R v Mulvihill

Supreme Court of NSW|2014-04-16|Before: Fullerton J

REMARKS ON SENTENCE 1HER HONOUR: On 10 March 2014 the offender was convicted after trial of the murder of Rachelle Yeo at her home in North Curl Curl on the evening of 16 July 2012. She was aged 31. 2Murder carries a maximum sentence of life imprisonment. It also attracts a standard non-parole period of 20 years. The maximum penalty of life imprisonment is reserved for a murder where the culpability of the offender is so extreme that the community's legitimate interest in a combination of all, or any, of the indicia in s 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), each of which in different ways focuses on the protection of the community, compel the conclusion that the only sentence that can be imposed is imprisonment for life. The Crown submitted that the murder of Ms Yeo, whilst an offence of very considerable gravity, was not an offence that could properly attract a life sentence. I accept that submission. 3The standard non-parole period is the period during which a person has no entitlement to be released to parole. Where it applies (as it does in this case) it represents a hypothetical offence in the middle of the range of objective seriousness. That assessment is confined to an assessment of the objective features of the offending under consideration. The maximum sentence and the standard non-parole period both operate as legislative guideposts that inform the sentencing discretion (see R v Muldrock [2011] HCA 39; 244 CLR 120). 4The Crown submitted that the murder of Ms Yeo was well above the mid range of objective seriousness, falling just short of an offence in the worst category. Whether that submission is accepted depends, in part, upon my findings on an interrelated series of factual issues not resolved by the jury's verdict, and which remained the subject of contest on sentence. Principal among them was whether the offender was to be sentenced for a premeditated murder, a finding the Crown conceded was not necessarily comprehended by the jury's verdict.

The events of 16 July 2012 5Ms Yeo lived in a unit on the first floor of a unit block comprising a total of seventeen units with six units on each of three levels (with the exception of the ground floor which had only five units). Her unit was accessible from an internal staircase via a pathway on the western side of the building which extended from garages at the rear to a bank of letterboxes situated at the front of the building. There was a dual locking mechanism on the front door of her unit consisting of a deadlock, operated by a key, located above a barrel lock, also requiring a key. A security peephole was also installed in the front door. The units on the first floor each had an external balcony located approximately 3.6 metres above a driveway which extended the full length of the property on the eastern side. 6Ms Yeo left her place of work at Macquarie Park at 6.34pm on 16 July 2012 at the end of her working day. Her manager, Renee Ward, gave evidence that Ms Yeo was in high spirits, planning to spend the night at home preparing a fancy dress outfit for an event at an upcoming conference. 7On leaving work Ms Yeo drove directly to Freshwater where she attended a yoga class. En route to her yoga class she spoke by telephone to her father at 6.52pm and then again at 7.10pm. She also spoke to Michelle O'Flaherty, a close friend, at 6.38pm. Ms O'Flaherty gave evidence that in the course of that phone call she asked Ms Yeo whether the offender had been in contact with her. Ms Yeo said that she had not heard from him and continued: "[It's] waiting for what he will do next that scares me." 8After her yoga class, and at a time when it would appear she was on her way home, Ms Yeo placed a telephone call to her boyfriend at 9.04pm. He did not take the call. He returned her call at 9.34pm. It was unanswered. 9Police arrived at Ms Yeo's unit at 9.25pm in response to 000 calls placed at 9.18pm and 9.19pm by her neighbours after they heard her repeated and increasingly strident screams for help, extending over a period of approximately ten minutes. Ms Faletoese (a resident of the unit above Ms Yeo's unit) was first alerted to a loud scream from a woman some time after 9pm. At about the same time, another neighbour, Ms Burrows, heard a woman scream, "Oh My God, Oh My God". Ms Faletoese and her partner, Mr Gualtieri, went down the stairs to investigate, passing Ms Yeo's unit en route. They heard nothing at that time. When they were outside they heard the woman scream again. They immediately tracked the screams as coming from Ms Yeo's unit. They went directly to the door to her unit where Ms Faletoese banged and shouted, demanding for the door to be opened. They heard Ms Yeo repeatedly scream for help and for the police to be called in what they described as a state of deep and escalating distress. 10By this time Ms Faletoese and Mr Gualtieri were joined by other residents, including Ms Burrows, on the landing outside Ms Yeo's door where they heard sounds of a struggle that appeared to escalate in seriousness. Some residents described voices raised in argument. In response to Ms Faletoese continuing to shout and bang on the door for it to be opened, Ms Yeo was heard to say that she could not get to the door to open it. One resident heard her say, "He won't let me". The only thing the offender was heard to say (and in what was described as a calm and controlled voice) was, "Everything is okay, you don't need to call the police". It was after that that everything went quiet, which prompted Ms Burrows to urge the 000 operator to have the police attend urgently. The last sounds from inside the unit were described by another resident as a "gurgling noise" or a "rasping for air". He said these sounds lasted for a few minutes and that they sounded as if they were coming from immediately behind the door of the unit. 11After forcing entry to the unit, police found Ms Yeo unconscious, face down behind the front door in a pool of blood. She was pronounced deceased by ambulance officers shortly after 9.36pm following unsuccessful attempts to resuscitate her. 12Penetrating stab wounds to the right side of her chest and the left side of her neck were noted by ambulance officers. Both wounds were associated with a considerable loss of blood. Extensive lacerations and abrasions were noted on her face, hands and feet. 13There was a considerable amount of pooled, expirated and transferred blood in the immediate vicinity of where Ms Yeo was found, in the hallway leading to the front door, and in the kitchen and living room. Her clothing was heavily blood stained. She had bare feet. Her shoes were in the hall near her handbag, both in a state of disarray. A bag containing her work clothes was in pooled blood in the kitchen. Her mobile phone was also in pooled blood on the kitchen floor.

