[2001] HCA 67
Filippou v The Queen (2015) 256 CLR 47
[2015] HCA 29
GAS v The Queen (2004) 217 CLR 198
[1999] HCA 54
Weininger v The Queen (2003) 212 CLR 629
Source
Original judgment source is linked above.
Catchwords
[2001] HCA 67
Filippou v The Queen (2015) 256 CLR 47[2015] HCA 29
GAS v The Queen (2004) 217 CLR 198[1999] HCA 54
Weininger v The Queen (2003) 212 CLR 629
Judgment (12 paragraphs)
[1]
Background and circumstances
The information concerning the offender's background and circumstances was largely derived from the report dated 24 March 2023 of Dr Andrew Ellis, forensic psychiatrist.
The offender is a 35 year old woman, who was born in Gosford, New South Wales. She was brought up, with her two siblings, by her parents who are still together, although her mother has a terminal illness. She reported having her material needs provided for at home but as she grew up, she would argue with her parents and would run away from home. She reported that she had moved in and out of the family home since the age of 16. Her brother died at the age of 30 by suicide, having been diagnosed with psychosis.
As to her education, she completed Year 10 at Hunter Sports High School and was in mainstream classes, although she said she was bullied, found it difficult to make friends and truanted from school.
After leaving school, she worked for her father in telemarketing for 12 months. Ms McHenry's employment history thereafter was not clear.
At the age of 17, Ms McHenry was sexually assaulted after attending a party at which she became intoxicated. Although she initially reported the matter to police, charges were not laid. She said that she was terrified by the experience and it "destroyed me". Afterwards, she experienced nightmares, felt vigilant around others and had difficulty trusting others in relationships. This precipitated her taking an overdose of tablets and being admitted to hospital overnight.
Ms McHenry has taken psychiatric medication since 2013. She experienced a manic episode in late 2018 and was admitted to hospital.
Ms McHenry also report that she gambled to excess.
As to her use of prohibited drugs, between the ages of 17 and 28 , her "drug of choice" was amphetamine, or "speed". From the age of 28 until her arrest, she generally used crystal methamphetamine or "ice" every day, increasing the amount used after the death of the deceased.
Her relationships have included one which lasted approximately eight years with a man who was violent towards her, leading to apprehended violence orders being obtained against him. Although he was charged with domestic violence offences, the charges were dismissed. She had two children with this man, who is now deceased. Dr Ellis also reported that Ms McHenry has a child with another man with whom she lived for three months and another child with the man she lived with for two years.
For some months during 2018, Mr Dilosa lived with Ms McHenry and her children at Narara. There were some reports or information concerning incidents involving Mr Dilosa interacting with her children, for example by stuffing socks in one child's mouth to make him be quiet and cutting off one of the children's rat tail, but I was not satisfied that the nature and extent of any such abuse, the circumstances in which it occurred, and its adverse effects, if any, upon the children were established on the balance of probabilities on the evidence before me.
By 2019, it appears that Ms McHenry was unemployed and in receipt of a single parent pension, generally living at her house in Narara provided by the Department of Housing, but also moving between her mother's home and that of her ex-partner's older children.
[2]
The offender's mental health
Dr Ellis was of the opinion that the offender suffered from:
1. Substance use disorder;
2. Post-traumatic stress disorder as a result of experiencing domestic violence as an adult and sexual assault as a teenager;
3. Personality disorder with borderline and dependent traits; and
4. Pathological gambling.
He also opined that the earlier consideration by other clinicians of bipolar disorder and major depressive disorder were more likely substance induced mood states.
Dr Ellis expressly recorded that "[t]he psychiatric conditions that Ms McHenry suffers from are common in the criminal justice system and there is access to medication and psychological therapies to address them".
As to the significance of Ms McHenry's mental health in relation to the offending, it can be noted that the account given by Ms McHenry to Dr Ellis concerning the events on 17 August 2019 relating to Ms Easey's murder was substantially the same as one of the versions of the events that she gave during a recorded interview with police. Dr Ellis recorded Ms McHenry's account to him as follows:
"… When they [Ms Easey, Mr Dilosa and Ms McHenry] returned to her house She let Ms Easey sleep in her room and she slept on the lounge.
