Supreme Court New South Wales Medium Neutral Citation: R v McHenry [2023] NSWSC 856 Hearing dates: 3 April 2023, Written submissions closed 24 May 2023 Date of orders: 21 July 2023 Decision date: 21 July 2023 Jurisdiction: Common Law Before: Wright J Decision: The offender is convicted of the murder of Danielle Easey and of dishonestly obtaining financial advantage by deception and is sentenced for that offending to imprisonment for a non-parole period of 15 years and 6 months commencing on 19 September 2019 and expiring on 18 March 2035 and a balance of term of 7 years expiring on 18 March 2042. Catchwords: CRIMINAL LAW – sentence – murder – offender found guilty at trial – findings of fact as to what occurred – where, on the evidence, it is unknown what role the offender played in murder – disposal of the body as relevant to objective seriousness – related offence of dishonestly obtaining a financial advantage by deception – good prospects of rehabilitation – consideration of victim impact statements Legislation Cited: Crimes Act 1900 (NSW), ss 18(1)(a), 19A, 21(1), 192E(1)(b) Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(eb), 21A(3)(d), 21A(3)(e), 21A(3)(g), 21A(3)(h), 30E, 54A Cases Cited: Aslan v R [2014] NSWCCA 114 Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22 Martinez v The Queen [2022] NSWCCA 12 R v Edwards (No 3) [2019] NSWSC 1815 R v Halloun [2014] NSWSWC 1705 R v Hill (1981) 3 A Crim R 397 The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 Category: Principal judgment Parties: Rex (Crown) Carol Marie McHenry (Offender) Representation: Counsel: J Stanhope (Crown) A Evers (Offender) Solicitors: Office of the Director of Public Prosecutions (Crown) Legal Aid (Offender) File Number(s): 2019/00293779 Publication restriction: Publication or broadcasting of information tending to identify any of the persons who were children at the time of the offending referred to in the evidence in these proceedings is prohibited under s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) Judgment Introduction 1. On 17 August 2019, Ms Danielle Easey, a 30 year old woman, was killed in the offender's house in Narara, on the New South Wales Central Coast. Her death was the result of blunt force injuries to the head and stab wounds penetrating the lungs. 2. It must be acknowledged that Ms Easey's death was a tragedy, a very significant human tragedy, for her family, and all the others affected by this sad matter. These remarks, of necessity, must focus on the circumstances of the deceased's death, the circumstances in which it occurred and what happened subsequently. The remarks must also focus on the offender's circumstances. This is not, however, to diminish the importance or value of Ms Easey's life or the significance of her death and I shall return to those matters later in these remarks. 3. On 12 December 2022, the jury found the offender, Carol McHenry, guilty of the murder of Ms Easey. Ms McHenry now stands to be sentenced for that offence and a related offence of dishonestly obtaining a financial advantage by deception. [1] 4. The maximum sentence for murder is life imprisonment, and there is a standard non-parole period of 20 years imprisonment. [2] The Crown does not contend that a life sentence should be imposed, and I am of the view that such a sentence is not warranted in the present case. 5. The related offence of dishonestly obtaining a financial advantage by deception carries a maximum penalty of imprisonment for 10 years. There is no standard non-parole period in respect of this offence of dishonesty. 6. I have taken the maximum penalties for the offences and the standard non-parole period for murder into account as legislative guideposts in determining the appropriate sentence in all the circumstances. Purposes of sentencing 1. In identifying and assessing the many factors relevant to sentence, I have also had regard to the purposes of sentencing stated in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Procedure Act), which are: "(a) To ensure that the offender is adequately punished for the offence, (b) To prevent crime by deterring the offender and other persons from committing similar offences, (c) To protect the community from the offender, (d) To promote the rehabilitation of the offender, (e) To make the offender accountable for his or her actions, (f) To denounce the conduct of the offender, (g) To recognise the harm done to the victim of the crime and the community." The facts 1. In order to determine the appropriate sentence, one of my tasks is to make findings of fact as to what occurred. [3] These findings must be consistent with the jury's verdict but where findings are not necessarily implicit in the jury's verdict, it is proper for me to make findings and to take them into account provided they do not conflict with the jury's verdict. [4] The facts I find against the offender must be found beyond reasonable doubt but the facts found in favour of the offender need only be found on the balance of probabilities. [5] 2. My findings have been based on a consideration of all of the evidence as a whole. More specifically, I have accepted the evidence of Ms Collier, the deceased's mother, and the evidence of the officer in charge as well as the evidence of the deceased's father, brother, mother's de facto partner, Ms Morgan and Mr Howe, which was led through the officer in charge. I was satisfied that substantially all of this evidence was both credible and reliable. I also accepted, in large measure, the evidence of Mr Jacob Collins and Ms Bronte Daly. As to other witnesses, I shall refer to my assessment of their evidence later in these remarks, where relevant. In addition, I have relied particularly upon the uncontested forensic evidence, CCTV footage and still images and other objective evidence concerning events and communications during this period, including recordings of telephone conversations, various forms of electronic messaging and other data derived from mobile telephone use. On these bases, my findings as to what occurred are as follows. Events prior to 17 August 2019 1. Prior to August 2019, the deceased, Ms Danielle Easey who was often called Del, was using the drug methylamphetamine, or "ice", and she was also associating with people involved in crime. While she was in hospital earlier that year, she told her father that she had been raped because she had stolen a book and a safe key. Her father pleaded with her to return the book and the key to whoever owned it, but she said she was not giving them back. In addition, she told her father that she believed there was a bounty of $25,000 on her head which was related to the book and key she had stolen and that she would have to go into hiding. Later, Ms Easey told her father that she had made up some aspects of the story about being raped. During the course of the police investigation, no safe or key or book was recovered or found to be connected with Ms Easey. Nonetheless, Ms Easey told her father, that, at the time, she was hanging around with one of the big people at the top of the trade in drugs and she was moving up the ranks of the drug trade, which led to other people being jealous of her. Ms Easey also told her brother about there being a bounty on her head. 2. At some time prior to about 10 August 2019 and as a result of her partner Mr Ben Todd being arrested and taken into custody, Ms Easey had to leave the house in which they had been living at Salt Ash. 3. On about 10 August 2019, Ms Easey told her mother's de facto partner, Mr Douglas, that she was going with a girlfriend to see someone in gaol "down south" in relation to frauds Ms Easey had been involved with. Mr Douglas noted that Ms Easey took her laptop with her everywhere, like a handbag. 4. On about 11 August 2019, Ms Easey contacted Mr Howe, whom she had met some time before, and told him she had been robbed, as she was doing credit card frauds and someone had stolen the credit cards. Mr Howe met up with Ms Easey and they tried to obtain ice on that day. 5. On 13 August 2019, Mr Howe picked up Ms Easey from a house in Lake Macquarie and a male helped her with her luggage, which included three bags, containing clothes and other things, and three laptops. That evening, Mr Howe and the deceased checked in to The Oaks Resort at The Entrance. 6. On 14 August 2019, the deceased told Mr Howe that she was required to report to Toronto Police station to comply with her bail conditions. Mr Howe and Ms Easey picked up Ms Chantelle Morgan, a friend of the deceased, from a house in Budgewoi and he then dropped Ms Easey outside the police station and he went with Ms Morgan to the shopping centre. Later, Ms Easey asked Mr Howe to collect her from the Iron Horse Hotel in Cardiff. In the early afternoon, Mr Howe and Ms Morgan drove to Cardiff and Ms Morgan went into the hotel and came back to the car with Ms Easey. 7. The offender, Ms Carol McHenry, who was also known as Caz Dawson and was also an ice user, had been a friend of Ms Easey since their school days. In August 2019, Ms McHenry had been renting a house in Narara for some time and her boyfriend, Mr Luke Wallace, was in gaol at the South Coast Correctional Centre, Nowra. 8. At about 11:30 pm on 14 August 2019, Ms McHenry and Ms Morgan were recorded on CCTV entering The Oaks Resort. They spent the night with Ms Easey and Mr Howe in the hotel, smoking ice and talking. 