R v Haigh
[2012] VSC 617
•13 December 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1594 of 1992
| THE QUEEN | |
| v | |
| PAUL STEVEN HAIGH | Applicant |
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JUDGE: | BEACH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3-7 December 2012 | |
DATE OF JUDGMENT: | 13 December 2012 | |
CASE MAY BE CITED AS: | R v Haigh | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 617 | |
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CRIMINAL LAW – Sentencing – Non-parole period – Murder – Multiple murders – Application for an order to fix a non-parole period for life sentenced prisoner – Penalties and Sentences Act 1985, s 18A(1) – Sentencing Act 1991, s 13(2).
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | In person | |
| For the Crown | Mr P.N. Rose SC with Mr C.T. Carr | Office of Public Prosecutions |
HIS HONOUR:
Introduction
In November 1980, Paul Steven Haigh, the applicant, was found guilty on four counts of murder as follows:
(a)the murder of Wayne Keith Smith on 27 June 1979;
(b)the murder of Sheryle Ann Gardner on 22 July 1979;
(c)the murder of Danny William Mitchell on 22 July 1979; and
(d)the murder of Lisa Maude Brearley on 8 August 1979.
In June 1986, the applicant pleaded guilty to two further counts of murder as follows:
(a)the murder of Evelyn Abraham on 21 September 1978; and
(b)the murder of Bruno Cingolani in December 1978.
When the applicant was sentenced for these six murders, the only available sentence was life imprisonment. A minimum term could not be fixed. On 1 July 1986, s 18A(1) was inserted into the Penalties and Sentences Act 1985. Section 18A(1) provided:
“With respect to any person who at the commencement of section 14 of the Crimes (Amendment) Act 1986[1] is serving a sentence of imprisonment for the term of his or her natural life the Supreme Court may, on the application of that person or of the Director-General of Corrections, fix a minimum term in accordance with this Part[2] in any manner in which such a term might have been fixed had that person been sentenced to imprisonment by the Supreme Court for the term of his or her natural life on or after that commencement.”
[1]1 July 1986.
[2]Section 18A was inserted into Part 2 of the Penalties and Sentences Act. Part 2 of the Penalties and Sentences Act contained s 17(2). Section 17(2) provided:
“A court shall not be required to fix a minimum term if the court considers that the nature of the offence and the antecedents of the offender render the fixing of a minimum term inappropriate.”
In December 1986, the applicant applied pursuant to s 18A for an order fixing a minimum term of imprisonment in respect of the six terms of life imprisonment which had been imposed on him.
On 22 April 1992, the Penalties and Sentences Act was repealed and the Sentencing Act 1991 came into operation. Section 13 of the Sentencing Act relevantly provides:
“13. Fixing of non-parole period otherwise than by sentencing court
(1) …
(2) The Supreme Court may fix a non-parole period in accordance with section 11 in respect of a term of imprisonment or detention being served by-
(a)any person who at the commencement of this subsection is serving a sentence of imprisonment for the term of his or her natural life in respect of which a non-parole period had not been fixed; or
(b)…
(c)…
(3) The Supreme Court may fix a non-parole period under subsection (2) on the application of the offender or of the Secretary and it may do so as if it had just sentenced the offender to that term of imprisonment or detention and, in the case of detention, as if the detention were imprisonment for a term of not less than one year.
(4) …”[3]
[3]Section 11 of the Sentencing Act provides:
In April 1993, the applicant was found guilty of one further count of murder – the murder of Donald Hatherley on 14 November 1991 - committed while the applicant was then serving the six sentences of life imprisonment already imposed upon him. Following this conviction, the applicant was sentenced to life imprisonment with a non-parole period of 15 years (this being his first murder for which a non-parole period could be fixed).
This is the hearing of the applicant’s application for the fixing of a minimum term of imprisonment, or non-parole period, in respect of the first six murders committed by him.
The principles to be applied
The parties to this application have conducted it on the basis that s 13(2) of the Sentencing Act is the governing provision. This also appears to have been the approach in an earlier hearing of this application.[4]
[4]See R v Haigh [2009] VSC 185, reversed on appeal in Haigh v The Queen (Unreported Court of Appeal, Buchanan and Nettle JJA and Kyrou AJA, 19 April 2011).
Section 117(2) of the Sentencing Act provides:
“A person in respect of whom a sentence is in force immediately before the commencement of this section continues to be subject to the requirements of that sentence in all respects as if this Act had not been passed but that sentence may be cancelled or varied and any failure to comply with it may be dealt with under this Act as if it were a sentence imposed after the commencement of this section.”
The Crown contends that s 117(2) of the Sentencing Act operates so that the source of the power to fix a minimum term for the applicant is now found in s 13(2)(a) of the Sentencing Act. The applicant was (as he has been in the past) content to accept this position. No submission was made to me concerning the possible application of s 14(2) of the Interpretation of Legislation Act 1984.[5]
[5]See further, J & P Lemming Holdings Pty Ltd v O’Keefe & Anor [1984] VR 1005 and Secretary to the Department of Justice v Fletcher [2010] VSC 170, [27]-[40].
In Keith Ryrie,[6] the Court of Criminal Appeal discussed the principles concerning the construction of s 13(2) of the Sentencing Act. In doing so, the Court considered the legislative history of the provision - including s 18A of the Penalties and Sentences Act. Southwell J[7] said:[8]
[6]Keith Ryrie (1993) 64 A Crim R 332.
[7]With whom Fullagar and Nathan JJ agreed in separate concurring judgments.
[8]Keith Ryrie [1993] 64 A Crim R 332, 353-354.
“… the intention of the legislature is that the Court should fix a non-parole period ‘unless it considers that the nature of the offence or the past history of the offender make the fixing of such a period inappropriate’.
That past history must, of course, include the history since the passing of sentence – Jolly (1990) 52 A Crim R 83 at 90, where it was said by the Court of Criminal Appeal:
‘It is also necessary to bear in mind that the fixing of a minimum term under s 18A differs in significant respects from the fixing of a minimum term when passing sentence upon a conviction. In the latter case the sentencing judge can only form an assessment as to the prisoner’s prospects of rehabilitation from forecasts based upon past behaviour and current reports. Under s 18A however the sentencing judge will have available to him reports of the applicant’s behaviour in gaol and this Court said in Anas (unreported, Young CJ, Crockett and Vincent JJ, 10 August 1987) that it is appropriate to take conduct in gaol into account. Its chief relevance is to assist in assessing a prisoner’s prospects of rehabilitation.’
I accept as correct the submission for the applicant that in dealing with applications under s 13(2)(a) and (b) the same principles should be applied; as has been observed, s 13(2)(a) has as its precursor s 18A of the Penalties and Sentences Act. It was said that in the 80 or so applications made under that section, it has never been held that the applicant bears any onus of proof of any fact, a submission which was not put in issue by Mr Bongiorno. Rather, it was said for the applicant, in most of those applications it was accepted that s 17 of the Penalties and Sentences Act (the precursor of s 11(1) of the Act) applied to them.