The forensic evidence 14The results of autopsy identified the cause of death as either one or a combination of the two penetrating stab wounds. The wound to the chest penetrated multiple layers of Ms Yeo's clothing before penetrating her lung and heart. The wound to her exposed neck severed the jugular vein. The stab wound to the right chest penetrated to a depth of 18 centimetres. A superficial stab wound was located proximate to her right underarm. A constellation of blunt force injuries and sharp force injuries was identified by Dr Van Vuuren (who performed the autopsy) with the greater concentration being on Ms Yeo's head and neck. Professor Hilton (the pathologist called by the offender at trial) noted that the severe bruising on the bridge and upper septal area of Ms Yeo's nose indicated the application of severe blunt force trauma (consistent with a punch with a fist) and which would be expected to produce copious bleeding. Both Professor Hilton and Professor Duflou (who was called by the Crown at trial) considered that the multiplicity of injuries and their severity overall indicated that Ms Yeo was engaged in a violent and prolonged struggle with the offender before she died. 15Although the subject of considerable contest at trial, it was conceded on sentence that the combined weight of the evidence of the three forensic pathologists allows for the positive finding that the wound to Ms Yeo's neck was inflicted first, followed by the chest wound, and that she died from cardiac arrest likely as a result of an embolism entering through the severed jugular vein. That evidence, when coupled with the evidence from the residents of the unit block, also allows me to conclude that Ms Yeo died within a short time of sustaining the neck wound. 16The order in which the wounds were inflicted and their placement is not only relied upon by the Crown as supporting a finding that they were both inflicted with an intention to kill, a finding of obvious significance to an assessment of the objective seriousness of the offending, but also as part of the factual complex relied upon by the Crown to prove premeditation. The Crown submitted that by the infliction of a stab wound to Ms Yeo's chest after the wound to her neck (a wound which on the evidence was likely to have bled obviously and profusely, thus explaining the copious amounts of shed blood in the kitchen), allows for a finding that the offender planned to inflict two stab wounds to ensure that she was dead. The Crown submitted that I would be satisfied that the offender's footprint on the hood of Ms Yeo's jacket was applied as he stood or knelt over her while she was on the floor at the front door, either as he stabbed her in the chest or after he had done so. The Crown submitted that this wound was inflicted to satisfy himself that Ms Yeo was dead or dying and to ensure that she would not be able to open the front door, where he knew her neighbours were assembled, and name him as her attacker.

The significance of the white chain 17The offender's footprints, in Ms Yeo's blood, extended from the living room of her unit onto the external balcony. His palm print was located on the railing of the balcony. A trail of blood led along the driveway, towards the front of the property from underneath Ms Yeo's balcony. Although the blood was insufficient for identification purposes, the only available inference is that it was Ms Yeo's blood, and that it was deposited as the offender fled the scene. The defence did not contend to the contrary at trial. Police also located a piece of white plastic chain approximately a metre in length and formed with elliptical shaped links, with each link approximately 3.5 centimetres in width, on the driveway in proximity to the trail of blood. Ms Yeo's blood was identified on one end of the chain. 18The white chain, and how it came to have Ms Yeo's blood on it, was hotly contested at trial, as were the circumstances in which the offender came to be inside Ms Yeo's unit. Those matters remained in contest on sentence.

The offender's conduct after the murder 19It was not in contest at trial that a long-bladed knife was the mechanism by which the wounds to Ms Yeo's neck and chest were inflicted. A kitchen knife of similar size and dimensions to one that belonged to Ms Yeo, which could not be located after her murder, was tendered at trial. The expert pathologists agreed that the fatal stab wounds could have been sustained by a knife of that kind. They also agreed that it could have caused the deep lacerations to the palm and outer aspect of Ms Yeo's hands, injuries that were described by Professor Duflou as "typical defensive injuries", an opinion shared by Professor Hilton and Dr Van Vuuren. I am satisfied that the knife that was used by the offender to kill Ms Yeo was, in all likelihood, in her unit and not taken by the offender to the unit. That does not, taken alone, lead me to have a reasonable doubt on the issue of premeditation. It is, however, one of the factors that is relevant to the resolution of that question. 20The offender disposed of the knife, together with his hooded jacket and shoes. None of those items have been recovered. He was captured on CCTV footage returning to the hotel where he was staying in Macquarie Park at 9.58pm, barefoot and wearing a T-shirt. I reject his evidence at trial that he removed his shoes and his outer clothing as he drove back to his hotel because he was hot. I have no doubt that he removed and disposed of them because they were bloodstained, and in order to conceal the fact that he had killed Ms Yeo. I am satisfied that he disposed of the knife for the same reason. 21The telephone call the offender placed to his wife at 10.05pm where he said, amongst other things, "She's gone", is also unambiguous evidence of the fact that he knew Ms Yeo was dead when he left the unit. I reject the offender's evidence at trial that in using those words he was merely reporting to his wife that Ms Yeo would no longer be a factor to be contended with in their marriage because he had so seriously wounded her that she was unlikely to want to see him again. The fact that he placed the call to his wife within an hour of the murder, implicitly admitting he had killed Ms Yeo, is difficult to explain consistent with the Crown case that the murder was premeditated. 22The offender was arrested by Queensland police on the afternoon of 17 July 2012 at Brisbane airport, after failing to board a flight to Brisbane scheduled to depart Sydney at 7.05am. He was seen in CCTV footage in the business class lounge at Sydney airport eating breakfast at 6.40am. At 7.10am he was seen in CCTV footage hiring a car from the airport which he then drove to Newcastle where he booked a flight to Brisbane, under a friend's name. He also used his friend's credit card after telephoning him en route to Newcastle and falsely claiming that he had lost his wallet. 23The Crown submitted that the offender's conduct on his return to the hotel at 9.58pm, together with his conduct upon leaving the hotel five minutes later at 10.03pm via the fire door exit, after a change of clothing and whilst covering his face, and then his efforts to leave New South Wales undetected the following day, was part of the evidence upon which I would be satisfied the murder was premeditated. 24On 18 July 2012, after being returned to New South Wales in custody, the offender was charged with Ms Yeo's murder.