9. Early in the morning on 15 August 2019, the three women left The Oaks Resort, saying to Mr Howe they were going to visit Ms McHenry's boyfriend in gaol. The deceased and the offender travelled in the offender's white Commodore to her house in Narara. While there, police attended the offender's house and served her with some documentation. This occurred while Ms Easey was on the telephone to Mr Todd, who was in custody. At some time during that day, the offender and Ms Easey dropped Ms Morgan off at her mother's house. The offender and the deceased also travelled to the vicinity of Mayfield together that day. 10. In August 2019, Mr Dilosa, who had previously been in a relationship with Ms McHenry, was living in a converted flat, part of the former chicken factory at Pendlebury Rd, Cardiff. He had use of a black Misubishi Delica van. There was a parking area outside the factory area and security fencing, a gate and a driveway next to the flat occupied by Mr Dilosa, all of which were covered by CCTV security cameras. Mr Dilosa allowed his friends, Jacob Collins and Bronte Daly, to stay at his flat from time to time when they needed somewhere to stay. During his relationship with Ms McHenry, Mr Dilosa had lived with her and her children at Narara for some months. 11. Late at night on 15 August 2019, Ms McHenry and Ms Easey arrived at Mr Dilosa's flat and Mr Dilosa met them at the gate. This was the first time Mr Dilosa had met Ms Easey. 12. On 16 August 2019, at about 1:00 am, Mr Dilosa, Ms McHenry and Ms Easey left in the white Commodore and went to Wests Cardiff Club, which was a short distance from where Mr Dilosa lived. They left the club at about 3 am. Shortly after, Mr Collins, Ms Daly, Mr Dilosa, Ms McHenry and Ms Easey were recorded on the CCTV arriving at the old chicken factory and entering Mr Dilosa's flat. In the flat, they consumed ice and talked. During this talk, there was discussion of Ms McHenry driving to visit her boyfriend in gaol. Ms Easey spoke about screwing people over and making amends and about being a computer hacker. Ms Easey also spoke about telephones, watches and jewellery that she sold to get money for drugs and said that she used credit card numbers to obtain money or other property fraudulently. Ms Easey mentioned people being arrested in relation to child pornography material on a laptop, police corruption and paedophile rings. Although Ms Easey may have been "big noting" herself, this conversation led to Mr Dilosa becoming irritated and Ms Daly perceived that there was tension or an argument between Mr Dilosa and Ms McHenry. Ms McHenry said something like: "That's enough. We are leaving". 13. At about 6:00 am on 16 August 2019, the offender and the deceased left the old chicken factory in Ms McHenry's white Commodore. They travelled from Cardiff to Ms McHenry's house at Narara. 14. At 7:39 am on 16 August 2019, Ms McHenry composed, but apparently did not send, a text message to Mr Dilosa saying "Call me important". Shortly after, she telephoned him and the call lasted almost seven minutes. Ms McHenry organised for a transfer of $20 to be collected by Mr Dilosa from an automatic teller machine and there was a further 3 minute and 35 second call from Ms McHenry to Mr Dilosa at 7:49 am. On the bank records, the $20 transfer was accompanied by the description "fuel". The CCTV footage indicated that Mr Dilosa left Cardiff in the Delica van at about 8:15 am. There was another telephone call from Ms McHenry to Mr Dilosa of 5 minutes and 13 seconds at 8:27 am. 15. In her recorded interview with police, Ms McHenry's version of what occurred on the morning of 16 August 2019 was that Mr Dilosa went down to Ms McHenry's home in Narara to apologise, after she had spoken to him on the telephone. Mr Dilosa gave a different account in his sworn evidence. On his version, Ms McHenry telephoned him possibly up to three times saying "Jay, get down here, I'm going to lose my shit", and explained that she had gone through Ms Easey's handbag and had found a licence belonging to Ms McHenry's boyfriend, Luke Wallace, and a bank account statement or details for Ms McHenry's son. Mr Dilosa said that he told her that he had no fuel for the Delica van and Ms McHenry "offered to cardless cash [him] … $20 to put in the van to get down there for fuel". He also said that he then drove to Narara and parked in a cul de sac near Ms McHenry's house to avoid his van being seen at her house by her former partner or associates of her boyfriend. 16. Mr Dilosa's evidence in this regard was not effectively challenged in cross examination and was supported to some extent by the objective evidence. Furthermore, given the tension between Mr Dilosa and Ms McHenry at about the time she left Cardiff with Ms Easey, the fact that, at that time, there was no suggestion that Mr Dilosa would go to Narara with them or that he would go later that day and the lack of any other reasonable explanation for why Mr Dilosa would go to Narara or for why Ms McHenry would pay for fuel for Mr Dilosa to go there, I find that Ms McHenry demanded, or at least requested, that Mr Dilosa come to Narara because Ms McHenry was upset with Ms Easey on account of what she had discovered in Ms Easey's handbag and what use Ms Easey might make of that material. I also find that Mr Dilosa drove to Narara and parked in a cul de sac near Ms McHenry's house and went into the house. There, Mr Dilosa observed a red mark on Ms Easey's face and heard Ms Easey say that she was a kleptomaniac who could not help herself but take things. These findings were also supported by Ms McHenry's requests to Mr Ash Hoye, who was an acquaintance of Ms McHenry, for information concerning Ms Easey and the messages Ms McHenry sent later to Ms Morgan about Ms Easey stealing from Ms McHenry, which will be referred to later in these remarks. I do not accept Ms McHenry's account that Mr Dilosa went to Narara on that occasion in order to apologise to her. 17. After Mr Dilosa arrived at Narara, things settled down and he, Ms McHenry and Ms Easey spent the rest of 16 August 2019 together attempting to obtain ice and, when they could get it taking ice, and going to pubs and gambling on poker machines. This included, at about 10:30 pm, Mr Dilosa, Ms McHenry and Ms Easey travelling in the white Commodore to the Caltex Service Station at Charmhaven where the two women were recorded on CCTV in the service station shop. Based on looking at the CCTV footage from the service station, I could not form a view, one way or the other, whether the two women were showing signs of hostility or friendliness towards each other at that time. The three of them then went to the Northlakes Tavern at Charmhaven where they gambled on the poker machines for some time. The events of 17 August 2019 1. At about 12:05 am on 17 August 2019, Ms McHenry sent a Facebook message (using the name Caz Dawson) to a Mr Ash Hoye, who was an acquaintance of Ms McHenry. That message stated: "I'm OK. As good as I can get. they moved Luke to nowra and now moving him to junee soon. But I need to catch up and have a chat one on one about a few things that's popped up …. And do you know a chick called Danieele eeasy". 1. At 2:49 am, Ms McHenry sent a further message to Mr Hoye: "I got told some stuff regarding a few things n her name pop up but need to talk in person". 1. As noted above, these messages confirmed my finding that there was some interaction between Ms Easey and Ms McHenry on the morning of 16 August 2019 which upset or concerned Ms McHenry and led to Mr Dilosa being summoned to Narara to assist her and to her making discrete enquiries about Ms Easey and her activities. 2. In the early hours of 17 August 2019, the white Commodore was captured on the CCTV at the former chicken factory. Mr Dilosa went into his flat at about 12:35 am and left again, apparently carrying a pillow or a large bag, driving off in the white Commodore at about 1:35 am. 3. At around 4:05 am on 17 August 2019, the white Commodore was filled with petrol at the Metro Service Station at Doyalson but Mr Dilosa and Ms McHenry could not pay for it and as a result Mr Dilosa left his telephone there as security for the debt and the operator took a photograph of his licence and a note of his telephone number at that time. 4. The mobile automatic number plate recognition records and mobile telephone cell tower location data confirm the other evidence establishing that Mr Dilosa, Ms McHenry and Ms Easey travelled in the white Commodore from the Newcastle/Central Coast area to Nowra between about 4:00 am and 8:45 am on 17 August 2019. At Nowra, Ms McHenry visited Luke Wallace at South Coast Correctional Centre. By about 11:35 am, the three travellers were on their return journey north from Nowra. During that journey, Ms Easey received two telephone calls from Mr Todd at 12.24 pm and 12.37 pm. In addition, from about 1:07 pm, Ms Morgan and Ms Easey exchanged Facebook messages about obtaining ice and other matters. This exchange included a message from Ms Easey to Ms Morgan: "Do you have Caz id?" This supported the inference that Ms Easey thought Ms McHenry's identification documentation was missing but it is not clear whether Ms McHenry knew about this or suspected that her identification documentation was missing. 5. Shortly before 4:00 pm on 17 August 2019, each of the telephones of Mr Dilosa, Ms McHenry and Ms Easey were in the vicinity of the offender's house in Narara and remained there for some hours. At 3:47 pm, Ms Easey's telephone was used to call the customer support and telephone banking service of National Australia Bank, with whom Ms Easey had an account, and a minute later there was an SMS message sent from that telephone to an Optus number. These were the last times that Ms Easey's telephone was used on 17 August 2019. Accordingly, I was satisfied that at about 4 pm, each of Ms McHenry, Ms Easey and Mr Dilosa were at or near Ms McHenry's house at Narara and Ms Easey was still alive. 