R v Glen

[1999] NSWSC 1018

R v Glen [1999] NSWSC 1018 (1 October 1999)

Last Updated: 8 October 1999

NEW SOUTH WALES SUPREME COURT

CITATION: R v Glen [1999] NSWSC 1018

CURRENT JURISDICTION: Criminal

FILE NUMBER(S): L00009/93

HEARING DATE{S): 1/10/99

JUDGMENT DATE: 01/10/1999

PARTIES:

David Jack Glen

JUDGMENT OF: Wood CJatCL

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S):

LOWER COURT JUDICIAL OFFICER:

COUNSEL:

Crown: R.D. Ellis

Applicant: M. Ramage QC

SOLICITORS:

P.Thompson

T.A. Murphy

CATCHWORDS:

ACTS CITED:

DECISION:

Appliction dismissed. I direct that the applicant may present a fresh application under s13A at a date not earlier than a date 18 months from today. To that extent th eperiod of two years otherwise applicable is reduced.

JUDGMENT:

THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

BAILS/CRIMINAL

WOOD CJ AT CL

FRIDAY 1 OCTOBER 1999

L00009/93- DAVID JACK GLEN

JUDGMENT - On application for redetermination of Life Sentence

1 HIS HONOUR: The applicant seeks a redetermination of a life sentence imposed upon him by me on 22 December 1986 following his conviction for murder. He has now served 14 years of that sentence, calculated from the time of his arrest. The present application was filed on 12 October 1993, within days of the eighth anniversary of his arrest, from which time his custody began.

2 Although he is not to be criticised for seeking to exercise his legal rights, the filing of an application upon that date, in a case involving the hideous circumstances of the present offence, does provide some measure of his lack of insight and remorse at that time.

APPLICATION FOR ADJOURNMENT

3 The date of that application, however, has an additional relevance, since it is his primary application today that the proceedings be adjourned until about June 2000, in order to allow him to complete the full SORT (Sexual Offenders Redirectional Training) programme.

4 It is accepted by counsel for the applicant that the position still is in a state of fluidity, so far as his rehabilitation and responsiveness to the psychological counselling and sexual offender diversionary training is concerned, and will remain so until he completes the full SORT programme.

5 In the alternative to the proceedings being, and in the event of the application being dismissed, it is Mr Ramage's submission that the time for a further application be reduced to something less than the period of two years which would otherwise be applicable.

6 Having regard to the circumstances which will be outlined later in these reasons, I am of the view that it is inappropriate for the application to be further adjourned. It has now been with the Court for almost six years, during which period it was called over twice in 1988 and for a third occasion in May of this year. On those first two occasions, the matter was stood over upon the basis that the application was not ready to be listed. On the third occasion, a similar application was made, but refused by the List Judge.

7 It is the fact that as late as March of this year, the applicant was resisting the encouragement, which had been offered to him, to engage in psychological counselling and to participate in a sexual offenders diversionary programme. It was only after the last call over that it became apparent that his attitude was changing and that the possibility of his entry into the SORT programme was a reality.

8 I am of the view that it is utterly inappropriate for an application of this kind to remain in limbo for six years, and that the time has arisen for it to be determined today. Accordingly, I refuse the application for an adjournment.

THE OFFENCE

9 The applicant was 19 years old at the time of the offence. He had recently been separated from his wife and their daughter. The victim, Kylie Corbett, was his 10 year old cousin to whom he had been recently introduced.

10 On the day of her murder, 10 October 1985, Kylie left home with her six year old sister to walk to school. She had with her a bag of old clothes for a school charity collection. Whilst on their way to school, the children met the applicant. He invited Kylie, but not her sister, back to his flat where he said he had some clothes which she could add to her collection.

11 In his bedroom, he seized the girl by the neck and threatened her with a knife. After pushing her onto the bed, he directed her to remove her clothes. He inserted a finger into her vagina, he said, as far as it would go. He then tied her up with a rope around her hands, neck and feet and left her on the bed while he went to the Westfield Shopping Centre for something to eat and then onto Church Street, Parramatta, to play the pinball machines.

