R v Ney

Supreme Court of NSW|2021-03-29|Before: Johnson J

REMARKS ON SENTENCE

JOHNSON J: The Offender, Mert Ney, appears for sentence for grave crimes of violence committed by him in the course of extraordinary and tragic events which occurred in the City of Sydney on 13 August 2019.
Following pleas of guilty, the Offender is to be sentenced for the murder of Michaela Dunn and wounding Lin Bo with intent to cause grievous bodily harm.

The Sentencing Hearing

The sentencing hearing proceeded on 29 and 30 March 2021. Tendered in the Crown case, without objection, was the Crown sentencing bundle (Exhibit A) and a folder containing six disks in which video and electronic evidence were contained (Exhibit B).
The defence case on sentence included a folder containing defence sentencing material (Exhibit 1), a chronology of events in the life of the Offender in the period 25 July 2019 to 13 August 2019 (Exhibit 2) and statements of two Crown witnesses (Exhibits 3 and 4). Included in the defence sentencing material was a report dated 15 March 2021 of Dr Richard Furst, forensic psychiatrist.
The video and electronic evidence tendered by the Crown was played at the sentencing hearing.
In addition, victim impact statements were made to the Court by Joanne Dunn, the mother of Michaela Dunn (who was accompanied by her daughter, Emily) with a victim impact statement of Lin Bo being read to the Court.
Oral evidence was given in the defence case on sentence by Direnc Hazel Ney, the Offender's sister (T23-29), the Offender (T34-74) and Dr Furst (T78-93).
Both the Crown (MFI 1 and MFI 4) and senior counsel for the Offender (MFI 2) furnished detailed and helpful written submissions on sentence. In addition, counsel addressed on sentence (T94-115).
At the conclusion of the hearing, senior counsel for the Offender foreshadowed the provision of a detailed chronology of relevant mental health documents which had been tendered in the defence sentencing material. The Crown did not object to the late provision of this chronology which was furnished by the solicitor for the Offender on 15 April 2021 (Exhibit 5).

