R v McNamara [2020] VSC 705

1 On a coolish winter evening in Wangaratta on 26 July 2018, Nathan Day met a tragic and grisly end. While in the bedroom of the home unit of his drinking chum Darcy McNamara, Mr Day's throat was cut with a sharp implement, which also severed his carotid artery. He bled so heavily that the room was saturated in places and blood was spattered against a chest of drawers. Sadly, he died then and there. He was only 35. With little ceremony and even less dignity - although Mr McNamara did say a prayer for him - he was buried in a shallow grave in the side garden of the unit. Nearly six weeks later, on 5 September, police exhumed Mr Day's body.

2 Mr McNamara was then charged with, and has since pleaded guilty to, the murder of Mr Day. I heard the prosecution opening and Mr McNamara's plea in mitigation on 11 September last. Now, he is to be sentenced for that offence.

Phillip Dunn's murder charge withdrawn; pleads guilty to assisting an offender

3 Phillip Dunn, who lived just a few doors down the street from Mr McNamara, and often drank copious amounts of alcohol with him and Mr Day, was also at the unit on that fatal night. Initially, he too was charged with the murder of Mr Day. At the time of Mr McNamara's plea hearing, Mr Dunn was awaiting trial on that charge.

4 In the interim, however, Mr Dunn's case resolved. On 25 September, the Director of Public Prosecutions withdrew the murder charge by filing over the original indictment a new indictment charging Mr Dunn instead with assisting an offender, which used to be known as being an accessory after the fact to murder. He pleaded guilty upon arraignment. On 16 October, I heard the prosecution opening and Mr Dunn's plea in mitigation. He will be sentenced on Monday, 26 October.

5 The way in which these two cases have settled gives rise to a situation that, to some, may seem quite odd, or even inconsistent.

6 In short, the case against Mr McNamara settled on the agreed basis that, while Mr Dunn inflicted the neck wound to Mr Day, and thereby murdered him, Mr McNamara was liable for murder because he encouraged, assisted or directed Mr Dunn to assault Mr Day while being aware that it was probable that Mr Dunn would murder him.

7 On the other hand, the case against Mr Dunn has since settled on the agreed basis that he did not murder (or even kill) Mr Day, but that he was an accessory after the fact to murder by Mr McNamara. Specifically, it is alleged that, knowing or believing Mr McNamara (alone) murdered Mr Day, Mr Dunn did various acts (including disposing of incriminating items) with the purpose of impeding the apprehension, prosecution, conviction or punishment of Mr McNamara.

8 So, how can it be that, in the case against Mr McNamara, Mr Dunn is - and Mr McNamara is not - Mr Day's killer but that, in the case against Mr Dunn, Mr McNamara is - and Mr Dunn is not - the killer?

9 Curious though it may seem, this apparently Janus-headed outcome is one that the law allows.[1] It is within the Director's prosecutorial discretion to indict each accused in this way, and for each accused to accept the applicable indictment by pleading guilty to the charge laid against him. More particularly, this result is permissible in the case of Mr McNamara because he and the Director agree that the evidence admissible in his case, coupled with his plea of guilty, establish the alleged basis for his liability for murder. Equally, despite what might seem to be mutual inconsistency, this result is also permissible in the case of Mr Dunn because, again, the parties agree that the evidence admissible in his case (which, in important respects, is different from the evidence in Mr McNamara's case), together with his plea of guilty, establish the alleged basis for his liability for assisting an offender.

10 While it might be thought that this subsequent turn of events could aggrieve Mr McNamara especially, there is, in law, no legitimate basis for complaint. For the law at once requires each accused's case to be considered separately, and allows the Director the discretion to prosecute each accused separately, based on what may be proved on the evidence admissible in the case at hand, and in accordance with the agreement of the accused in that case, as signified by his fully informed plea of guilty.

11 Even before any pleas of guilty were entered in these matters, the Director's position was that, on the evidence against each accused, the precise circumstances leading up to the infliction of the fatal wound, including who inflicted it, could not be determined beyond reasonable doubt, but that there was nevertheless a murder by one or other of the accused, or both.

12 On the evidence for and against Mr McNamara, it could not be excluded (or it was at least reasonable for the Director to believe this to be so) that he did not, and that Mr Dunn did, inflict the neck wound and yet that there was a case that Mr McNamara was, in some sense, complicit in (or, to use the modern statutory language, "involved in") that killing. It is in those circumstances that the parties agreed that Mr McNamara's plea of guilty to murder would be entered on the basis that he intentionally encouraged, assisted or directed Mr Dunn to assault Mr Day and, at the time, was aware that it was probable that murder would be committed in the course of carrying out the assault, and that murder was in fact committed by Mr Dunn.

13 Similarly, and yet by way of contrast as well, on the evidence for and against Mr Dunn in his separate case (which evidence, as I have said, was different in important respects from the evidence in the case of Mr McNamara), it could not be excluded (or, again, it was at least reasonable for the Director to believe this to be so) both that Mr Dunn did not, and that Mr McNamara did, inflict the neck wound and that Mr Dunn had no involvement in the killing. It is in those circumstances that the parties agreed that Mr Dunn's plea of guilty to assisting an offender would be entered on the basis that, believing that Mr McNamara murdered Mr Day, which he did, Mr Dunn did various acts (including disposing of incriminating items) with the purpose of impeding the apprehension, prosecution, conviction or punishment of Mr McNamara.

Findings about co-accused in accused's case irrelevant in co-accused's case

14 It is important that the following additional points be understood. Despite these plea agreements, nothing in these reasons for sentencing Mr McNamara may be taken as any finding whatsoever either for or against Mr Dunn. Mr McNamara is to be sentenced on the evidence admissible for and against him and the concessions made in his separate case. In part, the factual basis for imposing sentence includes evidence relating to Mr Dunn and concessions made between the parties for the purposes of a sentencing hearing, some of which concessions concern Mr Dunn. But, in important respects, the evidence and concessions are different from the evidence and concessions in Mr Dunn's separate case. While it may seem counter-intuitive to some, in the same way that that I have just explained that the law on criminal liability and evidence allows what appears to be an odd state of affairs, so too does the law of sentencing and evidence require that, whatever might be said about Mr Dunn for the purposes of the sentencing proceedings against Mr McNamara, that is irrelevant in the sentencing proceedings against Mr Dunn.

15 Any findings made about Mr Dunn for the purposes of determining the circumstances of the offence on which he has been indicted, and any aggravating or mitigating factors, will be made in his separate sentencing hearing consistently with his agreed plea of guilty and on the evidence admissible for and against him in his case, as well as any concessions by the parties.

16 Similarly, any findings that might be made about Mr McNamara in Mr Dunn's separate sentencing hearing will be irrelevant in the case against Mr McNamara.

17 Returning to the sentencing of Mr McNamara, there is no dispute that he must receive a substantial term of imprisonment for his involvement in murder. The main issues to be determined concern the duration of that prison sentence and its associated non-parole period.

18 Numerous competing factors go into the selection of such a sentence, some of which concern the offence, while others concern the offender. As will be seen, in this case, matters pointing in one direction include the grave nature of the crime of murder, its maximum penalty (of life imprisonment), the more serious features of this particular offence, and its impact on Mr Day's family and friends. Among the matters pointing in the other direction are the mitigating factors, which include Mr McNamara's admissions, his plea of guilty and remorse, and his prospects of rehabilitation. A consideration which limits leniency, and which adds to the weight to be accorded to sentencing purposes such as the need for specific deterrence and protection of the community, is Mr McNamara's extensive prior history for violent offending. Yet, pulling the other way again is his deprived early life and its impact on his moral culpability. There was also evidence in this case that, despite his criminal history and the gravity of this crime, Mr McNamara has some redeeming qualities, which in turn adds to his prospects of rehabilitation. Another consideration to which regard must be had - and one which is relatively new to the law in this State - is the statutory guidepost known as the "standard sentence" for murder, which is 25 years' imprisonment.

19 As always, achieving a just and appropriate balance among these and other competing factors is not as simple as it may seem. Sentencing is not a process attended by mathematical certainty or surgical precision. Nor, despite the advent of the standard sentence regime, is it colour by numbers. Instead, sentencing is the exercise of a judicial discretion that involves an instinctive weighing and synthesising of the various considerations, albeit it is still a process informed by principle as applied to findings of fact.

20 Prior to announcing the sentence in this matter, it is necessary that I summarise the background to, and events surrounding, the death of Mr Day. This will take some time because, in the main, the summary will reflect the very detailed and painstakingly prepared opening of the case read to the Court by Mr Dickie, who appeared with Ms Goding for the Director. In attempting to flesh out, as best I can, Mr McNamara's involvement in the murder of Mr Day, I shall also extract some important parts of the reports of the neuropsychological, psychiatric and psychological experts who have examined him. Then I shall outline the victim impact statements filed by Mr Day's loved ones, and discuss the nature and gravity of the offending, the factors in mitigation and the various applicable sentencing principles and purposes.

Summary of background to, and events surrounding, offence

21 As I have said, Mr Day (who was also known as Nathan Chambers or "Pockets") was only 35 when he died. He is survived by his mother, his sister, his former partner and their eight-year-old son.

22 Mr Day had longstanding issues with alcohol abuse and homelessness. He often slept rough in makeshift camps under bridges along the Ovens River, and at other times couch-surfed with friends and associates.

23 Prior to his death, Mr Day was cared for by Betty Torney, whom he called "Gran". Mrs Torney supported Mr Day with food and money. He would often sleep and bathe at her home in Wangaratta. They met through the Victory Church, which was at 38‑42 Ryan Avenue.

24 At the time of his offence, Mr McNamara was 41 years old, nearly 42. He is 44 now. From 2016, Mr McNamara lived alone at Unit 1, 11 Ryan Avenue. His parents are deceased, and he has no siblings or family of his own. He is very fond of cats. Many a cat lived a good life at his place.

25 At the relevant time, Mr Dunn was aged 59. He lived just down the street from Mr McNamara, at 1 Ryan Avenue. In April 2017, Mr Day lived for a short period at Mr Dunn's home, but that arrangement ended after a fight between them. Their relationship was characterised by animosity. Mr Dunn bore acrimony towards Mr Day with respect to the 2017 incident, which he still held in July 2018.

26 Mr McNamara, Mr Dunn and Mr Day were all acquainted with each other. Their relationships were complex and changeable. Like Mr Day, Mr McNamara and Mr Dunn were heavy drinkers. There were episodes of aggression, fighting, property damage or threats between each of them.

Relationship between Darcy McNamara and Nathan Day in more detail

27 Mr McNamara and Mr Day had a difficult relationship that alternated between apparent friendship and animosity.

28 In December 2017, there was an incident involving the two of them. Police were called. Mr Day was charged with criminal damage for smashing windows at Mr McNamara's home. By Christmas 2017, the two men had patched up their relationship to some extent, but there were further incidents.

29 In the early part of 2018, Mr McNamara went to the home of his neighbour Belinda Field and asked her to come to his place and get Mr Day or else he would kill him. Ms Field went to Mr McNamara's unit with her son Daniel Field. They saw Mr Day lying on the ground, bleeding from his head. Mr McNamara was very angry. He mentioned getting a knife. Ms Field told Mr McNamara to go inside, which he did. Daniel Field picked up Mr Day. Mr McNamara then came out of his unit and approached Mr Day. He punched Mr Day in the face, knocking him back down to the ground.

30 On another occasion around the same time, Mr McNamara was at the home of the Field family, in their front yard. When Mr Day rode past on his bicycle, Mr McNamara called out to him abusively, whereupon Mr Day returned. Mr McNamara then took off a sock, filled it with stones, and swung the stone-filled sock at Mr Day. On this occasion, the two men settled their differences and left together.

