R v Maiden - [2000] NSWCCA 519

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Maiden [2000] NSWCCA 519

FILE NUMBER(S):
60629/00
60465/00

HEARING DATE(S): 24/11/00

JUDGMENT DATE: 13/12/2000

PARTIES:
Regina v Stephen Arthur Maiden

JUDGMENT OF: Sully J Whealy J Howie J

LOWER COURT JURISDICTION: Supreme Court; District Court

LOWER COURT FILE NUMBER(S): L96/008; 91/11/1577

LOWER COURT JUDICIAL OFFICER: Dunford J; Gallen DCJ

COUNSEL:
L. M. B. Lamprati - Crown
P. Boulten - Applicant

SOLICITORS:
S. E. O'Connor - DDP
D. J. Humphreys - Applicant

CATCHWORDS:

LEGISLATION CITED:
Sentencing Act 1989
Prisons Act 1952
Crimes Act 1914 (C'Wealth)
Crimes Act (NSW)

DECISION:
Appeal against the sentences imposed by Gallen DCJ is refused
Leave to appeal in relation to sentence imposed by Dunford J on 8.4.999 is granted, but appeal is dismissed

JUDGMENT:

IN THE COURT
OF CRIMINAL APPEAL
60629/00
60465/00
SULLY J
WHEALY J
HOWIE J
WEDNESDAY 13 December 2000

REGINA v Stephen Arthur MAIDEN
JUDGMENT

SULLY J: I agree with Whealy J.
WHEALY J: The applicant seeks leave to appeal against the severity of a sentence imposed on him by Dunford J on 8 April 1999 in relation to the re-determination under s 13A of the Sentencing Act 1989 of the life sentence imposed upon him by Hunt J at Grafton on 22 September 1988 following upon his conviction for the murder of Mark Gerald White in November 1987. The re-determined sentence was twenty four and a half years to date from 21 September 1988 comprising a minimum term of eighteen and a half years and an additional term of six years.
The appeal in relation to the re-determined murder sentence necessarily involves consideration of sentences which were imposed upon the applicant by Gallen DCJ on 27 March 1992 (“the non-murder offences”). It is contended that Judge Gallen erred in relation to the sentencing process and, depending on the view this Court takes in relation to errors asserted in relation to the re-determination, it may be necessary to grant leave to the applicant to appeal against the severity of the sentences imposed by Gallen DCJ. At the outset of the hearing the Court granted an extension of time in favour of the applicant in relation to the application for leave to appeal against the severity of the sentences imposed in the District Court.
It is desirable to set out a brief chronology.
Chronology

24 June 1966 - applicant born
Placed in institutional care at four years of age, and remained there until mid-teens. By the age of 18 had a range of convictions for burglary, theft, escape youth training centre, and other offences.
Between age of 18 and 20 extensive convictions for theft, burglary, break enter and steal, malicious injury, and other offences.
27 January 1986 - sentenced to 2-1/2 years’ imprisonment
4 June 1987 - Goulburn District Court (Gibson DCJ): sentenced to 4 years’ penal servitude with a non-parole period of 2 years for break enter and steal, and forgery, offences
10 October 1987 - applicant and Leslie Petty escape from Cooma Prison.
On or about 25 November 1987 - applicant and Leslie Petty murder Mark Gerald White at Glenreagh.
29 January 1988 - applicant and Petty arrested near Yass. Applicant charged with escape from lawful custody.
16 February 1988 - applicant and Petty charged with murder. Appearance in Goulburn Local Court. Remanded into custody for pre-existing sentences, but not for murder.
29 August to 20 September 1988 - Murder Trial.
21 September 1988 - Maiden sentenced for murder by Hunt J at Grafton. Sentenced to penal servitude for life.
27 March 1992 applicant enters guilty plea before Gallen DCJ regarding a number of offences committed between escape and re-arrest including the escape, a number of break enter and steal offences, and larceny offences, (“the non-murder offences”).
(Note: Overall effect was that the sentences commenced 29 January 1988 (date of arrest) and the longest minimum term expired on 26 March 1995 (7 years 2 months).)
April 1999 - Re-determination judgment given by Dunford J. Re-sentenced to minimum term of 18-1/2 years to commence on 21 September 1988 (the date when the original sentence for murder commenced). Additional term of six years.
18 October 1999 - Applications for leave to appeal, and extension of time, in relation to Dunford J’s re-determination.
7 July 2000 - Applications for leave to appeal, and extension of time, in relation to Gallen DCJ’s sentences for “non-murder offences”.
The Sentences imposed for “non-murder offences”

