Crimes (Sentencing Procedure) Act 1999 (NSW) s 61

Director of Public Prosecutions v England [1999] VSCA 95; 2 VR 258

Knight v The Queen, [2006] NSWCCA 292; 164 A Crim R 126

R v Harris [2000] NSWCCA 469; 50 NSWLR 409

R v Kilic [2016] HCA 48

R v Yeo [2003] NSWSC 315

Vojneski v The Queen [2016] ACTCA 57

1. Josaia Vosikata on 30 March 2016, you entered a plea of guilty to count one on an indictment dated 29 February 2016, alleging that on or about 19 April 2015, you murdered Daniela D'Addario. This offence carries a maximum penalty of life imprisonment.

2. In sentencing you for this offence, you asked that I take in to account two further offences contained on a list of additional offences dated 30 March 2016. The first such offence is an offence of committing an act of indecency on Daniela D'Addario on 10 April 2015 without her consent and being reckless as to whether she was consenting. That offence carries a maximum penalty of seven years imprisonment. The second such offence is an offence of indecently interfering with a dead human body on 19 April 2015. This offence carries a maximum penalty of two years imprisonment.

3. You were originally charged with the offences of murder and indecently interfering with a dead human body on 24 April 2015 after being arrested in New South Wales (NSW) and returned to the Australian Capital Territory (ACT). You were also at that time charged with one offence of engaging in sexual intercourse without consent on 19 April 2015 and one offence of attempting to engage in sexual intercourse without consent on 10 April 2015. You entered pleas of not guilty to all charges and on 2 February 2016, you were committed for trial to this Court on all four charges.

4. In this Court the Crown filed an indictment dated 29 February 2016 alleging:

(a) one count of murder;

(b) one count of entering or remaining in a building as a trespasser with intent to commit an offence that involved causing harm, or threatening to cause harm to someone in the building;

(c) one count of engaging in sexual intercourse with Daniela D'Addario without her consent on 19 April 2015; and

(d) in the alternative to that third count, one count of indecently interfering with a dead human body on that day.

5. At a directions hearing before the Registrar on 25 February 2016, your lawyers indicated your intention to plead guilty to the charge of murder. It was not known at that time whether the Crown would proceed with the remaining charges on the indictment.

6. On 7 March 2016, you were arraigned before the Chief Justice and pleaded guilty to the charge of murder but not guilty to the remaining charges. There was an indication on that day that there may be some dispute about the facts underlying the charge of murder. You were subsequently re-arraigned before the Chief Justice on 30 March 2016 at which time you maintained your plea of guilty to the charge of murder and the Crown accepted that plea in full satisfaction of the indictment. It was noted that you requested that a list of additional offences be taken in to account when you were sentenced for the offence of murder.

7. The matter was then listed before me on 17 August 2016 for sentence. There was considerable agreement between yourself and the Crown regarding the facts of the offence of murder but there were nevertheless some significant factual matters which remained in dispute. The proceedings came back before me on 1 July 2016 in order to attempt to resolve those disputes.

8. A number of witness statements and a copy of a transcript of a recorded interview between you and members of the NSW police, which took place on the 23 and 24 April 2015, were tendered but no witnesses gave evidence. In particular, you did not give evidence. I eventually declined to give a ruling on the disputed facts at that time as it was still possible that you would elect to give or call evidence at the sentence hearing.

9. A Statement of Facts prepared by the Crown was tendered on 30 March 2016 but it was always understood that you disputed some of those facts. As I proceed through these sentencing remarks, I will indicate where factual matters are disputed and I will make findings with regard to those matters. Where a disputed factual matter will, if proven, result in the offence being considered to be more serious, I must be satisfied of the existence of that factual matter to the standard of beyond reasonable doubt.

10. At all material times you resided with your mother in an apartment in Bruce. The victim lived in her own apartment a short distance away from your mother's. You were able to easily observe the victim in her apartment from the apartment in which you were residing. In about early January 2015, the victim commenced a brief relationship with you. On 4 March 2015, the victim and you were at her apartment and she told you that your relationship was over. You became upset and threatened to kill yourself. You left her apartment but returned later that evening. The victim called police who attended. You told police that you did not intend to harm yourself and had just been emotional about the end of the relationship. Police left you in the care of family a short time later.

11. You could not accept that the relationship with the victim was over and you began to obsess about her. You formed the belief that she may be pregnant. It is not clear to me, on what basis you formed that belief, except there was some indication from later text conversations that the victim was suffering abdominal pain at that time.

12. On 6 April 2015, there was an exchange of text messages between you and the victim. They are fully set out in the Statement of Facts and it is unnecessary for me to recite the content of those messages at this time. It is beyond dispute however, that the victim made it clear to you that she no longer wanted to be in a relationship with you and no longer wanted to have any contact with you.

13. You accused the victim of having cheated on you and threatened to harm yourself. At 12.29 am, on 8 April 2015, you used the Google Chrome search engine to enter the search term "naked photos of Daniela D'Addario". You tried a number of similar searches. At 1.49 am, you searched "daniela D'Addario from Canberra". Later the same day you conducted a number of internet searches about pregnancy.

14. On 9 April 2015 at 12.34 am, you sent a text message to the victim saying that you had accepted her decision and that the two of you should go your separate ways but that you wanted to discuss something with her which had been bothering you for the last few weeks. You invited her to dinner saying that you wanted to get what you described as, "this uncertainty", off your chest before you moved on. The victim did not reply to this message. At 2.10 am on that day, you conducted an internet search for "Videos of girls being raped". At 6.52 am that day, you searched "hidden cameras for sale" and similar searches. At 12.53 pm that day, you conducted searches into intervention orders. At 4.36 pm that day, you messaged the victim, asking her to have an ultrasound to determine if she was pregnant. You said that it had been bothering you and that you were willing to pay for it.

15. An exchange of text messages then occurred, commencing at 4.48 pm. The victim said that she had already undertaken tests to confirm that she was not pregnant and that you could therefore move on. She further insisted that you not come to her house. You questioned her about what test she had taken and when. She responded that she had undertaken a lot of tests and she had problems with her stomach which caused pain and it was not your business. She again made it very plain to you that she did not want to communicate with you and that she wanted you to leave her alone. You persisted, telling her that you would not leave her alone until you had seen the test results.

