King v The Queen

[2001] WASCA 198

KING -v- THE QUEEN [2001] WASCA 198

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASCA 198
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:158/2000	Heard:	16 MAY 2001
Coram:	WALLWORK J STEYTLER J WHEELER J	Delivered:	29/06/01
No of pages:	27	Judgment Part:	1 of 1
Result:	Appeal against conviction dismissed Appeal against sentence dismissed
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Parties:	RODNEY NATHAN KING THE QUEEN
Catchwords:	Appeals Appeal against sentence aggravated burglary Whether manifestly excessive Appeals Appeal against sentence Parole Appeals Appeal against sentence Backdating of sentences Proper construction of s 87 of Sentencing Act 1995 Criminal law Burden of proof Issue of consent as element of two offences on indictment Failure of trial Judge to direct about two different burdens Misdirection relating to element of offence Whether proviso to s 689(1) Criminal Code applies Criminal law Particular offences s 62 Restraining Orders Act
Legislation:	Criminal Code Act 1913, s 689(1) Interpretation Act 1984, s 10(b), s 18 Restraining Orders Act 1997, s 62 Sentencing Act 1995, s 87
Case References:	Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 Krakouer v R [1998] HCA 43 R v Jones, unreported; SCt of WA (Scott J); Library No 970210; 30 April 1997 R v Lambley (1989) 40 A Crim R 430 Ratcliff v The Queen, unreported; CCA SCt of WA; Library No 980651; 3 November 1998 Thompson v The Queen (1992) 8 WAR 387 Veen v R (No 2) (1988) 164 CLR 465 R v Glennon (1994) 179 CLR 1 Wilde v The Queen (1987) 164 CLR 373

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : KING -v- THE QUEEN [2001] WASCA 198 CORAM : WALLWORK J

STEYTLER J
WHEELER J

HEARD : 16 MAY 2001 DELIVERED : 29 JUNE 2001 FILE NO/S : CCA 158 of 2000

CCA 159 of 2000

BETWEEN : RODNEY NATHAN KING

Applicant

AND

THE QUEEN
Respondent

Catchwords:

Appeals - Appeal against sentence aggravated burglary - Whether manifestly excessive

Appeals - Appeal against sentence - Parole

Appeals - Appeal against sentence - Backdating of sentences - Proper construction of s 87 of Sentencing Act 1995

Criminal law - Burden of proof - Issue of consent as element of two offences on indictment - Failure of trial Judge to direct about two different burdens - Misdirection relating to element of offence - Whether proviso to s 689(1) Criminal Code applies


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Criminal law - Particular offences - s 62 - Restraining Orders Act

Legislation:

Criminal Code Act 1913, s 689(1)

Interpretation Act 1984, s 10(b), s 18
Restraining Orders Act 1997, s 62
Sentencing Act 1995, s 87

Result:

Appeal against conviction dismissed

Appeal against sentence dismissed

Representation:

Counsel:

Applicant : Mr L M Levy
Respondent : Ms J A Girdham

Solicitors:

Applicant : Laurie Levy
Respondent : State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297
Krakouer v R [1998] HCA 43
R v Jones, unreported; SCt of WA (Scott J); Library No 970210; 30 April 1997
R v Lambley (1989) 40 A Crim R 430
Ratcliff v The Queen, unreported; CCA SCt of WA; Library No 980651; 3 November 1998
Thompson v The Queen (1992) 8 WAR 387
Veen v R (No 2) (1988) 164 CLR 465





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Case(s) also cited:

R v Glennon (1994) 179 CLR 1
Wilde v The Queen (1987) 164 CLR 373

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1 WALLWORK J: I have had the advantage of reading in draft the reasons to be published by Wheeler J. I agree with those reasons and with Her Honour's conclusions. I have nothing further to add.

2 STEYTLER J: I have had the advantage of reading the reasons for decision of Wheeler J.

3 So far as the appeal against conviction is concerned, I agree with her Honour's reasons and with her conclusion that, while the time within which to appeal should be extended, the appeal should be dismissed.

4 As regards the appeal against sentence, I am in respectful disagreement with her Honour in only one respect. That relates to the backdating of the applicant's sentence.

5 Because Wheeler J has fully set out the facts and circumstances giving rise to the appeal, I will not restate them save insofar as is necessary for the purpose of explaining the different conclusion at which I have arrived.

6 The learned sentencing Judge took, as the starting point for the sentences imposed by him in respect of both offences of which the applicant had been convicted, a total period of 8 years' imprisonment. He made no deduction for any matter of mitigation. He then reduced that total sentence to one of 7 years' imprisonment on account of the time which the applicant had already spent in custody and backdated that sentence to the date of the applicant's conviction on 16 December 1999. Next, he said that the sentences imposed by him would be broken down individually in such a way as to require the applicant to serve 7 years' imprisonment in respect of the first of the offences of which he had been convicted, being that of aggravated burglary, and 3 years' imprisonment, to be served concurrently, in respect of the second offence, being that of deprivation of liberty. He declined to make any order that the applicant should be declared eligible for parole, saying that he had seen nothing which suggested that he should be declared eligible for parole.

7 While the total sentence of imprisonment imposed by the sentencing Judge was, in my opinion, severe, I am, essentially for the reasons enunciated by Wheeler J (but subject to what I have said below as regards the issue of backdating), prepared to accept that it was not so severe as to take it outside the range of a reasonable sentencing discretion. However it seems to me, with due respect, that the sentencing Judge erred in the way in which he approached the backdating of the applicant's sentence and, as

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Wheeler J has found, in declining to order that the applicant be made eligible for parole.

8 Because I agree with all that Wheeler J has said as regards the issue of eligibility for parole, it is necessary for me to deal only with the issue of the backdating of the applicant's sentence.

9 The applicant had been in custody since 21 November 1998, a period of almost 13 months prior to the date of his conviction. If, as the sentencing Judge said, an appropriate starting point for the two offences was a total of 8 years' imprisonment, and if the only reduction was to be one which reflected the time already spent in prison by the applicant, then, in order to give effect to his Honour's evident intention, the best disposition was one which would backdate that sentence of 8 years' imprisonment to 21 November 1998.