Facts of Offences

What follows is drawn from various evidentiary sources including an Agreed Statement of Facts (part of Exhibit A) and the CCTV footage and other electronic evidence tendered by the Crown (Exhibit B). The narrative which follows may be taken as the Court's findings of fact on these topics. Background of the Offender
The Offender was born in September 1998 and was almost 21 years old at the time of the offences committed on 13 August 2019.
The Offender was born in Sydney and is of Turkish/Cypriot background. He has two older sisters. The Offender's father worked as a computer engineer. The Offender's parents separated in 2013 and thereafter, he lived with his mother and sister, Yazel Ney, at an address in Marayong.
The Offender attended Marayong Public School and Blacktown Boys High School. According to the report of Dr Furst, there were no indications of an intellectual disability, however, the Offender reported having difficulty concentrating in class. The Offender had few friends at school and little interest in sport and no identified hobbies. The Offender reported that he was bullied at school. He commenced Year 9 in 2014, but hardly attended school that year so that he was asked to repeat Year 9 in 2015. He attended only two more weeks of school before leaving completely in 2015.
It does not appear that the Offender has any history of employment and he was unemployed at the time of the offences.
The Offender has never been involved in an intimate relationship, his only previous intimate contacts being with sex workers.
As will be seen, the Offender has a history of diagnosis with mental health issues, including anxiety, obsessive compulsive disorder and depression. In addition, he used and abused illicit drugs and prescription drugs as well as alcohol. The Offender was also involved in 2019 in Facebook and other electronic communications with persons engaged in online gaming, including violent war gaming. Some Events Between 25 July 2019 and 7 August 2019
On 25 July 2019, the Offender attended Blacktown Mosque and expressed an interest in Islam. He had demonstrated no prior interest in Islam or any other faith.
When he attended the Blacktown Mosque on 25 July 2019 and spoke to Mujib Ullah, the Offender informed him that he wanted advice about how to improve his life. The Offender returned to the Blacktown Mosque on a number of occasions between 4 August 2019 and 12 August 2019.
On these visits, the Offender was educated about the basics of Islam. On a number of occasions, members of the Mosque observed that the Offender appeared to be affected by alcohol and drugs. Members of the Mosque attempted to assist the Offender to address his accommodation issues and other difficulties, however the Offender's engagement with their assistance was inconsistent and unstable. The Offender's engagement with the practice of Islam was likewise considered inconsistent.
On 4 August 2019, the Offender advised his mother that he was attending a Mosque. He said that he had done so to deal with his issues and claimed that he was in search of peace. He told his mother he was giving up alcohol.
On 6 August 2019, the Offender sent a message via Facebook Messenger to the boyfriend of his sister Direnc, and indicated that he (the Offender) was then praying at the Blacktown Mosque and was going to clean himself of sins and was going to doctors for help.
Later on 6 August 2019, the Offender returned home from the Mosque and told his mother that he would not be returning to the Mosque again as he did not like it nor the people who attended. The evidence indicates that persons who had contact with the Offender at the Blacktown Mosque had done their best to provide positive and reasonable advice and support. Despite the Offender's apparent interest in obtaining support from persons at the Mosque, he did not persevere with it.
Some time later on 6 August 2019, the Offender spoke to Yazel, and said "I've taken too much Lyrica". Due to the Offender's state, Yazel recommended calling an ambulance.
Eventually, the Offender and his mother caught an Uber to Blacktown Hospital. Whilst at hospital, the Offender became concerned that he would be admitted involuntarily. He sent his mother home by taxi. The Offender was admitted involuntarily by the hospital that night. However, despite being placed in a secure room, the Offender managed to escape from Blacktown Hospital.
At about 5.30 am on 7 August 2019, the Offender's mother received a phone call from Blacktown Hospital advising her that the Offender had run away. The hospital had also contacted police.
At about 6.00 am on 7 August 2019, the Offender arrived home looking for his medication. He was unable to find the medication and told his mother that, if he did not get it back, he would turn violent or break something. He began punching the walls causing holes in them. He grabbed his mother's mobile phone and threw it on the ground, breaking it.
On 12 August 2019, the Offender attended the Blacktown Mosque and was observed, at about 4.15 pm, smelling of alcohol and cigarettes. The Offender told a member of the Mosque that he had gone to his house and taken all his belongings. At about 5.30 pm that day, one of the members of the Mosque dropped the Offender back at his crisis accommodation in Blacktown.
I should make clear that there is no question that persons associated with the Blacktown Mosque sought to radicalise the Offender. The evidence demonstrates that persons associated with the Mosque were engaged in the peaceful practice of Islam and that they sought to assist the Offender in a manner consistent with their peaceful beliefs and practice. Regrettably, the Offender did not take up that opportunity. Common Assault Against Yazel Ney on 7 August 2019 (a Form 1 Offence)
At about 6.35 am on 7 August 2019, Yazel woke up and heard the argument about the missing medication. Yazel called Riverstone Police Station and then walked into the corridor of the house and screamed at the Offender to leave the house. The Offender, who was around eight metres away, turned and ran towards Yazel.
The Offender struck Yazel with an open fist to the top of her face. The brother and sister then wrestled and the Offender grabbed his sister in a headlock. She bit him on the hand and he released his grip.
The Offender's mother did not see the assault, but heard screaming and shouting. The mother was afraid of the Offender and asked him to leave the house. By the time police arrived at the house, the Offender had already left the scene.
Later on 7 August 2019, Yazel attended Riverstone Police Station and an apprehended violence order was sought by her and granted. Thereafter, police were in daily contact with Yazel in an attempt to locate the Offender, but police were unsuccessful in this respect. Events Between 9 and 12 August 2019
On 9 August 2019, Direnc spoke with her mother and then attempted to message and call the Offender, but did not receive any response.
The Offender had booked crisis accommodation at premises at Blacktown and arrived there some time between 5.00 pm and 7.00 pm on 9 August 2019.
At about 4.00 pm on 10 August 2019, the Offender returned to the family home at Marayong and told his mother he had been sleeping in parks. His mother told him to take a shower, but the Offender walked to his room and took some of his clothing and other belongings. He walked outside and began to burn photographs stating that he wanted to erase all memories of his family as he did not have a family any more.
The Offender's mother urged him to go to hospital to receive more treatment. The Offender said he would forget the past and he did not want to speak to his mother. He told her "you have made your choice and you have chosen my sister [Yazel]".
The Offender left the house with some of his clothing and other belongings. The Offender was not seen again by his mother until after she became aware of his actions leading to his arrest on 13 August 2019.
On 11 August 2019, police attended the Marayong family residence. The Offender's mother advised police that he had come home the previous day, but had left.
As mentioned earlier (at [30]), the Offender attended the Blacktown Mosque on 12 August 2019 for the last time. Events on 13 August 2019
Between 10.23 am and 10.55 am on Tuesday, 13 August 2019, the Offender exchanged text messages with his aunt, Emine Gulle. Within these text messages, the Offender expressed his anger concerning his situation and blamed others for the incident at the family home on 7 August 2019. The Offender declined offers of help from his aunt, stating that he believed that she would force him to go to hospital. The Offender told his aunt that he would be dead in a week. The Offender's Journey from Blacktown to the City
Much of the Offender's movements on 13 August 2019 were captured by closed-circuit television ("CCTV"). The CCTV footage includes the Offender's departure from his crisis accommodation at Blacktown, his travel by train from Blacktown to the Sydney CBD, his entry to and departure from the murder scene and his subsequent conduct in the Sydney CBD.
At 11.37 am on 13 August 2019, the Offender caught a train from Blacktown. He was carrying a shoulder bag that contained a knife that he had taken from the crisis accommodation at Blacktown. The Offender is about six feet tall and he moved in a purposeful fashion as he travelled through railway stations, leaping over the ticket barriers on several occasions. When seated on trains, he was seen to use his mobile telephone intently. He had all the appearances of a young man travelling to the city of Sydney by public transport. There was nothing unusual about his appearance or his manner as he made this journey.
At 12.25 pm, the Offender arrived at Town Hall Station and he went to the library on Level 1 within Town Hall House.
As at 13 August 2019, Michaela Dunn was working as an escort from a unit in premises in Clarence Street, Sydney. Ms Dunn was born in August 1994 and was 24 years of age at the time of her death.
At about 1.04 pm on 13 August 2019, a colleague of Ms Dunn received a text message booking request from the Offender for 30 minutes of "girlfriend experience" at 1.30 pm that day. Ms Dunn's colleague informed the Offender that the cost was $250.00 and the Offender agreed. The Offender had only $2.00 in cash and no credit card. He was in no position to pay for the escort services to be provided as a result of his call.
Ms Dunn's colleague confirmed the appointment with Ms Dunn and then sent a text message to the Offender providing a street address for the Clarence Street premises. It should be observed that the Offender was able to make these arrangements without difficulty. His functioning was not impeded in any respect in this regard.
At 1.06 pm, the Offender left the library and caught a train from Town Hall to Wynyard Station. After leaving Wynyard Station, the Offender spent some time attempting to locate the Clarence Street address which he had been provided. He exchanged a number of text messages with the colleague of Ms Dunn with whom he had made the booking. Once the Offender arrived at the front of the building, he received a text message from Ms Dunn's colleague to press the buzzer for the particular unit. The Offender did as suggested.