I shall now set out the sentences imposed by Gallen DCJ on 27 March 1992: -

Escape lawful custody (11 October 1987) - minimum term of two years to commence, (s 34 of the Prisons Act 1952), at the expiration of sentence that the applicant was serving at the time of the escape (ie to commence on 31 March 1990 and to expire on 30 March 1992).
(I note that Gallen DCJ stated that the agreed date for the expiration of the sentence which the applicant was serving at the time of the escape was 4 February 1990. It is common ground that the actual date was as stated above.)
Break enter and steal at Byron Bay 26 November 1987 - three years from 29 January 1988 to expire on 28 January 1991. No additional term imposed.
Enter dwelling house and steal therein (French’s Forest) 29 December 1987 - minimum term four years from 29 January 1988 to expire 28 January 1992. No additional term imposed.
Possession of motor vehicle without lawful excuse (25 November 1987) - minimum term of three years commencing on 29 January 1988 and expiring 28 January 1991. No additional term imposed.
Larceny of a motor vehicle from Coffs Harbour on 28 December 1987 - minimum term of three years commencing on 29 January 1988 and expiring on 28 January 1991. No additional term imposed.
Possess property stolen outside the State (stolen in ACT) - minimum term three years commencing 29 January 1988 and expiring 28 January 1991. No additional term imposed.
Larceny of motor vehicle from Werris Creek on 19 January 1988 - minimum term of three years - sentence to commence on date of sentence 27 March 1992 and to expire on 26 March 1995. An additional term of one year imposed to commence on 27 March 1995 and expire on 26 March 1996.
Break enter and steal storeroom of DMR at Glenreagh 25 November 1987 - minimum term of three years to commence on 29 January 1988 and expiring on 28 January 1991. No additional term.

