The Queen v Robertson [2019] VSC 145

1 Shane Michael Robertson, on 6 July 2018, you pleaded guilty to the murder of Katherine Haley.

2 The maximum penalty for the offence of murder is life imprisonment. It is a category one offence and a standard sentence offence.

3 At the time of her death, Katherine Haley was 29 years old. After leaving school, Ms Haley became a qualified hairdresser and worked in the industry until 2017.

4 In 2011, she had her first child with her then partner. You met Ms Haley around that time, although you were engaged to another partner. In 2014, you commenced a relationship with Ms Haley, which lasted approximately four years until her death.

5 The early period of your relationship appears to have been happy and loving. After Ms Haley fell pregnant in August 2016, the two of you moved into a three bedroom home in Diggers Rest, and your daughter was born in April 2017.

6 After the birth of your daughter, your relationship became strained. Around mid-2017, Ms Haley began employment in a tavern in Gisborne. She enjoyed the change of employment, and you were both able to work and care for the children.

7 However, you began to resent Ms Haley working at the tavern and being around other men. You became increasingly jealous as she made new friends, and were concerned that she was being unfaithful. You began questioning her activities, and frequently checking her telephone and social media accounts. You would demand that she call when finishing work and would constantly check on her whereabouts. On one occasion, you contacted one of her male colleagues and told him to stop communicating with Ms Haley, as it was causing rifts in your relationship.

8 At one point, you set up fake Facebook and Instagram accounts to contact Ms Haley's work colleagues. You pretended to be a woman named Abby, and sought to establish if anything was happening between Ms Haley and her male colleagues, while also attempting to make her jealous by pretending you had a female admirer.

9 Your jealousy and surveillance increased, and you became preoccupied with the idea that Ms Haley was cheating on you. You told others, including her family, that she was unfaithful, and that the relationship was difficult and had no affection.

10 You also began attending Ms Haley's workplace and watching her. On one occasion, you became enraged upon observing her talking with a male colleague. You entered her workplace, confronted her, and accused her of flirting.

11 Your behaviour towards Ms Haley became increasingly irrational, and your jealousy and possessiveness wore thin. Several weeks prior to her death, Ms Haley told friends she was thinking of leaving the relationship.

12 On 9 March 2018, you and Ms Haley both went to work. You exchanged messages with your mother, who became concerned and asked if you were alright. You told her you were not, and she said she would organise you some counselling.

13 That afternoon, after an exchange of text messages and calls, Ms Haley told you she was 'over it'. You continued to exchange messages and called her repeatedly. Shortly after 7.00pm, you both took your daughter to a local hotel for dinner. You all arrived home at about 8.45pm and put your daughter to bed.

14 You then began arguing with Ms Haley and she told you the relationship had ended. She started to pack a bag and left the house for a short time. You telephoned your mother and told her Ms Haley was leaving you and the relationship was over.

15 Ms Haley soon returned home and began banging on the front door, yelling at you to let her in. On entering the house, she resumed packing her bag. You pleaded with her not to leave, and eventually she told you she would sleep in her son's room. You continued to argue, and at one point, you left the house and she locked you out for five to ten minutes. You banged on the door, and she let you back in.

16 Shortly before 10.00pm, your mother called you and left a voicemail message. You responded with a text message saying, 'Give me time, I'll call. She's here'. Your mother replied, 'Don't do anything silly'. At 10.25pm, you texted Ms Haley an ultrasound picture of your daughter with the caption, 'Don't give up on us now. We didn't go through all of this for nothing'.

17 By around 10.30pm, you were in a state of rage. You went to the lounge room and picked up a dumbbell bar, which was made of solid iron, heavy, and about 30-40cm in length. You then entered the bedroom where Ms Haley was, still holding the bar.

18 Ms Haley was lying on her son's bed, leaning against the bedhead and holding her telephone. You approached her and lashed out, hitting her multiple times with the bar to her face and head. Your blows were forceful and vicious, and they killed Ms Haley. It is these acts that constitute the offence of murder.