At 1.44 pm, Ms Dunn sent a text message to her colleague that "He [the Offender] just buzzed". Once again, it should be observed that the Offender had no difficulty finding his way to the building. His mental functioning was not impeded in this respect. The Murder of Ms Dunn
The Offender travelled by lift to the fourth floor of the building and entered the front room of the unit where Ms Dunn was present on her own. As a result, the Offender was in a private location alone with Ms Dunn. He had set out to achieve this position through his call arranging to meet a person for sexual services. The Offender had $2.00 in cash and no credit card. He was in no position to pay for the services he had booked. I do not accept the Offender's evidence that he had in mind the possibility of leaving the apartment without paying for the services.
The Offender had no good reason to travel from Blacktown to the city that day. I am satisfied that he came to the city for the purpose of doing physical harm to a person or persons. That is precisely what he did next.
The Offender was armed with at least one knife. Immediately, he attacked Ms Dunn with a knife and inflicted multiple stab and incised wounds to her face, neck, chest and limbs. The Offender was taller and heavier than Ms Dunn. She sustained extensive defensive wounds to her forearms and hands. The Offender cut the neck of the victim through to the spinal cord at the C4/C5 juncture.
Ms Dunn had not said or done anything to provoke the Offender or trigger what happened. She was alone and vulnerable in an apartment with a stranger who had arranged to meet her, I am satisfied, for the purpose of killing her.
This was a cruel, brutal and terrifying attack made for no reason. It is entirely clear that the Offender intended to kill Ms Dunn.
Ms Dunn died quickly as a result of the Offender's knife attack.
The forensic evidence indicates that the Offender also suffered at least one wound to his left knee and a cut to one of his fingers during the attack. The Offender's DNA profile was matched with several blood swabs taken at the scene and subsequent forensic testing confirmed that Ms Dunn's DNA was found on various parts of the Offender's body. A knife with Ms Dunn's blood was left on the kitchen bench. The Offender Immediately Films the Murder Scene and Sends the Footage to Friends
What happened next was both gruesome and bizarre and has given rise to submissions from counsel concerning the motivation of the Offender.
After he had cut the throat of Ms Dunn, the Offender created a 10-second video of himself using his mobile telephone. In this recording, the Offender held the phone at arm's length and displayed his bloodied left hand near his face. The Offender appeared to be enjoying the process whereby he filmed the young victim lying on the floor whom he had just murdered in a savage attack. He turned the phone towards the body of Ms Dunn whilst he stood over her. The Offender then moved his head so that his face was in the shot. During this video, the Offender also uttered statements including "Allahu Akbar" and "Fuck infidels".
At 1.49 pm, the Offender sent the video to a friend, Lewis McCalla, via Facebook. In an exchange with Mr McCalla on Facebook, the Offender said "Yeah I'm fucking psycho", "I was laughing bro", "The fear", "Call cops" and "Right now".
The Offender left Ms Dunn's body lying in the front room of the unit.
At 1.51 pm, the Offender exchanged the following messages on Snapchat with an individual known as "Alex": "Alex: 'LOL', 'LOL you were going to get shoot', 'In the end', 'Let me see you knife that hoe for die on you LOL'. The Offender: 'I left', 'Going on terror attack in large shop'. Alex: 'I don't believe that nigga'. The Offender: 'Watch news'. Alex: 'Sure', 'Just a lill ass knive', 'Knife'."
The messages sent by the Offender to Lewis McCalla and "Alex" gave rise to submissions from counsel concerning the Offender's motive and mental state. It was argued for the Offender that he embarked upon a course of conduct which was intended to see him killed by the police - so-called "suicide by cop". The Crown pointed to the Offender's comment to "Alex" that he was "going on terror attack in large shop" and "watch news". The Offender Leaves the Clarence Street Building
The Offender left the Clarence Street building via a stairwell and fire exit door. Whilst in the stairwell, the Offender recorded another video at 1.56 pm which he sent to "Alex". "Alex" replied "Fuck" and "Cool thing Nigga". Once again, the Offender's mental functioning was not affected in a way which impeded his capacity to engage in electronic messaging to his acquaintances in the course of his violent rampage.
The Offender left a blood trail going down the stairs. In the stairwell between Levels 3 and 4, a knife was later discovered with a 200 millimetre long blade. This was one of the murder weapons. The blood trail continued down the stairs towards the ground level of the building. The Offender Dons a Balaclava and then Heads for Streets in the Sydney CBD
At 1.57 pm, the Offender stood in the rear alleyway of the building. Whilst walking in the alleyway, he stopped twice to again use his mobile phone. He remained in the alleyway for around two-to-three minutes and then put a balaclava over his head.
The Offender said in evidence that he had the balaclava with him as he had planned to carry out an armed robbery at Enmore (T56). Whatever his plan may have been in that respect, the Offender placed it on his head before heading out onto the street. I bear in mind that the Offender's clothing was bloodstained and he was wielding a knife. The placing of the balaclava on his head was hardly intended as a disguise. The Offender well knew that he was likely to be apprehended if not killed. What the Offender did was to clothe himself in a manner designed to maximise fear in members of the public who were going about their business in the streets of Sydney at lunchtime on a Tuesday.
The Offender walked past the Clear Skincare Clinic at about 2.00 pm. He held a large kitchen-size knife and there was blood on his t-shirt. He ran out onto York Street in the direction of King Street. The Offender Runs Amok in York and King Streets
The Offender ran through stationary traffic carrying the knife in his right hand. At this stage, he was heard by one witness shouting "Allahu Akbar". The Offender turned right onto King Street towards Darling Harbour.
On the corner of King Street, CCTV footage captured the Offender attempting to stab downwards with his knife at Chi Cheng, a young woman walking down the street. Ms Cheng's back was turned away from the Offender and she was unaware of his actions. By chance, she moved just far enough forward to avoid being stabbed. Fortunately for Ms Cheng, she was not physically harmed, but that was solely because the Offender's strike at her head missed. The Offender then continued on King Street. The Offender Attacks Lin Bo
Lin Bo was with a friend, Jennifer Yan, walking back from lunch. Ms Bo was near the CBD Hotel located at the corner of King and York Streets. She heard someone screaming, but did not hear what was being said. She looked over her right shoulder and saw two or three men running past her. All of this is depicted on the graphic CCTV footage which shows the bedlam being created by the Offender.
The Offender ran past Ms Bo's left side and, as he did so, he stabbed her in the back of her shoulder whilst her back was turned away from him. After the Offender stabbed Ms Bo, Ms Yan yelled "Oh no, he has a knife".
Ms Bo then noticed that the Offender had a knife in his right hand. CCTV footage captured Ms Yan assisting Ms Bo to enter the CBD Hotel. At this point, Ms Bo realised that she had been stabbed and Ms Yan asked the hotel staff to call an ambulance.
Ms Bo was attended to shortly thereafter and was taken to St Vincent's Hospital for examination and treatment. Ms Bo sustained a four centimetre single stab wound to her left posterior thorax at the level of the scapula. The wound was treated, including by the application of six sutures. The knife attack on Ms Bo was the offence of wounding with intent to cause grievous bodily harm for which the Offender is to be sentenced. Of course, Ms Bo has suffered psychological harm as well as a result of the random knife attack directed to her as she walked back to work on a public street where she was entitled to feel safe. The Offender Continues to Run Amok and Members of the Public Intervene
After the knife attack on Ms Bo, the Offender continued west on King Street towards Clarence Street. CCTV footage captured the Offender raising his arm with his index finger extended in the manner of the salute adopted for propaganda purposes by jihadists supportive of the Islamic State in Iraq and Syria ("ISIS").
At this point, the Offender was being pursued by a number of civilians who had intervened bravely in an effort to control the Offender and protect other persons in the street. This is depicted graphically in the CCTV and media footage which is in evidence. Far from running away from the Offender, these members of the public placed themselves at risk in the interests of the safety of fellow citizens. At this time, of course, those in the street did not know that the Offender had actually murdered a person shortly before in a nearby building. What the Court knows is that there was a grave risk posed by the Offender and the persons who engaged in his pursuit were acting to protect the public without fear as to the consequences for themselves. Those in pursuit at this time included Michael Appleby, John Bamford and Witold Skonieczny.
As he proceeded further down King Street, the Offender was heard, yet again, to yell "Allahu Akbar".
Near PJ O'Brien's Hotel, on the corner of Clarence and King Streets, the Offender jumped onto the roof of a black Mercedes motor vehicle. At this point, the Offender's balaclava had been taken off. Whilst standing on top of the vehicle, the Offender continued yelling "Allahu Akbar" whilst raising his arm with his index finger extended in the manner of an ISIS salute. The vehicle moved forward and the Offender fell to the ground. He got back up and moved towards the intersection between King and Clarence Streets. Further Members of the Public Give Chase
At the same time, a New South Wales Fire and Rescue vehicle pulled up on York Street and two firefighters armed themselves with tools and gave chase. Another civilian, Trevor Rooth, also armed himself with a crowbar from the fire truck and gave chase.
Other members of the public, Jamie Ingram and Jason Shore, recognised the danger and joined the pursuit of the Offender whilst warning bystanders to get out of his way.
The pursuers continuously shouted at the Offender to drop the knife, but he did not do so.
The Offender stopped at the corner of York and Clarence Streets. He was heard to yell "Allahu Akbar" at least once again and also yelled to his pursuers "Shoot me" and "Kill me" and "Fucking shoot me, shoot me in the head" or "Kill me! Fucking kill me" or "I'm going to kill you or you kill me". These statements are supportive of a conclusion that, by this time, the Offender was inviting his pursuers to kill him.