10 This appears to have been recognised by his Honour. He said that, had it been the case that the only reason that the applicant was in prison from 21 November 1998 was because of the two charges of which he had been convicted, he could have backdated the sentence imposed to that day. However, he said, the applicant had also been imprisoned on charges, which then had yet to be heard, of driving offences in respect of which no application for bail had ("regrettably", his Honour said) been made. It consequently seems plain that it was only this which led his Honour to the view that the sentences should not be backdated to 21 November 1998 (although he also mentioned that the applicant had been refused bail in respect of the subject offences because of the content of telephone calls which he had made to others while in custody, in the course of which he had made threats of violence in respect of his wife and others).

11 It is evident that his Honour, in making these comments, had in mind the provisions of s 87 of the Sentencing Act 1995. That section reads as follows:

"87. Taking time on remand into account

If when an offender is being sentenced to imprisonment for an offence -

(a) he or she has previously spent time in custody in respect of that offence and for no other reason; and

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(b) the sentencing court decides that that time should be taken into account,

the court may take that time into account -

(c) if it imposes a fixed term, by reducing that term by an appropriate period; or

(d) by ordering that the term it imposes is to be taken to have begun on a specified day being the day when that custody began or on some later date that is not later than the date of the sentence."

12 Read literally, that section would have the effect that, when an offender has been imprisoned pending a hearing on multiple charges, that offender could never, when sentenced, have his term of imprisonment reduced by an appropriate period accordingly or his term of imprisonment ordered to be taken to begin on or after the date when the custody began (but before the date of sentencing) if, at the time of sentencing, that offender was being dealt with for only one or some of those charges. Indeed, this would be so even if the other charge or charges had previously been dealt with and no credit given in respect of the time spent in custody. That could hardly have been the intention of the legislature. Rather, the legislature must have intended only that credit should not be given in respect of time in custody when that time was not, for sentencing purposes, able to be attributed solely to the offence or offences (see, in this respect, s 10(b) of the Interpretation Act 1984) in respect of which the offender was then being sentenced. That being, in my respectful opinion, the evident purpose or object of s 87, the preferred construction of that provision is that which promotes that purpose or object (as to which see s 18 of the Interpretation Act) rather than a literal interpretation which, in my opinion, would plainly lead to an absurd and irrational result which could not have been intended (see Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320 - 321).

13 It consequently seems to me that it was open to the sentencing Judge to have done that which, on the face of it, he would have preferred to do, namely order that the total period of 8 years' imprisonment should be taken to have begun on 21 November 1998, from which date the applicant was held in custody in respect of the offences for which he was then being sentenced, even if the applicant had been held in custody in respect, also, of the driving offences, which had then not yet been dealt with. It would necessarily follow, from the operation of s 87 of the Sentencing Act, that,

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when the applicant came to be dealt with for those driving offences, credit could not again be given for the time in custody in respect of which credit had already been given, if the applicant was then sentenced to a further period of imprisonment.

14 In fact it appears that the sentencing Judge was, through no fault of his own, in any event in error in this respect. We were told (without contradiction by, or objection from, counsel for the respondent) that the applicant had in fact been granted bail in respect of the driving offences as long ago as 1 October 1998, albeit the sentencing Judge was not told of this, presumably because the applicant's then counsel was not aware of this. The applicant was later convicted of those offences and fines were imposed in respect of them. I am prepared to assume, in this last respect, that no credit was then given for any time spent in custody, having regard for the terms of s 87 of the Sentencing Act taken together with the fact that credit had by then been allowed for that time in custody in respect of the matters now under appeal.

15 Next, I should say that this is, in my opinion, a case in which, not only could the sentences of imprisonment imposed by the sentencing Judge have been backdated to 21 November 1998, as his Honour appears to have wished to do, but one in which they should have been so backdated.

16 While it may be so, as counsel for the respondent submitted, that the applicant was unsuccessful in obtaining bail because of concerns raised by the applicant's threats to his wife and others, his conduct in this respect was expressly taken into account by the sentencing Judge in arriving at the conclusion that there was a need for what he described as a "most specific" deterrent, being one of the factors taken into account in arriving at the "starting point" of a total of 8 years' imprisonment. His Honour also took this conduct into account in concluding that the applicant had shown no remorse and hence was not entitled to any deduction by way of mitigation in this (or any other) respect.

17 While we were referred, in this respect, to the cases of R v Lambley (1989) 40 A Crim R 430 and Ratcliff v The Queen, unreported, CCA SCt of WA; Library No 980651; 3 November 1998, each of those cases, on my reading of them, stands only for the proposition that issues of this kind call for the exercise of a discretion (see Lambley at 440, per Kennedy J, and Ratcliff at 4, per Murray J). I am not persuaded, in circumstances in which the matters referred to had already been taken into account in arriving at a total period of imprisonment which should be served by the

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applicant, that there was any discretionary basis for declining to order that the total period of imprisonment should be taken to have begun on the date upon which the applicant was first taken into custody.

18 I have said, in this respect, that it seems to me that the sentencing Judge wished to sentence the applicant to a total period of 8 years' imprisonment, including time already spent in custody. This was not able to be achieved by backdating that sentence to the date of conviction and then deducting 1 year's imprisonment from the total imposed in order to take into account the period of imprisonment already served by the applicant. Quite apart from the fact that the applicant had, by the date of his conviction, already served nearly 13 months' imprisonment, the fact is, as Wheeler J has pointed out, that spending one year in custody is, for practical purposes, equivalent to serving a sentence of 3 years' imprisonment if parole is granted.

19 In all of the circumstances I would grant the applicant leave to extend time and to appeal against the sentences of imprisonment imposed upon him. I would also allow the appeal against sentence to the extent that I would order that, in lieu of the sentence of 7 years' imprisonment imposed by the sentencing Judge with effect from 16 December 1999, the applicant be sentenced to a total period of 8 years' imprisonment, backdated to 18 November 1998 and that the applicant be declared to be eligible for parole.