19 You dropped the dumbbell bar on the floor, and at 10.46pm, rang your mother and told her you had killed Ms Haley and that you had to drop off your daughter. In the following minutes, you spoke to your mother several times and told her, 'I've done it, I've bashed her brains in, there are brains everywhere'. At 10.55pm, your mother contacted 000 and requested an ambulance attend your home.

20 You returned to the bedroom and retrieved Ms Haley's car keys. You wrote two notes of apology saying you could not go on without her, and left them on the kitchen table. Shortly before 11.00pm, you and your daughter left in Ms Haley's car. Your daughter had been sleeping in the room next to where you murdered Ms Haley. You phoned both of your sisters and your brother-in-law to say goodbye.

21 Anticipating your arrival, your mother instructed your brother-in-law, Dylan Tame, to block your car in the driveway with his car. You arrived at your parents' house and gave your daughter to your father. Mr Tame blocked your car in the driveway and your mother called 000 again, stating she needed police for her son who wanted to kill himself, and that he had killed his girlfriend about an hour ago.

22 You yelled at Mr Tame to move the car, and the vehicles rammed each other. You attempted to drive through the front garden, but your vehicle became wedged in. You exited the car, yelled out to tell your children that you loved them, and left on foot. While you ran, you called Mr Tame and told him where Ms Haley was, and that you could not stop and there was blood everywhere.

23 At about 12.30am the following morning, you were arrested in a paddock in Sunbury. You were interviewed at approximately 4.00pm, and admitted you killed Ms Haley. You told police that you had been fighting for about five months and that you started to 'notice things'. You said you were begging her, got angry and 'lost it'.

24 You told police that before you killed her, she 'lost it' and hit you a couple of times, before going to the other bedroom. You stated that she had had enough, that you could not let it go and wanted to fix it, that she was being a little bit verbal and violent, and that you 'just done wrong and lost it'.

25 You stated that you picked up the dumbbell bar and went over to her, and hit her face two or three times. You said that you left the house to get your daughter to safety, and that you intended to kill yourself. You said you may have hit Ms Haley more than three times, and agreed you did not help her because you thought it was too late. You told police you felt terrible and had never hit her before.

26 Photographs taken by police reveal a gruesome and horrific scene. They depict the major and catastrophic injuries Ms Haley suffered, and show the destructive force of your assault. These photographs are extremely confronting and difficult to look at.

27 An autopsy on 10 March 2018 revealed Ms Haley suffered extensive injuries, predominantly to her face and head. These injuries were consistent with the dumbbell bar located at the scene. The examination revealed bilateral facial fractures, multiple fractures to both sides of her face and loss of structural integrity to the upper and middle parts of her face. She suffered compound and depressed fractures to her skull and significant brain damage. There were lacerations to her scalp, with bruising and lacerations to her left ear.

28 The autopsy findings were unable to determine precisely how many times you struck Ms Haley, but estimate there were at least three blows to her face and two to her head. The force required to cause the injuries was determined to be severe. It was concluded that Ms Haley died from blunt force injuries to the head. The injuries were so significant that her identification required the use of dental records.

29 This matter proceeded by way of a straight hand-up brief with no contested committal. You were arraigned before this Court on 6 July 2018 and pleaded guilty to the offence of murder.

30 I received eight Victim Impact Statements from Ms Haley's family, and have taken the time to read these carefully. I proceed to outline just some of the testaments written in response to the tragic loss of Ms Haley.

31 Lorraine Haley, Ms Haley's grandmother, described her as a compassionate and caring person, and a wonderful mother. She described her deep heartbreak, knowing that Ms Haley would never see her beautiful children grow up. She said Ms Haley's death had immensely impacted her, and she would spend the rest of her life mourning her absence.