31 On several occasions, Daniel Field heard Mr McNamara say that he would like to kill Nathan Day and cut his body into pieces and dump it in the creek. These utterances by Mr McNamara apparently related back to the December 2017 incident.

32 About a month before Mr Day was killed, Mr McNamara, while drinking with Ian Norford and affected by alcohol, told Mr Norford a few times that he was going to kill Mr Day. Mr McNamara picked up a kitchen knife as he said this.

33 Around late-July 2018, on a Friday or Saturday night (which must have been less than a week before the murder), Mr McNamara and Mr Day fought in the middle of the street near Mr McNamara's unit. They were visibly drunk. Mr McNamara accused Mr Day of stealing his television, which Mr Day denied. Mr McNamara threw some punches at Mr Day and threatened to stab him. Mr Day said Mr McNamara did not have the guts to do so.

34 Around the middle of the day of the murder, Thursday 26 July 2018, Mr Day was at Mrs Torney's house. Bruce Hordern, the Victory Church pastor, was also present. Mr Day was upset about some things he believed were being said about him by a person called Kim Turner. He left Mrs Torney's house to go for a walk, leaving behind his belongings, including his mobile phone. Pastor Hordern thought that Mr Day was in good spirits when he left. Mrs Torney and Pastor Hordern were the last people, other than Mr McNamara and Mr Dunn, known to see Mr Day alive.

35 At about 11:40 a.m., Mr McNamara was visited at his home by Jacqueline Anderson, a support worker at a mental health support organisation. Ms Anderson had recently taken over case management of Mr McNamara. She had not met him before. Mr McNamara presented to her as agitated and anxious. He told her that he was worried and felt unsafe, and that a gang of people were after him. This was apparently related to some unspecified incident the previous week. Ms Anderson left after 10 to 15 minutes, as she was unable to perform her role while Mr McNamara presented in this agitated state. She said she would return later in the day to check on his welfare.

36 At about midday, Mr McNamara went to Ms Field's home at 13 Ryan Avenue and asked to borrow a jerry can of fuel. Ms Field and her son (Daniel) spoke to Mr McNamara. He appeared to Ms Field to be drunk and in a bad mood. When his request for the fuel can was refused, Mr McNamara yelled abuse and left. He later returned, at which point Ms Field had left to attend the Victory Church to speak with Pastor Hordern about the situation. Mr McNamara punched the wooden panel next to Ms Field's door, kicked the door and threatened to kill Daniel Field, who was inside. Mr McNamara yelled more abuse and kicked the letter box as he left.

37 Police were called and, after 12:40 p.m., attended Mr McNamara's home. They spoke with Mr McNamara through the front security door. He appeared alcohol-affected, was rambling and did not make much sense.

38 At 2:08 p.m., Mr Dunn called triple-zero to report that someone was trespassing on his property, breaking windows and attempting to gain entry to his house. He said the person was a bloke called Darcy, who lived down the road, and that he was "with some bloke that I knew a fair while ago". (I pause to note that Mr Dickie conceded that the Director cannot identify the other "bloke", although it is likely that it was Mr Day.) Police attended. Mr Dunn showed them three windows which he said had been broken that morning by Mr McNamara. He said he did not want any police action taken.

39 At about 3:06 p.m., Ms Anderson returned to Mr McNamara's unit. His presentation had changed since her earlier visit. He now appeared intoxicated. He was erratic and agitated, but friendlier. He appeared paranoid, saying people were coming to get him, and that it would all be clear soon.

40 A short time later, police attended Mr McNamara's unit in response to Mr Dunn's report. Upon Ms Anderson's request, Mr McNamara unlocked the screen door and let her out of the unit. He spoke briefly to police through the security door.

41 Later that afternoon, Mr Day and Mr Dunn were present at the unit of Mr McNamara, who was home at the time. Mr Day had consumed alcohol. It is likely the others had done so too. It is also likely that there was an argument.

42 From about 7:30 p.m., a resident who lived nearby heard raised screams from the direction of Mr McNamara's home. Just after 8:00 p.m., from the same area, the resident heard a man yell:

I'm gonna kill ya. You're nothing but dogs. I don't give a fuck what happens to me. You're nothing but cunts, I'm gonna get ya.

43 The man repeated this a couple of times. He also repeatedly yelled, "What are you looking at?" and "I don't care what happens to me." The resident rang triple-zero to make a report. Police drove past but did not observe anything untoward. It appears likely that all three men were present at Mr McNamara's home at this time. (Mr Dickie conceded, however, that the Director is unable to say who uttered those words.)

44 During the evening, Mr Day was stabbed to the right side of his neck. This caused a deep incised wound that severed his carotid artery and caused his death.

45 On the prosecution case, either Mr McNamara or Mr Dunn inflicted the wound, intending to kill Mr Day. As indicated earlier, however, the Director is unable to say which of them did so. Mr Dickie also explained that the Director is not able to say which, if any, of the accounts of the offending given by Mr McNamara is accurate.

46 In the result, the case is put against Mr McNamara in this way. He was involved in the murder in that he at least intentionally encouraged, assisted or directed Mr Dunn to assault Mr Day and, at the time, was aware that it was probable that, in the course of carrying out the assault, Mr Dunn would kill or cause really serious injury to Mr Day with the intention of killing him or of causing him really serious injury, which Mr Dunn did by inflicting the wound to Mr Day's neck in the course of an assault. (Later in these reasons, I shall say more about the factual basis for this way of putting the case against Mr McNamara.)

47 The location and analysis of blood stains that were later found indicated that Mr Day was killed in the bedroom near the foot of Mr McNamara's bed. A spatter pattern of blood from Mr Day indicated that force was applied to his liquid blood in the vicinity of the drawers against the west wall of the unit, near the foot of the bed. Dilute saturated blood staining was observed on many areas of the carpeted floor of the bedroom. It was most concentrated in the area at the foot of the bed near the chest of drawers. Mr Day would have remained in that position for a period of time, bleeding heavily.

48 Between just after midnight and about 3:00 a.m. the next morning (Friday 27 July 2018), Mr Dunn attended the house of his friend David Gottschling at 55 Mackay Street in Wangaratta. Mr Dunn is likely to have walked there directly from Mr McNamara's home. He had blood all over his hands and on his shoes. Mr Dunn told Mr Gottschling, "We did something really bad, me and Darcy." He said, "Darcy's fucking mad [and] took it too far." Mr Dunn told Mr Gottschling "it" made a lot of noise and it was a wonder no-one heard it. At the time, Mr Gottschling assumed that the men had killed one of Mr McNamara's many cats. Mr Dunn brought a paint scraper with him, which he left behind. He also left his shoes in Mr Gottschling's recycling bin and took a pair of his (i.e. Mr Gottschling's) shoes to wear instead.

49 At some point, Mr Day's body was moved from inside Mr McNamara's unit to the side yard. The body was partially buried in a shallow grave, with debris and household items piled on top.

50 Mr Day's blood was cleaned from the floor where it had pooled. A rug was placed over the wet carpet, which transferred the blood to its underside. Mr McNamara was involved in the burial of Mr Day and the clean-up.

51 At about 8:30 a.m. on Friday 27 July 2018, police attended Mr McNamara's home regarding an unrelated incident. He mentioned to police that his front lounge room window had been broken the previous evening. He said that he believed Mr Dunn caused the damage, as they did not get on very well. Mr Dunn walked past as police were leaving. Mr McNamara came out of his unit, and he and Mr Dunn yelled abuse at each other.

52 On Tuesday 31 July 2018, a police officer attended 1 Ryan Avenue in response to a call from Mr Dunn, who had complained about Mr McNamara. Mr Dunn said that Mr McNamara kept coming to his house, trying to get cigarettes off him, and would not leave. Mr Dunn did not want him coming around.

53 The police officer then attended Mr McNamara's home and spoke to him. When he told Mr McNamara that he had just spoken with Mr Dunn, Mr McNamara said, "What did he say? What did he tell you I'd done?" The police officer explained that Mr Dunn had not said anything. He told Mr McNamara not to go to Mr Dunn's house anymore.

Conversations with others about Mr Day's disappearance

54 On 5 August 2018, Mrs Torney formally reported that Mr Day was missing. Police enquiries commenced. This led to a media release, as well as posters seeking information being posted in Wangaratta on 30 August 2018. Mr Day's friends noticed he was missing, and his disappearance became a topic of conversation.

55 On 31 August 2018, Ms Field asked Mr McNamara if he knew where Mr Day was. He told her that Donna Hart knew something about Mr Day's disappearance and that she (Ms Hart) had said that she and her boyfriend had robbed Mr Day down by the river.

56 On an occasion after Mr Day was murdered but prior to his body being discovered, Mr McNamara and Mr Dunn were at an address in Norton Street where Paul Hayes and Bradley Chalk lived. Alcohol had been consumed. Mr Hayes and Mr Chalk heard Mr McNamara say to Mr Dunn, "You're going to give me up." After this, Mr McNamara got up and left. Mr Dunn told the others he had been stomping on Mr Day's legs and saw Mr Day take his last breath.

57 At about 2:30 p.m. on Thursday 30 August 2018, Detective Sergeant Chris Hill and Detective Senior Constable Justin Schulze attended Mr McNamara's home and asked him about Mr Day's disappearance. Mr McNamara said that he had last seen Mr Day about eight or nine weeks ago; that Mr Day was a bit depressed; that Donna Hart had told him Mr Day was talking about suicide; and that Mr Day spent some time in Flemington. In response to a question as to whether anyone might want to hurt Mr Day, Mr McNamara said John Bassarek had a falling out with Mr Day.

58 On 1 September 2018, Detective Sergeant Hill spoke with Mr McNamara when he walked past him on Ryan Avenue. The conversation was recorded. Mr McNamara acknowledged the incident with Mr Day in December 2017 but said that they had sort of moved on from that. He repeated that he had not seen Mr Day for ages. Mr McNamara said he did not get along with Mr Dunn, who was hard to deal with and too unpredictable. He said that, on the day that he kicked Ms Field's letterbox, he was "pissed off" about his windows and one of his cats going missing, and about someone having chucked rubbish at his house. He asked Detective Sergeant Hill if Mr Dunn had made a complaint against him about harassment.

59 On 3 September 2018, detectives from the Missing Persons Squad of Victoria Police took over the investigation from local police.

60 At about 10:40 a.m. on 4 September 2018, Detective Sergeant Graham Hamilton and Detective Senior Constable Peter Towner attended Mr McNamara's home and spoke with him. The conversation was recorded. Mr McNamara said, amongst other things, that he no longer drank with Mr Day since the incident with Mr Bassarek on 6 December 2017; that he had not seen Mr Day in eight or nine weeks; and that he had not seen Mr Day since the letterbox incident with Ms Field. He said that Mr Dunn had a conflict with him for a while. After a couple of requests from police to look around his house, he agreed to them doing so. Police found nothing suspicious.

61 Shortly after 6:40 p.m. on Tuesday 4 September 2018, after earlier that day being arrested and held in custody for being drunk and disorderly in Benalla, Mr Dunn was arrested in the Benalla Police Station regarding suspected criminal involvement in Mr Day's death. Mr Dunn told police that Mr McNamara had murdered Mr Day.

62 Earlier that day, police had conducted a video-recorded interview with Mr Gottschling. He confirmed matters he had disclosed to police previously, including that Mr Dunn had attended his home with blood-covered hands and said he and Mr McNamara had done something bad.

63 At 10:07 p.m., police attended Mr McNamara's unit and arrested him.

64 On Wednesday 5 September 2018, a search warrant was executed at Mr McNamara's home. At about 4:40 p.m., Mr Day's body was found buried in the small garden bed against the eastern fence line. The grave, such as it was, was underneath a pile of objects that included broken chairs, parts of the top of a table, pieces of carpet and other rubbish. Portions of Mr Day's hair and right hip were visible above the soil.

