Pollock v The Queen

[2007] NSWSC 148

CITATION:	Pollock v R [2007] NSWSC 148
HEARING DATE(S):	17 November 2006
JUDGMENT DATE :	2 March 2007
JUDGMENT OF:	Johnson J at 1
DECISION:	Life sentence redetermined - specified term fixed of 24 years' imprisonment commencing on 20 November 1990 and expiring on 19 November 2014 with a non-parole period of 17 years and nine months commencing on 20 November 1990 and expiring on 19 August 2008.
CATCHWORDS:	CRIMINAL LAW - sentencing - redetermination of life sentence imposed for murder - objective seriousness of offence - totality - life sentence redetermined
LEGISLATION CITED:	Crimes Act 1900 Criminal Appeal Act 1912 Sentencing Act 1989 Crimes (Sentencing Procedure) Act 1999 Evidence (Audio and Audio Visual Links) Act 1998 Crimes (Administration of Sentences) Act 1999 Criminal Appeal Act 1912
CASES CITED:	R v Pollock (Court of Criminal Appeal, unreported, 13 April 1992) R v Pollock [2005] NSWCCA 316 R v Potter [2006] NSWSC 1174 R v Pollock [2005] NSWCCA 316 R v Previtera (1997) 94 A Crim R 76 R v Slater (2001) 121 A Crim R 369 R v FD and JD (2006) 160 A Crim R 392 Apps v R [2006] NSWCCA 290 Mill v The Queen (1988) 166 CLR 59 Veen v The Queen (No. 2) (1987-1988) 164 CLR 465 R v MJR (2002) 54 NSWLR 368 R v Rees (Court of Criminal Appeal, 22 September 1995, unreported, BC9505405) R v Hillsley (2006) 164 A Crim R 252 R v Ainsworth (1994) 76 A Crim R 127 R v Towner [2002] NSWSC 951 R v Lagopodis [2000] NSWSC 1201 R v MAK and MSK [2006] NSWCCA 381 R v Plevac [2004] NSWSC 916 R v Salameh [1999] NSWCCA 300 R v Purdey (1993) 31 NSWLR 668 R v Maiden [2000] NSWCCA 519 R v Malcolm (1991) 58 A Crim R 148 R v Page [2002] NSWSC 1067 Power v The Queen (1974) 131 CLR 623 The Queen v Bugmy (1990) 169 CLR 525 R v Simpson (2001) 53 NSWLR 704
PARTIES:	Daniel Keith Pollock (Applicant) Regina (Crown)
FILE NUMBER(S):	SC 1997/04
COUNSEL:	Ms R Burgess (Applicant) Mr P Miller (Crown)
SOLICITORS:	Legal Aid of New South Wales (Applicant) Director of Public Prosecutions (Crown)
LOWER COURT DATE OF DECISION:	---
LOWER COURT MEDIUM NEUTRAL CITATION:	---

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

Johnson J

2 March 2007

1997/04 Daniel Keith Pollock v Regina

JUDGMENT

1 JOHNSON J: On 20 November 1990, the Applicant, Daniel Keith Pollock, was convicted by a jury of the murder of Terrence Damien Ryan at Wollongong on 9 May 1988. Following conviction, the Applicant was sentenced by Wood J (as his Honour then was), pursuant to s.19 Crimes Act 1900, to life imprisonment to date from 20 November 1990.

Appeals Against Conviction

2 On 13 April 1992, an appeal against conviction was dismissed by the Court of Criminal Appeal: R v Pollock (Court of Criminal Appeal, unreported, 13 April 1992).

3 On 6 September 2004, application was made pursuant to s.474D Crimes Act 1900 for the Applicant’s case to be referred to the Court of Criminal Appeal upon the basis that there was a doubt or question as to his guilt. The Crown acknowledged that the material relied upon by the Applicant warranted a referral of the case to the Court of Criminal Appeal. On 24 February 2005, having considered the material relied upon by the Applicant and the submissions of the Crown, I referred the whole case to the Court of Criminal Appeal under s.474D to be dealt with as an appeal under the Criminal Appeal Act 1912.

4 On 22 September 2005, the Court of Criminal Appeal dismissed the appeal: R v Pollock [2005] NSWCCA 316.

The Present Application

5 On 13 March 1997, the Applicant made application for his life sentence to be redetermined pursuant to s.13A Sentencing Act 1989. However, he did not proceed with his application at that time. On 3 April 2000, the Sentencing Act 1989 was repealed and the provisions contained in s.13A of that Act were re-enacted in substantially the same form in Schedule 1 of the Crimes (Sentencing Procedure) Act 1999 (“the 1999 Act”) and given effect by s.44(5) of that Act. Provision is made by that Act for the Court to set (or decline to set) a non-parole period and balance of sentence. Under the savings and transitional provisions contained in clause 21 of Schedule 2 of the 1999 Act, the Applicant is to be dealt with in accordance with Schedule 1 of the 1999 Act.

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

“ Matters for consideration by Supreme Court

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


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

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

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

(a) includes:

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

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

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

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

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

“ Matters relating to exercise of Supreme Court’s functions

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


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

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

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

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

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

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


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

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


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

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

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

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

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

“4 Determination of application

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

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

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

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

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

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

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

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

5 Effect of determination to set a non-parole period


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

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

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

Hearing of the Application

9 On 17 November 2006, the Applicant’s life sentence redetermination application came before me for hearing. The Applicant was represented by Ms Burgess of counsel. On the application of the Applicant, and with the consent of the Crown, the hearing of the application proceeded by audio-visual link from the Goulburn Correctional Centre, where the Applicant was detained in custody. Such a procedure is available under s.5BB(2) Evidence (Audio and Audio Visual Links) Act 1998: cf R v Potter [2006] NSWSC 1174.

10 A number of documents were tendered by consent. The Crown tendered a statement of facts dated 23 January 1998, together with a record of interview between the Applicant and police dated 21 March 1989, the remarks on sentence of Wood J of 20 November 1990 and the judgment of the Court of Criminal Appeal dated 13 April 1992 (Exhibit A) together with an addendum to the statement of facts dated 28 September 2006, accompanied by a trial summary and the judgment of the Court of Criminal Appeal of 22 September 2005 (Exhibit B). The Crown also tendered the report of the Serious Offenders Review Council (“SORC”) dated 15 August 1997 (Exhibit C) and a supplementary SORC report dated 24 October 2006 (Exhibit D) together with the Applicant’s custodial history (Exhibit E). A victim impact statement of Kerryn Ryan dated 18 October 2006 was tendered by the Crown (Exhibit F).

11 The Applicant tendered a notice of reply to the statement of facts dated 25 August 2003 (Exhibit 1) together with a supplementary notice of reply to the statement of facts, including reports of Dr William Lucas, psychiatrist, dated 7 January 2004 and 14 February 2006 (Exhibit 2).

12 No oral evidence was adduced on the application.

Circumstances Surrounding the Offence

13 The following account of the circumstances surrounding the offence is drawn from the statement of facts, which was accepted by the Applicant.

14 In the early hours of 8 May 1988 the victim, Terrence Damien Ryan (aged 23 years), after becoming separated from a friend, found his way into the car park adjacent to the MLC Centre, Wollongong. According to the victim’s friend, the victim was very drunk at that time.

15 He came upon the Applicant (then aged 22 years) who was sitting or squatting on the fire stairs adjacent to the building where he had just administered a shot of heroin to himself.

16 The Applicant was at that location either to sell drugs or stolen video equipment.

17 When the victim came upon the Applicant he was challenged and then punched in the head, whereupon he fell backwards down the stairs, ending up on the concrete below.