The pursuers warned other bystanders that the Offender had a knife. At the intersection, the Offender was heard to say "I have a bomb" on him or in his bag (or something similar).
The Offender slashed out at bystanders with the knife at least twice whilst he was running, but on each occasion the bystanders avoided being stabbed.
The Offender then headed north down Clarence Street and ran towards Barrack Street. At this point, he turned around to face his pursuers and was slowed down. He kicked down a hire bike before turning right onto Barrack Street and running towards York Street. Once again, these events are depicted on the CCTV footage. As would be expected at lunchtime on a Tuesday, there were many people in the streets and the fear instilled by the actions of the Offender are clear from the reactions of persons on the street who saw what was happening.
The traffic was backed up on York Street. The Offender banged on at least two separate car windows with his knife and also slammed down the bonnet of another vehicle. He crossed to the pavement on the other side of York Street. The Offender then continued north on York Street before turning into Wynyard Street. He continued for about 20 to 30 metres before stopping.
At this point, the Offender took out a brown paper bag from his bum bag and took out a white bottle. He opened the bottle and appeared to consume a number of white pills before continuing to run down Wynyard Street. The Offender is Captured and Subdued
At about 2.01 pm, the Offender was at a point where Wynyard Street merges into Wynyard Lane.
By this time, Jamie Ingram had armed himself with a chair and he used the chair to shove the Offender to the ground. This caused the Offender to drop the knife. Whilst the Offender was on the ground, Jason Shore moved in and put a milk crate on his throat pinning him to the ground. One of the firefighters struck the Offender twice on his knee area with a halligan tool. The Offender was pinned to the ground by the chair on his chest.
The Offender was heard to be saying "Kill me, kill me" and "Shoot me, shoot me". At this point, the Offender was captured on mobile phone footage being asked by a bystander "What drugs are you on?" with the Offender responding "I don't remember, 1 week, cocktails, I don't know bro".
Despite the Offender's repeated pleas to be killed, he had, in fact, been captured by a courageous group of citizens who had come together for the single purpose of restraining the Offender so as to bring his violent, terrifying and chaotic rampage to an end. Police Arrive on the Scene
Soon after, police arrived at the scene and arrested the Offender. Whilst lying down and being arrested, the Offender appeared calm and said to one officer "I thought you'd shoot me".
The Offender was placed into the back of a police truck where he could be heard, yet again, yelling "Allahu Akbar". Whilst the Offender was in the truck, he was filmed on a GoPro camera yelling "Allahu Akbar" several times before saying "God is the greatest, Allah is the only god, he will protect me". The Offender again raised his arm with an extended index finger in the manner of the ISIS salute.
Police seized the knife being carried by the Offender together with the empty bottle of pills. The knife was about 35 centimetres long with a 20 centimetre blade and appeared to be one of the knives taken by the Offender from Ms Dunn's unit. Police searched the Offender and confiscated his phone before taking him to Day Street Police Station. The Body of Ms Dunn is Discovered
As a result of Ms Dunn not answering her phone, her colleague attended the Clarence Street apartment and discovered her body. Police were called to the scene of the murder. Police Search and Question the Offender
When searched by police following his arrest, the Offender was found to be carrying, amongst other things, 52 tablets of Quetiapine (an antipsychotic medication), two Viagra tablets and 1.6 grams of cannabis (the further Form 1 offence).
In response to questions asked by police, the Offender said "Its good that you guys are finally doing your jobs for once, I was expecting a quicker response with the firearms or counter terrorism offices [sic] to put a bullet in my brain. … That fireman chased me with an axe bruv [sic] and I was like fuck … I was going to die" and "You gotta work on your response times. How about we just turn off the body cameras for a second all right, you get the fun, I pretend I'm going to hurt you and you put a bullet through my head". The Offender is Taken to Royal Prince Alfred Hospital
At 2.55 pm, the Offender was seen at the Day Street Police Station by paramedics. He advised the paramedics that he had taken more than 30 capsules of Valium and "weed".
It was determined to take the Offender to Royal Prince Alfred Hospital to treat his leg wound. On the way to the hospital, the Offender said to a police officer "I was hoping for the long guns to get me but the good Samaritans spoilt it".
At 3.30 pm, the Offender was conveyed to Royal Prince Alfred Hospital in Camperdown where he was placed under police guard whilst his injuries were treated.
In the course of conversation with police officers, the Offender said that he visited prostitutes and brothels from time to time and used Viagra for that purpose. In other conversations, the Offender described himself as being a "semi practising Muslim".
On 15 August 2019, the Offender remained in hospital under guard and continued to receive medical treatment. Police Interview of Offender
On 16 August 2019, the Offender was transferred to Surry Hills Police Station. An interview was commenced at 4.50 pm that day, but following legal advice, the Offender declined to be interviewed, but consented to the provision of a buccal swab. Search of Offender's Storage Device
When searched by police following his arrest on 13 August 2019, the Offender was found to be carrying a red USB "Verbatim" storage device.
Located on that device was video from the Christchurch Mosque shooting in March 2019. The USB stick was handed to the Terrorism Investigation Squad. After further investigation of the Offender, no link was found between the Offender and any terror-related group or terror-related ideology.
A toxicology test was undertaken concerning samples taken from the Offender at the Royal Prince Alfred Hospital and a variety of prescription drugs were detected in his blood. The drug quantities detected within his blood were within the therapeutic range with the earliest sample being taken from him at 3.51 pm on 13 August 2019. The Offender's Association with Lewis McCalla
Reference was made earlier in these remarks to the Offender's association with Lewis McCalla.
The Offender met Mr McCalla over online gaming and met twice with him in person. The principal means of communication between the Offender and Mr McCalla was via Facebook Messenger, the encrypted message service "Wickr" or an online gaming platform.
A very large number of messages were exchanged between the Offender and Mr McCalla via Facebook Messenger.
During the course of a conversation between the two men on 26 July 2019 concerning recent contact between the Offender and police, the Offender said at one point "I wanna murder everyone".
During a further exchange between the two men on 27 July 2019, the Offender sent a picture to Mr McCalla of a knife and a gun, during the course of which the Offender said at one point "Nah suicide mission" and then a little later "Yeah I pull out and die", "I want to die but not suicide want to remove some scum first" and "Imagine fucking a bitch and choking her to death and cumming buckets inside her after she died".
During an exchange between the two men on 4 August 2019, Mr McCalla at one point referred to "Two mass shootings" (apparently in the United States) with the Offender saying "That's fucked" and Mr McCalla responding "America is fucked" and the Offender saying "One in Australia too", "Whoops" and "Spoilers".
During a further communication between the two men on 9 August 2019, the Offender said "Just realised now that we're [sic] I to do something terrible it would be attributed to religion yet if I was Christian I would be fine".
On 10 August 2019, during a discussion between the two men concerning the motivation of the perpetrators of three mass shootings in the United States, the Offender said "Just felt like killing some people I guess" and "No one can ever recreate Christchurch doe [sic]".
On 11 August 2019, during a further exchange between the two men in which reference was made to Mr McCalla's girlfriend, Mr McCalla said "Shoot her", "Pit [sic] he fucking down like a cow", "Slash her throat" and the Offender responded "Nah you gotta say allahu akbar and make her halal meat'.
As noted earlier, on 13 August 2019, the Offender sent to Mr McCalla the video which he had made immediately after the murder of Ms Dunn. Mr McCalla watched the video and then deleted it from his phone. He sent a message to a friend, Mr Balas, who reported the matter to police with Mr McCalla reporting the incident to police shortly thereafter. The Offender's Communications with Mr Balas
The Offender met Mr Balas during 2015-2016 through their participation in the online video game "Counter-Strike" (a series of multiplayer first person shooter video games in which teams of terrorists battle to perpetrate an act of terror whilst counter terrorists try to prevent it).
Along with Mr McCalla, the Offender and Mr Balas exchanged messages via a social networking service.
During communications with Mr Balas on 26 July 2019, the Offender said "Cunt today I was choking the hooker and she wasn't liking it she kept trying to stop me" with the Offender sending a video having sex with a female.
On 12 August 2019, in the course of another exchange between the two men, Mr Balas said "Bro you need to chill. You're gonna get locked up or killed very soon" with the Offender responding "Yah", "I wanna die", "Tried to kill myself twice in 2 days", "Didn't work" and "Tolerance".
As noted earlier, after receiving the message from Mr McCalla on 13 August 2019 containing the Offender's recording immediately after the murder, Mr Balas called "000" and told police what Mr McCalla had described to him.
Submissions were made by counsel concerning the significance of the Offender's communications with Mr McCalla and Mr Balas in July and August 2019. The Offender said in evidence that his comments did not reveal a serious intention at those times to harm people or to carry out a terrorist attack. Although he had recorded the Christchurch massacre footage on 15 May 2019 and viewed it at least 20 times as he "was just really obsessed with it" (T40), he was not committed to any terrorist cause and he had no intention to carry out any terrorist attack. He said that it was not until he had commenced his attack on Ms Dunn that he decided to carry through and act in a way to attract police attention so that he would be killed by police. He said he had reached "the point of no return" (T55). I will return to this issue later in these remarks.