32 Bianca Unwin, Ms Haley's younger sister, described her as a loving person who had a trademark smile. Ms Unwin told of her consuming pain and suffering due to the tremendous absence of Ms Haley. She described how the events of that night will continue to haunt her for the rest of her life. She explained she had to defer her university studies and how her future plans are now on hold. Bianca described having terrifying nightmares, requiring professional help to deal with anxiety, depression and PTSD.

33 Dylan Unwin, Ms Haley's brother, described how Ms Haley was the 'fun big sister'. He described the trauma of the night she was murdered and the impact of attending the scene. He said she was always on his mind, and that he had lost a sister and a friend he saw nearly every day. He described a close family that is struggling to understand why this happened, and has had their hearts ripped out.

34 Tania Haley-Unwin, Ms Haley's mother, described how her beautiful daughter was a caring and loving big sister. She described their strong bond, which further developed with the birth of Ms Haley's child. She told of her sadness at never being able to see her daughter build a future for her and her children. Ms Haley-Unwin said she only leaves her house now if necessary, struggles to eat, and has become an angry and emotional person. She stated it would take a long time for her to rebuild her trust in humanity.

35 Boyd Unwin, Ms Haley's father, described the joy of raising Ms Haley. He described the emptiness he now feels, and said his heart aches constantly. He lamented that his grandchildren will not see their mother again, and that the siblings have been separated, which would have devastated Ms Haley. He described his exhaustion, stress and anxiety, and said he has lost interest in many things and has difficulty sleeping. He described feeling these events have changed his life forever.

36 Chris Shaw, Ms Haley's biological father, described his devastation at seeing the news his daughter had been murdered. He stated he has terrifying dreams and is haunted by violence and pain. He described feeling isolated, helpless and frustrated, and that he has been robbed of the opportunity to see Ms Haley's journey through life.

37 I also heard statements written on behalf of Ms Haley's one year old daughter and her seven year old son, which describe how their lives have changed and will continue to be affected by the terrible loss of their mother.

38 All of the Victim Impact Statements speak eloquently of the impact Ms Haley's death has had on her family and loved ones. I have taken them into account in assessing the appropriate sentence to be passed in this case. No sentence I will impose on you can bring Ms Haley back, nor undo the damage and pain your offending has caused.

39 You are now 29 years old. You apparently have grown up in a close, supportive, and loving family. Your parents have been married for more than 30 years, and you have two older sisters.

40 In a letter dated 2 October 2018, your mother, Lynne Robertson, wrote that you were a placid child, always happy and easy to get along with. She noted that you and your sisters were raised to be close, thoughtful and family oriented. You did well in school, and Mrs Robertson describes you as well behaved and well-liked by your teachers and peers.

41 Upon finishing school, you undertook a pre-apprenticeship course. You then entered the refrigeration and air conditioning industry and worked long hours. You were able to save a deposit and buy a home for yourself and your then partner, who you met when you were 16. You separated around 2015, but continued to co-parent your two children in a cooperative way.

42 Your former employer, Marc Hinch, a refrigeration mechanic who met you over a decade ago, provided a written testimonial. Mr Hinch described you as a competent tradesperson with an excellent customer service demeanour. He found you to be trustworthy and hardworking. Mr Hinch said while your relationship with Ms Haley seemed happy in the beginning, he watched you change from being positive and confident, to appearing stressed and agitated.

43 I also received letters from your father, older sister and brother in law. These letters also describe your relationship with Ms Haley as happy in the beginning, but that it deteriorated soon after your daughter was born. Your sister, Rebecca Tame, refers to your behaviour changing and her belief that you felt alienated and without anyone to talk to. All of these letters describe your offending as out of character.

44 Section 5(2) of Sentencing Act 1991 ('the Act') sets out a series of factors to which a court must have regard in sentencing an offender.