She said that when she was aware that Ms Easey had died she gasped for breath and then pretended to be asleep. She said that she 'freaked'. She thought that Mr Dilosa was 'just a talker' when he had threatened to use violence in the past. She began to think 'I'm fucked' and 'what can he do to me and my children'. She was aware that he knew where her children could be located. She recalled him being violent to her children."
To the extent that this version involved Ms McHenry neither participating nor having any prior knowledge or awareness of Ms Easey being attacked with murderous intent, it was inconsistent with the jury's verdict. As a result, this version was required to be rejected.
In these circumstances, Dr Ellis's opinion does not deal with the effect of her mental health conditions on her participation, in whatever form it took, in the murder of which the jury found her guilty.
Accordingly, and in light of all the evidence as a whole, I was not satisfied on the balance of probabilities that Ms McHenry's mental health conditions played any significant causal role in the murder offending, or in the dishonestly obtaining a financial benefit by deception offending.
In the circumstances, Ms McHenry's mental health diagnoses, especially her PTSD as a result of domestic violence from her earlier partner and her sexual assault as a teenager and her substance use disorder, do not reduce her moral culpability in this case to any significant extent especially as the victim was another woman who was not suggested to have been violent towards Ms McHenry.
Nonetheless, I accepted that the principles summarised in Aslan v R [27] could be applied in the circumstances of the present case so that Ms McHenry's mental health issues resulting from previous domestic violence and sexual assault should be found to reduce the need for personal deterrence and to decrease her suitability as a vehicle for general deterrence, albeit only to a modest extent.
[3]
Lack of significant criminal record
Ms McHenry's criminal record contained only:
1. Three offences of driving while her licence was suspended on three consecutive days in September 2019, after the murder;
2. One offence of dishonestly obtaining property by deception in 2015 for which she received a s 10 bond;
3. One offence of bringing a prohibited drug into a place of detention in June 2019 for which she was fined $500.
In these circumstances, I accepted that she did not have any significant record of previous convictions, and that her sentence should be mitigated in light of that fact.
[4]
Remorse
There was no submission made that Ms McHenry should be found to be remorseful. I accepted that, on the evidence, there was no sufficient basis to find that Ms McHenry had shown remorse by providing evidence of accepting responsibility for her actions or acknowledging the injury, loss or damage caused by her actions. I did not, however, impose a harsher sentence than would otherwise have been appropriate because no remorse had been demonstrated.
[5]
Prospects of rehabilitation and likelihood of reoffending
In relation to her prospects of rehabilitation and the likelihood of reoffending, it was submitted by counsel for the offender that she had good prospects of rehabilitation and was unlikely to re-offend in light of:
1. Her functioning well in custody and no longer abusing substances;
2. Her participating in and being awarded certificates for completing the following programs in custody: Enough is Enough; Out of the Dark; Seasons for Growth; Positive Lifestyle; Mothering at a Distance; Storytime; Keeping Us Strong; Being in Control; Keeping Together; and Rhythm 2 Recovery;
3. Her studying for and being awarded a Certificate III in Cleaning Operations, a Certificate I in Information, Digital Media and Technology, a Certificate II in Aboriginal & Torres Strait Islander Cultural Arts, a Certificate III in Business and a Statement of Attainment for Enterprise Trainer - Mentoring Skill Set;
4. Her being employed in custody as a peer support leader and a sweeper; and
5. Her ongoing contact with, and support from, her family.
I noted that Ms McHenry's custodial record indicated that she had not committed any custodial offences since May 2021.
Having regard to these matters, I was satisfied that Ms McHenry has good prospects of rehabilitation and it is unlikely to she will reoffend. I have taken this into account in the offender's favour as mitigating any sentence.
[6]
Hardship in custody
Dr Ellis in his report referred to the hardship experienced by Ms McHenry in custody because of the Covid-19 pandemic. I accepted that this and her mental health conditions have rendered, and may in the future render, the offender's time in custody more onerous, at least to some extent, than might otherwise be the case. I have also taken this into account in determining the sentence to be imposed.