Background and Mental Health of Offender

Brief mention was made earlier to the Offender's background and certain mental health issues. To place these matters in context, it is appropriate to refer to evidence of the Offender's history of mental health problems and attempts (largely unsuccessful) at treatment for those problems.
The evidence reveals that, since the Offender was about 14 years old in 2012-2013, he was diagnosed and received treatment on occasions for anxiety, depression and obsessive compulsive disorder. Members of the family provided ongoing support to the Offender in attempts to get him to undertake treatment, both psychological and psychiatric, but with the Offender demonstrating a pattern of resistance in that respect.
In 2017, the Offender's treating doctor prescribed Luvox tablets and the Offender undertook psychological counselling, although he expressed dislike for the psychologist. During 2017, it was noted that the Offender expressed suicidal thinking on occasions and he continued to take Luvox.
In June 2018, when aged 19 years, the Offender attended the Emergency Department of a hospital for a possible overdose. He was cleared medically, but psychiatric review was recommended. The Offender reported a history of depression and anxiety, but was not then taking antidepressant medication. The Offender was scheduled as a mentally disordered person under the Mental Health Act 2007, but absconded from the Emergency Department on 9 August 2018. The schedule was allowed to lapse and the Offender did not engage with follow-up community treatment.
On occasions in 2018, the Offender received medical treatment from his general practitioner. He was diagnosed with severe depression and the medication Temaze was prescribed to help his sleep.
In July 2018, the Offender met with a psychologist at Blacktown Hospital following a referral from his general practitioner as he presented with anxiety, depression and suicidal ideation. The Offender informed the psychologist that he did not want to call help lines and stated that he was suicidal because he thought he would be taken away.
In August and September 2018, the Offender was treated by general practitioners at the Blacktown General Practice for anxiety and depression. A referral was made for the Offender to see a psychologist and a psychiatrist. Medications prescribed for the Offender included Amitriptyline Hydro Chloride tablets (25 mg) and Mirtazapine (15 mg).
In September-October 2018, the Offender travelled to Cyprus. Upon his return to Australia, he attended his general practitioner and stated that he did not want to see a psychologist or a psychiatrist. The general practitioner ceased the use of Mirtazapine and initiated the Offender on Duloxetine EC capsule (30 mg daily).
On 22 November 2018, the Offender was admitted to the Emergency Department of Blacktown Hospital after consuming alcohol and six tablets of Temazepam. He was brought to hospital by his mother. The Offender was not detained under the Mental Health Act 2007 as his mother stated that she wished to take him home and look after him.
The next day, on 23 November 2018, the Offender's mother brought him back to the Emergency Department of Blacktown Hospital and he was assessed by a registrar. The Offender was verbally aggressive and abusive and was suspicious and expressed suicidal thoughts. Given his presentation, expression of suicidal thoughts, poor insight and paranoia, the Offender was scheduled under the Mental Health Act 2007 to enable him to be assessed by the mental health team. It was later decided that the Offender did not need to remain under a schedule and he was discharged.
Between 23 and 26 November 2018, there was follow-up treatment of the Offender by the Community Mental Health Team for a diagnosis of mixed anxiety and depressive disorder.
In late December 2018, the Offender was assessed by a medical practitioner at Blacktown for feelings of anxiety and an inability to sleep. The Offender was referred to a psychologist and was advised to commence taking Avanza (30 mg) to assist with sleep. The treatment notes stated that the Offender had been on the antidepressant Luvox, but that it "did not help". The Offender did not attend a scheduled follow-up appointment two weeks later.
On occasions between January and March 2019, the Offender was seen by his general practitioner. On an occasion in February 2019, the Offender continued to refuse to see a psychologist or psychiatrist.
On 4 March 2019, the Offender attended another general practitioner who discussed his major depression and anxiety with him. The Offender appeared unmotivated to do anything. The Offender was prescribed the antidepressant Cymbalta. The general practitioner "tried to provide him with motivation to see a psychologist and persevere until [he] finds one who fits his personality".
On 29 March 2019, the psychologist to whom the general practitioner had sought to refer the Offender called him and indicated that the Offender had not attended his appointment.
On 3 April 2019, the Offender attended the same general practitioner who stated that she wished to see him every two weeks. Further discussion took place concerning his medication.
On 5 April 2019, the Offender was taken to the Emergency Department of Westmead Hospital after an apparent suicide attempt in the form of an overdose of multiple medications, alcohol and laundry detergent. He was detained involuntarily under the Mental Health Act 2007. The Offender was sedated with intramuscular injection of an antipsychotic medication and was assessed by a psychiatry registrar. A plan for admission to Cumberland Hospital was arranged to allow further assessment, diagnostic clarification and treatment.
The Offender was detained at Cumberland Hospital between 6 and 15 April 2019. He had tried to abscond during his transfer from Westmead Hospital and emergency sedation was used upon him once again. He was managed in the High Dependency Unit for two days before transfer to a lower intensity unit at Cumberland Hospital. The Offender was not regarded as manic, depressed or psychotic at the time of subsequent psychiatric assessment. A diagnosis was made of substance-induced behavioural disturbance and it was noted that he was in a delirium when he presented to the Emergency Department. A long history of obsessive compulsive disorder, learning difficulties and poor impulse control was noted. The Offender was offered antipsychotic medication to assist with anxiety, but declined. The daily antidepressant Luvox dosage was increased to 50 mg to be administered orally twice daily.
On discharge on 15 April 2019, the Offender was described as polite, pleasant and of normal mood. He expressed motivation to avoid illicit drugs and to take his medication.
In late April and May 2019, the Offender again attended his general practitioner. It was noted on 20 May 2019 that he had not seen a counsellor and had low motivation to have therapy with the general practitioner emphasising to him the importance of psychological assistance.
On 28 May 2019, the Offender attended his general practitioner and was prescribed Viagra tablets for erectile dysfunction (a side effect of some antidepressant medications) and Panadeine Forte tablets for headache.
In June and July 2019, the Offender attended his general practitioner on occasions and received further medication.
On 7 August 2019, as noted earlier (at [27]), the Offender was admitted to the Emergency Department of Blacktown Hospital, but absconded when he was transferred to the Mental Health Ward.
On 9 August 2019, the Offender attended his general practitioner who noted that he was very low in mood with a sense of hopelessness in words and body language. He informed his general practitioner that he had two hospital presentations that week with suicide attempts, but had run away from the hospital and when he went home, his mother and sister had abused him and chased him away. He informed the general practitioner that he had converted to Islam earlier that week and was staying with a person who took him in after he converted. The general practitioner made a call to attempt to assist with accommodation, but the Offender became suspicious that she had called instead for an ambulance or police to come and get him. Before leaving the surgery, he said "I might just leave here and kill myself". The general practitioner called the hospital for acute mental health care and the police.
It may be seen then that the Offender has had a chequered history of treatment for mental health issues including reluctance on his part to co-operate with treatment plans and advice.
The evidence revealed that the Offender has the advantage of a supportive family with his mother and sisters having attempted to assist him over the years with accommodation and support in obtaining medical treatment. The Offender's response has been unco-operative accompanied by a pattern of alcohol and drug abuse.
It was against this background that the terrible events of 13 August 2019 took place.