WHEELER J:

The Applications

20 The applicant seeks leave to appeal out of time against conviction and to apply for leave to appeal in relation to his sentence in relation to one count of aggravated burglary and committing an offence (breach of restraining order) contrary to s 401(2) of the Criminal Code and one count of deprivation of liberty contrary to s 333 of the Criminal Code, for both of which he was convicted on 16 December 1999. On 8 February 2000 he was sentenced to 7 years' imprisonment on count 1, together with a 3 year concurrent term in relation to count 2, without eligibility for parole. The sentence was ordered to commence from 16 December 1999, the applicant having been held in custody since his arrest on 21 November 1998. Bail had been refused for reasons that I will come to shortly. It is convenient to deal with the merits of the proposed appeal and application, before turning to the question of whether time should be extended.

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Background

21 The applicant and complainant had been married for approximately 13 years and there were at the relevant time three children of the marriage aged 8, 5 and 3. The applicant and his wife were separated. It was the Crown case at trial that initially, pursuant to an agreement, the applicant had moved out of the matrimonial home but returned to it daily to see his children while his wife worked. However, after a short time, his behaviour deteriorated and his wife obtained a restraining order, which was served on him 9 October 1998. Between that date and 8 November 1998, despite the order, she met with him on a number of occasions so that he could see their children. However, he was aggressive towards her and made many threats, including threats to kill her. On 8 November 1998 she sought refuge with the children in a women's refuge and then on 13 November, moved to a house in Forrestfield without revealing her whereabouts to the applicant. On 21 November 1998, having obtained the address from another source, the applicant attended at the house in Forrestfield between 6.30 and 7.00 am. Before she opened the door, his wife asked who it was and he replied, "It's just a neighbour". She unlocked the door; the applicant pushed it open and in doing so knocked her to the ground. She screamed and became hysterical. The applicant pulled her to her feet and slapped her. She ran from the house screaming but returned to the house because her children were there and the applicant remained inside it. A neighbour gave evidence as to having seen Mrs King run outside the home at about 6.30 am looking distressed.

22 The applicant took his wife into the kitchen, sat her on a chair in a corner and told her not to move. Thereafter his behaviour towards her was threatening. He told the children that she was a ghost, that she was going to burn, and that they would smell her burning. When his back was turned, she ran into the lounge room in order to call the police but he stopped her and returned her to the kitchen. The return to the kitchen is the matter which constituted count 2, the deprivation of liberty.

23 Thereafter, Mrs King offered to go out to the shops to get milk but the applicant refused to permit this, saying that he did not trust her, and took her and the children to two petrol stations in his car to purchase milk and cigarettes. When he left the car, he told her to stay in the car. Later he drove her and the children to Hamilton Hill to collect his pay and then returned to the house. Some time after 1.00 pm, he left the house in order to attend to one of the children, who had fallen from his bike. Mrs King

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then rang 000 and sought police assistance. Police attended and arrested the applicant.

24 The applicant participated in a video record of interview during which he stated that Mrs King had telephoned him on the previous evening, told him her address, and asked that he attend to fix her car. He made certain admissions which suggested that he agreed that he had made threats to her in the past. However, on 24 December 1998, the applicant rang a Ms Metselaars and stated to her that a third party had told him of Mrs King's address. The tape-recording of that conversation was played to the jury. It was not put to Mrs King during cross-examination that she had telephoned the applicant and asked him to attend to fix her car, and the applicant did not give evidence.

Appeal Against Conviction: s 62 Restraining Orders Act 1997

25 The sole ground of appeal against conviction is that the learned trial Judge erred by failing to direct the jury with respect s 62 of the Restraining Orders Act 1997, and thereby failed to properly direct the jury in relation to the issue of consent. It is convenient, before turning to that question, to set out count 1 in the indictment which reads as follows:

"(1) On 21 November 1998 at Forrestfield RODNEY NATHAN KING being in the place of SANDRA KING without her consent, being a place ordinarily used for human habitation, committed the offence of breach of a violence restraining order number 1998 000447 (AR)

AND THAT RODNEY NATHAN KING detained SANDRA KING

AND THAT immediately before the commission of the offence RODNEY NATHAN KING knew or ought to have known that there was another person in the place."

26 In order to understand both the error which it appears to me clearly was made, and of which the applicant complains, and the Crown's response to it, it is necessary to set out the course of his Honour's directions to the jury as they related to the elements of being in the place of Sandra King "without her consent" and commission of breach of the restraining order. The restraining order restrained the applicant from doing a number of things. However, the one which the Crown relied upon, and alleged that the applicant had breached, was its direction that

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the applicant refrain from entering upon any premises where Mrs King lived.

27 Towards the beginning of his Honour's directions, he advised the jury that the burden of proof was on the prosecution from beginning to end of the criminal trial. He explained that the burden of proof and the standard of beyond reasonable doubt were to be applied to each and every element of the offences charged against the applicant. His Honour then emphasised that point, explaining that if a count on the indictment had four elements and the jury was satisfied only of three, it would be unable to convict. He referred in detail to the presumption of innocence. Having explained those general principles, his Honour turned to the indictment. Towards the beginning of his Honour's direction in relation to the first count, his Honour referred to "the question" in the case as being whether the applicant was there with Mrs King's consent, contrasting that with the question of whether the person at the house was indeed the applicant, a matter which was theoretically for the jury to determine but was not seriously in question. His Honour then mentioned that there was also no serious dispute about whether the place was the place of Sandra King, but reminded the jury that it was an element of the offence which had to be established beyond reasonable doubt. His Honour identified the issue that "has become the central issue here; that is, was Mr King in Mrs King's place without her consent?" His Honour noted that the jury should have no difficulty with establishing that the place was ordinarily used for human habitation.

28 Then turning to the restraining order, his Honour noted that the restraining order itself was exhibit 4 and said to the jury the following:

"… The position is that it is clear and unequivocal in its terms and there is no issue but that Mr King was in the place of his wife in breach of that violence restraining order. He says, in his video record of interview to the police, that he thought that if he was invited he wouldn't be in breach of the order. Now, that is what is properly called an opinion of law. Here saying what his opinion was as to the effect of a court order. That's a matter of law. If he was mistaken as to a question of law then, frankly, that does not afford him any defence.