[7]
Commencement date
Ms McHenry was arrested on 19 September 2019 and has been in custody since that time. Both parties submitted and I accepted that the sentence should be backdated to commence on that day.
[8]
Special circumstances
Mr Evers submitted that given Ms McHenry's background of trauma, drug addiction and other mental health issues, notwithstanding the fact that those matters will be addressed in custody, she will need substantial assistance for an extended period of time, upon her returning to the community. The Crown submitted that, given the length of any sentence, the parole period afforded by the statutory ratio would be sufficient.
The need to address Ms McHenry's mental health issues, her reintegration into society, her rehabilitation and her re-engagement as a mother with her children, after release into the community, mean that it is appropriate, in my view, to allow a greater time on parole than would be provided by the statutory ratio. These matters constitute special circumstances justifying a variation of the statutory ratio of the non-parole period to the total sentence in this case.
[9]
Victim impact statements
In addition, the Court received and heard the victim impact statements from: Ms Jennifer Collier, the deceased's mother; Mr Colin Easey, her father; Ms Tahnee Easey, her sister; and Mr Brendan Easey, her brother. The Crown applied for the Court to consider the impact of Ms Easey's death as disclosed in those victim impact statements when determining an appropriate punishment for the offender.
It is appropriate to note here that these statements made clear the extent of the harm caused by the death of Ms Easey in the circumstances I have already described. Ms Easey was described as a "beautiful soul", a "loving mother, sister and daughter" and someone who had a "passion for life and helping others". The effect on her family was said to be "indescribable", "absolutely heart crushing", "horrific" and "excruciating". It was noted that the victim's children have been taunted at school because of the circumstances of their mother's death.
The particular use that may be made of these victim impact statements is governed by the terms of the Sentencing Procedure Act. [28] 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.
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 context, content and texture to the undoubted proposition that every unlawful taking of a human life harms the community in some way. [29]
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 provided to the Court so as to recognise that the harm done to Ms Easey's family 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 serve, as they do in this case, as a powerful reminder of the quality of human life itself, and all that is involved in taking it away. [30]
[10]
Additional remarks
Before formally announcing the sentence of the Court, it remains to acknowledge the death of Ms Easey as a human and personal tragedy, which should not be treated only as the subject of a criminal trial. The evidence in this matter confirmed that she had a kind heart and was a loving mother, sister and daughter. Her death in such distressing circumstances has caused indescribable grief and sorrow for her family and distress to all others involved.
The Court extends its very sincere sympathy for their loss to Ms Easey's family and all those affected by her death.
[11]
Sentence
In the present case, Ms McHenry is to be sentenced for two offences, but I proposed to impose one, aggregate sentence.
The sentences I would have imposed for each offence had separate sentences been imposed instead of an aggregate sentence are:
1. For the offence of murder, imprisonment for 22 years with a non-parole period of 15 years and 3 months; and
2. For the offence of dishonestly obtaining a financial advantage by deception, imprisonment for 12 months.
Since the dishonesty offence involved separate and distinct criminality from the murder offending, a degree of notional accumulation is appropriate. Nonetheless, having regard to the principle of totality and the fact that the offending was related to, and occurred in the context of, the murder, it is also appropriate to allow a certain degree of notional concurrency.
Taking into account all the relevant facts, including the objective seriousness of the offending and 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 two offences for which Ms McHenry is to be sentenced and the standard non-parole period for the offence of murder, I determine that the appropriate aggregate sentence is imprisonment for 22 years and 6 months, made up of the non-parole period of 15 years and 6 months and the balance of the term of imprisonment of 7 years.
Accordingly:
1. The offender is convicted of the murder of Danielle Easey and of dishonestly obtaining financial advantage by deception and is sentenced for that offending to imprisonment for a non-parole period of 15 years and 6 months commencing on 19 September 2019 and expiring on 18 March 2035 and a balance of term of 7 years expiring on 18 March 2042.
2. The offender will first be eligible for release on parole on 18 March 2035.
3. The offender is informed of the existence of the Crimes (High Risk Offenders) Act 2006 (NSW), which applies to "serious offences" including the offence of murder for which she has been sentenced. This means that the State can apply to the Supreme Court for an order that she continue to receive supervision or be held in detention at the end of her sentence if the court considers she would be a "high risk offender" who poses an unacceptable risk of committing a serious offence.