12 On his return to the flat, he repeated the assault and then took the girl to the shower to wash the blood from her vagina and from a tear that stretched across the perineum. He permitted her to return to the main bedroom where he cut the bonds from her hands and invited her to read her school books. He re-tied her hands and legs, leaving her to read the books by turning the pages with her mouth.

13 After 10 minutes or so, he picked up a 20 inch military-style baton and sitting athwart the girl, thrust it under her chin, choking her until she lost consciousness. He partially dressed her, tied a cotton belt around her neck and hung her from a bar in the wardrobe partially supported by a chair. He then left the premises.

14 When police gained access to his unit later that day, they discovered the body of the girl, by now deceased, in the wardrobe.

15 The post-mortem examination revealed constriction rings and contusions around her neck, forearms and legs consistent with the girl having been tied in the manner described. It also revealed that her vaginal walls were contused and lacerated; the vaginal orifice was gaping; the anal verge was torn with abrasions present; and the anus was dilated and gaping. Kylie had obviously been penetrated with considerable force with some object larger than the single finger which the applicant claimed he had used in this offence.

16 Dr Malouf was of the opinion that the direct cause of death was asphyxia due to hanging and the contributing cause was shock due to trauma.

17 The applicant was arrested on return to the unit. Although in a recorded interview he admitted to placing one finger in the girl's vagina "for something to do", he denied any further invasion of her vagina or anus. When asked whether he had intended to kill her with a baton, he replied:

"No, I did not intend to kill her with a baton, I was going to kill her with a knife but I couldn't get the courage up to stab her, so I then took to the baton and choked her."

18 The applicant was first remand in custody was on 18 October 1985. When he appeared before me for trial, he pleaded not guilty of murder but guilty of manslaughter. That plea was not accepted by the Crown. The applicant did not give evidence at his trial, but he made an unsworn statement in which he said:

"Ladies and gentlemen of the jury, I am not guilty of murder. I am sorry about what has happened. As I said in my record of interview, I wish this hadn't happened at all.

When I asked Kylie around to my flat I didn't have any intentions to hurt her. I just wanted to give my wife's maternity clothes to her because my wife left me 12 days before and I thought I wouldn't see her or my daughter again. I don't know why I sexually harassed Kylie. I didn't plan for that to happen.

After I did that, I didn't know what to do, that's why I tied her up. I didn't want to hurt Kylie in any way, even though I said ´If you scream or cry, I'll kill you'.

I had a knife, but I didn't use it to hurt her, but just to cut the rope when she said it was too tight. I didn't put any part of my body or anything into her anus.

When I put the baton on her neck I didn't want to kill her or hurt her badly. In fact, I don't know why I did that at the time and I don't now know.

When I put Kylie into the wardrobe, I tied the cotton belt around her neck to stop her falling off the chair as she was unconscious at that time. I didn't do that to hurt her, to kill her. I didn't think it would cause her any more harm.

All I can say is I'm truly sorry for what I have done. I mean that, but I have done what I have done and there is nothing I can say, but to say that I am sorry and I don't know how it happened. Thank you."

19 While waiting for trial, the applicant sent a somewhat callous letter to Kylie's mother in the following terms:

"Dear Auntie Barbara,

Hi. I'm just writing to say that I'm truly sorry about what has happened, that all I can do is time inside, that is in gaol. Well, I know it might be hard for you, but it is hard for me too because I've lost my freedom, you I know I have to do time for what I have done. Well, as you know, I go for trial on the 15th of December this year and at the trial I'm going to plead not guilty to the murder charge and for the sexual assault and I'm going to say a dock statement. Well, not much more I can say but that I'm truly sorry about what has happened, and I mean that, Auntie Barb. Well, it's bye, and I will see you at court. Love from David."