65 Mr Dunn's home at 1 Ryan Avenue was also searched. A spade, a mop and mop buckets were found in his front bedroom.

66 Mr Day's body was exhumed and transported to the Victorian Institute of Forensic Medicine in Southbank. On Thursday 6 September 2018, an autopsy was conducted by forensic pathologist Dr Paul Bedford.

67 A largely horizontal incised wound was found on Mr Day's right neck. The wound was about nine centimetres long and two centimetres deep at its deepest point. The same wound also transected Mr Day's carotid artery, which caused his death. There was some undermining on the superior aspect of the wound, indicating that the edged weapon had been angled slightly upwards (by the body's orientation) at the time the wound had been inflicted.

68 Dr Bedford also observed a fracture to the cornua of Mr Day's right hyoid bone. While this could indicate that there had been some strangulation, Dr Bedford could not exclude the possibility that the fracture was associated with the infliction of the incised wound.

69 No other injuries were found that could be associated with Mr Day's death. There were no defensive injuries.

70 Blood samples disclosed that Mr Day's body had a blood-alcohol content of 0.29 grams per 100 millilitres, with 0.26 grams per 100 millilitres of alcohol in the urine. Because of post-mortem changes, it is not possible to ascertain what Mr Day's blood-alcohol content would have been at the time of his death.

71 From about 12:41 a.m. on Wednesday 5 September 2018, while in the presence of an independent third person, Mr McNamara was interviewed by police. The interview stopped and started at various points, including to allow Mr McNamara to sleep. It concluded at 9:46 p.m.

72 During the first part of his interview, Mr McNamara initially denied any involvement in the disappearance of, or awareness of what happened to, Mr Day. He later said Mr Dunn was responsible for something happening to Mr Day. Mr McNamara admitted that he possibly had something to do with it, indirectly, but that he did not kill Mr Day or have anything to do with his being killed. He denied having anything to do with moving Mr Day's body or helping to clean up. He said that he remembered the day, but not much of the night. He had seen Mr Day at the bottle shop. Mr Day was not happy about Mr Dunn having annoyed Mrs Torney. In the afternoon, Mr Day tried to push into Mr McNamara's house, making out that Mr Dunn was there, and seemed to have a grievance with Mr Dunn. Mr McNamara said that he was "boxed in" by the events, and that it was not going to put him in a good light. At 2:17 a.m., the interview was suspended so that Mr McNamara could rest.

73 From about 10:42 a.m., the interview recommenced. Mr McNamara confirmed that, during the night, he had asked for some paper to write down some "important stuff" to help the police investigation. He had been given paper in the morning. He wrote on one page: "Firstly I know I will never see my cats again or my property. I have been living in [turmoil]/fear/guilt/confusion".

74 When asked about Mr Day, Mr McNamara said that he was funny, trustworthy, mischievous and liked to drink. He agreed that Mr Day would help him the best he could. Mr McNamara told police that he had forgiven Mr Day since the incident with his property. Since then, he had seen him numerous times at the church.

75 Mr McNamara described animosity between Mr Dunn and Mr Day. He said that Mr Dunn told him about the grudge he had against Mr Day. Mr McNamara often went up to Mr Dunn's house to drink with him and watch Foxtel. On these occasions, Mr Dunn would frequently talk about Mr Day and his grudges towards him. Mr McNamara said that Mr Day had an uncanny way of annoying Mr Dunn, and that they both seemed to get off on their hatred towards one another. He said that, in the weeks prior to Mr Day's death, Mr Dunn claimed that Mr Day had stolen his TV and that he was going to get him. Mr McNamara said that Mr Day had said he was not scared of Mr Dunn.

76 With respect to what happened on 26 July 2018 and thereafter, Mr McNamara said the following (in summary) over various stages of his interview:

(a) On the afternoon of 26 July 2018, Mr Day told him that he had found out that Mr Dunn had been harassing Mrs Torney. Mr Day said that he was going to have it out with Mr Dunn. Mr Day said that he would be at Mr McNamara's unit at around 7:30 p.m., looking for Mr Dunn. Mr McNamara said that he told him not to come and to leave Mr Dunn alone.

(b) Mr McNamara drank tequila and red wine at Mr Dunn's house before returning home at about 5:30 p.m. He had a nap at home.

(c) He woke from his nap to find a commotion, with Mr Day and Mr Dunn fighting in his bedroom. It looked pretty bad. He asked them what they were doing there. He did not understand why they were there and fighting in his bedroom. He did not remember inviting Mr Dunn or Mr Day into his house, because he knew they did not get along, and Mr Dunn could be really rowdy. He had not been drinking with them. The last time he had drunk was four or five hours earlier at Mr Dunn's house. He did not want to get involved in the fight. He told them to get out, but they ignored him. There was a paint scraper on the floor, Mr Day was on top of Mr Dunn and there was broken glass. Mr McNamara was freaking out and half in a daze.

(d) He left Mr Dunn and Mr Day fighting and went out the back and across the road. As he was leaving, he heard Mr Dunn screaming about his dog. He heard a thumping and Mr Dunn yell, "Die, die, die." Neighbours would have heard it.

(e) Mr McNamara returned to his unit maybe two or three hours later. Mr Day and Mr Dunn were gone. The floor was wet. The place smelled like Exit Mould and Ajax. It looked like his bed had been re-arranged. He had a look around to see if anything was stolen and then went to Mr Dunn's house, where there was no answer. Between about 9:00 a.m. and 10:00 a.m., he returned to his house, where he found cleaning products in his bin that did not belong to him. He thought he had left his washing machine on and that it had flooded. The cleaning products belonged to Mr Dunn.

(f) Mr McNamara said that he went to see his friend Pauline. He told her that there had been a commotion at his house with Mr Dunn and Mr Day. He told her that he thought Mr Dunn had killed someone. He did not really know what happened to Mr Day. He sort of suspected but was in denial and did not want to know. He had blood on his jacket when he visited Pauline.

(g) The next day, Mr Dunn came around. He made out that he had alcoholic dementia and acted blasé about Mr Day going missing. Mr Dunn told him that, after he left the unit, he went to Mr Gottschling's house to get marijuana. When Mr McNamara asked Mr Dunn what he had been doing in his bedroom, Mr Dunn told him not to worry about it, that Mr Day was gone, and that Mr Day had it coming.

77 When asked by police if he knew what had happened to Mr Day, Mr McNamara said that Mr Dunn ended up with a paint scraper or something in the fight and harmed Mr Day. He said that Mr Dunn murdered Mr Day and buried him in his back yard, under a pile, but he did not want to look at it. Within a few days, he noticed the alterations to his yard. Mr Dunn had insinuated that Mr Day was buried there.

78 When asked how he felt about it, Mr McNamara said he felt very sad, not remorseless, and that he could have done so much more. He felt stupid and used by Mr Dunn. He said that the fact that he was capable of actually feeling made him different from Mr Dunn. He said that Mr Dunn was a lot smarter than him, and he thought of Mr Dunn like a mentor or father-figure. He said he is now devastated about the whole circumstances and that it had been a whole weight over his shoulder. He said that, for years, he had been betrayed, manipulated, frightened and intimidated, but did not even want to look in that zone and did not know to whom he could turn. He said it was horrific that a close friend of his had been murdered and that his remains were found at his place.

79 Mr McNamara thought that, if he contacted the police, after his history with Mr Day, he would be "good for it". He suspected that Mr Dunn lured Mr Day to his place, and murdered him, and that he deliberately reported the windows incident to make out that Mr Day had done it, so that it looked like Mr Day was still around. He said he felt complicit in that it happened at his place. He said that he was confused and drunk, and that he felt used. He also said that he felt like he had been played like a record and groomed by Mr Dunn, who had "construed it", like the window event, to distance himself from association with Mr McNamara, and had possibly made a statement against him.

80 He said that Mr Dunn denied knowledge, claiming he had dementia and blackouts, that Mr McNamara was the instigator and that he (Mr McNamara) had done it. Mr Dunn denied to Mr McNamara all the activity at his unit and bringing the cleaning products. Mr McNamara was fearful of Mr Dunn, who made him swear he would not talk about what Mr Dunn did. Mr Dunn insinuated that it could have been Mr McNamara who had been abusive to Mrs Torney, and that he had implicated Mr McNamara in this to police. Mr Dunn got Mr McNamara to write out a "will and testament" and tried to convince him that he should commit suicide. Mr McNamara thought that Mr Dunn had rung the police on him. He said that he saw Mr Dunn's clothes in his (Mr Dunn's) bin about four days afterwards. He said that Mr Dunn also had new shoes.

81 Mr McNamara said that Mr Dunn told him that Mr Day had come to his unit earlier, that Mr Day was in the unit when Mr Dunn arrived and that Mr Day was half-dressed. This did not make sense to Mr McNamara.

82 Towards the end of the interview, from about 8:40 p.m., Mr McNamara said that he had been involved in the fight between Mr Dunn and Mr Day, trying to break them up. He said that the fight went for a while. He said he saw Mr Dunn kicking Mr Day and was pretty sure Mr Day got the paint scraper off Mr Dunn. He denied any sexual activity taking place. He said that he saw Mr Dunn kicking Mr Day and sort of stomping on him. He said that he thought Mr Day had a knife and something else. The knife looked like a steak knife. It was not Mr McNamara's, as he does not have any sharp knives like that. He said that there was lots of blood on the carpet, some on the chair and on Mr Dunn's shoes or something, which he thought was probably from Mr Day. He said that he left before Mr Day died.

83 Interviewing police conveyed to Mr McNamara a version of events provided by Mr Dunn in his interview, including that Mr Dunn said he helped Mr McNamara. Mr McNamara said parts of it were true.

84 Mr McNamara said that the truth was that, when Mr Dunn came around, Mr Day was present and something was going on while he (Mr McNamara) was asleep. He said that, when he woke up, Mr Day was wearing boxer shorts. Mr McNamara said that he was disorientated. He said that he initially tried to break up the fight, and that Mr Day had something on him - a knife or a paint scraper. He said that Mr Dunn told him that Mr Day had tried to attack Mr McNamara in bed or pull his pants down or something. Mr Dunn told him, just as Mr McNamara had woken up, something like, "Poofter was trying to rape you." Mr McNamara said that, instinctively, he lost it. Some of the events he could not recall because it happened so fast. He said that Mr Day had attacked him once before in his place, and he knows that was no justification, but he had only woken up and had seconds to react. He said that the last time he went into flight mode and ran, and this time he went into fight mode. He said that he saw that Mr Day had something in his hand and was in his premises half-naked. The suggestion of homosexual activities by Mr Dunn was, Mr McNamara said, just another kick in the guts.

85 In his interview with police, Mr Dunn indicated he disposed of a metal knife in One Mile Creek, specifying the location. (He claimed that Mr McNamara had planted the knife at his house.)

86 On Friday 7 September 2018, while searching One Mile Creek at a billabong between the Vincent Street bridge and the Scout Hall, police found a knife about one metre from the bank. The knife had a wooden handle and a serrated edge. Nearby was a second knife, which was metal with a serrated blade and two sharp points at the end. This knife was consistent with the one described by Mr Dunn. A plastic shopping bag was found on the other side of the creek.

87 On Sunday 9 September 2018, when he was still being held in the cells at Wangaratta, Mr McNamara asked to speak with police. The conversation was recorded. Mr McNamara said that he wanted to tell police where evidence was. He also said that he had made some admissions that were truthful and that some information he had given was incorrect. He said:

[I]f, at the beginning - the investigation - if I was told exactly - in regards to the information [Mr Dunn] had provided, that my whole different approach would've been different to - pertaining to release of information and assistance ... Just in regards to that, my reluctance to provide information in regards to that, was very reluctant as per I did not believe that anyone believed that Mr Dunn had been at my residence or had partaken in the murder of [Mr Day], and also assisted in - also um assisted in a co-capacity in - in regards to the murder, also had facilitated in a co-capacity to murder, and also facilitated with intent to - um removal of the body from my premises and also in regards to um intent to dismember the remains of the body.

