Norrie v R

[2008] NSWCCA 185

New South Wales
Court of Criminal Appeal

CITATION:	Norrie v R [2008] NSWCCA 185
HEARING DATE(S):	1 May 2008
JUDGMENT DATE:	8 August 2008
JUDGMENT OF:	Campbell JA at 1; James J at 2; Johnson J at 3
DECISION:	Leave to appeal granted, appeal dismissed.
CATCHWORDS:	SENTENCING - application to redetermine life sentence - imposed in 1987 for murder - application refused - direction that applicant not reapply for redetermination for a period of 20 years - application for leave to appeal from fixing of 20-year preclusion period - nature of appeal to Court of Criminal appeal - factors relevant to fixing of preclusion period - protection of the community - public interest - heinous offence - relevance of sentences for other offences - no patent or latent error in exercise of discretion in setting preclusion period
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Crimes (Administration of Sentences) Act 1999
CATEGORY:	Principal judgment
CASES CITED:	R v Norrie [2006] NSWSC 830 House v The King (1936) 55 CLR 499 Markarian v The Queen [2005] 228 CLR 357 R v Khouzame [2000] NSWCCA 505 R v Merritt (2004) 59 NSWLR 557 Lowndes v The Queen [1999] 195 CLR 665 R v Simpson (2001) 53 NSWLR 704 Baxter v R (2007) 173 A Crim R 284 R v Deng (2007) 176 A Crim R 1 R v Many (1990) 51 A Crim R 54 R v Fordham (1997) 98 A Crim R 359 R v Mostyn (2004) 145 A Crim R 304 R v Roberts (1994) 73 A Crim R 306 R v Norrie [2001] VSC 478 R v Norrie [2002] VSCA 232 R v ASP [2007] NSWSC 339 R v Qutami (2001) 127 A Crim R 369 R v Palu (2002) 134 A Crim R 174 R v Kalajzich (1997) 94 A Crim R 41 WorkCover Authority (NSW) v Law Society of NSW (2006) 65 NSWLR 502
PARTIES:	Andrew Mark Norrie (Applicant) Regina (Respondent)
FILE NUMBER(S):	CCA 2006/5266
COUNSEL:	Mr PM Strickland SC (Applicant) Mr L Babb SC; Ms LM Wilson (Respondent)
SOLICITORS:	Legal Aid Commission of New South Wales (Applicant) Director of Public Prosecutions (Respondent)
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	SC L00014/95
LOWER COURT JUDICIAL OFFICER:	Bell J
LOWER COURT DATE OF DECISION:	22 August 2006
LOWER COURT MEDIUM NEUTRAL CITATION:	Rv Norrie [2006] NSWSC 830

2006/5266

CAMPBELL JA
JAMES J
JOHNSON J

8 August 2008

ANDREW MARK NORRIE v REGINA

Judgment

1 CAMPBELL JA: I agree with Johnson J.

2 JAMES J: I agree with Johnson J.

3 JOHNSON J: On 31 July 1987, the Applicant, Andrew Mark Norrie, was sentenced by Finlay J to imprisonment for life for the murder of Ian Allan Breust. On 22 August 2006, Bell J (as her Honour then was) refused an application to redetermine the life sentence and declined to specify a non-parole period. In addition, her Honour directed that the Applicant not reapply for redetermination for a period of 20 years: R v Norrie [2006] NSWSC 830.

4 The Applicant seeks leave to appeal to the Court of Criminal Appeal solely in relation to the direction that he not reapply for redetermination for 20 years.

The Statutory Scheme for Life Sentence Redetermination

5 The application heard by Bell J fell to be determined under Schedule 1 of the Crimes (Sentencing Procedure) Act 1999. Clauses 3 and 7 of Schedule 1 specify matters to be considered by the Court on a life-sentence redetermination application. Clause 6 of Schedule 1 provides the statutory foundation for the preclusion order presently under challenge. Clause 6 states:

“ 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.”

6 The Court has a discretion under clause 6 of Schedule 1 to give a direction that an applicant be precluded from making a further redetermination application either permanently or for a specified period of time. A preclusion period exceeding three years may only be directed if the Court is satisfied that the requirements of clause 6(4) of Schedule 1 have been met. Her Honour was so satisfied in this case.

Nature of Appeal to Court of Criminal Appeal

7 An appeal lies to this Court in relation to a direction by the Supreme Court under clause 6(1): clause 8(1)(b), Schedule 1, Crimes (Sentencing Procedure) Act 1999.

8 The Criminal Appeal Act 1912 applies to such an appeal in the same way as it applies to an appeal against a sentence: clause 8(2), Schedule 1.

9 Thus, the present Applicant seeks leave to appeal against sentence, in the form of Bell J’s discretionary determination to specify a 20-year period under clause 6(1) of Schedule 1. Before this Court may intervene, it is necessary for the Applicant to demonstrate error in accordance with the principles in House v The King (1936) 55 CLR 499. In Markarian v The Queen [2005] 228 CLR 357, Gleeson CJ, Gummow, Hayne and Callinan JJ said at 370-371 [25]:

“As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v R [(1936) 55 CLR 499 at 504–5] itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender’s appeal, as ‘manifest excess’, or in a prosecution appeal, as ‘manifest inadequacy’.”

10 This Court is bound by the findings of fact of the sentencing judge unless they were not open on the evidence or unless error is shown in the House v The King sense: R v Khouzame [2000] NSWCCA 505 at [33]-[41]; R v Merritt (2004) 59 NSWLR 557 at 573 [61].