20 While it may be that this letter was an attempt to express some remorse, its timing and its terms demonstrate, beyond question, the extent to which the applicant was totally lacking in his appreciation of the seriousness of his criminality, and of any remorse for what he had done.

21 When sentencing the applicant, I described it in the my reasons as a `hideous killing'. I remain of that view. In fact, I regard this as the worst case of murder over which I have presided in my time on the bench since 1984. No matter was then advanced in mitigation of the criminality of the applicant, nor has any now been advanced. It remains an episode of a sustained, deliberate and sadistic violation of an innocent young girl for which no rational explanation exists.

22 While it may be that the applicant took Kylie to his flat on impulse, what he did to her over the succeeding six hours or so was deliberate and controlled. The case falls objectively in the category of the most serious case of murder for which the prisoner showed little, if any, remorse or appreciation, at the time that he appeared for sentence, or for many years thereafter.

23 In my concluding remarks on sentence, I made the following observations:

"Next, I wish to have recorded that the sentence I regard as appropriate for the prisoner is such as to require very careful consideration by the authorities in relation to his future custody and in particular as to whether he should be, at any time in the future, returned back to the community. My assessment in this regard is based upon the most careful and dispassionate analysis of the crime charged and the prisoner's personal profile.

There are matters in this case which I regard as of very great concern. They include the total lack of contrition expressed by the prisoner, his callous attitude towards the parents of his victim and his obvious lack of insight into and acceptance of his wrongdoing.

Additionally, there is his refusal to discuss with the psychologists and psychiatrists the matter concerning his sexual attitudes and his state of mind in that regard, when carrying out the sexual violation of his victim. The material available leaves me with the view that this prisoner at this time presents a very grave danger to the community, in particular to young children.

While, once again, I do not mean by these remarks to fetter the discretion of any relevant Board entrusted with a decision as to the future release of him back to the community, I would be remiss in my duty not to have these observations recorded, since I have had a special opportunity to assess the prisoner at the time he comes up for sentence.

It may be that after a lengthy period of imprisonment and counselling, a fundamental change in his personality and ability to modify his behaviour, together with an acceptance of his criminality, may emerge. Hopefully, that will be the case and it is proper that he be given the advantage of further psychiatric counselling and assistance while he serves his sentence."

SUBJECTIVE CIRCUMSTANCES

24 The applicant had a disturbed childhood, with a criminal history beginning at the age of eight years, comprising some 18 or so entries for offences such as burglary, malicious injury, stealing, shoplifting, absconding and attempt to steal motor vehicle. He had been committed to child welfare departments and to institutions in Victoria and New South Wales.

25 His mother, who had nine other children, separated from his father when he was very young. On his account, he suffered from periodic acts of violence at the hands of his father, including an attempt at drowning and the burning of his hands with ignited lighter fluid.

26 His schooling finished at year 8 after an unsatisfactory history of truancy and fighting. He had been on unemployment benefits from the age of 16 years, although he had worked for a time earlier as a stable hand and labourer. He was an occasional user of alcohol, cannabis and LSD.

27 Before appearing for sentence he had been examined by three psychiatrists, Doctors Milton, Barclay and Robertson, and by two psychologists, Anita Duffy and Greta Goldberg. None detected any form of mental illness or abnormality of the mind that may have diminished his criminal responsibility, although he was assessed as being of low/average intelligence. Dr Milton thought him to be a personality limited with respect to intellect and in coping with life. The most probable explanation for the offence, he thought, was that the applicant sought an outlet for the stress occasioned by the separation, and then murdered Kylie when he became frightened over what he had done.

28 Dr Robertson suspected him to have a sociopathic personality disorder based upon his history of antisocial behaviour.

29 Miss Goldberg attributed his criminality, partly to depression related to his separation, and partly to long-standing sexual deviance as well as a need to cover up the sexual assault. She noted that it was likely that irrational thoughts and behaviour on his part could occur again.