In my opinion, those submissions for the applicant should be accepted as substantially correct, and they persuade me that it is not the law that an applicant under s 13(2) bears the onus of proof. It follows that my view is that the submissions of the Director and the concession of counsel for the applicant led the judge into error, which must be held to have vitiated his decision.”
The following propositions may be drawn from Ryrie:
(a)First, in determining whether to fix a minimum term under s 18A of the Penalties and Sentences Act or a non-parole period under s 13(2) of the Sentencing Act, the same test is to be applied - namely the Court should fix a minimum term or non-parole period unless it considers that the nature of the offence or the past history of the offender make the fixing of such a term or period inappropriate.
(b)Secondly, in considering an application under s 18A or s 13(2), it is appropriate to take subsequent conduct in prison into account – its chief relevance being to assist in assessing a prisoner’s prospects of rehabilitation.
(c)Thirdly, an applicant for a minimum term or non-parole period does not bear any onus of proof.
What I have said so far would suggest that whether it is s 18A of the Penalties and Sentences Act which has application, or whether it is s 13(2) of the Sentencing Act, is a somewhat sterile debate if all one is considering is the principles to be applied in determining whether a minimum term or non-parole period should be granted. That said, there is one relevant point of distinction between the sections which arises if the application is granted. The point of distinction concerns the treatment of pre-sentence detention. In R v Pickford,[9] the Court of Appeal noted that in applications under s 18A, pre-sentence detention was to be taken into account by the judge in fixing any minimum term of imprisonment. However, in applications under s 13(2) of the Sentencing Act, in fixing a non-parole period, the judge is required to make a declaration of pre-sentence detention in the terms required by the Sentencing Act. It will only be necessary to return to this matter in the event that I determine that a minimum term or non-parole period should be fixed.
[9](2000) 2 VR 15.
The six murders leading to the sentences the subject of this application
During the course of this application, the applicant tendered a book written by him entitled “The House of Blue Light”. On the title page, the following is written:
“Blue is said to be the colour of truth, and Light said to represent goodness, so I put them together and placed them in me, their House for the span of the following pages. If truth is good, then this I will speak, in the hope of your edification.”
The book commences with an introduction dated 18 October 2004. The introduction contains the following:
“I’ve chosen my words carefully in order to convey my experience and sentiment, so make sure that you only read what’s on the pages. What I share here has taken me long years to think of and lay out, so don’t twist and turn what I say so that it suits your prejudice, fears, sensitivity, ignorance, or naivety.
The chapters in this book are deliberately small, like many little petals on a flower, and I’ve tried to make some into beautiful sights, that sit comfortably in your memory. Others may not be as bright to behold, but they’ve still been purposely constructed for their role, which is to give you unambiguous instruction.
This book is like a flower that opens slowly, so read what I say properly from its start to its finish, or else you’ll miss important parts of the blooming. Each chapter has been written in the form of a letter that’s addressed to each reader, and if the contents cause your previously unquestioned and habitual way of thinking to crumble, then I have been of liberating service.”
The book contains 157 letters addressed “Dear You”. Four of the “letters” set out, in the applicant’s own words, descriptions of his first six murders. In his evidence before me, the applicant stated that the descriptions of the murders committed by him in this book and in other written material tendered by him were true and correct.[10]
[10]T178.
Letter 15 purports to deal with the applicant’s first and second murders. Letter 15 contains the following:
“The first and second persons I killed were in separate armed robberies.
In both hold-ups I didn’t prostrate myself and beg for a loan, but made a gunpoint demand for money.
…
In both cases an unknown criminal, who wasn’t wielding an imitation handgun, gave pre-emptory instructions to the victims.
In both cases they acted beyond the scope of instructions, and the consequence was the loss of their lives.
…
Though I was a lone gunman in both cases, firearms have triggers that don’t take long to pull. The woman was shot once in the head, and the man was shot once in the abdomen.”
Letter 17 purports to describe the applicant’s third murder. Letter 17 contains the following:
“The day after he was murdered I went to give my false condolences to his loved ones. The real reasons for going to see them were to find out what was being said, and to make out as if my relationship with the deceased, and all others, was the same as it apparently was before the chap was shot.
I also went to my victim’s funeral, and before the service we stopped at the flower shop to get something appropriate. I went in the same vehicle as the victim’s pregnant girlfriend, sister, brother-in-law and friend. After the service we went to the cemetery, and saw the deceased lowered into the ground.
… I told [the deceased’s girlfriend] I didn’t think [a co-accused] was the perpetrator, even though I’d watched him shoot the deceased man a few times with a .22 rifle, after I’d shot the victim once with a .25 pistol.
I didn’t tell the victim’s girlfriend that she was lucky to be alive, as on the night that he met his end, I had her targeted for demise. I had her in my sights for badmouthing me, and when she wasn’t home I helped to kill her boyfriend.”
Letter 19 purports to describe the applicant’s fourth and fifth murders. The applicant’s fifth victim was the ten year old son of the applicant’s fourth victim. The letter states that the ten year old victim was not expected to be with his mother when she was “waylaid”. Letter 19 describes these two murders in the following terms:
“It turned out that I was the one who killed them both, but before doing so I made the woman think she wasn’t going to be shot. I was really only talking to her in order to give my co-offender enough time to take our car about a suburban block or so away. I was to meet him at this designated place after the murders were committed, so when enough time had elapsed for him to do as arranged, I pulled the triggers on the sawn off .22 rifles that were aimed at the victims.
Because the first gun jammed as a result of what I assume to be too rapid fire, I took the second gun from the bag I had and used that to finish the job. I shot the mother first, and before the gun jammed I fired at her several times. Then, whilst consoling the boy, I shot him with the second gun when his back was turned to me. I shot him three times in the back of the head, and after this I turned the gun on his mother again, just to make sure she was dead.”
Letter 21 describes the applicant’s sixth murder. In this letter, the applicant describes his sixth victim as his “new girlfriend”. Letter 21 contains the following:
“I invited my girlfriend to a non-existent party, and she, accepting the invitation, went to the bush with my two co-offenders and I. However, the only thing that awaited her up the dark forest track was rape and Death.
When we arrived at the bush track one of my co-offenders asked if I was going to let others use my girlfriend for sex. He asked me this shortly after I had produced a knife and put it to her neck, so she was, by the appearance of the blade, clearly aware that things had suddenly become unfriendly. I answered the sexually interested man affirmatively, and she, with the cheap knife held against her, didn’t make any protest at being talked about in such a way. What she wanted was irrelevant.
I permitted the man to have sex with her, because if his semen was in her corpse, it was something he could reflect on if he later thought about telling the police of her murder. Furthermore, if her body were later discovered, semen in the corpse, along with stab wounds, would be a deviation from our usual modus operandi.
I hadn’t known my girlfriend for long, but I experienced her as a kind-hearted and nice enough lass. Unfortunately for her, because there wasn’t a gun to shoot her with, a knife was used to take her life. This being the case, when the fellow who wanted sex with her had finished using her body to that end, I attacked her with the blade. Amazingly, it seems I stabbed her one hundred and fifty-seven times.
I hadn’t stabbed anyone to death before, and she didn’t, as you might see in a movie, die after one blow with the knife. She fought surprisingly hard, and this fazed me. Because of this, when she was finally still, I decided to stab her more, in order to make sure she was dead.”