45 The legislation does not state that any factor has dominance over another. Indeed, it is well understood that the weight and emphasis given to any one factor by a sentencing court will vary according to the facts and circumstances of each case.[1]

46 On 1 February 2018, Part 3 of the Sentencing Amendment (Sentencing Standards) Act 2017 ('the Amendment Act') introduced the standard sentencing scheme into the Act. Sections 5A and 5B of the Act set out the standard sentence provisions. As you committed the offence of murder on 9 March 2018, the scheme applies to the sentence I must pass.

47 While 5B(2)(a) of the Act requires the court to take the standard sentence into account as one of the factors relevant to sentencing, s 5B(3)(b) clarifies that this subsection 'is not intended to affect the approach to sentencing known as instinctive synthesis'. The common law requirement that a sentence be determined by a process of instinctive synthesis, considering the full range of possible sentencing factors, remains the correct approach where the standard sentencing scheme applies.[2]

48 Nothing in the legislation suggests the standard sentence assumes a dominant role in considering the sentence to be imposed. Rather, it is simply one of the relevant sentencing factors to which the Court must have regard.[3]

49 Pursuant to s 5(2)(a) of the Act, I must have regard to the maximum penalty, which for the offence of murder is life imprisonment.

50 Section 5(2)(ab) of the Act provides that a court must have regard to the standard sentence, if any, for the relevant offence.

If the Act that creates an offence, or prescribes the maximum penalty for an offence, specifies a period as the standard sentence for the offence, then -

(a) the offence is a standard sentence offence; and

(b) the period specified as the standard sentence for the offence is the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.

52 Section 3(2)(b) of the Crimes Act 1958 provides the standard sentence for the offence of murder is 25 years' imprisonment.

53 It is clear the standard sentence for an offence should be viewed as a 'legislative guidepost' as to the middle range of objective seriousness of that offence.[4] As the Explanatory Memorandum to the Amendment Act states:

The standard sentence is not the starting point for sentencing, nor does it require two-stage sentencing. Rather, the standard sentence is intended to provide the courts with a legislative guidepost of objective offence seriousness that is compatible with the instinctive synthesis approach to sentencing, which has been affirmed as part of the common law in Victoria.[5]

54 Sections 5A(1)(b) and 5A(3) of the Act can be seen to be directed at giving meaningful content to this legislative guidepost.[6]

55 As noted, s 5A(1)(b) of the Act dictates that the standard sentence is the sentence for an offence in the 'middle of the range of seriousness', taking into account 'only the objective factors affecting the relative seriousness' of the offence. Section 5A(3) of the Act further provides:

For the purposes of subsection (1)(b), objective factors affecting the relative seriousness of an offence are to be determined―

(a) without reference to matters personal to a particular offender or class of offenders; and

(b) wholly by reference to the nature of the offending.

56 In light of the clearly expressed language of s 5A(3) of the Act, when assessing the objective factors affecting the relative seriousness of the offence, a sentencing court is prevented from taking into account matters personal to the offender, and must determine it wholly by reference to the nature of the offending.

57 In R v Brown, I spent some time analysing the meaning of 'matters personal to a particular offender' and 'the nature of the offending'.[7] In that matter, it was unnecessary to determine certain complexities as to whether matters personal to an offender, such as mental illness, provocation, motivation or duress, may have such causal connection to the offending that they are fundamental qualities of the offence. I concluded:

In my view, the correct approach to take under s 5A(3) of the Act is for a sentencing judge to make an assessment of what factors causally affect the relative seriousness of the offence, complying with the prescribed language and structure of the legislation.[8]

58 In this case, I similarly conclude that no matter personal to you is so causally connected to your offending such as to become an objective factor affecting the relative seriousness of the offence.

59 It is significant that you lost control and murdered Ms Haley when you became enraged at the breakdown of your relationship and her decision to leave. It is also notable this occurred in the context of you exhibiting increasingly jealous and possessive behaviour over a number of months. However, I do not find these factors have such a causal connection to the offending that they may be viewed as fundamental qualities of the offence, to be considered in an assessment of its objective seriousness. Rather, these features are to be properly taken into account in assessing your level of culpability and responsibility, pursuant to s 5(2)(d) of the Act, and the appropriate weight to be given to sentencing purposes.

