationship and move in with her mother or father.
Ms Baker had had discussions before with other friends and colleagues about getting away from the offender, including moving to Melbourne to live, and expressed concern that wherever she went he would find her.
On Friday 5 August 2016, the offender and Ms Baker had an argument. Ms Baker had packed all of the offender's clothes into a bag in the lounge room. He referred to this in his police interview on 7 August 2016. He described this as an argument where they were "both threatening each other to leave each other" although whether this is an accurate reflection of the argument, or whether it was in fact Ms Baker telling him to leave, or that she was leaving him, will never be known.
On the night of Saturday 6 August 2016, the offender had been waiting outside Hungry Jack's in the city to be picked up by Ms Baker and Kang Warman. He was waiting there for a period in excess of 15 minutes, as observed by another witness. Mr Warman said that on the way to pick up the offender he could hear the offender yelling at Ms Baker through the phone although he could not hear what the offender was saying.
After collecting the offender, Mr Warman was dropped off at a pub in Surry Hills close to 9:30pm. He did not see the offender or Ms Baker again. When he left them, Ms Baker did not appear injured. He did not observe any blood in the car.
It is probable I find that the offender assaulted Ms Baker in the car on the way home from Surry Hills to Liverpool causing injury and bleeding, but I cannot find beyond reasonable doubt that an assault, in fact occurred in the car that night. There was blood found in and on the car on forensic examination the next day. There was no blood in the car park or stairwell. The blood found in and on the car may well have remained from an earlier attack such as the one observed by Ms El-Hage in April 2016. The manner in which the car was found parked, close to a pillar and not straight, does not necessarily indicate that it was parked hastily because the driver, Ms Baker, had been assaulted.
Phone tower records indicate that Ms Baker's phone returned to Liverpool at about 10pm, which is consistent with her and the offender returning to the apartment about that time.
At around 3.45am, a neighbour in an apartment on the floor below heard arguing between a male and a female. It lasted about 5 minutes and then went quiet. She then heard the same voices at about 4am. She thought it was coming from the units above her. She had heard the same voices some weeks before also arguing.
I conclude that the voices she heard may well have been Ms Baker and the offender, but I cannot make a finding beyond reasonable doubt that it was.
I can and I do find however, that sometime in the late hours of 6 August 2016 and/or the very early hours of 7 August 2016, the offender viciously attacked Ms Baker, inflicting multiple blunt force blows to her head by one or more of the mechanisms described by Dr Szentmariay, the forensic pathologist who gave evidence in the trial - that is by the offender's use of his fists on her face, head and body, or by moving her head against a surface like a wall or flooring, and/or by kicking and or stomping on her head, back, ribs and leg.
These are the injuries that were inflicted upon Ms Baker in the attack as found on post mortem examination:
Multiple facial fractures, including a blow-out type fracture of the right orbit around her eye;
Fractures in three places on her zygomatic arch, including one fracture described as "the point of the bone actually caved in, inside the eye bone";
A fracture to the base of the nasal bone;
Multiple rib fractures including 2, 11 and 12 on the right and 3 and 12 on the left;
Bleeding around the left kidney;
Three 1cm full thickness lacerations under her lips - which means that the lacerations were so deep, they reached the underlying bone and exposed it;
A large left shoulder bruise; and
Bruises on the right flank, left lower back and left scapula, as well as on the forehead and eyelids with a contusion over the right nostril, a contusion under the chin and some superficial injuries over the neck.
There was no skull fracture. This was explained by the forensic pathologist as significant, because it means that a fall can be excluded as a cause or contributor to Ms Baker's death.
Professor Buckland described the injuries to Ms Baker's head and face as something that occurs by significant blunt force injury to the head - like an acceleration deceleration injury, so when the head is moving very quickly and stops very quickly or is struck and moves about. He described it as a type of injury sustained in a car accident.
The mechanism of death as described by Professor Buckland was that given the subdural haematoma on the left side, pressure on the brain is created and the brain gets pushed to the side and down into the spinal column, with fatal consequences.
At 4.24am the offender called 000 requesting an ambulance saying his girlfriend had stopped breathing and "I think she got jumped down the street…".
