R v Barker

[2001] NSWSC 295

CITATION:	R v Barker [2001] NSWSC 295
CURRENT JURISDICTION:	Criminal
FILE NUMBER(S):	SC L13/96
HEARING DATE(S):	30 March 2001
JUDGMENT DATE:	24 April 2001
PARTIES :	Regina v Leonard Samuel Barker
JUDGMENT OF:	Studdert J

COUNSEL :	L. Lamprati (Crown) C.B. Craigie/Mr Benson (Applicant)
SOLICITORS:	S.E. O'Connor (Crown) D.J. Humphreys (Applicant)
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act Sentencing Act, 1989
CASES CITED:	R v Ellis (1986) 6 NSWLR 603 R v Thomson (2000) 49 NSWLR 383 R v Dodd (1991) 52 A Crim R 349 R v Kalache [2000] NSWCCA 2 R v Purdey (1993) 65 A Crim R 441; (1993) 31 NSWLR 668 R v Fenech (unreported, Barr J, 4 September 1997) R v Salameh [1999] NSWCCA 300 R v Maiden [2000] NSWCCA 519 R v Pearce (1998) 156 A Crim R 684
DECISION:	See para 48

IN THE SUPREME COURT

OF NEW SOUTH WALES

CRIMINAL DIVISION

STUDDERT J

Tuesday 24 April 2001

L13/96 REGINA v LEONARD SAMUEL BARKER

JUDGMENT

1 HIS HONOUR: On 18 November 1988 the applicant, Leonard Samuel Barker, was sentenced to penal servitude for life for the murder of Terrence Trevor Rose. The sentence was expressed to date from the time that the applicant was taken into custody in February 1988. The applicant now seeks the determination of a term and a non parole period for that sentence, and although the application bears a date before its commencement, it is common ground between the applicant and the Crown that this application is governed by Sch 1 to the Crimes (Sentencing Procedure) Act 1999.

2   The evidence placed before the Court on this application has been in part in documentary form and in part by way of oral testimony. The following documents were tendered:

By the Crown:

Statement of facts and annexures identified in that report - Exhibit A

Report of Serious Offenders’ Review Council - Exhibit B

Supplementary report of Serious Offenders’ Review Council - Exhibit C

Custodial history - Exhibit D

Record of interview, Queensland, 15 February 1988 - Exhibit E

Subsequent record of interview with police at Glen Innes - Exhibit F

Record of conviction in South Australia - Exhibit G

Further custodial history - Exhibit H.

By the applicant

Notice of reply to statement of facts - Exhibit 1

Supplementary notice of reply to statement of facts - Exhibit 2.

3   Oral evidence was given by Mr McConnell, who is the acting secretary of the Serious Offenders’ Review Council, by the applicant, and by two witnesses called by the applicant, Mr Kearns and Mrs Swarbrick.

4 I am required by cl 3 of Sch 1 to the Crimes (Sentencing Procedure) Act 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…”

The circumstances surrounding the offence

5   These were referred to in my remarks on sentence dated 18 November 1988 and in the statement of facts, Exhibit A.

6   The applicant surrendered himself to police in Port Douglas on 15 February 1988, informing the local sergeant of police that he was wanted in New South Wales for arson, robbery and fraud. He also produced a .32 calibre pistol and a knife and he said that he had used these weapons to kill the Rose brothers, one of these brothers being the victim of the murder for which the applicant was sentenced by me in 1988.

7   The applicant was duly extradited to New South Wales and was taken to Newcastle where a bench warrant had been issued following his failure to appear on a charge of arson in the District Court at Newcastle. The applicant thereafter agreed to accompany police officers to a heavily wooded area some fifty-five kilometres from Glen Innes and some two kilometres inland from the nearest road, where he pointed to the place where he had killed the victim, Terrence Rose, some two years previously on 15 February 1986. Having shown the police where the killing took place on 23 February 1988, the applicant participated in a record of interview at the police station at Glen Innes (see Exhibit F) on 24 February 1988 and he supplied details as to the commission of the crime and what he claimed led up to it.

8   There can be no question but that the killing was premeditated. In my remarks on sentence in 1988 I said:

“It is clear, on the outline of the facts contained in Exhibit B, which I have considered, that this murder was carefully planned; that a decision to carry it out had been formed by you when you went to stay at the deceased’s home some weeks before the killing, and that it was coldly executed - three bullets being fired into the body of the deceased after he had been taken to the lonely place of execution.”