The evidence at trial and the jury's verdict 25The offender gave evidence at trial accounting for the extent and spread of the secondary injuries to Ms Yeo's face and hands consistently with his case that neither of the fatal stab wounds were the result of his actions. He said the fatal stab wounds and secondary injuries were sustained after Ms Yeo produced the knife when, after she had allowed him into her unit so that they could talk about their relationship, an argument erupted. 26By their verdict the jury have rejected any reasonable possibility that Ms Yeo was fatally stabbed by accident. Their verdict also entails a rejection of any reasonable possibility that the fatal stab wounds were inflicted in self-defence. Despite the offender's evidence that he did not inflict either of the two fatal knife wounds, manslaughter by excessive self-defence was left for the consideration of the jury, at his counsel's request, in accordance with my obligation as the trial judge (see Pemble v R [1971] HCA 20; 124 CLR 107; see also James v R [2014] HCA 6). 27The deep lacerating knife wounds to both of Ms Yeo's hands, and the severity and spread of injuries to her face and forehead allow me, consistently with the jury's verdict, to sentence the offender on the basis that Ms Yeo was killed in the course of a sustained and violent struggle in her home. The jury's verdict also allows for a finding that the offender inflicted at least one of the two fatal stab wounds with an intention to kill. 28Other facts, either deriving from the evidence at trial or the inferences to be drawn from that evidence, including facts which the Crown submitted were comprehended by the jury's verdict, were relied upon by the Crown in support of the submission that I would find that the offender meticulously planned Ms Yeo's murder, including his survey of her unit and the surrounds at 7pm, and carefully making arrangements for a false alibi in the likely event that he would be questioned when her body was found. 29An additional issue in contest both at trial and on sentence was whether I could be satisfied that the murder was motivated by revenge. The Crown submitted that the evidence establishes that the offender planned to kill Ms Yeo, both to punish her because she had terminated a relationship with him some months previously and had rejected his persistent and unwanted advances since that time and, in addition, to punish her for what he perceived to be her contribution to the end of his marriage, finally announced by his wife on 12 July 2012, and what he perceived to be Ms Yeo's indifference to his situation. 30The fact and the degree of premeditation or planning is a factor to be taken into account on sentence in assessing the objective seriousness of murder. The collected authorities to which I have been referred by both counsel make repeated and uncontroversial reference to the fact that an unplanned, impulsive, or even an opportunistic murder, is regarded as less serious than one which entails premeditation or pre-planning. 31It is equally uncontroversial that in accordance with established sentencing principle, any fact adverse to the offender and not otherwise comprehended by a jury's verdict must be proved beyond reasonable doubt (see R v Isaacs (1997) 41 NSWLR 374; 90 A Crim R 587), while any facts or matters relied upon by the offender in mitigation need only be proved on the balance of probabilities (see R v Olbrich [1999] HCA 54; 199 CLR 270). Accordingly, it is necessary for me to reconsider the evidence led at trial in so far as it informs the question of premeditation and the offender's moral culpability, and the competing submissions of counsel about that evidence. 32It was the offender's case on sentence (at least as advanced by his counsel) that in contrast to the premeditated and motivated murder contended for by the Crown, I could not discount the reasonable possibility that Ms Yeo was killed in circumstances where, upon arriving home from work after her yoga class, and after she invited him into her home to discuss the end of their relationship, he was overcome by a sudden and uncontrollable rage when they argued about how their relationship ended and the attribution of fault in its demise, and that on impulse he used a knife that was in the unit and killed her. Ms Traill submitted that although the evidence allowed for a finding that the offender planned to go to Ms Yeo's home in the evening of 16 July 2012 unannounced (and after contriving a means where he could later deny being there), I would not be satisfied he did so as part of a plan to kill her, but simply to talk to her. 33Although the offender's explanation as to how he came to be inside Ms Yeo's unit on the night she died was very likely rejected by the jury, it is not necessarily a factual finding embedded in their verdict. It was, however, and remained a factual finding integral to the Crown case that the murder was premeditated. It remained in contest on sentence for that reason. 34If I am satisfied, after reviewing the evidence led at trial and the submissions advanced by counsel in closing addresses (submissions which were in large part repeated on sentence), that there remains a reasonable possibility that Ms Yeo agreed, however reluctantly, to allow the offender into her unit, it does not necessarily follow that I would find that her murder was not premeditated; for example, were I persuaded, to the level of satisfaction beyond reasonable doubt, that his request to speak with her was simply a ruse on his part to get inside the unit and then to kill her. On the other hand, even if after reviewing the evidence I am able to discount as a reasonable possibility that Ms Yeo would have invited the offender into her unit, it does not necessarily follow that I could be satisfied, to the requisite standard, that her murder was premeditated.