At the direction of the 000 operator he provided CPR until ambulance officers arrived.
At 4.32am ambulance officers John and Cygan arrived at the unit block and parked outside. They went upstairs to the unit where they observed the offender carrying out chest compressions.
Both officers observed that there was a blood spatter against the wall near where Ms Baker's head was positioned, and blood soaked into the carpet in large patches near where she was lying. There was blood located on the floor and walls at a number of other locations around the unit. There was a clump of long dark hair that had been pulled out lying next to Ms Baker on the floor.
The offender in the past had attacked both Ms Baker and Hayley Bingley by pulling and/or pulling out their hair and/or by dragging each of them by the hair.
There was evidence of attempts by the offender to clean the unit. A bottle of carpet cleaner was located in the laundry with DNA consistent with that of the offender on it.
The offender told ambulance officer John that he had been "out with family in Narwee" and he had "come home to find her like that."
A little later the offender told Constable Allen that he had "come home from a mate's house in Auburn at about 4am". Constable Allen observed the offender to be behaving aggressively, accusing Constable Allen of "treating him like a criminal."
In his police interview the following day, the offender initially told police that he had dropped Ms Baker home and then had gone back in the city to meet up with his friends again. He later in the interview changed that to say that he had gone to Auburn and met up with the boys, including Mr Warman, and that although he knew the names of "the boys", he did not want to disclose them.
It is evident, from the Jury's verdict, that they rejected any assertion that Ms Baker had been "jumped down the road" by someone other than the offender. I find that this was something said by the offender to deflect blame away from himself for the attack he had made on Ms Baker that caused her death.
[3]
Sentencing principles
The offence of murder is contrary to s 18(1) of the Crimes Act 1900 (NSW) and carries a maximum sentence of life imprisonment, and a standard non-parole period of 20 years.
A life sentence must be imposed if the level of culpability involved in the commission of the offence was so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence: Crimes (Sentencing Procedure) Act 1999 (NSW) s 61(1) ("the Sentencing Act").
The Crown did not submit a life sentence should be imposed, and although this was a murder of extreme brutality, I have concluded that it does not meet the statutory test for a life sentence.
I need to bear in mind the seven purposes of sentencing referred to in s 3A. [2] They are punishment, prevention, protection, rehabilitation, accountability, denunciation and recognition of harm.
I need also to take into account both general and specific deterrence.
As submitted by the Crown, the purposes of punishment set out in s 3A are constrained by other sentencing principles including proportionality and totality. [3]
The maximum penalty and the relevant non-parole period operate as legislative guideposts that inform the exercise of the court's sentencing discretion. [4]
I am required to make an assessment of where the offence falls within the range of objective seriousness for offences of its kind as part of my sentencing task. I do this without reference to matters personal to the particular offender, but wholly by reference to the nature of the offending.
When assessing objective seriousness, the intent of the offender at the time of the offence is relevant, and an intention to kill is a consideration tending towards greater objective seriousness. [5]
Senior counsel for the offender submitted that there are a number of reasons why I should not find that there was an intention to kill.
First, the offender had perpetrated violence on Ms Baker on a number of previous occasions and so I should infer that this was simply one of those occasions, and given that context, he had not done anything that he thought would kill her. Second, the offender called an ambulance and performed CPR as instructed by the 000 operator and so clearly did not want her to die. Third, he exhibited bizarre behaviour at that time in cutting his hair in the bathroom which was submitted to be "pretty clear evidence" that he was "off his face" and thus did not in fact form an intention to kill. Fourth, the force of the attack "wasn't much different" from what had happened before. Fifth, if he intended to kill Ms Baker, he could have used one of the available tools in the apartment as a weapon.