16. At about 1.40 am on Friday 10 April 2015, you entered to the victim's residence through the front door using a key that she did not know that you possessed. You got in to bed with the victim, who was sleeping, and pulled her underwear down before attempting to molest her. This is the basis of the charge of act of indecency without consent which is contained on the list of additional offences.

17. The victim woke up and punched and kicked you out of her bed. You refused to leave the premises. She called police for assistance and told the police operator that her exboyfriend had forced entry into the premises and was refusing to leave. At about 2.00 am, police attended and spoke with the victim, although by this time you had left. The victim told police that you had not been violent towards her but that you were having difficulty in accepting that the relationship was over. She also told police that you believed that she was pregnant and that you had been insisting that she undergo an ultrasound to confirm or deny your suspicions. The victim told police that she did not want to obtain a Domestic Violence Order at that time, nor did she want to take the matter any further as she did not want to jeopardise your visa status.

18. At 6.11 am on 10 April 2015, you conducted an internet search on the topic "what chemical would knock someone out". Between 9.11 am and 10.03 am on 10 April 2015, there was an exchange of text messages between you and the victim. In those messages the victim made it very clear that she considered that you had broken in to her home using a spare key that you took without her knowledge. You again demanded a copy of the results of any pregnancy test, after which the victim described you as a rapist and told you that people go to gaol in Australia for what you had done. You apologised and said that you were drunk but you continued to demand proof that she was not pregnant. She responded, "Don't contact me again rapist."

19. At 9.48 am on 10 April 2015, the victim sent an SMS to a friend telling her that you had used a spare key to break in to her house and tried to rape her. At 2.30 pm on the same date, you conducted a further internet search concerning intervention orders. At about 4.15 pm that day, a locksmith attended the victim's residence and changed the locks on her front door. At 11.37 am on 12 April 2015, you messaged the victim apologising for what you had done, saying that you loved her very much but you had to accept her decision to break up. You asked whether you could remain friends. You also sent her an email to similar effect. The victim did not reply to these communications.

20. On Monday 13 April 2015, the victim made a complaint to a work colleague that you had broken into her apartment and tried to get in to bed with her. She said that she believed you must have cut a copy of her apartment key as you had returned your key to her after your relationship ended.

21. On 13 April 2015, you conducted a number of internet searches. At 9.51 am you conducted a search in to "Remote Cottages". At 1.34 pm you conducted a search on the topic "What is the meaning of first trimester pregnancy". At 10.35 pm you conducted a search on the topic "Most remote National parks". At 11.10 pm you conducted a research on the topic "wild forest in NSW" and at 11.03 pm you conducted a search on the topic "remote forest in NSW". At 11.37 pm that day you messaged the victim telling her that you missed her.

22. On 14 April 2015, you conducted a number of internet searches about pregnancy and related topics throughout the day. At 3.35 pm you also searched "Map of Sutton Forrest, NSW 2577". At 10.12 am on 14 April 2015 you sent an email to the victim inviting her to dinner the following Thursday in order to reconcile. The victim replied:

Joey

Please listen to me... I do not want to be your friend, I do not want to ever see you again, i do not want to talk to you. Do not send me emails or texts or try to call me. Do not come to my home. I have an open complaint with the AFP about you stealing my key breaking in to my house and trying to rape me. If you contact me in any way once more then I will be going to the court that will force you to stay away from me.

Leave me alone.

Despite this email, at 11.34 pm that night, you again forwarded a message to the victim, telling her that you missed her.

23. On 15 April 2015, you again conducted internet searches about pregnancy. On 16 April 2015 you continued to conduct internet searches about pregnancy- and from 9.57 pm on that date, through to the morning of the 17 April 2015, you searched the internet about chemicals to knock people out, how to kill and how to break in to premises. A full list of those searches is at Annexure A.

24. At 9.37 am on 17 April 2015 you messaged the victim telling her that you loved her and missed her. There was then a rancorous exchange of emails which ended when the victim emailed you saying "One last time. Stop your harassment you are now threatening me and I am now going to the police to show them all your messages. Goodbye." You replied: "Okay Dan...do it then...its [sic] not only me getting into trouble...if you know what I mean..."

25. From 9.50 am on 17 April 2015, until early in the morning on 18 April 2015, you continued Internet searches on topics such as videos of girls being raped, how to break through a door, how to open a locked door without a key, and how to knock someone out using chemicals. A full list of those searches is at Annexure B.

26. Of particular significance are searches that you conducted between 11.41 pm on 17 April 2015, and 2.34 am on 18 April 2015, concerning whether Rapid Fixer could knock someone out.

27. On Saturday the 18th of April 2015, the victim's mother, Mrs Nerida Knight, collected the victim from her residence and went shopping with her. During the day Mrs Knight and the victim then made plans to go swimming on Sunday 19 April 2015. Additionally, Mrs Knight arranged to drive the victim and her pet dog to a veterinarian on Monday 20 April 2015. Mrs Knight left the victim at her residence sometime on the afternoon of Saturday 18 April 2015.

28. On 18 April 2015, you sent an email to the victim telling her that you loved her very much and that your feelings for her were strong. You said that you cried every day because you really missed her. You further said that you couldn't stop thinking of her; you said that you would always love and cherish her, until death parted you.

29. At some unknown time, you wrote a letter to the victim, in the nature of a suicide note. There is no evidence that this was ever sent to the victim. It was located on a thumb drive in the pocket of a pair of your pants in the victim's car after you were apprehended. In that letter, you also spoke of your love for the victim.

30. From 2.34 pm on 18 April 2015, you again conducted Internet searches about pregnancy. At about 5.05 pm on the same date, the victim sent an SMS message to a friend, Mr Obed Boadi-Amoako, saying that you were sitting on your balcony drinking, and that you had told her that you put a chair on top of another, so that you could look directly into her bedroom. She expressed concern that you would do something later that night, when you were intoxicated.