18 The Applicant followed him down and formed the impression from his shaking movements that the victim was endeavouring to get to his feet. He thereupon kicked him numerous times in the body, particularly in the abdomen and scrotum.

19 The Applicant took some money from the victim's pockets. As he was endeavouring to go through his wallet or to roll him over for that purpose, he observed a group of people making their way to the area. He then ran from the scene, leaving the victim with fatal injuries.

20 The victim was found by the police about two-and-a-half hours later and was thereupon admitted to hospital. He died in the early hours of the morning of 9 May 1988.

21 Dr Verzosa, Senior Forensic Medical Officer with the Department of Health, deposed that he had conducted a post-mortem examination on the victim on 10 May 1988. The victim incurred, inter alia, three linear abrasions to the head (two to the right frontal area and one at the back of the head), and a fracture of the right orbital plate and the skull bone, accompanied by a massive subdural haematoma to the right brain hemisphere. These injuries were consistent with impact between the victim's head and the railing or steps of the MLC Centre fire escape, which Dr Verzosa inspected on 11 May 1988.

22 The victim also suffered torn neck ligaments, bruising to the right armpit, abdominal bruising, an intraperitoneal haemorrhage, multiple linear lacerations to the liver, a haematoma of the scrotum and contusion on the left testicle, a fracture of the pubic ramus, a fracture of the iliac crest, abrasions to the right wrist, bruising to the left thigh and bruising to the heel.

23 The abdominal injuries were consistent with the victim having been kicked, the injury to the left testicle with kicking or punching and the lacerations to the right wrist with the victim using it to fend off blows.

24 In cross-examination, Dr Verzosa agreed that the injuries to the victim's genitals may have been caused by his falling from the railing whilst straddling it and that the abrasions to the right wrist could have been due to a fall down the stairs.

25 Mr X, an inmate of Long Bay Gaol deposed that he was in the Special Programme Unit at the Metropolitan Remand Centre at that gaol between 20 May 1988 and 7 June 1988. In May of that year, he was reading a newspaper article about the discovery of the body of the victim. It happened that the Applicant was standing next to him at that time. The Applicant asked Mr X to read that article to him. As he was reading it, the Applicant said, "I done it and it was an accident". In the trial, Mr X was asked:

“Q. "What did he say?
A. He said that at the night when it happened he was trying to sell some dope and he couldn't sell none so he decided to have it himself and he went to where he usually had it. He said it was in the back lane up the top - on a fire escape, a set of stairs.

Q. Did he say what happened then?
A. Yes, he said that just as he was putting his shot away, a man come up the stairs and appeared in front of him.

Q. Yes, and did he say what happened then?
A. Yes, he said he put his hand in his jumper as if there was a gun to hold the bloke up and the bloke kept on saying, ‘How's it going, mate? That's not a gun. What's the problem, mate?’

Q. Now, did the accused say what happened next?
A. Yes, he said he punched the bloke in the head and he fell backwards down the stairs.

Q. Yes, and did anything happen when he was down the stairs?
A. Yes, he said he fell backwards down the stairs and fell on the concrete down below and he was shaking, so he kept on kicking him until he knocked him out.

Q. Did he say where he kicked him?
A. In the head and in the body.

Q. Can you remember him describing in his words any particular parts of the body?
A. Yes, he said in the balls and in the head. He said it looked like he was getting up so he kept on kicking him.”

26 Mr Y, another inmate of Long Bay Gaol, deposed that he shared the same cell with the Applicant in February 1989. As they were playing cards in the cell, they had a conversation in which there was a mention about the discovery of the body of the victim. The Applicant started off by saying:

"I was down in Wollongong selling some gear. On this particular night I went to my usual spot to have a shot. I was standing there, putting the shot away into my arm, when an old drunk started coming up the stairs and busted me. So I king-hit him and he rolled down the stairs and landed on the bottom.

I finished putting my shot away and then I went down to the bottom of the stairs to where he was and the old bloke was trying to get off the ground, so I laid the boot into him and gave him a kicking.

I started going through his pants and looking at his hands and fingers for jewellery when I noticed some people coming down the road. I panicked and took off. You wouldn't believe it, I found out later that I had kicked the bloke to death".

27 Detective Sergeant Ainsworth deposed that he conveyed the Applicant to the crime scene on 21 March 1989. The following conversation was recorded after the Applicant had been cautioned:

“Q. Can you state where you were when Terry Ryan walked into this carpark?
A. I was sitting on the steel steps with my legs dangling over the edge. I had stolen videos under the steps.

[The Applicant pointed out underneath the stairwell]

Q. What happened then?
A. As I seen him coming I jumped onto the ground just - He was lying on the ground unconscious. I thought he was okay. There was no blood or nothing so I grabbed the videos.

Q. Will you show me where the stolen videos were?

[The Applicant pointed underneath the stairs]

A. Just underneath there, back there on the ground. Then we fought just here.

[Pointing to the area in front of the stairwell]

Q. What happened prior to you leaving?
A. As I said we were fighting. I kicked him. He was on the ground, he was getting up, I punched him once then I left.”

28 On 21 March 1989, Detective Geoffrey Beresford conducted a record of interview with the Applicant which included questions based on admissions that had been made to Mr X (see paragraph 25 above) and acknowledgment of those admissions and of their truth. In particular, the record of interview contained an acknowledgment of a conversation with a person and in circumstances generally of the kind described by Mr X. In relation to the record of interview, Detective Beresford was cross-examined to the effect that a number of answers to questions in it were fabricated.

29 Following the conviction of the Applicant, Wood J on 20 November 1990 passed sentence, including the following remarks concerning the offence (Exhibit A, Tab B, pages 1-3):

“The prisoner, who denied his involvement in the killing, was found guilty by the jury who, no doubt, accepted the record of interview, and various oral admissions said to have been made by the prisoner to witnesses identified as X and Y, and also to Det Snr Sgt Ainsworth. By their verdict, the jury is to be taken to have been satisfied beyond reasonable doubt of the substance of those admissions and it is upon the basis of that acceptance by the jury of the facts that I will proceed to sentence.

The offence occurred in the early hours of 8 May 1988 when the deceased, Terrence Ryan, after becoming separated from a friend, found his way into the carpark adjacent to the MLC Centre. He came upon the prisoner who was sitting or squatting on the fire stairs adjacent to the building where he had just administered a shot of heroin to himself. The prisoner was at that location either to sell drugs or stolen video equipment.

When the deceased came upon the prisoner he was challenged and then punched in the head, whereupon he fell backwards down the stairs, ending up on the concrete below. The prisoner followed him down and formed the impression from his shaking movements that Mr Ryan was endeavouring to get to his feet. He thereupon kicked him numerous times in the body, particularly in the abdomen and scrotum. He took some money from his pockets and as he was endeavouring to go through his wallet or to roll him over for that purpose, he observed a group of people making their way to the area. He then ran from the scene, leaving his victim with fatal injuries. The victim was not, in fact, found until about two and a half hours later and was thereupon admitted to the Wollongong Hospital.

He was found to have serious injuries including lacerations to the skull and an underlying fracture which caused a subdural haemorrhage. Further, he had displaced ligaments of the first and second cervical vertebra, an obvious bruise in the area of the abdomen overlying the liver which was itself lacerated in a number of places, leading to a significant abdominal haemorrhage. Additionally, the deceased had fractures of the pelvic girdle affecting the pubic ramus, the ischium and the iliac crest. He also suffered fractures of two bones in one wrist and had what were considered to be defensive abrasions and bruising to one arm.