In his various descriptions of the six murders the subject of this application, and in other descriptions of his victims,[11] the applicant makes criticism from time to time of either a particular victim or somebody else involved in a relevant event. I have had regard to these various assertions (including assertions of criminal conduct in respect of some of the people identified). However, in the circumstances of this application, I do not believe it appropriate to set out the detail of these assertions. That said, whatever the applicant might say about his victims, at least three of his victims were entirely innocent even on his account. Further, and in any event, each of the six murders the subject of this application was a callous, brutal, disgraceful and entirely unjustified act.
[11]All of which were tendered by the applicant.
Each of the applicant’s first six murders was unjustifiable and merited condign punishment. While the applicant has over time variously attempted to justify or explain the murders he has committed, whatever might be capable of being said in respect of his adult victims, nothing could possibly justify or provide any rational explanation for the murder of his fifth victim, an innocent ten year old boy.
Applicant’s background
The applicant was born on 5 September 1957 and is now 55 years of age. He was adopted when he was about three months old. During the applicant’s early and teenage years, there was considerable conflict between him and his adoptive parents, whose approach he regarded as being “too restrictive and protective”. Ultimately, his adoptive parents were unable to control him and he was involved in delinquent behaviour in his teenage years.
The applicant was educated to Form 3 – although he did not complete Form 3. His schooling and early years is described in a history taken by Dr Skinner:
“His primary school years were good. He said he coped well at school and there were no particular behavioural problems. He considers that his problems began in secondary school. He described a difficult period in his teen years when he was pressured to conform. He believes he was immature and not ready for secondary school life. He said his parents had not prepared him. He was bullied and tried to compete. He tried to get on with girls but he was unpopular as he was regarded as a ‘dork’ and he had few social skills. Some of his friends from the primary school had accompanied him to the same secondary school. He achieved well in primary school but in secondary school did not apply himself and he finished school and his education in Year 8. At the beginning of Year 9 he was sent to an institution. At that time he was breaking into kiosks on railway stations and failing to attend court.
In the institution he was again at the bottom of the pecking order and found it hard. He absconded from the juvenile institution and then was placed in high security. The staff in the high security institute had a different attitude. He was required to scrub floors with Jex and to clean toilets and he was not given privileges such as cigarettes or television. He was punished by having to face the wall. ‘Stupidly’ he became involved in a plot to escape. He hit an officer on the head with a chair and this made him unpopular with staff. For punishment he was given servery duties and had to scrub floors. As a youth he made ‘stupid’ choices.”
By the time of the applicant’s first murder trial (for his third, fourth, fifth and sixth murders), the applicant had had ten appearances in the Children’s Court on charges including stealing, larceny of a motor vehicle, shop-breaking and stealing, malicious damage, garage breaking and stealing, assault with a weapon, assault by kicking, assault occasioning actual bodily harm and attempted office breaking with intent to steal. He had also been involved in three Magistrates’ Court appearances, two County Court appearances and an appearance in the Central Petty Sessions Court in New South Wales. On 1 July 1976, the applicant was sentenced in the County Court in respect of four counts of robbery to a total effective sentence of five years’ imprisonment with a minimum of three years.
At the time of his second murder trial (the applicant’s first and second murders), the applicant also pleaded guilty to three counts of armed robbery and one count of malicious wounding. These crimes were committed between 16 October 1978 and 6 December 1978, and involved the armed hold-up of a railway station officer, a 7-Eleven Store proprietor and the manager of a Kentucky Fried Chicken store. On the first occasion, the applicant threatened his victim with a single barrel shotgun while a co-offender beat the victim with a wooden club. On the second and third occasions, the applicant used a single barrel sawn-off shotgun.
The applicant’s seventh murder
While serving his six life sentences, the applicant murdered a fellow inmate, Donald Hatherley. The circumstances of this murder were described by Coldrey J, when sentencing the applicant on 26 May 1993:
“Some days prior to 14 November 1991 Donald Hatherley expressed to you his wish to die. You determined to assist him in achieving that desire. You discussed with him various methods of ending his life, including strangulation. Ultimately, hanging was the means selected.
In preparation for this event, you examined various areas such as the toilets in ‘B’ Division Annexe as a possible venue and you also obtained from the Division gymnasium a length of nylon cord. Eventually, it was decided that the hanging would take place in Hatherley’s cell after the evening meal and before the 4.10pm lock-up. You selected a plastic pipe which transversed the cell wall and tied the rope to it. With the assistance of the deceased, you tested its capacity to carry his weight. You then affixed the noose around Hatherley’s neck and, at his request, you tied his hands with a piece of material.
After ascertaining his resolve to continue this path to self-destruction, you pulled away the small cupboard upon which he was standing, leaving him suspended. But Donald Hatherley did not die immediately. He continued to take shallow breaths. On your account, you rubbed his chest while saying: ‘Let go of your breath, my friend.’ However, the breathing continued. After about one to two and a half minutes had elapsed, you then, explaining what you intended to do, reached behind his back with your hands and applied a steady downward pressure on his shoulders for some ten to fifteen seconds. The purpose of this action, which was to cut off his air supply, succeeded.
You sought to avoid implication in the death of Hatherley by having him salivate on the material binding his hands so it would look like he had tied the knot himself and by your positioning of the cupboard so it would look like Hatherley had kicked it over. Indeed, it appears that you successfully avoided suspicion falling upon you.”
As to the applicant’s motivation in respect of the death of Mr Hatherley, Coldrey J went on in his reasons for sentence:
“You have asserted that your actions were motivated by the desire to assist a fellow prisoner to escape from what you perceived to be the anguish and torment of his own unresolved mental conflicts, which manifested themselves in depression, anxiety and self-mutilation, and to free him from the rigours of a prison regime which afforded him no horizon of hope. However, your motivation extended beyond any altruistic concern. Hatherley was, to your knowledge, a vulnerable man whose problems had, in the past, resulted in a number of suicide attempts by him. Although you may initially have attempted to dissuade him from the course upon which he wished to embark, you made no concerted or persistent attempt to discourage him. On the contrary, you assisted him in his preparation to die in every practical way. Indeed, you told the police you were glad that Hatherley wanted to commit suicide because of the benefit you could get out of it. That benefit was the opportunity to expose yourself to a ‘new plane of experience’, as you perceived it, by assisting someone to die without any malice. This participation was seen by you to be in stark contrast with the intent and motivation involved in the previous six murders you had committed.
You also described your participation in Hatherley’s death as ‘an adventure’ and there are passages in your own documentation of this event as a challenge and as a vehicle for personal growth.
Indeed, I note a comment in the pre-sentence report prepared by a Community Corrections officer, Mr Belbin-Canham: ‘Haigh can see no fault in his behaviour regarding the victim and is critical and/or indifferent to other moral perspectives on the issue.’ In such circumstances, it cannot be suggested that you feel any remorse for what has occurred.”
Indeed, to the present day, the applicant has maintained that while he has remorse for his first six victims, he has no remorse in respect of the death of Mr Hatherley.