31. It appears that her friend responded to this SMS, although that response is not before me, because, at 6.58 pm, the victim sent another SMS message to the same person, saying that the locks were changed so that the worst that could happen was that you would come banging on her door and she would call the police.

32. At about 7.00 pm, your friend, Mr Pauliasi Tabulutu, called you on your mobile phone and offered you a free ticket to watch the rugby at Bruce Stadium that evening. You agreed and told Mr Tabulutu he could park his vehicle at your residence in Bruce, and you and he could walk to the stadium. However, when Mr Tabulutu arrived at your premises at about 7.20 pm, you met him, walking from the direction of the victim's apartment complex, you told him that you could not go to the rugby as your girlfriend was sick. Mr Tabulutu parked his car in the car park under your apartment complex, and walked to the rugby alone.

33. At about 9.30 pm, Mr Tabulutu called you on your mobile phone and told you that the football had finished and that he would meet you at your apartment complex to collect his car. A short time later he arrived at the front of your apartment complex and you met him again walking around the corner from the direction of the victim's apartment complex. Mr Tabulutu then left the area.

34. From about 9.19 pm that day, you conducted a number of Internet searches directed towards reconciliation of relationships. At some time on 18 April 2015, you updated your Facebook cover photo with a photograph of yourself and the victim. You described your relationship status as "Engaged" to the victim.

35. The victim used her mobile phone for the last time on 18 April 2015 at 9.32 pm. She was in her apartment at that time. That evening, you drove your mother to her workplace at Calvary Hospital in Bruce. You told her that you were seeing the victim that evening.

36. At about 10.30 pm, you attended a number of licensed establishments in the city and spoke to a number of your acquaintances. At 3.11 am on 19 April 2015, you again conducted an Internet search relating to pregnancy symptoms. About 6.20 am on Sunday 19 April 2015, you drove a friend from the city to another friend's residence in Kaleen. On the way, you drove past your residence and asked your friend to drop your house keys in your letterbox so that your mother could access the apartment when she returned from work. You then drove around the corner and parked opposite the victim's apartment complex. You told your friend to wait in the car as you had to go and take out your girlfriend's rubbish. You left the vehicle and ran towards the apartment complex. You returned about 7 to 10 minutes later and continued on the journey to Kaleen.

37. About 6.34 am, you attended at the Caltex Service Station in Kaleen and purchased a drink and a pie. About 8 am, your mother arrived home and saw you were not at home.

38. Sometime between 6.34 am, and 8.54 am, you entered the victim's apartment. There were no signs of forced entry. You had with you a bottle of Ilford brand Rapid Fixer. Sometime before 8.54 am that morning, having gained entry to her apartment, you straddled the victim, who was lying on her back and strangled her by squeezing your two hands around her throat, bearing down with your full weight. This caused compression injuries to the victim's throat which resulted in her death.

39. During the struggle, the victim suffered bruises and abrasions to her neck, petechial haemorrhages on the facial skin, marks on the nasal bridge, bruises and areas of haemorrhage on the sides of the scalp, bruises and abrasions to her lip, jaw, eye and temple, and bruises and significant abrasions on her shins. A subsequent autopsy examination concluded that the victim had died as a result of neck compression following application of force to the neck, leading to asphyxia.

40. At 8.54 am, you used the victim's mobile phone to send an SMS to your own mobile saying "Joey I need to talk to you urgently!!!". I am satisfied that the victim was dead at this time. At 9.08 am, you sent an SMS from your mobile to the victim's mobile saying "What for?? Leave me alone?"

41. At 9.18 am, you made a video recording of 2 minutes and 57 seconds duration, using your mobile phone. The victim was dead during the time this video was made. The video shows you performing sexual acts on the body of the victim. During the video, the victim, who was lying on her back on her bed, does not move or make any sounds. These facts are the basis of the charge of indecently interfering with a dead human body, on the list of additional offences.

42. Post mortem samples taken from the body of the victim at the time of autopsy revealed blood and semen in an anal swab, in oral swabs, and in vaginal swabs. Your DNA was detected on some of these swabs.

43. At 9.36 am, you sent an SMS from the victim's mobile to your phone saying, "Joey I know I fucked up? I want to make it up to you. lets go for a picnic today. Ill pick you up at 11.30 am. I love you, baby." At 9.38 am, you sent an SMS from the victim's mobile to Mr Boadi-Amoako's mobile saying, "Hi Obed I'm going with Joey today for a drive to the cotter dam. I know I had a great time with you with all the dramas I am facing. I know Joey is the one for me. As a friend what do you reckon??"

44. You opened the balcony doors to the unit, and turned fans on in order to cool the victim's body, and slow the decomposition process.

45. At 10.00 am on 19 April 2015, Mrs Knight sent an SMS to the victim's mobile saying "Are you thinking about swimming at eleven?" You replied using the victim's mobile, "Sorry Ma, got other plans today". Ms Knight replied "That's okay. As long as you have something fun to do. Are you okay?" You replied at 10.11 am, using the victim's mobile "Yes, I'm all good". Mrs Knight thought it strange that the message from the victim's phone had referred to her as "Ma" as the victim never used that term.

46. About lunch time, you returned to your residence and had lunch with your mother and then watched television in the lounge room, Later that evening you told your mother you could not take her to work that night as you were going to go and see the victim about 9.00 pm. Just before 9.00 pm, your mother observed you watching television in the lounge room; you told her that you were going to see the victim and asked her to leave the door to your apartment unlocked. You left the apartment a short time later.

47. You had, by now, formulated a plan to take the victim's body to the South Coast of NSW. You returned to her apartment and began packing clothing and food in her car. You bound her feet and arms with masking tape, cable ties and rope. You then removed the sheets and doona from the victim's bed, and wrapped her body with them. You cleaned her apartment and placed a number of items in garbage bags, including your shoes, underwear, the victim's underwear, masking tape, the bottle of Rapid Fixer and other items. You placed those garbage bags in the large communal skip bins at your apartment complex. These actions suggest that at this time, you still had some hope that you may be able to avoid apprehension for your crimes.

48. About 10 pm, you attended a service station at the Dickson shop, and purchased cigarettes as well as fuel for the victim's car. From 10.49 pm, until early on 20 April 2015, you conducted a number of Internet searches about the Bateman's Bay area, murder, and suicide.