60 Finally, it has been made clear that the standard sentence scheme does not require or permit the Court to engage in a 'two-step approach', involving an initial 'classification' of the seriousness of the offending at issue.[9] Yet it is also to be observed that the 'nature and gravity of the offence' is a further sentencing factor pursuant to s 5(2)(c) of the Act, and the assessment of the gravity of an offence continues to be an essential element of the sentencing process.[10] As I determined in R v Brown, when sentencing for a standard sentence offence:

The standard sentence scheme viewed as a whole indicates that ... the court must follow the requirements of ss 5A(1)(b) and 5A(3) in making an assessment of the seriousness of the offence in issue.[11]

61 Murder is the most serious offence brought before the courts. The following discussion concerns how your offending fits within a wider range of offences of this kind. In making conclusions about this matter, I do not seek to diminish the tragedy of Ms Haley's death.

62 The prosecution submitted that your offending was objectively grave and should be regarded as being above the mid-range of seriousness. In support of this submission, the prosecution pointed to the following features:

• that it was a brutal, physical and sustained attack, involving the use of a heavy weapon and repeated severe blows, in contrast to an angry, single blow reaction;
• that Ms Haley was vulnerable, physically smaller, unsuspecting, and defenceless, sitting in her son's bedroom at the time of your assault;
• that the attack was in her own home, constituting a gross breach of trust;
• that you had gone to the lounge room where you picked up the iron bar, and returned to the bedroom and launched your attack on Ms Haley;
• that your infant daughter asleep in the next room; and
• that you did not assist Ms Haley or call an ambulance after your attack.

63 While many of these factors were properly conceded, it was submitted on your behalf that your offending should be characterised at the middle range of seriousness. It was conceded that your offending was very serious, particularly noting it occurred in a domestic setting and involved a breach of trust. It was nevertheless argued that your relationship with Ms Haley was healthy and loving for a significant period, and that there had been no previous episodes of violence or any previous police involvement in the relationship. It was argued that your relationship was not defined by a history of violence, as is too often the case in matters before this Court.

64 Further, it was submitted on your behalf that there was little or no premeditation or planning to your assault. It was argued that I should assess your offending as spontaneous and in the context of your disordered or heightened emotional state.

65 I do not accept a complete lack premeditation in your killing of Ms Haley. Whilst I accept that you committed the offence in a highly emotional and angry state, you did leave the bedroom where you were arguing, went to another room where you took up the iron bar, and then returned to the bedroom. In my opinion, when you took possession of the bar and returned to the bedroom, you had decided to attack Ms Haley. Nonetheless, I accept that the period of premeditation was relatively short, perhaps less than a minute. These circumstances can be contrasted with a situation where a murder has been planned over a lengthy period of time.

66 The savagery of your assault on Ms Haley is a very significant feature of your offending. Your attack was terrible and grossly violent, directed predominantly at Ms Haley's face and head. It was not fleeting, and it involved multiple, deliberate blows of severe force against a slightly built and defenceless young woman. It is clear to me that you attacked your partner in uncontrollable rage, and it was your intention to kill her. It is an aggravating factor that Ms Haley was your intimate partner, and someone you claimed to love and described as being, 'your world'.

67 Taking these objective factors into account, I assess your offending as a grave example of the offence of murder, above the middle of the range of seriousness. My assessment in this regard also addresses the requirement in s 5(2)(c) of the Act, that a court must have regard the nature and gravity of the offence.