88 The police officer then said, perhaps a little sarcastically but understandably, "Just English, mate, you don't have to use big words." In response, Mr McNamara went on to say this:

Well, I didn't think, like, if I told the police, like, "Listen, I woke up, basically, Phil Dunn and Nathan Day were in me place." I ended up - they ended up having a bit of a scuffle, I ended up jumping and bashing Nathan to death - Nathan Day to death with Phil Dunn. Then Phil Dunn assisted me in the clean-up of the property, also assisted me in placement of Mr Day into a - yellow recycling bin, and also assisted in cleaning up the premises to the best of [his] ability using cleaning products from his property, and also a vacation of the property, like, to leave the property, to see if there had been police called from the scene.

89 Mr McNamara referred to items of which he was aware that would verify what he was saying, including four items in the creek, and three items at Mr Dunn's place. He described some of the items as not being from his unit. He identified his jacket, two doona covers (one depicting Winnie the Pooh and one with a Bratz character), some glasses and a bag (with a Batman logo), the contents of which he did not know. He described where these items would be.

90 Mr McNamara referred to a digging shovel at the rear of Mr Dunn's premises, garden shears, a new saw and a steel spike. He noted that, earlier, police had told him that Mr Dunn had alleged that he (Mr McNamara) had requested items to dismember Mr Day. This, Mr McNamara said, "is pretty horrific."

91 He thought there might be a murder weapon. He said that Mr Dunn tried to provide him with a knife, but as a red herring. He did not think it was the knife used. This knife was a carving knife with two prongs. When Mr Dunn left that knife at Mr McNamara's place, it was clean. Mr Dunn also left an egg flip, which was still in Mr McNamara's drawer.

92 Mr McNamara said he was "half-tanked" the night he was arrested, and it took him a couple of days to clear his mind. He thought, "Well, if I do talk the truth, is this gunna happen, is this person gunna be - is there gunna be enough to substantiate that this other person was on my residence, or am I gunna be left holding the bag," which, he said, he "basically was".

93 On Monday 10 September 2018, police found in One Mile Creek a black bag with a Batman logo. This had been seen on an earlier search, but not seized, because police did not realise it might be relevant to the investigation.

94 On Thursday 13 September 2018, police found in One Mile Creek two reusable shopping bags containing a Winnie the Pooh doona, a Bratz doona, a green blanket, a black jacket and a shopping receipt.

95 The items found in the creek were subjected to forensic testing. Possible blood was identified on the doonas, blanket and silver knife, but this could not be confirmed.

Versions of events given by Mr McNamara to professionals

96 Mr McNamara also gave accounts of the offending to neuropsychologist Martin Jackson, psychiatrist Dr Nicholas Owens and psychologist Alice Crole. It will be seen that, in the main, these accounts are broadly consistent with the account he gave towards the end of his formal interview with police.

97 In his report, Mr Jackson put what he was told by Mr McNamara in this way:[2]

[Mr McNamara] stated that he then fell asleep and he woke to find Mr Dunn and Mr Day fighting. He stated that he yelled and encouraged Mr Dunn to kill Mr Day, and that Mr Dunn actually cut Mr Day's throat and he died. Mr McNamara and Mr Dunn then cleaned the house and buried the body in the backyard, where he was not discovered until some [five to six] weeks later.

Mr McNamara was adamant that it was Mr Dunn who had the fight with Mr Day and that it was Mr Dunn who killed him, although he did acknowledge his part by encouraging Mr Dunn to do so. He said he was drunk and ... angry at the time.

98 Mr McNamara's account to Dr Owens is recorded in the following terms in both his initial report and his addendum report:[3]

[64] Mr McNamara said the next thing he remembered was waking up at home to find [Mr Dunn] and [Mr Day] in his room. He said, "For a second, it was like a dream." He said, "I didn't invite them in." He said his jeans were unbuckled, "it was like he was going through them for money." He said [Mr Dunn] and [Mr Day] started fighting and "I came to my senses". He said, "Stuff was getting broken ... my synthesizer got broken." He said at one point [Mr Dunn] fell through the plaster on the wall. He said, "I egged Phil on to it."

[65] He said, "During the fight, a knife got produced and [Mr Day] got stabbed." After that he said, "I was in shock ... for about ten or fifteen minutes I didn't know what to do ... I was a shaking, gibbering mess." He said that [Mr Dunn] said, "If it wasn't Nathan, it would have been you." He said that [Mr Dunn] said that [Mr Day] "was trying to pull my pants down" and that [he (Mr Dunn)] was protecting [him] Mr McNamara.

[66] He said that [Mr Dunn] went to his home and collected cleaning products and the scene was cleaned up. He said [Mr Dunn] went to see David [Gottschling] and came back later and "we buried Nathan in the back yard". He said [Mr Dunn] said that he "did it to protect you [meaning Mr McNamara]" when Mr McNamara suggested calling the police.

99 Finally, in Ms Crole's report, she recorded Mr McNamara's account to her in the following terms:[4]

[69] ... Mr McNamara recounted that he had been drinking heavily that day, before he went home to bed. He said he thought he awoke to find Mr Day semi-naked in his room trying to pull his pants down and Mr Phil Dunn in his lounge room. He said that an argument broke out between Mr Dunn and Mr Day ("Phil called Nathan a fucken poofta"; "there was always a lot of animosity between them two") and that they wrestled and punched on the floor ("a knife got produced - or a paint scraper").

[70] Angered by the unwanted intrusion, he said that he yelled at them to stop, but also recalled saying, "Get him, Phil, fuck him up." He said that during the struggle Mr Day tried to strangle Mr Dunn, before Mr Dunn stabbed him with the weapon.

[71] He said that he was in shock and that Mr Dunn was "puffing and shocked by what he had done". He said that he (Mr McNamara) checked to see if Mr Day was breathing.

[72] He said that he suggested to Mr Dunn to contact the police, but Mr Dunn discouraged the idea ("He said they won't believe you because everyone knows about the animosity you have had. You will lose your house and your cats will get put down"). Mr McNamara said he recalled thinking, "This was the pinnacle of any bullshit I had been through." They agreed to bury Mr Day in the backyard. Mr McNamara recalled that he said a prayer for him.

100 Given (1) Mr Dickie's concession that the Director is unable to pinpoint Mr McNamara's precise role in the murder but that he is to be sentenced on the legal basis set out earlier, (2) Mr McNamara's plea of guilty, his admissions to police towards the end of his formal interview and his accounts to Mr Jackson, Dr Owens and Ms Crole, and (3) my own assessment of all of the evidence admissible against him, I am satisfied that it is appropriate that I sentence on the following factual basis:

(a) After Mr McNamara had been drinking heavily during the day of the murder, he went to sleep in his unit.

(b) He awoke to find Mr Day and Mr Dunn arguing and fighting.

(c) Mr McNamara was angry at Mr Day because of their previous history of animosity.

(d) At some point, he became aware that Mr Dunn had a sharp implement.

(e) With that knowledge, Mr McNamara encouraged Mr Dunn to assault Mr Day - by saying things like, "Get him, Phil, fuck him up" - while being aware that it was probable that, in carrying out the assault, Mr Dunn would kill Mr Day or cause him really serious injury with an intention of killing him or of causing him really serious injury.

(f) At some point during the scuffle, Mr Day was stabbed in the neck, which caused him to bleed to death.

(g) Mr McNamara and Mr Dunn buried Mr Day's body in the side garden and cleaned up the unit.

(h) Mr McNamara said a prayer for Mr Day at the burial.

101 There is a suggestion in some aspects of the foregoing accounts that the stabbing may have been accidental and/or that Mr Dunn was acting in self-defence and/or in defence of Mr McNamara. I am in no position to accept, or even to entertain the reasonable possibility of, either of these suggestions on this plea, as to do so would be inconsistent with both the commission of murder and Mr McNamara's plea of guilty. Nor am I prepared to act on the basis of excessive self-defence or excessive defence of another. No submission was made that I should make such a finding or that I should act on any such basis. Instead, the most that can be said is that this was a case of drunken aggression that got very much out of hand and turned so nasty as to result in murder, on the part of Mr McNamara, by the statutory version of complicity that creates a hybrid of the common law concepts of aiding and abetting and extended common purpose.

102 I turn now to the victim impact statements, which form part of the materials to which I must have regard in sentencing.

103 A total of three such statements were filed by some of Mr Day's loved ones. The statements were made by Mr Day's mother Marilyn Chambers; his sister Cherrona Day; and his former partner Jade Griffiths, who is also the mother of his son. I have read the statements carefully.

104 Ms Chambers remembers her son as having a cheeky grin and as being good at making friends with the more vulnerable and marginalised children at school. He loved animals. Ms Chambers struggles with the tension that her son's difficulties with drugs and alcohol created between them, and feels she might have done more to help. Since his death, she finds herself crying a lot, being sad or angry all the time, and lacking in motivation. It pains her that she never got to say goodbye.

105 Ms Day tries to think of the good things she did with her brother. They loved playing video games together. Like their mother, Ms Day also struggles with guilt associated with the difficulty she had in dealing with her brother's particular afflictions. Since his death, she has had trouble sleeping, increased depression and reduced motivation.

106 Mr Day was Ms Griffiths' first love. She remembers his bubbly personality and cheeky smile, which their son has inherited. While his difficulties made it impossible to stay with him and raise a child together, she still loved him and despairs that their son has lost his father. Ms Griffiths suffers nightmares about Mr Day's last moments, has become depressed and feels as though a piece of her has died.

107 These and all other sentiments in the victim impact statements are eloquent descriptions of the grief and loss suffered by those close to Mr Day. They are profoundly moving documents.

108 In so far as it is permissible to do so, I have had regard to the contents of these statements in considering sentence.

109 But I wish to add this. There is nothing this Court can say or do that will heal the grief and pain suffered by Mr Day's loved ones. The sentence I must impose is not a reflection of the worth of his life - as if anything so precious could ever be valued in any event. Rather, as intimated earlier, the sentence I am about to impose reflects many factors which I am required by law to consider and balance, only one of which is the impact on victims.

110 I turn now to the nature and gravity of the offence.

111 Murder is generally regarded as the most serious crime in the criminal calendar. As indicated earlier, its maximum penalty is imprisonment for life[5] and its standard sentence is 25 years' imprisonment.[6]

112 When committed by the perpetrator of the actual killing, murder is (mostly) a common law offence in this State.[7] In such a case, it will be murder if the accused, by a conscious, voluntary and deliberate act or acts committed without lawful excuse, kills another person, and does so with an intention of killing or of causing really serious injury.

113 However, when committed by a person other than the actual perpetrator, murder is made a crime by a combination of the common law and statute.[8] Such a person is said to be "involved in the commission of [murder]", is taken to have committed the offence and is liable to the same maximum penalty.[9]

114 A person may be found guilty of murder if, as in the present case, it is unclear whether he is the actual perpetrator or a person involved in the commission of the offence, provided the trier of fact is satisfied that the person is guilty on either of those bases.[10]

115 As indicated at the outset of these reasons, because of the uncertainty as to what occurred, it is accepted by the parties that Mr McNamara is to be sentenced on the (legal) basis that he was involved in the commission of murder in the following way. Mr McNamara intentionally encouraged, assisted or directed Mr Dunn to assault Mr Day and, at that time, was aware that it was probable that, in the course of carrying out the assault, Mr Dunn would kill or cause really serious injury to Mr Day with the intention of killing him or causing him really serious injury.[11]

116 While there was some inconsistency between the prosecution opening itself and the written submissions of the parties concerning whether Mr McNamara's involvement in murder was put on the basis specified in s 323(1)(a) of the Crimes Act 1958 (Vic) ("the Crimes Act") or that specified in s 323(1)(b), after discussion with counsel, it became plain that it was the latter, which is the way in which I have just described it.[12]

117 A few moments ago, I also indicated the basic factual substratum on which I am satisfied it is appropriate to act. This factual basis accords with the legal basis for liability under s 323(1)(b). Accordingly, these are the bases on which I must assess the nature and gravity of Mr McNamara's offence of murder.