Finally, he had significant contusions and haematoma to the scrotum, perineum and anus, consistent with being kicked on a number of occasions with significant force in that area. It would seem probable that the skull fracture was sustained as the deceased fell backwards down the stairs and that the pelvic fractures occurred when he landed on the ground below.
I have no doubt that the jury found that to be the case and were further satisfied beyond reasonable doubt that the injuries to the liver and scrotum were caused by the act of the prisoner in kicking the deceased on a number of occasions.”

30 It is pertinent to observe that the evidence of the Applicant’s admissions to police was likely to have carried significantly greater weight, in the eyes of the jury, than the evidence of admissions to Mr X and Mr Y. As the Court of Criminal Appeal (Simpson J, Howie and Rothman JJ agreeing) said in R v Pollock [2005] NSWCCA 316 at [20]-[23]:

20. It may here be noted that the admissions said to have been made to Mr X in particular, and also, to a lesser extent, to Mr Y, must have carried very little weight with the jury. Apart from the difficulties inherent in evidence of informers generally (see R v Pollitt [1995] HCA 35; 174 CLR 558), other specific issues casting doubt upon their evidence arose. For example, and perhaps most tellingly, custodial records showed that the appellant and Mr X had never been held in the Protection Unit at the same time. The Crown sought (without evidence) to explain this apparent flaw in Mr X’s evidence by hypothesising that the records were erroneous. Further, Mr X wrongly described the appellant, on one occasion saying that he had a distinctive tattoo on his right arm, an assertion which was readily shown to be incorrect.

21 Mr Y, like Mr X, had a long criminal record and was a regular police informer, hoping and expecting to obtain benefit for himself by providing assistance in relation to the charge against the appellant. Although he had shared a prison cell with the appellant and they had in the past been friends, they had had a significant falling out. His credibility could not have been rated highly by the jury.

22 In all likelihood, it was the evidence given by the police officers of the record of interview and the ‘run around’ that persuaded the jury of the appellant’s guilt. The evidence of the record of interview involved an assessment of the credibility of Detectives Beresford and Gordon in two ways. Firstly, there was the assessment made by Wood J in determining that the answers recorded had been given by the appellant voluntarily, and that the record should therefore be admitted; secondly, it involved the jury’s assessment of the credibility of those police officers both in relation to the assertions by the appellant as to voluntariness, and also as to the fabrication of certain of the answers.

23 Detective Ainsworth’s evidence was in a different category. The appellant did not dispute that he had given the answers or made the statements attributed to him, nor that the photographs accurately depicted the specific locations he had pointed out. Accordingly, no issue as to Detective Ainsworth’s credibility arose. That, obviously, was why Detective Ainsworth was not cross-examined. The issue in the trial about Detective Ainsworth’s evidence was whether what the appellant had said concerned Mr Ryan, or was, as he claimed in his statement, about a different incident. That raised an issue about the appellant’s credibility.”

31 I bear these observations in mind given that some of the submissions before me have addressed the question of the objective seriousness of the Applicant’s offence. In assessing these submissions, I will have particular regard to admissions made by the Applicant to police.

Other Offences of Which the Applicant has been Convicted

32 Clause 3(1)(b), Schedule 1 of the 1999 Act requires the Court to have regard to all offences, wherever and whenever committed, of which the Applicant has been convicted, so far as this information is reasonably available to the Supreme Court.

33 In the course of his remarks on sentence, Wood J observed that there was no alternative other than to impose a sentence of penal servitude for life. However, his Honour made reference to the Applicant’s background and criminal history (Exhibit A, Tab B, pages 3-4):

“As I have said, the prisoner denied his involvement in the incident. As a consequence, there is no material before me, which could attract the proviso to the Crimes Act, s 19. The offence occurred, and the committal was conducted prior to the commencement of the amending legislation and, in the circumstances, I have no alternative other than to impose the specified sentence of penal servitude for life. However, for completeness it should be noted that the prisoner, at the time he appears for sentence is a single man aged twenty-five who has had an addiction to heroin and a significant criminal record dating back to 1976. His prior record is confined to offences of dishonesty, comprising multiple convictions for break, enter and steal, larceny, illegal use of a motor vehicle, goods in custody, stealing, absconding and the like. He has no prior conviction for any offence of violence, but at the time he appeared for sentence was subject to terms of imprisonment totalling nine years and six months dating from 5 October 1988, following his conviction in the Sydney District Court on 4 September last on offences of attempted break and enter, break and enter with intent, and possession of house breaking implements. As converted under the Sentencing Act, the existing term is due to expire, as a minimum term, on 18 July 1992 and the additional term is due to expire on 28 September 1994. The prisoner was arrested on the present offence on 21 March 1989. As a consequence, he has been held in custody since that time on remand for this matter and also while serving the existing sentence. In the circumstances, I take the view it is appropriate to date the life sentence, which I must inevitably impose, from today.”

34 The Applicant’s criminal history discloses the regular imposition of sentences of imprisonment for offences of dishonesty in and after 1984. Given the issue of totality which has been addressed in submissions on the present application, it is appropriate to set out the sentences which the Applicant was serving at the time of imposition of the present sentence.

35 On 4 September 1989, the Applicant was sentenced in the Sydney District Court to a total term of penal servitude for nine-and-a-half years with a non-parole period of six years, with both periods to date from 5 October 1988. These sentences were imposed for offences of break enter and steal, break and enter with intent to commit a felony and possession of housebreaking implements.

36 On 28 August 1990, the Applicant was sentenced in the Wollongong District Court to concurrent terms of penal servitude for three years to date from 25 May 1990 and to expire on 24 May 1993 with respect to offences of break enter and steal and larceny.

37 As Wood J observed, the Applicant’s existing terms of imprisonment imposed in 1989 and 1990, as converted under the Sentencing Act 1989, were due to expire, as a minimum term on 18 July 1992 with the additional term to expire on 28 September 1994.

38 Wood J directed that the Applicant’s sentence of life imprisonment date from 20 November 1990. Accordingly, that sentence operated concurrently with other sentences of imprisonment for a period of 20 months (until the expiration of the minimum term) and a period of three years and 10 months until the expiration of the additional term.

SORC Reports and Other Relevant Reports

39 In considering the present application, the Court is to have regard to reports on the Applicant made by SORC and other relevant reports: cl.7(1)(a), Schedule 1, 1999 Act.

SORC Report of 15 August 1997

40 The SORC report of 15 August 1997 discloses that the Applicant had a chequered history in custody, which related largely to his long-standing drug problem.

41 The Applicant was classified A2 on 25 October 1989 and placed in the Reception and Assessment Prison at Long Bay. On 6 December 1991, the Applicant was transferred to the Goulburn Correctional Centre and, at his request, placed in the Multi Purpose Unit at that Centre on 10 May 1992. At that time, the Unit provided a range of programs for inmates who had difficulty assimilating in the general prison population. However, the next day a search of the Applicant’s belongings revealed a syringe concealed in the handle of his electric jug and, as a result, he was removed from the Unit.

42 When seen by an Assessment Committee at Goulburn in May 1992, the Applicant was in the methadone program and was receiving drug and alcohol counselling. By November 1992, reports concerning the Applicant were not favourable, and he had been sacked recently from his employment as a painter. The Applicant said that his mother had been banned from visiting him because she had brought drugs into the prison.

43 Despite favourable reports by the drug and alcohol worker and the education officer in November 1993, the Applicant’s request for a reduction in classification and transfer to Berrima Correctional Centre was not supported by the Assessment Committee.

44 When seen by an Assessment Committee on 22 March 1994, the Applicant was reported to be unemployed and unwilling to work and his request for transfer to Berrima was not supported.