6. There was, in effect, no dispute that Ms Easey was killed between about 4:00 pm and 11:00 pm on 17 August 2019 when lying face down on the bed in the main bedroom of the offender's Narara house when the offender was in the house. Ms Easey suffered multiple severe blows to the head with a blunt weapon, such as a hammer, causing lacerations and fractures to a number of areas of her skull and a fracture of her right zygomatic arch. In addition, Ms Easey was stabbed with a sharp weapon, such as a knife, once in the head, four times in the back and twice in the right arm. Two of the wounds to the upper back entered the pleural cavity, causing damage to the lungs. I accept Dr Cala's opinion that the blows to the head caused very severe brain injury and, if this did not lead to death straightaway, Ms Easey would have become unconscious very rapidly and would have died within 15 to 30 minutes if adequate medical treatment was not obtained. In addition, I accept Dr Cala's opinion that, although the head injuries by themselves would have been fatal without treatment, the sharp force injuries or stab wounds were inflicted during life and were also a cause of death. Thus, the cause of death was the combined effect of the sharp and blunt force injuries. Moreover, the head injuries were inflicted first and the stab wounds to the lungs later, because of the relative lack of bleeding around the stab wounds in comparison to the head wounds. There were also severe blunt force injuries to the deceased's left hand which could have been caused by one blow with a weapon, such as a hammer. 7. Ms McHenry and Mr Dilosa left the house some time before 11:00 pm on 17 August 2019, and at about 11:05 pm, Ms McHenry's white Commodore was captured on CCTV at the Caltex Service Station at Wyong Northbound and Mr Dilosa was seen to go into the shop, buy two cans of drink and then return to the car, before they drove off. Ms McHenry and Mr Dilosa appeared to be the only persons in the car. Events after the murder on 17 August 2019 1. The evidence of Mr Princehorn, Ms Burnes, Mr Adams, Ms Beveridge and Mr Lynch concerning what occurred after the murder was not entirely satisfactory. In particular, each of those witnesses was, in my view, unreliable at least in some respects because of various matters such as: involvement or potential involvement in criminal activities; demonstrated untruthfulness; being intoxicated with alcohol or drugs at the time the relevant events occurred; animosity towards Ms McHenry; or, some combination of such factors. I formed the view that Mr Collins and Ms Daly tended to be more credible witnesses than the others but their evidence concerning what occurred may also not have been entirely accurate, because of their consumption of drugs and the circumstances of their involvement in the events. 2. Notwithstanding the difficulties with the evidence, it was sufficient in my view to establish, generally where there was common ground between the witnesses or objective supporting evidence, or both, that what relevantly occurred after 17 August 2019 was as follows. I shall deal with the particular evidence of admissions said to have been made after the murder by Ms McHenry and Mr Dilosa later in these remarks. 3. After leaving the Caltex Wyong Northbound Service Station late on 17 August 2019 and in the early hours of 18 August 2019, Mr Dilosa and Ms McHenry went to the converted garage in Cardiff where Mr Dilosa's friend, Mr Jeremy Princehorn, lived. Mr Princehorn's friend, Ms Vanessa Burnes, was also present at Mr Princehorn's garage, as well as Mr Collins and Ms Daly. There was a fire in a drum-like construction outside the garage and Mr Dilosa put his knife, which he usually had with him, and possibly other items into the fire. He said he was going to miss that knife. The knife was subsequently retrieved from the fire and cut up on the bench in the garage. While standing around the fire, Mr Dilosa said things which hinted or indicated that something bad had happened. 4. On 18 August 2019, during the day, Ms McHenry and Mr Dilosa spent time together, coming and going from Mr Dilosa's flat at the old chicken factory. Later in the afternoon, after Ms McHenry had dropped off the keys to Ms Burnes's son's motorbike to Ms Burnes at John Hunter Hospital, where her son was being treated after a motorbike accident, Ms McHenry, her young son, Mr Dilosa and Mr Princehorn drove in the white Commodore to Ms McHenry's house at Narara. At the Narara house, Mr Dilosa took Mr Princehorn into the main bedroom. Mr Princehorn saw Ms Easey's body on the bed but he left the room because he was sickened by what he saw. Mr Dilosa put the body in a protective suit, wrapped it in layers of a doona and other materials obtained at Ms McHenry's house, and then used tape, which had originally come from Mr Princehorn's, to secure the plastic on the outside of the bundle. The body was then placed in a long, free-standing kitchen pantry cupboard, which Ms McHenry had emptied and from which the shelves had been removed. Mr Dilosa taped the cupboard shut. The cupboard containing the body was left at the Narara house at that time. Ms McHenry, her child, Mr Dilosa and Mr Princehorn then left Narara to return to Cardiff in the white Commodore. 5. At about 1:00 am on 19 August 2019, Ms McHenry, her child and Mr Dilosa were captured on the CCTV arriving at the old chicken factory in the white Commodore. Between about 1:45 am and 2:00 am, various items were taken from the car into the factory site. Some items were placed in a bin and some items were put in a black plastic bag. Subsequently, the plastic bag was recovered from the old chicken factory and it contained items connected with the deceased. 6. On 20 August 2019, at about 12:50 pm, Ms McHenry received a Facebook message from Ms Morgan asking whether she had seen Ms Easey. Ms McHenry replied: at 2:54 pm "No, I was gunna ask u the same question hey, I went out n come back and she was gone, and so was some of my stuff"; she continued at about 3:11 pm, "Yeah I'm so hurt I can't believe she done it hey, have you heard from her" and "But hey she did say she ripped mel n Jeff as well". Later, at 5:46 pm, Ms McHenry messaged "Wat u up to,, have u heard from dell [Ms Easey] yet. If ya do tell her I just want my stuff back". These messages confirmed my finding that Ms McHenry had been upset by Ms Easey taking Ms McHenry's belongings on the morning of 16 August 2019. 7. Also on 20 August 2019, Ms McHenry and Mr Dilosa travelled to the Narara house in the white Commodore. Once there, Mr Dilosa drove the Delica van from the cul de sac around to the driveway of the house at Narara and the deceased's body in the cupboard was loaded into the van. The CCTV at the old chicken factory recorded the white Commodore returning at about 5:37 pm and then being moved to allow the Delica van to be parked with the rear hard up against the fence in the parking area at about 5:55 pm. 8. In the days following 20 August 2019, Ms McHenry continued to spend time with Mr Dilosa, and came to, and went from, his flat on numerous occasions. While the Delica van was parked outside the old chicken factory in late August 2019, it was noticed by others that the van smelt bad. 9. On 25 August 2019, Ms McHenry put her sim card into a telephone that had belonged to Ms Easey and started using it. 10. On the evening of 27 August 2019, Mr Dilosa drove the Delica van to Cockle Creek and, at about 10:00 pm, disposed of the wrapped body there. 11. Between 28 and 31 August 2019, Ms McHenry exchanged Facebook messages using Ms Easey's Facebook profile, pretending to be Ms Easey, with Ms Easey's mother, Ms Collier. 12. On 30 and 31 August 2019, as part of the exchange of messages between Ms McHenry and Ms Easey's mother, Ms McHenry, still purporting to be Ms Easey, requested Ms Collier to transfer money to her and provided what was said to be a friend's bank account details to which the money could be transferred. Ms McHenry provided her own BSB and bank account numbers together with the letters "cm" to Ms Collier. When queried, Ms McHenry explained to Ms Collier that "cm" was "the name of her [Ms Easey's friend's] account CM". CM was, in fact, a reference to Carol McHenry as the account holder. Ms Collier, believing she was transferring money to her daughter, transferred $50 to Ms McHenry's account on 31 August 2019. On that same day, after the $50 had been transferred into her account, Ms McHenry transferred that money to another of her accounts and withdrew $40 from that other account while at Wests Cardiff Club with Mr Dilosa. On the basis of these circumstances, I was satisfied beyond reasonable doubt that the offender was guilty of dishonestly obtaining a financial advantage by deception contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW). This is the related offence for which Ms McHenry is also to be sentenced. 13. The body of Ms Easey was found at Cockle Creek on the morning of 31 August 2019. 