The Evidence of Dr Furst

Dr Furst stated that observations of the Offender at the Cumberland Hospital in April 2019, at the Royal Prince Alfred Hospital after his arrest on 13 August 2019 and at the Mental Health Screening Unit of the Metropolitan Remand and Reception Centre ("MRRC") between August and November 2019 indicated that the Offender does not meet the criteria for the diagnosis of a major mental illness such as schizophrenia or bipolar disorder notwithstanding his underlying anxiety disorder and mental instability (page 14, report of 15 March 2021).
Dr Furst considered that the Offender met the DSM-5 criteria for diagnosis of the following mental disorders (page 14): 1. obsessive-compulsive disorder; 2. substance use disorder (benzodiazepines and other prescription pills); 3. depressive disorder, not otherwise specified; 4. low level of intellectual function, probably low average to borderline intellectually disabled range.
Dr Furst considered that the Offender should be regarded, as at 13 August 2019, as a "mentally disordered person" (as defined in the Mental Health Act 2007) and as intoxicated as well that day.

The Offender's Criminal and Custodial History

The Offender has a very limited criminal history.
On 18 October 2017, he appeared at the Parramatta Local Court upon a charge of using offensive language which was dismissed under s.10 Crimes (Sentencing Procedure) Act 1999.
On 24 June 2019, the Offender appeared before the Blacktown Local Court upon a charge of possess or use a prohibited weapon without a permit for which he was granted a conditional release order for a period of nine months commencing on 24 June 2019 and concluding on 23 March 2020.
As a result of the order made on 24 June 2019, the present offences were committed whilst the Offender was subject to conditional liberty.
The Offender has been in custody since his arrest having been detained initially at the MRRC between 19 August 2019 and 14 February 2020 before his transfer to the Parklea Correctional Centre where he has been held since.
The Offender has accumulated a significant history of custodial offences involving possession or use of alcohol (offences in January and April 2020), stealing (in January 2021), assault (in March 2021) and refusing or failing to provide a drug sample (in March 2021).
The Offender's custodial history is not helpful to him and points to a pattern of violence and disobedience which is of concern with respect to an assessment of his risk of reoffending and protection of the community including persons in the prison community.

Gravity of Offences Including the Issues of Planning, Motivation and Moral Culpability