45 SORC reviewed the Applicant’s management on 31 March 1995 and resolved to seek a comprehensive assessment from the drug and alcohol worker at Goulburn. Reports revealed that the Applicant desired to remain drug free adding that “the methadone helps him achieve this”. It was recommended that the Applicant be classified B, to remain at Goulburn. It was considered that “a possible improvement in his psychological well being may result, benefiting his motivation to continue his educational pursuits” and that “such a result would reward his apparent compliant behaviour, encouraging a continuation of this pattern”. On 6 June 1995, it was determined that the Applicant remain at Goulburn with a reduced B classification.

46 In a report dated 4 December 1995, Dr Karl Koller, psychiatrist, noted that the Applicant was receiving methadone treatment and that “his progress here has been variable” and “at times he has ceased methadone only finding necessity to recommence”.

47 The Applicant was seen by an Assessment Committee at Goulburn on 4 December 1996 when his general behaviour was described as “just satisfactory” and his interest in employment as “minimal”. However, he was continuing with his art studies and was the subject of a favourable report from the education officer.

48 The SORC report of 15 August 1997, under the hand of the Chairperson, the Hon K Enderby QC, concluded with the following comments:

“Despite encouragement POLLOCK’s progress through the correctional system has been delayed because of his drug addiction, lack of motivation, and negative work attitude.
Nevertheless, he has maintained an interest in various forms of art work even though facilities in maximum security institutions for this form of study are limited.
It is to be hoped that continuing efforts by members of the Inmate Development Staff, together with the support and encouragement of the Serious Offenders Review Council, will result in an improvement in POLLOCK’s development to a point were [sic] he can be reduced progressively in classification and prepared ultimately to take his place in the community as a law abiding citizen.”

SORC Supplementary Report of 24 October 2006

49 The supplementary SORC report of 24 October 2006 noted that, since the initial SORC report, the Applicant had remained classified B at Goulburn. A category B classification is given to an inmate who, in the opinion of the Commissioner of Corrective Services, should at all times be confined by a secure physical barrier.

50 The Applicant had been convicted of three breaches of gaol discipline, comprising obstruction of a prison officer on 27 January 1998 (three days confined to cell), not complying with prison routine on 8 June 1998 (14 days off buy-ups) and not complying with directions of a prison officer on 12 August 2001 (reprimand and caution).

51 SORC considered that since its previous report, the Applicant’s custodial behaviour appeared to have improved.

52 Concerns were expressed about the Applicant in 2001 as he was not employed and was on a medical certificate from the clinic and spent most of the day in his cell after receipt of his daily methadone. He was enrolled in a computer course which he attended with good reports from the education officer.

53 A psychological report of 12 October 2006, written jointly by Ms Viviana Harjai and Ms Georgina Spilsbury, accompanied the supplementary SORC report. The Level of Service Inventory - Revised (LSI-R) was administered to the Applicant by Ms Harjai and Ms Spilsbury. The LSI-R is designed to assist in objectively assessing an offender’s level of risk of re-offending and to highlight areas of lifestyle, personal history, attitudes and behaviour most likely to contribute to that risk. The Applicant was found to be in the moderate-risk/needs group. The major areas of dynamic risk for the Applicant appeared to be in education/employment and drug and alcohol areas. The authors of the report expressed the following conclusion (Exhibit D, Annexure K, pages 5-6):

“It would appear that Mr Pollock's behaviour has improved in the more recent years of his incarceration. He has maintained an in-gaol record free of offences since 2001, with the last punishment comprising of a reprimand and caution. His last assault charge is dated March 1992. Unit reports also concur that he has improved.

Mr Pollock does appear, however, to be currently relying on a number of medications, and would seem to have done so for a prolonged period of time. Mr Pollock's long history of drug abuse would appear to continue to require addressing. It may be beneficial for him to reduce some of the opiate based medication (under careful monitoring by medical staff) so that he may be better able to participate and gain from future Alcohol and Other Drug treatment. It may also be useful for Mr Pollock to undergo investigations in order to clarify diagnosis of epilepsy and in turn clarify his medication needs. It is recommended that Mr Pollock be assessed by [a] psychiatrist and have his medications reviewed.

Were Mr Pollock to receive a determinate sentence he would likely benefit from a pathway of reducing such medication, and therefore increasing his focus and practice in coping with issues, and actively engaging in Alcohol and Other Drug treatment. While he is reducing this medication he may further benefit from learning skills to better deal with anxiety. It is also possible that some of his anxiety symptoms may be due to side-effects of his current medication regime.

Mr Pollock has spent the majority of his sentence in Goulburn and therefore may benefit by moving to another Centre where he may be motivated to begin focusing strongly on his treatment and preparation for future community living. A possibility may be a modern centre such as Mid North Coast where he would also benefit from closer proximity to his sister.

It is noted that Mr Pollock has some concerns in regards to being placed in a minimum security environment. However, a structured minimum environment may provide him with an opportunity to better adapt and work towards release. It may be appropriate for him to continue with Drug and Alcohol treatment in view of gaining entry into a program such as the Ngara Nura program, which would be available to him were he to reach a ‘C3’ classification. He has indicated an interest in this program. This could then complete a structured pathway towards release. Mr Pollock has further indicated that he would be happy to participate In a residential drug treatment program in the community, were he to be released.”

54 The supplementary SORC report, under the hand of the Chairperson, the Hon David Levine RFD QC, concluded with the following comments:

“To some extent the negative components referred to above have been tempered by POLLOCK’s pursuit of education, reduction in aggression and his having ‘calmed down’.
His medication dependence is a matter of concern and the Psychologist’s recommendation as to psychiatric investigation should be pursued.
The ‘structured pathway towards release’ referred to by the Psychologists is viewed by the Council as one that is not unrealistically beyond realisation.”

Reports of Dr Lucas

55 Dr Lucas interviewed the Applicant at Goulburn on 16 December 2003 and again on 12 January 2006.

56 In his first report dated 7 January 2004, Dr Lucas recounted the Applicant’s history, including his long history of injecting illicit drugs. He noted that the Applicant continued on the methadone program with a then current dose of 16 mls a day.

57 The Applicant told Dr Lucas that he had used cannabis since he was 12 or 13 years old. At 15, he started to use heroin and continued this usage between times in custody until 1998. He remarked to Dr Lucas that he had not had a full year out of custody at any one time since the age of 11.

58 With respect to drug usage in prison, Dr Lucas reported (Exhibit 2, report of 7 January 2004, pages 3-4):

“I asked about use of drugs in prison. He said in previous sentences and in the early part of the current one he did use drugs. About 1993 he was found to have concealed a syringe in a jug.

I asked if he would be able to remain off drugs if released from prison. He said, ‘If I could stay off in here I can out there’. It has been ‘quite a few years’ since he injected [and] drug and urine tests in prison have always been clear.”

59 The first report of Dr Lucas addressed the question of psychiatric diagnoses (page 10):

“Mr Pollock’s principal psychiatric diagnoses are panic attacks, perhaps panic disorder, currently controlled with medication and substance abuse.

His history of substance abuse goes back to his early teens and although he has tried a number of substances heroin by injection has been drug of choice. He has been on the methadone program for a decade or more and the dose is currently being reduced. He states he has been abstinent from drugs in prison for quite a number of years.

There are undoubtedly personality factors involved in his long history of offending but without independent information I hesitate to make a personality diagnosis. Persistent antisocial conduct of the type revealed by Mr Pollock’s criminal record, and his own account, does not imply an antisocial personality disorder. The influence of companions, drug use and socio-economic factors as well as early institutionalisation seem important.”

60 Dr Lucas concluded his first report with the following opinion (page 11):

“Mr Pollock has now served about fifteen years of his life sentence and is a B classification prisoner in Goulburn Correctional Centre. He is on the methadone program, sees a psychiatrist and takes an antidepressant and a benzodiazepine for both daytime sedation and as a hypnotic. He continues involvement in education and is not working. By his account there is good contact with his family and a probability of accommodation and support when he is released. After release he intends to pursue his education in art. He has no employment skills. Before the murder he had no convictions for violent offices [sic] .