I will say it again: the court order and its meaning and its effect is a matter of law and if he mistakenly believed that he would not be committing a breach of a violence restraining order if he went into those premises at his wife's invitation, then that

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mistake affords him no defence. I will come back to the question of consent and mistake directly but I want you to be clear on that. A mistake of the legal effect of the violence restraining order is not a defence."

29 During the course of the trial, no one adverted to s 62(1) of the Restraining Orders Act 1997. It relevantly reads:

"Subject to subsection (2) it is defence to a charge of breaching a restraining order for the person who is bound by the order to satisfy the court that the person acted with the consent, as defined in s 139(2)(a) of the Criminal Code, of the person protected by the order.”

30 His Honour's direction was plainly wrong in law. Leaving aside the question of mistake, which seems to be a red herring first raised by the prosecution in speculating what the defence might be and later taken up in a number of points, it plainly would have been open to the applicant, as a matter of law, to satisfy the jury that he acted with the consent of Mrs King, she being the person protected by the order. If so, s 62(2) would have applied. The evidence that he acted with her consent, which was before the court, was his statement to the police during the course of the videotaped record of interview that she had invited him to help fix her car.

31 His Honour then dealt with the circumstance of aggravation of detaining Mrs King. His Honour reminded the jury of the videotaped record of interview in which the applicant said that he was at the premises with her consent. He then turned to the final circumstance of aggravation, with which it is not necessary to deal. His Honour then dealt with count 2 on the indictment.

32 His Honour then returned to count 1 and to the question of possible mistaken belief in relation to consent. He again reminded the jury of the videotaped record of interview and the account which the applicant gave in it. His Honour reminded the jury of the starkly differing accounts given by the applicant and by Mrs King. The possible mistake was put in this way:

"… He, having been given the address and being asked to go around to fix the car, assumed when he got to the door and the door was open, that his wife consented to him entering the premises. That's what he tells the police."

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33 His Honour told the jury that if they found an honest and reasonable but mistaken belief that the applicant had his wife's consent, then he must be acquitted. I pause to note that this is not an accurate way of putting the onus of proof in relation to mistake. However, the tenor of his Honour's following remarks to the jury was really to suggest to them that there was no real room for any issue of mistake. The basis for that was that, as his Honour noted, the "contrast between the two cases is stark". In the end, his Honour advised the jury that it was a matter for them how they evaluated the evidence but that there did not appear to him to be any room for mistake and the better view was that "either he was invited or he wasn't". There then followed directions about inferences, about relationship evidence, evidence of uncharged acts, and about lies which the jury might have found to have been told by the applicant, to none of which exception was taken.

34 So far as the direction in relation to mistake was concerned, it seems to have been common ground at the appeal that there was no evidence capable of raising any issue of mistake. The applicant's clear statement to the police is not that he had been mistaken, or that anything had been said to him which was ambiguous or capable of giving rise to a mistake, but that Mrs King had positively invited him to the premises. In those circumstances, his Honour's direction on this point had the effect of leaving open to the jury, as a somewhat remote possibility, an acquittal on the basis of mistake. It should not have been left, and it appears to me therefore that the failure to put to the jury with clarity the way in which the onus of proof operated in relation to mistake can have had no material effect upon the trial. It was, as counsel for the applicant noted, unfortunate that the matter was left to the jury at all in the sense that it unnecessarily confused the issue of consent. However, that confusion was, if anything, favourable to the applicant in that it was suggested to the jury that there was an alternative route by which they might, at least in theory, arrive at a verdict of acquittal.

Appeal Against Conviction Proviso s 689(1) Criminal Code

35 So far as the central issue in the case was concerned - that is, whether the applicant did attend at the house without Mrs King's consent - his Honour clearly identified that issue for the jury as forming one of the elements of the offence, which had to be proved by the Crown beyond reasonable doubt. No exception is taken to the direction in relation to this element.

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36 The position in this trial, then, was that there was an accurate direction, in relation to the element of being in the place of Sandra King "without her consent" that that element had to be proved beyond reasonable doubt before the jury could convict. By reason of the failure to advert to s 62(2) of the Restraining Orders Act, the jury was not also directed that in relation to the element of committing a breach of a violence restraining order, it would have been open to the applicant to prove to them on the balance of probabilities that he was in the place with her consent and that if he satisfied the jury in respect of that matter, that element would not have been proven. In law then, the issue of consent arose at two different places in the indictment and the burden in relation to each was different. The jury was told only that the burden in relation to consent was on the Crown and was not told that there was an element in respect of which an issue of consent might arise where the onus would be upon the accused. The error of law is clear. The question which then arises is whether it is open to this Court to apply the proviso to s 689(1) of the Criminal Code. If it is not possible to do so and the conviction on count 1 must be quashed, there also arises the question of whether, as counsel for the applicant submits, there was necessarily a "flow-on" effect to count 2 so that the conviction in respect of it must be quashed.

37 A misdirection relating to an element of the offence, particularly where the effect of the misdirection is to remove from the jury's consideration a defence which might otherwise be open to an accused person, is plainly a serious matter. However, even in such a case it may be open to the court to apply the proviso. Perhaps the closest analogy that I have been able to find to the facts of this case is that of Krakouer v R [1998] HCA 43. In that case, the appellant was convicted of conspiring to possess a quantity of a prohibited drug with intent to sell or supply to another and of attempting to possess a quantity of the drug with intent to sell or supply to another. In the course of his summing up, the trial Judge had wrongly told the jury that because of the quantity of the drug which the appellant had in his possession, he was deemed to have it in possession with intent to sell or supply. The effect of the direction was to remove an element of the offence from the jury's consideration.