14. Also on 31 August 2019, Ms McHenry drove her ex-partner and children to Berowra and was supposed to collect them later from Berowra, but did not. While in Berowra, Ms McHenry discarded Ms Easey's telephone that she had been using, in the front yard of a house. The telephone was later recovered by police and data was extracted from it. 15. Shortly after Ms Easey's body was found, a media report about that occurrence came to the attention of a 17 year old family friend of Ms McHenry. That same day or the next day, Ms McHenry came to that friend's house and told him that she wanted her house in Narara to go up in flames. Later that day, Ms McHenry was driving the friend and other persons in her white Commodore through Narara and she said: "Make it look like an insurance job. There's a gas heater with sheets and clothes in front of it. Put it in front of the heater so it catches alight. … There's a can of petrol around the side, use that if you need to" and "Make sure my room goes up first". While the friend and the other persons were still in the car, they indicated to Ms McHenry that they did not want to light a fire at her Narara house. At this time, the house and the bedroom in which Ms Easey had been killed had not been cleaned up and, indeed, they were not cleaned up before police established a crime scene there and the house was forensically examined. Objective seriousness of the offending 1. The objective seriousness of the offending for which Ms McHenry is to be sentenced depends on all the relevant circumstances other than those personal to the offender. Murder 1. In relation to murder, then most relevant factors for present purposes included: [6] 1. The role played by Ms McHenry in how the murder was committed; 2. Whether Ms McHenry's intention was to kill or cause grievous bodily harm to the deceased or whether she agreed to the acts being carried out with one or other such intention; 3. What motivation, if any, Ms McHenry had for the murder of Ms Easey; 4. Whether or not the murder was carried out with premeditation or planning; and 5. How the body was treated and disposed of. The role played by Ms McHenry in how the murder was committed 1. In the present case, the jury's guilty verdict did not implicitly involve acceptance of any particular role being played by Ms McHenry in the murder. [7] Nonetheless, the verdict was inconsistent with Ms McHenry's versions of what occurred given during her recorded interviews with police. In these interviews, Ms McHenry maintained she was not physically involved in the fatal attack on Ms Easey in any way and she did not agree to such an attack by Mr Dilosa. 2. As explained already, in circumstances where factual findings were not necessarily implicit in the jury's verdict, it was proper for me to make findings and to take them into account provided they do not conflict with the jury's verdict. In doing so, any facts found against the offender must be found beyond reasonable doubt whereas facts found in favour of the offender need only be found on the balance of probabilities. [8] 3. Mr Evers of counsel, who appeared for Ms McHenry, submitted that I should, for the purposes of sentencing, find as a fact that "[a]ll the physical acts which caused the death of the deceased were done by Justin Dilosa". This appeared to me to be seeking a factual finding in Ms McHenry's favour. 4. In support of this submission, Mr Evers drew attention to the evidence of Mr Dilosa's destroying the knife and wrapping and disposing of the body as well as evidence of various admissions made by him as to his direct involvement in the murder. In addition, it was submitted that the evidence that Ms McHenry had made admissions of actually participating in the killing should not be accepted because of the significant doubts about the credibility and accuracy of the witnesses who gave that evidence or because the evidence should be understood as relating only to Ms McHenry being a participant in a joint criminal enterprise to murder Ms Easey but not physically participating in the fatal attack. 5. Mr Evers also submitted in effect that before the Court could find beyond reasonable doubt that Ms McHenry did some or all of the physical acts which caused Ms Easey's death, it would first have to be satisfied that it was not a reasonable possibility that Mr Dilosa did those acts and the Court should not be so satisfied. Mr Evers then contended in effect that, if a finding that Ms McHenry physically participated in the attack on Ms Easey could not be made, the Court was required to sentence Ms McHenry on the basis that she did not physically participate in the infliction of the fatal wounds on Ms Easey. Mr Evers' submission was encapsulated in his additional written submissions at par 24 which contended: "In this case, the offender must be sentenced on the basis that she did not participate in the physical acts causing death, in the absence of proof [beyond reasonable doubt] that she did." 1. The Crown submitted that, based on the whole of the evidence and, in particular: the evidence of the admissions of stabbing Ms Easey said to have been made by Ms McHenry to Mr Princehorn, Ms Burnes and Mr Lynch (even though they were said to be "far from ideal witnesses"); the fact that Ms McHenry was "one of 2 persons present in the house when Danielle Easey was killed, and the fact that the deceased was killed with 2 weapons"; Ms McHenry's conduct after the killing and her attempts to conceal it; and, her "occasional animosity" towards Ms Easey prior to the killing, it should be found that Ms McHenry was "actively involved" in the killing. 2. The only direct evidence of what occurred in or near the Narara house between about 4:00 pm and 11:00 pm on 17 August 2019, was that of Ms McHenry given in her recorded interviews with police and the evidence of Mr Dilosa. 3. Ms McHenry gave a number of different versions of what occurred in her recorded interviews but each of those versions involved Ms McHenry playing no part whatsoever in, and having no prior knowledge or awareness of, the attack on Ms Easey which led to her death. In light of the verdict of guilty of murder, the jury cannot have accepted those aspects of her versions of what occurred and it would be inconsistent with the jury's verdict for me to accept both that she played no part in the attack and that she had no prior knowledge or awareness of it. It can be noted that Ms McHenry's case did not include disputing that she was in the house at the time Ms Easey was killed and the evidence as a whole supports a finding beyond reasonable doubt that she was. 4. In addition, in her recorded interviews with police, Ms McHenry in substance maintained that she concealed Ms Easey's death by using her Facebook profile to communicate with Ms Collier and maintaining to Ms Morgan that she had no knowledge of what had happened to Ms Easey because Mr Dilosa told her to do so and she complied as she was afraid of him, having previously been the subject of domestic violence from a former partner and Mr Dilosa having been violent towards her children. 5. On Mr Dilosa's version of what occurred at the Narara house on 17 August 2019, he was not in the house when Ms Easey was killed. This was because when she was still alive he went to his van, which was parked in the cul de sac. He was looking for ice and some cigarettes but fell asleep in the van. When he woke up and returned to the house, Ms McHenry opened the front door and said "We got to go", and indicated that Ms Easey was in bed. According to Mr Dilosa, after putting a bag in the boot, he and Ms McHenry then drove off in the white Commodore heading north to Newcastle and proceeded to stop at the Caltex Wyong Northbound Service Station late on 17 August 2019. A little distance further on, Ms McHenry asked him to stop and Mr Dilosa was shown the contents of the bag, that she had placed in the boot, which included his knife, a hammer and some bloodied material. They then travelled to Mr Princehorn's residence. 6. In addition to their accounts of what occurred, there was evidence that both Ms McHenry and Mr Dilosa made admissions of being involved in the fatal attack on Ms Easey. 7. The admissions said to have been made by Ms McHenry and some of the surrounding circumstances can be adequately summarised as follows: 1. Mr Princehorn gave evidence that, on 19 August 2019, he was with Ms McHenry at her house in Narara along with Mr Dilosa and while they were there, Mr Dilosa showed him the body of Ms Easey, and later, Ms McHenry said "she stabbed her". [9] At times during his evidence, Mr Princehorn said that Mr Dilosa was not present when Ms McHenry made this admission but in his recorded interview he said that Mr Dilosa was present and said "No. No. She didn't stab her. I did". [10] In cross-examination, however Mr Princehorn maintained that he was "probably" in no state to remember what was said to him due to his level of intoxication and lack of sleep. [11] Mr Evers also made submissions as to the inconsistency of Mr Princehorn's evidence, contending that he had motivation to lie due to self-protection and that the "circumstances in which the admission [were] made is implausible". 