11 It is, of course, a basic principle that, absent error, a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because (if it be the case), the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her own discretion: Lowndes v The Queen [1999] 195 CLR 665 at 671-672 [15].

12 If material error is demonstrated, before the Court would proceed to quash the 20-year period and fix a substitute period, the Court must form a positive opinion that some other clause 6(1) preclusion period is warranted in law and should have been specified: s.6(3) Criminal Appeal Act 1912; R v Simpson (2001) 53 NSWLR 704 at 720-721 [79]. For the purposes of forming the s.6(3) opinion once error has been demonstrated, the Court may have regard to additional evidence including evidence of conduct since the determination on 22 August 2006: Baxter v R (2007) 173 A Crim R 284 at 286-287, 295, 299.

Tender of Additional Evidence on Application

13 At the hearing in this Court, Mr Strickland SC, for the Applicant, sought to rely upon an affidavit of the Applicant affirmed 30 April 2008 and an affidavit of the Applicant’s solicitor, Catherine Alice Ridge, also affirmed 30 April 2008. Both affidavits were read upon the basis that, if the Court found error, then the evidence would be relevant to the formation of the s.6(3) opinion and to the question of the length of any substitute preclusion period.

14 However, Mr Strickland SC contended that the affidavit of Ms Ridge was admissible on the application for leave to appeal itself. Ms Ridge’s affidavit annexed a letter dated 10 March 2008 to the Applicant from the Executive Officer and Registrar of the Serious Offenders Review Council (“SORC”) concerning classification guidelines for serious offenders. It stated that, unless exceptional circumstances apply, a serious offender would only be eligible for consideration for a reduction of security classification from category A2 to B at a point which was five years from the earliest possible release date. The letter also suggested that the Applicant contact the psychologist at Goulburn Correctional Centre to discuss suitable therapeutic programmes.

15 In support of the tender of the affidavit, Mr Strickland SC referred to R v Deng (2007) 176 A Crim R 1 at 10 [38]-[40]. He submitted that new evidence may be admitted where the evidence has real significance to the sentencing proceedings, and where the significance of the evidence was unknown to the applicant and the existence of that evidence was not made known to his legal representatives at the time of sentencing. It was also submitted that there is a general power in the Court to receive fresh or new evidence where the interests of justice require that course: R v Many (1990) 51 A Crim R 54. It was submitted further that this evidence ought be admitted as it amplifies material which was before Bell J concerning the Applicant’s classification: R v Deng at 10 [40].

16 The Crown opposed the tender of Ms Ridge’s affidavit upon the basis that it was not admissible unless and until error had been demonstrated. The Crown submitted that R v Deng did not support the Applicant’s contention. It was submitted that it had not been demonstrated that the evidence was fresh in the relevant sense. Further, the interests of justice did not require its admission nor did it amplify, in any relevant sense, material which was before Bell J. The Crown submitted that, absent sentencing error, this Court should resist attempts to place before it material which was not before the first-instance judge. Generally, before fresh or new evidence will be received by the Court, it must be shown that the sentencing of the applicant in the absence of the evidence resulted in a miscarriage of justice: R v Fordham (1997) 98 A Crim R 359 at 377. The Crown submitted that this had not been demonstrated in this case.

17 The Court determined that the admissibility of Ms Ridge’s affidavit would be considered in the judgment on the application generally. The Crown was granted leave to file an affidavit in reply. The Crown filed an affidavit of Miriam Rottenberg affirmed on 20 May 2008 pursuant to this grant of leave. Thereafter, the Applicant filed a further affidavit of Ms Ridge affirmed 6 June 2008 on the same issues. The parties have made additional written submissions on the topic.

18 The Crown submitted that the evidence concerning classification guidelines was not fresh or new. The hearing before Bell J took place in 2006 and the classification guidelines were implemented in December 2002 (Annexure A, affidavit, CA Ridge, 6 June 2008). The Crown submitted further that any material concerning the current classification system was not a relevant matter in any event. To take it into account, the Crown submitted, would have required the Court to engage in a process of prediction about what executive or administrative action may be taken in relation to a prisoner’s custody many years into the future. By way of analogy, the Crown relied upon the statements of Howie J (McColl JA and Studdert J agreeing) in R v Mostyn (2004) 145 A Crim R 304 at 331-332 [179] concerning the difficulty of a sentencing court taking into account possible executive or administrative action in respect of a prisoner’s custody when predicting how a sentence will be served (in the context of protective custody). Even then, the Crown submits that the classification guidelines may be varied in “exceptional circumstances”, which may catch the Applicant at some time in the future.

19 Mr Strickland SC conceded that the additional affidavit material was not fresh, as it was available at the time of the application before Bell J. He pressed the tender, however, upon the basis that the interests of justice required that course and that the affidavits amplified material before the sentencing judge. Mr Strickland SC submitted there was no basis to assume that the Applicant would be likely to fall into the category of “exceptional circumstances” for the purposes of the classification guidelines for serious offenders. He submitted, further, that the Court is entitled to consider current administrative arrangements in the way a sentence is to be served in determining an appropriate sentence, citing by way of example, the practice whereby a periodic detention order transforms into a community service order: R v Roberts (1994) 73 A Crim R 306 at 310-311. He submitted that the Court can do no more than act on the known fact that the classification guidelines apply now, although it is possible that they may be more or less onerous in the future.