The Crown has submitted that the following matters support a finding beyond reasonable doubt that the offender did intend to kill, rather than to just cause really serious harm to Ms Baker:
Leading up to the murder, the offender's violent, controlling and threatening behaviour was increasing;
He had threatened both the deceased and her family;
He threatened to kill the deceased just weeks prior to the offence by threatening to "cave her head in", and this attack was a completion of this threat;
He violently assaulted the deceased 10 days before the killing;
The offender and Ms Baker had argued the day before the offence and she had threatened to leave him (or required him to leave), packing all his clothes into a bag;
On the evening of 6 August 2016, the offender was very angry after having been made to wait at Hungry Jack's to be picked up by Ms Baker (and Mr Warman);
The offender viciously attacked Ms Baker, inflicting multiple blunt force blows to her head in one or more of the ways explained by Dr Szentmariay set out in paragraph [26] of these sentencing remarks. He ripped out her hair and caused a number of other injuries that I have also referred to in paragraph [27]; and
At the time that he attacked her, the offender was aware of the amount of force that he had used in the past to inflict severe injuries upon Ms Baker and he was aware that he was using additional significant force this time.
Returning to the arguments made on behalf of the offender, I reject the argument that attempting CPR as directed by the 000 operator, and the absence of use of a weapon militate against a finding that the offender intended to kill Ms Baker.
I also reject the argument that the offender has established a level of drug intoxication which prevented him being able to form an intention to kill. There is no reliable evidence of how much he had taken or smoked although as noted by Dr Eagle a psychiatrist he interviewed with, in her report, he was found to have morphine, methadone, amphetamine and methamphetamine in his blood sample later that day. The offender also told Dr Nielssen, a psychiatrist, in an interview in March 2019, that on the day of the offending he had smoked a combination of methamphetamine and heroin.
However there was no scientific evidence directed at intoxication and its effect on his ability to form an intention to kill or otherwise. To establish this matter on the balance of probabilities, reliable evidence has to be led. The offender cutting his hair off and behaving strangely on the night to authorities does not establish he was significantly drug affected.
There is no doubt that that night, for whatever reason, he acted as he often did - resorting to his fists to show his displeasure. Undoubtedly, as evidenced by the nature and extent of Ms Baker's injuries, he had, as he had on so many other occasions, an intention to cause her really serious harm - to hurt her, bash her face, disfigure her, subjugate her and terrorise her, but I cannot find beyond reasonable doubt that he intended to kill her.
However I accept the Crown's submission that he must have known that this was a harder and more comprehensive attack on her person, and so I find that this is a crime where the distinction between an intention to kill as opposed to the intention to cause really serious harm has only a minor effect on the sentence I will give.
Another matter to be taken into account is that lack of premeditation may be relevant to the objective seriousness of the offence, [6] or as stated in s 21A(3)(b), [7] the offence was not part of a planned or organised criminal activity.
Senior counsel for the offender submitted that there was no premeditation and this was a "crime of passion", committed in the context of a turbulent relationship and that I should consider absence of premeditation suggests a lower level of objective seriousness.
I reject this submission. To so find would be to take the attack out of context. It was not an isolated incident of a sudden passionate outburst. It was yet another violent beating, inflicted as part of a sickeningly repeated pattern of physical subjugation of Ms Baker in the context of her telling him to leave or that she would leave him. On this occasion however it was to a new level of viciousness, as evidenced by the multiple and fatal injuries inflicted upon Ms Baker.
Absence of specific planning is not, in this context, a mitigating factor of much, if any, significance, given there was a pattern of intentional, vicious, disfiguring attacks and a threat to "cave her head in" in the month before, and this attack corresponded closely to the very content of that threat in the way he "caved in", by physical force, parts of Ms Baker's face.
[4]
Objective seriousness of the offence
This was a sickening, violent attack on a defenceless woman much smaller than the offender. Given the number of distinct injuries, the terrifying powerlessness she must have felt, and the undoubted brutality of the manner in which the fatal injuries to her head and face were inflicted, I consider this to be a very serious example of offending of this type.
I assess the objective seriousness as well above the mid-range of objective seriousness of offending of this type.
[5]
Deterrence
This murder was committed in the context of a domestic relationship, and so it attracts particular considerations of general deterrence. As observed by Wilson J of this Court in R v Archer: [12]
"[174] Sadly, it is rare that a week goes by in Australia without a woman somewhere in the country being murdered by her spouse or partner. Violent and non-fatal attacks by persons known to the victim are also common. That is something of which we as a community should be ashamed, and which the courts must seek to address when sentencing offenders such as Mr Archer.