9   No evidence has been placed before me on the present application which leads me to doubt the accuracy of the above remarks. The weapon which the applicant used he had purchased in a hotel some time before the killing. It appears that the applicant had been concerned for a significant period of time about sexual advances which his wife told him the deceased had made towards her, and also about a perceived association between the deceased and one of the applicant’s daughters by his first marriage. The deceased had also invited the applicant’s seven year old daughter to stay with him over a weekend. The applicant went away and spent a period of over one month in the Gibraltar Ranges contemplating what he was going to do about the threat that he perceived the victim posed to the well being of his wife and to his daughters. He then returned to Sydney and to the home of the victim’s mother, where the victim was staying at the time. He left that place with the victim under the pretext of having the victim meet a person behind the Harold Park trotting track, but then at gunpoint required of the victim that he drive the applicant north of Sydney. To begin with, he told the victim that he was taking him to the home of the applicant’s wife but, later, told him he was taking him to a place where marijuana was available. Using this as a lure, the applicant enticed his victim to that lonely area where the killing occurred.

10   In the police record of interview on 24 February 1988 at Glen Innes the applicant was asked these questions and gave these answers as to the shooting itself:

“Q.34 What time of the day did you shoot him?
A. Approximately ten am.
Q.35 What distance were you from him when you fired the first two shots?
A. Approximately eight feet.
Q.36 Did he immediately fall to the ground?
A. Yes he fell to the ground lying on his right side.
Q.37 Had he lost consciousness?
A. It appeared that way.
Q.38 At what distance did you fire the third shot into his head?
A. Approximately one inch.
Q.39 Did he appear to be dead following this?
A. Obviously.
Q.40 What side of the head did you fire that third shot into?
A. Into his left temple.”

11   Assessing the objective gravity of the crime, it can, in my view, only be considered to have been extremely grave.

The other offences of the applicant

12   The applicant was born on 26 March 1941. He committed minor offences as a juvenile, which assume no significance for present purposes. At the age of eighteen he was placed on a recognizance in respect of an assault. There were two convictions for selling liquor without a licence at a time when the applicant was nineteen years of age, and then he was given a one month suspended sentence for assault of a female when he was twenty-four years of age. There was a conviction for stealing which attracted a monetary penalty in 1984, but that was the extent of the applicant’s record when he came to be sentenced before me in November 1988, but later the applicant was convicted of the other crimes to which he had confessed when he surrendered to the police at Port Douglas.

13   On 14 December 1988 Judge Ducker in the District Court sentenced the applicant to a fixed term of four years imprisonment on a charge of maliciously setting fire to a property with intent to defraud and fixed such sentence to date from 14 December 1988. (This was the crime for which the bench warrant I mentioned earlier had issued.)

14   The applicant has also been convicted and sentenced for the manslaughter of Robert Rose. That killing occurred in February 1984 and the applicant was sentenced to a fixed term of eight years on 14 January 1991 by Mr Justice Duggan in the Supreme Court of South Australia. The applicant stabbed his victim with a knife during an argument and a struggle and then buried his body in a dry creek bed at Oodla Wirra. Justice Duggan imposed a sentence to date from 17 December 1991. It is appropriate that I record here what his Honour had to say in sentencing the applicant for that crime of manslaughter:

“It is important that I should say something more about your visit to the Port Douglas police station. You explained to the jury that a niece told you about the Jehovah’s Witnesses. You became interested in their religion and studied the scriptures. Eventually you decided that it would be in accordance with your new found faith to give yourself up and you did. I think it quite likely that these offences, and particularly your role in them, would not have been discovered if you had not taken this action.
I have no doubt, in the light of these events, that your conversion was quite genuine and since that time you have been officially received into the church of your choice. One of the church’s elders has given evidence on your behalf.
I have referred to the fact that your conversion to religion has all the appearance of being genuine. Your new found ideals led you to the police and eventually to this court. They have also resulted in you practising your religion in gaol as well as motivating you in the various studies you have undertaken with success in prison.”

No doubt his Honour was appropriately influenced by the matters addressed in the above remarks in setting the sentence at which he arrived.

15   Clause 7 of the First Schedule requires that I have regard to the reports of the Serious Offenders’ Review Council. These were among the tendered documents and I have considered them. I am required to have regard also to the age of the applicant at the time he committed the murder and presently. I have done so. The applicant was forty-four years of age when the murder was committed and he is now sixty years old. I am also required to consider the need to preserve the safety of the community, and I have regard to this.