20 I am not satisfied that the affidavits ought be admitted on the application for the purpose of determining whether error has been demonstrated. The classification guidelines were available at the time of the hearing of the application before Bell J having been implemented by the Commissioner for Corrective Services in December 2002. This was not fresh or new evidence.

21 Nor, in my view, do the interests of justice require the admission of this evidence. There was material before Bell J concerning the Applicant’s A2 classification and the impact of that classification upon available therapeutic programmes: R v Norrie at [37], [41].

22 It has not been shown that the making of the 20-year preclusion order, in the absence of this evidence, resulted in a miscarriage of justice: R v Fordham at 377.

23 It is not necessary to determine the Crown’s relevance objection to the tender of the material. Whether material concerning future classification ought be admitted at a life sentence redetermination application, despite the difficulty in predicting possible executive or administrative action in many years’ time, will depend upon the circumstances of the particular case.

24 The affidavits of Ms Ridge and Ms Rottenberg ought not be admitted into evidence on the initial question whether error has been demonstrated. If error is otherwise demonstrated, then those affidavits may be admitted and taken into account in forming the s.6(3) opinion and on any re-exercise of the clause 6(1) discretion: Baxter v R.

The Murder of Mr Breust

25 In R v Norrie at [9]-[11], Bell J recounted findings of Finlay J concerning the murder of Mr Breust and related offences:

“9 The applicant pleaded guilty before Finlay J to four charges in addition to the murder of the deceased. These were the armed robbery with wounding of the deceased; two counts of shoot with intent to murder and one count of malicious damage to a dwelling house. At the time of the commission of these offences the applicant was aged 24 years. He had a young companion, Scott Thompson, who was aged not quite 17 years. Thompson was convicted of the manslaughter of the deceased and of one of the counts of shoot with intent to murder. Thompson was mildly mentally retarded.

10 In his reasons for sentence Finlay J described the facts as follows:


The events giving rise to the crimes of which the prisoners had been convicted commenced at the end of February 1986 in Brisbane. The prisoners Norrie and Thompson went to a sports store on Thursday, 27 February 1986. At that store Norrie purchased a Sterling semi-automatic .22 rifle, and paid a deposit on another. He also purchased ammunition and a number of magazines for the rifle. The following day the prisoner Norrie returned and completed the purchase of the second rifle. Also on that day, Friday 28 February, he rented an Avis rent-a-car from the Brisbane airport. On the Friday evening of 28 February the prisoners Norrie and Thompson commenced driving south from Brisbane in the rented car. Norrie was the driver. Thompson was unlicensed. They were then armed with two semi-automatic rifles, on the butt of one of which the prisoner Thompson inscribed his first name, ‘Scott’.

They had a vast amount of ammunition and spare magazines, camouflage army-like uniforms, a sword and similar equipment. I have no doubt that the prisoner Norrie was generally responsible for this equipment. At 2am on the following morning, Saturday, 1 March, Mr Bishop, with his now wife and her two infant children, were travelling from south Ballina in a rented Nissan vannette on the Pacific Highway. The prisoner Norrie shot at the van from the side of the road. Thompson was with him. A number of bullets struck the van. One exploded the passenger side window by the head of Mrs Hendy, as she then was, some glass going into her eyes. This gave rise to the charge of shooting at her with intent to murder her, in respect to which Norrie has pleaded guilty, and in respect to which the jury acquitted the prisoner Thompson.

The prisoner then pursued the van, with Norrie driving. They came alongside the van, then being driven by Mr Bishop, at about 100 kms/hr. The prisoner Thompson was in the front passenger seat of the car, with his gun protruding from the window, firing. One bullet smashed the driver side window of the van, but fortunately missed the driver. This gave rise to the further charge of shooting at Lindsay James Bishop with intent to murder him, in respect of which both prisoners had been convicted.

The prisoners’ car then rammed the side of the van before driving off. Fortunately no serious injury was occasioned in these events, despite the van having a number of bullet holes in it. The experience must have been one of incredible terror for the occupants of the van.

Probably about 2 March 1986 a 1967 Volkswagen sedan was parked at the side of the road near Foxground, near Kiama. It had broken down a few days before, and had been left locked up by its owner.

The prisoner Thompson said that while he and the man Norrie were driving along, Norrie said, ‘There’s a car. Let’s go and shoot at it.’ They remained in their vehicle just across the road. Both of them fired a number of shots into the Volkswagen, smashing the windows and making a number of bullet holes in the driver’s door and body panel sections. It was night-time. This was the version given by the prisoner Thompson. In respect of this charge of malicious injury to the motor vehicle he was found guilty.

In respect of the charge against the prisoner Norrie, to which he pleaded guilty, that on 3 March 1986 at Merou he maliciously injured a dwelling house. On that morning a number of shots were fired into that home at Merou, near Nowra. These shots were fired by the prisoner Norrie, when it was still dark, into the front of the house. There was no suggestion that any people were seen in the vicinity of the house at the time.

On Monday, 3 March, the deceased, Mr Breust, a forty-six year old married man, went fishing at Kurrunna Lake, a little south of Merou. He left his car near the side of the highway. The prisoners Norrie and Thompson drove by.
His Honour went on to set out the account of the killing of the deceased given by Thompson in his record of interview. He continued:

The victim died from brain damage resulting from bullets penetrating his skull, at least one of which had been fired, it appears, directly from the top. He had at least seven bullet wounds in him, some of them, on the evidence, inflicted, after his death. Death had been instantaneous from the brain damage.