Ms Yeo's relationship with the offender 35These issues, amongst others, fall to be determined against the background of a relationship between the offender and Ms Yeo that was at one time intimate and loving, but a relationship that devolved to the point where, in the weeks preceding her death, Ms Yeo spoke to family, friends and work colleagues about her gathering concern at the offender's repeated and persistent displays of obsessive behaviour, including his unsolicited advances and repeated attempts to contact her against her express wishes, to the extent where, in the week before she was killed, she sought the advice of a clinical psychologist to address her anxiety and stress. 36It is necessary to refer to that body of evidence, at least in a summary way, to make patent the basis for the conclusion I have reached that there is no reasonable possibility that Ms Yeo would have invited the offender into her unit after dark on 16 July 2012, in particular in circumstances where she knew she would be alone with him and where she was fearful of him. 37The offender and Ms Yeo were both employed by Sanofi Aventis - a pharmaceuticals company. He was the National Pharmacy Channel Development Manager stationed in Brisbane while Ms Yeo was a Pharmaceutical Sales Representative also stationed in Brisbane until she moved to Sydney in April 2012 where she assumed the position of Product Manager. 38It was common ground at trial that the offender and Ms Yeo had been in a sexual relationship, which the offender was conducting extramaritally and which Ms Yeo was also conducting whilst in another relationship, and that the relationship extended over a period of 18 months prior to January 2012 when the offender's wife learnt of the relationship after she chanced upon SMS messages on her husband's phone. The evidence also established that their sexual relationship continued after January 2012, despite the offender's protestations and promises to his wife to the contrary. Ms Yeo terminated her relationship with her fiancé in February 2012. 39A schedule of telephone, email and SMS communications passing between the offender and Ms Yeo after January 2012 reflected Ms Yeo's indecision and prevarication as to whether, and on what terms, she might continue in the relationship with the offender. That evidence also established that the relationship continued after Ms Yeo moved to Sydney in April 2012, when she had told her family and intimated to her friends that the relationship was over. 40However, that same body of evidence also established that by 16 May 2012 Ms Yeo had made the firm and unilateral decision that the relationship was at an end, and that she took considered and determined steps on and after that date to make that plain to the offender. There is no evidence that Ms Yeo initiated contact with him after 17 May 2012 and a considerable body of evidence that she actively avoided him, including ensuring, with the cooperation of her employer and her friends, that he did not know, and could not find out, where she lived. 41By June 2012 Ms Yeo had commenced a new relationship with a man she had known for some years prior to commencing her relationship with the offender. I accept that, by the time of her death, this was an established relationship incorporating future plans for work and travel as a couple. It is not clear by what means the offender learnt of Ms Yeo's new relationship although, after an exchange of SMS messages on 4 June 2012 when they were both in Melbourne on company business, and where she repeatedly refused his invitation to meet with him, to the extent that she eventually told him he was making her anxious because of his persistence, he sent her the following text message: "Not sure what you have to be anxious about. ?? New job, new city, new boyfriend, all your friends around etc..... You just don't get it !!" 42On 14 June 2012 Ms Yeo sought the intervention of the Human Resources Department at Sanofi Aventis when, after the offender's further unwanted advances and approaches were rebuffed by her, he threatened to damage her reputation in the company by publishing the SMS and email communications they had exchanged during their relationship. On that day a member of the Human Resources Department contacted the offender and instructed him to stop contacting Ms Yeo. It was after that date, with the assistance of the Human Resources Department and the concurrence of her manager, Renee Ward, that Ms Yeo took further steps to distance and insulate herself from any contact with the offender. From mid-June she was advised by management that whenever the offender was scheduled to be in the Sydney offices she should work from home and, where possible, that she should leave the Sydney office before he arrived. On those occasions, including on 4 and 11 July 2012, Ms Yeo was escorted to her car by a colleague. 43During this same time Ms Yeo's family became increasingly concerned about her safety, including the lack of security at her home in light of there being no security door at the entrance to the unit block. Ms Yeo's father twice encouraged Ms Yeo to report the offender's behaviour to the police. 44Motivated by what I am satisfied was the offender's obsessive and vengeful behaviour, on 3 July 2012 he called a female colleague at Sanofi Aventis and, without identifying himself, claimed that Ms Yeo had been having an affair with her husband. Although the woman could not be sure that the caller was the offender, she reported the matter to Ms Yeo who in turn reported it to the Human Resources Department. 45On 5 July, whilst attending Dee Why police station to obtain a national criminal history check for scheduled international travel, Ms Yeo expressed concern to a police officer about someone she described as a work colleague who had become obsessive and hostile. Ms Yeo told the police officer that the man had caused problems for her at work and that he had made threats, including that he would "take [her] down and ruin [her] life". 46On 9 July Ms Yeo expressed concern to Ms Ward about the offender's presence at an upcoming work conference. Ms Ward made arrangements for Ms Yeo to be accommodated in circumstances where she would not be on her own or in an outlying part of the conference centre. 47On 12 July Ms Yeo saw a psychologist, Kerry Borthwick (having been referred through the Sanofi Aventis Employee Assistance Scheme), to address the anxiety and fear that she was experiencing as a result of the offender's conduct. Ms Borthwick administered a Depression, Anxiety and Stress Scale test which revealed that Ms Yeo had moderate depression, extremely severe stress and extremely severe anxiety. Ms Borthwick scheduled another appointment for the following week. 48The evidence also establishes that within days of Ms Yeo's murder, the offender's wife informed him that the marriage was over. Mrs Mulvihill gave evidence that their attempts at reconciliation after January 2012, including marriage counselling were, in her assessment, marred by her husband's deceitful conduct and his persistent lies. 49The offender gave evidence that Ms Yeo telephoned him on 9 or 10 July 2012. He then called his friend, Lynn Paisley, on 13 July 2012 to seek her advice about what he should make of the call and whether she thought it signalled a softening of Ms Yeo's resolve and perhaps a desire to reconcile with him. Ms Traill relied upon this evidence to support the reasonable possibility that the offender went to Ms Yeo's unit on the evening of 16 July 2012 to talk to her and that she invited him inside so that they could talk. In circumstances where there is no record of the call in question being placed or received, and where I consider it extremely unlikely that Ms Yeo would have called the offender for any reason, I place no weight on the offender's evidence that he received a call from her. Although it would be open for me to find that reporting to Ms Paisley that Ms Yeo had called him, and then engaging in a lengthy dialogue with Ms Paisley about it, was part of his elaborate plan to kill Ms Yeo, I am unable to draw that inference adverse to the offender when it is equally consistent with his obsessive ruminations about Ms Yeo, even to the extent of fictionalising to others her continuing interest in him. 50In his evidence at trial the offender accepted that despite what he knew to be Ms Yeo's clear and unambiguous resolve to terminate her relationship with him in May 2012, and despite the fact that he knew that she had taken deliberate steps to ensure he did not know where she lived, he made the decision to go to her home and "see her face-to-face to have that one last final conversation", because he needed "closure". He claimed, however, that despite coming to Sydney early in the afternoon on 16 July for the express purpose of confronting her, he only came to learn of her address when, somewhat serendipitously, after he arrived in Sydney he looked through the tinted windows of her car parked at Sanofi Aventis and saw an envelope addressed to her lying on the seat. 51At trial he denied that his multiple internet searches from late May 2012 up to and including 3 July 2012 (including specific searches on real estate sites, Google maps and White Pages) were directed to finding where she lived. Instead, he claimed, amongst other equally transparent justifications, an interest in Sydney real estate. While there is no evidence in the Crown case as to when and how the offender discovered Ms Yeo's address, I discount entirely that he found it in the circumstances he claimed in his evidence as I do his evidence concerning the internet searches. 52I am also satisfied that on the evening of 16 July 2012 the offender went to Ms Yeo's home twice, on each occasion unannounced, wearing a dark jacket with a hood, and that he did so after taking considered and careful steps to conceal the fact that he had left the hotel where he was staying, including steps designed to permit him to leave from and return to the hotel without notice by chocking open the external fire stairs. The Crown submitted that this conduct, graphically exposed by the hotel's security CCTV cameras, could have been for no other purpose than to construct a false alibi as part of his plan to kill Ms Yeo, well knowing that he would be the primary suspect once her body was discovered. The Crown submitted that the offender's explanation, namely that he wanted to be in a position to deny going to Ms Yeo's unit in the event that she reported him to the Human Resources Department for going to her home to talk to her, was untenable. I accept that submission. In my view, this aspect of the offender's evidence (from which he does not resile on sentence) was a transparent attempt to deal with the incontrovertible force and damaging impact of the CCTV footage. 53That conduct does not, however, compel a finding beyond reasonable doubt that the murder was premeditated. It is also consistent with a plan to force himself upon Ms Yeo at her home and then to deny being there. However, because I have discounted the reasonable possibility that Ms Yeo invited the offender into her unit for the reasons I have discussed, it must therefore follow that he gained entry against her wishes, that being the only available inference for his being inside her unit at all. I regard it as inconceivable that he would force entry or gain entry to Ms Yeo's unit by stealth simply to talk to her, or that once she found him inside her unit, or he forced her inside as she opened the door, she would be willing to talk to him. If I am satisfied that it was in the course of Ms Yeo defending herself against an attack, or threatened attack, that he used her knife intending to kill her, then even if I am unable to find beyond reasonable doubt that the murder was premeditated, to plan to attack a woman in her own home, and to use a knife with that intention, is a murder of very considerable gravity, properly positioned above the middle of the range of objective seriousness. 54Resolution of the dispute about the white chain is relevant to the question of premeditation, equally as it informs the objective seriousness of a murder committed without pre-planning since, on any view, the white chain was capable of being used as a weapon. 55While it was no part of the Crown case at trial that the chain was used to inflict any of the injuries that were revealed on autopsy, the jury were invited to find that the offender took the chain with him as part of his plan to attack and kill Ms Yeo (perhaps to use it as a ligature or a restraint), and that once inside the unit, he determined instead to use a knife to kill her, but that the chain was accidentally dropped as he jumped from the balcony. Again, although it is likely that the jury found that the white chain was taken to the unit by the offender (perhaps as a consequence of, or in the process of, rejecting his evidence as either untruthful or unreliable), a finding on this question is not necessarily embedded in the jury's verdict. 56The Crown submitted that I would reject the offender's evidence that the white chain was not his and accept the evidence of the Mrs Mulvihill that she saw the chain (and a receipt for the purchase of the black hooded jacket the offender was wearing on the night of the murder) in his travel bag before he travelled from Brisbane to Sydney on the day of the murder. The Crown submitted that to accept the evidence of Mrs Mulvihill as truthful and reliable leads inexorably to the conclusion that the offender took the chain into Ms Yeo's unit on the night that he killed her for use as a weapon, thereby explaining the presence of her blood on the chain when it was found. The Crown submitted that finding would entail my rejecting any reasonable possibility that the chain happened to be incidentally lying on the driveway having been dropped or left by someone else, and that Ms Yeo's blood was accidentally transferred from the offender's shoe to the chain as he fled the scene in a state of panic, that being the case he advanced at trial. 57I accept that submission as I do the evidence of Mrs Mulvihill. Ms Traill's attack on Mrs Mulvihill's credit, no doubt on instructions from the offender, to the effect that she had fabricated evidence to falsely implicate her husband in Ms Yeo's murder to secure a property settlement in Family Court proceedings in her favour, was another attempt by the offender to neutralise what he knew was a most incriminating piece of evidence. 58Ms Traill submitted that even were I to find that the offender took the white chain with him, I could not exclude the reasonable possibility that he did so to use it in some way to inflict violence on himself, or to feign doing so. That submission was based upon something the offender said to Mrs Mulvihill when, in advance of the trial, they discussed the fact that she had found the white chain in his luggage and whether she would tell the police. Not only was that conversation denied by the offender (containing as it did an admission that the chain was his), I am satisfied that telling his wife he only took it to use on himself was to conceal his real purpose from her, and perhaps to elicit her sympathy in an attempt to dissuade her from telling the police what she had found.