[12]
Endnotes
The related offence contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW) was contained on a certificate under s 166 of the Criminal Procedure Act 1986 (NSW).
Crimes Act, ss 18, 19A, 21(1); Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A, Pt 4, Div 1A, Item No 1.
GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22 at [30] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ).
Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 (Cheung) at [12]-[14] (Gleeson CJ, Gummow and Hayne JJ).
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 (Olbrich) at [24]-[27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ); Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 (Filippou) at [64] (French CJ, Bell, Keane and Nettle JJ.).
See for example the discussion of relevant factors by R A Hulme J in R v Edwards (No 3) [2019] NSWSC 1815 at [47]-[49].
This was because the Crown put its case that Ms McHenry was guilty of murder on a number of alternate bases including: (a) that she was a participant in a joint criminal enterprise with Mr Dilosa to attack Ms Easey with intent to kill or cause grievous bodily harm (murderous intent) even if she did not physically attack Ms Easey; and, (b) that Ms McHenry physically attacked Ms Easey with murderous intent, either alone or with Mr Dilosa, and either pursuant to a joint criminal enterprise or without any agreement.
Olbrich at [24]-[27]; Filippou at [64].
Tcpt, 19 October 2022, p 437(50).
Tcpt, 19 October 2022, p 438(10)-(20).
Tcpt, 19 October 2022, p 622(17)-(18).
Tcpt, 31 October 2022, p 870 (46)-871(2).
Tcpt, 31 October 2022, p 871(10)-(15).
Tcpt, 1 November 2022, p 889(49)-890(5).
Tcpt, 8 November 2022, p 1198(5)-(37).
Tcpt, 18 October 2022, p 246(21)-(26).
Tcpt, 18 October 2022, p 250(2).
Tcpt, 19 October 2022, p 377(4)-(7).
Tcpt, 19 October 2022, p 411(24)-(28).
Tcpt, 20 October 2022, p 528(5)-(18).
Olbrich at [24]
R v Edwards (No 3) [2019] NSWSC 1815 at [48]-[49] (R A Hulme J).
Crimes (Sentencing Procedure) Act, s 21A(3)(e).
Crimes (Sentencing Procedure) Act, s 21A(3)(g).
Crimes (Sentencing Procedure) Act, s 21A(3)(h).
A mitigating factor under s 21A(3)(d) of the Crimes (Sentencing Procedure) Act.
[2014] NSWCCA 114 by Simpson J at [33] and [34] (Adams and McCallum JJ agreeing).
See s 30E(3) of the Crimes (Sentencing Procedure) Act, which substantially re-enacted provisions previously found in s 28(4) of that Act.
Based on the comments of McCallum J (as her Honour then was) said in R v Halloun [2014] NSWSWC 1705 at [46] in relation to s 28(4) of the Crimes (Sentencing Procedure) Act.
Adapting the words of Street CJ in R v Hill (1981) 3 A Crim R 397 at 402.
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Decision last updated: 10 August 2023
The role played by Ms McHenry in how the murder was committed
In the present case, the jury's guilty verdict did not implicitly involve acceptance of any particular role being played by Ms McHenry in the murder. [7] Nonetheless, the verdict was inconsistent with Ms McHenry's versions of what occurred given during her recorded interviews with police. In these interviews, Ms McHenry maintained she was not physically involved in the fatal attack on Ms Easey in any way and she did not agree to such an attack by Mr Dilosa.
As explained already, in circumstances where factual findings were not necessarily implicit in the jury's verdict, it was proper for me to make findings and to take them into account provided they do not conflict with the jury's verdict. In doing so, any facts found against the offender must be found beyond reasonable doubt whereas facts found in favour of the offender need only be found on the balance of probabilities. [8]
Mr Evers of counsel, who appeared for Ms McHenry, submitted that I should, for the purposes of sentencing, find as a fact that "[a]ll the physical acts which caused the death of the deceased were done by Justin Dilosa". This appeared to me to be seeking a factual finding in Ms McHenry's favour.