118 This instance of murder has some serious features, including the following:

(a) First, the offence is serious, by definition. As Mr Dickie submitted, the maximum penalty of imprisonment for life reflects the community's paramount concern for the inherent value of human life and its abhorrence of life being taken away as a result of murderous behaviour.

(b) Secondly, inevitably, and as the victim impact statements make so plain, the grief and pain for Mr Day's loved ones left behind is palpable.

(c) Thirdly, a weapon was used to inflict the fatal and ghastly wound, which in turn shows a degree of brutality.

(d) Fourthly, the offence was committed in company. The two men also assisted each other after the murder.

(e) Fifthly, the murder was committed against a background of prior aggression by Mr McNamara towards Mr Day. That said, the aggression went both ways. For example, there was the incident in December 2017, about which I should say some more at this point. Mr Day and Mr Bassarek went to Mr McNamara's unit while heavily intoxicated and yelled threats at the front door. A brick was thrown through a window, causing it to smash. It also struck Mr McNamara's ankle, causing significant bruising. Mr Day climbed onto the roof, removed tiles and threw one into the kitchen. As a result, Mr McNamara was forced to flee his unit. When interviewed by police, Mr Day said, inter alia, that "Darcy hid like a bitch in his unit, locked the wooden door and I have kicked it off".

(f) Sixthly, Mr McNamara attempted to conceal his involvement by burying Mr Day's body in his side yard. The body was not completely buried. Portions of Mr Day's hair and his right hip were visible above the soil. The grave was further concealed underneath a pile of objects that included broken chairs, parts of a table, pieces of carpet and other rubbish. Mr Day had his trousers pulled down to his knees (although his underpants were in the usual position). As Mr Dickie submitted, these acts lacked basic decency and humanity.

(g) Seventhly, Mr McNamara disposed of items linking him to the murder, and was aware that Mr Dunn was also likely to have disposed of items.

(h) Finally, Mr McNamara lied to associates and police about the whereabouts of Mr Day to deflect attention from himself as a suspect.

119 On the other hand, there are several factors limiting the gravity of Mr McNamara's offence of murder, including the following:

(a) First, as discussed, because of the uncertainty surrounding the precise circumstances and roles of the two accused, Mr McNamara is to be sentenced, not on the basis that he was the perpetrator, but on the basis that he was involved in the offence in the manner set out earlier.

(i) At common law, it was not a universal principle that the culpability of an accessory by way of aiding and abetting was less than that of an actual perpetrator (or "principal").[13] This is because, while the aider and abettor might be thought usually to be the lesser player, that will not always necessarily be so. Indeed, a manipulative or dominant aider and abettor may be at least as culpable as a principal, or even more culpable. Even when the aider and abettor is less culpable, the degree of difference in culpability will depend upon the circumstances of the case.

(ii) In general, to the extent that concepts similar to common law aiding and abetting are employed under the present statutory regime of complicity, the same cautionary approach must be taken to ascribing relative culpability under that regime.

(iii) In this case, given the uncertainty surrounding the circumstances of the offence, the Director cannot - and does not - say that Mr McNamara was manipulative or dominant or that he was the driving force behind the crime. Nor, as we have seen, can it be said that he wielded or used the sharp implement that caused Mr Day's death.

(iv) Further, the involvement alleged against him - namely, that he encouraged, assisted or directed[14] an assault but was only aware that it was probable that, in the course of carrying out the assault, Mr Dunn would kill or cause really serious injury with murderous intent (as opposed to having the intention that that would occur) - is, in my view, all else being equal, less culpable than either the common law notion of being an accessory by aiding and abetting or its statutory equivalent in s 323(1)(a) of the Crimes Act. That said, on the facts of this case, I think there would be only a minor difference between the level of culpability involved in liability under paragraph (b) of s 323(1) on the one hand and that which would be involved in liability under paragraph (a) on the other. Both heads are close to each other in time, circumstances and the level of awareness, and yet both involve or would involve somewhat less culpability than that which necessarily must be involved in the actual perpetration of the killing.

(v) In the result, I accept the submission of Mr Williams, who appeared for Mr McNamara on the plea, that his client's culpability is significantly less than it would have been if he were being sentenced on the basis that he cut or stabbed the throat of Mr Day.

(b) Secondly, there is no evidence of any planning by Mr McNamara. Instead, while there was evidence of his animus towards Mr Day, Mr McNamara's part in the offence appears to have been spontaneous in its commission.

(c) Thirdly, Mr Dickie acknowledged that Mr McNamara is likely to have been affected by alcohol and possibly other substances at the time. He submitted, however, that this was of only limited relevance. I agree. Mr McNamara's judgment is likely to have been impaired at least by the consumption of copious amounts of alcohol, but I think that that has only a rather modest impact on his culpability.

(d) Fourthly, Mr Dickie also conceded that, when regard is had to Mr McNamara's answers in his police interview and the other evidence, it is not implausible that, following the murder, Mr McNamara feared that Mr Dunn might implicate him alone in the offence, largely because Mr Day's body was at his home, and also because Mr Dunn was aware of the prior acrimony between Mr McNamara and Mr Day. This, it might be said, offsets, at least to some extent, Mr McNamara's attempts at deflection of the police. On the other hand, while it may have been difficult for him to do so, the reality is that he could have come forward at any time. Further, none of this excuses his behaviour in burying Mr Day's body in such an undignified manner.

(e) Fifthly, as serious as the crime was, and while there is some suggestion of (but no medical evidence supporting) assaults upon Mr Day beyond whatever action caused the neck wound, it is not alleged that the killing was aggravated by acts of torture, prolonged beating or the like.

(f) Sixthly, while Mr Day's body was buried in an undignified manner, I must also acknowledge that Mr McNamara at least said a prayer for him. While that was only a modest act of decency, it is perhaps a pointer to something redeeming in Mr McNamara's character, about which I shall say more later.

(g) Finally, while these are matters to which I shall return later in these reasons as well, Mr Williams urged, and Mr Dickie conceded, that, pursuant to the reasoning of the High Court in Bugmy v The Queen,[15] Mr McNamara's moral culpability is reduced as a result of his exposure to alcohol and physical abuse early in his life. Equally, Mr Dickie submitted, and Mr Williams conceded, that the same essential cause increases the importance of community protection as a sentencing purpose.

120 While recognising the limitations in employing any sort of taxonomy of gravity of offending (whether speaking of objective gravity or of a more compendious notion of relative offence seriousness) and paying heed to the cautionary remarks made by the Court of Appeal on this topic in recent years,[16] I think that the following may be said about Mr McNamara's involvement in the murder of Mr Day. This case is far from among the worst examples of murder seen by this Court. Equally, it is not at the lowest end of the scale either. Instead, in terms of objective gravity, I think it ranks somewhere within what I would regard as the very broad middle range of murder cases encountered in practice.

121 I turn now to Mr McNamara's background and personal circumstances in more detail. They were conveyed by Mr Williams at the plea and also in the psychological report of Ms Crole, the neuropsychological report of Mr Jackson and the psychiatric reports of Dr Owens (which were received in evidence without objection).[17] As will be seen, some aspects of these circumstances have greater or lesser relevance to sentencing.

122 Mr McNamara was born and raised in the southern suburbs of Sydney. He is now aged 44.

123 Mr McNamara has no siblings. He was born as one of a set of twins, but the other twin died at birth. His mother had complications during pregnancy, including blood poisoning from her treading on a nail. She was a heavy drinker and Mr McNamara was later diagnosed with foetal alcohol syndrome. He recalled being told that he was born four or five weeks premature and required monitoring in hospital.

124 Mr McNamara was raised by his mother (a seamstress) and father (a health and safety worker). He recalled a dysfunctional upbringing. He said that it "wasn't one of loving and nurturing" and that his physical and emotional needs were neglected. His parents drank heavily, and their house was always filled with beer cans. He added that his parents spent all their money on alcohol. As a result, he went without basic schoolbooks and clothing. His parents fought a lot and his father would get violent towards his mother.

125 He also recalled some really good times but believed that they would not last. His mother had a loving side. His father would treat him as his "pride and joy" at times, but then would unpredictably punish him harshly, for example, by locking him in a cupboard.

126 He recalled that, at some point between the ages of six and nine, he was in the bathtub with his father, who was also naked. He believed that his father tried to drown him. In hindsight, however, he realised that his father actually tried to force him to give him oral sex.

127 From the age of nine, his mother's friend (an affectionate aunt) sexually abused him on numerous occasions. He said, "She would make me undress, massage her breasts, and perform oral sex." When he disclosed the abuse to his parents, his mother did not want to hear about it and his father smacked him and called him a liar.

128 Unsurprisingly, Mr McNamara became untrusting of adults and saw them as vindictive and nasty. He also grew up thinking that bad things were his fault. He felt powerless and inhibited, and struggled to communicate with others. The abuse by his 'aunt' distressed him. He recalled having nightmares and uncontrolled bowel and bladder movements in bed, for which he was further punished.

129 When Mr McNamara was aged ten or eleven, his father attacked his mother with a claw hammer on their front doorstep after she tried to leave him for another man. His father then shot himself in the head, fatally. Mr McNamara came home upon this scene. Police and the ambulance were there. His mother was in a coma for some time and was never the same again.

130 Thereafter, Mr McNamara started displaying behavioural problems, such as truancy, shoplifting and prank calls. He said, "I was in control of something for a change."

131 Mr McNamara's mother remarried to a man who was "ex-army". Mr McNamara described him as a "liar, cheat, and manipulator," who would use military techniques to discipline him.

132 At the age of fifteen, he recalled further abuse at a juvenile detention centre, by a staff member who was later charged with abusing other boys. As he said, this was "just another adult trying to take advantage of me". He recalled being naked and humiliated in front of the other detainees. He also said that he stopped him once.

133 When Mr McNamara was eighteen or nineteen, his mother died from acute liver disease.

134 Mr McNamara attended Sutherland North Primary School. He said that he hated school because the teachers would chastise him in front of the class, as his parents refused to pay the fees. He was teased by other students and struggled to fit in.

135 He attended up to Year 8 at Gymea High School and then Kogarah Technical School up until halfway through Year 10. He recalled that, although he was poor (academically) at school, he did enjoy the routine. He stated that he would sometimes have to miss school or steal (for example, clothes) because he did not have essential items.

136 After he left school, Mr McNamara worked in a factory and then as a qualified textiles screen printer. He had other odd jobs too (such as digging trenches, a trades technician, and skilled labour). His longest term of employment was between 10 and 24 months. He identified alcoholism as a major barrier.

137 Mr McNamara denied having accessed the Disability Support Pension. He reported a preference for the Newstart Allowance. He said he "made every effort to get a job". Before his incarceration, he was approved for the National Disability Insurance Scheme for various psychiatric diagnoses.

138 Mr McNamara reported various head injuries with loss of consciousness from being hit by a car and playing rugby league.

139 Mr Jackson found that Mr McNamara's estimated full scale IQ is only 87, placing him in the "low average" range. He performed in the "extremely low to borderline" range in initial testing on unstructured tasks, multiple task processing, processing speed on one task, and delayed recall of complex information which he had seen or heard only the once. Mr Jackson considered his cognitive impairment to be stable (i.e. permanent) and most reflective of alcohol-related brain injury.

140 Before his arrest, Mr McNamara had resided in government-supported housing in Wangaratta for two years. He described this as "[t]he first time I had a nice safe place and stability in my life".