The prisoner Norrie gave several different accounts, but common to them was the fact that he took his gun from the car with a view to shooting the victim, who was a total stranger to him. There was no provocation, no reason, nothing, that could sensibly be called a motive. There was some eleven spent shells in the area of the murder, all of which came from Norrie’s gun. The only conclusion which can be drawn is that the prisoner Norrie was deliberately looking for a victim to shoot to death, which he did in a calculated cold-blooded way, totally devoid of any sensitivity or feeling.

I accept, for the purposes of sentence, that the shots occasioning the deceased’s death were fired by the prisoner Norrie.
His Honour considered whether, for the purposes of s 19 of the Crimes Act (as it then stood), the applicant’s culpability for the murder of the deceased had been significantly diminished by mitigating circumstances. He concluded that:
Here there is no evidence offered, nor could any argument be presented, to make it appear that the prisoner Norrie’s culpability for the first crime of murder is significantly diminished by mitigating circumstances. Mr Luland, of Queens Counsel, who is experienced senior counsel, acknowledges this. Indeed there are no mitigating circumstances whatsoever. The only inference which is open is that the prisoner Norrie set out on a planned campaign of indiscriminate murderous violence, culminating in the convictions for which the sentences are to be imposed.

11 After sentencing the applicant to imprisonment for life for the murder of the deceased his Honour imposed concurrent sentences of 10 years’ penal servitude for the offence of armed robbery with wounding and 15 years’ penal servitude for each offence of shoot with intent to murder and three years’ penal servitude for the offence of malicious damage. His Honour declined to fix non-parole periods in relation to the determinate sentences. Each sentence was directed to date from 7 March 1986, being the date on which the applicant had been taken into custody in relation to them.”

Other Offences of Which the Applicant has been Convicted

26 In accordance with clause 3(1)(b) of Schedule 1, Bell J had regard to all offences, wherever and whenever committed, of which the Applicant had been convicted. These included offences in Victoria and New South Wales. Bell J, at [14], referred to a further murder committed by the Applicant in Victoria on 4 March 1986:

Following the murder of the deceased the applicant and Thompson continued driving south, into Victoria. The following day in East Gippsland they picked up a hitchhiker, Mark John Lynch, who was looking for a ride towards Sydney. The applicant executed a u-turn and stopped for Mr Lynch. He told Mr Lynch that there was some beer and marijuana in the boot of the car and he offered to share both with him. A short time later he stopped the vehicle. Mr Lynch alighted from it and the applicant fired a number of shots at him, one or more of which caused his death. He made full admissions of the murder of Mark Lynch in an interview with detectives from the Victoria Police which was described by Bongiorno J as chilling in its frankness. In the course of the interview his Honour recorded that the applicant offered as his explanation for the killing:

I was bored, just wanted to shoot someone. We were going to call at houses and I just wanted to shoot people.”

27 On 7 December 2001, following a plea of guilty in the Supreme Court of Victoria, Bongiorno J sentenced the Applicant, for the murder of Mark John Lynch, to imprisonment for life with a non-parole period of 14 years and six months to commence on 7 December 2001 and to expire on 6 June 2016: R v Norrie [2001] VSC 478.

28 An appeal by the Applicant against sentence was dismissed by the Victorian Court of Appeal: R v Norrie [2002] VSCA 232. It does not appear that Bell J was referred to the decision of the Victorian Court of Appeal, although it was clearly relevant to the function which her Honour was performing. It is appropriate that this Court records the views of the Victorian Court of Appeal on issues relating directly to the Applicant. In delivering the leading judgment, Chernov JA, at [19], made observations concerning the Applicant’s crimes in Victoria and New South Wales:

“In my view, an appropriate sentence in respect of the Orbost murder (and the New South Wales murder) would have been life imprisonment. Although such a sentence is the maximum sentence of imprisonment that could have been imposed under our law, it would have been well justified having regard, in the main, to the fact that the murders fell into the worst category of murders [see Kalajzich (1997) 94 A.Crim.R41 at 50–51 per Hunt CJ at CL] , the applicable sentencing principles, the complete lack of remorse by the appellant, the lack of any evidence of rehabilitation on his part and his continuing danger to the community. The appellant pursued a ‘Rambo’ style campaign of killings for the sole purpose of gaining sadistic pleasure from the taking of innocent lives. The two murders were, in effect, ‘thrill kills’ as if committed in some sickening, horror movie and, as I have said, the appellant has not shown any remorse or that he has any insight into his criminal wrongdoing. Moreover, as the material indicates, he clearly remains a danger to the community. In those circumstances, the sentencing principles of just punishment, retribution, denunciation and the protection of the community would have been of paramount consideration in the determination of the sentencing disposition.”

29 With respect to the fixing of a non-parole period, Chernov JA observed at [21]:

“It will be remembered that the consideration of whether any, and if so what, non-parole period should be fixed would have been undertaken in the context of, inter alia, two sentences of life imprisonment, the terms of imprisonment imposed on the appellant in respect of the other shooting offences, his lack of remorse, the lack of evidence of his rehabilitation and his continuing danger to society. Given those circumstances and the heinousness of the offending conduct, no sentencing error would have been committed if no minimum period of imprisonment had been fixed. In so concluding, I have assumed in the appellant's favour that general deterrence would have been regarded as of minimum significance and that the appellant's propensity to commit violent crimes is likely materially to diminish when he reaches old age, as was effectively said by Dr Walton. Consequently, in my view, the non-parole period fixed by his Honour in this case was quite moderate and does not demonstrate the sentencing error contended for by the appellant.”