In support of this submission, Mr Evers drew attention to the evidence of Mr Dilosa's destroying the knife and wrapping and disposing of the body as well as evidence of various admissions made by him as to his direct involvement in the murder. In addition, it was submitted that the evidence that Ms McHenry had made admissions of actually participating in the killing should not be accepted because of the significant doubts about the credibility and accuracy of the witnesses who gave that evidence or because the evidence should be understood as relating only to Ms McHenry being a participant in a joint criminal enterprise to murder Ms Easey but not physically participating in the fatal attack.
Mr Evers also submitted in effect that before the Court could find beyond reasonable doubt that Ms McHenry did some or all of the physical acts which caused Ms Easey's death, it would first have to be satisfied that it was not a reasonable possibility that Mr Dilosa did those acts and the Court should not be so satisfied. Mr Evers then contended in effect that, if a finding that Ms McHenry physically participated in the attack on Ms Easey could not be made, the Court was required to sentence Ms McHenry on the basis that she did not physically participate in the infliction of the fatal wounds on Ms Easey. Mr Evers' submission was encapsulated in his additional written submissions at par 24 which contended:
"In this case, the offender must be sentenced on the basis that she did not participate in the physical acts causing death, in the absence of proof [beyond reasonable doubt] that she did."
The Crown submitted that, based on the whole of the evidence and, in particular: the evidence of the admissions of stabbing Ms Easey said to have been made by Ms McHenry to Mr Princehorn, Ms Burnes and Mr Lynch (even though they were said to be "far from ideal witnesses"); the fact that Ms McHenry was "one of 2 persons present in the house when Danielle Easey was killed, and the fact that the deceased was killed with 2 weapons"; Ms McHenry's conduct after the killing and her attempts to conceal it; and, her "occasional animosity" towards Ms Easey prior to the killing, it should be found that Ms McHenry was "actively involved" in the killing.
The only direct evidence of what occurred in or near the Narara house between about 4:00 pm and 11:00 pm on 17 August 2019, was that of Ms McHenry given in her recorded interviews with police and the evidence of Mr Dilosa.
Ms McHenry gave a number of different versions of what occurred in her recorded interviews but each of those versions involved Ms McHenry playing no part whatsoever in, and having no prior knowledge or awareness of, the attack on Ms Easey which led to her death. In light of the verdict of guilty of murder, the jury cannot have accepted those aspects of her versions of what occurred and it would be inconsistent with the jury's verdict for me to accept both that she played no part in the attack and that she had no prior knowledge or awareness of it. It can be noted that Ms McHenry's case did not include disputing that she was in the house at the time Ms Easey was killed and the evidence as a whole supports a finding beyond reasonable doubt that she was.
In addition, in her recorded interviews with police, Ms McHenry in substance maintained that she concealed Ms Easey's death by using her Facebook profile to communicate with Ms Collier and maintaining to Ms Morgan that she had no knowledge of what had happened to Ms Easey because Mr Dilosa told her to do so and she complied as she was afraid of him, having previously been the subject of domestic violence from a former partner and Mr Dilosa having been violent towards her children.
On Mr Dilosa's version of what occurred at the Narara house on 17 August 2019, he was not in the house when Ms Easey was killed. This was because when she was still alive he went to his van, which was parked in the cul de sac. He was looking for ice and some cigarettes but fell asleep in the van. When he woke up and returned to the house, Ms McHenry opened the front door and said "We got to go", and indicated that Ms Easey was in bed. According to Mr Dilosa, after putting a bag in the boot, he and Ms McHenry then drove off in the white Commodore heading north to Newcastle and proceeded to stop at the Caltex Wyong Northbound Service Station late on 17 August 2019. A little distance further on, Ms McHenry asked him to stop and Mr Dilosa was shown the contents of the bag, that she had placed in the boot, which included his knife, a hammer and some bloodied material. They then travelled to Mr Princehorn's residence.
In addition to their accounts of what occurred, there was evidence that both Ms McHenry and Mr Dilosa made admissions of being involved in the fatal attack on Ms Easey.