49. About 3.30 am on the 20th of April 2015, you carried the victim's body, still wrapped in sheets and a doona from her residence, down two flights of stairs and into the underground secure car park. You placed the body of the victim in the boot of her car; you had retained her mobile phone. You then drove the victim's car to the area of Bermagui in NSW. You turned off both your phone and the victim's phone in order to conceal your location.

50. About 9.13 am that day, you purchased a shovel in Bermagui with the intention of using it to bury the victim's body. You then drove to the Cuttagee Beach headland, before returning to Bermagui to buy lunch. You then returned to Cuttagee Beach. Sometime in the evening, you parked the victim's car in a carpark in Bermagui and slept there overnight. The body of the victim remained in the vehicle.

51. In the meantime, Mrs Knight had reported her daughter missing, after receiving a phone call from her workplace saying the victim had not attended work and that they had not heard from her. Mrs Knight went to the victim's apartment and saw that her car was missing. The victim's puppy had messed up the apartment, and there was no food for the dog or the victim's cat.

52. Police attended the apartment and spoke to Mrs Knight. They then attended your apartment and spoke to your mother who stated that she had attempted to call you, but the phone went straight to message bank. She was concerned as she had contacted some of your friends and they had not heard from you.

53. On the morning of Tuesday 21 April 2015, you turned on your mobile phone and saw you had received numerous text messages from friends and family, checking on your welfare and asking for your whereabouts. You drove from Bermagui back to the Cuttagee area and spent most of the day there. About 5.00 pm, you returned to Bermagui and purchased dinner from a take away shop before returning to Cuttagee Beach. At Cuttagee Beach, you were drinking heavily.

54. At 6.12 pm, you conducted a series of Internet searches on the theme of whether a car pushed onto the beach would be dragged out into the sea. You then drove off the road onto the sand, in an attempt to drive into the water. The car became bogged in the sand. You attempted to dig the car out of the sand with the shovel that you had purchased. You were unable to free the car, and you fell asleep a short distance from the car. The body of the victim remained in the car.

55. At 8.45 am on Wednesday 22 April 2015, you flagged down a council maintenance crew and asked for assistance in freeing the vehicle from the sand. The four men assisted by pushing the vehicle out of the sand. After freeing the vehicle, you drove to Bermagui, parked near an oval and went to sleep.

56. The registration number of the victim's vehicle had been circulated in the media and a member of the public saw the car at about 4.30 pm and reported it to police. This person approached the vehicle and tapped on the window. Shortly after that, you drove back to Cuttagee Headland, where you began drinking. You turned on both your phone and the victim's phone and saw media reporting about you and the victim having been reported missing.

57. About 7.40 pm, you made a series of phone calls to one of your friends. You told your friend that you were in a panicked state and you needed help. You told him that you woke up on Sunday at the victim's apartment and found that she had committed suicide. You said that you panicked because of women's rights in Australia and you didn't know what people would think. You said that you cleaned up the apartment and left the victim lying where she was. You went home to your apartment and returned to her apartment after dark, wrapped her up in a blanket and took her to a car in the basement of the apartment block. You said that you placed the body of the victim in the car and drove off. You said that two people had approached you at the coast and told you that they had seen you in the media as a missing person, and asked you where your partner was. You said that you replied that your partner was asleep in the car and that you would go to the police station. You said that you panicked and started driving towards Bega. You said that you didn't feel ready to go to the police and you were thinking about burying the body of the victim. Around the same time, you sent a series of offensive text messages from the victim's mobile phone to Mr Boadi-Amoako pretending to be the victim. Mr Boadi-Amoako was clearly suspicious that the messages had not been written by the victim.

58. At about 8.00 pm, NSW Police attended at Cuttagee Lake, where they saw the victim's car without its registration plates. You attempted to drive away from police, however, the vehicle became stuck in thick grass. You ran from the vehicle into dense bushland. Police approached the car and observed the body of the victim in the boot. Your mobile phone and that of the victim were found in the car, together with a thumb drive containing the suicide letter to which I have already referred.

59. At 4.42 pm on 23 April 2015, you were located and arrested by NSW Police not far from where you had run from police the previous day. You were taken to Batemans Bay police station. While standing at the custody counter being processed you admitted that you had killed the victim in the ACT. At 8.43 pm that day, you participated in a recorded interview with the police.

60. During that interview you admitted to strangling the victim in her bedroom. You said that after you had murdered the victim you thought of suicide. You told police that you had attended the victim's residence about lunchtime on Sunday, 19 April 2015, after receiving an invitation from her. You said that you had been sitting on the lounge talking and she was drinking chardonnay. You said that you became involved in an argument and the victim threatened to have your visa revoked before walking off into her bedroom.

61. You said that you followed her into her bedroom and tried to reason with her before becoming angry and losing control. You said that you originally went to hit the victim, but grabbed her around the throat at the last minute and pushed her backward onto the floor beside her bed. You then strangled the victim, intending to kill her. You said that you let go of her throat when you observed blood running from her mouth.

62. You cleaned the apartment and wrapped and bound the victim's body. After cleaning the apartment you threw rubbish in the commercial bins at your apartment complex. You told police that you had not had any sexual contact with the victim since the Sunday a week prior to her death. You admitted to sending some messages to Mrs Knight using the victim's phone, pretending to be the victim. You denied using her phone to send messages to anyone else. You said that you drove the victim to the coast with the intention of disposing of her body before killing yourself.

63. You told police that there had been an arrangement for you to attend the victim's apartment and that you had done so about lunchtime. You said that there was an arrangement for the two of you to go to the Cotter Dam for a picnic. You told the police that when you arrived at her apartment the victim was sniffing a substance which you described as "this acid" and you suggested that the police may gain more information about that substance from a postmortem of the victim.

64. Later in the interview you claimed that the victim had been sniffing photo liquid. You did not mention to police your Internet searches concerning whether the smell of Rapid Fixer could render a person unconscious. It is important that I set out some of the questions and answers in full in relation to use of Rapid Fixer. Question 131, the police officer said:

Q131:Yes, and you said that she was sniffing acid, did you say?