16   The applicant left school having obtained his Intermediate Certificate. He worked as a copy boy with the Daily Mirror and he then worked with an electrical retailer. Then he worked on the waterfront for six years and he also drove taxis. He married for the first time at the age of eighteen and had two children by that marriage, which was dissolved in 1972. The applicant married again in 1973 and there are two children of that union. The applicant’s victim, who had been a friend from childhood, joined the applicant in a business in the 1970s. That business failed and the applicant moved with his family to Scone, where it appears he set fire to his house and made an insurance claim. Those events led to his conviction for arson earlier mentioned.

17   I referred earlier to the remarks on sentence of Justice Duggan. I accept, on the material placed before this Court, that the applicant became a Jehovah’s Witness, and it was this change in his life which prompted him to surrender himself to the police, to cooperate with them in their investigations and to confess his guilt for the murder of Terrence Rose, as well as for the manslaughter of Robert Rose.

18   When sentencing the applicant in 1988 I observed that his crime would probably never have been discovered but for his surrender to and his confession to the police. These are features which I weigh in considering the present application. At that time I accepted that the contrition which the applicant had expressed for his crime was genuine.

19   In the proceedings before me on the present application, the applicant was cross examined about his crime and the enormity of it. In responses given in cross examination, the applicant asserted his fear of the deceased for himself and for his family. One of his responses was (T 15):

“I wouldn’t be the last man that’s killed somebody over their children.”

20   I have closely considered the evidence which the applicant gave. Plainly there could be no justification or excuse for this crime and the explanations which the applicant gave for it do not reduce its gravity. However, I accept that the applicant now appreciates, as he said in evidence, that there are no circumstances such as could justify doing what the applicant did and I do accept that his contrition is genuine.

21   The applicant’s conduct since he was first imprisoned has been favourably assessed, as reflected in the various reports of the Serious Offenders’ Review Council. In cross examination Mr McConnell was asked these questions and gave these answers (T 3-4):

“Q. Mr McConnell you are familiar with Mr Barker’s file are you not?

A. Yes I am.

Q. It would be fair to say I think having reviewed that file that so far as the rehabilitative processes at work in sentencing are concerned very little further can be achieved with Mr Barker?

A. Yes, he’s done very well while he’s been in gaol.

Q. He’s attended all the counselling that has been offered to him?

A. Yes that’s correct.

Q. In addition and well over and above that he has attained a status within the gaol system as a very valued worker?

A. Yes that’s correct.

Q. To the extent that I believe his present job at Kirkconnell was one for which he was actually sought out?

A. That’s correct.

Q. In addition to the day-to-day and valuable work that he does, it would also, I would suggest to you, be clear on the file that he has been a very beneficial influence to the good order and discipline of the institutions where he’s been?

A. Yes he has.

Q. I know it’s a term that one applies with great caution but if ever one was to apply the term model prisoner to anyone, this would be a man appropriate to apply that term?

A. Yes he is considered a model prisoner.

Q. In fact I think it would be fair to say that save for one very minor and evidently explained infraction early in the piece there has been no hint of difficulty in the management of Mr Barker at any stage?

A. That’s correct.”

22   Mr McConnell’s assessment seems to be consistent with the content of the relevant exhibits. For instance, the report of the Serious Offenders’ Review Council dated 20 February 1997 contained this assessment:

“Barker’s conduct and general performance during the time he has spent in prison have been highly satisfactory. He has used his time constructively and it is expected that he will serve the remainder of his term without incident. The Council has also had regard to the circumstances surrounding his offences and subsequent convictions. These factors have resulted in a reduction in the inmate’s classification to C1.”

23   Then, in the most recent of the reports from the Council dated 19 March 2001, the author wrote:

“Since the Council’s report of 20 February 1997 Barker has continued to receive excellent reports from both custodial and Inmate Development Services staff.
Barker has consistently applied himself whilst incarcerated and had not presented as a management problem.
If the court decides to grant Barker’[s] application and determine his sentence so that at some time in the future he will become eligible to be considered for release to parole, then the SORC will develop a management plan to facilitate his reduction in security classification to C2 and C3, whereupon he will be considered for participation in the pre-release, unescorted leave programmes, which include Day and Weekend Leave, Education Leave, and Work Release.”

24   Early this year the applicant was transferred from Berrima Correctional Centre to Kirkconnell Correctional Centre where he has been given a meaningful clerical position as a furniture industry clerk.

