ASP v The Queen

[2007] NSWSC 339

CITATION:	ASP v R [2007] NSWSC 339
HEARING DATE(S):	23 February 2007, 27 February 2007, 1 March 2007
JUDGMENT DATE :	13 April 2007
JUDGMENT OF:	Johnson J at 1
DECISION:	1. Application to redetermine life sentence refused; 2. Direct that Applicant not reapply to Court for redetermination for a period of seven years.
CATCHWORDS:	SENTENCING - application to redetermine life sentence imposed in 1988 - abduction, sexual assault and murder of victim - offences committed whilst on parole for sexual assault offences - applicant committed other offences of abduction and sexual assault in month prior to murder - lengthy determinate sentences imposed for other offences - whether offence constituted a "most serious case of murder" - application of totality principle where life sentence imposed together with lengthy determinate sentences - later incident of sexual assault in prison in 1993 - relevance of later incident to redetermination application - preservation of safety of community - offender with dangerous propensity to commit offences of abduction and sexual assault in 1980s - assessment of prospects of rehabilitation and risk of reoffending - public interest - application refused - applicant precluded from making further application for seven years
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Children (Criminal Proceedings) Act 1987 Evidence Act 1995 Crimes Act 1900 Sentencing Act 1989
CASES CITED:	R v Archer (Court of Criminal Appeal, 21 August 1987, unreported) Charara v Director of Public Prosecutions (NSW) (2001) 120 A Crim R 225 Douar v The Queen (2005) 159 A Crim R 154 Weininger v The Queen [2003] 212 CLR 629 Briginshaw v Briginshaw (1938) 60 CLR 336 The Queen v Olbrich (1999) 199 CLR 270 Collins v R [2006] NSWCCA 162 R v Previtera (1997) 94 A Crim R 76 R v Slater (2001) 121 A Crim R 369 R v FC and JD (2006) 160 A Crim R 392 Ibbs v The Queen (1987) 163 CLR 447 R v Garforth (Court of Criminal Appeal, 23 May 1994, unreported, BC9402546) R v Fernando (1997) 95 A Crim R 533 R v Twala (Court of Criminal Appeal, 4 November 1994, unreported) R v Purdey (1993) 31 NSWLR 668 R v Fernando [1999] NSWCCA 66 Veen v The Queen (No. 2) (1988) 164 CLR 465 R v MAK and MSK [2006] NSWCCA 381 R v Salameh [1999] NSWCCA 300 R v Maiden [2000] NSWCCA 519 R v Malcolm (1991) 58 A Crim R 148 R v Page [2002] NSWSC 1067 R v Towner [2002] NSWSC 951 R v Clarke [1999] NSWSC 1225 R v Clarke [2005] NSWSC 413 R v Harris (2000) 50 NSWLR 409 R v Kalajzich (1997) 94 A Crim R 41 R v Qutami (2001) 127 A Crim R 369 R v Palu (2002) 134 A Crim R 174 Baker v The Queen [2004] 223 CLR 513 R v Boyd (1995) 81 A Crim R 260 R v Jamieson (1992) 60 A Crim R 68
PARTIES:	ASP (Applicant) Regina (Respondent)
FILE NUMBER(S):	SC L2001/03
COUNSEL:	Mr P Kintominas (Applicant) Mr L Lamprati SC with Ms N Noman (Respondent)
SOLICITORS:	BJ Murphy Angelovski & Associates (Applicant) Director of Public Prosecutions (Respondent)
LOWER COURT FILE NUMBER(S):	---
LOWER COURT DATE OF DECISION:	---
LOWER COURT MEDIUM NEUTRAL CITATION:	---

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

Johnson J

13 April 2007

L2001/03 ASP v Regina

JUDGMENT

1 JOHNSON J: This is an application under s.44(5) Crimes (Sentencing Procedure) Act 1999 (“the 1999 Act”) in which the Applicant, ASP, seeks an order determining a specified term and a non-parole period with respect to a sentence of life imprisonment imposed by Hunt J in the Supreme Court of New South Wales at Sydney on 14 October 1988, following his plea of guilty to murder.

2 The Crown opposes the redetermination application and submits that the Applicant ought be precluded from making further application for a period of 10 years. I have decided to refuse the application and to direct that no application may be brought for a period of seven years. The Applicant, the Crown and the community are entitled to have my reasons for reaching this conclusion.

Use of Pseudonyms in Judgment

3 A number of persons will be referred to in this judgment by the use of initials, and not names. There are several victims of sexual assault committed by the Applicant in the 1980s, one of whom is the victim of the murder for which the Applicant was sentenced to imprisonment for life. Each of these victims will be referred to by initials only, in accordance with contemporary law and practice.

4 In addition, I have made an order that the Applicant be referred to by his initials only. As will be seen, the Crown called, as witnesses on this application, the Applicant’s daughter, Miss X, and his former wife, Mrs Y. Their evidence related to an alleged sexual assault by the Applicant upon Miss X during a gaol visit in about 1993. To refer to the Applicant by name would serve to identify his daughter. To permit appropriate reasons to be given in this judgment, but at the same time to guard against identification of the Applicant’s daughter, both the Crown and counsel for the Applicant submitted that the appropriate course was to refer to the Applicant by initials only in this judgment: s.11(1)(b),(c) Children (Criminal Proceedings) Act 1987. I accept this submission and have adopted this approach.

The Present Application

5 By application filed on 27 August 2001, the Applicant sought redetermination of his life sentence under s.44(5) of the 1999 Act.

6 The hearing of the application commenced before me on 23 February 2007 and continued on 27 February and 1 March 2007. Mr Kintominas of counsel appeared for the Applicant. Mr Lamprati SC and Ms Noman appeared for the Crown.

7 A number of documents were tendered at the hearing. The Crown tendered a Statement of Facts dated 10 April 2003 and annexures (Exhibit A), a report of the Serious Offenders Review Council (“SORC”) dated 8 May 2002 and annexures (Exhibit B), a supplementary SORC report dated 19 September 2006 and annexures (Exhibit C), a report of Dr CL Wong, psychiatrist, dated 25 October 2006 (Exhibit D), a supplementary report of Dr Wong dated 2 November 2006 (Exhibit E), a victim impact statement of RS, the mother of the murder victim (Exhibit F) and the affidavit of Miriam Rottenberg affirmed 27 October 2006 and annexures (Exhibit G).

8 The Applicant tendered a Notice of Reply to the Statement of Facts dated 13 April 2006 together with a report of Dr William Lucas, psychiatrist, dated 27 February 2006 (Exhibit 1).

9 Dr Wong gave oral evidence and was cross-examined on his reports (T26-46, 23 February 2007).

10 As mentioned, the Crown called two witnesses, Miss X and Mrs Y, who gave oral evidence on 23 and 27 February 2007. Miss X had given a signed statement to police on 2 July 2004 (Annexure G to Exhibit G). Mrs Y had given a signed statement to police on 28 May 2004 (Annexure H to Exhibit G). Mr Kintominas objected to the tender of these statements by the Crown upon a number of bases. On 23 February 2007, I admitted the statements into evidence.

11 Put shortly, Miss X alleged that the Applicant had sexually assaulted her by inserting his fingers in her vagina during a contact visit at Lithgow Correctional Centre in about 1993 when she was about five years of age. In her police statement, Mrs Y stated that Miss X had complained to her of such an event soon after it occurred, and that she had spoken to the Applicant thereafter by telephone and in person, at which time he admitted that he had done what Miss X alleged. For reasons which I will elaborate upon later in this judgment, I ruled that such evidence was relevant and admissible on a life sentence redetermination application given the factors to be taken into account under Schedule 1 to the 1999 Act, and generally, on such an application.

12 I should observe, at this point, that when Miss X and Mrs Y came to give evidence, they did not adhere to their statements to police and asserted that the Applicant had not so acted towards Miss X. The Crown was granted leave to cross-examine both witnesses as unfavourable witnesses under s.38 Evidence Act 1995. I will return to the evidence of these witnesses later in this judgment.