A: Yes, um, I think it's like a - um a photo liquid or something. I'm not too sure. It's in a little white container, but the - I didn't keep it because after I'd choked her, yes, I just cleaned everything after that.

Q132: Okay.

A: I just chucked it away, but if a postmortem comes in you'll know.

Q133: Sure.

A: Yes.

Q421: Yes.

A: Then we were talking, talking about the day, how everything is going, how everything - how is the family, and she was opening this bottle of, um, acid thing. I'm not too sure; it's in a white bottle.

Q422: Okay.

A: She said it's something about cleaning a film, doing film or something.

Q423: Okay.

A: When the postmortem comes, then you guys can see what type of acid it is.

65. Although you admitted intentionally killing the victim in this interview, a number of the answers that you gave were clearly false. The statement that you had not had any sexual contact with the victim since a week prior to her death was a lie. Your assertion that you had not used the victim's mobile phone to send messages to anyone other than her mother after the death of the victim was also a lie. You also lied about the time of the death of the victim. You lied to police about the events of 10 April 2015, saying at question and answer 121 that you and the victim were hanging out at her apartment.

66. You were subsequently extradited to the ACT, where you appeared in the Magistrates Court and were remanded in custody. You have remained in custody since that time.

67. It is convenient at this point to consider and determine the factual disputes raised by you at the sentence hearing. The Crown asserted that you took the bottle of Rapid Fixer with you to the victim's apartment on the morning of 19 April 2015 with the intention of incapacitating her. You did not admit that this was the case. The Crown also alleged that you used the Rapid Fixer which you took with you to the victim's apartment in order to try to incapacitate her.

68. You submitted through your counsel that the evidence was insufficient to infer that you had used the Rapid Fixer in the way the Crown alleged. In particular, your counsel pointed to the fact that the toxicology report prepared as part of the autopsy of the victim did not reveal any traces of Rapid Fixer in the victim's body.

69. Rapid Fixer is apparently a chemical compound used in developing photographs. There was unchallenged evidence that the victim had no interest in photography and no equipment for the purpose of developing photographs was found in her apartment after her death. The Crown submitted that an inference could be drawn that you had taken the bottle of Rapid Fixer to the apartment of the victim in order to incapacitate her. The Crown also submitted that you had used it in an effort to incapacitate her from the evidence of the Internet searches you conducted on the days leading up to 19 April 2015 and the statements that you made to NSW Police in the course of your interview. The Crown submitted that hese indicated a belief on your part that traces of the Rapid Fixer would be found in the body of the victim on autopsy, together with your attempts to explain what you expected to be found on autopsy by suggesting that the victim had been sniffing the Rapid Fixer.

70. I am satisfied beyond reasonable doubt that you took the bottle of Rapid Fixer with you to the victim's apartment because you believed that the use of that substance could render the victim unconscious. It was accepted by the Crown that Rapid Fixer could not, in fact, be used to render someone unconscious. In that regard the Crown tendered the statement of Ms Brenda Woods, a forensic chemist with the Australian Federal Police (AFP).

71. There is no evidence before me that you have any knowledge or expertise in chemistry and it is unclear what information or misinformation you may have gleaned from your Internet searches. The statements that you made to the NSW Police in the course of your interview revealed a fear that an autopsy of the victim would reveal the presence of Rapid Fixer in her body. It was accepted that you lied to police about the victim having possession of the Rapid Fixer when you arrived at her apartment and about her sniffing the Rapid Fixer. As such, the fear revealed in your statement to police in NSW that the presence of Rapid Fixer would be found in the body of the victim on autopsy could not have been based upon any belief on your part that she had voluntarily used Rapid Fixer.

72. The inevitable inference is that you feared that the presence of Rapid Fixer would be found in the body of the victim at autopsy because you had used that substance in order to try and render her unconscious. The submission by your counsel that it is unclear why you said what you did to the NSW Police, although you may have believed that Rapid Fixer would be revealed in the body of the victim on autopsy, is in reality an acceptance that there is no other reasonable hypothesis consistent with the evidence and explaining these statements other than the submission advanced by the Crown.

73. It is true that no traces of Rapid Fixer were found in the victim's body at postmortem, but there is no evidence as to whether traces would be expected to be found on postmortem, particularly when it is not known for how long any attempt to use the substance on the victim lasted or what quantity may have been used.

74. The second area of dispute relates to the means by which you gained entry to the victim's apartment on 19 April 2015. It was the Crown case that you had in some way forced entry into the apartment before unsuccessfully attempting to render the victim unconscious. When it became clear that this attempt was not going to succeed, you choked her, intending to kill her.

75. Your counsel submitted that in the absence of any evidence of forced entry I could not be satisfied beyond reasonable doubt that the victim did not open the door to you and allow you in. There is no doubt in my mind that as at the morning of 19 April 2014 the victim would not have voluntarily allowed you to enter her apartment. You had sexually assaulted her only a few days earlier. Her attitude to you, as revealed in text and email conversations in the days leading up to 19 April 2015, was that she wanted nothing to do with you, did not want to speak to you and did not want you to come to her apartment.

76. The proposition that she would have invited you into her apartment on the morning of 19 April 2015 is simply not credible. In the absence of evidence of forced entry to the apartment of the victim it is probable that you gained entry by a ruse, such as knocking on the door and forcing your way into the apartment when she answered the door. The exact means you employed remain a matter of speculation, but I have no doubt the victim would not have allowed you access to her apartment on 19 April 2015.

77. The Crown submitted that you had pre-planned breaking into the victim's apartment, incapacitating her and killing her. I am satisfied beyond reasonable doubt of the first two of those three propositions. The third proposition that you had an intention to kill the victim at the time that you entered her apartment is considerably more problematic.

78. Your counsel referred me to the statements which you made in your interview with NSW Police to the effect that you only formed an intention to kill the victim after the argument in her apartment in which she made threats in relation to your family. I have already rejected the proposition that the victim voluntarily invited you into her apartment. I do not accept the statements which you made to police about the conversation you say took place between yourself and the victim before you killed her. You, of course, had a strong motive to kill the victim because she had broken up your relationship and had made it clear to you that she no longer wanted to have any contact with you.