141 He had lived an itinerant lifestyle beforehand, with periods of homelessness in Melbourne and Sydney. He had trouble maintaining tenancies due to attracting trouble from others.

142 Since the age of seventeen, Mr McNamara has had a history of intermittent heavy alcohol use. He would drink up to four litres of cask wine or two bottles of spirits from 9:00 a.m. each day. He conceded that his life "has been fully ruined by alcohol [which has] caused [him] so much pain, grief, and heartache" and that alcohol "doesn't agree with [him]". He said that he hopes to remain abstinent should he one day return to the community.

143 He had used cannabis occasionally since the age of sixteen. He was using this drug "sporadically to daily" in the lead-up to the offence. Cannabis makes him paranoid and anxious.

144 He reported methylamphetamine use once every six months. He said that he last used methylamphetamine several days before the offence.

145 He reported occasional intravenous heroin use in the presence of his former girlfriend. He last used heroin in November 2011. At that time, he also regularly used benzodiazepines (for example, Valium and Xanax).

146 Mr McNamara has not engaged in residential alcohol or other drug rehabilitation, although he has completed various courses in the custodial setting.

147 Mr McNamara told Dr Owens of his long-term difficulties with social anxiety. For example, waiting in a queue in a shop would cause panic anxiety, which he felt as breathlessness together with a "daunted feeling" and a fear that something might happen to him or that someone might attack him. His feelings of anxiety would reduce as soon as he returned home. During panic attacks, he would feel faint, light-headed, breathless, confined and tense. These symptoms have persisted in prison.

148 Although his anxiety symptoms have been present since at least 2015, he reported his panic attacks worsening after December 2017, when Mr Day and Mr Bassarek "home-invaded and assaulted" him. As a result of this incident, he became more fearful of leaving his unit and was hypervigilant when outside the home, being apprehensive that he would be the victim of another assault. However, through the first six months of 2018, he said that these symptoms "slowly got better". Nevertheless, he gradually increased his consumption of alcohol, saying that he was "self-medicating". He said he had been abstinent from alcohol for several years until he recommenced regular alcohol use around September 2017. He was drinking alcohol while taking his antidepressant medication.

149 Regarding paranoia, Mr McNamara told Dr Owens that, for several years, he has had paranoid thoughts that people want to harm him. However, he said that these thoughts have fluctuated depending on "how [he's] going generally and environmental factors". For example, he noted that, when his mood and anxiety levels are less severe, his paranoid thoughts improve.

150 Mr McNamara said he first had contact with mental health services in around 2008, when he had an admission to the psychiatric ward at the Royal Melbourne Hospital. Asked about his symptoms then, he said that he "had a lot going on" but that he was experiencing "anxiety and stress" and was "exhibiting schizophrenia". He recalled that he thought that he was being followed and watched and that he was seeing shadows. He felt that there was a ghost in the place where he was living. He said that "the neighbours told [him] someone had died there, and the body was found three days later". He said, "I asked, if there's a spirit, give me a sign, and a light-bulb flickered and died." He said he was with a former partner at the time, who confirmed these events.

151 The police took him to the hospital (in 2008) and he was treated as an involuntary patient for three days. He had been using cannabis heavily at this time. He said he recalled being treated with the antipsychotic medication Risperidone.

152 He was admitted to the same ward for a second time in 2011, when he requested admission. At this time, he said he was "seeing ghosts and hearing voices like whispers". He was using a range of substances, including alcohol, barbiturates, methadone, heroin and cannabis.

153 Mr McNamara told Dr Owens that, from 2015 onwards, he had not experienced any psychotic symptoms (such as hearing voices or seeing spirits). He denied ever having passivity experiences (for example, thought broadcasting, insertion, withdrawal or somatic passivity).

154 Mr McNamara said that he had been linked in with a counsellor through his general practitioner in around 2015, and that he had seen the counsellor five or six times. At that time, he was not using alcohol or illicit drugs and he was "reaping the benefits of doing the right thing". He said, "That was a good stage in my life."

155 In the mid-1990s, while incarcerated in Long Bay Prison in Sydney, Mr McNamara said he had some treatment for anxiety and depression following an incident of sexual assault. While in prison in Victoria between 2012 and 2015, Mr McNamara confirmed that he did not require any treatment for mental health problems.

156 Regarding deliberate self-harm, Mr McNamara said that he "slashed up both arms" while at Melbourne Assessment Prison in September 2018. He said that this was "not really a suicide attempt; it was more to feel something". The wounds were treated with Steri-Strips only, and he was placed under close observation for three days. He denied any other history of deliberate self-harm or suicide attempts.

157 He has not participated in psychological therapy. Instead, he has kept most things "internally, due to shame".

158 Currently, Mr McNamara is taking the antidepressant Sertraline daily and he is also prescribed methadone daily.

159 At the time of seeing Dr Owens, in July, he reported that his mood was "stressed" because of anticipatory anxiety about his court hearing. He was sleeping six hours per night. He was having nightmares, and was contemplating "the full circumstances of Nathan's death". He reported normal appetite and that he had gained weight. He described fluctuating energy levels but said that he thinks of the commitment he made to work, as well as the benefit it provides him in terms of distraction, and this helps to motivate him in the mornings. He said he can see a psychiatrist and psychiatric nurse if he needs to, but that he has not been seeing them on a regular basis recently.

160 He said he gets "really down" and can experience suicidal thoughts, but he has not had these recently and has no intention to act on them. He acknowledged that his mental health has generally improved significantly since he was first imprisoned over two years ago.

161 He believes that the Sertraline "helps with cognitive thinking" and "relieves anxiety and stress". He commenced taking Sertraline two weeks after being incarcerated, but was previously taking it while living in the community, from around 2015. At that point, he had presented to his GP, complaining of difficulties with anxiety, paranoia and depression. However, he ceased the medication in June 2018 because he thought he did not need it any longer. Thus, there was a gap of about three months during which he was not taking this medication, which encompassed the date of the offence and his arrest and police interview.

162 Mr McNamara admitted an extensive criminal history in both Victoria and New South Wales. He has numerous prior convictions for assault and other violent offences. Most of the assaults have resulted in non-custodial sentences. For others, he received short prison sentences of seven days or three months. However, he has received quite substantial prison terms for some offences, including:

• in 1989, five years' imprisonment with a non-parole period of two years for sending a threatening letter, burglary, theft and malicious damage;

• in 1990, two years' imprisonment for robbery whilst armed;

• in 1994, sixteen months' imprisonment with a non-parole period of twelve months for actual bodily harm, assault and malicious damage;

• in 1995, six years and nine months' imprisonment with a non-parole period of four-and-a-half years for attempted armed robbery;

• in 1999, six months' imprisonment for possessing a shortened firearm, possessing goods suspected of being stolen and driving offences;

• in 2001, five-and-a-half years' imprisonment with a non-parole period of three-and-a-half years for robbery armed with an offensive weapon;

• in 2008, nine months' imprisonment for burglary and theft; and

• in 2012, five years' imprisonment with a non-parole period of three years for armed robbery.

163 While Mr McNamara's criminal history is troubling, and indeed suggests that specific deterrence and community protection should carry weight in sentencing, none of his prior offences are nearly as serious as the present offending.

164 I turn now to the mitigating factors urged by Mr Williams.

165 First, it must be remembered that every person enjoys a right to silence when being interviewed by police as to alleged involvement in a crime. It is not well understood, but even "no comment" responses need not be given. A suspect is entitled to sit there and say absolutely nothing.

166 But, for those who have offended, if admissions are made which help make the case against them and otherwise speak to factors such as remorse, then such admissions may be taken into account in mitigation of sentence.

167 In this case, while Mr McNamara initially denied any involvement in Mr Day's disappearance or death, and, I think, even lied about some matters, he ultimately made several important admissions that assisted the police to make a case against him. That, in my view, is an important mitigating consideration.

168 The second matter in mitigation - and, by far, the most important consideration - is Mr McNamara's plea of guilty.

169 While that plea was not entered at the earliest opportunity, it was not entered "at the door of the court" either. His counsel cross-examined some witnesses at the committal hearing in the Magistrates' Court, and some pre-trial issues were litigated in this Court as well. But there were still numerous preliminary matters to be heard, which were likely to have taken a significant amount of this Court's time.

170 The trial proper would have been longish and difficult for all concerned, especially the vulnerable witnesses (whether pre-recorded or not). The plea of guilty has spared those and other witnesses the trauma of giving evidence or further evidence, and has saved considerable resources. It is, therefore, a plea of substantial utilitarian value. As other judges of this Court have observed recently, this utilitarian benefit is increased at the present time given the backlog of trials in the wake of the COVID-19 pandemic.[18]

171 In Mr McNamara's case, I also accept that his plea of guilty indicates a willingness to facilitate the course of justice. A plea of guilty to murder is a significant step in almost every case. But I also accept Mr Williams' submission that the plea of guilty to murder in this case is all the more valuable because it was entered in the face of what was far from an overwhelming case. Many an accused has fought a far stronger case and been acquitted.

172 Accordingly, this plea of guilty is entitled to substantial weight in mitigation.

173 This leads to the third matter in mitigation, which concerns remorse. The evidence of remorse comes from the following sources.

174 First, that Mr McNamara eventually made admissions and pleaded guilty (to murder, no less), especially when many others in his position might have chanced their arm, suggests to me that he is remorseful.

175 Secondly, Mr McNamara said things in his (very long) interview with police that connote remorse. Some of these were touched on in the summary I have just given, but they warrant more detailed repetition in this context. Consider the following exchanges and remarks:

• Q990-994: How do you feel at the moment knowing that there's a body located? - - - Yeah, I suppose it's a ... about getting some closure and his family and that. ... And that I was a friend. ... And - as hurtful as it may be - by going through these steps, as hard as it is, at least the answers will be known. ... And I feel very sad about the whole thing.

• Q995: - - - And I'm not remorseful - remorseless, I mean. I'm not - I'm not remorseless and I know that - I could have done so much more. And I'm not blaming the daily drinking. I ended up losing focus and losing direction in my art and going to church and doing good things, and - I just hope that some of the other things, like, can be that - ... that it - that not only just ... they can get closure, I can get closure too.

• Q998-999: - - - It's been like a weight over me shoulder ... . Yeah, it's devastating. Not just from ... the whole perspective. I can't really put it into words that - the fact that someone I know who was a close friend of mine being found deceased, murdered. Human remains have been found at my place - yeah, that's horrific. And all I can do is the best to tell the truth and ... clarify as much as I can, so we can get some finalisation.

• Q1110-1112: [In response to a suggestion by another that Mr Day's disappearance was "the best thing ever", Mr McNamara said this]: I don't think so, not for me, not for my family, not for his family ... and all those involved, not for my street, my neighbours. It's right near a school and a park and things like that, places that - and a church. Places of happiness. When I first moved to the area it was - I thought it was all good.

176 Thirdly, in her report, Ms Crole offered that Mr McNamara demonstrated an appropriate level of remorse for his actions during and after the offending. In particular, Ms Crole made these observations:[19]

[75] Mr McNamara looked down shamefully and said that he regrets his involvement in Mr Day's murder ("I hate it that I helped him [i.e. Mr Dunn]"). He appeared upset as he reflected that Mr Dunn told him, "No one loves Nathan, no one will miss him." He expressed remorse for his actions ("Indirectly, I was involved in someone's death and it's a big burden to carry. He was loved. He had his flaws but no one had the right to kill him. It's not normal behaviour to bury someone in your backyard").

[76] He reported that he struggled to cope with his role in Mr Day's death both before and after his arrest. He said that he struggled to cope in custody once the gravity of his actions hit ("that's why I slashed [myself]").

177 Dr Owens and Mr Jackson also noted in their reports that Mr McNamara expressed remorse for the offending.[20] In my view, that Mr McNamara has impressed three independent experts as remorseful is no small thing.