This application
During the course of this application, a significant volume of documentary evidence was tendered. The applicant chose to advance his case by, amongst other things, reading (and then tendering) a number of “essays” written by him. The essays commenced with a brief introduction. The applicant then read and tendered essays, the titles of which included “Honesty” (eight pages), “Honesty and Discord” (nine pages), “Honesty and Good” (three pages), “Observations on Honesty” (three pages), “Truth and God” (two pages), “Remorse” (nine pages), “Remorse and Judgment” (seven pages), “Remorse and its Components” (twelve pages), “Sympathy and Compassion” (eighteen pages), “Egocentricity” (eight pages), “Callousness” (eleven pages), “Callousness and Eulogy” (fourteen pages), “Spiritual Chaos and Donald Hatherley’s Suicide” (fifteen pages), “Donald Hatherley’s Death and My Remorselessness” (twenty pages), “Cell Time and Professionals” (twenty-two pages), “Prison is a Microcosm” (thirty-five pages), “Substance Abuse” (twenty-four pages) and “Empathy” (fourteen pages). Ultimately, the applicant entered the witness box and gave evidence that the content of the written material he had tendered was true and that it reflected his views.[12]
[12]T178.
A great deal of the essay material tendered by the applicant concerned the issue of remorse. However, most of this consisted of what appeared to be an attempt to advance analytical arguments for the proposition that the applicant has experienced as much remorse as his circumstances permit; and that any perceived lack of “appropriate remorse” is a product of the circumstances in which society has placed him.
I have real doubt as to whether the applicant has truly experienced any real remorse in respect of any of his crimes. Such expressions of remorse as he tendered during this application were often coupled with statements suggesting a significant lack of any real remorse. For example:
“I say, with appropriate sensitivity, that people are responsible for overcoming their own hardships and tragedies, and for moving on and finding happiness regardless of devastating events, and without in the slightest way being disrespectful to my victims, this also applies to them. Owning fully the terrible and regrettable things I have done to mangle my victims’ lives and happiness, it is nevertheless up to them to move on.”[13]
“I realise that I have added a great burden of pain to my victims’ lives, but in this vein I have my own memories of wrongs done to me.”[14]
[13]T51.24 – T52.1.
[14]T52.8 - .10.
It is, in any event, instructive to note the opinion of the psychiatrist, Dr Walton:[15]
“Again from a clinical perspective, I am intrigued as to why the presence of absence of remorse may have significance in relation to setting a minimum term. It is increasingly documented scientifically that expression of remorse, or otherwise, has no predictive value regarding risk of re-offending and I should have thought that such a risk assessment (albeit fraught with difficulty routinely) would have more immediate relevance to whether or not a person would ever have a potential opportunity for parole.”
[15]Whose reports were tendered by the applicant.
Whatever might be said of remorse, the issue of rehabilitation (and the potential for any further rehabilitation) is, of course, of greater significance in this application.
During the course of this hearing, the opinions of a number of psychiatrists were tendered. In his report dated 9 July 2007, Dr Walton said:
“I am inclined to agree … that reliable prediction [for future propensity for aggression] specifically regarding Mr Haigh simply cannot be provided, especially so because of the seeming variability of motivation across his multiple killings. That said, simply on the basis of this man’s history of criminal offending to date, I believe it would be sensible to place him in a category of elevated risk of re-offending including aggressive behaviour, indefinitely.”
In cross-examination, Dr Walton stated that this would remain his view indefinitely – although he also said that the applicant’s “recent history of untroublesome behaviour is somewhat reassuring”.[16]
[16]See Dr Walton’s report dated 9 July 2007 (part of Exhibit A4).
Professor Mullen, whose report[17] was tendered by the applicant, expressed the following opinion:
“The psychiatric problems which were in evidence during the early period of Mr Haigh’s imprisonment have dissipated. There is no current evidence of serious psychopathology. Mr Haigh’s personality remains unusual, but there is evidence of maturation with amelioration of the more chilling characteristics of lack of empathy, callousness, grandiosity and calculating self-interest.
Mr Haigh shows the typical effects of long-term imprisonment in the form of superficial compliance and interpersonal wariness. …
Mr Haigh’s crimes were of a terrible nature. Such crimes are fortunately so rare there are very few similar offenders who provide experience to guide decision-making in this case. … Mr Haigh is a serial killer some of whose victims were murdered to further robbery, some to prevent detection and some for more personal motivations. Mr Haigh cannot be compared to serial killers who act entirely as agents of various criminal enterprises. Mr Haigh is not comparable to the types of serial killer motivated primarily by perverse sexual needs or out of the need to exert superiority and control. There may be elements of these more familiar patterns in Mr Haigh’s crimes but only elements. This again confounds any attempt to make predictions based on the experience of other cases.”
[17]Dated 14 May 2007.
In his report,[18] Professor Ogloff expressed the opinion that the applicant “would present a moderate to high level of risk for committing another general or violent offence if released from custody”.[19] However, Professor Ogloff also expressed the opinion that “with a realistic, long-term, gradual release plan”, the applicant’s “level of risk could be managed in the community”. While Professor Ogloff also expressed the opinion that the applicant does not fit into the category of offender whose personality and level of risk is such that he should never be considered for release in the future, it is to be remembered that the considerations taken into account by Professor Ogloff are only part of all of the relevant matters that must be considered in determining whether a non-parole period or periods should be granted.
[18]Dated 13 April 2007, and tendered by the applicant.
[19]At the time that report was written (April 2007).
Dr Skinner, in her report[20] stated:
“It is very difficult to give an assessment of the risk of re-offending violently in future in the case of Mr Haigh. His history of offending behaviour, the seriousness of the offences and the number of offences is unique so that no comparison series is available. Professor Ogloff has assessed the risk of re-offending as moderate to high.
It would be difficult to plan a program of intervention to manage the risk, because the offences were committed in different circumstances and with different motivations.”
[20]Dated 13 November 2012 and tendered by the Crown.
Dr Skinner was called to give evidence, and was then cross-examined by the applicant. In the course of her evidence-in-chief, Dr Skinner was taken to a part of her report that relied upon another report which was not in evidence.[21] Dr Skinner was asked to disregard this report, and then whether her opinion would change if regard was not had to this report. Dr Skinner answered this question in the negative.
[21]This was the “pre-sentence report” referred to by the Court of Appeal in Haigh v The Queen (Unreported Court of Appeal, Buchanan and Nettle JJA and Kyrou AJA, 19 April 2011).
Dr Skinner was asked about the applicant’s risk of re-offending, including aggressive behaviour. She gave evidence that she agreed with Dr Walton’s opinion that the applicant was “in a category of elevated risk of re-offending including aggressive behaviour, indefinitely”.[22]
[22]T183.
Dr Davis, in his report[23] stated:
“Mr Haigh has a large number of historical risk factors that would appear to be somewhat tempered by the current status of dynamic factors. However, risk factors referring to risk manageability cannot be meaningfully coded for community violence at present. Nonetheless, it is perhaps clear that Mr Haigh poses an elevated risk and if ever released will require a level of support that is higher than that of the average violent offender. Accordingly, he would appear to pose at least a moderate to high risk for general violence, but this will need to be re-evaluated if and when he is transferred to less restrictive levels of supervision within the prison system.”