13 The Applicant did not give evidence or adduce oral evidence from any witness on the application.

The Statutory Scheme for Redetermination of Life Sentences

14 The present application falls to be determined under Schedule 1 of the 1999 Act. Clause 2, Schedule 1, 1999 Act provides for applications to be made:

“ Applications for determination of non-parole periods

(1) Subject to any direction under clause 6, an offender serving an existing life sentence may apply to the Supreme Court for the determination of a term and a non-parole period for the sentence.

(2) An offender is not eligible to make such an application unless the offender has served:


(a) at least 8 years of the sentence concerned, except where paragraph (b) applies, or

(b) at least 30 years of the sentence concerned, if the offender is the subject of a non-release recommendation.

(3) An offender who is the subject of a non-release recommendation is not eligible for a determination referred to in subclause (1) unless the Supreme Court, when considering the offender’s application, is satisfied that special reasons exist that justify the making of such a determination.”

15 The Applicant has served at least eight years of the sentence concerned and is eligible to make the present application: cl.2(1), Schedule 1, 1999 Act. Clause 3, Schedule 1, 1999 Act provides for the Court to have regard to certain matters on an application:

“ Matters for consideration by Supreme Court

(1) In considering an application in relation to an existing life sentence, the Supreme Court is to have regard to:


(a) all of the circumstances surrounding the offence for which the sentence was imposed, and

(b) all offences, wherever and whenever committed, of which the offender has been convicted.
so far as this information is reasonably available to the Supreme Court.

(2) The reference in subclause (1) (b) to an offence of which an offender has been convicted:

(a) includes:

(i) any offence in respect of which a court has found the offender guilty but has not proceeded to conviction, and

(ii) any offence taken into account when the offender was sentenced, but
(b) does not include:

(i) an offence for which a conviction or finding of guilt has been quashed or set aside within the meaning of Part 4 of the Criminal Records Act 1991, or

(ii) an offence of a class or description prescribed by the regulations.”

16 Clause 7, Schedule 1, 1999 Act requires the Court to have regard to a number of specific factors on an application:

“ Matters relating to exercise of Supreme Court’s functions

(1) In considering an application referred to in clause 2 (1), the Supreme Court is to have regard to:


(a) any reports on the offender made by the Review Council, and any other relevant reports prepared after the offender was sentenced, that are available to the Supreme Court, and

(b) the need to preserve the safety of the community, and

(c) the age of the offender (at the time the offender committed the offence and also at the time the Supreme Court deals with the application), and

(d) in the case of an offender sentenced before 12 January 1990 (the date on which section 463 of the Crimes Act 1900 was repealed by section 5 of the Prisons (Serious Offenders Review Board) Amendment Act 1989), the fact that the sentencing court:

(i) would have been aware that an offender sentenced to imprisonment for life was eligible to be released on licence under section 463 of the Crimes Act 1900, and

(ii) would have been aware of the practice relating to the issue of such licences, and
(e) any other relevant matter.


(2) The regulations may make provision for or with respect to reports referred to in subclause (1), including provisions relating to the matters to be dealt with in reports and the making of reports available to the Supreme Court.

(3) In considering an application referred to in clause 2 (1), the Supreme Court:


(a) must have regard to and give substantial weight to any relevant recommendations, observations and comments made by the sentencing court when imposing the sentence concerned, and

(b) must give consideration to adopting or giving effect to the substance of any such recommendations, observations and comments and the intention of the sentencing court when making them, and

(c) to the extent that it declines to adopt or give effect to any such recommendations, observations and comments, must make a record of its reasons for doing so.

(4) Subclause (3) (c) does not limit any other requirement that the Supreme Court has, apart from that paragraph, to record the reasons for its decisions.”

17 Clauses 4 and 5, Schedule 1, 1999 Act provide for the powers of the Court on an application, and the effect of a determination to set a non-parole period:

“4 Determination of application

(1) The Supreme Court may dispose of an application in relation to an existing life sentence:

(a) by setting a specified term for the sentence together with a non-parole period for the sentence, or

(b) by declining to set a specified term for the sentence but setting a non-parole period for the sentence, or

(c) by declining to set a specified term for the sentence and declining to set a non-parole period for the sentence.

(2) The Supreme Court may set a specified term and a non-parole period for an existing life sentence even though the Court was not the sentencing court.

(3) In the case of an offender who is the subject of a non-release recommendation, the Supreme Court may dispose of an application in relation to an existing life sentence:

(a) by setting a non-parole period for the sentence, or

(b) by declining to set a non-parole period for the sentence,
but does not have jurisdiction to set a specified term for the sentence.

5 Effect of determination to set a non-parole period


(1) A non-parole period arising from a determination referred to in clause 4 (1) or (3) is taken to have commenced on the date on which the sentence commenced or, if the offender was remanded in custody for the offence, the date on which the first such remand commenced.

(2) If the Supreme Court sets a specified term for an existing life sentence, the existing life sentence is taken to have been replaced by a sentence of imprisonment for the term so specified.

(3) The term of the sentence, and any non-parole period, are to be taken to have been set under section 44, but are not required to comply with the other provisions of Division 1 of Part 4.”

18 Clause 6, Schedule 1, 1999 Act provides that the Court may prohibit further applications by an unsuccessful applicant, either permanently or for a period exceeding the statutory minimum period of three years:

“ Supreme Court may prohibit further applications

(1) If the Supreme Court declines to set a specified term for an existing life sentence or to set a non-parole period for the sentence, the Court may (when making that decision) direct that the offender who made the application:


(a) may never re-apply to the Court, or

(b) may not re-apply to the Court for a specified period of time.


(2) If the Court gives a direction under this clause that an offender may never re-apply to the Court, the offender is to serve the existing life sentence for the term of the person’s natural life.

(3) If the Court does not give a direction under this clause, the offender may not re-apply to the Court within the period of 3 years from the date of the Court’s decision not to give the direction.

(4) A direction under this clause that an offender may never re-apply to the Court or may not re-apply to the Court for a period exceeding 3 years may be given only if:


(a) the offender was sentenced for the crime of murder, and

(b) it is a most serious case of murder and it is in the public interest that such a direction be made.”

19 The Crown submits in this case that the application should be refused and a direction given under cl.6(1)(b) that a further application may not be brought for a period of 10 years.

Circumstances Surrounding the Offence of Murder

20 The Court is required to have regard on the application to all of the circumstances surrounding the offence of murder for which the sentence was imposed: cl.3(1)(a), Schedule 1, 1999 Act.

21 On 14 October 1988, the Applicant was sentenced by Hunt J for a series of offences, including the murder of KS. The Applicant was sentenced at the same time for a group of offences committed against another victim, LB, a month prior to the murder of KS. I will outline the facts of the Applicant’s offences against LB later in this judgment (at paragraph 48). In this part of the judgment, I will confine attention to the circumstances of the offence of murder to which the present application relates.

Abduction, Sexual Assault and Murder of KS

22 At about 6.30 am on Friday, 2 October 1987, KS, who was 20 years of age, left her home to walk to Guildford railway station to catch the train to work. KS had suffered a stroke when she was nine years old, which had left her partially paralysed down her left side. She walked with a pronounced limp and had very limited use of her left arm. Despite her disabilities, she held the position of acting supervisor within the Department of Transport and Communication at the time of her death.

23 The Applicant, who was then aged 27 years, and on parole, approached KS and asked her to help him start his car which was parked in Stimpson Street, Guildford. When they reached the vehicle, the Applicant pushed KS into the front seat. Although the Applicant denied that she struggled, a witness heard KS screaming and saw her being pushed into the car, and took down the registration number of the vehicle. The Applicant later told police that he may have hit KS on the nose at this time, because it was bleeding. KS said that she wanted to get out of the car, but the Applicant kept on driving.

24 Four other women identified the Applicant as having approached them on the morning of 2 October 1987 at Guildford, Fairfield and Villawood prior to the abduction of KS.