The admissions said to have been made by Ms McHenry and some of the surrounding circumstances can be adequately summarised as follows:
1. Mr Princehorn gave evidence that, on 19 August 2019, he was with Ms McHenry at her house in Narara along with Mr Dilosa and while they were there, Mr Dilosa showed him the body of Ms Easey, and later, Ms McHenry said "she stabbed her". [9] At times during his evidence, Mr Princehorn said that Mr Dilosa was not present when Ms McHenry made this admission but in his recorded interview he said that Mr Dilosa was present and said "No. No. She didn't stab her. I did". [10] In cross-examination, however Mr Princehorn maintained that he was "probably" in no state to remember what was said to him due to his level of intoxication and lack of sleep. [11] Mr Evers also made submissions as to the inconsistency of Mr Princehorn's evidence, contending that he had motivation to lie due to self-protection and that the "circumstances in which the admission [were] made is implausible".
2. Ms Burnes gave evidence that a few days after Ms McHenry visited her at the hospital on 19 August 2019, Ms McHenry and Mr Dilosa came to her house and while in the loungeroom Ms McHenry said she had stabbed Ms Easey in the back. [12] Ms Burnes suggested Ms McHenry's motive for doing so was because Ms Easey owed Ms McHenry money. [13] Ms Burnes said that Mr Dilosa then said "You shouldn't have told her that" and "she didn't need to know." Ms Burnes also gave further evidence that at some time prior, Ms McHenry told Ms Burnes that Ms Easey had possession of a list of names, which included Ms McHenry's partner, Luke Wallace, and that Ms McHenry said she wanted to "shut her up". [14]
3. Mr Lynch gave evidence he knew Ms McHenry and met her near Warners Bay pub on one occasion and that she was "frantic … a real mess" and eventually explained "We fucked up. We killed this bitch". [15]
The evidence of admissions by Mr Dilosa was, in summary as follows:
1. Mr Collins gave evidence that a "a couple of days or a day" after meeting Ms Easey, he and Ms Daly were at Mr Dilosa's flat and Mr Dilosa said, "You know, I love you guys, but I will tell you this before you hear it from anyone else, that chick, she was no good" and that he had killed her. [16] Mr Collins gave further evidence that at a later date, he was at Mr Dilosa's place with Ms McHenry and Ms Daly and he believed that Mr Dilosa:
"…said that he had killed her, and he said something about it was all good until the crack ran out, and then said she was going to hurt his friends, and then it happened. That he stabbed her in the head and back, and he would do it again." [17]
1. Ms Daly gave evidence that sometime after 27 August 2019, Mr Dilosa had written on a piece of paper that the police had found the body and "said something like: I did it because she was going to like fuck a lot of people up, or something along those lines". [18] During cross-examination, Ms Daly also agreed that, while at Mr Dilosa's flat, she heard Mr Dilosa say "You know I love you guys, and I want to tell you this before you hear it from anyone else. That chick was no good. She was going to hurt my friends. I killed her, and I would do it again." [19]
2. Mr Princehorn gave evidence that Mr Dilosa said that Ms McHenry did not stab Ms Easey but he did, as previously referred to. In addition, Mr Princehorn thought it sounded right that he had said in his recorded interview that the night after the body had been found, Mr Dilosa said that "he did it, that he killed a girl to protect Carol". [20]
3. In a recorded telephone conversation between Mr Dilosa and Mr Adams on 17 September 2019, Mr Dilosa said:
"While the drugs were still there everything was all well and good, but as soon as the drugs started running out … I was at Carol's place with the girl. The drugs ran out. She started to run her mouth off about doing something with a list … I couldn't allow that."