2. Ms Burnes gave evidence that a few days after Ms McHenry visited her at the hospital on 19 August 2019, Ms McHenry and Mr Dilosa came to her house and while in the loungeroom Ms McHenry said she had stabbed Ms Easey in the back. [12] Ms Burnes suggested Ms McHenry's motive for doing so was because Ms Easey owed Ms McHenry money. [13] Ms Burnes said that Mr Dilosa then said "You shouldn't have told her that" and "she didn't need to know." Ms Burnes also gave further evidence that at some time prior, Ms McHenry told Ms Burnes that Ms Easey had possession of a list of names, which included Ms McHenry's partner, Luke Wallace, and that Ms McHenry said she wanted to "shut her up". [14] 3. Mr Lynch gave evidence he knew Ms McHenry and met her near Warners Bay pub on one occasion and that she was "frantic … a real mess" and eventually explained "We fucked up. We killed this bitch". [15] 1. The evidence of admissions by Mr Dilosa was, in summary as follows: 1. Mr Collins gave evidence that a "a couple of days or a day" after meeting Ms Easey, he and Ms Daly were at Mr Dilosa's flat and Mr Dilosa said, "You know, I love you guys, but I will tell you this before you hear it from anyone else, that chick, she was no good" and that he had killed her. [16] Mr Collins gave further evidence that at a later date, he was at Mr Dilosa's place with Ms McHenry and Ms Daly and he believed that Mr Dilosa: "…said that he had killed her, and he said something about it was all good until the crack ran out, and then said she was going to hurt his friends, and then it happened. That he stabbed her in the head and back, and he would do it again." [17] 1. Ms Daly gave evidence that sometime after 27 August 2019, Mr Dilosa had written on a piece of paper that the police had found the body and "said something like: I did it because she was going to like fuck a lot of people up, or something along those lines". [18] During cross-examination, Ms Daly also agreed that, while at Mr Dilosa's flat, she heard Mr Dilosa say "You know I love you guys, and I want to tell you this before you hear it from anyone else. That chick was no good. She was going to hurt my friends. I killed her, and I would do it again." [19] 2. Mr Princehorn gave evidence that Mr Dilosa said that Ms McHenry did not stab Ms Easey but he did, as previously referred to. In addition, Mr Princehorn thought it sounded right that he had said in his recorded interview that the night after the body had been found, Mr Dilosa said that "he did it, that he killed a girl to protect Carol". [20] 3. In a recorded telephone conversation between Mr Dilosa and Mr Adams on 17 September 2019, Mr Dilosa said: "While the drugs were still there everything was all well and good, but as soon as the drugs started running out … I was at Carol's place with the girl. The drugs ran out. She started to run her mouth off about doing something with a list … I couldn't allow that." 1. In relation to the admissions said to have been made by Ms McHenry, I accept Mr Evers' submissions that the witnesses were highly unsatisfactory. Some of them gave inconsistent evidence. Some had a motive to lie both by way of protection of themselves and Mr Dilosa. Some had previously denied having any knowledge about Ms Easey's death. Some had mental health and drug and alcohol intoxication issues and Ms Burnes had a motive to implicate Ms McHenry falsely, as a result of perceived betrayal. In particular, in relation to Mr Princehorn's evidence, I formed the view that he was attempting to minimise his involvement with what occurred at the house at Narara on the night when he saw the body on the bed and he was exaggerating his level of intoxication and the vagueness of his recall. Nonetheless, I found his evidence of asking Ms McHenry what occurred and her response credible and there did not appear to me to be any sufficient reason to doubt its accuracy, especially as he also gave evidence of Mr Dilosa also making an admission to him. I would have been prepared to accept on the balance of probabilities Mr Princehorn's evidence as to what was said to him by Ms McHenry and Mr Dilosa on that occasion. Notwithstanding that conclusion, his general demeanour and the content of the evidence left me with a reasonable doubt about whether Ms McHenry said what Mr Princehorn recounted in his evidence. Similarly, I was left with a reasonable doubt as to the admissions said to have been made by Ms McHenry to Ms Burnes and Mr Lynch. 2. Accordingly, I concluded that I could not be satisfied beyond reasonable doubt based on the evidence of the admissions said to have been made by Ms McHenry, viewed in light of the evidence as a whole, that Ms McHenry actually carried out the stabbing of Ms Easey as opposed to having some lesser role in Ms Easey's murder. 3. The evidence concerning Mr Dilosa's admissions was different. Mr Dilosa did not deny making admissions that he stabbed Ms Easey attributed to him by Mr Collins, Ms Daly, Mr Princehorn and Mr Adams. Similarly, he did not deny destroying his knife or wrapping and disposing of Ms Easey's body. He did, however, give an explanation for why he made admissions and acted as he did. According to Mr Dilosa, he did so out what can be described as amounting to a misguided, almost quixotic, attempt to protect Ms McHenry and her children, whom he loved, from the consequences of her actions by taking all the responsibility himself. 4. Mr Dilosa's description of his feelings for, and relationship with, Ms McHenry was significantly different from her version which involved him being abusive towards her and her children and her being afraid of him. In my view, the nature of the relationship between Mr Dilosa and Ms McHenry, in about August and September 2019, was strikingly illustrated in the messages Ms McHenry sent to Mr Dilosa on 19 September 2019 and the intercepted telephone conversations between them on 11, 17 and 18 September 2019 (Ex BX). The messages on 19 September 2019 (the day Mr Dilosa and Ms McHenry were arrested) included Ms McHenry messaging Mr Dilosa: "U need to call me ASAP"; "U really need to call me"; and, "Oi this is important fuck ya". The intercepted telephone conversations included, by way of illustration: 1. Mr Dilosa telling Ms McHenry on 11 September 2019: "You know, it doesn't matter what goes on, that I still care about ya and I don't give a fuck what, I don't give a fuck about nothing. I just want you to be all right. So if you need anything …" 1. On 17 September 2019, a conversation about whether Mr Dilosa had been to Narara: "[CMcH] … have you by any chance sorted that shit out down at my house? [JD] No, I haven't, Caz I haven't had permission to. [CMcH] Yeah you have. [JD] Yeah but I haven't spoken to you, I didn't want to upset you in any way. [CMcH] All right. You won't, it needs to be done. [JD] Can you call in for a chat? [CMcH] No. Um, at the moment no. Um, I've got, I'm literally flat out at the moment, trying to get shit sorted for myself. Um …" 1. In my view, the messages and telephone calls, the amount of time spent by Ms McHenry and her young child with Mr Dilosa, including at his flat, the evidence that she gave him a black eye as a result of a disagreement and other evidence of their relationship in August and September 2019, did not support Ms McHenry's contention that she did what she did because she was afraid of Mr Dilosa or that he was violent towards her or her children. Indeed, my assessment of all the evidence as a whole, including that material, was that it supported Mr Dilosa's explanation as to why he made the admissions and did what he did. 2. In my view, Mr Dilosa's evidence was not substantially undermined in cross-examination and was not shown to be inconsistent with the objective evidence in any presently relevant and significant respect. He gave his evidence deliberately and it was suitably qualified where appropriate. 3. In all the circumstances, I accepted that Mr Dilosa's explanation of his admissions and conduct had sufficient plausibility to reduce the evidentiary significance that might otherwise have attached to them and to negative to a substantial extent the inferences that might otherwise have been drawn from his conduct and what he said. Furthermore, if Mr Dilosa's account of what occurred on the evening of 17 August 2019 were accepted, it would follow that Ms McHenry was alone responsible for the attack on Ms Easey and for the infliction of the fatal wounds. If, however, Mr Dilosa was involved in the attack on Ms Easey, he had a very significant motive not to tell the truth in his evidence in that regard. Although Mr Dilosa's evidence had some considerable strength, I was not prepared to find beyond reasonable doubt that he did not play any part in the murder of Ms Easey. Consequently, I was also not satisfied beyond reasonable doubt that Ms McHenry inflicted all or some of the fatal wounds on Ms Easey. 4. In my view, however, it did not follow that, as Mr Evers submitted, I must sentence Ms McHenry on the basis that she did not physically participate in the attack on Ms Easey because the Crown did not prove beyond reasonable doubt that she did. It is well established that there may be situations where no relevant finding can be made one way or the other. 5. In Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 at [20], Gleeson CJ, McHugh, Gummow and Hayne JJ explained: [21] "The sentencing judge may not be able to make findings about all matters that may go to describe [the] circumstances. In particular, an offender may urge a particular view of the nature and circumstances of the offence, favourable to the offender. The sentencing judge may be unpersuaded that the view urged is, more probably than not, an accurate view of the circumstances. In such a case, it is not correct that the judge is bound to sentence the offender on that favourable basis, unless the prosecution proves the contrary beyond reasonable doubt." 1. This approach was reiterated in Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 (Filippou) in the following terms at [64] (French CJ, Bell, Keane and Nettle JJ): "…Where, therefore, the prosecution fails to prove a fact or circumstance which is adverse to the offender, but the judge is not satisfied on the balance of probabilities of an alternative version more favourable to the offender, the judge is not bound to sentence the offender on a basis which accepts the accuracy of the more favourable version. If the prosecution fails to prove beyond reasonable doubt a possible circumstance of the offending which, if proved, would be adverse to the offender but the offender fails to establish on the balance of probabilities a competing possibility which, if proved, would be favourable to the offender, the judge may proceed to sentence the offender on the basis that neither of the competing possibilities is known." 1. Furthermore, in Filippou at [66], the High Court held that where an offender asserts a fact favourable to the offender and the Crown contests it or the Court is not otherwise disposed to accept it, it is incumbent on the offender to establish the fact on the balance of probabilities. 