Submissions were made concerning the gravity of the offences and, in particular, the offence of murder. The Crown submitted that it was appropriate to sentence the Offender to imprisonment for life for murder in the circumstances of this case. It was submitted for the Offender that, having regard in particular to his mental health issues and his age, a life sentence should not be imposed.
The Crown submitted that a factor which bore upon the objective gravity of the murder offence was said to be the terrorist motivation of the Offender as manifested in his words and conduct, both in the apartment where he murdered Ms Dunn and later in the street, as well as in his earlier communications with Mr McCalla.
The Offender is not to be sentenced for terrorism offences under the Criminal Code (Cth). However, it was common ground that the Court could have regard to any terrorism motive (as explained in the Criminal Code (Cth)) in sentencing the Offender for murder. The approach would not infringe the principles in The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31. However, this approach could not be taken for the offence of wounding Ms Bo: R v Hraichie (No. 3) [2019] NSWSC 973 at [242].
The Crown submitted that the Offender had acted in a manner which constituted a form of terrorist offence in murdering Ms Dunn. Senior counsel for the Offender submitted that the acts and thought processes of the Offender did not fall within the parameters of a terrorism offence for the purpose of the Criminal Code (Cth) so that this suggested aggravating factor did not apply in this case.
The Court has experience in sentencing persons for terrorist offences with a common feature of these offences being a fixated adherence to extremist Salafist beliefs and to violent jihad, which gives rise to offences of violence committed in support of a terrorist cause: Alou v R (2019) 101 NSWLR 319; [2019] NSWCCA 231; R v Hraichie (No. 3); R v Shoma [2019] VSC 367.
The evidence indicates that the Offender had no commitment to any faith and was not a religious zealot. He had become obsessed with the Christchurch massacre, but not because he was adherent to radical and extremist beliefs himself.
On 13 August 2019, he took on the trappings, gestures and language of a terrorist in the apartment after murdering Ms Dunn and in the streets of Sydney. All who saw him would be forgiven for concluding that he was a fixated person with a commitment to a terrorist cause involving violent jihad. However, the evidence does not support such a conclusion.
I do not accept the Crown submission that the conduct of the Offender fell within the parameters of a terrorism offence under the Criminal Code (Cth).
However, the conduct of the Offender remains especially grave even in the absence of this finding. I am satisfied that the Offender set off from his Blacktown accommodation and made a lengthy rail journey to the Sydney CBD planning to kill a person and to use violence and terrify persons. I accept that he was affected by a mental disorder in so acting, but his disorder did not impede his capacity to plan and implement a relatively complex series of steps which he took on 13 August 2019.
He took a balaclava with him and armed himself with a knife. When in the city, he contacted and sought out an appointment with an escort in circumstances where he had neither money nor a credit card to pay for any services. The appropriate conclusion is that it was his plan to confront a young woman in a private and secluded setting for the purpose of murdering her. That is exactly what he did. It was a savage and brutal attack carried out with no conduct at all of Ms Dunn triggering or provoking any violent response from the Offender. Ms Dunn was vulnerable in that she was isolated and in the presence of the Offender. He had no reason to harm her at all let alone to kill her.
His immediate and grotesque act after murdering her was to film the scene and to act and speak in a manner which reflected a measure of satisfaction at what he had done. Once again, although I accept that his mental disorder played a part in what occurred, he had been able to move about the suburbs and then the Sydney CBD including telephone and electronic communications with others, including Mr McCalla.
There is contemporaneous material to support the view that the Offender was himself content to die that day at the hands of the police. Of course, if the Offender was determined to take his own life, he could have done so without killing another person and attacking other members of the public in the streets of Sydney. The fact that the Offender apparently wished to die that day, and that this sheds light upon some of his activities, does not operate as a powerful factor in his favour.
The communications between the Offender and Mr McCalla and Mr Balas in the weeks prior to 13 August 2019 provide a chilling insight into the Offender's thought processes. It appears that he was influenced by the Christchurch terrorist murders and mass killings and had a morbid interest in shootings associated with his descent into the fantasy world of violent interactive games in which he indulged himself for some time.
The Offender impresses as a self-centred individual with no real concern for others. His conduct on 13 August 2019 involved concern only for himself devoid of natural human sympathy or regret for what he had done. In his eyes, the events of 13 August 2019 were all about himself.
The Offender's appearance as a witness at the sentencing hearing demonstrated a lack of empathy and insight into the suffering of others. His matter of fact and emotionless account of the killing of Ms Dunn was disturbing for its absence of empathy and human content (T53-55).
His offences included an assault upon his own sister in the family home when the Offender's mother and sister were merely trying to do what they could to help him.
I am satisfied that the murder of Ms Dunn was planned in the sense that the Offender came to the city intending to arrange to meet, in a private location, a young woman so that he could kill her. I do not accept that his motive at that time was to seek to die himself. I accept that this became his plan or motive after the murder with his video recording at the murder scene and his subsequent actions and words bearing this out.
The offence of murder in this case was a very grave crime.
The attack upon Ms Bo constituted an indiscriminate knife attack upon a member of the public on a public street. This was a grave offence of wounding with intent to cause grievous bodily harm although fortunately, the physical injury sustained by Ms Bo could have been worse.
The attack upon Ms Bo is to be considered in the context of the Offender running amok in the streets of Sydney terrifying Ms Bo and others. Although there are no other charges dealing with this general course of conduct on the part of the Offender, it forms part of the surrounding circumstances which bear upon the objective gravity of the offence of wounding with intent to cause grievous bodily harm.
The motive for committing a crime or crimes is relevant to the assessment of the moral culpability of an offender as is the existence of a mental condition which bears upon the commission of the offence or offences: Tepania v R (2018) 275 A Crim R 233; [2018] NSWCCA 247 at [112]-[119].
I will return to this aspect when considering the question whether a life sentence should be imposed for murder.
As noted earlier, it is fortunate indeed that the Offender was pursued and restrained by brave members of the public who took it upon themselves to act in the public interest without concern as to the risk to themselves. As it happened, none of the persons who pursued and subdued the Offender in the street would have been aware that he had actually murdered a young woman earlier that afternoon. Had they known that, the position would have been even more terrifying. Even so, it would have been apparent to all persons in the street that the Offender was acting in a violent manner and was indicating a willingness to use violence as he did against Ms Bo and on another occasion when he narrowly missed Ms Cheng.

Should a Life Sentence be Imposed for the Murder Offence?

It is for the Crown to prove beyond reasonable doubt that this is a case which attracts imposition of a sentence of imprisonment for life for murder in accordance with the statutory criteria in s.61(1) Crimes (Sentencing Procedure) Act 1999. It is to be kept in mind that the passing of a sentence of imprisonment for life means that there is no prospect of release on parole.
It has been said that the primary focus of s.61(1) is directed towards how extreme an offender's culpability is, with the need for the Court to find features of great or very great heinousness, along with the absence of any facts mitigating the seriousness of the crime: R v Merritt (2004) 59 NSWLR 557; [2004] NSWCCA 19 at [52].
The principles to be applied when s.61(1) is under consideration were set out in Knight v R (2006) 164 A Crim R 126; [2006] NSWCCA 292 at [23]. It is the combined effect of the four indicia in s.61(1) which is critical. The absence of any one or more of the indicia of retribution, punishment, community protection and deterrence may operate to make it more difficult for a sentencing Judge to reach the conclusion that a life sentence is required, although it will not be determinative.
I keep in mind that the High Court of Australia has said that a sentencing court should avoid the use of terms such as "worse category" or "worse case" unless the offence in question is so grave as to warrant the imposition of the maximum penalty for the offence: The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 at [18]-[20].
But for the Offender's mental health issues, I would have been satisfied that the requirements of s.61(1) had been met in this case so that a sentence of life imprisonment was appropriate. However, I am satisfied that the Offender's mental health issues contributed to the commission of the murder offence and bear upon the imposition of sentence in a manner which renders it inappropriate to impose a life sentence upon the Offender. In this respect, I keep in mind, as well, his youth.
In determining the appropriate sentence to pass for the murder offence in this case, it is necessary to keep in mind that the Offender's mental health issues have now been taken into account in reaching a conclusion that a life sentence is not appropriate: Potts v R (2012) 227 A Crim R 217; [2012] NSWCCA 229 at [135]-[137]. The Court should take care not to inappropriately double count those factors, again in the Offender's favour on sentence. The Offender's mental health issues should be considered on sentence, but unwarranted double counting on sentence should not occur: Potts v R at [137].