In relation to the admissions said to have been made by Ms McHenry, I accept Mr Evers' submissions that the witnesses were highly unsatisfactory. Some of them gave inconsistent evidence. Some had a motive to lie both by way of protection of themselves and Mr Dilosa. Some had previously denied having any knowledge about Ms Easey's death. Some had mental health and drug and alcohol intoxication issues and Ms Burnes had a motive to implicate Ms McHenry falsely, as a result of perceived betrayal. In particular, in relation to Mr Princehorn's evidence, I formed the view that he was attempting to minimise his involvement with what occurred at the house at Narara on the night when he saw the body on the bed and he was exaggerating his level of intoxication and the vagueness of his recall. Nonetheless, I found his evidence of asking Ms McHenry what occurred and her response credible and there did not appear to me to be any sufficient reason to doubt its accuracy, especially as he also gave evidence of Mr Dilosa also making an admission to him. I would have been prepared to accept on the balance of probabilities Mr Princehorn's evidence as to what was said to him by Ms McHenry and Mr Dilosa on that occasion. Notwithstanding that conclusion, his general demeanour and the content of the evidence left me with a reasonable doubt about whether Ms McHenry said what Mr Princehorn recounted in his evidence. Similarly, I was left with a reasonable doubt as to the admissions said to have been made by Ms McHenry to Ms Burnes and Mr Lynch.
Accordingly, I concluded that I could not be satisfied beyond reasonable doubt based on the evidence of the admissions said to have been made by Ms McHenry, viewed in light of the evidence as a whole, that Ms McHenry actually carried out the stabbing of Ms Easey as opposed to having some lesser role in Ms Easey's murder.
The evidence concerning Mr Dilosa's admissions was different. Mr Dilosa did not deny making admissions that he stabbed Ms Easey attributed to him by Mr Collins, Ms Daly, Mr Princehorn and Mr Adams. Similarly, he did not deny destroying his knife or wrapping and disposing of Ms Easey's body. He did, however, give an explanation for why he made admissions and acted as he did. According to Mr Dilosa, he did so out what can be described as amounting to a misguided, almost quixotic, attempt to protect Ms McHenry and her children, whom he loved, from the consequences of her actions by taking all the responsibility himself.
Mr Dilosa's description of his feelings for, and relationship with, Ms McHenry was significantly different from her version which involved him being abusive towards her and her children and her being afraid of him. In my view, the nature of the relationship between Mr Dilosa and Ms McHenry, in about August and September 2019, was strikingly illustrated in the messages Ms McHenry sent to Mr Dilosa on 19 September 2019 and the intercepted telephone conversations between them on 11, 17 and 18 September 2019 (Ex BX). The messages on 19 September 2019 (the day Mr Dilosa and Ms McHenry were arrested) included Ms McHenry messaging Mr Dilosa: "U need to call me ASAP"; "U really need to call me"; and, "Oi this is important fuck ya". The intercepted telephone conversations included, by way of illustration:
1. Mr Dilosa telling Ms McHenry on 11 September 2019:
"You know, it doesn't matter what goes on, that I still care about ya and I don't give a fuck what, I don't give a fuck about nothing. I just want you to be all right. So if you need anything …"
1. On 17 September 2019, a conversation about whether Mr Dilosa had been to Narara:
"[CMcH] … have you by any chance sorted that shit out down at my house?
[JD] No, I haven't, Caz I haven't had permission to.
[CMcH] Yeah you have.
[JD] Yeah but I haven't spoken to you, I didn't want to upset you in any way.
[CMcH] All right. You won't, it needs to be done.
[JD] Can you call in for a chat?
[CMcH] No. Um, at the moment no. Um, I've got, I'm literally flat out at the moment, trying to get shit sorted for myself. Um …"
In my view, the messages and telephone calls, the amount of time spent by Ms McHenry and her young child with Mr Dilosa, including at his flat, the evidence that she gave him a black eye as a result of a disagreement and other evidence of their relationship in August and September 2019, did not support Ms McHenry's contention that she did what she did because she was afraid of Mr Dilosa or that he was violent towards her or her children. Indeed, my assessment of all the evidence as a whole, including that material, was that it supported Mr Dilosa's explanation as to why he made the admissions and did what he did.
In my view, Mr Dilosa's evidence was not substantially undermined in cross-examination and was not shown to be inconsistent with the objective evidence in any presently relevant and significant respect. He gave his evidence deliberately and it was suitably qualified where appropriate.