25 The Applicant drove a number of kilometres to the Erskine Park area where he took KS into a paddock. He removed her pants and had sexual intercourse with her. When he finished doing so, KS apparently heard a vehicle pull up and she started to call out. The Applicant took out a knife that he had with him, which was about eight inches long and half-to-one inch wide, and stabbed her a number of times with the intention of killing her. The Applicant placed the body of KS in a shallow pool of water and left her there.

26 KS had a stab wound to her right breast where the knife punctured her lung and caused her death. She had wounds to her left arm, shoulder and to her right eye. There were other lacerations and bruises to her mouth and about her body. There was a large haematoma on the right side of her head, which had been inflicted prior to her death.

27 KS’ mother, RS, reported her missing when she failed to return home that evening.

28 About 1.30 pm on Sunday, 4 October 1987, a 14-year old boy was riding his bicycle in the bushland area in the vicinity of Mamre Road and Erskine Park Road, Erskine Park. He discovered the semi-naked body of KS, partially submerged in a shallow creek. He also found a bundle of clothing near the body. Police were then called to the scene.

29 On 5 October 1987, a woman informed police that she had seen a photograph of KS on a television news broadcast, and recognised her as being identical to a girl she had seen being forced into a motor vehicle in Stimpson Street, Guildford, shortly after 6.35 am on 2 October 1987. The witness had been inside her first-floor home unit when she heard a woman screaming. She walked out onto her balcony and saw KS struggling with a man who forced her into a green-coloured vehicle. The witness provided police with the registration number and enquiries revealed that the vehicle was registered in the name of the Applicant.

30 Police went to the Applicant’s home at about 10.30 pm on 5 October 1987. The Applicant hid in the ceiling of a bedroom and refused to come down. At about 12.20 am on 6 October 1987, the Applicant came down from the ceiling and was conveyed to Penrith Police Station where he was interviewed. He gave a signed record of interview in which he admitted to being the person responsible for the death of KS. He stated that he took her to the bushland area where he had sexual intercourse with her and then stabbed her with a knife and put her body into the water. He then disposed of some of her belongings after removing about $70.00 from her handbag. He stated that he then went to the vicinity of Bankstown Airport where he threw the knife into the Georges River. He then went home, got changed and went to work. The Applicant told police that he did not know KS prior to seeing her on 2 October 1987, and that he had approached her with the intention of having sexual intercourse. He stated that, at the time of the commission of the offence, he was not affected by alcohol or drugs, nor had he been taking any medication.

31 In his record of interview with police on 6 October 1987 concerning the abduction, sexual assault and murder of KS, the Applicant mentioned a number of matters which are presently relevant. The Applicant had been living with his then girlfriend (and later wife, Mrs Y) for about six or seven months (Q/A8). The Applicant was employed as a storeman at Marrickville and had attended work on Friday, 2 October 1987 at 8.20 am (Q/A9-21). The Applicant said that he was carrying the knife “just in case I needed to persuade her to get in [his vehicle]” (Q/A90). The Applicant said that he produced the knife to “shut her up from yelling but it didn’t so I stabbed her” with his intention being “I suppose to kill her” (Q/A91-92). He said that he was concerned that she may be able to identify him “until she started screaming” (Q/A93).

32 A conversation with Detective Sergeant Myers before the commencement of the record of interview included the following exchange:

“MYERS: Why did you kill her?
APPLICANT: After we had intercourse she was screaming.
MYERS: Were you going to let her go if she had not screamed?
APPLICANT: No I planned to do it.
MYERS: Were you in a frenzy?
APPLICANT: No I knew what I was doing.
MYERS: What happened after you stabbed her?
APPLICANT: I put her in the water and left.”

33 On the morning of 6 October 1987, the Applicant took police to the crime scene and other locations where he indicated what had taken place on 2 October 1987. A search of the areas indicated by the Applicant failed to locate the murder weapon or the property of the victim.

Proceedings Against the Applicant

34 The Applicant was charged with the murder of KS and abduction of KS with intent to carnally know her.

35 At that time, the Applicant was asked questions in relation to offences against LB committed on 4 September 1987. He declined to answer those questions. On 6 October 1987, the Applicant was charged with the forcible abduction and sexual assault of LB on 4 September 1987.

36 The Applicant did not apply for bail. He appeared at Penrith Local Court on 6 October 1987 and, on 16 November 1987, was committed for trial for the abduction and murder of KS.

37 On 7 March 1988, a bill was found against the Applicant for murder, abduct female with intent to carnally know and having sexual intercourse without consent with KS.

38 On 17 May 1988, the Applicant appeared for committal proceedings at Penrith Local Court on the charges relating to LB. At that time, he indicated to the officer in charge of the investigation that he intended to plead guilty to those charges and to the abduction, sexual assault and murder of KS.

39 On 26 May 1988, the Applicant was committed for sentence on charges of forcible abduction of LB with intent to carnally know her, administering a stupefying drug to LB with intent to commit an indictable offence and stealing property of LB.

40 On 26 August 1988, all matters in relation to both victims were stood over for sentence on 14 October 1988.

Sentencing Hearing Before Hunt J

41 On 14 October 1988, the Applicant was indicted before Hunt J on seven counts:

(a) abduction with intent to carnally know KS: s.89 Crimes Act 1900 ;

(b) sexual intercourse without consent with KS: s.61D Crimes Act 1900 ;

(c) murder of KS: s.19 Crimes Act 1900 ;

(d) forcible abduction with intent to carnally know LB: s.89 Crimes Act 1900;

(e) administer a stupefying drug to LB with intent to commit an indictable offence: s.38 Crimes Act 1900 ;

(f) sexual intercourse without consent with LB: s.61D Crimes Act 1900 ;

(g) stealing property of LB: s.117 Crimes Act 1900.

The Applicant pleaded guilty to all counts on the indictment.

42 At the sentencing proceedings, the Crown called Detective Sergeant Anthony, Detective Sergeant Myers and Dr William Barclay to give evidence. A report of Dr Barclay dated 27 September 1988 was tendered. Dr Barclay had interviewed the Applicant at the Metropolitan Remand Centre, Long Bay on 13 September 1988. At the insistence of the Applicant, the interview took place in the presence of the Applicant’s wife, Mrs Y. Dr Barclay reported that the Applicant told him that “speed and alcohol triggered it off - and problems in myself as well”. The Applicant described regular use of cannabis. Dr Barclay said (page 3 of report):

“The only mitigating circumstance one can see in this offence is [ASP’s] use of amphetamine or an amphetamine type substance intravenously in the months leading up to the time of the offence. He describes symptoms that are consistent with amphetamine abuse and at times the development of some paranoid ideas and he describes a state of mind that approaches a mild degree of dissociation when he says ‘it was like my mind was knowing what was happening but I seemed to have no feeling of any kind’. There is nothing, however to suggest that at the time of the offence there was any impairment of his ability to form the intent to commit the offence nor that there were any paranoid ideas influencing his behaviour at the time and in particular influencing his behaviour with respect to the actual offence. The Record of Interview is quite clear and there is nothing in that record of interview, nor was [ASP] able to tell me anything in my interview with him to suggest any influence by amphetamines played a part in the commission of this offence. I note that [ASP] has a previous offence for threatening to inflict actual bodily harm with intent to have sexual intercourse and having sexual intercourse without consent in 1983. I note that in 1982 there is any offence of sexual assault and there are a number of prior offences of assault and then a number of motor vehicle offences.”

43 The Applicant’s counsel called the Applicant’s wife, Mrs Y, and Dr Rod Milton to give evidence at the sentencing proceedings. A report of Dr Milton dated 10 August 1988 was tendered in evidence. Dr Milton stated (page 1 of report):

“ [ASP] informed me that he sexually assaulted and killed a woman at Penrith after having been using amphetamines for some months. He remembers the occurrence well, although he was reluctant to talk about it. He said ‘It's just like I was turned off - it's hard to explain, there were no feelings or emotions’. He remembers seeing the woman in the street and he assaulted her and took her into his car.' He would not proceed with a description of the event after that but said he was ashamed of what happened and is going to plead guilty because he believes he did wrong and has been converted to the Christian faith and wants to accept responsibility for what he did. He was upset when telling me this.”