30 Dr Barclay, similar to Dr Robertson, thought that the applicant had displayed the characteristics of an antisocial personality disorder. He said:

"There is no truly logical explanation for the offence, except to say that it is just another sad chapter in the prisoner's long criminal record caused by the impulsive behaviour for which he can provide no adequate explanation."

31 The applicant is now aged 33 years. His current classification is B and he is held as a prisoner at the Junee Correctional Centre. Initially, he was held in the Protection Centre of Long Bay until he was moved, in 1987, for a short time to Maitland and then to Goulburn.

32 He was returned to Long Bay in June 1989 following unsubstantiated suspicions of an escape plot by some life sentence prisoners. While there, he remained on strict protection with consequent loss of opportunity for education and employment.

33 From about October 1989, repeated attempts have been made for him to seek assistance from a psychologist to address the issues related to his offence and, in more recent years, to join a sexual offenders programme. Until very recently, on the face of the prison files, he has resisted all of that encouragement.

34 After returning to Goulburn in 1990, he made some progress in so far as he enrolled in an adult education course and sought employment in the tailoring shop. Since then, he has completed other courses and has been in fairly regular work in the tailoring shop at various of the prisons, as well as in their libraries and kitchens.

35 In 1993, he was transferred to the Cooma Correctional Centre with a B classification. His performance deteriorated some time after this move, in the sense that he discontinued his educational courses and was sacked from his position in the prison library, when he became involved with a transsexual inmate. He did, however, later take up work in the kitchen and he began a cooking course.

36 He declined to participate in the sexual offenders SOAP (Sexual Offenders Assessment Programme) programme at Cooma, because he claimed that his offence was not sexual but rather to do with anger, his cousin being a substitute for his wife.

37 In 1994, he was transferred to Parramatta Correctional Centre before moving back to Goulburn in January 1995 when the protection facilities at Parramatta were closed.

38 In February 1995, the Review Council transferred his management to the Serious Offenders Management Committee, which recommended his transfer to Junee in anticipation of the establishment of a sex offenders programme at that centre. The programme did not, however, materialise at that time.

39 In a letter dated 5 June 1995, the applicant did indicate, for the first time, it would seem, an interest in undertaking the SOAP programme and, for that purpose, requested a transfer to Cooma. The reason for the request was expressed in the following terms:

"I wish to undertake the assessment because I have my determination of sentence coming up soon and believe this course will help me in my rehabilitation."

40 Following this letter, the Case Manager prepared a programme pathway providing some goals for him to aim at, on the way to rehabilitation. These goals included consultation with a psychologist, completion of an anger management course and admission to SOAP.

41 The conclusion of the Serious Offenders Review Council as at 22 September 1995, is encapsulated in the following paragraph of its report, which was prepared in anticipation of this application coming on for hearing:

"Glen's behaviour in custody has, for the most part, been satisfactory. There is concern, however, that he lacks the capacity to tackle the issues which were raised by the sentencing judge, especially his lack of insight into the nature of his offence and lack of remorse and its implications for those who must decide if, and when, he should be returned to the community.

42

The Review Council, while not making any comment on the minimum sentence, if any, the Court might consider appropriate, is of the view that Glen has not been rehabilitated and nothing can be said at this stage as to when, if ever, he will be fit for release. He has failed at all material times to take advantage of psychological assistance within the department.

It is observed that the Case Management Officer at Junee was not optimistic that Glen would cooperate in the carrying out of the programme prepared for him."

43 Additionally, in anticipation of the application coming on for hearing, the applicant was reviewed by Dr. Westmore in March 1996. His opinion, at that time, is encapsulated in the following passage of his report:

"This man has evidence of an antisocial personality disorder dating from an early age. There is no evidence that he suffers from a mental illness. He certainly, at a verbal level, is expressing appropriate regret and remorse regarding his actions, although acknowledges that he has some difficulty in expressing emotions regarding his behaviour or about any of the difficulties he encountered in his early life. He needs continued and extensive psychological and psychiatric support and indeed this was recommended by the judge, it has been recommended by others and is recommended now by myself.