In my opinion Mr Pollock is at the stage in his life sentence when determination of it would be of benefit to him and to those who will be involved in his further rehabilitation and preparation for release. Without some certainty about his minimum sentence I suspect that he will continue his prison career much as he has to date. He is quite institutionalised. With more certainty about his sentence consideration can be given to a reduction in classification, a broadening of his activities and an increase in contact with the outside community.

With regard, to his attitude to the offence, I thought his brief discussion with me fell somewhat short of complete denial of his involvement, there was a degree of acceptance of responsibility and some indication of regret about what occurred. Mr Pollock said he has tried to do his sentence the hard way, in a maximum security prison. I would be prepared to interview him again on this issue if you think it necessary. In any case, if there is concern about this it can be looked into by psychological staff while he undergoes further rehabilitation.”

61 The second report of Dr Lucas dated 14 February 2006 was prepared after his visit to interview the Applicant at Goulburn on 12 January 2006.

62 The Applicant informed Dr Lucas that his plans, if released, were to live with his 48-year old sister at Pottsville Beach, an hour away from the New South Wales - Queensland border. His sister agreed with this plan.

63 With respect to the Applicant’s drug use and health in custody, Dr Lucas stated (Exhibit 2, report of 14 February 2006, page 4):

“Mr Pollock has been on methadone for the last couple of years because he was running around with the wrong people. He nearly started drug use but chose methadone instead. His dose has been reduced. When in the community he was on a methadone program on and off. He was planning for his dose in prison to be reduced - it may have been increased around the time of his appeal. He has promised and [sic] his sister that he will not need methadone outside.

Mr Pollock suffers from epilepsy and is currently on an anticonvulsant, Neurontin. For about eight years he has had seizures now and then. He takes grand mal fits - others tell him he falls and then convulses. He has not had a seizure for a year. He was investigated by a scan at Goulburn Hospital. When he has had seizures he has been put in a dry cell until he settles.

Other medication is Prozac 20 mg a day for depression and panic attacks. The previous dose was 40 mg. For anxiety he takes the hypnotic Temazepam. He likes being on Prozac rather than being ‘slumped all day’. He plans to stay on it when released, At least for a while, and followed up by a psychiatrist. His sister will arrange this.

In prison he does not see a psychiatrist often.”

64 Dr Lucas summarised the Applicant’s diagnosis in the following way (page 7):

“As described in my previous report Mr Pollock's principal diagnoses are panic attacks, perhaps amounting to panic disorder, quite well-controlled with medication. There is a history of depression but medication has principally been aimed at controlling anxiety.

As well he has a history of substance abuse going back to his early teens with heroin by injection having been his drug of choice. Mr Pollock remains on the methadone program and aims to reduce the dose in the near future and not required on release from prison.

In my previous report I remarked that although there were undoubtedly personality factors involved in his long history of offending, I was hesitant to make a personality diagnosis. I thought that the influence of companions, drug use, socio-economic factors and early institutionalisation were important and that persistent antisocial conduct of the type suggested by his criminal record did not necessarily mean he was suffering antisocial personality disorder.

During his imprisonment Mr Pollock has required long term treatment with medication for depression, anxiety and panic attacks and he has for some years been on the methadone program.”

65 Dr Lucas concluded his report with the following opinion (page 8):

“Mr Pollock has had difficulty accepting he was capable of the crime for which he received his life sentence. He had complaints about the police and also about evidence given by prisoners. I suspect one of the problems is the nature of the offence and his assertion that he is not a violent person. This uncertainty in his attitude is something which I believe will have to be accepted. Weight should be given to the fact he has accepted his sentence, paid the price and, as he described to me previously, it made it hard for himself and done [sic] most of his sentence in Goulburn. Mr Pollock has had psychological difficulties throughout his imprisonment and required medication for depression, anxiety and panic attacks. To my knowledge, he has not been a difficult prisoner to manage.

In my opinion, Mr Pollock would benefit by having his sentence determined so that he can move to a C classification and begin a program aimed at preparing him for eventual release. He told me he would accept a C classification to the minimum security wing at Goulburn if this was offered. Given his long history of institutional life he will require preparation before release. His present post-release plans appear reasonable and he says he has the full support of his sister and can stay with her. When he returns to the community he will require supervision and support, psychiatric follow-up with a management program to minimise the chance of his reverting to drug use.

He is now forty and strongly motivated to avoid a return to prison but, as mentioned above, he will require support and treatment to maximise his opportunities and minimise the risk of his relapsing to drug use or re-offending. In my opinion the risk of a serious violent offence is probably low - he had no previous conviction for violence.”

Victim Impact Statement

66 As mentioned earlier, the Court received a victim impact statement of Kerryn Ryan, the sister of the deceased: s.28(2) Crimes (Sentencing Procedure) Act 1999. Ms Ryan recounts, with eloquence and dignity, the impact upon her family of the sudden and senseless death of her brother on 9 May 1988. The death of her brother so long ago has left her with ongoing sadness and pain, and anger towards the Applicant. It is appropriate for a public acknowledgement to be made of the loss and grief suffered by Mr Ryan’s family.

67 It is, of course, the law of this State that a greater sentence cannot be passed because of the impact of the crime on the victim’s family: R v Previtera (1997) 94 A Crim R 76 at 84-87; R v Slater (2001) 121 A Crim R 369 at 374-375 [19]-[24]; R v FD and JD (2006) 160 A Crim R 392 at 415-416 [103]-[105], 428 [170]-[171].

Submissions of the Applicant

Objective Seriousness of Offence

68 Ms Burgess submits that the present offence lay towards the lower range of objective seriousness for the crime of murder. It was submitted that this was a spontaneous and unpremeditated act of violence carried out by the Applicant, who had used heroin shortly before the incident.

69 It was submitted that there is insufficient evidence for the Court to be satisfied that, at the relevant time, the Applicant had the intention to kill. The case was left to the jury by Wood J on the basis that the Crown had to prove either intent to kill or intent to cause grievous bodily harm. It was noted that Wood J said that he was satisfied that the jury had found beyond reasonable doubt that the deceased’s skull fracture was sustained as he fell backwards down the stairs and that the pelvic fractures occurred when he landed on the ground below. His Honour found that the injuries to the liver and scrotum were caused by the Applicant kicking the deceased on a number of occasions, although there was evidence that the injuries to the victim’s genitals may have been caused by him falling from the railing whilst straddling it. Had the Applicant not kicked the deceased after he fell down the stairs, it was submitted that it would have been very difficult for the Crown to prove that he had the requisite intent for murder. It was the subsequent kicking of the deceased which was critical in this regard. It was noted that Wood J did not make any finding as to whether the Applicant had intent to kill or an intent to do grievous bodily harm, no doubt because his Honour had no option but to impose a sentence of life imprisonment.

70 Ms Burgess observed that, in the 1992 appeal to the Court of Criminal Appeal, Gleeson CJ (at page 2) observed that the Applicant’s admissions were consistent with a conclusion that his conduct “to say the least” was done with the intent to cause grievous bodily harm.

71 It was submitted that the prison-informer witness, Mr X, gave evidence that, whilst the Applicant admitted punching and kicking the deceased, he kept on telling him “it was an accident”. The Applicant admitted in his record of interview with police that he had punched the deceased, but said nothing about his state of mind at the time (Q/A.32-35). The Applicant also admitted, when the victim was on the ground, “he was shaking like he was trying to get up” so he kept on kicking him (Q/A.32). It was submitted that the taking of money appeared to have been an afterthought (Q/A.32). Ms Burgess submitted that, at its highest, the evidence discloses intent to do grievous bodily harm and that the Court would not be satisfied beyond reasonable doubt that the Applicant acted with intent to kill.