25   The evidence satisfies me that the applicant has become a sincere Jehovah’s Witness. He has the support of an elder in the church, Mr Kearns. Mr Kearns gave evidence of having developed a deep knowledge of the applicant over the years and he accepts the sincerity of the applicant’s belief in the faith he has embraced. Mr Kearns is minded to offer the applicant employment as a storeman/packer in his warehouse in the event the applicant should be released into society.

26   Mrs Swarbrick is also a Jehovah’s Witness and she knows the applicant, having visited him in prison. Those visits are weekly at the present time. Mrs Swarbrick would be willing to offer the applicant employment in the cleaning and catering business she conducts with her husband, who is a minister in that religion.

27   Dr Lucas made a psychiatric assessment of the applicant and his report of 22 March 2001 forms part of Exhibit 2. I note that Dr Lucas had a consultation with the applicant in March 2001 and the material he considered before furnishing his report included a lengthy statutory declaration prepared by the applicant and an affidavit by the applicant’s wife. Those documents are before this Court as part of Exhibit 1. In his evidence, the applicant said that he remains estranged from his wife but he has not abandoned hope of a reconciliation. One of his daughters of his first marriage has visited him in prison, although he has not seen the children of his second marriage.

28   Dr Lucas had this to say about the applicant’s mental state prior to and at the time of the killing:

“There is no history of a major psychiatric disorder associated with his offence of murder. However, in the late 1970s and early 1980s he appears to have been less than well in the psychiatric sense with a business failure and associated problems playing an important part. He abused drugs during this period, was quite unsettled and after being charged with arson and fraud avoided being dealt with and by his description was a fugitive. If he had been seen during this period it is likely he would have been found to be depressed, possibly to the point of needing treatment. In the lead up to the murder he had many worries about safety of his seventeen years old daughter from his first marriage and the eight years old daughter from the second. It is probable he had a number of psychiatric symptoms during this period, ones not amounting to psychiatric disorder of major proportions.”

29   Dr Lucas opined on 22 March 2001 that the applicant “is not suffering from psychiatric disorder.” Dr Lucas concluded his report with the following expression of opinion:

“Mr Barker has served thirteen years of a life sentence for murder. He is not suffering from a psychiatric disorder and is in good health.
Mr Barker has no regrets about surrendering to police, confessing to his crime and being imprisoned. He has good insight into the reasons he committed the offence and the influence of various factors on his behaviour. In particular, he understands how his attitudes at the time was formed by his background. He is remorseful. After his conversion to the Jehovah’s Witness faith he understood his personal and spiritual need to face what he had done and accept justice.
Mr Barker has done very well in prison, is well-regarded, optimistic and works in responsible position. He has contacts outside prison which will provide support and probably employment after his release. He has some hope of a reconciliation with his wife and children: he broke off relationships several years ago to avoid the possibility of irreconcilable differences.

In short, Mr Barker has served his time profitably and with good grace. With a relatively small amount of assistance and support he should be able to return to the community with a minimal risk of reoffending in any way. I am sure he will continue to make good use of rehabilitative services in prison and on release comply with any conditions imposed on him.”

30   I accept that on the evidence before me it has been established that the applicant has made very substantial progress in his rehabilitation, and I accept that the risk that he would re-offend if released from custody, by the commission of violent crime at least, is minimal. If and when the applicant is eventually released, he will have the support of the religious community whose teaching he has embraced with obvious conviction.

31   Mr Craigie submitted that I should find that there was a degree of mental disturbance at the time of the commission of the crime and that the applicant had struggled in assessing the available options before the crime was committed. It was submitted that these considerations impacted upon the objective gravity of the murder.

32   I am unable to accept this. As I remarked earlier, I consider this to have been an extremely grave crime, carefully planned, and executed in a ruthless and cold-blooded manner. Mr Craigie was correct in acknowledging that it was “an appalling crime”.

33   I have nevertheless decided that I should accede to this application and set a specified term for this sentence together with a non parole period.

34   In this task I must bring into account not only the contrition that I find but that the applicant pleaded guilty to the crime of murder. Moreover his guilt was first disclosed when the applicant surrendered himself to the police and it is probable that the crime would not have been detected but for the applicant coming forward and offering his cooperation. Here there is not only the contrition of the applicant, and the utilitarian value of the plea, but the value of the assistance that the applicant offered; all these features are to be taken into account: see R v Ellis (1986) 6 NSWLR 603. Ellis was a case in which not only was there a plea of guilty but also the guilt of the offender concerning seven armed robberies was disclosed for the first time when he voluntarily came forward and made his confession. In this context Street CJ, with whom the other members of the court agreed, said at 604:

“This Court has said on a number of occasions that a plea of guilty will entitle a convicted person to an element of leniency in the sentence. The degree of leniency may vary according to the degree of inevitability of conviction as it may appear to the sentencing judge, but it is always a factor to which a greater or lesser degree of weight must be given.
When the conviction follows upon a plea of guilty, that itself is the result of a voluntary disclosure of guilt by the person concerned, a further element of leniency enters into the sentencing decision. Where it was unlikely that guilt would be discovered and established were it not for the disclosure by the person coming forward for sentence, then a considerable element of leniency should properly be extended by the sentencing judge. It is part of the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and confession of guilt of that offence.”