44 The Applicant told Dr Milton that he had married three months before August 1988 whilst in gaol, and had known his wife for over a year.

45 Dr Milton expressed the following opinion in his report (page 2):

“The offences occurred after a period of particularly heavy use of amphetamines. The prolonged use of these drugs can certainly produce emotional disorders, particularly paranoid states. While [ASP] did not show clear evidence of being paranoid, his mental state certainly appears to have been altered in that he felt out of touch with himself, and unusually lacking in emotion. It is possible these effects were a result of the use of the stimulant drugs.

This state would certainly constitute an abnormality of mind. It would be a matter for the jury to decide whether this abnormality of mind was such as to substantially diminish [ASP’s] responsibility for the killing, in terms of Section 23a of the Crimes Act.

Note that my assessment was limited because [ASP] was not keen to discuss the offences.”

46 The Applicant tendered a drug and alcohol report dated 27 September 1988 of Ms Diane Scott of the Department of Corrective Services. Ms Scott reported that the Applicant had told her that he had consumed 18 cans of beer and a half weight (or $150.00 worth) of amphetamines on the day of the offence.

47 The Applicant did not give evidence in the sentencing proceedings before Hunt J.

Remarks on Sentence of Hunt J

48 In his remarks on sentence on 14 October 1988, Hunt J recited the facts surrounding the offences committed against the victim, LB. His Honour said (remarks on sentence, pages 1-2):

“At approximately 6.30 am on 4 September [1987] , [LB] was dropped at the Yennora railway station by her father to catch the train to work. She was then seventeen years of age. The only other people there were the stationmaster and the prisoner. The prisoner approached [LB] and asked her to help him for a minute. When she turned to face him, the prisoner told her that he had a gun and he showed her a gun which was tucked into his trousers but otherwise hidden by his clothing. The prisoner ordered [LB] to follow him, threatening her that otherwise she would get hurt, He led her to the car park where he ordered her to get into his vehicle and to assist him to start it. When that task had been performed, [LB] said that she wanted to leave but the prisoner replied that he wanted her to do one more thing for him. The prisoner then drove to the vehicle into the bush where he gave [LB] the option of being tied up or taking sleeping tablets. When she opted for the former, the prisoner strapped her wrists together but then told her that the straps would hurt her and that she should take the sleeping tablets instead. [LB] offered to say nothing to anyone if the prisoner let her go, but that offer was rejected by him. She took two tablets which the prisoner gave her and when they did not produce sleep, she took another two. The prisoner provided a quilt for her to lie on and insisted that she lie on it. She fell asleep a short time later. When [LB] awoke, the prisoner had left and he had taken her clothing together with her shoes, her handbag and its contents. He had sexual intercourse with her whilst she was drugged and she was bruised and bloodied about her face and legs.

Those who came to her help described [LB] as dazed and incoherent. A doctor at Westmead Hospital examined her and has described numerous fresh superficial scratch marks over her whole body which were consistent with very recent violence. There was also a laceration to her neck. Her hymen had recently been torn. The forensic biology examination disclosed semen in her vagina. [LB] had not previously had sexual intercourse.”

49 After reciting the facts concerning the abduction, sexual assault and murder of KS, Hunt J turned to the issue whether the Applicant was affected by drugs at the time of the offences (remarks on sentence, page 5):

“An issue was raised as to whether, at the time when he murdered [KS] , the prisoner was suffering from the effects of amphetamines. According to the history given to Dr Barclay who was called by the Crown, the prisoner had been abusing drugs for some time. That evidence by Dr Barclay is evidence in favour of the prisoner. There is also the evidence of his wife to the same fact. But the prisoner did not tell Dr Barclay that he had injected speed (as it is known) on that particular day, nor did he tell the police, to whom he specifically denied that he had been affected by either drugs or alcohol at the time of the murder. He did tell Miss Scott, a drug and alcohol worker in the gaol system, that he had used speed and that he had consumed a large amount of alcohol on the morning when he killed [KS] but that report was tendered by the prisoner himself so the history is not evidence in his favour. That evidentiary position is correctly conceded by his counsel, who stated that he was unable to prove that fact. In other words, he was unable to do so without calling his client. I am satisfied that the prisoner was not affected by any drugs or alcohol at the time of the murder.”

50 Hunt J recited the Applicant’s criminal history in the following terms (remarks on sentence, pages 4-5):

“The prisoner, who is now twenty eight years of age, has a very long record of offences stretching back to 1976. For the first few years, those convictions are frequently related to motor vehicle stealing and illegally using them, and driving them negligently. There are also a large number of break enter and steal convictions. There is one conviction for escaping lawful custody and one conviction for absconding. There is one conviction for driving with the prescribed content of alcohol in his blood, and one minor conviction for possessing Indian hemp.

In 1980 there commences a series of convictions involving violence - one for maliciously setting fire to a dwelling house, a number for assault, two for threatening to inflict actual bodily harm by an offensive weapon with intent to have sexual intercourse, and two for the sexual intercourse without consent associated with those earlier offences. For that particular group of offences, the prisoner received a total head sentence of twelve years. He withdrew a subsequent appeal against conviction and sentence. He was released from custody in relation to those offences on 1 December 1986. He was still on parole for these offences at the time when these present offences were committed.”

51 Hunt J adverted to subjective material tendered in the sentencing proceedings (remarks on sentences, pages 5-6):

“There was some subjective material tendered before me. The prisoner has embraced religion since he has been in custody, and there are two quite remarkable references tendered which speak of the prisoner’s apparently genuine remorse for what he has done and of his attempts at personal rehabilitation. During the period of his custody, he married his wife with whom he had previously been living and there has since been a child born.

All of the material put before me shows that the prisoner has indeed changed in his attitudes over the year that has passed since his arrest. Dr Milton has also recorded the shame which the prisoner has expressed in relation to what he has done. Dr Barclay said in his evidence that the prisoner was suffering from an antisocial personality disorder in which the offences committed by him over the years increased in seriousness as he became older, finally culminating in the ultimate crime of murder.

Dr Barclay did agree, however, that the prisoner would be likely to lose much of his aggression by the time he reached his forties.”

52 At the request of the Applicant, Hunt J revoked the parole order relating to the earlier sexual assault convictions pursuant to s.38(8) Probation and Parole Act 1983. His Honour directed that the Applicant’s parole be treated as having been revoked on 6 October 1987, the date upon which he was arrested for the murder of KS.

53 Hunt J turned to the sentence for the murder of KS (remarks on sentence, pages 6-7):

“The next issue to which I should turn is the sentence for the murder of [KS] , because that is in a special category. Section 19 of the Crimes Act provides that the penalty for the crime of murder is penal servitude for life, unless it appears that the particular prisoner's culpability for the crime is significantly diminished by mitigating circumstances. That means that I must examine the prisoner’s blameworthiness in the commission of the murder itself. Having done so, I can see absolutely no such mitigating circumstances in the present case. I have already found that the prisoner was not affected by any drugs or alcohol at the time. In any event, where that intoxication has been self-induced I do not see that it is a proper mitigating circumstance to take into account. A life sentence will, therefore, have to be imposed.”

54 Hunt J turned to the question of sentence for the crimes other than murder (remarks on sentence, pages 7-8):

“In affixing the sentences appropriate to the remaining matters, I must, of course, take into account the totality of the prisoner’s criminality. When I do so, I must take into account also the fact that he has pleaded guilty to murder, as well as the fact that a life sentence is being imposed. That is not to punish him twice for the sentence of murder, but simply to look at the overall picture which is presented, both by the murder and by those other sentences.

It was submitted that it has now become accepted that no total head sentence for multiple offences should exceed twenty years, a figure gleaned from the judgment of the Chief Justice in The Queen v Visconti (1982) 2 NSWLR 104 at 114. I cannot for myself read that judgment as suggesting the existence of any such limit, and if that judgment has become accepted as asserting such a limit then it has been wrongly interpreted. It would, in my view, be quite improper to approach the sentence for multiple offences upon such a basis. On the other hand, I must take into account the submission made on behalf of the prisoner that the total head sentence should not be so crippling that there is no hope left for the prisoner in the future.”