72 The Applicant relied upon a passage in the decision of the Court of Criminal Appeal in Apps v R [2006] NSWCCA 290 where Simpson J (Whealy J agreeing) said at [49]:

“Certainly, in a case of murder, the state of mind in which the offence is committed is a relevant consideration going to objective seriousness. As is well known, murder may be established by proof of an act causing death committed when the act is accompanied by any one of three states of mind: in descending levels of seriousness they are: an intention to kill, an intention to cause grievous bodily harm, or reckless indifference. I have no doubt that an intention to kill as distinct from either of the two alternatives, is a consideration tending to greater objective seriousness rather than lesser. So much is obvious. Indeed, in Way [(2004) 60 NSWLR 168] , while the Court expressly alluded to mental states, followed this by the parenthetical observation that ‘intention is more serious than recklessness’. However, of itself, an intention to kill alone cannot establish that a particular instance of the crime of murder is above the mid-range of seriousness. It is not the only circumstance relevant to that assessment. In this the submissions made on behalf of the applicant are correct.”

73 Although the present Applicant’s offence was committed long before the introduction of the standard non-parole period system, Ms Burgess submits that the above passage is apposite to a determination of the objective seriousness of the Applicant’s offence.

74 It was submitted for the Applicant that an assessment of the objective seriousness of the Applicant’s offence played an appropriate part in the present application where, if the Court determines to fix a determinate sentence, the term of that sentence will be affected by a finding concerning objective seriousness.

Reports of SORC and Dr Lucas

75 Ms Burgess pointed to features in the supplementary SORC report and accompanying documentation which indicated improvement in the Applicant’s custodial behaviour. Particular reference was made to a psychological report of Ms Harjai and Ms Spilsbury to which reference has already been made (at paragraph 53 above).

76 Counsel for the Applicant submitted that an appropriate course was to fix a determinate sentence to allow a structured pathway to release to be implemented, in the manner referred to in this report.

77 Ms Burgess emphasised that the reports of Dr Lucas pointed to available family support for the Applicant upon release. Dr Lucas was supportive of a reduction in classification, with a corresponding increased contact with the outside community, which would result from the fixing of a determinate sentence. Counsel submitted that the Court should accept Dr Lucas’ opinion that the risk of a serious violent offence occurring upon release is probably low, given the Applicant’s prior history (apart from the present offence).

Totality

78 Ms Burgess acknowledged that, if a sentence was to be determined, considerations of totality would arise in accordance with the principles in Mill v The Queen (1988) 166 CLR 59. In this regard, it was submitted that it was relevant that the Applicant had served over two years’ imprisonment by 20 November 1990 in relation to other offences, and that his non-parole period expired on 18 July 1992 and the fixed term on 25 May 1993.

The Need to Preserve the Safety of the Community and the Applicant’s Record for Other Offences

79 By reference to the statutory factor concerning the need to preserve the safety of the community (cl.7(1)(b), Schedule 1), Ms Burgess submitted that the evidence did not point to a history of violent conduct by the Applicant, apart from the present offence. It was submitted that the Applicant’s substantial history for crimes of dishonesty, did not bear, in any relevant respect, upon this factor. Ms Burgess submitted that the present offence may be classified as an uncharacteristic aberration against the background of a record of offending for dishonesty, and that this conclusion meant that the principles identified in Veen v The Queen (No. 2) (1987-1988) 164 CLR 465 at 477 had no application in this case.

80 It was submitted that the risk assessment carried out for the purpose of the psychological report of 12 October 2006, and the reports of Dr Lucas, lead to the conclusion that the risk of the Applicant committing a serious violent offence is probably low.

Practice of Release on Licence, Statistics and Comparable Cases

81 Ms Burgess advanced a submission by reference to cl.7(1)(d), Schedule 1 of the 1999 Act. It was acknowledged that this provision did not apply expressly to the Applicant’s case, as he was sentenced after 12 January 1990 and not before. Ms Burgess submitted, nevertheless, that it was appropriate for the Court to have regard to the practice of release on licence prior to 1990 as an “other relevant matter” within cl.7(1)(e), Schedule 1.

82 Ms Burgess submitted that s.13A(9)(a) Sentencing Act 1989 required a court, which had determined to set a minimum term and additional term under the section, to have regard to the knowledge of the original sentencing court that a person sentenced to imprisonment for life was eligible to be released on licence under s.463 Crimes Act 1900, and of the practice relating to the issue of such licences.

83 It was submitted that, as release on licence and practice relating to the issue of licences was a relevant matter to be taken into account on a redetermination at the time when the Applicant was sentenced, it would be unfair if he was disadvantaged by subsequent changes in the legislation.

84 Counsel referred to statistics calculated by the Department of Corrective Services concerning the mean length of time served before first release on licence by 161 life-sentence prisoners between October 1981 and October 1987 (11.7 years) and noted that, according to those statistics, 149 prisoners (92.5%) served 15 years or less.

85 Ms Burgess relied upon R v MJR (2002) 54 NSWLR 368 in support of the proposition that, on sentencing for an offence, it is proper for a court to take into account the sentencing practice as at the date of the commission of the offence, when sentencing practice has moved adversely to an offender. By reference to a publication of the Judicial Commission of New South Wales entitled “Sentenced Homicides in New South Wales 1990-1993” (Monograph Series No. 10, June 1995), it was submitted that, at the relevant time, a typical sentence for murder under s.19A Crimes Act 1900 might be described as a total sentence of 18 years’ imprisonment comprising a minimum term of 12 years and an additional term of six years (page 76).

86 Counsel relied upon a table of sentences redetermined under s.13A Sentencing Act 1999 where the offence of murder had involved an assault. It was submitted that a minimum term (or non-parole period) of 16 years is towards the top of the range. It was submitted that the Applicant has served some 16 years’ imprisonment solely referrable to this offence, and has been in custody for over 18 years. It was submitted that the Applicant has already served, or is very close to having served, an appropriate non-parole period.

87 Whilst it is apparent that the Applicant needs some preparation for his release, it was submitted that it was not appropriate to impose a sentence which is disproportionate to the objective gravity of the offence, simply to allow additional time for this to occur. Ms Burgess acknowledged that the setting of a non-parole period does not mean that the Applicant will be released. The State Parole Authority has a duty to ensure that all necessary and appropriate steps have been taken before this occurs.

Date of Commencement of Sentence

88 Ms Burgess acknowledges that, as the Applicant was in custody for other offences when he was charged with murder on 21 March 1989, any non-parole period must date from the time of the original sentence on 20 November 1990.

Submissions of the Crown

89 The Crown acknowledged that this was a case where it was appropriate for the Court to set a specified term for the sentence, together with a non-parole period: cl.4(1)(a), Schedule 1 of the 1999 Act.

Objective Seriousness of Offence

90 The Crown submitted that, although this is not a case which would be classified as being within the worst category of murder, it is a significantly serious matter which may be appropriately characterised as being at the middle of the range of objective seriousness for the crime of murder.

91 It was submitted that the Court ought conclude from the nature of the injuries sustained by the victim that this was a most vicious attack, and that the Applicant had acted with intent to kill. Even if the Court could not be satisfied beyond reasonable doubt that the Applicant intended to kill the victim, it was clear that he had intended to cause grievous bodily harm. It was submitted that this was, nevertheless, a very serious and vicious attack on a young man carried out without any provocation.