178 In view of the foregoing evidence, I am satisfied that Mr McNamara is genuinely saddened by, and remorseful for, the great harm he has caused, and that he has shown insight into the grief and loss that Mr Day's loved ones are suffering.

179 Remorse is an important factor in mitigation because, like many mitigating factors (such as a plea of guilty), it tends to impact on findings regarding, or the weight to be accorded to, other factors in mitigation. As will be seen, it has had that effect in the present case.

Impact of traumatic early life on moral culpability

180 As indicated earlier, the fourth matter in mitigation urged by Mr Williams, and conceded by Mr Dickie, is that Mr McNamara was exposed to violence and alcohol abuse to such an extent in his early life that his moral culpability in committing this violent offence is less than it might be otherwise.

181 I shall not repeat that history here other than to make these remarks. Even the most resilient of characters surely would be gravely psychologically scarred for life to come home from primary school to find that his father has taken to his mother with a claw hammer and then shot himself. When an episode like that is set against the background of the other traumas Mr McNamara suffered in childhood, adolescence and early adulthood, it is not so difficult to see how he might resort to violence more readily than most.

182 In Bugmy, in a joint judgment, the High Court said this:[21]

[42] ... The Director acknowledges that the effects of profound deprivation do not diminish over time and he submits that they are to be given full weight in the determination of the appropriate sentence in every case.

[43] The Director's submission should be accepted. The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.

[44] Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving "full weight" to an offender's deprived background in every sentencing decision. However, this is not to suggest ... that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.

183 In all the circumstances, I am satisfied that Mr McNamara does, to some extent, fall within the principles laid down by the High Court in Bugmy. More particularly, I think that his childhood and adolescent exposure to extreme violence and alcohol abuse helps explain his recourse to violence when frustrated, such that his moral culpability for the inability to control that impulse is somewhat reduced.

184 As I have observed in similar circumstances in the recent past, however, none of this means that his moral culpability is reduced to nought. Indeed, his moral culpability for his behaviour still must be regarded as significant. But, consistently with the High Court's reasoning, it is simply reasonable to expect that a boy who is exposed to such violent, destructive and traumatic events would grow up to become a man who might consider resorting to such violence, as Mr McNamara has done in the past and as he involved himself in a more extreme way in the present case, but without the usual wherewithal to refrain from doing so. This, in turn, reduces his moral culpability somewhat.

185 Equally, however, it is also important to recognise, as Mr Dickie urged and Mr Williams conceded, that the inability to control violent responses to frustration may increase the need to protect the community from the offender. I shall return to this (only briefly) later, but, in this case, I accept that Mr McNamara's proven inability to refrain from violent behaviour must add to the importance of community protection as a sentencing purpose.

186 The fifth matter in mitigation concerns Mr McNamara's prospects of rehabilitation.

187 His extensive criminal history for crimes of violence, his struggles with mental ill-health, his long history of drug and especially alcohol abuse, the very nature of the offence to which he has pleaded guilty - all of these things suggest cause for a rather guarded view of those prospects.

188 On the other hand, his admissions, plea of guilty and genuine remorse all point towards better prospects of rehabilitation.

189 In her report, Ms Crole suggested the following with respect to Mr McNamara's future rehabilitative needs:[22]

[88] In the event that Mr McNamara were granted release to the community, his risk of recidivism could possibly be mitigated by addressing some of these factors, with intensive AOD [i.e. alcohol and drug] rehabilitation and supervision, housing assistance, and disengagement from known antisocial associates. He may furthermore require long-term psychological therapy, with a focus on areas such as:

• cognitive-behavioural therapy (CBT) ... strategies to assist with cognitive control (i.e. consideration of the consequences of his actions before acting on impulse);
• healthier coping strategies as alternatives to AOD use;
• CBT to challenge paranoid thinking and to form rational threat appraisals;
• boundary setting and assertive communication;
• socialisation with prosocial associates; and
• counselling to process unresolved emotions from past trauma.

Without professional support in these areas, it is my opinion that he would be at risk of committing further offences based on his history. Positively, he seems to have engaged with mental health staff and treatment within the custodial setting, which alongside feeling safe in his cell, seems to have assisted in his current mental health stability.

190 Also relevant to Mr McNamara's prospects of rehabilitation is the viva voce evidence I heard from Nevin Neyland at the plea. Mr Neyland is a former prison programme facilitator and mentor. He also described himself as Mr McNamara's good friend. They first met in the mid-2000s, when Mr Neyland worked as a volunteer facilitator in an education programme running in Port Phillip Prison. The programme had the laudable aim of reducing recidivism. Mr McNamara did very well in the course, and Mr Neyland awarded him a special certificate for showing a strong determination to turn his life around.

191 Following Mr McNamara's release from that sentence, Mr Neyland mentored him for the usual six-month period. However, Mr Neyland felt so confident about him that he voluntarily continued the mentoring for an additional 12 months. In Mr Neyland's view, Mr McNamara was different from the 150 or so prisoners he has dealt with over the years. He had a genuineness that struck him. So impressed was Mr Neyland with Mr McNamara that he would invite him to his home for dinner, which was a privilege extended to no other programme mentee. They also travelled to the beach together with Mr Neyland's family and had other family outings. Mr McNamara also enthusiastically helped Mr Neyland deliver gifts to underprivileged children through another prison programme.

192 While Mr McNamara ultimately reoffended, and more than once, Mr Neyland could still see good in him and that there was hope for the future. After a hiatus, they resumed contact and have maintained that contact over the years since. Mr Neyland (who is from Melbourne) even visited Mr McNamara at his unit in Wangaratta.

193 Mr Neyland was quite stunned that Mr McNamara would be involved in an offence like murder. Nevertheless, despite the nature of the crime, Mr Neyland is prepared to continue to support Mr McNamara with visits and mentoring throughout his prison sentence and upon his eventual release. He has been unable to visit him in prison in recent months because of the COVID-19 restrictions, but they have maintained contact by correspondence.

194 As I remarked at the plea, I am very impressed by Mr Neyland's evidence. Very few people in Mr McNamara's circumstances have anyone who is prepared to come along to Court just to stand up for them and convey positive things. During Mr Neyland's evidence, Mr McNamara's face lit up with pride, gratitude and hope at what he was hearing. That Mr Neyland could (and still can) see something in Mr McNamara that made (and makes) him worth the effort gives me greater confidence that his prospects of rehabilitation are not nearly as bleak as they might appear at first blush. I am glad I heard from Mr Neyland. The world could do with more people like him.

195 In view of the foregoing, I am satisfied that Mr McNamara's prospects of rehabilitation are at least reasonable, and will become quite good, especially if he is given the type of treatment recommended by Ms Crole both in custody and when released on parole, should the Parole Board see fit to make such an order.

196 Finally, I am satisfied that the hardship of imprisonment for Mr McNamara has been, and will continue to be, greater than usual as a result of the COVID-19 pandemic and its impact upon prison conditions.

197 From March this year, personal visits were suspended in Victoria's prisons, as were educational programmes and many recreational activities. Prisoners are now kept locked down in their cells for far longer periods than is usual. Further, there is the ever-present feeling of vulnerability to contracting the virus in an environment over which the prisoner has no control.

198 Just how long the virus will remain a threat, or how long these restrictions will remain in prisons, is unknown. I think it is safe, however, to proceed on a timeline of the foreseeable future, as uncertain as that might be.

200 Section 5(1) of the Sentencing Act 1991 (Vic) provides that the only purposes for which sentence may be imposed are, to use the shorthand, general deterrence, specific deterrence, denunciation, protection of the community, just punishment and rehabilitation.

General deterrence, denunciation and just punishment

201 In my view, general deterrence is an important sentencing purpose in this case. While the need for just punishment and denunciation is moderated on account of Mr McNamara's reduced moral culpability, they too are still quite important considerations in this case of murder.

202 The community should understand that behaviour of the type engaged in by Mr McNamara is denounced by the courts. Further, such behaviour necessarily will result in a substantial term of imprisonment that reflects that a person's life has been taken in brutal and murderous circumstances and that, in this case, the lives of Mr Day's loved ones have been marred forever in consequence. While his crime is not as grave as it would be if he were being sentenced as the perpetrator of the killing, it is still behaviour that must be punished justly and called out for what it is - namely, a terrible thing to do to another human being.

Specific deterrence and protection of the community

203 I am also satisfied that there is a need for weight to be accorded to specific deterrence and protection of the community, especially given Mr McNamara's long history of violent offending. On the other hand, that need is moderated to some extent by the fact that Mr McNamara made admissions, pleaded guilty, is remorseful and has positive prospects for rehabilitation.

204 While I have assessed Mr McNamara's prospects of rehabilitation as being reasonable to good - rather than, say, very good or excellent - I am satisfied that rehabilitation remains an important purpose in fixing sentence. There are at least two reasons.

205 First, that Mr McNamara's prospects of rehabilitation are quite positive makes rehabilitation a sentencing purpose that must be afforded significant weight.

206 Secondly, and despite my remarks about the need to give weight to the protection of the community, I think it is important to recognise the interplay between rehabilitation and protection of the community in any event. Mr McNamara was 41 when he committed this offence and 42 when he went into custody. Thus, barring unforeseen ill-health, he is of an age that, given the order of sentence I am about to impose, I expect that he will be returning to the community ultimately. It is therefore in the community's interests that such prospects of rehabilitation as he has be maximised, and that he is not crushed, so that, when he does return to the community, his risk of reoffending is as low as it reasonably can be and his chances of successful reintegration into the community are also as strong as they can be.

207 Section 5(3) of the Sentencing Act, relevantly, provides that "a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed". This provision reflects the common law principle of parsimony. I have applied this provision and this principle when considering the appropriate sentence in this case.

A table of sentences for murder under the standard sentence regime

208 In so far as I can determine them, I am to have regard to current sentencing practices for murder. Since this is a case attracting the standard sentencing regime, for the purpose of having regard to current sentencing practices, I must consider only sentences imposed for murder under the same regime.[23] Helpfully, Mr Williams supplied a table of the sentences imposed for murder under that regime.[24] In a broad way, I have had regard to those sentences.

Individual sentences for murder under the standard sentence regime as comparators

209 Sometimes, more specific individual case comparisons can be a useful tool in gauging current sentencing practices as well. While such comparisons are often fraught, and while none of the cases in the table provided impressed me as being especially like the present case, three of those sentences struck me as being closer comparators to the present case than the others. They were those imposed by Tinney J in R v Coghlan,[25] by Coghlan J in DPP v Treasure[26] and by Beale J in R v Whybrow.[27]

210 Mr Coghlan and Ms Treasure were co-accused who pleaded guilty to murder pursuant to s 3A of the Crimes Act. They lured the victim to a place in order to conduct an armed robbery on him, by brandishing knives. Once the victim arrived with his girlfriend, a struggle ensued involving all four of those present, during which the victim was stabbed several times. One of the wounds was to his chest, which proved to be fatal. While it was accepted that the stabbing was deliberate, it could not be said that it was delivered with murderous intent. As in the present case, it could not be determined which accused delivered the fatal blow. Justice Coghlan described Ms Treasure's offence as "an armed robbery gone wrong".[28] Justice Tinney assessed Mr Coghlan's offending as being "in the mid-range of seriousness for murder" and his moral culpability as "moderate to high".[29]

211 The accused were aged 29 and 35 respectively, had prior convictions (Mr Coghlan had none for violence, whereas Ms Treasure did) and a history of heavy substance abuse, but pleaded guilty after a contested committal hearing, were remorseful and had good or reasonable prospects of rehabilitation. Each judge imposed a sentence of 20 years' imprisonment with a non-parole period of 14 years.