Until this is done I fear that it is very difficult to predict even at general level his future risk to the community. The nature of his offending behaviour, the quality of his behaviour is of major concern. I think that we would need to know a great deal more about this young man, his psychosexual development and his general levels of psychological adjustment and adaptation before one could comfortably make any predictions regarding his future risk to the community".

44 The supplementary report of SORC, dated 21 April 1999, discloses that in November 1995, the applicant declined to be included in a Sex Offenders Redirection Programme (SORT) when it was introduced to the Junee Correctional Centre, and that he was not cooperating with the efforts which had been made to get him to see a psychologist for assistance.

45 When the opportunity arose for him to take a place in an introductory pre-SORT program me in March 1999, he declined to participate, even though he had earlier expressed a desire to do so. The opinion of the Review Council, at this stage, is expressed in the following paragraph of its report:

"While Glen's custodial reports and behaviour are excellent, he still refuses to participate in any Sex Offenders counselling program. The Council will continue to urge Glen to participate in suitable counselling while in custody.

In the event that the Supreme Court grants Glen's application for the redetermination of his sentence, then the Serious Offenders Review Council will develop a plan for his management during the remainder of any minimum term imposed. If Glen is prepared to co-operate with the plan developed for him he will be progressively reduced in security classification. When he attains a C3 classification he will be eligible to participate in unsupervised Day Leave and Work Release programs in preparation for his eventual return into the community."

46 Some further material has been placed before me since that last assessment by the Council in the form of a further psychiatric report from Dr Bruce Westmore, a psychological report from Associate Professor Susan Hayes and a report of Dr Roger Blake, together with attached documentation concerning the participation of the applicant in a preparatory SORT programme this year. That programme was one which lasted a period of 8 weeks, comprising 24 hours, and it led to a certificate of completion dated July 2, 1999.

47 To that document and a more recent assessment I will return. However, I should note that Dr Bruce Westmore, who reviewed the applicant in August 1999, noted that the applicant had informed him that he had previously believed that he had no need for treatment, and that he had only gone onto the pre SORT programme because of this application. He noted, however, that the applicant had said that having started the course, he felt that he had benefited and had more understanding about how to avoid situations such as that which had got him into gaol.

48 He thought that the applicant needed more intensive work in relation to several matters. They included development of greater insight into his criminality, preparation for a move from institutionalisation to the community, the provision of psychosexual education and support, further occupational training, and development of a social network to assist him in gaining employment and in re-establishing social contact outside the correctional system.

49 Dr Westmore's opinion was expressed as follows:

"There is evidence this man has made some progress since my assessment of him in 1996. He is certainly appearing more willing to attend the Sex Offenders Programme and seems keen to have further counselling in this regard. Once again, I think it is too early to indicate what current risk he represents to the general community as he really has not had any extended counselling. He certainly requires psychiatric and psychological support and, as notified earlier in this report, this should extend while in the community. I have identified a number of other areas which I think are significant in terms of his eventual ability or otherwise to cope while in the community and unless he is provided with support and assistance while in custody; and unless this support and assistance is extended when he returns to the community, then this man would, again, be vulnerable to psychological stress and perhaps a further behavioural breakdown.

I note that prior to the homicide he was under stress, having separated from his wife and apparently not dealing with that situation. He talked about anger and ´having to take it out on somebody and the victim was the recipient of that anger'."

50 Associate Professor Hayes undertook a psychological assessment of the applicant, also in August 1999. She obtained a similar history to that previously noted concerning the applicant's earlier lack of motive for psychosexual counselling, the reason for his late entry into the preparatory stage of the SORT programme and his wish to complete the further tiers. Her testing confirmed that he was of low/average intelligence and free of clinical symptoms of mental illness. As to his propensity for further violence, she noted that, apart from the one horrific and violent murder for which he is serving the life sentence, he had no recent or other history of violence and had shown a significant change in his attitude and circumstances, as well as in his personality traits.