35   More recently, in R v Thomson (2000) 49 NSWLR 383 the Court of Criminal Appeal, in the course of a guideline judgment considered the significance of a plea of guilty in the sentencing process. In the judgment of the Chief Justice, with which the other members of the court agreed, his Honour said at para 160:

“(i) A sentencing judge should explicitly state that a plea of guilty has been taken into account. Failure to do so will generally be taken to indicate that the plea was not given weight.
(ii) Sentencing judges are encouraged to quantify the effect of the plea on the sentence in so far as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant - contrition, witness vulnerability and utilitarian value - but particular encouragement is given to the quantification of the last-mentioned matter. Where other matters are regarded as appropriate to be quantified in a particular case, for example, assistance to authorities, a single combined quantification will often be appropriate.
(iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 per cent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge.
(iv) In some cases the plea, in combination with other relevant factors, will change the nature of the sentence imposed. In some cases a plea will not lead to any discount.”

36   In determining the discount in the present case, those features to which I referred earlier in para 18 of these remarks are to be assessed, namely his surrender and its significance, as well as his contrition and the utility of his plea overall. On the other hand, I must heed what was said in the Court of Criminal Appeal in R v Dodd (1991) 52 A Crim R 349. That was a case in which the offender came forward to confess to an unsolved crime committed ten years earlier, and in which the court, at p 354, cautioned as to the necessity for

“making due allowance for all relevant considerations. There ought to be a reasonable proportionality between a sentence and the circumstances of the crime, and we consider it is always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offence viewed objectively, for without this assessment the other factors requiring consideration in order to arrive at the proper sentence to be imposed cannot properly be given their place.”

37   I must also recognise that in determining what, if any, discount is appropriate in all the circumstances of this case, there are categories of crimes which so offend the public interest that the maximum sentence without any discount may be appropriate regardless of whether or not there has been a plea of guilty entered: see R v Kalache [2000] NSWCCA 2 esp per Sully J at paras 38-42 and R v Thomson (supra) at 158.

38   Plainly, the extent of any discount in this case warrants very careful consideration. If I had been sentencing the applicant for this crime of murder without the complication of adjustment for the later sentences, I would have been minded to fix a head sentence of twenty-five years but for the applicant’s surrender, confession, cooperation, contrition and plea. However, these features of the applicant’s conduct, having regard to the principles in Ellis and Thomson, to my mind warrant a discount of approximately thirty percent, subject to the need to bring into account the applicant’s later sentences and the principle of totality.

39 I have earlier adverted to these later sentences, both of which concerned crimes committed before the murder of Terrence Rose. Clause 3(1)(b) of Sch 1 of the Crimes (Sentencing Procedure) Act requires that I have regard to these sentences.

40   How this is to be done has been considered in a number of cases, and I refer in particular to R v Purdey (1993) 65 A Crim R 441; and on appeal (1993) 31 NSWLR 668; R v Fenech (unreported, Barr J, 4 September 1997); R v Salameh [1999] NSWCCA 300; and R v Maiden [2000] NSWCCA 519.

41   At first instance in Purdey, Hunt CJ at CL, in addressing the task of a judge re-sentencing under s 13A of the Sentencing Act, 1989, said in point at 447:

“As the judge resentencing pursuant to s 13A is precluded from making the fresh sentence cumulative upon others which the prisoner was serving when the original life sentence was imposed - or would have been serving when sentenced for the murder in the ordinary course of events - he or she must therefore make the sentence for murder longer to take those other crimes into account, provided that the sentence imposed for the murder remains individually proportionate to the crime for which it is imposed. Again, to hold otherwise would effectively mean that the applicant would not be punished for those other crimes.”

42   That approach was approved in the Court of Criminal Appeal in Purdey and has subsequently been cited with approval in that court: see, for example, Salameh (supra) and Maiden (supra).