92 The Court was referred to parts of the evidence of the Crown witnesses, Mr X and Mr Y, which, according to the Crown, emphasised the seriousness of the Applicant’s attack upon the deceased and the fact that it was carried out for no real reason. Although acknowledging that the evidence of the two prison-informer witnesses ought be approached with due caution, the Crown submitted that their evidence should nevertheless be taken into account.

Contrition

93 The Crown submitted that the Applicant had demonstrated no contrition for his crime. The matter had proceeded to trial and he had made continuing attempts, over the years, to have the conviction overturned by way of appeal or application under s.474D Crimes Act 1900, leading to a referral to the Court of Criminal Appeal in 2005.

94 The Crown pointed to statements made by the Applicant to Dr Lucas in his second report of 14 February 2006 in which the Applicant asserted that he was “not a man of violence” and had “never done a violent act” in his life. To the extent that Dr Lucas reported that the Applicant “accepted his sentence”, the Crown submitted that this was significantly different from the Applicant having accepted that he committed the crime.

The Applicant’s Prospects of Rehabilitation

95 The Crown submitted that a cautious approach was required with respect to the Applicant’s prospects of rehabilitation. Reference was made to the psychological report of 12 October 2006 which accompanied the supplementary SORC report (see paragraph 53 above).

96 The Crown acknowledged that there had been improvement in the Applicant’s custodial behaviour and attitude in recent years, but that a guarded approach was required given his long-term use of methadone, viewed against a long history of use of illicit injecting drugs prior to 1989.

97 The Crown acknowledged that the ultimate decision concerning release on parole lay with the State Parole Authority, and that the fixing of a non-parole period would not automatically see the release of the Applicant. Nevertheless, the Crown submitted that it was appropriate to be cautious concerning the Applicant’s prospects of rehabilitation and that this caution was relevant to the determination of sentence.

Practice of Release on Licence, Statistics and Comparable Cases

98 With respect to the Applicant’s reliance upon release on licence practice prior to 1990, the Crown referred to the decision in R v Rees (Court of Criminal Appeal, 22 September 1995, unreported, BC9505405), where Gleeson CJ (Grove and Simpson JJ agreeing), at page 7, observed that release on licence is not the same thing as release on parole, and that it is eligibility for release on parole that is affected by the setting of a minimum term. Gleeson CJ observed that licences were often subject to stringent conditions and were revocable. The Crown submitted before me that caution is required in considering a submission which invites reference to statistical material concerning sentencing practice, including release on licence, before 1990.

99 The Crown submitted that cl.7(1)(d), Schedule 1 had no application here as the Applicant was sentenced after 12 January 1990. It was submitted that it would be erroneous to have regard under cl.7(1)(e), Schedule 1 to release on licence as “any other relevant matter” where the immediately preceding subclause had confined attention to that factor to sentences imposed before 12 January 1990 only. The Crown submitted, in substance, that cl.7(1)(d), Schedule 1 covers the field on that issue in the clause.

Totality

100 With respect to totality, the Crown submitted that Wood J had been somewhat generous towards the Applicant in choosing the commencement date for sentence given that the Applicant still had a significant period to serve for the sentences imposed in the District Court. As a result, there was a substantial period of concurrency between the sentences.

Determination

101 It is, of course, a matter for the Court to determine whether the application may be disposed of by setting a specified term for the sentence together with a non-parole period: cl.4(1)(a), Schedule 1. However, the Crown’s submission that this is an appropriate case for such a determination assists the Court in the resolution of the application. I am satisfied that the Crown’s concession is an appropriate and realistic one in the circumstances of this case.

Circumstances Surrounding the Offence

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

103 I have had regard to the submissions concerning the appropriate finding to be made, beyond reasonable doubt, with respect to the Applicant’s intention at the time of the crime. It is clear, on the evidence, that a vicious and sustained attack was perpetrated by him on the deceased. It is apparent that the jury was satisfied beyond reasonable doubt, for understandable reasons, that the Applicant intended to cause, at the least, grievous bodily harm to the deceased. Wood J, as the trial Judge, did not make a finding that he was satisfied that the Applicant had acted with intent to kill. It falls to me to consider this question on the evidence adduced at trial.

104 I have had regard to the medical evidence, together with the admissions made by the Applicant principally to police in the record of interview, but also, on a more guarded basis, to the admissions made to Mr X and Mr Y. Having regard to the totality of the evidence, I am not satisfied beyond reasonable doubt that the Applicant acted with intent to kill. I am satisfied that the Applicant acted with intent to cause grievous bodily harm.

105 I acknowledge the statement in Apps v R at [49] that an intention to kill, as distinct from an intention to cause grievous bodily harm, is a consideration tending to greater objective seriousness. However, although it will generally be the case that an intention to cause grievous bodily harm is less culpable to a greater or lesser degree than an intention to kill, this is not always the case. There are circumstances where an intention to inflict grievous bodily harm could reflect similar criminality to other cases involving an intention to kill: R v Hillsley (2006) 164 A Crim R 252 at 258 [16]-[17]. There is no prima facie presumption that murder resulting from reckless indifference to human life is less culpable than murder involving one of the other categories of intent referred to in the definition of murder: R v Ainsworth (1994) 76 A Crim R 127 at 139; R v Towner [2002] NSWSC 951 at [37].

106 This was a savage attack perpetrated for no good reason by the Applicant on the deceased, accompanied by an intention to cause grievous bodily harm. In my view, the circumstances of this case reflect substantial criminality on the Applicant’s part, not far below criminality involving an intention to kill.

107 I do not accept the Applicant’s submission that this offence lies towards the lower end of the range of objective seriousness. I am satisfied that the offence may be placed above that point, but below the middle of the range of objective seriousness for this offence. In using this formula, I am conscious that the standard non-parole provisions have no application to this case. Nevertheless, the identification of the objective seriousness of the offence assists an assessment of the Applicant’s criminality revealed by this offence.

The Applicant’s Other Offences

108 The Court is required to have regard to all offences, wherever and whenever committed, of which the Applicant has been convicted: cl.3(1)(b), Schedule 1.

109 Prior to 1989, the Applicant had an extensive criminal history for offences of dishonesty which were clearly related to his long-term use of illicit injecting drugs. However, the Applicant had no record for offences of violence before the present offence.

110 His record for gaol discipline offences since 1989 does not reveal any significant history of violent incidents. Further, his custodial disciplinary history has shown significant improvement in the past decade.

SORC Reports and Other Relevant Reports Concerning the Applicant

111 The Court is required to have regard to SORC reports and any other relevant reports prepared after the Applicant was sentenced that are available to the Court: cl.7(1)(a), Schedule 1.

112 The initial SORC report of 1997 (see paragraphs 40 to 48 above) contained a guarded assessment concerning the Applicant’s progress in custody and his prospects of rehabilitation. His ongoing therapeutic use of methadone in custody, together with other areas of unsatisfactory progress, posed some difficulties for the Applicant.

113 The supplementary SORC report of 2006 (see paragraphs 49 to 54 above) points to a more satisfactory history of the Applicant in custody including improved prospects of rehabilitation if granted release. Given his continuing therapeutic use of methadone in custody, caution remains appropriate in this respect. Nevertheless, a more positive picture emerges from the supplementary report than its predecessor prepared some nine years before.

114 The psychological report of 12 October 2006 (see paragraph 53 above) provides some assistance to the Applicant’s case, but also indicates difficulties which he will confront upon release. These difficulties again lie in his capacity to live outside prison without use of illicit drugs or further breach of the criminal law, in particular with respect to offences of dishonesty. Nevertheless, the psychological report, on balance, points to a structured pathway towards the Applicant’s release and a framework in the community, including family support, which would promote the prospects of a law-abiding life by the Applicant.