38 In considering the application of the proviso to s 689, Gaudron, Gummow, Kirby and Hayne JJ said, in par [23] of their Honour's decision that:

"Each of the matters which we have mentioned (the fact that the misdirection concerned an element of the offence, occurred at the end of the trial and reversed the onus of proof) may invite

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the most careful attention to whether the proviso can be applied; each of these matters may be said to suggest that the jury may have been led into a false or unsafe chain of reasoning. But we are not persuaded that the fact that there has been a misdirection about one element of the offence with which the accused is charged means that the trial is necessarily fundamentally flawed. After all, most cases of misdirection will concern directions about matters relevant to the jury's deliberations and yet the proviso requires that not every 'wrong decision on any question of law' lead to the quashing of the conviction or a new trial."

39 Their Honours added at par [24]:

"It may be that a misdirection which has the effect of denying procedural fairness and depriving an accused person of the right to have some substantial part of his or her case decided by the jury would result in a trial that is fundamentally flawed. It may also be that a misdirection about burden of proof invites closer scrutiny of the question whether the trial was fundamentally flawed but in this case it is important to put the particular misdirection into the whole context of the trial."

40 In this case, in the whole of the context of the trial, the issue of whether the Crown had proved lack of consent beyond reasonable doubt was squarely before the jury. It is not possible, as a matter of logic, to reach a view that a jury, which was necessarily satisfied beyond reasonable doubt that the applicant was in the place without Mrs King's consent, might nevertheless have been persuaded by him, upon the same facts that on the balance of probabilities, he did in fact have her consent. In the context of this particular indictment, the failure to put the potential defence pursuant to s 62 of the Restraining Orders Act could only have been, if anything, favourable to the applicant. The reason for saying this, is that there is plainly a potential for confusion when precisely the same factual issue falls to be determined by a jury at different points in the indictment applying a different onus of proof in respect of each. It would require a very careful direction in those circumstances to keep firmly in the forefront of the jury's mind the fact that the first of the elements was one in relation to which the accused person carried no burden at all. In this case, once the issue of consent was determined adversely to the accused beyond reasonable doubt, the finding in relation to breach of the restraining order necessarily must have flown from that.
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41 However, there is a further issue which was raised in relation to this ground which requires consideration. It was suggested that the trial Judge, having advised the jury that the applicant had committed the offence of breach of a violence restraining order, must necessarily have had a prejudicial effect. It was suggested that a jury so advised might have been disposed to consider the applicant to be a person with a propensity to commit the type of offence charged in the indictment, and that the reflection upon his character might have made members of the jury more readily disposed to reject the explanation which he gave in his video-taped interview with police officers. There are three reasons why, in my view, no such prejudicial effect would have followed from his Honour's direction in this case.

42 The first reason lies in the factual background to this case and the way in which both Mrs King and the applicant gave their evidence relating to the restraining order. It was acknowledged by Mrs King that on many occasions she had made arrangements to see the applicant notwithstanding that the restraining order was in existence. Her evidence was that she had "breached" the restraining order herself by engaging in this conduct. The applicant, in his address to the jury, accepted that he had breached the restraining order both on the earlier occasions referred to and on this occasion, merely by attending at premises where his wife was present. He said that both he and she had "breached" it often. Both Mrs King and the applicant were, as a matter of law, in error in the way in which they regarded the restraining order, but it is clear that on all occasions on which the "breach" of restraining order was discussed, it was assumed that an order could be breached by the applicant merely being in Mrs King's presence regardless of whether she had consented or not. It is, I think, a fair summary of the evidence to suggest that it was, whether accurately or not, accepted on all sides that a breach of a restraining order was not a matter of significance and carried no particular stigma unless it was also accompanied by a lack of consent on Mrs King's part or some other unlawful or improper act.

43 Second, so far as unlawful and improper acts which may have been committed by the applicant were concerned, his Honour gave a detailed direction in relation to propensity evidence in any event. This was necessary because there was as part of the background to the events in question, evidence which suggested that on prior occasions the applicant had threatened to burn Mrs King, that he had threatened her with a knife held to her throat, placed his fingers around her neck, shaken her and head-butted her. His Honour warned the jury that they might not go from a conclusion that the applicant had committed any of those acts to say that

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it followed that he must have done some other act. His Honour warned the jury of that danger very clearly and, although he did not expressly refer to any breaches of a restraining order in that context, it must have been plain that the way in which the jury could regard those very serious acts alleged must also have been the proper way to regard the alleged breaches of the restraining order.

44 Finally, it is my view that the evidence in relation to Mrs King's lack of consent was in any event overwhelming. She gave very detailed evidence of her attempts over a significant period of time to distance herself from the applicant, her increasing concern, and the increasingly drastic steps she took in order to avoid him. In his video-taped record of interview, although he down-played the extent of any conflict, there were certain admissions made by the applicant which tended to support the evidence which Mrs King gave; for example, there is an admission that he had on one occasion suggested that he would burn her. Her evidence as to her distress on the morning of 21 November was supported by the evidence of a neighbour with no apparent prior connection with any of the parties. As against those matters, the only evidence giving rise to any suggestion that the applicant may have had Mrs King's consent was his unsworn statement to the police that he had been invited to the premises by her to help fix her car, which statement was contradicted by the evidence of the taped conversation with Mrs Metselaars in which the applicant admitted to her that a third person had told him where Mrs King lived. In all those circumstances, it is my view that his Honour's erroneously advising the jury that the applicant had breached the restraining order simply by going to the house in which Mrs King then lived, could not have had the prejudicial effect contended for.

Extension of Time

45 In relation to the application for leave to extend time in relation to this appeal against conviction, I take the view that the delay is a significant one. It could properly be described as "gross". However, there is plainly merit in the ground of appeal, since there was a clear error of law made in his Honour's direction. So far as the explanation for delay was concerned, there is an affidavit filed by the applicant which is to the effect that he requested his lawyer to lodge an appeal against conviction immediately following his conviction, that he then wrote to the Anti-Corruption Commission, and that despite prompt inquiries, application materials were not received by him from the Legal Aid Commission until February 2000. The applicant then wrote to the Hon Attorney General

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about the conduct of the trial, receiving a reply in June 2000. It is not clear from the affidavit whether the applicant continued to attempt to pursue his appeal between his time of writing to the Hon Attorney General in February and the date of the reply in June. However, by July 2000, he had filed notices of appeal against conviction and sentence and a notice of application for an extension of time within which to appeal, and then followed those matters up with the Legal Aid Commission. There do appear to be some unexplained periods of delay, but it appears that the whole of the delay is not attributable to the applicant, and it must be borne in mind that he is a man of relatively limited education and resources and has had difficulty in taking appropriate steps while in custody. It would therefore appear to me to be an appropriate matter in which to extend time within which to appeal.