212 After a drunken party at which Mr Whybrow had retired to a bedroom for a nap, his mother came upon him standing over the victim in the nearby living room and punching him continuously to the face. The victim's arms were by his side, his eyes were closed, his face was covered in blood, and he was making gurgling noises. As he continued the punching, Mr Whybrow said to his mother, "The fucking poofter tried to rape me." After asking his mother whether she had ever been raped, which she denied, Mr Whybrow continued punching the victim in the face. Another guest came upon the scene and, along with Mr Whybrow's mother, urged him to stop punching, which he did eventually. While an ambulance was called, the victim ultimately succumbed to the resulting head injuries. While Mr Whybrow initially claimed to others that he had in fact been raped, when interviewed by police, he was not sure what the victim had done to him, if anything. At his trial, Mr Whybrow's defences (of lack of murderous intent and self-defence) were evidently rejected by the jury, as he was found guilty of murder.

213 In sentencing, Beale J accepted that Mr Whybrow had post-traumatic stress disorder ("PTSD") arising from his being raped as a child, and that a causal link existed between his PTSD and his violent reaction to his belief as to what the victim had done to him. This reduced his moral culpability. His Honour also accepted that there was no premeditation and that Mr Whybrow did not intend to kill but intended only to cause really serious injury. Mr Whybrow was aged 58, had no prior convictions, had a history of positive contributions to the community through volunteer work, and was remorseful. Justice Beale found this to be a mid-range example of murder. He imposed a sentence of 23 years' imprisonment with a non-parole period of 17 years.

214 While these three cases are quite different in many ways from Mr McNamara's case, and Coghlan and Treasure are also in turn different from Whybrow, all four instances of murder seem to me to involve a similar level of objective gravity, albeit for differing reasons.

215 The principal similarity between Mr McNamara's offence and those committed by Mr Coghlan and Ms Treasure is that none of the offenders were to be treated as the perpetrator of the fatal act. Another is that neither Mr Coghlan nor Ms Treasure had murderous intent (but rather that which is required for the purposes of s 3A of the Crimes Act). Mr McNamara also lacked the murderous intent required of a principal at common law and instead is to be sentenced on the basis that he had the intent and awareness that is required by s 323(1)(b) of the Crimes Act. This provision creates a hybrid of the common law concepts of aiding and abetting and extended common purpose, with the substitution of awareness of the probability of murder for the awareness of the possibility of the commission of that offence.[30] While the armed robbery with knives was planned by Mr Coghlan and Ms Treasure, Mr McNamara's offence was committed spontaneously, when he woke from a drunken stupor of sorts. In these ways, I think that the objective gravity of those offences and Mr McNamara's offence nets out to be broadly similar.

216 While Mr Whybrow's offence is quite different in nature and circumstances from Mr McNamara's, nevertheless, in my view, the unusual features that reduced Mr Whybrow's moral culpability make it somewhat similar to Mr McNamara's offence and the offences committed by Mr Coghlan and Ms Treasure, in terms of objective gravity. Mr Whybrow's offence was, like Mr McNamara's, spontaneous and committed immediately after he awoke from a drunken sleep. While Mr Whybrow's repeated punching as a perpetrator was more brutal and grave than Mr McNamara's encouraging of his co-accused to "fuck up" Mr Day, the fact that he believed that the victim had been trying to molest him plainly lessened the gravity of Mr Whybrow's offence.

217 When all matters are weighed, I think that it can be said that these four offences, in their own ways, fall into the broad mid-range of objective gravity of murders encountered in practice.

218 A very important difference affecting the sentences ultimately passed in the three comparator cases is the presence or absence of a plea of guilty. Indeed, I venture to say that, had Mr Whybrow pleaded guilty, it is likely that he would have ended up with a head sentence of a similar order to that which was imposed on each of Mr Coghlan and Ms Treasure.

219 The foregoing discussion notwithstanding, it must be recognised that, in the area of sentencing, it is almost always difficult usefully to compare other cases. No two cases are ever truly alike. As I said at the outset of this branch of my reasons, none of the cases in the table provided impressed me as being especially like the present case. And, in any event, sentences are not precedents to be applied or distinguished.

220 Nevertheless, I have found the other sentences I have considered, and the reasons given for imposing them, instructive in gauging the order of sentences imposed for murder under the standard sentencing regime, and the extent to which those sentences tend to be affected by various aggravating and mitigating factors.

221 In the end, however, as is always the case, because of the limits of that process, I have been driven to rely principally on the circumstances of this case and sentencing principles to arrive at the appropriate sentence for this offence of murder.

222 Among those principles is that I am to have regard to the fact that the standard sentence for murder is 25 years' imprisonment.[31]

223 That standard sentence is "the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness".[32]

224 In Brown v The Queen,[33] the Court of Appeal held that, just as judges have always had in mind a notion of "the worst possible case", so they must now have in mind a notion of an offence "in the middle of the range of seriousness".[34] Recognising the limitations inherent in that injunction, I have kept it in mind.

225 Also, in Brown, the Court of Appeal described the standard sentence as a "statutory guidepost", like the maximum penalty.[35] That is how I have treated both.

228 Balancing all matters as best I can, for the murder of Mr Day, Mr McNamara is convicted and sentenced to 20 years' imprisonment with a non-parole period of 14 years.

229 Section 11A(4)(b) of the Sentencing Act requires that, "[u]nless the court considers that it is in the interests of justice not to do so, the court must fix a non-parole period of at least ... 70 [percent] of the relevant term if that term is a term of 20 years or more". As it happens, the non-parole period of 14 years is precisely 70 percent of the head sentence of 20 years' imprisonment. In my view, any shorter non-parole period would have gone beyond the lower limits of parsimony and failed adequately to reflect the relevant sentencing purposes. Thus, it became unnecessary to consider s 11A(4)(b).

230 This non-parole period allows for a substantial period upon parole, and deliberately so. The prison authorities should ensure that Mr McNamara is offered the types of rehabilitative programmes suggested by Ms Crole in her report. Despite the COVID-19 pandemic, ways must be found to ensure that such programmes are provided. Prisoners must not be warehoused. If Mr McNamara is exposed to the appropriate programmes, I think it is likely that he will work towards his earliest possible release upon parole. If that aim is achieved, he then should be supervised and supported for a substantial period within the community upon his release. Achievement of these aims is more likely to redound to the benefit of both Mr McNamara and the community in the longer run.

231 Pursuant to s 18 of the Sentencing Act, I declare that, including today, 780 days of pre-sentence detention be reckoned as served under this sentence.

232 Finally, pursuant to s 6AAA of the Sentencing Act, I declare that, had Mr McNamara pleaded not guilty to murder but been found guilty of that offence following a trial, I would have imposed a sentence in the order of 24 years' imprisonment with a non-parole period of 19 years.

[1] See, for example, Likiardopoulos v The Queen (2012) 247 CLR 265 at 271[9] & 274[24]-281[39] (per Gummow, Hayne, Crennan, Kiefel and Bell JJ; French CJ agreeing 268-269[1]) & 282[44]-285[51] (per Heydon J).

[2] Report of Mr Jackson (10 July 2020) at p 5.

[3] Addendum Report of Dr Owens (20 July 2020) at [64]-[66]; Report of Dr Owens (5 May 2020) at [65]-[67].

[4] Report of Ms Crole (30 August 2020) at [69]-[72].

[5] See s 3 of the Crimes Act 1958 (Vic).

[6] See ss 5A and 5B of the Sentencing Act 1991 (Vic) and s 3(2)(b) of the Crimes Act 1958 (Vic).

[7] There is a statutory form of felony-murder specified in s 3A of the Crimes Act 1958 (Vic), but that provision is not relevant or relied on in this case.

[8] See ss 323-324C of the Crimes Act 1958 (Vic).

[9] See ss 323 and 324 of the Crimes Act 1958 (Vic).

[10] See s 324B of the Crimes Act 1958 (Vic).

[11] There must also be proof (or at least an acceptance) that the alleged perpetrator, in the course of carrying out the assault, murdered the deceased. See s 323(1)(b) of the Crimes Act 1958 (Vic); The Queen v Novakovic & Ors (Rulings 2-4) [2019] VSC 339 at [9].

[12] Contrast Prosecution Opening at [22] (as well as the reference, at footnote 3, to The Queen v Novakovic & Ors (Rulings 2-4) [2019] VSC 339 at [9]) with Prosecution Opening at [1], Prosecution Sentencing Submissions at [3] and Defence Submissions at [4]-[6] & [18]. See also Plea Transcript (11 September 2020) at pp 38-43.

[13] GAS & SJK v The Queen [2004] HCA 22; (2004) 217 CLR 198 at 209[23] (per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ).

[14] I should add that Mr Williams explained that, while the term "encouraged", or even "assisted", may be apt, "directed" is too strong a word to describe Mr McNamara's behaviour.

[15] Bugmy v The Queen (2013) 249 CLR 571 at 594[42]-595[44] (per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ). See below.

[16] See, for example, DPP v Weybury [2018] VSCA 120; (2018) 84 MVR 153 at 165[33]-[34] (per Maxwell P and Hargrave JA); Walsh v The Queen [2018] VSCA 334; (2018) 87 MVR 76 at 84[28] (per Priest and Weinberg JJA); Lee v The Queen [2018] VSC 343 at [31]- [32] (per Ferguson CJ, Priest and Beach JJA); Nelson v The Queen [2020] VSCA 219 at [43] (per Hargrave and T Forrest JJA).

[17] The following summary is taken mainly from Ms Crole's report, as hers is the most recent. As will be seen, however, it is supplemented by information taken from the reports of Mr Jackson and Dr Owens and other materials before the Court.

[18] See, for example, DPP v Bourke [2020] VSC 130 at [32] (per Jane Dixon J); R v Nolan [2020] VSC 416 at [39] (per Taylor J).

[19] Report of Ms Crole (30 August 2020) at [75]-[76].

[20] Addendum Report of Dr Owens (20 July 2020) at [69] & [83]; Report of Mr Jackson (10 July 2020) at pp 10 & 21-22.

[21] Bugmy v The Queen (2013) 249 CLR 571 at 594[42]-595[44] (per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) (my emphasis).

[22] Report of Ms Crole (30 August 2020) at [88].

[23] See s 5B(2)(b) of the Sentencing Act 1991 (Vic).

[24] The table comprised The Queen v Brown [2018] VSC 742 (which was Brown v The Queen (2019) 59 VR 462); The Queen v Robertson [2019] VSC 145; The Queen v Leigh [2019] VSC 378; The Queen v Willis [2019] VSC 398; R v Coghlan [2019] VSC 543; DPP v Todd [2019] VSC 585; The Queen v Marshall [2019] VSC 601; The Queen v Pozzebon [2019] VSC 631; DPP v Herrmann [2019] VSC 694; The Queen v Eckersely [2020] VSC 22; R v Wardlaw [2020] VSC 83; R v Whybrow [2020] VSC 233; DPP v Munn [2020] VSC 251; R v Sturt [2020] VSC 317; R v Cameron [2020] VSC 334; R v Hounslow [2020] VSC 363; DPP v Treasure [2020] VSC 402; and DPP v Kotiau [2020] VSC 421.

[25] R v Coghlan [2019] VSC 543.

[26] DPP v Treasure [2020] VSC 402.

[27] R v Whybrow [2020] VSC 233.

[28] DPP v Treasure [2020] VSC 402 at [47].

[29] R v Coghlan [2019] VSC 543 at [68].

[30] See, for example, The Queen v Novakovic & Ors (Rulings 2-4) [2019] VSC 339 at [10] & [189].

[31] See ss 5(2)(ab) and 5B(2)(a) of the Sentencing Act 1991 (Vic).

[32] See s 5A(1)(b) of the Sentencing Act 1991 (Vic).

[33] Brown v The Queen (2019) 59 VR 462 (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA).

[34] Brown v The Queen (2019) 59 VR 462 at 479[57].

[35] Brown v The Queen (2019) 59 VR 462 at 479[55].