Was the murder premeditated? 59There is very considerable force in the Crown's submission that after resolving the disputed facts left undetermined by the jury's verdict adverse to the offender and considering the facts that are consistent with it, that I would be satisfied that the murder of Ms Yeo was premeditated and that the offender should be sentenced on that basis. I am not, however, able to draw that conclusion beyond reasonable doubt. I am, however, able to exclude any reasonable possibility that the formation of his intention to kill her was impulsive or spontaneous in the way those concepts are frequently applied in an unplanned murder or in the way contended for by his counsel. Rather, I am satisfied, and beyond reasonable doubt, that the offender gained entry to the unit, armed with the white chain, either with the intention of harming Ms Yeo or threatening her with it, and, in the rapidly unfolding events as Ms Yeo sought to defend herself against his attack, he took her knife and repeatedly stabbed at her and in her direction, intending to kill her. Furthermore, I am satisfied, having regard to the placement of the wounds that they were both inflicted with that intention and that the chest wound was inflicted to ensure that she would not survive the attack to identify him. 60I am also satisfied that Ms Yeo sustained the secondary injuries, in particular the defensive injuries to both her hands, in the process of defending herself against the offender's attack and that, during the course of that attack, she was screaming and calling for help while the offender was actively preventing her from accessing assistance from her neighbours, either by restraining her or otherwise preventing her from opening the door to her unit.

The offender's moral culpability 61The offender's moral culpability for Ms Yeo's murder, which I treat as a separate issue from objective seriousness (see McLaren v R [2012] NSWCCA 284), does not require me to apply some hermetic seal separating what was done to Ms Yeo from why it was done, neither does it require any amelioration of sentence if the offender's motive is unclear or not able to be divined. Were it otherwise, what might, in another case, appear as a random killing would be regarded as less morally culpable than a motivated killing. For the reasons discussed, I am unable to find to the level of satisfaction beyond reasonable doubt that Ms Yeo's murder was premeditated. However, the offender's conduct in going to her home with all the pre-planning that entailed, and with what I am satisfied was an intention to intimidate, menace and attack her in retaliation at nothing more than her wish to terminate a relationship against his wishes, renders his moral culpability for her death of a very high order. 62After taking into account all of the objective features of the offending, but absent premeditation, I am unable to describe it as a murder just short of the worst case as urged upon me by the Crown. That should not be taken to diminish my assessment of its gravity or in any way to diminish the offender's moral culpability. In assessing objective seriousness I have taken into account not only the fact that Ms Yeo was killed with a knife, and in her own home, as aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act but also what must have been her extreme terror at being subjected to a vicious and sustained attack, and her indescribable torment when she knew there were people trying to help her on the other side of the door.