Conviction: Conclusion

46 Although I am of the view that an error of law was made in his Honour's direction to the jury, for the reasons which I have outlined it is my view that in the circumstances of this case, that error occasioned no substantial miscarriage of justice. It is therefore necessary to consider the appeal against sentence.

Appeal Against Sentence

47 The appeal against sentence falls into three parts. In the first part it is said that the sentence imposed was manifestly excessive in the circumstances of the offences and of the applicant. When regard is had to the particulars and to the submissions made, it appears that the emphasis in relation to this ground is upon the circumstances of the applicant, rather than of the offences.

Whether Manifestly Excessive

48 His Honour arrived at the view that the starting point for an appropriate sentence in relation to the two offences, looking at them globally (and, apparently, having regard to matters of mitigation), was in the range of 8 years' imprisonment, which his Honour reduced for reasons to which I will shortly turn. His Honour then imposed a sentence of 7 years in respect of the aggravated burglary and an additional concurrent sentence of 3 years' imprisonment in respect of the deprivation of liberty, the purpose of which was said to be to mark the seriousness of that offence and to act as a deterrent. It is plain that there is a substantial

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degree of overlap between the two offences. On one view, the deprivation of liberty may be seen as the more serious of the two, having regard to the fact that it was the beginning of a fairly lengthy period during which the complainant was held against her will and was terrorised by the applicant. However, the element of detention of Mrs King was also a circumstance of aggravation in respect of the burglary, and no complaint is made about the structure of the sentence as opposed to the overall term.

49 Before turning to the applicant's antecedents, it is important to note that his Honour had had the benefit of a trial during which he had observed both Mrs King and the applicant. He had been able to observe the applicant closely, since the applicant had discharged his counsel part way through the trial and had conducted cross-examination and closing submissions thereafter in person. Recognising the seriousness of the offences, his Honour urged the applicant to obtain the services of counsel in making submissions in mitigation of sentence, and the applicant did so. There were lengthy submissions directed to the circumstances of the applicant. His Honour also had the advantage of listening to tape recordings of conversations in which the applicant had telephoned others while in custody awaiting trial, had spoken of his wife in a very vindictive fashion, and had made threats concerning her and others.

50 Against that background, his Honour made a number of observations about these offences. He noted that, against the background of the applicant's previous conduct and having regard to the evidence of Mrs King, his Honour accepted that when he first entered the house she thought that she was going to die. The applicant continued to terrify her and made horrifying threats to her in the presence of their children. His Honour formed the view that the offences were at the upper end of the scale of seriousness for offences of these types and that only the perpetration of actual physical violence upon a person during the course of such an offence could have made them worse. His Honour formed the view that he had seen no evidence of any remorse on the part of the applicant for his conduct. On the contrary, his Honour formed the view that he was a very violent man and a serious threat to his wife. His Honour further formed the view that so far as the children were concerned, they were a means of attempting to exercise control over the applicant's wife, and expressed doubts about any other feelings which the applicant might have for them.

51 It is against a background of those facts and having regard to the statutory maximum of 20 years' imprisonment in respect of count 1, that it is necessary to evaluate the allegations that the learned sentencing Judge

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failed to give proper weight to: the applicant's lack of relevant convictions and otherwise favourable antecedents; the break-down of his marriage; the loss of his contact with his children; his incarceration prior to trial; a psychiatric report which was said to have concluded that his behaviour was out of character; and the fact that he had acknowledged "wrong doing" prior to trial.

52 As far as the breakdown of the applicant's marriage is concerned, such an event is distressing for most people, but does not begin to explain the conduct in which the applicant then engaged. It is difficult to see it as a matter of mitigation, rather than simply background material. The applicant's loss of contact with his children was, on the view taken by his Honour, entirely caused by the applicant's behaviour. His Honour appeared to be of the very reasonable view that a man who could threaten to burn their mother in front of three small children could not be seriously concerned for the welfare of those children.

53 The period of incarceration prior to trial is a matter to be taken account of in another way, and I will return to that. The applicant's lack of relevant prior convictions and the conclusion (apparently stemming directly from the lack of prior convictions) that the applicant's behaviour was "out of character" had to be set against the fact that these offences were a culmination of approximately two months of unremitting persecution of the complainant. There was not simply an isolated incident by a person of otherwise exceptional character. The acknowledgment of "wrong doing" could not be given any weight in the light of his Honour's view that the applicant had shown no remorse; indeed, the tenor of the recorded telephone conversations showed very plainly that the applicant did not regard himself as having done anything wrong and was still of the view that Mrs King had behaved very badly towards him and deserved severe punishment (by him) for it. Having regard to the circumstances to which I have referred, there is in my view no merit in the submission that the sentence was manifestly excessive.

Backdating

54 So far as the backdating of the applicant's sentence is concerned, it is said that the learned sentencing Judge erred in not backdating the applicant's sentence to the date of arrest "on the basis that bail had not been granted in relation to outstanding charges of driving without a licence".

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55 The applicant had been in custody since November 1998. He was convicted on 16 December 1999 and sentence was backdated to that date. There was, therefore, a period of a little over a year which the applicant had spent in custody awaiting trial. In addition to the matters the subject of this indictment, the applicant had been at the time charged with a number of offences involving driving without a licence. His Honour was informed that he had not been granted bail in relation to those offences. The learned sentencing Judge apparently took the view that he was not able to back-date the sentence by reason of s 87 of the Sentencing Act because the applicant had not been in custody in relation to these offences and "for no other reason", by reason of the driving offences.