51 Her report concluded:

"It is vital that Mr. Glen be given the opportunity to participate in therapeutic programmes and in my opinion his involvement in the Special Care Unit would be a good idea. Mr. Glen realises that he is destined to spend many more years in prison, and indeed that he may not be released at all; he himself states that he wants to ensure that he uses this time so that in the event that he is eventually released, he will be able to cope and will not be a further danger to society. One of the major difficulties in preparing him for release is his protection classification, which is no doubt necessary, given the nature of his crime. It is difficult gradually to lessen his security classification, given the need for protection. Therefore, within the restrictions imposed by being on protection, Mr. Glen needs to engage in whatever programmes are available. Any programmes in which Mr. Glen is engaged should take cognisance of the significant discrepancy between his verbal and non-verbal reasoning skills. This is a source of great frustration to Mr. Glen because he knows he functions well in some arenas, but he finds it extremely difficult to reason verbally and to express himself verbally. This results in awkward and inarticulate expression of his feelings, which can readily be misinterpreted as lack of cooperation or lack of insight. He needs practice in developing his verbal skills, as well as his writing skills.

Given appropriate, consistent and prolonged engagement in therapy, both group and individual, and involvement in programmes for increasing living skills, self esteem, and coping skills, as well as a suitable and gradual lessening of security classification, Mr. Glen will have adequate opportunity to demonstrate that he really is capable of making progress. In these circumstances, it is my opinion that he is capable of being re-integrated back into the community with minimal risk."

52 The matter has been further updated, by the report of Dr Roger Blake, a psychologist who reviewed the applicant at the request of the Review Council, following his entry into the pre SORT programme. Of significance, Dr Blake notes:

"In the writer's opinion, much of Mr Glen's request for psychological assistance seems to involve a need for amelioration of his own sense of suffering and ostracism within the system because of his crime. It is speculative at this point in time as to whether Mr Glen has any real insight into the feelings of guilt, shame or empathy, and clearly closer scrutiny and assessment is needed.".

53 Dr Blake noted, at the time of this report, that the applicant was in week 4 of the preparatory programme, that he had joined the group under great duress, and that he had projected anxiety about the group process. He noted:

"At this point, the writer is not convinced that a strong motivation to embrace treatment in any rehabilitatory context exists. While it is conjecture, the satisfying of SORC requests may be his major motivation for joining the Introductory Sex Offender Redirection Training Programme. Despite these factors, the writer concedes that Mr Glen is meeting all attendances and homework requirements of this preparatory programme."

54 The self report inventory conducted by Dr. Blake led him to the view that within the range of items covered, the applicant "presents as being within the very high risk category" in regard to his potential to engage in further sexual violence. Such factors related to: Evidence of sexual deviation, previous substance abuse problems, physical harm to victim, negative attitude towards intervention, and evidence of personality disorder.

55 It was his opinion that:

"No major decisions should be made concerning Mr Glen's status within the system until such time as a more complete risk assessment can be conducted. The optimal time for such assessment would be at the completion of the 17 week SORT programme..."

56 That programme the applicant could join in early 2000, if so motivated.

57 In conclusion, Dr Blake noted that it was his belief that Mr Glen was "certainly a high risk individual". He added:

"Accordingly, he should be viewed and assessed over an extended period of time in a range of treatment contexts before any firm judgment on his future risk status or rehabilitation potential could be offered."

58 In relation to the Pre SORT programme, I notice that his assessment in areas of participation and motivation were at the lower level of "satisfactory," and that of attendance in the medium assessment of "good".

59 It is the fact that the applicant has generally proved cooperative within the general prison system, subject to the requirements of being on strict protection, and has not been a problem inmate. His disciplinary record in the prison is minimal and is not of the kind to suggest that he has been accustomed to behaving in a violent fashion, or otherwise in a way which would suggest any significant ongoing behavioural problems, within the strict confines of that environment.