2. In the present case, the offender asserted that she should be sentenced, on the basis favourable to her, that she did not physically participate in the attack on Ms Easey. Having regard to the evidence as a whole in the present case, including (without being exhaustive): the evidence of admissions said to have been made by Ms McHenry (taking into account the unsatisfactoriness of the witnesses who gave that evidence); the evidence of her activities, conduct and attitudes before and after the killing; the evidence of the length and nature of her relationship with Ms Easey; the nature of her relationship with Mr Dilosa; the evidence of Mr Dilosa of what he did on the evening of 17 August 2019; the fact that Ms McHenry's versions of her complete lack of involvement in the attack on Ms Easey were inconsistent with the jury's verdict and must be rejected; the fact that she was in the house at the time of the killing; and, the fact that two weapons were used, I was not satisfied on the balance of probabilities that Ms McHenry did not participate physically in the fatal attack on Ms Easey. 3. Since, in my view, a finding cannot be made beyond reasonable doubt that Ms McHenry physically attacked the deceased and a finding cannot be made on the balance of probabilities that the offender did not do so, then the offender is to be sentenced on the basis that neither of the competing possibilities was known. This is the approach endorsed by the Court of Criminal Appeal in Martinez v The Queen [2022] NSWCCA 12 (Martinez) at [51] (Beech-Jones CJ at CL, Macfarlan and Brereton JJA agreeing). 4. For these reasons, Ms McHenry is to be sentenced on the basis that her role in the murder involved her being present in the house when Ms Easey was killed but it is not known whether or not she physically participated in attacking Ms Easey. Further, the jury's verdict compels me to find that Ms Henry had, at least, prior awareness of the attack and agreed to it being undertaken. Intention 1. The attack on Ms Easey was savage. The very severe nature of the injuries would establish to the requisite standard that whoever inflicted them intended to kill her. However, in circumstances where it simply was not known what role Ms McHenry played in the murder, I was not satisfied beyond reasonable doubt on all the evidence as a whole that Ms McHenry should be found to have had an intention to kill Ms Easey or that she agreed to her being attacked with that intention. In these circumstances, the jury's verdict required me to find that, in relation to the attack on Ms Easey, whatever the nature of Ms McHenry's participation might have been, the relevant intention was only to inflict grievous bodily harm. Motivation and premeditation 1. Any motivation which Ms McHenry may have had for Ms Easey's murder was not, to my mind, established beyond reasonable doubt. Although they had known one another from their school years, there was some tension or upset between Ms McHenry and Ms Easey on the morning of 16 August 2019 and Ms McHenry asserted to Ms Morgan that Ms Easey had stolen things from Ms McHenry, I did not accept that Ms Easey stealing from Ms McHenry had been proved to amount to the sole, or a significant, motive for her murder. The evidence of Ms Easey's involvement in the drug trade and moving up in that world was not linked in the evidence to Ms McHenry nor did the evidence establish that Ms McHenry was motivated by this to be involved in the murder of Ms Easey. 2. Similarly, the evidence did not establish that the murder was premeditated or planned to any significant extent. The types of injuries indicated that the weapons, which were likely to have been a hammer and a knife, may well have been readily available in or around the house and obtaining them would not have involved any substantial planning or premeditation. Disposal of the body 1. I am satisfied on the evidence as a whole and to the requisite standard that Ms McHenry participated in the disposal of Ms Easey's body by travelling with Mr Dilosa to the house at Narara where he wrapped the body, providing the cupboard in which the body was stored and transported, and driving with Mr Dilosa back to the Narara house in her white Commodore so that he could transport the body back to Cardiff in his Delica van. This conduct in the days immediately following the murder demonstrated a callous disregard for the dignity of the deceased, whose life had just been taken, in the offender's house with the offender's participation. As such, these actions of Ms McHenry were relevant to the assessment of objective seriousness. [22] Mental health 1. In relation to Ms McHenry's mental health, Mr Evers submitted that she had a history of anxiety and post-traumatic stress disorder and her circumstances made "it more likely that her involvement in the offence was a product of her own history of trauma, and desire to appease Mr Dilosa at a time where he lost self-control, and inflicted the violence on Ms Easey". I did not accept this submission for at least two reasons. First, I did not accept on the balance of probabilities that Ms McHenry was involved in the attack on Ms Easey in order to appease Mr Dilosa. Secondly and similarly, Ms McHenry did not establish to the requisite standard that it was Mr Dilosa who lost control and inflicted the violence on Ms Easey. For the reasons I have already given, Ms McHenry is to be sentenced on the basis that it was not known what specific role Ms McHenry played in the attack on Ms Easey. 2. It was also submitted that if the Court were to come to the view that it was uncertain as to whether Ms McHenry did participate in the acts of violence, her history of trauma would still be relevant as it would make her more prone to impulsive decision making and impair her capacity for emotional regulation. Once again, in the absence of any finding as to what Ms McHenry's role actually was, I could not be satisfied to the requisite standard whether the consequences, if any, of her history of trauma had any relevance to the offending. 3. Thus, the evidence did not, in my view, establish that Ms McHenry's mental health issues were causative of, or integral to, the offending for which she is to be sentenced. As a result, I have not taken Ms McHenry's mental health into account in assessing the objective seriousness of the offending. Nonetheless, I shall consider her mental health and related issues, as matters personal to the offender, further when dealing with her subjective case. Objective seriousness of the murder 1. The Crown submitted that the objective seriousness of the murder offending should be regarded as "about 'the middle of the range'". Mr Evers did not express his submissions on the offender's behalf by reference to a range of seriousness but I have taken his submissions into account. Having regard to all the circumstances and factors relevant to the assessment of objective seriousness of the murder that were established on the evidence in the present case, but excluding those matters which were personal to the offender and were not integral to the offending itself, I assessed that Ms McHenry's offending in relation to the murder fell below the mid-point on the range of seriousness for such an offence. Dishonestly obtaining a financial advantage by deception 1. As to the related offence, I have already referred to the circumstances of Ms McHenry dishonestly obtaining a financial advantage by deception. Although the amount obtained by Ms McHenry from Ms Collier was relatively small, it does not follow that the offending was trivial or lacked any substantial seriousness. While the amount was only $50, it was clear from the exchange of messages that this was all Ms Collier could afford to give to her daughter to help her in a time of need. For Ms Easey's mother, it was a substantial amount. Furthermore, the circumstances in which it was obtained increased the seriousness of the offending. The offender was aware of the distress and anguish Ms Collier was suffering, not knowing where her daughter was and she took advantage of, and exploited, Ms Collier's emotional vulnerability to obtain a financial benefit for herself. The offending was made more reprehensible by the fact that Ms McHenry knew that Ms Collier was desperate to obtain news of Ms Easey and knew that she had been killed yet withheld that information from her mother and continued to impersonate her daughter in order to defraud Ms Collier and obtain for herself a financial benefit. In my view, Ms McHenry's offending in this regard should be assessed, in light of all the relevant factors, as having a significant degree of seriousness. Aggravating and mitigating factors 1. It was not submitted that there were aggravating factors beyond what was inherent in the offending for which Ms McHenry is to be sentenced that should be taken into account in this case. It can be noted that the offending occurred in "the home of … any other person" within s 21A(2)(eb) of the Sentencing Procedure Act, but it appeared to me that this factor was not of marked significance in the present case. To the extent that it had any relevance, it was already taken into account in assessing the objective seriousness of the offence of murder and it should not be seen, in the circumstances, as further aggravating the offending. 