[23]Dated 30 November 2012 and tendered by the Crown.
During the course of the hearing, the applicant called three prison officers, Mr Beveridge, Ms Roze and Ms Payne. Mr Beveridge gave evidence that he had known the applicant for 15 years, and known him as a unit officer for the last two years. Ms Roze gave evidence that she has known the applicant since June 2007. Ms Payne gave evidence that she has known the applicant for just over five years.
The tenor of the prison officers’ evidence was that during the periods each officer has known the applicant, the applicant has not threatened anyone or exhibited any signs of violence. The applicant asked each officer whether they were afraid of him. Each officer answered in the negative. That is as it should be.
I accept the evidence of all three officers. Specifically, I accept that there is no suggestion that the applicant has engaged in any episodes or acts of violence, or threatened anyone, in the last several years. I also accept that, apart from his admitted drug use in prison (to which I will refer later), the applicant has effectively been a model prisoner for some years.[24] Whether his better behaviour is due (as he would have me believe) to his maturing and developing some sense of remorse, or on the other hand (as the Crown would have me accept) due to some sense of self-interest[25] is a matter capable of debate.
[24]That is, I am prepared to proceed on the basis that, apart from some isolated events referred to in the material and by the applicant (including a plan to defraud the Crimes Compensation Tribunal, what has been described as the “Christmas card episode” and an occasion when the applicant sewed his lips together) and apart from his continued use of drugs, the applicant has otherwise been a model prisoner for a period commencing shortly after he committed his seventh murder.
[25]For example, the fact that bad behaviour is punished in prison and good behaviour is capable of being rewarded.
Illicit substance abuse
In his essay “Substance Abuse”, the applicant described an extensive use of illicit drugs between the mid 1980s and 1991, and then from 2007 to date. Notwithstanding that he knows it is in breach of prison rules, the applicant has on various occasions since 2007 abused buprenorphine and used marijuana, amphetamines, hashish, ecstasy, heroin, ice and pills (the nature of which was not disclosed by the applicant). In the hearing before me, the applicant justified this conduct by reference to the circumstances he found himself in from time to time. The fact that his illicit drug consumption was contrary to prison regulations or law did not appear to be of any great moment to him.
During the hearing, a number of witnesses were questioned by the applicant as to their observations of him at times when he might have been high on one or more substances. Witnesses were asked whether his known substance abuse problem had ever led to disinhibition or impulsive conduct of a negative kind. None of the witnesses were aware of any such circumstances, and the applicant then used this fact to suggest that if released into the general community, any substance abuse engaged in by him would not be a problem because one could be confident that it would not lead to negative impulsive behaviour – or more particularly, any serious criminal conduct.
Whatever might be the logic or evidentiary foundation for arguments of the kind advanced by the applicant in respect of his drug-taking, it is to be remembered that (on his own account) the applicant’s substance abuse started in the mid 1980s (after the commission of his first six murders). Further, in his folder of documents headed “Account of Homicides”,[26] the applicant expressly states with respect to his first murder:
“When I committed this robbery I wasn’t drunk or stoned. I had taken no alcohol or drug immediately prior to the crime.”[27]
[26]Exhibit A3.
[27]Page 7 of the document headed “Tattslotto Agency”.
Further, in respect of his second murder, the applicant states:
“I had taken no alcohol or drug immediately before the offence, and I wasn’t stoned or drunk at the time.”[28]
[28]Document headed “Pizza Parlour”, pp 10-11.
Borderline personality disorder
An issue in this application has been whether the applicant suffers from (or has suffered from) a borderline personality disorder. In her evidence, Dr Skinner said that the applicant did not fulfil the criteria for the diagnosis of borderline personality disorder. However, she said that he did have “a few features of borderline personality disorder”.
The applicant relied upon a number of reports in which it was suggested that a diagnosis of borderline personality disorder had been made some years ago. Specifically, the applicant relied upon a report of Dr Brian Hutchinson,[29] in which it was stated that earlier reports:
“… outline a history that by Pentridge standards is fairly commonplace. Even the diagnosis of borderline personality disorder is a frequent diagnosis among prisoners and I would agree that he fits the diagnostic criteria for this.”
[29]Dated 11 April 1990 (Exhibit A7).
While, according to Dr Hutchinson, the diagnosis of borderline personality disorder was “fairly commonplace” by Pentridge standards, Dr Hutchinson went on:
“The fact that separates him [the applicant] from not only ordinary society but also nearly all of his fellow prisoners is six violent murders.”
In his report,[30] Professor Ogloff stated:
“Since he has been in prison, he has seen mental health professionals. Early on it appeared that he wanted to be seen as being mentally ill – potentially to be found not guilty by reason of insanity. Later, he used emotional disturbances as one of the ways he could manipulate people and the system. He has not been found to have a major mental disorder, but has been diagnosed with Borderline Personality Disorder. He has also had difficulties with anxiety, depression and obsessive compulsive personality traits for many years, though his symptoms have ‘not to a socially crippling extent’ (sic). He received psychiatric medication in the past, primarily tranquilisers and anti-depressants.”
[30]Dated 13 April 2007.
A little further on in his report, Professor Ogloff stated:
“Mr Haigh does not meet the criteria for a major mental disorder (ie, a psychotic illness or a major affective disorder). He does display a variety of extreme personality traits; although, it is my opinion that he does not meet the criteria for any particular personality disorder.”
While there is a paucity of evidence that the applicant actually suffered from any significant borderline personality disorder at the time of his first six murders,[31] I accept from the medical evidence and from the simple fact of the commission of these six horrendous murders, that the applicant did suffer from some borderline personality disorder at the time the murders were committed. The real question is whether there was any link between any such condition and these crimes.[32]
[31]But cf Dr Walton’s answer to the applicant’s question (i) in Dr Walton’s reports of 11 October 2012 (part of Exhibit A4).
[32]See Pettiford v The Queen [2011] VSCA 96. Cf R v Verdins (2007) 16 VR 269.
The fact that, generally speaking, the severity of borderline personality disorders may ameliorate over time, and/or the fact that effective treatment might exist in some cases does not mandate any particular conclusion with respect to this application. Such facts would fall to be considered as part of all of the relevant matters – assuming there was some relevant link between any condition suffered by the applicant and the crimes the subject of this application. Further, it must be noted that while there are, unfortunately, significant numbers of people who suffer from a borderline personality disorder, the applicant’s conduct (at least in this State), in committing the murders he did, is unique. Indeed, Dr Walton expressed the opinion:[33]
“It is far from inevitable that persons afflicted by borderline personality disorder will engage in antisocial conduct. Alternatively, it is also correct to state that there is an elevated incidence of borderline personality disorder in convicts. At worst, aggressive behaviour would be described as being consistent with the diagnosis. Self-destructive behaviour is more common.”
R v Knight [1989] VR 705
[33]See his reports of 11 October 2012 and the answer to question (ii) therein (part of Exhibit A4).