30 Phillips CJ at [27] agreed with Chernov JA. The Chief Justice observed at [29] that, had he sentenced the Applicant at first instance, a more severe sentence would have been imposed. Phillips CJ observed at [29] that the contention that the Applicant’s sentence was manifestly excessive was “bordering on the impudent”.

31 Eames JA at [32] agreed with Chernov JA that the appeal ought be dismissed. His Honour observed at [31] that the contention that the sentence was manifestly excessive was “without any substance at all”.

32 Bell J, at [15], referred to a further offence of wounding with intent to murder committed by the Applicant in a New South Wales prison on 8 June 1987:

“While the applicant was in custody awaiting sentence for the murder of the deceased, on 8 June 1987 he lured a fellow prisoner into a room at the Long Bay Remand Centre. He there struck his victim on the head with a short iron bar and attempted to cut his throat with a steak knife, which he had obtained the previous day with this purpose in mind. He was convicted at trial before Campbell J and a jury of the offence of wounding with intent to murder arising out of this incident. In his remarks on sentence Campbell J described the offence in these terms:

It was a vicious, premeditated attack, entirely without justification or motive, other than the prisoner’s pleasure in killing.

On 17 November 1988 his Honour sentenced the applicant to a term of penal servitude for 10 years, to commence at the end of the concurrent sentences of 15 years’ penal servitude imposed by Finlay J. His Honour declined to fix a non-parole period.”

Some Findings in the Judgment Under Appeal

33 In light of the issues raised on the application, it is appropriate to refer to parts of her Honour’s judgment at first instance.

34 Bell J referred, at [12], to the Applicant’s police interview, concerning the 1986 offences for which Finlay J passed sentence, where the Applicant said “I just wanted to kill” and “I just enjoy killing people”. The Applicant offered a similar explanation for the 1986 Victorian murder dealt with by Bongiorno J - “I was bored, just wanted to shoot someone. We were going to call at houses and I just wanted to shoot people” (at [14]). In sentencing the Applicant for the attempted murder in prison in 1987, Campbell J observed that the attack was “entirely without justification or motive, other than the prisoner’s pleasure in killing” (at [15]).

35 Bell J recounted the psychiatric evidence concerning the Applicant contained in reports of a number of forensic psychiatrists in 1986-1987. Dr William Barclay concluded that the Applicant was a psychopath who expressed a liking for killing people (at [16]). The Applicant told Dr CL Wong in 1987 that he did not feel sorry for what he did and had “had a good time” and would do it again as it gave him “a good feeling” (at [17]). Dr Wong considered that the Applicant exhibited extreme callousness and a total inability to experience the basic emotions with which human beings are normally endowed. In Dr Wong’s opinion, the Applicant manifested a profound personality disorder of the schizoid type (at [17]).

36 Dr Rod Milton reported in 1987 that the Applicant described fantasies of killing people, but did not appear to be suffering from a psychosis.

37 The Applicant informed Dr John Shand in 1987 that the onset of homicidal impulses dated to when he was 14 or 15 years old. Dr Shand noted that the Applicant acknowledged the satisfaction that his destructive and homicidal behaviour gave him, and that he had volunteered that he had tried to kill another prisoner and that he would do so again if taken out of segregation. In Dr Shand’s opinion, the Applicant exhibited a severe and intractable personality disorder of the psychopathic type. Dr Shand concluded that the Applicant should “never be released to the community” and was “the most extreme case of this type that I have examined during twenty five years of forensic work” (at [19]).

38 Her Honour recounted the SORC reports and accompanying documentation concerning the Applicant (at [21]-[37]). In 1990, Dr G Gluckstern, the Director of Psychiatric Services of the Prison Medical Service reported that the Applicant “has an unabated urge to kill” which “certainly has not altered with medication or with any other form of psychological intervention” (at [28]).

39 In March 1993, Dr Karl Koller, a visiting psychiatrist, reported that the Applicant had a history of schizophrenia and noted that he complained of obsessional thoughts of mutilation and of dead bodies (at [31]).

40 Her Honour turned, at [38]-[56], to more recent psychiatric assessments of the Applicant. Dr Lester Walton had examined the Applicant in 2001 for the purpose of the Victorian proceedings before Bongiorno J. The Applicant told Dr Walton that he felt “pretty bad” for what he did, although Dr Walton observed that “this statement was uttered without obvious emotional accompaniments indicative of sorrow or remorse” (at [38]). The Applicant was adamant that he would not re-offend “but he frankly admitted that he found it difficult to provide convincing arguments to others as to why this may be the case” (at [39]). Dr Walton was convinced that the Applicant’s offending was not the product of mental illness. However, Dr Walton remained “frustrated in terms of lacking understanding into the development of his particular personality of a type which would allow such behaviour to emerge” (at [39]). According to Dr Walton, there were “some indications of a degree of psychological maturation” in that the Applicant could express that his behaviour was morally wrong and was able to articulate a degree of victim empathy “albeit not accompanied by what would be the usual parallel of emotional expression”. Dr Walton concluded “I would not describe the prognosis as unremittingly gloomy but I could be no more specific than that” (at [39]).