55 Before moving to pass sentence, Hunt J said (remarks on sentence, pages 8-9):

“In the present case, l propose to make each of the sentences in relation to [KS] apart from the murder concurrent with the life sentence for murder, and those in relation to [LB] also concurrent but cumulative upon the determinate sentences imposed in relation to [KS]. Once [KS’s] murder is taken into account, there is little said in relation to the remaining two charges; they were despicable crimes and they warrant severe punishment but they are completely engulfed by her murder.

In relation to [LB] , it is difficult to imagine a more aggravated kind of sexual assault than that which the prisoner perpetrated upon her. Although it did not involve the severe physical beatings which are often seen, the forcible abduction with a gun and the use of sleeping tablets in order to have sexual intercourse with this young virgin against her will makes the prisoner’s actions such as to disgust ordinary decent people in this community. I do not suppose that many other men would harbour similar ideas of acting in such an appallingly depraved ways but the community nevertheless expects these courts to deal particularly severely with crimes such as these in order to ensure that those who may have similar ideas will quickly put them out of their minds. Punishment for these crimes must be severe enough to deter both the prisoner himself and others from ever doing anything like this again.”

Sentences Imposed by Hunt J

56 Hunt J imposed the following sentences:

(a) Count 3 - murder: penal servitude for life to commence at the expiration of the balance of the sentence imposed in the Central Criminal Court on 5 August 1983 (that is, to commence on 28 October 1994);

(b) Count 1 - abduction of KS: eight years’ penal servitude (concurrent with Count 3);

(c) Count 2 - sexual intercourse without consent with KS: five years’ penal servitude (concurrent with Count 3):

(d) Count 4 - abduction of LB: eight years’ penal servitude (concurrent with Count 5):

(e) Count 5 - administering a stupefying drug to LB: 12 years’ penal servitude (cumulative on Count 1):

(f) Count 6 - sexual intercourse without consent with LB: five years’ penal servitude (concurrent with Count 5);

(g) Count 7 - stealing property of LB: two years’ penal servitude (concurrent with Count 5).

57 The determinate sentences gave rise to a total head sentence of 20 years’ penal servitude. Hunt J declined to set a non-parole period given that the Applicant was subject to a life sentence: R v Archer (Court of Criminal Appeal, 21 August 1987, unreported, page 5).

58 The Crown informed me that on 25 September 1989, the Applicant’s aggregate determinate sentence of 32 years and 448 days, imposed at various courts commencing from 29 February 1980, was redetermined pursuant to the transitional provisions of the Sentencing Act 1989. The redetermined sentence was calculated as a fixed term of 23 years, two months and two days to commence 29 February 1980 and to expire on 30 April 2003. The balance of parole was to be served from 29 February 1980 until 25 October 1990. The life sentence commenced on 26 October 1990.

All Offences, Wherever and Whenever Committed, of Which the Applicant has been Convicted

59 In considering an application in relation to an existing life sentence, the Court is to have regard to all offences, wherever and whenever committed, of which the offender has been convicted: cl.3(1)(b), Schedule 1, 1999 Act.

60 I have already referred (at paragraph 48) to offences committed by the Applicant against LB on 4 September 1987, in relation to which he was sentenced to terms of imprisonment by Hunt J on 14 October 1988.

The Applicant’s Criminal History

61 It is necessary to refer to other offences committed by the Applicant.

62 The Applicant was born on 5 February 1961. His criminal history commences in 1975, with a range of offences of dishonesty bringing him before the Children’s Court and Courts of Petty Sessions up to 1980. The Applicant was sentenced to his first term of imprisonment for larceny motor vehicle at Liverpool District Court on 29 February 1980. He was convicted and fined for assault in 1980, and again in 1982.

Sentences Imposed by Reynolds J in 1983

63 On 5 August 1983, the Applicant was convicted by a jury and sentenced by Reynolds J, in the Central Criminal Court, to terms of imprisonment for offences of threatening to inflict actual bodily harm by an offensive instrument with intent to have sexual intercourse (two counts) and having sexual intercourse without consent (two counts). He was sentenced by Reynolds J to penal servitude for 12 years commencing on 29 October 1982, with a non-parole period of four years and four months concluding on 5 February 1988.

64 In the course of his remarks on sentence on 5 August 1983, Reynolds J said with respect to these offences (pages 1-2):

“On the evening in question you gained entry to [the victim’s] car by pretending that you had been stabbed and asking her to drive you to a hospital. You had only been in the vehicle a short time when you threatened her with a replica pistol which you had earlier painted black. You clearly intended that she would accept that the pistol was real. Having produced the pistol you told her that you had a gun and informed her that provided she didn't do anything stupid that she would not get hurt. Obviously this was intended to frighten her and certainly had this result. A short time later you told her that you wished to make love to her and by this time she was understandably confused and quite frightened. You spoke to her in these terms:

‘You know I have a gun at your head, make up your mind.’

When you had said this to her she told you that she felt sick. You then said to her:

‘If you don't make up your mind you will feel a lot sicker.’


At your direction she entered the back seat of the car and it was there that the first act of sexual intercourse took place.

The acts constituting the third and fourth offences took place within a very short time of the first act of sexual intercourse. You produced a knife and held it near her head, thereby forcing her to enter upon the second act of sexual intercourse and causing her to become very frightened. Your attitude in this trial was to completely deny the first and second offences. You denied having any pistol and you further denied that the first act of sexual intercourse ever took place. Plainly the jury did not accept you.

As to the third and fourth offences you denied using the knife in the manner alleged by the young girl and, whilst agreeing that the act of sexual intercourse took place, said that it happened with her consent. Once again, the jury plainly rejected your evidence. You were obviously abroad on that evening seeking a victim such as the complainant. You gained entry to her vehicle by subterfuge. You clearly intended that the gun should be regarded by her as real and clearly intended to frighten her into submission. In this you were obviously successful. You again used the knife with the clear intent to frighten her and again you were successful. You have shown no remorse for these crimes and in this hearing, as I have already pointed out, you simply denied the first three offences and in relation to the final offence alleged that she consented to the act of intercourse.

The matters found to have been proved against you are most serious and, in my opinion, they deserve substantial punishment.”

65 Reynolds J observed that the Applicant had been released on parole on 1 June 1981, and that the offences for which sentence was then being passed were committed whilst the Applicant was on parole.

Events After 1983

66 On 20 June 1984, the Applicant was sentenced in the Sydney District Court for the offence of maliciously setting fire to a building with intent to injure, for which a sentence of imprisonment for two years was imposed, commencing on 20 June 1984 and concluding on 19 June 1986.

67 The Applicant was released on parole on 1 December 1986.

68 On 8 April 1987, he appeared in the Parramatta Local Court on a charge of driving with the mid-range prescribed concentration of alcohol, in relation to which he was fined $400.00 and disqualified for 12 months.

The Applicant Admits Further Offences Committed in September 1987

69 On 9 January 1990, police at Bass Hill Police Station received a Christmas card containing a letter from the Applicant. The letter included the following:

“My name is [ASP] . I am currently serving a 20 year sentence. When I finish that I begin a life sentence. I am writing to confess to a crime I committed in, or somewhere near, your area. Personally, I cannot see any point in doing this, because my sentence is so big now, it is unlikely I would receive any further time, and it would run concurrent to my life sentence. Plus the costs factor. However, I have since become a Christian and the Lord (I feel) is urging me to confess this crime.
I wont be very helpful with details, as it was over two years ago and I was very drunk. The crime - I took a male, and female to an area (I can’t remember where) and I raped the woman, then I left them otherwise unharmed. The only thing I can remember, was her name was [T] . Unfortunately, I can’t remember anything apart from what I told you. If you wish to take this matter any further, I am at Long Bay Gaol.”