68 Pursuant to s 5(2)(d) of the Act, a court must have regard to an offender's culpability and degree of responsibility.

69 It was submitted on your behalf that in all the circumstances your culpability should not be considered high. It was accepted that in the months before you killed Ms Haley, you demonstrated extremely jealous and controlling behaviour, and that your offending was motivated by a desire for possessive control over her. However, it was argued on your behalf, that this should be assessed in the light of your increasing desperation within a relationship that had been for the most part, healthy and loving, and that there was no past history of threats, intimidation, or violence.

70 Soon after Ms Haley took a job at the tavern, your earlier easy-going character appears to have changed. You became preoccupied with the belief that Ms Haley was being unfaithful, persistently questioned her activities, and placed her under forms of surveillance. You interrogated her social media and set up fake accounts, attended her workplace to watch her, and on one occasion, confronted her there.

71 In response to the submission as to your level of culpability, it was put by the prosecution that there were features of your offending and your reaction to it, that I have already discussed, that should result in a conclusion that your moral culpability is increased to a higher level. Whilst it was accepted that there was nothing to indicate a history of violence or police involvement associated with your relationship, there were other matters that increased your moral culpability. It was pointed out that none of the Verdins[12] principles were enlivened that may have acted to reduce your moral culpability.

72 The Court has not been provided with any expert evidence to indicate you suffered from compromised mental health or psychological issues, or explain the apparent change in your behaviour. I am left with no expert evidence to help explain why you experienced a sudden outburst of uncontrolled anger and extreme physical violence.

73 It is clear that your offending occurred in a context of you becoming intensely jealous, possessive and controlling of your domestic partner over the period of months prior to her death. Your attack on Ms Haley was a grievously inappropriate and a wildly disproportionate response to the situation you perceived. For these reasons, I find your culpability and degree of responsibility to be within the higher range. I note that these features of jealousy, the need to possess, and uncontrollable rage associated with extreme violence emerge too frequently in cases of the murder of an intimate female partner. These features heighten your moral culpability. Offending of this kind must be clearly denounced on behalf of the community, as I will discuss below.

74 It was submitted on your behalf your early plea of guilty mitigates your offending, as it has utilitarian value and has facilitated the course of justice. It was submitted these factors should result in a discernible discount in the sentence to be imposed. It was emphasised that you confessed immediately after your offending, and you have taken responsibility for your actions and cooperated with the authorities. It is submitted that these features demonstrate remorse and contrition.

75 I accept that you admitted to killing Ms Haley very soon after you had done so, to your mother and then, with reasonable detail as to the circumstances, in your interview with police. It is to be acknowledged that you were the only witness to the events that happened, and to that end your admissions have been of significant assistance to the police investigation. However, I also note that your plea of guilty was in the context of what would likely have been a strong prosecution case.

76 Nonetheless, you did not contest the committal hearing in this matter, and you pleaded guilty before this Court at the earliest opportunity. It is appropriate that you receive the full benefit for that early plea. I am satisfied that your approach to these proceedings has facilitated the course of justice, and importantly, has relieved Ms Haley's family and friends from having to give evidence and enduring the trauma of a contested trial.

77 Pursuant to s 5(2)(b) of the Act, a court must have regard to current sentencing practices when sentencing an offender. However, pursuant to s 5B(2)(b), when considering a standard sentence offence, a court may only consider previous sentences where the relevant offence was subject to the standard sentence scheme.

78 The plain language of s 5B(2)(b) of the Act expresses Parliament's clear intent to alter the scope of s 5(2)(b) when sentencing for a standard sentence offence. The Explanatory Memorandum to the Amending Act further indicates 'courts sentencing offenders for standard sentence offences should start from a "clean slate" with respect to current sentencing practices'.[13]

79 Currently, R v Brown[14] is the only other case to have applied the standard sentence scheme for the offence of murder. It is therefore too early to conclude that any meaningful sentencing practices have yet emerged. Nevertheless, I have noted the circumstances and the sentence that was passed in that matter.