In his submissions, the applicant placed considerable reliance upon the decision of Hampel J in R v Knight.[34] The applicant pointed to the fact that on seven counts of murder committed on the one day, Knight was sentenced to life imprisonment with a minimum term of 27 years. Further, the applicant relied upon what was said to be a similarity between Knight’s “diagnosable serious personality disorder”[35] and the applicant’s borderline personality disorder as disclosed in the evidence tendered on this application. This is not the place to debate the appropriateness of Knight’s minimum term. Further, as has been said many times, sentences are not precedents.[36]
[34][1989] VR 705.
[35]Ibid, 708.
[36]R v Coulston [1997] 2 VR 446, 461.
For the sake of completeness, I should refer to some of the mitigatory factors that were noted in Knight, and which might distinguish Knight’s case from the present. First, Knight had no prior convictions. Secondly, Knight’s killings could be seen “as part of one continuous course of conduct”.[37] Thirdly, Knight’s killings “were not motivated by gain or revenge”.[38] Fourthly, Knight’s killings “were not accompanied by acts of torture or cruelty”.[39] Fifthly, Knight pleaded guilty in respect of his murders, having fully cooperated with investigating police following his arrest. While some years after the event (and after being found guilty in his first murder trial) the applicant volunteered his involvement in the murders that were the subject of his second murder trial (and pleaded guilty), it is to be remembered that he pleaded not guilty in respect of the four murders the subject of his first murder trial – participating in a ten week trial during which he gave an unsworn statement (as he was then entitled to do) in which he told lie upon lie upon lie.[40]
[37]R v Knight [1989] VR 705, 710.
[38]Ibid.
[39]R v Knight [1989] VR 705, 710. Compare the degrading and humiliating treatment meted out to the applicant’s sixth victim, which included her rape and sodomisation (albeit not by the applicant – although permitted by him) at a time when she knew she would be killed, and then the extraordinary violence perpetrated on her with the “cheap knife”. See further the applicant’s chilling account of this murder in the document headed “Brearly” (part of Exhibit A3), pp 6-10, and the applicant’s account of the motive on pp 13-14.
[40]The unsworn statement commenced:
“Your Honour, ladies and gentlemen of the jury, as you are aware, I stand before you accused of causing the death of Wayne Smith, Sheryle Gardner, and her young son Danny Mitchell, and Lisa Brearley. I am not guilty of these crimes and I have had no involvement in any of them in any way whatsoever. I am completely innocent and I deny strongly now, as I have from the beginning, having any involvement whatsoever in regards to the death of my friends.”
From this opening, the applicant’s unsworn statement went downhill so far as the issue of truth was concerned.
Put simply, Knight’s case is not a relevant comparator. One might just as easily look at the decisions of the Court of Appeal in R v Coulston[41] and R v Lowe[42] where no minimum term was set.
[41][1997] 2 VR 446.
[42][1997] 2 VR 465.
Further, in the report of Dr Hutchinson,[43] tendered by the applicant, Dr Hutchinson stated:
“I asked him how he compared himself to the Hoddle Street shooter. He declared he was totally different because he had killed for a reason.
He admitted he might stuff up again if he was released. He might even kill, but only with a good reason. Education and religion provided no answers but he had ‘learned to play the game’ and ‘learned to manipulate people’.”
[43]Dated 11 April 1990.
The resolution of this application
In R v Coulston,[44] the Court of Appeal considered a number of passages in authorities concerning the imposition of minimum terms. Having set the relevant passages out, the Court[45] said:[46]
“It would be wrong to attempt to derive from the passages cited any of the following propositions (with each of which we would disagree): That it will scarcely ever be appropriate to refuse to fix a non-parole period in a case of murder; that an appropriate case for such a refusal may be expected to arise very rarely — perhaps once in a decade; that because cases of murder where the crime is very sickening and of the most extreme cruelty and barbarity are not so very rare a sentencing judge should not be much impressed by the horrifying circumstances of such a crime in considering whether to fix a non-parole period; that the fact that the offender is to be sentenced for more killings than one is irrelevant or of little weight in the consideration of whether to fix such a period. Horrifying murders are not as rare as they used to be. Sentencing and appellate judges may gain considerable familiarity with these crimes. It would be unfortunate if the fact that truly horrifying murders are no longer as rare as they once were gave rise to the impression that they may not in appropriate circumstances be punished with the utmost severity. And sentencing and appellate judges must not allow their familiarity with horrifying crime to blunt their sensibility. Sentencing is governed by the intellect, but the emotions also have their proper part to play. These include abhorrence of what is abhorrent as well as merciful compassion. Often a moral judgment from which emotion cannot be absent must be made about the wickedness of a crime. Victim impact statements may, as this very case shows, serve as a reminder to judges to whom vile crimes are no novelty of their effect on the indirect victims and of the lasting grief and legitimate indignation to which they may give rise.
As regards what may for brevity be called multiple murders, generally speaking at all events, the fact that the offender has committed not one but two or more murders is an important matter in considering whether to decline to fix a non-parole period. Judges who sentence murderers must not fail to have a proper regard to what used to be called the sanctity of human life — a phrase not heard nowadays in the criminal courts (but see Wilson v R. (1992) 174 C.L.R. 313 at 341) — in considering what justice according to law requires having regard to the terms of s. 11(1). Perhaps in recent years other considerations have at times been allowed to overshadow this. The criminal who kills not one but two, three or four human beings can be given no longer sentence than the killer of a single victim. Two, three or four life sentences, served, as they must be, concurrently, are of the same duration as a single one. Differentiation is possible only as regards the non-parole period — by increasing that period or by refusing to fix one at all. Of course, everything depends on the circumstances. The perpetration of multiple killings may in a given case not even warrant the imposition of a life sentence, let alone the further momentous step of denial of the possibility of parole. We wish only to make it plain that, while everything depends on the circumstances of the particular case, those who kill a number of victims in horrendous circumstances, where no substantial factor pointing towards clemency is present, must in general expect to be seriously considered for the possible imposition of life sentences unmitigated by the hope of parole.
A further passage in the joint judgment in Iddon and Crocker at 328 should be noted: ‘Certainly … if there are cases in which no minimum term is to be set, then this is not one of them.’ This appears to accept that one possible view is that a judge sentencing for murder can in no circumstances refuse to fix a non-parole period. Such a view is plainly inconsistent with s. 11(1) of the Sentencing Act. Iddon and Crocker is a frequently cited decision. It is probable that the passage referred to has on occasions led to an undue reluctance on the part of judges to deny a prisoner the possibility of parole in murder cases, upon the basis that this should very rarely if ever be done. Sentencing judges must remain fully conscious of what has been said in decisions of the highest authority about rehabilitation and the beneficial objects to be served by the fixing of a non-parole period. They will remain well aware that a sentence of life imprisonment with no possibility of parole is a sentence of the utmost severity. It is a dreadful sentence, at all events for an offender who is not of an advanced age. But dreadful crimes, especially where the past history is bad, may require a dreadful punishment.”[47]
[44][1997] 2 VR 446.
[45]Constituted by Winneke P, Brooking JA and Southwell AJA.
[46]R v Coulston [1997] 2 VR 446, 462-3.