[175] It is incumbent upon this Court to clearly signal the community's intolerance of domestic violence. The High Court has recently given powerful expression to the need for the courts to denounce domestic violence at [55] in Munda v Western Australia [2013] HCA 38,
"A just sentence must accord due recognition to the human dignity of the victim of domestic violence and the legitimate interest of the general community in the denunciation and punishment of a brutal, alcohol-fuelled destruction of a woman by her partner. A failure on the part of the state to mete out a just punishment of violent offending may be seen as a failure by the state to vindicate the human dignity of the victim; and to impose a lesser punishment by reason of the identity of the victim is to create a group of second-class citizens, a state of affairs entirely at odds with the fundamental idea of equality before the law." (per French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ)
[176] This court must be guided by that principle."
I have had regard to the offender's history of criminal offending so as to give more weight to retribution, personal deterrence and protection of the community. [13] In 2007 the offender was convicted of maliciously inflicting grievous bodily harm and assault occasioning actual bodily harm on a young man he did not know at a train station. The victim sustained a number of injuries including multiple fractures to his face, and a severe traumatic brain injury.
The offender was also convicted of assault occasioning actual bodily harm and contravention of an ADVO in relation to one of the attacks he made on Hayley Bingley in 2013.
Whilst the offender has already served periods of imprisonment for that offending, and I am not punishing him for those or for the other beatings he gave Ms Baker prior to the one that caused her death, specific deterrence and protection of the public have particular roles to play in the sentencing of this offender.
[6]
Subjective circumstances
The offender was born in June 1988 and is now aged 31. He has a 7 year old daughter who lives with her mother.
He was born in Sydney and lived some periods in Tonga with his grandparents, going back and forth between Tonga and Australia during his childhood. He is one of 8 siblings.
He has given conflicting accounts about his childhood. To Dr Eagle psychiatrist in May this year he said that his grandmother was "a bit too much" always abusing everyone and yelling, his grandfather was good and he loved him a lot, and his oldest sister was like another mother to him. He said his mother used wooden spoons and extension cords to discipline him.
He made an oblique reference to sexual abuse as a child in answer to a question from Dr Eagle, but then said he "didn't want to talk about it" and "couldn't prove it."
Dr Nielssen, who re-interviewed him on 19 June 2019, said that the offender expressly disavowed any kind of sexual abuse saying that he "never said anything about that" and that it was "never an issue in his family at all."
He gave an account to Dr Nielssen of what he considered to be excessive discipline growing up. He said that there was "a fair bit of violence" and he thought it was "the Tongan way" and that child welfare were never involved because "we were too scared to mention it."
However a Ms Seidler, psychologist, reviewed him for sentencing in respect of his violent offending in 2007, and she was given an account that he was raised in a stable and supportive family environment, that was also particularly disciplined given his parents' high expectations of their children, and that the offender denied a history of abuse or neglect.
The Crown submits that little or no weight should be given to the offender's untested hearsay statements about violence and/or sexual assault experienced in childhood.
I accept that submission.
The references to such matters in the reports before me on sentence are contradictory and vague and so I cannot make a finding on the balance of probabilities that these things occurred.
Even if they were established on the evidence they are not of such a nature as to be a mitigating factor in the way evaluated by the High Court in Bugmy v The Queen. [14]
The offender said that he had difficulty reintegrating at school when he returned from Tonga as he did not know any English. He learnt English from his siblings. He finished year 12. He worked as a boilermaker's apprentice for about four years. He says that he started smoking heroin and amphetamines in custody in 2007. He said he was mostly smoking methamphetamines after release from custody in 2014.
He had not worked at all in the two years before the offending, and was reliant on Ms Baker for money, rent and living expenses.
The offender pleaded not guilty to the murder of Ms Baker. As recently as May 2019, five months after the jury found him guilty of that murder, he told Dr Eagle that he did not kill Ms Baker, even suggesting the possibility of an ex-boyfriend of Ms Baker's being responsible.
The offender lied on the night of the offending and on the following day in his police interview about where he was and what had happened.
He has shown no remorse at all, and no recognition of what he has done.