56 Section 87 is not without its difficulties. When regard is had to the way in which s 87 is worded, it has the appearance of attempting to provide exhaustively for the circumstances in which credit may be given for time spent in custody; it not only introduces the new concept of back-dating a sentence, but also purports to describe the circumstances in which a court may reduce a fixed term which would otherwise have been imposed, which was the subject previously of an uncodified discretionary judgment by the sentencing Judge. If his Honour was right in the view which he took, there may have been an argument that his Honour was unable either to reduce the fixed term or to backdate it. However, the words "and for no other reason" in s 87(a) are not easily applied in this case. It is by no means clear now whether bail had not been granted in relation to the driving offences. We were told from the Bar table that it had. In any event, as his Honour recognised, had bail been sought in respect of those offences it might well have been granted. It is at least arguable that the substantial reason for the applicant being in custody was his being charged with these offences; R v Jones, unreported; SCt of WA (Scott J); Library No 970210; 30 April 1997.

57 However, his Honour was also aware that the threatened telephone calls to which I have referred had been the reason why the applicant had been unsuccessful in his bail applications in relation to these offences. The Crown had submitted to his Honour that, while it was appropriate to give credit for some of the time which the applicant had spent in custody, it should also be recognised that his continued custody was attributable to his own threatening behaviour in those numerous calls. While ordinarily, where the question of giving credit for time in custody arises, the court will lean towards backdating the sentence completely to the time when the period in custody commenced, it is not bound to do so in circumstances where the offender's own conduct can be truly regarded as being responsible for his remaining in custody; R v Lambley (1989) 40 A Crim

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R 430 at 440 per Kennedy J and Ratcliff v The Queen, unreported; CCA SCt of WA; Library No 980651; 3 November 1998.

58 His Honour was aware that a period of a little over one year in custody would be equivalent to a sentence of approximately 3 years' imprisonment if parole were granted, or proportionately less if parole were not granted depending upon the term imposed. He did not grant parole and he reduced the sentence which he would otherwise have imposed by one year.

59 In due course, the applicant was dealt with in relation to the driving offences and received a penalty by way of fine. This Court was not advised of the circumstances of those offences and has before it no relevant material in relation to that sentencing. The tape-recording of those proceedings has, in any event, now been deleted because no request was made for a transcript before the expiry of the time limited for appeal. The difficulty that all this presents is that the Court has no way of knowing whether the sentence imposed in relation to the driving offences was truly proportionate to those offences or had been in any way reduced or affected by the fact that the applicant's long period in custody prior to trial was in part attributable to them.

60 In the result, there were on any view circumstances which would have entitled the learned sentencing Judge not to give the applicant the full benefit of the time spent in custody prior to trial. His Honour allowed a significant credit to the applicant by reducing the sentence that otherwise would have been imposed by 12 months. It appears from what we are told from the Bar table that the primary reason attributed by the learned sentencing Judge for not backdating the sentence was in error. However, I am not persuaded that the appropriate order would have been to backdate the entire sentence to the date of arrest; further, in the light of the uncertainties surrounding the outcome of the driving charges, I am not persuaded that it would be appropriate to substitute any other credit for that allowed by his Honour.

Parole

61 Finally, it is argued that the learned sentencing Judge erred by failing to properly consider the question of whether the applicant should be declared eligible for parole. There are a number of aspects of this ground. The first can, I think, be disposed of briefly.

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62 It is said that the learned sentencing Judge placed undue weight on the contention that the applicant posed a future threat to the complainant. It should be noted that his Honour took the view that the applicant was not only a threat to the complainant but could possibly be a threat to their children, a finding which was not unreasonable in the light of the extraordinary behaviour in which the applicant had been prepared to engage while the children were present.

63 It is plain that it is not permissible to impose a sentence beyond that appropriate to the crime merely in order to protect society or a portion of it: Veen v R (No 2) (1988) 164 CLR 465 at 473. However, I have already explained why, in my view, the sentence imposed was proportionate to the offences. The question of eligibility for parole gives rise to somewhat different considerations.

64 Parole serves to mitigate punishment as well as provide an opportunity for rehabilitation: Thompson v The Queen (1992) 8 WAR 387 at 395. The need to protect the community, or particular members of it, is a factor relevant to the exercise of the discretion to grant or refuse parole both by the sentencing Judge and, should an order be made, by the Parole Board: Thompsonat 396. Having regard to the nature and degree of the threat posed to the complainant by the applicant, as found by his Honour, protection of the complainant was plainly a factor of considerable importance and I am unable to find that his Honour placed undue weight on it.

65 It is also asserted that the learned sentencing Judge gave insufficient weight to:

(i) The psychiatric report of Dr Moore [sic] … which recommended that the applicant be given guidance and supervision upon his release into the community, and concluded that his behaviour in relation to the incident was out of character.

(ii) The pre-sentence report dated 27 January 2000 which recommended that if a custodial sentence was imposed upon the applicant he should be considered eligible for parole upon completing an Alternative to Violence Program."

66 These submissions are taken direct from the minute of proposed amended grounds of application for leave to appeal against sentence. The difficulty with each of them is that they refer to small portions only of

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what are necessarily complex and detailed documents. Neither report is in my view accurately described by those grounds.

67 So far as Dr Wood is concerned, Dr Wood noted the angry and abusive threatening telephone calls which were still being made by the applicant from time to time as of February 2000. He referred to the applicant's pathological gambling. He noted that the applicant perceived himself as "an innocent man raging angrily at his tormentors". He noted the tenacity with which the applicant justified the threatening phone calls and suggested that that behaviour had the "same type of pseudo rationalisation, self-defeating qualities and repetitious impulse relief the compulsive gambler expresses". To my mind at least, this suggests that the attitude towards his wife and a number of others involved in the applicant's trial, which was displayed in those telephone calls was something which the applicant was prepared to defend, justify and continue.