41 Dr William Lucas examined the Applicant in 1998 and 2004. In 1998, the Applicant told Dr Lucas that he would not shoot anyone again as he did not want to keep going to gaol, although he volunteered that “shooting that person didn’t bother me the slightest” (at [44]). Dr Lucas concluded in his 1998 report that the Applicant’s personality disorder was severe and included schizoid, antisocial and borderline traits (at [46]). In 2004, Dr Lucas detected some improvement (at [48]). He considered the Applicant’s presentation to be consistent with severe personality disorder, but that he had matured somewhat, although he remained a rather damaged man with longstanding personality problems. Dr Lucas concluded that the Applicant “will always have certain personality traits affecting his ability to interact easily with others but if his account of the last few years is correct he has more capacity to change than previously thought” (at [51]). Dr Lucas considered that setting a non-parole period would be of benefit to the Applicant and would allow more realistic planning for his overall rehabilitation and release.

42 Dr Bruce Westmore examined the Applicant, on behalf of the Crown, in October 2005. Contrary to the assertions made by him at the time of the events, the Applicant told Dr Westmore that shooting his victims had not excited him (at [52]). He expressed a type of regret for shooting two people and said he would not kill again (at [52]).

43 Dr Westmore asked the Applicant about a letter written by him from prison to the deceased’s daughter in December 1989. That letter was described accurately by Bongiorno J (R v Norrie at [21]) as “distressing and frightening … designed to distress its recipient” and “a form of violence perpetrated by [the Applicant] from within the prison system”. When asked by Dr Westmore in October 2005 why he had sent the letter, the Applicant said “Because they kept saying that I should be hung or put against the wall and shot. Other prisoners were reading these things and felt like hurting me”. When asked if he had any further desire to have contact with the families of the victims, the Applicant told Dr Westmore “no, I just wanted them to stop saying really bad things to me in articles” (at [53]).

44 The Applicant was not taking any medication at the time of his interview with Dr Westmore. There was no evidence that he was psychotic. He showed little or no emotional reactivity when discussing his history, including the history relating to the two murders. Dr Westmore concluded that the Applicant had a severe, profound personality disorder of the psychopathic type. Although “his current history and presentation would suggest some changes of a positive type”, Dr Westmore expected the Applicant “to remain severely and significantly disturbed from an emotional perspective and in terms of his capacity for intimate relationships with others, for the rest of his life” (at [54]).

45 Bell J referred, at [55]-[56], to two pieces of evidence which were the subject of challenge before this Court:

“55 Among the material produced by the Victorian correctional authorities is a handwritten report dated 4 August 2000 by Dr Viswanathan, of the Institute of Forensic Mental Health, which is addressed, ‘To Sentence Management’:

Mr Norrie is charged with a bizarre murder which occurred approximately fourteen years ago. He is serving a maximum of life sentence on another murder which happened on the same day in NSW. He seems to have no remorse or give any reasons as to why they happened other than to say ‘I had to do it’. He is at risk of repeating serious harm to others if allowed to share a cell.

56 A nursing note from the St Vincent’s Hospital Psychiatry Outpatient Clinic dated 12 September 2000, records the following:

Happy smiling presentation talking about shooting people as if it were everyday conversation – no remorse often presenting with childish giggling/gestures.”

46 Her Honour summarised the submissions made at first instance. The Crown submitted that the application should be refused and a direction given permanently precluding the Applicant from making a further application. It was argued for the Applicant that a non-parole period should be set and that there were signs of hope in the recent psychiatric evidence.

47 At [72]-[75], her Honour provided reasons for the orders ultimately made. Given submissions made on the present application, it is appropriate to set out this part of the judgment in full:

“72 The most recent psychiatric assessments of the applicant may be supportive of Mr Craigie’s submission [for the Applicant] that he has matured to some degree. His homicidal urges appear to have subsided. He has not given into them for many years and he appears to have been generally non-violent and compliant within the prison setting. Nonetheless, the more recent psychiatric assessments do not seem to me to significantly qualify the opinions expressed in the reports of those who assessed him around the time of these events. They speak with one voice in describing the applicant as having a profoundly disturbed personality. The report of Dr Viswanathan and the nursing note made by staff at the psychiatric outpatient clinic in Victoria undermine Mr Craigie’s submission that the picture from the mid 1990’s has been one of gradual improvement. It is troubling that after more than 14 years in custody, when he was nearing 40 years of age, the applicant should still be speaking of shooting people. His apparent inability, as recently as October 2005, to comprehend the enormity of his conduct in writing his chilling letter to the daughter of his victim is to my mind equally troubling.

73 In determining the application I have regard to the protection of the community as the predominant consideration. This does not admit of significant weight being given to the possibility that the applicant’s rehabilitation may be promoted by fixing a non-parole period. His offence was one of great heinousness and he is dangerous. I do not accept Mr Craigie’s submission that the interests of the community may be taken to be adequately protected by a consideration of the statutory duty that is imposed on the parole authority.

74 The material adduced on the application does not persuade me that the applicant’s progress has been such that it would be appropriate to specify a non-parole period in respect of the sentence. I am mindful that in recent years the applicant has shown an interest in being released from gaol and that his account of the circumstances of his offences given to Dr Walton, Dr Lucas and Dr Westmore differs from that given to the psychiatrists who examined him at the time of the events and to the police. At that time he did not say that he had been affected by alcohol or intrusive thoughts.