Additional evidence led on sentence 63Prior to the convening of the proceedings on sentence the Crown notified its intention to rely upon evidence relating the offender's conduct towards his first wife, Celine Carroll, after their separation and divorce in 1991. Acts of violence and threatened violence were detailed by her in a statement obtained by police in August 2012 when, after the offender's arrest, and with the encouragement of her sister, Kilmeny Molloy, she contacted police. A statement from Ms Molloy was also obtained at the same time. I am satisfied that the information they provided could not be said to have been influenced by the details of the offender's conduct towards Ms Yeo prior to her death as they were revealed in the evidence at trial. Although their statements were served as part of the brief of evidence with an accompanying tendency notice under s 97 of the Evidence Act 1995 (NSW), the evidence was not relied upon by the Crown at trial as tendency evidence. 64Reliance upon the evidence on sentence for any tendency purpose (or, for that matter, as suggesting any coincidence under s 98 of the Evidence Act between the offender's past conduct in forcing or obtaining entry to his former wife's home and forcing or obtaining entry to Ms Yeo's unit) was expressly disavowed by the Crown. The evidence was relied upon for two reasons: first, to meet what was anticipated would be a submission put on the offender's behalf (as in fact proved to be the case) that he is not a violent person, has never been a violent person and has never threatened anyone with violence. This submission was then relied upon by Ms Traill to support the further submission that the violence inflicted upon Ms Yeo in the course of which she was killed was out of character and that the offender should be sentenced as a person of good character. The second ground relied upon by the Crown for the admission of the evidence was to assist me in making an informed enquiry into the offender's prospects of rehabilitation and risk of further offending. 65Given the controversy raised by the Crown's intention to rely on the evidence it was necessary for me to direct, in accordance with s 4(3) of the Evidence Act, that the laws of evidence would apply in determining the admissibility of the evidence and that a notional voir dire hearing would be convened in order to determine that question. 66The proceedings on sentence were adjourned for six days to permit the evidence to be tested under cross-examination and to allow the offender the opportunity to consider his position and to call any evidence he wished to rely upon to both deal with the admissibility of the evidence, and, in the event that the evidence was admitted in whole or in part, to consider any evidence he might call or give to meet the potential of the evidence to inform the sentencing process in the ways articulated by the Crown. 67The Crown called Ms Carroll and Ms Molloy. They were both cross-examined. 68Ms Carroll married the offender in January 1989. Their marriage was brief. They were divorced in May 1991 after separating in about August 1990. Towards the end of 1991 Ms Carroll detailed an incident where the offender appeared at the house where she was living in Holland Park with a friend of the offender, unexpected and uninvited, and in possession of a rifle. The house was formerly their marital home and had not at that time been sold as part of the divorce settlement. It was sold in August 1992. 69Various other people were present at the house. Ms Carroll gave evidence that the offender waved the rifle around (not necessarily directing it at anyone) and demanded to know what was going on. When Ms Carroll attempted to leave, the offender grabbed her arm and took her car keys from her. She said other people present were trying to calm him down. She said she was only able to leave when one of the other people at the house, Brett Zegenhagen, threw her his car keys. Ms Carroll took his car, drove to her parents' house and parked in a side street. Shortly after that she received a call from the offender saying that he knew where she was. 70Ms Molloy gave evidence that she was at her parents' home when her sister arrived in what she described as "a state of terror", reporting that the offender had appeared at her house with a rifle. In cross-examination it was put to Ms Carroll that she was lying when she said the offender came to where she was living with a gun. It was put to her that she had falsely claimed a memory of the incident. Ms Carroll did not resile from her evidence. 71Mr Zegenhagen was called by the offender on the voir dire. He gave evidence that he could not recall the incident described by Ms Carroll in her evidence. He said that were it to have occurred and despite the passage of time he would have expected he would recall it. He did, however, in the course of his evidence volunteer that he was asked by the offender's mother to take a rifle that was in the offender's bedroom to the police because she did not want it in the house, and that he complied with that request without raising it or discussing it with the offender out of embarrassment. 72Ms Carroll also gave evidence that from the end of 1991 and over the ensuing 12 months her car had at least four flat tyres which she noticed after leaving it unattended. On the first occasion, the offender drove by and offered to help her change the tyre. She also said she received a number of unsolicited letters from the offender attempting to persuade her to return to the relationship, including a card which said, "Goodbye and good luck", signed with the offender's name, and left outside her home. She said that there was a bullet with the card. She said in cross-examination she did not know whether the bullet was an implied threat to harm her or because the offender was suggesting he might harm himself. Ms Molloy gave evidence that she was present when Ms Carroll discovered the card with the bullet, however, she recalled it being discovered in the bathroom cabinet. 73In late 1992, after moving from Holland Park and whilst living with her sister, Ms Carroll arrived home one night with a male friend to find the offender hiding under her bed. She described the layout of the house from which she concluded, as do I, that he had forced entry through a window. Ms Carroll gave evidence that the offender said, "What are you doing here? I am going to kill you". She screamed for him to get out and he fled down the stairs via an external balcony. She agreed in cross-examination that she could not be certain whether the threats were directed at her or her male friend. Ms Molloy gave evidence that Ms Carroll recounted that event to her at the time. The culmination of these events caused Ms Carroll to obtain a Domestic Violence Protection Order. She also agreed that there is no record of the offender threatening to kill anyone in her application for the order that was made after the incident. The application was not in evidence. 74After that incident Ms Carroll relocated to a unit in a secure complex. Some time in 1993 she encountered the offender on the ground floor of the building. He approached her, grabbed her around the throat from behind, and said, "We need to talk". Ms Carroll screamed for help. When another resident appeared, the offender released her and ran out the front door of the building. Ms Carroll reported the incident to the police who attended the premises an hour later. From the upstairs window of her unit Ms Carroll identified the offender's car as it drove past the building. She said police did not pursue the matter because they told her the person who witnessed the incident was not able to identify the offender because he had no prior knowledge of him. In cross-examination it was put to her that the attack was a fabrication and that she was lying when she said police attended and that she pointed out the offender's car to them. 75The offender gave evidence denying most of what was alleged against him by Ms Carroll. He said that he had an air rifle when he was a teenager but denied ever being in possession of a rifle capable of discharging a projectile. He denied sending Ms Carroll a bullet or attacking her in the foyer of her unit. He admitted breaking into where Ms Carroll was living in 1992, and hiding under her bed, but denied making any threats of the kind attributed to him when he confronted her and her friend. 76Objection was taken to the admission of the evidence called by the Crown on a number of bases. First, it was contended that the evidence should be excluded because it necessarily involved taking into account for the purposes of punishment uncharged acts which the offender has either denied or declined to admit. This, it was submitted, was contrary to principle (see R v JCW [2000] NSWCCA 209; 112 A Crim R 466). Given the limited purposes for which the Crown sought the tender of the evidence, eschewing any reliance on it as a circumstance of aggravation or as inflating the objective seriousness of the offence for which he is to be sentenced, I do not regard the evidence as inadmissible as a matter of law. 77Reliance was also placed, by analogy, with the approach taken by McCallum J in R v Gittany (No 5) [2014] NSWSC 49 when the Crown sought to tender evidence on sentence bearing upon the question of premeditation which it had sought to lead at trial but which her Honour excluded because the Crown had closed its case. When the Crown sought to tender the same evidence on sentence her Honour excluded it in the exercise of discretion under s 137 of the Evidence Act (see [35]-[37]). The discretionary considerations which in her Honour's assessment weighed against the admission of the evidence are quite different from the matters I am asked to consider. 78The exercise of the discretion provided for in s 137 requires, in every case where it is invoked, careful consideration of the probative value of the evidence in the context of considerations of fairness particular to the proceedings in which the evidence is sought to be tendered. The evidence should only be excluded where the danger of unfair prejudice is outweighed by its probative value. While McCallum J was persuaded that the admission of the evidence on sentence would have undermined Gittany's entitlement to a fair trial on the issue of premeditation, her Honour also expressed reservations as to whether the evidence sought to be adduced could be admitted for a non-hearsay purpose. Neither of those considerations have any bearing at all on the evidence under challenge in these proceedings. 79I am satisfied that any risk of unfairness to the offender occasioned by having to meet Ms Carroll's evidence many years after the events she described is countered by the need for me to be satisfied beyond reasonable doubt that the conduct relied upon by the Crown in fact occurred. 80In the result, although the index of my suspicion remains very high, I am left with a reasonable doubt as to whether the offender came to the house at Holland Park with a rifle. I am, however, satisfied beyond reasonable doubt that he presented himself unannounced and uninvited on that occasion and that he inspired sufficient fear in Ms Carroll, and concern in the other people that were present, that she left in the circumstances that she described. In addition, again although the index of suspicion is high, I am not satisfied beyond reasonable doubt that the offender left a bullet at Ms Carroll's house or that he was responsible for letting the air out of her tyres. In any event, even if I were satisfied that he left a bullet with the card, I could not be satisfied that it was intended to threaten Ms Carroll as distinct from it being a display of histrionics on his part. 81I am however satisfied beyond reasonable doubt the offender assaulted Ms Carroll in the foyer of her unit block in 1993. The fact that there was no official record tendered by the Crown of Ms Carroll's complaint to police and her request that they attend her unit does not diminish what I regard as her truthful and reliable account of what happened to her. I simply do not accept that in 2012 when, with the encouragement of her sister, she informed police of what she had suffered at the offender's hands at the demise of her relationship with him, that Ms Carroll (or her sister) had any reason to give false evidence. Ms Carroll's demeanour (and that of her sister) in the witness box was measured and free of exaggeration. They both made concessions where they could not with certainty attribute specific words or conduct to the offender. The fact that there is no police record of the incident in 1993 (if that be the fact), may be explained for any number of reasons, inclusive of the failure of police to respond appropriately, even assuming that there might have been a concern about the identification of the offender. I also reject the offender's evidence that when he came out from under Ms Carroll's bed in 1992, as he admitted he did, he did not threaten to harm anyone. I accept Ms Carroll's evidence that he said the words she attributed to him, but accept her concession that she could not be sure that the threats were directed at her. The fact that the offender was only prepared to concede that his admitted behaviour towards Ms Carroll on that occasion was "offensive", is not only consistent with his attempts to minimise or deflect any acceptance of responsibility for the effects of his behaviour on others but is, in my view, a telling insight into his prospects of rehabilitation.