RESOLUTION OF THIS APPLICATION

60 The case is one of some difficulty, having regard to the relative youth of the applicant at the time of committing an offence of such hideousness as to place it in the most serious category, and also having regard to the fact that there was no apparent justification or reason for him to behave in this fashion. Moreover, his case has proved to be of some difficulty in assessment by the psychiatrists. I am, in these circumstances, left with some concern as to whether he has ever at any time been entirely frank when discussing the offence with them, or for that matter, with anyone else. However, there have been no ongoing signs of mental disorder of any significant kind other than the antisocial personality disorder previously diagnosed.

61 The problem that I face is that until very recently, the applicant has simply failed to appreciate the seriousness of his criminality and has offered very little by way of remorse. Additionally, for many years, he has turned his back on the many attempts which have been made to encourage him to seek psychological assistance, or to join one or other of the sexual offender diversionary programmes. His attitude seems to have consistently been one of denial; although, in very recent times, at face value, he has begun to express remorse and greater insight, as well as having undertaken the step of entering the preparatory SORT programme. Whether that step was taken to enhance this application or was a step genuinely motivated by remorse and insight, remains to be tested.

62 But for the possible emergence of the encouraging signs mentioned, and his greater maturity, this is a case where a life sentence would indubitably still be appropriate. The signs now being somewhat more positive, although subject to testing, I am of the view that the application should, at this stage, be dismissed, but that the time for reapplication should be reduced to a period of 18 months. Within that period, the applicant will have the opportunity of undertaking the remainder of the SORT programme, as well as the other programmes which Dr Westmore thinks appropriate. Until those programmes have been completed, the extent of the dedication or commitment of the applicant to his rehabilitation and the extent to which he presents a continuing danger to the community, cannot properly and independently be assessed. I consider that it would be inappropriate in the interests of the community, and unfair for the applicant, for any determination to be made today, involving the imposition of a minimum and additional term, and so dealt with as to preclude or limit the later possibility of fixing a sentence other than a life sentence..

63 In that regard, I have taken into account a number of matters, including the circumstance that the protection of the society is an element of consequence to be considered, along with the point made in decisions such as Cribb, Court of Criminal Appeal, 4 November 1994, Lanigan (Court of Criminal Appeal New South Wales 31 August 1992) and Dennis (Court of Criminal Appeal New South Wales 28 October 1992), that an application of this kind should not normally be refused unless the appropriate sentence is one for the remainder of the applicant's natural life, and that its dismissal should not result in the offender being required to serve a longer period in gaol than the commission of the offence requires.

64 I have similarly taken into account the provisions of s 17(1) of the Sentencing Act; and in particular have not overlooked the demarcation between the powers of the Supreme Court under s 13A, and those of the Parole Board under s 17(1).

65 The present case is one displaying exceptional circumstances, having regard to the very recent and yet to be tested change in the applicant, from an attitude of denial and resistance to rehabilitation, in a worst case of murder, to one of possible hope for the future.

66 It also has some similarly to the recent decision of Grove J in Martin Kluska, 18 December 1998, unreported, in so far as his Honour there considered it appropriate to take into account the likely minimum term, which could be imposed if all of the matters in issue turned out in a way which was wholly favourable for the applicant. In that regard, I am more than satisfied that to delay a redetermination of the matter, for a period of 18 months from today, would not operate to the applicant's disadvantage. If it becomes appropriate, in the light of his further progress, for a determinate sentence should be imposed, then it is improbable in the extreme that the minimum term fixed would be one which would expire prior to any date upon which a fresh application could be brought before this court.

67 Accordingly, in these special circumstances, I will dismiss this application, but I will direct that the applicant may present a fresh application under s 13A at a date not earlier than a date 18 months from today. To that extent the period of two years otherwise applicable is reduced.

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LAST UPDATED: 08/10/1999