79. An examination of the Internet searches which you conducted show that with regard to those searches at Annexure A, you focused on identifying a means of rendering a person unconscious. In the middle of those searches there is one search concerning how to unlock doors and one search which is unambiguously directed towards acid planning as a means of killing someone. After that single search you continued to search sites about rendering a person unconscious. I am satisfied on the basis of this material that the possibility of killing the victim had occurred to you, but at that time you were primarily concerned with ascertaining a means to render her unconscious. The question remains, why would you want to do so? Was it, as the Crown submits, in order to kill her?

80. An examination of the Internet searches at Annexure B reveals an interest in determining a means of gaining entry through locked doors. The focus of the searches then changes to material about the rape of women before returning to the issue of whether the smell of Rapid Fixer could render someone unconscious.

81. The Internet searches that you undertook show that you took an interest in the following three to four topics in descending order of importance as measured by the number of searches undertaken:

(a) firstly, identifying a chemical, the smell of which could render someone unconscious;

(b) secondly, obtaining entry through a locked door; and

(c) thirdly, raping women; and

(d) finally, how to kill someone.

82. The fact that there was only one Internet search concerning how to kill someone suggests that while the possibility of killing the victim had occurred to you, your intention at the time you went to the victim's apartment on 19 April 2015 was not to kill her. This is supported by the fact that you went to her apartment on that morning, which was a Sunday morning, at a time at which removing her body from the apartment was thwart with danger of discovery. It does not appear that you had any plan in place for removing the body of the victim from her apartment and disposing of it before you went to her apartment that morning.

83. Your actions after you had killed the victim also suggest that you did not go to her apartment that morning with the intention of killing her. You sent false text messages to yourself and to others suggesting that the victim wanted to reconcile with you and had arranged to go to the Cotter Dam with you that day for a picnic. While these text messages were clearly designed to make the recipients believe that the victim was still alive, they inevitably directed attention towards you as having contact with her on 19 April 2015. This would direct attention towards you when, inevitably, it was discovered that the victim was either missing or dead. You would be suspected as the last person to have seen the victim alive, and the lack of any messages from you enquiring of the whereabouts of the victim on 19 April would make unlikely any suggestion that the victim had simply stood you up.

84. While your actions immediately after the murder do not speak of panic as such, they are consistent with a lack of planning about how to dispose of the body of the victim and how to distance yourself from suspicion surrounding her death or disappearance. Your actions of placing the victim in the boot of her car, a car which was likely to be the object of police inquiries when the disappearance was discovered, driving that car to the south coast and driving that car around for three days also speaks of a lack of planning.

85. Your search of a map of Sutton Forest, NSW on 14 April 2015 is suspicious because of its proximity to the Belanglo State Forest, notorious as a place where the bodies of murder victims have been disposed of in the past, but this was a single search and does not allow me to infer that you were contemplating murdering the victim at that time.

86. I am not satisfied beyond reasonable doubt that when you attended the victim's apartment on 19 April 2015 you did so with the intention of killing her, although you had contemplated the possibility of killing her before that date. Based upon the history of Internet searches you had conducted before the murder I am satisfied beyond reasonable doubt that you went to her apartment that morning with the intention of gaining entry, rendering the victim unconscious and sexually assaulting her. In all probability this plan went awry from the outset when the Rapid Fixer failed to render her unconscious and you then strangled her. I am satisfied that your actions in killing the victim were, at least in part at that time, so as to prevent her from reporting what you had done to the police. What you may have ultimately done with the victim, had your plan succeeded and you had rendered her unconscious and assaulted her, can only be speculation at this time.

87. No evidence has been placed before me to suggest that you suffer from any mental disorder which would help to explain your act of sexually interfering with the body of the victim after you had killed her. I therefore rule out some form of sexual perversion such as necrophilia as the motive for that offence. It is highly unlikely that it was part of a plan by you to avoid suspicion over the death or disappearance of the victim, by allowing you to produce the video to police as evidence that the two of you had reconciled before her death or disappearance and therefore you had no motive to harm her as the description makes it obvious that the victim was unresponsive.

88. It seems probable that your motive for sexually interfering with the victim's body would have been the same as your motive for your proposed actions of rendering her unconscious and sexually assaulting her. You were angry because she had rejected you. Your actions were not motivated by sexual desire, but were based on a desire to exert control over the victim.

89. Victim impact statements from the victim's two sisters and an aunt were read at the sentence hearing on 11 October 2016. Ms Fiona Knight, a sister of the victim, spoke of her close bond with her sister, acknowledged her sister's vulnerability due to mental health issues, selfharm, abusive partners and domestic violence. She also speaks of the pain she feels as a consequence of her sister's death and the guilt she feels because she failed to protect her sister. Such feelings are natural, but the truth is that she has no reason to feel guilty. You are the only person who is responsible for what occurred to her sister. Your actions have affected the extended family of the victim and will continue to affect them for the foreseeable future, and indeed probably for the rest of their lives. The victim impact statement from the aunt of the victim speaks of the impact of her death upon the extended family and how she was loved by her family. It also refers to her vulnerability.

90. Ms Anna Knight, another sister of the victim, also spoke of a very close bond with her. She described the loss of her sister as leaving a great hole in her life. She speaks of the pain that she has suffered and of the pain that others who loved the victim have also suffered. She has clearly found it difficult to put out of her mind the horrific circumstances of the death of her sister.

91. A PreSentence Report was prepared for the sentence hearing. The Report noted that you are 29 years old and that since being remanded in custody on 24 April 2015 your behaviour in custody has been positive. You reported that you were born and raised in a small Fijian village, one of two sons born to your parents' marriage. You described your childhood as sheltered and strict, particularly with regard to your father's adherence to traditions and religious beliefs. You stated that you continue to enjoy a supportive relationship with your parents with whom you relocated to New Zealand in 2008 and then to Australia in 2010. Your brother continues to reside in Fiji. You have received regular visits from your parents while you have been in custody.