70 Police were in possession of statements dated 13 September 1987 from TI, a 16-year old girl, and her boyfriend, AF, then 18-years old, concerning offences committed against them on 12 September 1987.

71 At about 12.15 am, on 13 September 1987, TI and AF had returned to premises at Yagoona after having been out together for the evening. They drove their vehicle into the car park area of the units, and were sitting in the vehicle talking when they noticed a sedan pull up directly behind their vehicle. The Applicant and another unknown male person were in the sedan.

72 The Applicant and his male companion approached the victims’ vehicle, and identified themselves as police officers from the Drug Squad. The victims were ordered to leave their vehicle. At this time, AF asked to be shown identification. The Applicant produced a black coloured replica handgun and, at the same time, the unknown male person punched the victim once in the head. Both victims were then ordered into the Applicant’s vehicle and, with the Applicant driving, were driven around the Bankstown area for a period of about 20 minutes. The victims were unable to get out of the Applicant’s vehicle as, at the time that they were placed in the vehicle, the Applicant removed all of the buttons from the door locks.

73 The Applicant then drove the victims to a reserve at the corner of the Hume Highway and Johnson Road, Bass Hill. The victims were ordered from the vehicle and AF was made to lie face down on the ground whilst the Applicant stood over him pointing the replica handgun at him. The Applicant’s accomplice forced TI into the bushes about five metres away from the vehicle. TI was forced to remove her clothing and was then forced to have sexual intercourse with the accomplice. At the same time, the Applicant had removed the wallet from AF at gunpoint, and removed $10.00 from the wallet which he kept.

74 The accomplice then approached the Applicant and took the gun from him. He then stood over AF, pointing the gun at him, whilst the Applicant went over to TI, who was lying naked and sobbing on the ground. The Applicant then forced her to have sexual intercourse with him. The Applicant and his accomplice then told both victims to get out of the area and not to tell anyone what had happened otherwise they would be shot. The Applicant and his accomplice left in their vehicle. The victims walked a short distance to houses and reported the matter to police.

75 In the course of a record of interview with police on 19 January 1990, the Applicant said that he had sent the letter to the police station as he had

”become a Born Again Christian and by confessing to this incident I am doing what the Lord wants me to do”

(Q/A11). When asked to identify his co-offender, the Applicant said “I don’t want to say who it was because I feel that by doing this I would be going against what the Lord wants me to do” (Q/A25).

76 When asked whether there was anything further he wished to say about the matter, the Applicant said “just that I am sorry and that I hope that it brings some comfort to the girl and to the boy” (Q/A30).

77 On 4 May 1990, the Applicant was sentenced by his Honour Judge Gibson QC at the Liverpool District Court to four fixed terms of imprisonment for 10 years to commence on 4 May 1990 and to expire on 3 May 2000 with respect to offences of abducting a female to carnally know (two counts), assault and rob whilst armed and inflicting actual bodily harm with intent to have sexual intercourse with a third person.

Alleged Incident of Sexual Assault by the Applicant Upon Miss X in About 1993

78 As mentioned earlier, Mr Kintominas objected to evidence being adduced by the Crown on this application with respect to the incident of alleged sexual assault by the Applicant upon Miss X during a contact visit at Lithgow Correctional Centre in about 1993. It was submitted that evidence of sexual misconduct of this type was not admissible on a life sentence redetermination application. I ruled that the evidence was admissible.

79 In taking this approach, I rejected the submission of Mr Kintominas that cl.3, Schedule 1, 1999 Act, in effect, covers the field concerning the admissibility of evidence of misconduct (capable of constituting an offence) on a life sentence redetermination application. It is common ground that the Applicant has not been convicted of an offence with respect to this incident.

80 I accept that evidence of a sexual assault by the Applicant, after 1988, is relevant on an application such as this.

81 Clause 7(1)(e), Schedule 1, 1999 Act provides for the Court to have regard to any other relevant matter on a life sentence redetermination application. In my view, the incident of alleged sexual misconduct is relevant to this application. Counsel for the Applicant submits that the Court should accept that there has been a process of reformation and rehabilitation, and a change in values, on the part of the Applicant since 1987, illustrated by his Christian beliefs and his volunteering, in December 1989, of his offences against TI and AF. It is submitted for the Applicant that, despite his history of recidivism during the 1980s with respect to abduction and sexual assault offences committed whilst on parole, the Court may have regard to aspects of his character, revealed in the evidence, to support a conclusion that a process of reformation and rehabilitation is well under way. The Applicant points to aspects of his conduct after his crimes in September-October 1987, in support of a favourable conclusion that he is unlikely to act again upon his previously demonstrated propensity to commit sexual offences.

82 Evidence of an alleged sexual assault by the Applicant is also relevant to the need to preserve the safety of the community (cl.7(1)(b), Schedule 1, 1999 Act), and is capable of bearing upon the public interest (cl.6(4)(b), Schedule 1, 1999 Act). The latter provision is relevant, given the Crown submission that the present application ought be refused, and an order made under cl.6(1)(b) that the Applicant not be permitted to make further application for a period of 10 years.

83 It is clear that post-offence criminal conduct is relevant to an assessment of an offender’s prospects of rehabilitation: Charara v Director of Public Prosecutions (NSW) (2001) 120 A Crim R 225 at 233-234 [37]-[40]; Douar v The Queen (2005) 159 A Crim R 154 at 179 [131]. If the Applicant had been convicted of sexual assault in 1993 upon Miss X, that conviction would be relevant and admissible in the present application. In circumstances where the Applicant points to post-offence good behaviour in an effort to establish that a process of reformation or rehabilitation is under way, I am satisfied that conduct such as that alleged here is relevant to a determination as to whether reformation has, in fact, occurred.

84 In this respect, it is highly significant that the Applicant has a history, prior to 1988, of recidivism with respect to offences of sexual assault. A further incident of sexual assault whilst the Applicant is in custody is relevant to a determination as to whether there has been reformation and rehabilitation of the Applicant. The fact that the alleged incident in 1993 is said to have been committed against the Applicant’s five-year old daughter whilst he was in custody, and that this incident is significantly different to his earlier crimes committed against older females who were strangers does not, in my view, bear upon the question of admissibility. It is the allegation that a sexual assault has occurred which is relevant, at a time when the Applicant asserts that he has changed his values and his approach to life.

85 The principles in Weininger v The Queen [2003] 212 CLR 629 at 638-640 [25]-[32] are applicable. Uncharged criminal acts may be relied upon, if revealed by evidence, in an assessment whether an offender is a person of prior good character at a time when he stands for sentence for an offence. I am satisfied that similar reasoning is available where the Applicant claims reformation and rehabilitation after his crimes, and where it is alleged that there has been a sexual assault which, if it occurred, would militate against a finding of reformation or rehabilitation.

86 Accordingly, I was satisfied that the evidence concerning the alleged incident was relevant and admissible in the present application. I admitted the statement of Miss X dated 2 July 2004 and the statement of Mrs Y dated 28 May 2004.

Statement of Miss X

87 It is appropriate to refer to the account of the alleged incident in the signed statement of Miss X, who was 16 years old at the time when it was made on 2 July 2004. Miss X stated (paragraphs 3-9):

“3. I am currently in a New South Wales High School completing studies in year eleven (11). I am the daughter of [Mrs Y] and [ASP] . My father [ASP] is currently in gaol and he has been for as long as I have known.

4. In 1993 I went with my mother to Lithgow gaol to visit my dad ( [ASP] ). I do not remember the exact time or date, but I know I was in kindergarten at … Primary School at the time. We were living in … Whalan. I believe the time can be worked out from the records because it was also the last time that I went to visit [ASP] at the gaol. Up until then, I used to go every weekend with my mum, on both days of the weekend.

5. On this particular day I was playing with another young boy. He was a bit older than me and I was five (5) or six (6) at the time. I was sitting in the only room that I ever went into, where we used to visit [ASP] . I have drawn the room as best as I can remember and given this to Detective TAYLOR. It had a lot of tables and chairs, and some of the seats were ‘booth’ style, built into the wall. I was wearing a white coloured button up top, which had flared collars and cuffs. I was also wearing undies and a knee length black coloured skirt. [ASP] was wearing white coloured long sleeve overalls.