In all the circumstances, I accepted that Mr Dilosa's explanation of his admissions and conduct had sufficient plausibility to reduce the evidentiary significance that might otherwise have attached to them and to negative to a substantial extent the inferences that might otherwise have been drawn from his conduct and what he said. Furthermore, if Mr Dilosa's account of what occurred on the evening of 17 August 2019 were accepted, it would follow that Ms McHenry was alone responsible for the attack on Ms Easey and for the infliction of the fatal wounds. If, however, Mr Dilosa was involved in the attack on Ms Easey, he had a very significant motive not to tell the truth in his evidence in that regard. Although Mr Dilosa's evidence had some considerable strength, I was not prepared to find beyond reasonable doubt that he did not play any part in the murder of Ms Easey. Consequently, I was also not satisfied beyond reasonable doubt that Ms McHenry inflicted all or some of the fatal wounds on Ms Easey.
In my view, however, it did not follow that, as Mr Evers submitted, I must sentence Ms McHenry on the basis that she did not physically participate in the attack on Ms Easey because the Crown did not prove beyond reasonable doubt that she did. It is well established that there may be situations where no relevant finding can be made one way or the other.
In Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 at [20], Gleeson CJ, McHugh, Gummow and Hayne JJ explained: [21]
"The sentencing judge may not be able to make findings about all matters that may go to describe [the] circumstances. In particular, an offender may urge a particular view of the nature and circumstances of the offence, favourable to the offender. The sentencing judge may be unpersuaded that the view urged is, more probably than not, an accurate view of the circumstances. In such a case, it is not correct that the judge is bound to sentence the offender on that favourable basis, unless the prosecution proves the contrary beyond reasonable doubt."
This approach was reiterated in Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 (Filippou) in the following terms at [64] (French CJ, Bell, Keane and Nettle JJ):
"…Where, therefore, the prosecution fails to prove a fact or circumstance which is adverse to the offender, but the judge is not satisfied on the balance of probabilities of an alternative version more favourable to the offender, the judge is not bound to sentence the offender on a basis which accepts the accuracy of the more favourable version. If the prosecution fails to prove beyond reasonable doubt a possible circumstance of the offending which, if proved, would be adverse to the offender but the offender fails to establish on the balance of probabilities a competing possibility which, if proved, would be favourable to the offender, the judge may proceed to sentence the offender on the basis that neither of the competing possibilities is known."
Furthermore, in Filippou at [66], the High Court held that where an offender asserts a fact favourable to the offender and the Crown contests it or the Court is not otherwise disposed to accept it, it is incumbent on the offender to establish the fact on the balance of probabilities.
In the present case, the offender asserted that she should be sentenced, on the basis favourable to her, that she did not physically participate in the attack on Ms Easey. Having regard to the evidence as a whole in the present case, including (without being exhaustive): the evidence of admissions said to have been made by Ms McHenry (taking into account the unsatisfactoriness of the witnesses who gave that evidence); the evidence of her activities, conduct and attitudes before and after the killing; the evidence of the length and nature of her relationship with Ms Easey; the nature of her relationship with Mr Dilosa; the evidence of Mr Dilosa of what he did on the evening of 17 August 2019; the fact that Ms McHenry's versions of her complete lack of involvement in the attack on Ms Easey were inconsistent with the jury's verdict and must be rejected; the fact that she was in the house at the time of the killing; and, the fact that two weapons were used, I was not satisfied on the balance of probabilities that Ms McHenry did not participate physically in the fatal attack on Ms Easey.
Since, in my view, a finding cannot be made beyond reasonable doubt that Ms McHenry physically attacked the deceased and a finding cannot be made on the balance of probabilities that the offender did not do so, then the offender is to be sentenced on the basis that neither of the competing possibilities was known. This is the approach endorsed by the Court of Criminal Appeal in Martinez v The Queen [2022] NSWCCA 12 (Martinez) at [51] (Beech-Jones CJ at CL, Macfarlan and Brereton JJA agreeing).
For these reasons, Ms McHenry is to be sentenced on the basis that her role in the murder involved her being present in the house when Ms Easey was killed but it is not known whether or not she physically participated in attacking Ms Easey. Further, the jury's verdict compels me to find that Ms Henry had, at least, prior awareness of the attack and agreed to it being undertaken.