115 The reports of Dr Lucas provide guarded support for the Applicant’s release to the community. I note Dr Lucas’ opinion that the risk of a further serious violent offence being committed by the Applicant is probably low.

116 The contents of the various reports support the setting of a specified term for the sentence, together with a non-parole period for the Applicant.

The Need to Preserve the Safety of the Community

117 The Court should have regard to the need to preserve the safety of the community in considering the present application: cl.7(1)(b), Schedule 1.

118 The Applicant has an extensive history of dishonesty offences prior to 1989, clearly linked to his use of illicit drugs. However, he has no prior history of offences of violence. His last assault charge in custody was in March 1992. Having regard to the Applicant’s history, Dr Lucas considered that the risk of the Applicant committing a serious offence of violence is probably low.

119 Having regard to the Applicant’s history, the greater risk appears to be that he will commit offences involving the use of illicit drugs, and associated offences of dishonesty, upon release.

120 On the evidence, I accept, however, that the risk of the Applicant committing a further serious offence of violence appears low.

The Age of the Applicant

121 The Court is required to have regard to the age of the Applicant at the time of the offence and at the time of the present application: cl.7(1)(c), Schedule 1.

122 The Applicant was born on 2 October 1965 and was 22 years old at the time of the offence on 9 May 1988. He has been in custody continuously since 5 October 1988. The Applicant is now aged 41 years.

123 It is apparent, as already observed, that the Applicant had a significant criminal history for offences of dishonesty, which were drug related, from the time he was 11 years old until his present incarceration at the age of 23 years. He spent a significant period of time in custody over the 12-year period between 1976 and 1988, before his present incarceration which has now occupied in excess of 18 years.

124 The present offence was committed when the Applicant was a young man. He is now approaching middle age. A significant test for the Applicant will be his ability to live a law-abiding and drug-free life upon release.

Practice of Release on Licence, Statistics and Comparable Cases

125 It is clear that cl.7(1)(d), Schedule 1 has no application to the present application. Do the factors referred to expressly in that subclause (which do not apply here) arise for considerations by means of the catch-all provision permitting reference to “any other relevant matter” in cl.7(1)(e), Schedule 1?

126 I have difficulty with Ms Burgess’ submission to this effect, as a matter of statutory construction. An express reference to the particular topic in cl.7(1)(d) tends to suggest that the same subject matter cannot be considered, by a different and broader route, under cl.7(1)(e). I accept the Crown’s submission in this respect.

127 I note in passing that in R v Lagopodis [2000] NSWSC 1201, Sully J observed at [24] that cl.7(1)(d), Schedule 1 applied only in the case of an applicant sentenced before 12 January 1990 and that the applicant there (like the present Applicant) had been sentenced after that date (on 7 September 1990). No issue arose in that case as to whether the former practice of release on licence could, in some other way, be taken into account on the application.

128 I do not consider that R v MJR assists the Applicant. The Applicant was sentenced to life imprisonment under a statutory scheme where it was open to him, after a specified period, to seek the fixing of a determinate head sentence and non-parole period. The principles in R v MJR have no application to the decision which I must make.

129 Even if the material concerning release on licence practice was relevant, I do not consider that the material relied upon provides particular assistance to the Applicant. The caution expressed by Gleeson CJ in R v Rees concerning reliance upon release on licence material, for the purpose of determining a non-parole period, is apposite to the present case.

130 I do not derive any particular assistance from the schedule of cases in which life sentences were redetermined under s.13A for murder involving assault. Limited factual information is provided in the schedule and care must be taken before drawing conclusions concerning a possible range of sentences. I did access the actual judgment in a number of the cases included in the schedule. Having done so, I remain of the view that they provide limited assistance in determining an appropriate non-parole period and total sentence in the particular circumstances of this case.

Contrition

131 I accept the submission of the Crown that the Applicant has not demonstrated contrition with respect to this offence. It was submitted by Ms Burgess that the Applicant had accepted the end of the legal process and accepts his punishment. It might be said, given the decision of the Court of Criminal Appeal in 2005, that the Applicant had little alternative but to accept the end of the legal process.

132 The existence of contrition or remorse is relevant to an assessment of an offender’s prospects of rehabilitation and the likelihood of him committing further offences in the future: R v MAK and MSK [2006] NSWCCA 381 at [41]. I have referred to other features of the evidence before the Court which bear upon the Applicant’s prospects of rehabilitation and the prospect of him committing further offences. This Court has observed that the absence of contrition cannot of itself defeat an application for redetermination of a life sentence: R v Plevac [2004] NSWSC 916 at [49].

Totality

133 It is clear that the totality principle applies to re-sentencing on a life sentence redetermination application: R v Salameh [1999] NSWCCA 300 at [30]. In this case, it was the District Court which sentenced the Applicant in 1989 and 1990 to lengthy terms of imprisonment for break, enter and steal offences. I have no information concerning those offences beyond that contained in the Applicant’s criminal history.

134 The issue here is the extent to which any determinate sentence which I fix for the offence of murder will run concurrently with pre-existing sentences of imprisonment imposed by another Court for serious offences of a different type.

135 It was common ground before me that any determinate sentence which I fix ought commence on 20 November 1990. Accordingly, it is appropriate to have regard to the significant period of concurrency during which the Applicant’s sentence for murder ran together with his sentences imposed in the District Court.

136 As the determinate sentence for murder which I fix must be backdated to 20 November 1990, I ought not disregard these other sentences as otherwise the Applicant would, in effect, only be punished (after 20 November 1990) for the murder and not the other offences: R v Purdey (1993) 31 NSWLR 668 at 680; R v Salameh at [30]-[36]; R v Maiden [2000] NSWCCA 519 at [21]ff.

137 In my view, it is appropriate to treat that part of the Applicant’s incarceration up to July 1992 as being referrable essentially to his District Court sentences. To approach the matter otherwise would see the Applicant serving no significant identifiable sentences for serious offences of dishonesty committed by him against the background of a long history of offences of dishonesty at that time. The magnitude of the sentences imposed in the District Court in 1989 and 1990 reflect the gravity of the criminality involved in those offences.

The Appropriate Sentence

138 Courts have observed that a Judge, on a redetermination application, has the advantage of hindsight when approaching the question of sentence: R v Malcolm (1991) 58 A Crim R 148 at 150, R v Page [2002] NSWSC 1067 at [69]. This is an advantageous position where information about, and professional observations of, the offender are much more extensive given the passage of years since imposition of the original sentence: R v Towner at [57].

139 In setting a non-parole period, I recognise that I am setting a period at the expiration of which the Applicant will merely be eligible to be released, but will not necessarily be released. It will be a matter for the State Parole Authority to consider whether it is satisfied, on the balance of probabilities, that the release of the Applicant on parole is appropriate in the public interest: s.135(1) Crimes (Administration of Sentences) Act 1999.

140 In setting a non-parole period, I am required to set a period which I consider to be the minimum term that justice requires that the Applicant should serve in prison having regard to all the circumstances of the offence: Power v The Queen (1974) 131 CLR 623 at 628; The Queen v Bugmy (1990) 169 CLR 525 at 536; R v Simpson (2001) 53 NSWLR 704 at 716-717.

141 Having regard to the various matters to which reference has been made in this judgment, I have determined that it is appropriate to set a specified term for a sentence, together with a non-parole period for the sentence under cl.4(1)(a), Schedule 1 of the 1999 Act.

142 I set a specified term for the sentence of 24 years’ imprisonment commencing on 20 November 1990 and expiring on 19 November 2014 with a non-parole period of 17 years and nine months commencing on 20 November 1990 and expiring on 19 August 2008. I specify 19 August 2008 is the earliest date upon which the Applicant will be eligible for release on parole.

**********