6. I was sitting on the floor playing and mum was sitting with [ASP] on one of the booth style seats. Mum got up and went out to get a drink and have a smoke. She walked outside through the doors around the back of the seats. She later came back and was talking to the policeman at the front desk. Whilst mum was talking to the policeman at the desk, [ASP] called me to come over and speak to him. I walked over and he sat me on his lap. The booth we were sitting in had a curved seat which was like a semi circle and a round table in the middle. [ASP] was sitting at the end of this seat and he put me on his lap. I was seated on his legs, and was facing away from him. We were both facing the same way. I dangled my legs off to the side around his legs which were together. The table made it a close fit, and my legs were concealed by the table.

7. [ASP] placed his right hand on my right knee and he started to rub my leg as he slowly moved his right hand up my leg. My skirt was loose fitting and it bunched up as he moved his hand up my leg. My legs were curled under and around his legs. He moved my legs further apart as he ran his hand up and between my legs. He turned his hand when it was between my legs and using his thumb pointing out, pushed my legs further apart. This hand was a definite hand movement to move my legs apart. [ASP] kept moving his hand up in between my legs. His hand was touching my inner thigh on my right leg as he did this. His right hand and fingers then lifted the elastic side of my undies at the area of my vagina. He put his hand inside my undies, and the elastic of the undies held his hand inside my undies. [ASP] then put a finger inside my vagina. I don't know how many fingers he put inside my vagina, but it was at least one (1). I remember how much it hurt as he did this, and he kept his finger inside my vagina for some time. He then moved his finger in and out of my vagina at least ten (10) times. He was doing this really hard. I couldn't see how far in my vagina his finger was but I remember feeling, and thinking that it would have been about 1/2 or 3/4 the length of his finger inside my vagina. I turned around and looked at him and he just smiled at me with a sick looking smile. He didn't say anything and I just looked away. The table was hiding most of what he was doing at the time.

245 Mr Kintominas drew attention to certain observations and comments by Hunt J in the course of his remarks on sentence on 14 October 1988. He submitted that Hunt J had not made a non-release recommendation and had observed that the determinate sentences ought not be so crippling that there be “no hope left for the prisoner in the future”. Mr Kintominas submits that this comment demonstrates that Hunt J was not of the view that the Applicant’s crime was so serious as to preclude future release.

246 Care must be taken not to read too much into this comment by Hunt J which related to the fixing of determinate sentences for crimes other than murder. In any event, the Crown is not contending on this application that the Applicant should never be released. Rather, the Crown argues that the present application ought be refused and a lengthy period fixed before the Applicant may again apply to the Court. I do not consider that this comment of Hunt J provides support for the present application.

247 There are further comments or observations of Hunt J which I should mention. His Honour observed (see paragraph 51 above) that subjective material tendered on sentence indicated that the Applicant had “embraced religion since he has been in custody” and that “two quite remarkable references tendered … speak of the prisoner’s apparently genuine remorse for what he has done and of his attempts at personal rehabilitation”. Hunt J said that “all of the material put before me shows that the prisoner has indeed changed in his attitudes over the year that has passed since his arrest”.

248 I do not consider that my findings are inconsistent with these comments or observations of Hunt J made in 1988. His Honour observed what appeared to be the commencement of a process of change in the Applicant. On the evidence before me in 2007, I do not consider that the Applicant has taken objective steps towards personal rehabilitation. He has not made serious and sustained efforts to obtain treatment and counselling in prison. Further, his sexual interference with Miss X operates against the Applicant’s claim of reformation and rehabilitation. In summary, although the Applicant’s path towards rehabilitation appeared promising in 1988, as Hunt J commented, his action and inaction since that time does not provide a foundation for findings now which are favourable to the Applicant.

The SORC Reports and Other Reports

249 Upon analysis, the various reports concerning the Applicant provide little assistance to him on this application. It seems clear that the Applicant has generally been a well-behaved prisoner whilst in custody. However, the crimes for which he was sentenced involved the forcible abduction, sexual assault and murder (on one occasion) of young women whom he came upon as strangers in public places. A record of general good conduct whilst in custody sheds little light upon the process of reformation and rehabilitation of a person who has committed such offences. As Dr Wong observed (see paragraph 165 above), good conduct in the “highly controlled prison environment” should not be regarded as a significant positive prognostic guide so far as sexual recidivism is concerned.

250 A common theme in the various reports concerning the Applicant is the non-emergence, to date, of information which may provide an understanding of the Applicant’s serious and persistent criminality. Such information as is known by way of assessment, indicates that the Applicant is a significant risk of reoffending if released into the community. Apart from the passage of time, there is little material which could provide the Court with any confidence with respect to the Applicant’s conduct if released into the community.

251 Accordingly, the contents of reports concerning the Applicant do not assist him on this redetermination application.

The Applicant’s Age

252 The Applicant was born on 5 February 1961 and was aged 27 years when sentenced by Hunt J in 1988. He is now 46 years old.

253 The Applicant was not a very young man at the time he murdered KS. His conduct in 1987, and as early as 1982, had demonstrated a dangerous propensity to commit serious offences involving forcible abduction and sexual assault of young women. The age of the Applicant at the time of the murder does not assist him on the present application.

254 The Applicant is now approaching middle age. Dr Barclay’s report in 1988 suggested that there may be a reduction in the Applicant’s risk of reoffending when he reached his 40s.

255 The reports of Dr Lucas and Dr Wong provide no significant predictive pointers which assist the Applicant with respect to the risk of reoffending. In reality, the Applicant can call in aid the passage of years, and his ageing, as the only real factors operating in his favour in the present application.

Practice of Release on Licence

256 As the Applicant was sentenced by Hunt J before 12 January 1990, the Court must have regard to the fact that the sentencing Court would have been aware that an offender sentenced to imprisonment for life was eligible to be released on licence under s.463 Crimes Act 1900, and would have been aware of the practice relating to the issue of such licences: cl.7(1)(d), Schedule 1, 1999 Act.

257 In approaching this statutory factor, it is necessary to bear in mind the lengthy determinate sentences imposed by Hunt J, together with those imposed by Judge Gibson QC in 1990. Given these substantial determinate sentences, I do not consider that this statutory factor is of any real assistance to the Applicant in this case.

Remorse, Reformation and Rehabilitation

258 The existence of contrition or remorse is relevant to an assessment of an offender’s prospects of rehabilitation and the likelihood of him committing further offences in the future: R v MAK and MSK [2006] NSWCCA 381 at [41].

259 It may be said on behalf of the Applicant that he confessed to police with respect to his crimes against KS, and pleaded guilty to charges with respect to KS and LB. Thereafter, in December 1989, the Applicant volunteered the fact that he had committed offences against TI and AF. He pleaded guilty to those charges.

260 On the other hand, the Applicant still appears to maintain that he did not sexually assault LB, despite his plea of guilty to that charge. He adheres to a self-serving version of his 1982 offences which continues to minimise the criminality found by the jury (at trial) and Reynolds J (on sentence). He denies sexual interference with Miss X in about 1993. I have found that such an incident did, in fact, take place.

261 I accept that there is some element of remorse revealed by the Applicant’s voluntary disclosure in December 1989 of his offences against TI and AF. However, I am also satisfied that significant pragmatic considerations, of a self-serving type, operated on the Applicant’s mind as well, leading him to take that course. Disclosure of these crimes does not, in my view, constitute unequivocal evidence of genuine remorse on the Applicant’s part. I am satisfied that the Applicant had in mind that these offences may possibly come back to haunt him at a later time and that the best course, in his interest, was to admit to the offences, thereby ensuring an entirely concurrent sentence running with his life sentence. The contents of the Applicant’s letter (see paragraph 69 above) supports this conclusion. The Applicant’s disclosure of these crimes appears to fit more comfortably into Dr Wong’s category of disclosure to “wipe the slate clean”.