68 Dr Wood noted that it was difficult to prognosticate on future risk to others in the absence of a long history of violence. Although he did say that "as Mr King must be released from prison eventually, it is probably more useful to put structures in place to monitor and reduce the risk when released, than to try to second guess the future". Dr Wood went on in his recommendations to the court to note that when released from prison, either at the end of sentence or on parole, the applicant would benefit from "close supervision" in the community and that it would be necessary to "monitor and act upon threats that he may make whilst in the community". It was also suggested that it would be appropriate to make non-contact with those whom he had threatened, a requirement of his release from prison. The clear tenor of this report is that there is a distinct likelihood that the applicant will pose a serious threat to others, (particularly the complainant) upon his eventual release from prison, although the degree of risk is difficult to quantify. The type of close supervision apparently envisaged by Dr Wood appears to be much more intensive than that currently available in relation to paroled offenders. It is difficult to see, as his Honour remarked, how any conditions could be imposed which would keep the applicant away from Mrs King if he were to continue in his present attitude towards her.

69 Dr Wood also, however, made the observation that these offences were “out of character”. I will return to that matter.

70 So far as the pre-sentence report is concerned, it too noted that the applicant was unwilling to acknowledge his involvement in committing

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the offences and appeared to justify his on-going anger. Recommendations which were made about him in the pre-sentence report have to be read in the context of the comment that "given that King was unwilling to provide any reference or acquaintances … it is difficult for the writer to properly determine the extent of the considered risk that he poses …". The normal practice in relation to such reports is for the writer to obtain from the offender permission to interview others who may have a knowledge of his past and of his character, particularly family members and long-standing friends. However, it appears that in compiling the pre-sentence report the writer had available only information provided by the applicant himself and prison and Ministry of Justice records. It does appear from the report that the applicant had attempted to enrol in an anger management program, and this may be an indication of a more constructive attitude emerging, at least on occasion.

71 Finally, although it is not directly raised by the grounds of appeal, I should note that criticism has been directed to the way in which his Honour dealt with the issue of eligibility for parole. His Honour made only these observations in respect of parole:

"There is one final matter for me to consider and that is whether you should be declared eligible for parole? This is a most difficult matter in the circumstances of this case, particularly having regard to the comments in the pre-sentence report and the psychiatric reports which were prepared for the court at my request. Whilst ordinarily there is a leaning towards granting parole, parole is not automatic and generally one looks for signs that an offender such as you will benefit for spending part of his or her sentence in the community.

I have seen nothing which suggests that you should be made eligible for parole and I decline to order that you be so eligible."

72 Properly understood, I think the suggestion that there was "nothing" which suggests that the applicant be eligible for parole was a reference back to the comments in the pre-sentence and psychiatric reports. In my view, it was certainly open to his Honour to take the view that those reports were not such as to suggest that in terms of the rehabilitation of the applicant he was likely to benefit from serving the relevant portion of the sentence under supervision in the community.

73 Against the real risk to others apparently posed by the applicant, however, must be set his good antecedents. He was at the time of

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sentencing 36 years of age and had no previous record of violent offending. His only past offences were relatively minor, most of them relating to speeding. His wife’s evidence at trial was that, prior to the few months leading up to these offences, he had not been violent or threatening towards her in their 13 years of marriage.

74 The applicant had had a stable work history, and it appears that his pathological gambling only really emerged following an injury which left him unable to work for some time. The long history of work and marital stability, and prior lack of violent offending, are in stark contrast with the present offences and with the relatively short period of disturbing behaviour which led up to them.

75 An offender’s antecedents are always of relevance to the question of parole eligibility. In this case in particular, the contrast between the applicant’s antecedents and his recent behaviour, suggest that it is at least possible that the applicant may, with time and guidance, return to his former apparently rational, non-offending, behaviour. It does not appear, from the remarks of the learned sentencing Judge that he turned to consider this possibility.

76 It is important to bear in mind that an order of eligibility for parole does not automatically result in the granting of parole. Much depends upon the attitude of the applicant at the time. As Dr Wood has said, it is difficult to prognosticate in that regard. While the applicant still suffers from resentment, anger and frustration, and a failure to acknowledge the shortcomings in his own behaviour, it may be that his emotions will settle, and his judgment improve, over the period of his incarceration, leading to the prospect that he will be granted parole if now declared eligible. It is noteworthy, in this respect, that he has already made attempts to be allowed to enrol in an anger management program (as appears from the pre-sentence report) and that, according to Dr Wood, he had, by the time of Dr Wood’s report (7 February 2000), already been “indulging in fewer of these [angry, abusive and threatening] phone calls”. It is also apparent from transcripts of these telephone calls that he continues to have support and sensible advice from his brother, who has repeatedly urged him to take a more balanced approach to his situation.

77 However if it should turn out that the applicant does little or nothing to improve his present mental state (and it is, I think, fair to say that he has, until now, been his own worst enemy) and if he should, as a consequence, be seen still to constitute a threat to others when the issue of

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his parole falls to be considered, then it is most unlikely that he would then be granted parole, even if he is now declared to be eligible.

78 When the competing considerations are weighed up, it seems to me, the balance tilts in favour of an order declaring the applicant to be eligible for parole. His favourable antecedents and the contents of the pre-sentence report and of Dr Wood’s report all suggest that there is at least some prospect that, over time and with ongoing advice and assistance (in the form of an anger management course and otherwise), the applicant’s mental state will settle in a more constructive and favourable way. While I would not doubt that the protection of the complainant, and others, is a fact of critical importance, it seems to me that the best time to assess any risk in that respect is in the future, when the issue of parole is considered by the Parole Board and after the applicant has had a further opportunity to bring his emotions under control. If by then, genuine efforts have been made by him in this regard, and if there has then, as a consequence, been a real improvement in his state of mind, to the extent that he is no longer seen to pose a risk to anyone (and, as Dr Wood has said, he must, in any event, eventually be released), I have no doubt that he, and the community, would be best served by his being assisted to integrate back into the community and rebuild his life, subject to some supervision, in an appropriate way.

Sentence: Conclusion

79 I would grant leave to extend time and to appeal against sentence, having regard to the explanation for the delay to which I have already referred, and having regard to the somewhat difficult questions which arise. I would allow the appeal against sentence to the extent of ordering that the applicant be eligible for parole.