There is no evidence to assist me on an assessment of his prospects of rehabilitation. He continues to deny his offending. He continues to minimise his role in other offending and tends to "victim blame".
The evidence offered by Mr and Mrs Whitelaw in an effort to address the question of the potential for rehabilitation, whilst well-intentioned, amounts to no more than an acknowledgement that the offender was a good worker for a period of time some years ago, and that in their view, everyone is worth saving. It was evident in cross-examination of each of them that they did not know the full nature and extent of the violent attacks the offender had perpetrated on his various victims.
I am left with the conclusion that whilst the offender continues to refuse to accept any responsibility for what he has done, his prospects of rehabilitation are poor.
There was no argument made that there are any special circumstances that dictate that the usual statutory ratio between overall sentence and the non-parole period should be altered, and so I make no finding of special circumstances.
Whilst the offender clearly has a substance abuse disorder diagnosed by both Dr Eagle and Dr Nielssen, no submission was made that this makes his incarceration more onerous.
[7]
Victim impact statements
In arriving at Mr Latu's sentence, account must also be taken of the victim impact statements provided by Ms Baker's parents - Darcel Baker and Tim Tetava and her sister, Tamania Stampoulis. They have lost a beloved member of their family and on behalf of the Court and myself as a member of this community I extend my condolences to all of the family and friends for the loss of beautiful Rhonda.
The relevance of this material to the sentencing of the offender is prescribed by s 28(4) of the Sentencing Act. The harmful impact of the death of Rhonda on her family is an aspect of the harm done to the community as a whole. A recognition of that harm is one of the purposes of sentencing. [15]
[8]
Sentence
Onitolosi Etuini Latu please stand.
For the offence of breach of the ADVO, I sentence you to a period of 2 years imprisonment commencing on 7 August 2016 and ending on 6 August 2018.
For the offence of the murder of Rhonda Baker, I sentence you to a term of imprisonment of 28 years, comprising a non-parole period of 21 years, commencing on 7 August 2016 and ending on 6 August 2037, with a balance term of 7 years, ending on 6 August 2044.
You are eligible for release on parole on 6 August 2037.
[9]
Crimes (High Risk Offenders) Act
I am obliged to tell you of the existence of the Crimes (High Risk Offenders) Act 2006 (NSW), which applies to offences of the type for which you have been sentenced.
In summary, this means that the State can apply to the Supreme Court for an order that you be held in detention or receive supervision at the end of your sentence if the Court considers you would be a "high risk offender" who poses an unacceptable risk of committing a serious offence.
[10]
Endnotes
[2013] NSWSC 801 at [14].
Crimes (Sentencing Procedure) Act 1999 (NSW).
R v MMK (2006) 164 A Crim R 481; [2006] NSWCCA 272 at [11]-[19].
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39.
Apps v R [2006] NSWCCA 290 at [49] per Simpson J.
Versluys v R [2014] NSWCCA 98 at [21].
Crimes (Sentencing Procedure) Act 1999 (NSW).
Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(2)(eb).
Jonson v R [2016] NSWCCA 286 and R v Lulham [2016] NSWCCA 287.
(s 21A(2)(j))
R v Archer [2015] NSWSC 1487 at [111]; Frigiani v R [2007] NSWCCA 81 at [24].
[2015] NSWSC 1487 at [174]-[176].
Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14; Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(2)(d).
(2013) 249 CLR 571; [2013] HCA 37.
Crimes (Sentencing Procedure) Act 1999 (NSW) s 3A.
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Decision last updated: 26 July 2019
I take into account that the offence was committed in Ms Baker's home, a place where she is entitled to feel safe. [8] I am able to do so notwithstanding that it was also the home of the offender. [9]
At the time of the murder, the offender was subject to a s 10 bond for driving whilst suspended in April 2015 [10] , and I am permitted to take this into account as an aggravating factor.
More importantly I accept the Crown submission that it is a matter of serious aggravation when a violent offence is committed by an offender in breach of an ADVO. [11] The offender has been charged in respect of that breach as well and I will sentence him separately for that, but to avoid double counting, I have made that sentence wholly concurrent with the sentence I will give for his murder of Ms Baker.