262 The Applicant’s claim of reformation and rehabilitation is compromised significantly by the incident of sexual interference upon Miss X in about 1993.

263 I accept Dr Wong’s evidence that the most powerful positive evidence that the Applicant has embarked upon a pathway towards reformation and rehabilitation would be active steps by him to seek out, and undertake, treatment and counselling with respect to his past criminality whilst in custody. I acknowledge that treatment and counselling of this type may not be readily available in custody. Nevertheless, I am not satisfied, on the evidence, that the Applicant has actively pursued such treatment and counselling as may be available to him in custody. In my view, this conclusion operates adversely to the Applicant in this case.

264 The Applicant’s conversion to Christianity provides limited assistance to him on this application. I have the clear impression that the observations of the Special Care Unit Officer made on 6 October 1989 (see paragraph 154) that the Applicant “has convinced himself that now that he has found God he has been forgiven all his past sins and has received absolution” has dominated the Applicant’s thinking thereafter with respect to the need for treatment and counselling as a means of developing genuine insight and to demonstrate reformation. The Applicant appears to have convinced himself that a belief in divine forgiveness is a form of substitute for objective evidence of insight, reformation and rehabilitation. The Applicant is a serial rapist who has murdered one of his victims. It ought be clear to the Applicant that the Court (and the community) will expect solid and substantial evidence of reformation and rehabilitation, extending beyond the passage of years and the subjective claim that he is a changed man, in support of an application for redetermination of his life sentence.

The Need to Preserve the Safety of the Community

265 The Court is required to have regard to the need to preserve the safety of the community in considering the present application: cl.7(1)(b), Schedule 1, 1999 Act.

266 The circumstances of the offence of murder, taken with the Applicant’s history of serious crimes against women, demonstrate the presence of a dangerous propensity on the part of the Applicant, in and prior to 1987. The evidence of Dr Wong (and the report of Dr Lucas) indicates that the Applicant has gained little by way of insight into his serious offending. Any process of treatment or counselling which may assist in this respect is yet to occur.

267 The risk assessment undertaken by Ms Rosen, and the assessment by Dr Wong, do not provide support for the Applicant. It is the opinion of both that there is an appreciable risk of reoffending by the Applicant.

268 The need to preserve the safety of the community and, in particular, women in the community, is a real and substantial impediment to the application to redetermine the Applicant’s life sentence.

Totality

269 It is clear that the totality principle applies to resentencing on a life sentence redetermination application: R v Salameh [1999] NSWCCA 300 at [30]. The circumstance that a person is a multiple offender is a material consideration in any sentencing exercise, including a life sentence redetermination application: R v Boyd (1995) 81 A Crim R 260 at 264.

270 In the present case, the Applicant has been subject to determinate sentences which expired (as to head sentence) in 2003. The sentences imposed by his Honour Judge Gibson QC in the Liverpool District Court in 1990 did not expire until May 2000. The offences for which these determinate sentences were passed included a range of offences committed against several victims, including KS.

271 In my view, it is appropriate for the Court, in considering a redetermination application, to have regard to the existence and duration of determinate sentences in deciding whether to set a non-parole period at all, as well as the question of the duration of any non-parole period. If I had determined to set a non-parole period in this case, I could not disregard the determinate sentences passed upon the Applicant because to do so would, in effect, mean that the Applicant was punished only for the murder, and not for the other offences: R v Purdey at 680; R v Salameh at [30]-[36]; R v Maiden [2000] NSWCCA 519 at [21]ff.

272 As I propose to refuse the present application, it is inappropriate for me to say more concerning the application of the totality principle to this case.

Conclusion

273 Courts have observed that a Judge, on a redetermination application, has the advantage of hindsight when approaching the question of sentence: R v Malcolm (1991) 58 A Crim R 148 at 150, R v Page [2002] NSWSC 1067 at [69]. This is an advantageous position where information about, and professional observations of, the offender are much more extensive given the passage of years since imposition of the original sentence: R v Towner [2002] NSWSC 951 at [57]. In the present case, however, hindsight provides little assistance to the Court. This is because there has been no real therapeutic process by way of treatment or counselling which would assist an objective assessment of the Applicant’s prospects of reformation and rehabilitation, and the risk of reoffending.

274 I do not accept the Applicant’s submission that the interests of the community may be adequately protected at this time by the setting of a non-parole period with the State Parole Authority to consider the question of the Applicant’s release to parole at some future time.

275 I have formed the view that the application to fix a non-parole period, and to specify a term for the Applicant’s life sentence, ought be declined. The gravity of his crime of murder, taken with his serious history of criminality and the presently inadequate evidence concerning measures which would permit an objective assessment of a reduced risk of reoffending, lead me inexorably to this conclusion.

276 This is a conclusion which I would have reached even if I had not found that the Applicant sexually assaulted Miss X. However, that finding clearly does not assist the Applicant in this case. I stress that the Applicant is not being sentenced to a further term of imprisonment for the sexual assault on Miss X. That incident is being taken into account as part of the assessment of the Applicant’s prospects of rehabilitation, his risk of reoffending and with respect to the statutory factors of protection of the community and the public interest.

277 In my view, the present application is premature. The lengthy determinate sentences imposed upon the Applicant in 1987 and 1990 are such that, having regard to the principle of totality, more time should pass before further consideration is to be given to redetermination of the life sentence. Further, there is an inadequate and unsatisfactory evidentiary foundation for the Court to address the statutory criteria and, in particular, the protection of the community.

278 I am satisfied that the Applicant’s crime is a most serious case of murder. I am satisfied that it is in the public interest that a direction be made that the Applicant not be permitted to reapply to the Court for a period exceeding three years. The phrase “in the public interest” takes its meaning from the statutory context in which it appears: R v Kalajzich at 49. It classically imports a discretionary value judgment, and a determination where the public interest lies is a question of fact and degree: WorkCover Authority (NSW) v Law Society of NSW (2006) 65 NSWLR 502 at 533 [146]. Factors which bear upon the public interest, in this context, include those referred to in paragraph 277 above. An emphatic statement must be made to the Applicant that he should take more effective steps to advance his own cause with respect to treatment and counselling, if further application for redetermination is to be made by him.

279 If the Applicant is prepared to undertake the CUBIT program, and that opportunity could be made available to him by custodial authorities, it is apparent that such a course could advance the public interest in this case. The Crown drew my attention to the decision of Newman J in R v Clarke [1999] NSWSC 1225, where a life sentence redetermination application was refused to an offender who was able thereafter to undertake the CUBIT program, leading to a later setting of a non-parole period by Hidden J: R v Clarke [2005] NSWSC 413.

280 If it is open to the prison authorities to facilitate the Applicant’s entry into the CUBIT program, or some other or equivalent program, that course would appear to be highly desirable. In raising this prospect, I should not be understood as indicating that, if the Applicant completes such a program, he will be liable to succeed on a future redetermination application. If such application is made, it will be a matter for the presiding Judge to determine, on the evidence before the Court, whether the application ought be granted.

281 I have been led to make these observations because the common view of Dr Wong, Dr Lucas and Ms Rosen is that it is more than highly desirable that the Applicant have an opportunity to undertake the CUBIT program.

282 Having regard to the various factors to which reference has been made in this judgment which bear upon the fixing of a period during which the Applicant may not bring a further application, I am satisfied that a direction ought be made that he not reapply to the Court for a period of seven years from today.

283 I make the following orders:

(a) pursuant to cl.4(1)(c), Schedule 1 of the Crimes (Sentencing Procedure) Act 1999 , I decline to specify a term for the life sentence imposed on ASP on 14 October 1988 and I decline to specify a non-parole period for the said sentence;

(b) pursuant to cl.6(1)(b), Schedule 1 of the Crimes (Sentencing Procedure) Act 1999 , I direct that ASP not reapply to the Court for a period of seven years from today, that is not before 13 April 2014, for the determination of a specified term and a non-parole period for the sentence referred to in Order (a) above.

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