[47]See further, R v Beckett [1998] VSCA 148 [21] (Tadgell, Batt and Buchanan JJA).
The six murders the subject of this application were dreadful crimes. The applicant does not dispute this.[48] Without downplaying in any way the applicant’s other crimes, his fourth, fifth and sixth murders were particularly dreadful.
[48]Although from time to time I was left with the impression that the applicant was merely mouthing phrases which he thought it necessary to say in his own interests on this application.
I accept that the applicant’s conduct in prison over the last several years has been considerably better than it was in the early years of his sentences.[49] Further, I have had regard to the various reports, references and certificates tendered by the applicant on this application – as well as the attempts he has made to deal with drug issues, as revealed in the evidence of Mr Testro. I am also fully mindful of what has been said in decisions of the highest authority about rehabilitation and the beneficial objects to be served by the fixing of a non-parole period.
[49]During which a number of significant acts of violence were committed, including the pouring of boiling water on the torso of another prisoner.
On the other hand, the applicant’s continued willingness to attribute blame to others;[50] his continued use of illicit drugs in prison; the murder of Donald Hatherley; his lack of any remorse in respect of the murder of Donald Hatherley; the significant episodes of bad behaviour in prison up until the last several years and the future risk of him committing further offences of violence (as disclosed in the evidence) are matters that do not tell in favour of the granting of a non-parole period.[51]
[50]A striking example of this being the applicant’s evidence given as recently as January 2008 (Exhibit A6, T143.13 - .28) concerning the death of his ten year old victim:
“Can you explain to me in respect of why in ‘victims, friends, associates’ et cetera, you basically put the blame for his death on his mother?---She was, as far as I understand, aware of the situation she was in, and it would have been smart for her knowing what we were like to have kept Danny safe with his grandmother or to have done something more prudent than she did, but because it was generally held to be a criminal principle that you don’t kill children or harm children, I believe in the context that she was trying to use him as a shield.
So you put the responsibility really for his death to a large degree on her?---Yes, he didn’t need to die and were he not there, well, it wasn’t something that we would’ve gone out of our way to do. It was an unforeseen circumstance and a great tragedy. It was his mother that we were after murdering, not the poor boy.”
[51]I should say for the sake of completeness that I have not overlooked the Crown’s submissions about the applicant’s views about incest. However, in the context of the whole of the circumstances of this case, those views are of little moment. While similar views might be a matter of great significance in another case, this case contains many more pressing matters that require consideration and synthesis.
While the applicant’s behaviour now (and in the last several years) is significantly different from his behaviour when he was a younger man, a consideration of all of the material in this case suggests to me that he remains a person who will say and do whatever he thinks will suit the course he is currently pursuing.[52] That is, I accept the evidence that, notwithstanding the elapse of time and significant changes in behaviour, the applicant remains (and will remain) a moderate to high risk of committing further offences of violence.
[52]The references in the material to earlier times when the applicant was “calculatingly self-interested” (for example, see the reference in Professor Mullen’s report dated 14 May 2007) or manipulated people (see, for example, the reference to manipulating people and the system in Professor Ogloff’s report dated 13 April 2007) or his having “learned to play the game” and “learned to manipulate people” as referred to in Dr Hutchinson’s report dated 11 April 1990, make accepting what the applicant says now as to the changes in him and his attitudes, at the very least, problematic.
However, in the end, it is the dreadful nature of his crimes and history that lead me to the conclusion that no minimum term should be set.[53] I accept that a sentence of life imprisonment with no possibility of parole is a sentence of the utmost severity. I accept it is a dreadful sentence – and particularly so when imposed upon a person who was as young as the applicant at the time he was first sentenced. However, as was said in Coulston,[54] “Dreadful crimes, especially where the past history is bad, may require a dreadful punishment”. When one takes into account all of the matters to which I have referred and the matters relevant to the synthesis which are referred to below, it is, in my view, clear that the nature of the applicant’s six murders and his past history make the fixing of a non-parole period inappropriate.
[53]This is so whether one considers the six murders together or each murder individually in the setting of all of the applicant’s other offences (in this regard the construction and operation of s 13(2) of the Sentencing Act is not without difficulty: see Keith Ryrie (1993) 64 A Crim R 332, 333 (per Fullagar J)). See further, Ludeman v The Queen (2010) 31 VR 606, 611-615 [32]-[55].
[54][1997] 2 VR 446, 463.
Applicant’s further written submissions
The evidence in this application and the Crown’s final submissions concluded on the morning of the third day of the application. At that time, the applicant claimed he was not ready to advance his final submissions. As put by the applicant:[55]
“Well I don’t want to bumble them, Your Honour, so I’d like overnight if I can please.”
[55]T197.28.
The applicant was given the balance of the third day and overnight. However, on the fourth day the applicant commenced his submissions by applying for an adjournment “for a couple of weeks”. I rejected that application – but again said that I would give the applicant whatever part of the fourth day he did not use and overnight until the morning of the fifth day. This was accepted by the applicant. However, on the fifth day, the applicant made further complaint about what he said was the inadequate time that had been allowed to him. The applicant then referred me to Tomasevic v Travaglini[56] for the proposition that, as an unrepresented litigant, he was entitled to assistance from the Court.
[56](2007) 17 VR 100.
Tomasevic is a very different case from the present case. In that case, an unrepresented litigant was held to have been in need of significantly more assistance than he was provided by the judge at first instance. The present case is entirely different. The material discloses that the applicant is a man well versed in the issues and legal principles concerning the present application. This is unremarkable, given the amount of time the present application has been on foot (26 years) and the fact that the applicant was represented by Senior Counsel in an earlier hearing of the same application before a judge of the Trial Division in 2007 and 2008.[57] Further, it might be said that, notwithstanding the submissions made by the applicant before me, the question of whether the applicant has chosen to be unrepresented is a live one. This is particularly so having regard to the history the applicant gave Dr Davis in November 2012, namely:[58]
“His father died approximately 18 months ago at the age of 88 years. … He reported that he inherited $850,000 from his father, some of which he gave to friends to help them out and most of which is currently invested in property development.”[59]
[57]The result of which application was ultimately set aside by the Court of Appeal in Haigh v The Queen (Unreported Court of Appeal, Buchanan and Nettle JJA and Kyrou AJA, 19 April 2011).
[58]Report of Dr Davis dated 30 November 2012 (part of Exhibit P1).
[59]The applicant is, of course, not to be punished for having assets. Indeed, if anything, the significant possibility that a past dependant of one of the applicant’s victims might successfully obtain an extension of time to commence a proceeding and then recover damages from him is a matter that is capable of weighing in his favour in the total synthesis of considerations relevant to determining whether or not it is appropriate to fix a non-parole period. For present purposes, I am content to adopt this approach in the applicant’s favour.
While the file in this matter discloses that a significant part of the delay in the prosecution of this application can be laid at the feet of the applicant, on the fifth day of the hearing of this application I accepted that the applicant should have further time to file and serve any additional submissions he claimed to be unable to make in Court on that day (noting that in any event, all of the applicant’s submissions have been made by reading material which had been written previously). On 11 December 2012, the applicant availed himself of this opportunity and filed and served further submissions contained in a 44 page facsimile. This material continues to make complaint that the applicant has not had sufficient time to prepare his submissions. I reject this submission. Not only has the applicant had sufficient time, I am satisfied he has said everything he wants to say.