92. You were married in Fiji in 2011 and have a son from that relationship who is now eight years old. Your wife and son remain in Fiji despite you residing in Australia. You stated that you filed for divorce prior to the current offences but you are unsure if the divorce was finalised. You said that you maintain regular telephone contact with your son.

93. You told the author of the Report that you entered into a relationship with the victim in January 2015 and the relationship ended in March 2015. You acknowledge that you continued to pursue the victim following the end of that relationship. You said that you did not understand why you were unable to accept the end of the relationship and expressed confusion over your behaviour, claiming that you had not previously displayed such behaviour. You told the author of the Report that you expected to be deported to Fiji if you are released from custody.

94. You attended school in Fiji and then completed one year of a Bachelor degree before leaving your university studies to assist your parents financially in New Zealand. You indicated a desire to pursue tertiary studies in the future. You claim that you were working at the time of the current offence and that your employment was terminated following your arrest. In custody you have been employed in a number of different roles in the AMC and you are generally regarded as having a good work ethic and performing your duties well.

95. You reported commencing alcohol consumption when you moved away from your family to attend university. You reported a history of binge drinking, frequently resulting in memory loss. You denied any illicit substance use. You have no major physical health concerns. You told the author of the Report that you were suicidal at the time of the current offence but you no longer experience suicidal thoughts.

96. You told the author of the Report that you agree with the prosecution case statement. You said that you did not understand why you offended as you did, or why you were unable to accept the end of the relationship. The author of the Report believed that you did not attempt to minimise your behaviour. You made statements indicating an understanding of the impact of your actions on the family and friends of the victim. You accept that you had previously either denied responsibility or attempted to minimise your responsibility for these offences but you now understood the importance of taking full responsibility.

97. I note that you will be assessed for participation in a number of programmes within the AMC after sentencing. You were assessed as medium risk of general reoffending and low to medium risk of sexual reoffending. You apparently do not have a prior criminal history, although no significant leniency can be shown to you because of that circumstance, due to the extremely serious nature of the charge.

98. I take into account your plea of guilty. It was not entered at the earliest opportunity but it nevertheless had a utilitarian value. The utilitarian value of your plea was however reduced by your challenge to a number of the facts asserted by the Crown. Your plea of guilty to the charge of murder meant that family members of the victim were not required to give evidence at the trial and may have experienced some relief in knowing that you admitted what you had done and that you would be punished for it.

99. I am satisfied that your plea also evidences a degree of remorse, as do the statements you made to the author of the Pre-Sentence Report but I am not satisfied that you have demonstrated complete remorse. You lied to police in the interview conducted at Batemans Bay and I am satisfied that you have, through your counsel, attempted to minimise your responsibility regarding your method of entry into the victim's apartment and the reason why you took the rapid fixer with you to her apartment on the morning of 19 April 2015. I am satisfied that you have not been entirely honest.

100. I take into account the fact that the Crown case against you is very strong; although not to the extent that I would be prepared to entirely discount the value of your plea to the charge of murder. The Crown submitted that this was a premeditated killing borne out of revenge and therefore the maximum penalty for the offence of murder was engaged. The Crown submitted that your indecent interference with the body of the victim, after you murdered her, was part of your revenge and debasement of her, which effectively accords with my earlier findings.

101. Your counsel submitted that this was not a worst case of murder and therefore a life sentence was not warranted. He submitted that you have prospects for rehabilitation, such that a life sentence would be inappropriate. He submitted that you are still a relatively young man and that a life sentence would fall more heavily on you than on an older offender. I accept that your age is a relevant consideration in sentencing you but if the offence were to be assessed as of such gravity as falling for the imposition of the maximum penalty, the fact that you may be required to serve a longer sentence than an older offender, convicted of such an offence, is really not to the point.

102. Your counsel accepted that you intended to kill the victim at the time that you strangled her. He accepted that you contemplated either killing the victim or rendering her unconscious between 16 and 19 April 2015. He submitted that this was not a case where your motive in killing the victim was to conceal some other offence. He also pointed to the fact that there was no use of a weapon and that you had no prior history of violent behaviour. He also noted that there was a single victim and that many offences found to fall within the worst case category involve multiple victims. He submitted that you were suicidal after you killed the victim, indicative of remorse.

103. Your counsel submitted that the offence fell between the middle and upper range of such offences but not in the worst case category. I note that recently the High Court in R v Kilic [2016] HCA 48, a decision delivered on the 7 December this year, made it clear that an offence can only be described as falling into the worst category of a particular offence if it is an instance of the offence which is so grave as to warrant the imposition of the maximum prescribed penalty for that offence. It is in that sense that I will use the term "worst category".

104. It would be entirely understandable if the family and friends of the victim found the debate about whether the present offence of murder falls within the worst category of cases of murder to be mystifying, if not obscene. After all, their loved one is dead and for no reason other than your desire to exercise control over her and your desire to ensure that she did not report to the police your actions of gaining entry into her apartment and attempting to render her unconscious. In that regard, I do not accept the submission made by your counsel that your motive for this offence did not involve concealing some other offence. Offences of murder however, while all involving the death of another human being, may cover a wide variety of factual circumstances, ranging from what might be referred to as a mercy killing, up to contract killings or killings involving the infliction of gratuitous pain. It is my duty to consider where the facts of this case lie on the spectrum that extends from the least serious examples of this type of offending up to the worst case.

105. In the recent case of Vojneski v The Queen [2016] ACTCA 57, the Court of Appeal said at [120]:

Factors that may aggravate the objective seriousness of an offence of murder include significant premeditation and planning (as in R v Hillier (Unreported, Supreme Court of the ACT, Gray J, 16 March 2005)), cold-blooded murder for monetary or other reward (as in the case of R v Steer and Williams (Unreported, Supreme Court of the ACT, Crispin J, 16 October 1997), a contract killing (Burrell v The Queen [2009] NSWCCA 163; 196 A Crim R 199), aggravating surrounding circumstances such as tormenting the victim or gratuitously disfiguring the body (R v McDougall (Unreported, Supreme Court of the ACT, Gray J, 21 July 2011)), use of a dangerous weapon such as a firearm, attack on a person who is particularly vulnerable, commission of the offence in company (as in R v Schmidt [2013] ACTSC 295) and the killing of a public official in connection with the official's public duties (as in R v Eastman (Unreported, Supreme Court of the ACT, Carruthers AJ, 10 November 1995)).