Victim Impact Statements

As noted earlier, victim impact statements were made to the Court by Joanne Dunn, the mother of Michaela Dunn. Emily, the sister of Michaela, supported her mother in this difficult process.
Ms Dunn was much loved and was a loving and devoted member of the Dunn family. She had a great deal to offer in life and would undoubtedly have lived a long, happy and productive life, but for the tragic events of 13 August 2019.
The moving statement demonstrated the enormous loss which the Dunn family have suffered as a result of this terrible crime.
It is important to emphasise that nothing done by Ms Dunn contributed to her death including the work which she was undertaking at the time. She was entitled to the protection of the law and even more so in the vulnerable circumstances in which she found herself. She did nothing at all to provoke the Offender or trigger the events which saw him end her life in a savage and brutal attack.
On behalf of the Court and the community, I express condolences to the Dunn family for their great loss.
A victim impact statement was made by Ms Bo. It is clear that she has suffered very considerably psychologically as a result of this random attack by a stranger carried out in a public street. Her confidence is undermined significantly and she has entirely understandable stress and anxiety if she is in the city of Sydney. Fortunately, the physical injuries which she suffered have effectively resolved, but the psychological injury resulting from this grave offence will be with her probably permanently.

The Offender's Pleas of Guilty

As the Court does not propose to impose a life sentence upon the Offender for murder, it is appropriate to consider the question of any discount arising from his pleas of guilty.
The Offender pleaded guilty in the Local Court and was committed for sentence on 27 October 2020.
If a life sentence was not to be imposed for murder, the Crown submitted that the Court should not apply a discount on a sentence for the Offender's pleas of guilty because of the level of culpability involved in the offences: s.25F(2) Crimes (Sentencing Procedure) Act 1999.
The Crown gave notice to the Offender's legal representatives in this respect s.25F(3) Crimes (Sentencing Procedure) Act 1999.
Under the statutory scheme for early guilty pleas, the Offender would qualify, prima facie, for a 25% discount on sentence for each offence for which he is to be sentenced: s.25D(2) Crimes (Sentencing Procedure) Act 1999. That, of course, is subject to the Court's discretion not to apply or to reduce that discount if the Court considers that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can be met only by imposition of a penalty with no allowance or a reduced allowance for the discount: s.25F(2).
The statutory formula in s.25F(2) is similar to that in s.61(1). However, where the Court has declined to impose a life sentence, it is clear that s.25F(2) has different work to do. The provision constitutes a further reflection of the requirement that a lesser penalty imposed as a result of a guilty plea must not be unreasonably disproportionate to the nature and circumstances of the offence: s.22(1A) Crimes (Sentencing Procedure) Act 1999; Milat v R; Klein v R [2014] NSWCCA 29 at [69]-[92].
In the circumstances of this case, I am satisfied that a discount not exceeding 10% should be extended to the Offender for his guilty pleas for each offence for which he is to be sentenced.

The Offender's Risk of Reoffending, Protection of the Community, General Deterrence and Specific Deterrence

The evidence before the Court demonstrates that the Offender constitutes a significant risk of committing further offences of serious violence. The protection of the community looms large in imposition of sentence in this case. Although his mental health issues operate to assist him on sentence in certain respects, the protection of the community is a central consideration in the imposition of sentence for the Offender: R v Stonestreet [2020] NSWCCA 212 at [33]ff; R v Dong [2021] NSWCCA 82 at [41]ff.
The evidence of Dr Furst provides limited assistance to the Offender with respect to these issues. The Offender's limited prior criminal history provides him with some assistance, but his pattern of conduct in custody since his arrest in August 2019 points to a more entrenched attitude on his part which does not auger well with respect to his prospects of rehabilitation, his risk of reoffending and the most important consideration of protection of the community.
In circumstances where the Offender committed very grave crimes of violence, including murder, against members of the public on 13 August 2019, there is every reason for serious concern that he is capable of acting in that way again in the future and there is little to indicate, at this time, that the community, including the prison community, may be protected from him, without the imposition of special measures.
This aspect operates strongly against the Offender with respect to sentence in this case.
I have considered the role of general deterrence and specific deterrence on sentence in this case. In accordance with the principles in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177] less weight may be given to general deterrence when sentencing a person who is subject to a mental disorder. The Offender was not suffering from a major psychotic illness such as schizophrenia or bipolar disorder (see [151] above). He was suffering from a lesser form of mental disorder and his functioning at the time of the offences was affected, but not significantly distorted, by his mental condition. There is still a role for general deterrence to play on sentence in his case.
I am satisfied that specific deterrence remains a most important factor on sentence in this case together with, as I have noted, the protection of the community: s.3A(c) Crimes (Sentencing Procedure) Act 1999; Veen v The Queen (No. 2) (1988) 164 CLR 465 at 476; [1988] HCA 14 and R v Engert (1995) 84 A Crim R 67 at 68.
Put shortly, the Offender is a dangerous man and continues to be a dangerous man. He demonstrated no real empathy or emotional reaction during his evidence at the sentencing hearing. He appears concerned principally with his own wellbeing and welfare with little manifested concern for others whether the family of his victims or his own family. In making this finding, I have taken into account what the Offender said to his sister, Direnc (T24-25). The emotional flatness of the Offender's own expression of his feelings about killing Ms Dunn did not support the existence of any real insight (T57-58).
The position appears bleak in the extreme with respect to the Offender's prospects of returning to the community and living a lawful life in the future.

Determining an Appropriate Sentence

It is necessary to have regard to all the purposes of sentencing and factors bearing on sentence including the objective gravity of the offences, the Offender's subjective circumstances and other significant factors including specific deterrence, a measure of general deterrence and protection of the community.
It is necessary that the sentences to be passed be reasonably proportionate to the gravity of the offences.
It is appropriate to proceed by way of aggregate sentencing in this case. Having regard to all factors relevant to sentence and taking into account (with some rounding) a 10% discount for the Offender's pleas of guilty, I nominate the following indicative sentences: 1. for the murder of Michaela Dunn - imprisonment for a period of 40 years with a non-parole period of 30 years; 2. taking into account the Form 1 offences, for the offence of wounding with intent to cause grievous bodily harm to Lin Bo - imprisonment for eight years with a non-parole period of six years.
I decline to find special circumstances, noting that the period of parole is more than sufficient to accommodate any post-release requirements in the event that the Offender was released to parole by the State Parole Authority at the conclusion of the non-parole period.
The sentence should date from 13 August 2019, the date of the Offender's arrest.
As the Offender is to be convicted of serious violence offences, it is a requirement that he be warned of the existence of the Crimes (High Risk Offenders) Act 2006. I ask the Offender's solicitor to undertake this task on the Court's behalf.
I have had regard to principles of totality, accumulation and concurrency when considering the process of notional accumulation to be applied when imposing an aggregate sentence of imprisonment.
The aggregate sentence of imprisonment will comprise a head sentence of imprisonment for 44 years with a non-parole period of 33 years.
Would the Offender please stand.
You are convicted of the offence of the murder of Michaela Dunn and the offence of wounding Lin Bo with intent to cause grievous bodily harm.
I sentence you to an aggregate term of imprisonment for a term of 44 years comprising a non-parole period of 33 years commencing on 13 August 2019 and expiring on 12 August 2052 with a balance of term of 11 years commencing on 13 August 2052 and expiring on 12 August 2063.
The earliest date upon which you will be eligible for release on parole is 12 August 2052, although it will be matter for the State Parole Authority to determine whether release on parole is appropriate in your case.

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: 15 May 2021

(2019) 101 NSWLR 319

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