2. The defence raised additional matters personal to the offender. These included the following which may, in an appropriate case, be mitigating circumstances: Ms McHenry not having any significant record of previous convictions and no prior history of violence, [23] her being unlikely to re-offend in the future, [24] and having good prospects of rehabilitation. [25] I shall consider these factors as part of the offender's subjective case. 3. I pause to note here that it was not expressly submitted on her behalf that Ms McHenry acted under duress, [26] but it was in effect submitted that she did what she did out of fear of Mr Dilosa. As explained already, I did not accept that it was established on the balance of probabilities that any of her conduct during, as part of, or after the murder of Ms Easey was engaged in as a result of any threat from, or fear of, Mr Dilosa. The offender's subjective case Background and circumstances 1. The information concerning the offender's background and circumstances was largely derived from the report dated 24 March 2023 of Dr Andrew Ellis, forensic psychiatrist. 2. The offender is a 35 year old woman, who was born in Gosford, New South Wales. She was brought up, with her two siblings, by her parents who are still together, although her mother has a terminal illness. She reported having her material needs provided for at home but as she grew up, she would argue with her parents and would run away from home. She reported that she had moved in and out of the family home since the age of 16. Her brother died at the age of 30 by suicide, having been diagnosed with psychosis. 3. As to her education, she completed Year 10 at Hunter Sports High School and was in mainstream classes, although she said she was bullied, found it difficult to make friends and truanted from school. 4. After leaving school, she worked for her father in telemarketing for 12 months. Ms McHenry's employment history thereafter was not clear. 5. At the age of 17, Ms McHenry was sexually assaulted after attending a party at which she became intoxicated. Although she initially reported the matter to police, charges were not laid. She said that she was terrified by the experience and it "destroyed me". Afterwards, she experienced nightmares, felt vigilant around others and had difficulty trusting others in relationships. This precipitated her taking an overdose of tablets and being admitted to hospital overnight. 6. Ms McHenry has taken psychiatric medication since 2013. She experienced a manic episode in late 2018 and was admitted to hospital. 7. Ms McHenry also report that she gambled to excess. 8. As to her use of prohibited drugs, between the ages of 17 and 28 , her "drug of choice" was amphetamine, or "speed". From the age of 28 until her arrest, she generally used crystal methamphetamine or "ice" every day, increasing the amount used after the death of the deceased. 9. Her relationships have included one which lasted approximately eight years with a man who was violent towards her, leading to apprehended violence orders being obtained against him. Although he was charged with domestic violence offences, the charges were dismissed. She had two children with this man, who is now deceased. Dr Ellis also reported that Ms McHenry has a child with another man with whom she lived for three months and another child with the man she lived with for two years. 10. For some months during 2018, Mr Dilosa lived with Ms McHenry and her children at Narara. There were some reports or information concerning incidents involving Mr Dilosa interacting with her children, for example by stuffing socks in one child's mouth to make him be quiet and cutting off one of the children's rat tail, but I was not satisfied that the nature and extent of any such abuse, the circumstances in which it occurred, and its adverse effects, if any, upon the children were established on the balance of probabilities on the evidence before me. 11. By 2019, it appears that Ms McHenry was unemployed and in receipt of a single parent pension, generally living at her house in Narara provided by the Department of Housing, but also moving between her mother's home and that of her ex-partner's older children. The offender's mental health 1. Dr Ellis was of the opinion that the offender suffered from: 1. Substance use disorder; 2. Post-traumatic stress disorder as a result of experiencing domestic violence as an adult and sexual assault as a teenager; 3. Personality disorder with borderline and dependent traits; and 4. Pathological gambling. 1. He also opined that the earlier consideration by other clinicians of bipolar disorder and major depressive disorder were more likely substance induced mood states. 2. Dr Ellis expressly recorded that "[t]he psychiatric conditions that Ms McHenry suffers from are common in the criminal justice system and there is access to medication and psychological therapies to address them". 3. As to the significance of Ms McHenry's mental health in relation to the offending, it can be noted that the account given by Ms McHenry to Dr Ellis concerning the events on 17 August 2019 relating to Ms Easey's murder was substantially the same as one of the versions of the events that she gave during a recorded interview with police. Dr Ellis recorded Ms McHenry's account to him as follows: "… When they [Ms Easey, Mr Dilosa and Ms McHenry] returned to her house She let Ms Easey sleep in her room and she slept on the lounge. She said that when she was aware that Ms Easey had died she gasped for breath and then pretended to be asleep. She said that she 'freaked'. She thought that Mr Dilosa was 'just a talker' when he had threatened to use violence in the past. She began to think 'I'm fucked' and 'what can he do to me and my children'. She was aware that he knew where her children could be located. She recalled him being violent to her children." 1. To the extent that this version involved Ms McHenry neither participating nor having any prior knowledge or awareness of Ms Easey being attacked with murderous intent, it was inconsistent with the jury's verdict. As a result, this version was required to be rejected. 2. In these circumstances, Dr Ellis's opinion does not deal with the effect of her mental health conditions on her participation, in whatever form it took, in the murder of which the jury found her guilty. 3. Accordingly, and in light of all the evidence as a whole, I was not satisfied on the balance of probabilities that Ms McHenry's mental health conditions played any significant causal role in the murder offending, or in the dishonestly obtaining a financial benefit by deception offending. 4. In the circumstances, Ms McHenry's mental health diagnoses, especially her PTSD as a result of domestic violence from her earlier partner and her sexual assault as a teenager and her substance use disorder, do not reduce her moral culpability in this case to any significant extent especially as the victim was another woman who was not suggested to have been violent towards Ms McHenry. 5. Nonetheless, I accepted that the principles summarised in Aslan v R [27] could be applied in the circumstances of the present case so that Ms McHenry's mental health issues resulting from previous domestic violence and sexual assault should be found to reduce the need for personal deterrence and to decrease her suitability as a vehicle for general deterrence, albeit only to a modest extent. Lack of significant criminal record 1. Ms McHenry's criminal record contained only: 1. Three offences of driving while her licence was suspended on three consecutive days in September 2019, after the murder; 2. One offence of dishonestly obtaining property by deception in 2015 for which she received a s 10 bond; 3. One offence of bringing a prohibited drug into a place of detention in June 2019 for which she was fined $500. 1. In these circumstances, I accepted that she did not have any significant record of previous convictions, and that her sentence should be mitigated in light of that fact. Remorse 1. There was no submission made that Ms McHenry should be found to be remorseful. I accepted that, on the evidence, there was no sufficient basis to find that Ms McHenry had shown remorse by providing evidence of accepting responsibility for her actions or acknowledging the injury, loss or damage caused by her actions. I did not, however, impose a harsher sentence than would otherwise have been appropriate because no remorse had been demonstrated. Prospects of rehabilitation and likelihood of reoffending 1. In relation to her prospects of rehabilitation and the likelihood of reoffending, it was submitted by counsel for the offender that she had good prospects of rehabilitation and was unlikely to re-offend in light of: 1. Her functioning well in custody and no longer abusing substances; 2. Her participating in and being awarded certificates for completing the following programs in custody: Enough is Enough; Out of the Dark; Seasons for Growth; Positive Lifestyle; Mothering at a Distance; Storytime; Keeping Us Strong; Being in Control; Keeping Together; and Rhythm 2 Recovery; 3. Her studying for and being awarded a Certificate III in Cleaning Operations, a Certificate I in Information, Digital Media and Technology, a Certificate II in Aboriginal & Torres Strait Islander Cultural Arts, a Certificate III in Business and a Statement of Attainment for Enterprise Trainer – Mentoring Skill Set; 4. Her being employed in custody as a peer support leader and a sweeper; and 5. Her ongoing contact with, and support from, her family. 1. I noted that Ms McHenry's custodial record indicated that she had not committed any custodial offences since May 2021. 