75 I am satisfied that the murder of the deceased was a most serious case of murder and that it is in the pubic interest that the applicant not re-apply to the Court for a period exceeding three years. I consider that a lengthy period should be specified before the applicant may be permitted to re-apply to the Court. In my view the heinousness of the offence and the danger that the applicant poses to the community do not admit of his conditional release on parole for a very long time, if at all. However, I acknowledge that there may come a time when he may not present a danger to the community and when the other purposes of punishment will have been met. For this reason I do not propose to direct that he may never re-apply to the Court. I have determined that he should not be permitted to re-apply to the Court for a period of 20 years from today’s date.”

Ground of Appeal

48 The Notice of Appeal filed on 5 September 2007 contained a single ground of appeal:

“Her Honour erred in directing that the applicant not reapply to the Court for a redetermination of his sentence for 20 years.”

Submissions of the Parties

Submissions of the Applicant

49 The written submissions filed in support of the application did not contend that specific error of law or fact had occurred. Rather, the submission made was that the 20-year preclusion period was unduly harsh. The Applicant pointed to the fact that the 20-year preclusion order was the longest imposed in this State. The next longest period was one of seven years in R v ASP [2007] NSWSC 339. It was submitted that the effect of this ruling was that the Applicant will not be able to reapply for a determination of his life sentence until 22 August 2026, by which time he will be 64 years old and will have served just over 40 years of continuous imprisonment.

50 It was stressed that, when the Applicant was permitted to apply again for redetermination, it would be necessary for him to persuade a judge that a non-parole period should be set. Further, after the expiration of that non-parole period, it would be necessary for the Applicant to persuade the State Parole Authority that, on the balance of probabilities, his release was in the public interest: s.135 Crimes (Administration of Sentences) Act 1999.

51 In oral submissions before this Court, Mr Strickland SC contended that her Honour had fallen into factual error in findings made at paragraphs [72] and [75] of the judgment (set out at [47] above).

52 Specifically, Mr Strickland SC submitted that her Honour had erred in reliance upon the report of Dr Viswanathan dated 4 August 2000 and the nursing note dated 12 September 2000 made by staff at the St Vincent’s Hospital Psychiatry Outpatient Clinic in Victoria (see [45] above). It was submitted that her Honour erred in giving any weight, or too much weight, to this material, in particular when it was considered against the background of other psychiatric evidence adduced on the application.

53 It was not submitted that error had occurred in admitting the material. It had been tendered by consent (T1, 31 March 2006). Rather, it was argued, in particular, that the nurse’s notes had been misread and misapplied in that her Honour treated them as evidence that the Applicant was still speaking of shooting people in September 2000, as opposed to a historical reference by the Applicant to the events of 1986. Mr Strickland SC submitted that the report of Dr Viswanathan and the nurse’s notes were cryptic and open to different meanings and that error had resulted from attaching any weight to them.

54 Mr Strickland SC submitted, further, that it was erroneous to approach the matter on the basis that the Applicant had effectively been serving sentences for other offences since 1986 and would continue to do so until 2016.

55 Mr Strickland SC submitted that factual error having been demonstrated, it was appropriate for this Court to intervene. He submitted that a fair reading of the totality of the psychiatric evidence pointed to a real possibility of further progress within the next 10 years, so that it was not in the public interest to, in effect, destroy the Applicant’s hope of moving towards release at a later time. He submitted that a lesser preclusion period was appropriate in all the circumstances, so that the Applicant might be placed in a position to apply for redetermination soon after the expiration of his Victorian non-parole period in 2016.

Crown Submissions

56 The Crown submitted that no error had been demonstrated on the part of the learned primary judge. It was submitted that her Honour had a wide discretion to give the direction made. The Crown submitted that this was a borderline case, where an order that the Applicant ought never be permitted to reapply was a real possibility, having regard to the extreme objective seriousness of the murder and the totality of the other serious criminal offending of the Applicant. It was submitted that her Honour took into account the relevant statutory considerations contained in Schedule 1 to the Act.

57 It was submitted that, for 10 of the 20 years from 2006 (that is until 6 June 2016), the Applicant would be serving the non-parole period in relation to his murder conviction in Victoria together with the fixed term for an attempted murder within prison. The objective seriousness of the New South Wales murder required that the Applicant serve a significant period in custody in relation to that murder, which was the subject of the life-sentence redetermination application, after the expiration of all other fixed sentences and non-parole periods for other offences. Accordingly, the Crown submitted that the Applicant suffered no prejudice from not being able to apply for a redetermination before the date specified by Bell J.

58 The Crown referred to ASP v R at [277]-[282] with respect to the public interest test in clause 6(4) of Schedule 1. The Crown submitted that, as in ASP v R, the Applicant has been and is serving lengthy sentences for other crimes, and that it was correct to determine that a very significant period of time should pass before further consideration ought be given to any redetermination application.

59 The Crown submitted that, in a real sense, the Applicant has not yet started to serve any sentence solely referable to the murder of Mr Breust, and will not do so until 6 June 2016.

60 As in ASP v R, the Crown submitted that there was, in this case, an inadequate and unsatisfactory evidentiary foundation for the Court to address the statutory criteria and, in particular, the protection of the community.

61 With respect to the specific complaints made concerning findings at paragraphs [72] and [75] of Bell J’s judgment, the Crown submitted that no error has been demonstrated in her Honour’s approach. The Crown emphasised that the Applicant did not give evidence on the redetermination application. Accordingly, the evidence concerning statements made by the Applicant over the years emerged from reports of psychiatrists and others, and contemporaneous notes made by nurses and others, all of which were in evidence before her Honour. The Crown submitted that many of the statements attributed to the Applicant in the reports and notes were contradictory and that little or no weight could be given to them, especially as the Applicant did not give evidence on the application: R v Qutami (2001) 127 A Crim R 369 at 377 [58]; R v Palu (2002) 134 A Crim R 174 at 184-185 [39]-[41]. The Crown submitted that no error had been demonstrated in her Honour’s use of the report of Dr Viswanathan and the nurse’s notes.