The evidence relied upon by the offender on sentence 82The offender's sisters, Donna Parker and Kelly Osborne, gave evidence for the offender on sentence. Ms Parker was present throughout the trial. I have no doubt that Ms Parker and Ms Osborne will continue to support their brother as he serves his sentence as they have, in different ways, supported him throughout the trial and the sentence proceedings. 83Dr Furst, a forensic psychiatrist who prepared a report dated 2 April 2014 after conferring with the offender the previous day, also gave evidence. The offender's subjective circumstances, and what Dr Furst described in his report as his demographic details, are generally supported by the evidence given by his two sisters. 84The offender is currently 46 years of age. He has no relevant criminal record. He married his current wife in 1996. They have three adolescent daughters who live with his wife in Queensland. The dissolution of their marriage is the subject of contested proceedings in the Family Court. Prior to his arrest the offender was living in Surfers Paradise in the matrimonial home, albeit separated from his wife. I accept that he has provided well for his family and is a devoted father. 85The offender was initially trained as a teacher completing a degree at Griffith University in 1989. He taught in a private school in the United States between 1996 and 1997. He played competitive football as a schoolboy and professional football in both Queensland and New South Wales until the mid 1990s. He has worked in a management position for Sanofi Aventis since January 2007 after working in the pharmaceutical industry in Australia and the United States over the preceding decade. His employment with Sanofi Aventis was terminated upon his arrest. 86Although he reported to Dr Furst that on his own assessment he was well regarded by his colleagues, with his work recognised by the presentation of awards by the company, this was not independently verified. No positive evidence of his good character from professional or sporting colleagues was called on his behalf. I do accept, however, that his sisters attest to him being a person of good character and that they were shocked that he was charged with murder. They both gave evidence that they have never known him to be a violent person. While their evidence is entitled to some weight in mitigation of sentence, it is diminished in part by the matters I have found proved in Ms Carroll's evidence. That said, I also note that there was no repetition of conduct of that kind in the interregnum between 1993 and 2012. 87The offender disclosed the breakdown of his marriage consequent upon the disclosure of his affair with Ms Yeo to Ms Parker in January 2012. Ms Parker described the offender as being very distressed and out of her concern for him she maintained more frequent contact with him after that date, principally by telephone. Ms Parker observed the offender becoming what she described as "more and more depressed" throughout March and April 2012. Ms Osborne also gave evidence that the offender was devastated at the breakdown of his marriage. Ms Parker gave evidence that when she met with the offender in May 2012 his physical appearance had deteriorated to such a point that she did not recognise him. Ms Osborne also gave evidence of the offender's dramatic weight loss. Ms Parker expressed her concern about her brother's physical and mental health and encouraged him to see a doctor. During this time the offender repeatedly expressed to Ms Parker that he had "nothing to live for". 88The offender's mental state examination on 2 April 2014 was reported by Dr Furst as evidencing intact cognition without any indication of suicidal ideation. Dr Furst did note, however, that in some of the materials he was asked to consider, including medical records from a general practitioner in Southport with whom the offender was consulting between 6 June 2012 and 13 July 2012 (the Friday before the murder), the offender was reported to be suffering the effects of stress and mood changes because of the problems in his marriage and the separation from his wife and children as a consequence of having been required to leave the family home. This attracted a diagnosis of depression by his treating doctor on 1 June 2012 which was treated thereafter with antidepressant medication. Although the offender reported suicidal thoughts to his doctor in June 2012, and had apparently threatened suicide from time to time in various dealings with his wife, the notes also record that he denied suicidal ideation when he last attended upon his doctor on 13 July 2012. 89I am unable to form any opinion as to whether the offender's threats of suicide were genuine at any time or, for that matter, whether the "suicide note" he emailed to his wife on the morning of 17 July 2012, before driving to Newcastle with a view to arriving in Brisbane unobserved, was genuine, or written and sent for some ulterior purpose consistent with his attempts to conceal his responsibility for Ms Yeo's death. In short, although threats of suicide are a repeated theme, there is no evidence of any suicide attempt or any prevailing risk of self-harm. 90In Dr Furst's opinion, the persistence of symptoms of depression, diagnosed by the offender's general practitioner and treated with antidepressant medication, supported a diagnosis of a major depressive disorder, likely triggered by the breakdown in the offender's marriage and what he perceived as the loss of his relationship with Ms Yeo. Dr Furst noted there is no indication that the offender had suffered from depression in the past or from any other psychiatric illness. He went on to report that the offender received a psychiatric assessment on entering custody, where his medication was maintained on a decreased dosage, and noted that throughout his remand the offender's mood gradually improved despite the ongoing stress occasioned by the separation from his children. The offender reported to Dr Furst that he consulted a forensic psychologist on three occasions in 2013 whilst on bail and attended at various medical centres for repeat prescriptions of his antidepressant medication. No reports or clinical records associated with these attendances were tendered. 91Ms Traill did not rely upon Dr Furst's evidence to ground the submission that the offender's depression prior to 16 July 2012, or instability in his functioning in some environments in the months preceding that date operate to reduce his moral culpability for the murder, or to reduce the need for the sentence to reflect denunciation and punishment in accordance with established sentencing principles (see Beldon v R [2012] NSWCCA 194 at [34]-[36]). Neither was it submitted that his depression impacted adversely, or at all, on his capacity to make what I am satisfied was a series of calculated decisions on 16 July 2012 (and in the days before that date) such as might diminish the need for the sentence to reflect either general or specific deterrence. I am satisfied in any event that the evidence led at trial is to the contrary. According to Mrs Mulvihill and to Darryn Cass, a friend and work colleague who was in the offender's company for some hours on the morning of 16 July 2012, he was in good mental and physical health. In addition, there was nothing in his presentation at the Brisbane office of Sanofi Aventis prior to when he left to fly to Sydney or his presentation following his arrival in Sydney to suggest any functional instability. 92I do accept, however, that it is likely that the offender will have an ongoing need for medication to address his depression, and that he is at risk of an exacerbation of his symptomatology in a custodial setting where he will be separated from his children and where he will experience the full impact of the loss of family and career occasioned by his conviction and sentence. I have every expectation however that Dr Furst's recommendation that he continue to take his antidepressant medication will be reviewed and monitored by Justice Health, as it was on his admission to custody. 93The offender told Dr Furst that what he described as his problem with "infidelity" and "the end of his relationships" was, on his self-assessment, the reason he is being sentenced for murder. He also said his many infidelities were as a result of his father's and his uncle's infidelities and the negative influence of older men he met playing football. He told Dr Furst that he learnt from their example that infidelity was "the done thing". It forms no part of this sentencing exercise for me to pass comment upon the offender's attitude to his marriage vows or whether, and to what extent, he has sought multiple sexual partners throughout his adult life. The issue only arises because the offender detailed his past relationships to Dr Furst claiming that it was "relationship issues", reflected in part by his lack of fidelity, that is the explanation for his offending. 94To the extent that what he claims as newfound insight into his attitude to relationships and how they end is relevant to sentence, and I am not persuaded it is, the constant theme in his account to Dr Furst and in his evidence on sentence was to deny personal responsibility for his actions and their effect on others. At all events, his "insights" have no mitigating effect when he continues to deny that his attitude to relationships has resulted in the infliction of violence. 95Dr Furst's opinion that the offender had good prospects of rehabilitation, and that the risk of him reoffending appeared to be generally low, was based largely on the fact that the offender presented with few of the risk factors regarded as predictive of future violence, such as a history of serious violence, substance abuse, severe mental illness or personality disorder. What remained controversial was whether and to what extent Dr Furst's opinion should be moderated by the view I have taken of the offender's past conduct. Dr Furst agreed in cross-examination that his views as to the offender's future prospects hinge, in a very large measure, on whether the offender has any real insight into what he reported to Dr Furst as "his problems in ending relationships" and what he described as his feelings of insecurity and loneliness that surface at that time. I do not consider that the offender has demonstrated any insight of the kind that Dr Furst saw as critical to his rehabilitation. Not only did the offender maintain the position that he has at no time inflicted violence or threatened violence, and despite what he asks me to accept as his newly acquired and profound insight into the "issues" he has at the end of relationships and the importance of accepting when they are at an end, he remained unable to appreciate that lying in wait for Ms Carroll (conduct he admits) was anything other than "offensive" or, when pressed by me, "very offensive". In so far as he has accepted responsibility for Ms Yeo's death, it was in such guarded terms that it does not evidence remorse as provided for in s 21A(3)(i) of the Crimes (Sentencing Procedure) Act. He told me he accepted that his actions caused Ms Yeo's death, not because he attacked her with a knife, but because he should not have struggled with her over the knife when she produced it and that he "should have handled the situation better". He also described his conduct on 16 July 2012 in going to Ms Yeo's home unit as "inappropriate" and "wrong"; that it was "inappropriate" that he stayed in the unit after she had invited him in and they argued and that it was "inappropriate" for him to leave over the balcony. 96In light of what I consider to be the offender's continuing lack of insight into or acceptance of responsibility for the extreme and ultimately fatal violence he perpetrated upon Ms Yeo, it is very difficult to make any reasoned assessment into his prospects of rehabilitation, but I am quite unable to accept that they are "good". In my view, they are, at best, described as guarded. That said, I accept he is not an unintelligent man. It may be that in time a more realistic and sensible self-appraisal may surface. I accept that he has made some attempts in prison-based courses to confront the reality of his situation. I note Dr Furst's recommendation that the offender avail himself of the group and individual counselling offered by the Violent Offender's Treatment Program in prison. I would expect, however, that acceptance into the program would require, as a bare minimum, the offender to acknowledge that he is a violent offender who requires treatment. 97Given the length of the non-parole period that I will impose as part of the sentencing order, I cannot meaningfully predict the risk of his reoffending on his release (see Bugmy v R [1990] HCA 18; 169 CLR 525).