80 This does not, however, preclude the sentencing court from having regard to sentencing principles established in previous non-standard sentence cases. In the course of the plea hearing in this matter I was provided with a number of past sentencing decisions in cases of murder. I have utilised a number of the principles and observations in those cases with respect to principles to be applied in the assessment of the appropriate sentence in your case, particularly regarding sentencing purposes.

General deterrence, denunciation and punishment

81 There is no question that considerations of general deterrence, denunciation, and just punishment are primary sentencing purposes in a case of murder of an intimate partner in a domestic setting. It was accepted that these considerations must be given significant weight in the assessment of the appropriate sentence in your case.

82 The domestic setting in which you committed your offending cannot be ignored. It is well accepted that cases of murder involving family violence strike hard at the integrity of the family. The violent murder of domestic partners has a lifelong traumatic impact on the people involved, in particular, innocent children who are catapulted into the break-up of their families and the misery of often being deprived of both parents as a consequence.

83 The response from the courts must be to strongly denounce this type of conduct as completely unacceptable within our community. In Felicite v R, the Victorian Court of Appeal firmly and clearly stated:

The taking of a domestic partner's life undermines the foundations of personal relationships and family trust upon which our society rests. The sentence must reflect both the sanctity of human life and society's abhorrence of violence towards vulnerable and trusting partners who could legitimately have expected the offender to be a protector from, not the perpetrator of violent abuse. An outburst of homicidal rage in such contexts is totally unacceptable. The community expectation is that the punishment assigned to such conduct must be condign so as to denounce in the strongest terms the abhorrent nature of domestic murder and to deter others from taking a similar course. Accordingly, the principles of general deterrence, denunciation and just punishment will ordinarily be given primacy in sentencing for the murder of a partner in a domestic setting even when there are present, circumstances of provocation or great emotional stress.[15]

84 Further, in R v Davey, Osborn J remarked that:

It is necessary that a continuing message be sent to persons in emotional relationships that the resort to violence against a partner will not be accepted either by the community or the Court. The sentences of this Court must reflect both the sanctity of human life and the total unacceptability of weak and vicious behaviour towards those said to be the objects of love.[16]

85 It follows that the sentencing purposes of general deterrence, denunciation and just punishment are all factors which must be given significant weight in the assessment of the appropriate sentence to be imposed in your case.

Specific deterrence, rehabilitation and protection of the community

86 It was submitted on your behalf that you have no prior convictions and have until these events, enjoyed good character. You have no history of resorting to violence, have had a strong work ethic, enjoy the support of your family, friends, and employer, and your prospects of rehabilitation are good. It was suggested that these factors should lead to a conclusion that specific deterrence, and protection of the community should not become significant sentencing considerations in your case.

87 The prosecution conceded that your lack of prior convictions, and no previous violence against Ms Haley or others, should lead to the conclusion that specific deterrence and protection of the community assume lesser significance. Further, it was accepted that you have good prospects of rehabilitation.

88 Taking all the circumstances into account, it was submitted on your behalf that the head sentence to be imposed should fall below the standard sentence for murder, with a shorter than usual non-parole period to foster your reformation.

89 Given the factors discussed, I have concluded that the objective seriousness of your offending falls above the middle range of seriousness as described by s 5A(1)(b) of the Act_._ Your killing of Ms Haley was a grave example of the offence of murder. I emphasise I have considered the standard sentence as one of the factors in my instinctive synthesis, but it has not assumed a dominant or determinative significance.

90 Whilst I have concluded that you committed an extremely serious offence, and have a high level of culpability for your actions, it appears that the extreme violence you suddenly inflicted on an unsuspecting Ms Haley was out of character. There has been no suggestion that your relationship with Ms Haley had been afflicted by previous physical violence, and no family violence orders existed at the time of her death.