2. Having regard to these matters, I was satisfied that Ms McHenry has good prospects of rehabilitation and it is unlikely to she will reoffend. I have taken this into account in the offender's favour as mitigating any sentence. Hardship in custody 1. Dr Ellis in his report referred to the hardship experienced by Ms McHenry in custody because of the Covid-19 pandemic. I accepted that this and her mental health conditions have rendered, and may in the future render, the offender's time in custody more onerous, at least to some extent, than might otherwise be the case. I have also taken this into account in determining the sentence to be imposed. Commencement date 1. Ms McHenry was arrested on 19 September 2019 and has been in custody since that time. Both parties submitted and I accepted that the sentence should be backdated to commence on that day. Special circumstances 1. Mr Evers submitted that given Ms McHenry's background of trauma, drug addiction and other mental health issues, notwithstanding the fact that those matters will be addressed in custody, she will need substantial assistance for an extended period of time, upon her returning to the community. The Crown submitted that, given the length of any sentence, the parole period afforded by the statutory ratio would be sufficient. 2. The need to address Ms McHenry's mental health issues, her reintegration into society, her rehabilitation and her re-engagement as a mother with her children, after release into the community, mean that it is appropriate, in my view, to allow a greater time on parole than would be provided by the statutory ratio. These matters constitute special circumstances justifying a variation of the statutory ratio of the non-parole period to the total sentence in this case. Victim impact statements 1. In addition, the Court received and heard the victim impact statements from: Ms Jennifer Collier, the deceased's mother; Mr Colin Easey, her father; Ms Tahnee Easey, her sister; and Mr Brendan Easey, her brother. The Crown applied for the Court to consider the impact of Ms Easey's death as disclosed in those victim impact statements when determining an appropriate punishment for the offender. 2. It is appropriate to note here that these statements made clear the extent of the harm caused by the death of Ms Easey in the circumstances I have already described. Ms Easey was described as a "beautiful soul", a "loving mother, sister and daughter" and someone who had a "passion for life and helping others". The effect on her family was said to be "indescribable", "absolutely heart crushing", "horrific" and "excruciating". It was noted that the victim's children have been taunted at school because of the circumstances of their mother's death. 3. The particular use that may be made of these victim impact statements is governed by the terms of the Sentencing Procedure Act. [28] Victim impact statements may, in certain circumstances, be taken into account in connection with the determination of the punishment for the offence on the basis that the harmful impact of the victim's death on the victim's close family and wider circle is an aspect of harm done to the community. 4. Courts have said in the past that it seems unthinkable that receiving and taking into account victim impact statements reflects an acceptance by Parliament that some lives are more valuable to the community than others. Rather, they should be seen as an important mechanism for ensuring that the evidence of family victims is placed before the court to give real context, content and texture to the undoubted proposition that every unlawful taking of a human life harms the community in some way. [29] 5. I accept that a greater sentence cannot be imposed because of the impact on the victim's family. Nonetheless, I consider it appropriate to take into account the victim impact statements that were provided to the Court so as to recognise that the harm done to Ms Easey's family is an aspect of harm done to the community. The punishment for homicide does not vary according to the personal qualities and characteristics of the victim. Rather, the qualities of a particular victim serve, as they do in this case, as a powerful reminder of the quality of human life itself, and all that is involved in taking it away. [30] Additional remarks 1. Before formally announcing the sentence of the Court, it remains to acknowledge the death of Ms Easey as a human and personal tragedy, which should not be treated only as the subject of a criminal trial. The evidence in this matter confirmed that she had a kind heart and was a loving mother, sister and daughter. Her death in such distressing circumstances has caused indescribable grief and sorrow for her family and distress to all others involved. 2. The Court extends its very sincere sympathy for their loss to Ms Easey's family and all those affected by her death. Sentence 1. In the present case, Ms McHenry is to be sentenced for two offences, but I proposed to impose one, aggregate sentence. 2. The sentences I would have imposed for each offence had separate sentences been imposed instead of an aggregate sentence are: 1. For the offence of murder, imprisonment for 22 years with a non-parole period of 15 years and 3 months; and 2. For the offence of dishonestly obtaining a financial advantage by deception, imprisonment for 12 months. 1. Since the dishonesty offence involved separate and distinct criminality from the murder offending, a degree of notional accumulation is appropriate. Nonetheless, having regard to the principle of totality and the fact that the offending was related to, and occurred in the context of, the murder, it is also appropriate to allow a certain degree of notional concurrency. 2. Taking into account all the relevant facts, including the objective seriousness of the offending and subjective circumstances of the offender, and having regard to the purposes of sentencing and the other applicable principles as well as the statutory guideposts of the maximum penalties for the two offences for which Ms McHenry is to be sentenced and the standard non-parole period for the offence of murder, I determine that the appropriate aggregate sentence is imprisonment for 22 years and 6 months, made up of the non-parole period of 15 years and 6 months and the balance of the term of imprisonment of 7 years. 3. Accordingly: 1. The offender is convicted of the murder of Danielle Easey and of dishonestly obtaining financial advantage by deception and is sentenced for that offending to imprisonment for a non-parole period of 15 years and 6 months commencing on 19 September 2019 and expiring on 18 March 2035 and a balance of term of 7 years expiring on 18 March 2042. 2. The offender will first be eligible for release on parole on 18 March 2035. 3. The offender is informed of the existence of the Crimes (High Risk Offenders) Act 2006 (NSW), which applies to "serious offences" including the offence of murder for which she has been sentenced. This means that the State can apply to the Supreme Court for an order that she continue to receive supervision or be held in detention at the end of her sentence if the court considers she would be a "high risk offender" who poses an unacceptable risk of committing a serious offence. ********** Endnotes 1. The related offence contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW) was contained on a certificate under s 166 of the Criminal Procedure Act 1986 (NSW). 2. Crimes Act, ss 18, 19A, 21(1); Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A, Pt 4, Div 1A, Item No 1. 3. GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22 at [30] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ). 4. Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 (Cheung) at [12]-[14] (Gleeson CJ, Gummow and Hayne JJ). 5. The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 (Olbrich) at [24]-[27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ); Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 (Filippou) at [64] (French CJ, Bell, Keane and Nettle JJ.). 6. See for example the discussion of relevant factors by R A Hulme J in R v Edwards (No 3) [2019] NSWSC 1815 at [47]-[49]. 7. This was because the Crown put its case that Ms McHenry was guilty of murder on a number of alternate bases including: (a) that she was a participant in a joint criminal enterprise with Mr Dilosa to attack Ms Easey with intent to kill or cause grievous bodily harm (murderous intent) even if she did not physically attack Ms Easey; and, (b) that Ms McHenry physically attacked Ms Easey with murderous intent, either alone or with Mr Dilosa, and either pursuant to a joint criminal enterprise or without any agreement. 8. Olbrich at [24]-[27]; Filippou at [64]. 9. Tcpt, 19 October 2022, p 437(50). 10. Tcpt, 19 October 2022, p 438(10)-(20). 11. Tcpt, 19 October 2022, p 622(17)-(18). 12. Tcpt, 31 October 2022, p 870 (46)-871(2). 13. Tcpt, 31 October 2022, p 871(10)-(15). 14. Tcpt, 1 November 2022, p 889(49)-890(5). 15. Tcpt, 8 November 2022, p 1198(5)-(37). 16. Tcpt, 18 October 2022, p 246(21)-(26). 17. Tcpt, 18 October 2022, p 250(2). 18. Tcpt, 19 October 2022, p 377(4)-(7). 19. Tcpt, 19 October 2022, p 411(24)-(28). 20. Tcpt, 20 October 2022, p 528(5)-(18). 21. Olbrich at [24] 22. R v Edwards (No 3) [2019] NSWSC 1815 at [48]-[49] (R A Hulme J). 23. Crimes (Sentencing Procedure) Act, s 21A(3)(e). 24. Crimes (Sentencing Procedure) Act, s 21A(3)(g). 25. Crimes (Sentencing Procedure) Act, s 21A(3)(h). 26. A mitigating factor under s 21A(3)(d) of the Crimes (Sentencing Procedure) Act. 27. [2014] NSWCCA 114 by Simpson J at [33] and [34] (Adams and McCallum JJ agreeing). 28. See s 30E(3) of the Crimes (Sentencing Procedure) Act, which substantially re-enacted provisions previously found in s 28(4) of that Act. 29. Based on the comments of McCallum J (as her Honour then was) said in R v Halloun [2014] NSWSWC 1705 at [46] in relation to s 28(4) of the Crimes (Sentencing Procedure) Act. 30. Adapting the words of Street CJ in R v Hill (1981) 3 A Crim R 397 at 402. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 August 2023