The victim impact statements 98I have received victim impact statements from Ms Yeo's mother, father and brother. They each read their statements in open court. Their statements were articulate and thoughtful. They each gave evidence at trial with courage and dignity. 99I accept without reservation that the circumstances in which their daughter and sister died has left a permanent scar on them as individuals and as a family, the ongoing effects of which they experience, and will continue to experience, in different ways. I also accept that her death and the circumstances in which she died have impacted upon them physically, psychologically and emotionally. I can only hope that at the culmination of these proceedings they are able, in time, to resume their lives as individuals and surviving members of a most loving family and with an untarnished memory of Ms Yeo as a loved daughter and sister. I sincerely hope that the circumstances in which she died will recede from their memory although, I accept, they will never be erased entirely. No sentence of imprisonment, whatever its length, can compensate for the loss of a loved one or even begin to address the grief and sadness that accompanies the loss of life and the anger that the death of a young woman should occur at the hands of another. I do, however, take the statements of Ms Yeo's family into account in the way permitted by law (see MAH v R [2006] NSWCCA 226). On behalf of the Court and on my own personal behalf, I extend my deepest sympathies to her family and others who knew her and loved her.

Comparative sentences 100Both counsel provided separate schedules of sentences imposed for murder in this Court at first instance and considered by this Court on appeal. I have considered that material in accordance with the approach most recently stated by the High Court in Barbaro v R; Zirilli v R [2014] HCA 2 at [38]-[40], where the Court endorsed the correctness of the approach in Hili v R [2010] HCA 45; 242 CLR 520. 101It was not suggested be either counsel that any particular case or combination of cases to which I was referred mark the outer bounds of my sentencing discretion. To the extent that the cases evidence a range of sentences for murder committed in comparable circumstances to those with which I am concerned by offenders with similar subjective circumstances to this offender (a range which I have not been able to discern with any precision), I do not regard myself as obliged, by reference to the caselaw, to impose a sentence of any particular length or structure. 102I am not persuaded that special circumstances have been demonstrated to justify disturbing the statutory ratio provided for in s 44 of the Crimes (Sentencing Procedure) Act. The non-parole period I impose must be sufficient to reflect my finding as to objective seriousness, moderated to a modest degree by the matters relied upon in mitigation. I am satisfied that the length of the parole period I will propose is sufficient to provide for the offender's adjustment to the community upon his release to conditional liberty.

Sentence 103Taking into account the purposes for which sentence is imposed, as reflected in s 3A of the Crimes (Sentencing Procedure) Act, and utilising the maximum sentence and the standard non-parole period as legislative guideposts, I impose the following sentence: Paul Darren Mulvihill, on the charge of murder I sentence you to a term of imprisonment of 29 years, comprised of a non-parole period of 22 years commencing on 16 February 2013 (to account for your pre-sentence custody) and expiring on 15 February 2035, with a balance of term of 7 years expiring on 15 February 2042. You will be first eligible for release to parole on 15 February 2035.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 April 2014

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