In the course of his additional submissions, the applicant has revisited an earlier application he made to be provided with “the details of all of the other s 13(2) (s 18A, Penalties and Sentences Act 1985) applications that have been determined to date”. This application was originally made by letters dated 21 and 26 November 2012 and in a directions hearing before Coghlan J prior to the commencement of the application before me. However, what the applicant’s additional written submissions fail to disclose is that these applications were ultimately withdrawn by the applicant in a letter dated 29 November 2012, and not pursued before me during the five days of Court time occupied by this application.
If the applicant was to be sentenced today in respect of six murders committed on five different occasions, one might expect a plea hearing to take perhaps a day – and, perhaps, no more than two days. The present application is, of course, only about whether or not a non-parole period should be set (and if so, in what amount). The applicant’s suggestion that five days is insufficient time to hear the present application is without foundation. I have no doubt that the applicant has had every opportunity to say whatever he wants to say in support of the present application.
In his written submissions, in addition to relying upon R v Knight,[60] the applicant relied upon some 35 other authorities which he grouped under the headings, “Minimum term”, “Felony murder”, “Witness execution”, “’Cold case’ confession”, “Child killing” and “Multiple killings”.[61] None of these authorities is of any relevant assistance to the applicant. I have already dealt with R v Knight.[62] It is sufficient to expressly deal with only three of the applicant’s other authorities. These authorities were relied upon by the applicant under the heading, “Multiple killings”.
[60][1989] VR 705.
[61]Power v The Queen (1974) 131 CLR 623; Lowe v The Queen (1984) 154 CLR 606; Deakin v The Queen (1984) 58 ALJR 367; R v Dumas [1988] VR 65; R v Stone [1988] VR 141; Clive Samuel Woolley (1989) 42 A Crim R 418; Bugmy v The Queen (1990) 169 CLR 525; Keith Ryrie (1993) 64 A Crim R 332; R v Bannon & Calder (Unreported, Victorian Court of Criminal Appeal, 21/9/93); R v Miller [1995] 2 VR 348; R v Lascano (Unreported, Court of Appeal, 7/12/95); Iddon & Crocker (1987) 32 A Crim R 315; R v Campbell (Unreported, Supreme Court, 16/1/87); Alistair Farquhar Macrae (1995) 80 A Crim R 380; Trevor Raymond Jolly (1990) 52 A Crim R 83; Pollitt v The Queen (1992) 174 CLR 558; James Frederick Bazley (1993) 65 A Crim R 154; R v Williams [2007] VSC 131; R v Brazel [2005] VSCA 56; R v Harding (Unreported, Supreme Court, 1/8/88); Aiton v R (1993) 68 A Crim R 578; Wei Yin Chan (1994) 76 A Crim R 252; R v Avent (Unreported, Court of Appeal, 22/12/95); R v Quarry (2005) 11 VR 337; R v Stuart & Finch [1974] Qd R 297; R v McCafferty [1974] 1 NSWLR 89; David Frances Everett (1994) 73 A Crim R 550; Denyer v The Queen [1995] 1 VR 186; R v Brown (Unreported, Supreme Court of New South Wales Court of Criminal Appeal, 20/2/95); James Spyridon Vlassakis (2001) 125 A Crim R 290; R v Crabbe (2004) 145 NTR 50; David Peter Jarrett (1994) 74 A Crim R 121; Lauritsen v The Queen (2000) 22 WAR 442; R v Kumar (2002) 5 VR 193; and R v Blessington [2005] NSWSC 340.
[62][1989] VR 705.
The first of these authorities is R v Stuart & Finch.[63] This was a case where life sentences with non-parole periods of 14 years were given to two co-accused, each of whom had been convicted on one charge of murder. The facts of the case are notorious. This was the case in Brisbane where petrol was set alight in the foyer of a nightclub and, in the ensuing panic, 15 people died. However, as I have said, in that case, each of the accused only faced one charge of murder. As disgraceful as the conduct in that case was, there is almost no relevant comparison that can be made with the six murders the subject of the present application. The applicant would have me accept that this case is relevant because 15 people died, whereas he has only committed seven murders during the course of his lifetime. I reject this submission. For the reasons I gave with respect to R v Knight, there is, as I have said, no relevant comparison.
[63][1974] Qd R 297.
In R v Brown,[64] the applicant relies upon the fact that six deaths resulted in a sentence of imprisonment of 18 years with a non-parole period of 16 years. This was again a case concerning a fire. In the fire the subject of that case, six people lost their lives. However, Brown was convicted of six offences of manslaughter – not murder. Again, this case is not a relevant comparator.
[64]Unreported, Supreme Court of New South Wales Court of Criminal Appeal, 20/2/95.
R v Crabbe,[65] is another case that is not a relevant comparator. While Crabbe had been convicted of five counts of murder, the deaths (again) all occurred in the one episode. Crabbe was the case where a truck was driven into a crowded bar of a hotel in the Northern Territory in 1983.
[65](2004) 145 NTR 50.
I have carefully considered the applicant’s additional written material (including the authorities he relies upon), together with the material he tendered (and his oral submissions) made during the course of this application. None of it leads me to the conclusion that it is appropriate to fix a non-parole period. On all of the material, I am of the view that it is, in fact, inappropriate to fix a non-parole period. However, there remains one further submission that requires specific attention.
In his additional written submissions, the applicant submits:
“Each of these murders, considered alone, are (sic) such that a minimum term is appropriate even if I were not afflicted with a borderline personality disorder etc at the time.”
This submission must also be rejected. In determining the current application, the Court is not bound to look at each of the applicant’s murders in isolation and consider whether a non-parole period should be fixed. Each murder has to be looked at in the context of all of the relevant circumstances – including all of the other murders and crimes committed by the applicant. When one does this, one arrives at the clear conclusion that it is inappropriate to fix a non-parole period.
Conclusion
The application for the fixing of a non-parole period in respect of the life sentences imposed upon him for the murders of Evelyn Abraham, Bruno Cingolani, Wayne Keith Smith, Sheryle Ann Gardner, Danny William Mitchell and Lisa Maude Brearley is refused.
“(1) If a court sentences an offender to be imprisoned in respect of an offence
for-
(a) the term of his or her natural life; or
(b) a term of 2 years or more-
the court must, as part of the sentence, fix a period during which the offender is not eligible to be released on parole unless it considers that the nature of the offence or the past history of the offender make the fixing of such a period inappropriate.
(2) If a court sentences an offender to be imprisoned in respect of an offence for a term of less than 2 years but not less than one year, the court may, as part of the sentence, fix a period during which the offender is not eligible to be released on parole.
(3) A non-parole period fixed under subsection (1) or (2) must be at least 6 months less than the term of the sentence.
(4) If a court sentences an offender to be imprisoned in respect of more than one offence, any period fixed under subsection (1) or (2) must be in respect of the aggregate period of imprisonment that the offender will be liable to serve under all the sentences then imposed.”
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