43   In Fenech (supra) Barr J said at p 18:

“I think…that the proper approach in redetermining a life sentence is to take into account subsequent offences and sentences not only for the purpose of ascertaining the applicant’s stage of rehabilitation but in order to fashion a redetermined sentence which will ensure that the applicant does not go unpunished or insufficiently punished for offences for which he is sentenced after the life sentence. I think that the principle enunciated by Hunt CJ at CL in Regina v Purdey (1993) 65 A Crim R 441 applies to cases like this one just as it applies to life sentences which are imposed on prisoners already serving sentences.”

44   With those remarks of Barr J, subsequently cited with apparent approval by Wood CJ at CL in Salameh (supra), I respectfully agree.

45   Another principle which, of course, I am required to heed in my present task is the totality principle reconsidered in R v Pearce (1998) 156 A Crim R 684. See also Salameh (supra) and in particular the judgment of Wood CJ at CL at paras 30-32 where his Honour said:

“It is beyond question that the totality principle does apply to re-sentencing under section 13A. So much has been made clear by the decision of this Court in Gary James Boreland , Court of Criminal Appeal, 2 August 1994. I am unable to see any significant difference in the approach which was favoured by Barr J in Fenech and that approved in Mill and in Boreland - that is, so long as the principle expressed is understood as one which requires an assessment to be made of to the appropriate sentences for each offence, followed by a review of the manner in which the overall sentence is structured, including questions of concurrence or accumulation, in the light of the principle of totality.
That principle has been subject to examination in recent times by the High Court, in particular as to the manner in which it should be applied. In Pearce (1998), 156 ALR 684 at 694, McHugh, Hayne and Callinan JJ, observed:
[45] ‘To an offender, the only relevant question may be 'how long', that may suggest that a sentencing Judge or appellate Court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A Judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.
[46] Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision. It is, then, all the more important that proper principle be applied throughout the process.
[47] Questions of cumulation and concurrence may well be affected by particular statutory rules. If, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation.
[47] Further, the need to ensure proper sentencing on each count is reinforced when it is recalled that a failure to do so may give rise to artificial claims of disparity between co-offenders or otherwise distort general sentencing practices in relation to particular offences.’

In accordance with the principle expressed in Mill as explained in Pearce , his Honour was required to consider what was an appropriate sentence for each of the offences and then to apply the totality principle to ensure that the criminality involved in all of them was appropriately but not doubly punished.”

46   I am required therefore to take into account the later sentences imposed by Judge Ducker in the District Court of this State and by Justice Duggan in the Supreme Court of South Australia when assessing the specified term I am going to impose, and in particular the non parole period of it. I am concerned to ensure that the applicant is not insufficiently punished for the crimes of manslaughter and arson, and I must therefore make an appropriate adjustment for the non parole period I would otherwise set. Because the applicant was already serving his life sentence when subsequently dealt with by Judge Ducker and later by Justice Duggan, each of those judges set fixed terms. There is some overlap in the sentences they imposed which extended in aggregate for eleven years from 14 December 1988 to 16 December 1999. There was no point in either judge specifying non parole periods because of the life sentence already set. It would, however, have been appropriate for Judge Ducker to have set a non parole period in relation to the applicant’s four year sentence and it would also have been appropriate for Justice Duggan to have set a non parole period for the eight year sentence he imposed if the applicant had not already been serving his life sentence. Moreover, both sentences would have attracted remissions. The combined effect of the setting of non parole periods and of the advantage of remissions would have impacted very significantly on the time spent in custody for these two crimes were it not for the concurrent life sentence. Indeed, I consider the applicant would have been required to serve in custody a little less than five years for those two crimes of manslaughter and arson. I must have regard to this before determining the nett effect upon the non parole period of the sentence which I perceive to be appropriate in all the circumstances of this case. I must also have regard to the principle of totality in order to arrive at a just and appropriate sentence.

47   With the above considerations in mind, I will now set a specified term for the sentence of the applicant for this crime of murder. In doing so, I shall use my best endeavours to ensure that the criminality involved in all three offences is “appropriately but not doubly punished”: Salameh (supra). In structuring the sentence I am about to set, I have given consideration to the need for sufficient opportunity for the supervision that the applicant will require when he is eventually released to parole, having regard to all the circumstances of this case.

48   Mindful of the considerations above addressed, I now re-sentence the applicant to a term of twenty-one years imprisonment commencing on 24 February 1988 and to expire on 23 February 2009. I set a non parole period of sixteen years six months, so that the first date upon which the applicant is to be eligible for release upon parole is 24 August 2004.

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Last Modified: 04/24/2001