106. In R v Harris [2000] NSWCCA 469; 50 NSWLR 409, Wood CJ at common law, with whom Giles JA and James J agreed, said with regard to determining whether a particular offence falls within the worst category of murder at 423:

The features required for qualification in the "worst case category" were defined in Twala NSWCCA 4 November 1994, where it was said:

"in order to characterise any case as being in the worst case category, it must be possible to point to particular features which are of very great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime (as distinct from the subjective features mitigating the penalty to be imposed)..."

"Heinousness" has been described as follows:

"The adjective 'heinous' which gives the noun 'heinousness' its meaning has been variously defined as meaning atrocious, detestable, hateful, odious, gravely reprehensible and extremely wicked. The test to be satisfied is thus a substantial one". R v Reginald Keith Arhurell (Hunt CJ at CL unreported 3 October 1997).

107. In Knight v The Queen, [2006] NSWCCA 292; 164 A Crim R 126, McClellan CJ, Chief Judge at CC, with whom Adams J and Latham J agreed, articulated the following principles at 139 concerning the imposition of a maximum life sentence penalty for murder, as allowed by s 61 of the Crimes (Sentencing Procedure) Act 1999 (NSW), in NSW, which in my opinion, are consistent with the principles relevant to the sentencing for offences of murder in the ACT.

• the maximum penalty for an offence in the case of murder, life imprisonment, is intended for cases falling within the worst category of case for which that penalty is prescribed.
• it is not possible to prescribe a list of cases falling within the worst category - ingenuity can always conjure up a case of greater heinousness.
• a life sentence is not reserved only for those cases where the offender is likely to remain a continuing danger to society for the rest of his or her life or for cases where there is no chance of rehabilitation; the maximum may be appropriate where the level of culpability is so extreme that the community interest in retribution and punishment can only be met by a sentence of life imprisonment.

108. In many cases, a two-stage approach to the consideration of whether the maximum penalty should be imposed is appropriate. Firstly, consideration is given to whether the objective gravity of the offence brings it within the worst class case. Consideration is then given to whether the subjective circumstances of the offender require a lesser sentence.

109. In the present case, I am satisfied that there was pre-meditation in the sense that you had contemplated killing the victim in the days before you did so. I am not satisfied that you went to her apartment on the morning of 19 April 2015, at that time, intending to kill her.

110. In the ACT, the crime of murder may be committed where the offender has an intention at the time of killing the victim, either to kill the victim or to cause them grievous bodily harm. You accept that you had the intention of killing the victim, which establishes an offence of murder with greater culpability than one based upon an intention to cause grievous bodily harm. You knew the victim to be vulnerable, as a single woman living alone. You also knew that she had a history of mental illness, but it cannot be said that you took advantage of that particular circumstance of vulnerability in killing her. The most that can be said in that regard, and as you said in your interview with the NSW Police, is that you attempted to use the victim's history of mental illness as providing an explanation for your attack upon her.

111. It is an aggravating circumstance that you killed the victim in her own home, a place where she was most entitled to feel safe. As I have said, I am satisfied that you gained entry to her apartment without her permission.

112. In deciding the objective seriousness of the offence of murder, I am also entitled to take into account your treatment of the body of the victim after you had killed her; in that regard, see the cases of R v Yeo [2003] NSWSC 315 and Director of Public Prosecutions v England [1999] VSCA 95; 2 VR 258 (DPP v England). In this regard I make it clear that there will be no double punishment for your acts of indecent interference with the body of the victim, the charge which is found on the list of additional offences. In passing sentence, I will take that circumstance into account only once. I am nevertheless entitled to take your actions with regard to the victim's body after her death into account, in determining whether this is a case calling for the maximum penalty.

113. In the case to which I have just referred, DPP v England, the offender broke into the home of a 75 year old woman with the intention of stealing from her. When the victim woke up during the robbery, he hit her over the head with a crowbar on a number of occasions and killed her by strangulation. He then sexually assaulted her. The offender was 19 years old at the time of the offence, and at first instance was sentenced to 18 years imprisonment, with a non-parole period of 14 years. An appeal by the Crown against the manifest inadequacy of that sentence was upheld, and the offender was resentenced to a term of 23 years imprisonment, with a non-parole period of 17 years. In re-sentencing the offender, the Court of Appeal took into account the principle of double jeopardy regarding Crown appeals, such that the sentence imposed was less than the Court considers should have been imposed, at first instance.

114. I assess the present charge of murder as towards the top of the range of such offences, but your lack of an intention to kill the victim before you entered her apartment on the morning of 19 April 2015, places it just outside the category of the worst case.

115. General deterrence, denunciation, and punishment are the primary sentencing considerations for offences of murder. The respect which the law accords to human life, and the community's disapproval of those who intentionally take the life of another, are reflected in the maximum prescribed penalty and the lengthy sentences which are usually imposed for the offence of murder.

116. It is difficult to assess the extent of any danger which you may present to the community when you are released. You expect to be deported to Fiji on your release but there is no evidence before me to allow me to form any conclusion about the likelihood of that occurring. Your lack of relevant criminal history suggests that you have reasonable prospects for rehabilitation. The evidence of your fixation on the victim before her death, and my conclusions about your motive for killing her, both of which are unexplained by any mental illness or impairment, suggest that your lack of criminal history may not be a reliable guide in determining your prospects for rehabilitation and the likelihood of you reoffending.

117. My starting point is one of 27 years imprisonment taking into account the charges contained on the list of additional offences. I will reduce that by 15 per cent, to reflect your plea of guilty, resulting in a sentence of 22 years and 10 months imprisonment.

118. I record a conviction, and you will be sentenced to 22 years and 10 months imprisonment, commencing on 23 April 2015 and expiring on 22 February 2038.

119. I set a non-parole period of 18 years and 4 months, commencing on 23 April 2015 and expiring on 22 August 2033.

I certify that the preceding one hundred and nineteen [119] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns.

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