91 You provided reasonable assistance by way of admissions during the police investigation and pleaded guilty to the murder of Ms Haley at the earliest opportunity. In my view, these are significant matters that mitigate your offending. Furthermore, I am satisfied from the material provided to me that you are remorseful for having murdered your partner; the mother of your child. With these factors in mind, I accept there are positive prospects for your rehabilitation. Furthermore, considerations of specific deterrence, and protection of the public are factors that weigh less heavily in the sentencing synthesis.

92 Taking into account all relevant factors, the sentence I will impose is a period of imprisonment for 24 years.

93 Section 11A of the Act requires me to fix a non-parole period of at least 70 per cent of the head sentence imposed upon you, unless it is in the interests of justice not to do so. In your case, having assessed the evidence and submissions advanced by both parties, there is nothing in the interests of justice that persuades me the non-parole period should be below 70 per cent of the figure of 24 years. In all the circumstances, the period you will serve before being eligible for parole will be 19 years.

94 In setting out my reasons for imposing the sentence, s 5B(5) of the Act provides I must 'refer to the standard sentence for the offence, and explain how the sentence imposed by it relates to that standard sentence'.

95 The task required does not suggest the need to attribute 'particular mathematical value' to matters significant to the formation of a sentence.[17] It does, however, require that I identify 'the facts, matters and circumstances' which bear upon my judgment as to the appropriate sentence.[18] I have done this in some detail above.

96 The sentence I have imposed is lower than the standard sentence for the offence of murder. Having identified and considered what I consider to be the relevant factors in assessing the appropriate sentence, particularly including my assessment as to the very serious nature of the offending and your degree of culpability, and the effect of mitigating factors, I have formed the conclusion that this figure is appropriate.

97 I have imposed upon you a less severe sentence than I otherwise would have imposed, because you have pleaded guilty to the offence. I further declare that but for your plea of guilty to the charge of murder, I would have sentenced you to 29 years' imprisonment with a non-parole period of 24 years.

98 I declare you have served 361 days of pre-sentence detention, not including this day.

[1] See e.g. Wong v R [2001] HCA 64; (2001) 207 CLR 584, 612-613; Markarian v R [2005] HCA 25; (2005) 228 CLR 357, 374-375; Muldrock v R [2011] HCA 39; (2011) 244 CLR 120, 128-129.

[2] See R v Brown [2018] VSC 742 [58]-[64].

[4] R v Brown [2018] VSC 742 [59]-[64].

[5] Explanatory Memorandum, Sentencing Amendment (Sentencing Standards) Bill 2017, 6-7. See further Sentencing Advisory Council, Sentencing Guidance in Victoria Report, June 2016, 168 [7.64].

[6] R v Brown [2018] VSC 742 [79], [84] referencing Muldrock v R [2011] HCA 39; (2011) 244 CLR 120, 132 [27].

[7] [2018] VSC 742 [89]-[98].

[8] Ibid [99], see further [94]-[98] referencing Williams v R [2012] NSWCCA 172 [42]-[43]; Yun v R [2017] NSWCCA 317 [40]; Subramaniam v R [2013] NSWCCA 159 [57]; R v Dean [2013] NSWSC 1027 [49].

[9] R v Brown [2018] VSC 742 [84].

[10] R v Brown [2018] VSC 742 [86]-[87], referencing Williams v R [2012] NSWCCA 172 [35], citing Muldrock v R [2011] HCA 39; (2011) 244 CLR 120, 132 [27] and Zreika v R [2012] NSWCCA 44 [46].

[11] R v Brown [2018] VSC 742 [87].

[12] R v Verdins [2007] VSCA 102; (2007) 16 VR 269.

[13] Explanatory Memorandum, Sentencing Amendment (Sentencing Standards) Bill 2017, 6.

[14] [2018] VSC 742.

[15] [2011] VSCA 274; (2011) 37 VR 329, 333 [20].

[16] R v Davey [2006] VSC 173 [25].

[17] Muldrock v R [2011] HCA 39; (2011) 244 CLR 120, 132 [29]; see also R v Brown [2018] VSC 742 [69]-[73].