62 The Crown submitted that it was entirely appropriate to make an order precluding the Applicant from making a further redetermination application until 2026. Having regard to the statutory considerations, in particular protection of the community, the Crown submitted that her Honour’s 20-year preclusion period served the public interest in the circumstances of this case.

Resolution of Competing Submissions

63 The report of Dr Viswanathan of August 2000 and the nurse’s notes of September 2000 (both set out at [45] above) formed part of the evidence before her Honour, having been admitted by consent. It was for her Honour to give that evidence such weight as she saw fit.

64 During submissions before Bell J, reference was made to Dr Viswanathan’s report and the nurse’s notes recording observations and statements of the Applicant at “unguarded” moments (T14, 3 March 2006). Her Honour took this evidence, with the totality of the psychiatric evidence, and reached certain conclusions. In my view, these conclusions were open on the evidence. It has not been demonstrated that her Honour misunderstood or misapplied this evidence.

65 The report of Dr Viswanathan and the nurse’s notes were relatively recent indicators of matters of real concern about the Applicant and his thought processes. Although the reports of the forensic psychiatrists were important, they were the product of set-piece interviews with the Applicant. Dr Viswanathan’s report and the nurse’s notes recorded more routine observations of the Applicant in unguarded moments. Although Dr Viswanathan’s report was short, it was clear in its terms. The report was not challenged before Bell J. The nurse’s notes of 12 September 2000 are brief, but clear. Fairly read, they record the fact that the Applicant, in September 2000, was talking about shooting people “as if it was everyday conversation”. He demonstrated a “happy smiling presentation” whilst discussing this topic. The Applicant showed “no remorse” and was “often presenting with childish giggling/gestures”. The construction of the report and nurse’s notes, adopted by her Honour, was open on the evidence.

66 A fair reading of her Honour’s statements in paragraphs [72] and [75] of the judgment, viewed in the context of the judgment as a whole, does not reveal factual error as contended by the Applicant. Her Honour had regard to the totality of the psychiatric evidence which had been summarised carefully. The weight to be attributed to the evidence was a matter for her Honour.

67 It is clear that a preclusion period of 20 years is an exceptionally long one. However, her Honour’s findings came close to a direction that the Applicant be precluded permanently from making a further application for redetermination. Her Honour stopped short of such a direction, but determined that the circumstances of the present case warranted a 20-year preclusion order.

68 Comparison with preclusion orders made in other cases does not assist the Applicant. The Applicant’s case was of such gravity that, if he was to be permitted to make a further application at all, then a very lengthy preclusion period was warranted. It was certainly open to Bell J to so conclude.

69 The phrase “in the public interest” takes its meaning from the statutory context in which it appears: R v Kalajzich (1997) 94 A Crim R 41 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 the present context, include the impact of sentences for other crimes on the actual period of imprisonment served (and to be served) for the subject murder, the adequacy or otherwise of the evidentiary foundation for the Court to assess the statutory criteria (in particular, the protection of the community) and the heinousness of the crime of murder under consideration: ASP v R at [277]-[278].

70 Having regard to the heinous crime of murder under direct consideration and viewed against the background of the Applicant’s propensity for homicidal conduct, her Honour’s cautious approach was entirely understandable. As her Honour observed (at [73]), the predominant consideration in determining the application was the protection of the community. The evidence demonstrated that the Applicant was a self-confessed thrill killer who had acted upon his homicidal urges more than once. Although the Applicant was stating that he would not kill again, there was no objective support for this claim beyond the passage of time without further attacks. The psychiatric evidence remained very guarded. Further, the Applicant did not give evidence on the application. There was no opportunity to test the varying (and somewhat contradictory) accounts given by the Applicant to the psychiatrists and to test the Applicant directly on issues relevant to the application and, in particular, the protection of the community.

71 The fact that the Applicant had been serving sentences for other crimes from 1986, and would continue to do so until 2016, was a pertinent question on the application: AJP v R at [271], [277]-[278]. The public interest, in this context will encompass a practical and realistic assessment as to the period of time that the Applicant has served, or ought to serve, for the crime of murder under consideration. Where the Applicant has committed other serious crimes (including murder and attempted murder) which have resulted in lengthy sentences, then it is relevant to the exercise of the discretionary power to fix a preclusion period to consider what period of imprisonment (if any) that the Applicant has served which is solely referable to the subject murder conviction.

72 In summary, no patent error has been demonstrated in her Honour’s decision to set a 20-year preclusion period under clause 6 of Schedule 1. Further, no latent error has been demonstrated in her Honour’s exercise of discretion in the grave circumstances of this case. It has not been demonstrated that the 20-year preclusion period was unreasonable or plainly unjust.

73 If error had been demonstrated so that the affidavits of Ms Ridge, Ms Rottenberg and the Applicant were admitted (see [13]ff above), I would not have formed the opinion, in any event, that some lesser preclusion period was warranted in law and ought to have been fixed: s.6(3) Criminal Appeal Act 1912.

74 I propose that leave to appeal be granted, but that the appeal be dismissed.

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