Three points of significance emerge from the listing of the “non-murder” offences. First, in relation to the sentence for escape from custody, s 34 of the Prisons Act 1952 required that the sentence commence at the expiration of the sentence that the prisoner was serving at the time of his escape, namely, 31 March 1990. No additional term was set in respect of this sentence on the basis, stated by the learned sentencing Judge, that the prisoner was serving a life sentence, and would not be entitled to apply for determination of that sentence until 1998. Secondly, there were no additional terms set for the other convictions, except for the larceny offence relating to the Holden Sedan stolen on 19 January 1988 at Werris Creek. This sentence was to commence on 27 March 1992 and the minimum term was for three years from that date. There was an additional term of one year expiring on 26 March 1996. Thirdly, although it may not be immediately apparent, there was an inbuilt leniency factor in the sentences in that, with the exception of the escape and the Werris Creek car theft, all other offences were back dated to 29 January 1988, that is, the date when the applicant and Petty were arrested near Yass. The leniency factor derived from the fact that, as at that date, the applicant still had to serve a considerable part of the term of the sentence imposed by Gibson DCJ at Goulburn District Court on 4 June 1987. The applicant’s escape on 10 October 1987 interrupted the service of this sentence for a period of months. The effect of the back date was to allow the applicant to serve part of his sentence for the majority of the “non-murder offences” concurrently with the balance of the sentence the prisoner was serving at the time of the escape. This yielded a benefit in his favour of a little over two years.
The Murder of Mark White
The applicant and Leslie Petty were both escaped convicts who had escaped from Cooma Prison. They engaged in a spree of criminal activity from Adelaide through Sydney to the Queensland border. During the course of their escapades, they lured the victim, a young seventeen year old who had been hitchhiking and whom they had picked up, into the bush. They killed him by breaking his neck. They buried his body in a shallow grave. According to the Crown case, there was a prior agreement between them to kill the victim. On a given signal from Petty, the applicant attacked the victim and during the ensuing struggle they fell to the ground where the applicant held the victim’s neck in a headlock and attempted to break his neck by pushing very hard and quickly against the side of his face. This manoeuvre did not kill the victim but rendered him unconscious. Petty then turned the victim on to his stomach before grabbing him under the chin, putting his knees into the victim’s back and breaking his neck from the rear. In his record of interview made on 16 February 1988, following his arrest, the applicant said that he merely pushed the victim over and went and dug the grave while Petty killed him. The motive for the killing was that they were concerned he would get in the way of a proposed “rip off” of a truck in Queensland. During the course of the application before Dunford J, the applicant said that the truth was that he and Petty were intending to stop and rob a truck carrying a large quantity of cigarettes from Queensland to Sydney. The victim was aware of this proposal. He had in fact agreed to be involved in the crime. Petty later said that he believed the victim should be killed because he might go to the police or inform the authorities that the applicant and Petty were in the area, having escaped from gaol. The applicant went on to explain that he agreed to the plan to murder the victim because at the time he regarded Petty as a type of father figure and looked up to him. The applicant told Dunford J a version of the events which minimised his involvement. He said that when Petty gave the signal he pushed the victim over and the latter fell over on his back. Petty sat on the victim’s stomach and held his hands around his throat while the applicant ran into the bush. When he came back, he saw Petty break the neck of the victim whereupon Petty told him to go and dig a shallow grave which he did.
Dunford J made the point that in the absence of other witnesses it was difficult to tell how much of the version given by the applicant on the re-determination application was true. It was difficult to know precisely what part he physically played in carrying out the agreement between Petty and himself to kill the victim. His Honour stated at pp 2 and 3: -
“However, what is clear beyond reasonable doubt is that there was an agreement between them that the victim should be killed for no good reason. On any version he was part of the agreement and on any version he gave the deceased the initial push preparatory to Petty breaking his neck, and whether he himself first tried to break the deceased’s neck is not of any great significance. It was therefore a deliberate, callous, premeditated killing of a young man the killers had given a lift to, befriended and invited to join them in a proposed serious criminal enterprise. They then, so the applicant says, brutally killed him by breaking his neck because he knew about them and their plans and they feared he might notify the police. I accept that the applicant was not the instigator of the offence and was at the time under the influence of a considerably older man.”
The Methodology Adopted in the Re-determination
Dunford J came to the conclusion that he was satisfied that the application before him was an appropriate case for re-determination of the life sentence. The way in which he went about the determination in the light of the complication of the “non-murder offences” is stated by his Honour at pp 8 and 9 in the following terms: -
“The determination of the fresh sentence is complicated by the factors to which I have already referred, namely the fact that at the time of the murder he was an escapee from an outstanding sentence, which had to be completed on his recapture, and he has since been sentenced for the escape itself and a number of other offences committed whilst at large. A similar situation concerning escapees committing murder and other offences and being sentenced separately for the escape and other offences arose in R v Purdey (1992) 65 A Crim R 441 affirmed by the Court of Criminal Appeal (1993) 31 NSWLR 668, SLR (1994) 181 CLR 691n and R v Haggart (unreported - Dunford J - 19 November 1993).
In respect of the escape and other offences committed whilst at large, a number of concurrent and partly concurrent sentences were imposed by Judge Gallen on 27 March 1992 the overall effect of which was that the longest minimum term expired 26 March 1995.
At the time he was taken into custody on 29 January 1988 he was an escapee and so continued serving his pre-existing sentences which did not expire until 31 March 1990, by which time he had been sentenced for the murder (on 21 September 1988). Accordingly when remanded in custody on 16 February 1988 it was not for this offence and the appropriate date under s 13A(5) for commencement of the minimum term to be set on this application is the date on which the original sentence commenced (i.e. 21 September 1988): R v Purdey.
Although the sentence must be backdated to the date of the original sentence, in calculating its length, these other outstanding sentences must not be disregarded as otherwise the applicant would in effect only be punished for the murder and not for the other offences. As Hunt J said in R v Purdey at 65 A Crim R at 447:
“As the judge sentencing pursuant to s 13A is precluded from making the fresh sentence cumulative upon others which the prisoner was serving when the original life sentence was imposed - or would have been serving when sentenced for the murder in the ordinary course of events - he or she must therefore make the sentence for murder longer to take those other crimes into account, provided that the sentence imposed for the murder remains individually proportionate to the crime for which it is imposed. Again, to hold otherwise would effectively mean that the applicant would not be punished for those other crimes.”
This passage was approved by the Court of Criminal Appeal at 31 NSWLR 668 at 680 per Carruthers J with whom on this point the other members of the Court agreed. Moreover, it is necessary to fix a sentence for the murder which reflects the seriousness of that offence and takes into account protection of the public, retribution, general and personal deterrence, as well as rehabilitation: R v Purdey. But regard must also be had to the principle of totality with the result that the additional term to be served for the murder will be less than it would have been if it had stood alone as a single offence and he were being sentenced for it in isolation.
Taking these factors into account I consider the additional minimum term which should be added to the other sentences (that is to be served beyond 26 March 1995) is twelve years, which as I say is considerably less than would have been an appropriate minimum term for this offence if it stood alone, but it must be fixed by reference to a commencement date of 21 September 1988.”
Submissions on behalf of the Applicant
First it is submitted that Purdey’s case (supra) was wrongly decided and that Dunford J was in error in following it. It was submitted that the applicant’s sentence should have been deemed to commence on 29 January 1988, the day he was first remanded in custody in relation to the murder charge. Secondly, it was submitted that a more substantial error occurred when Dunford J followed Purdey’s case by increasing the re-determined murder sentence by six and a half years to reflect the applicant’s offending conduct in relation to the “non murder” offences. It was argued that, if Purdey’s case reflected the law in New South Wales prior to the High Court’s decision in Pearce (1998) 194 CLR 610, the situation changed after that decision. The sentencing principles outlined in Pearce prohibit the exercise that Dunford J embarked upon by increasing the murder sentence to reflect the criminality of the “non murder” offences. The applicant was “sentenced” in relation to his criminality in relation to these matters by both Judge Gallen’s sentence and by Dunford J’s sentence. This was contrary to principle and amounted to “double punishment”.
The third submission was that if Purdey’s case had been correctly decided, and if Dunford J had correctly increased the applicant’s sentence to reflect the criminality involved in the “non murder” matters, the Court should reduce the applicant’s re-determined sentence because of a number of errors which are now manifest in the way Judge Gallen sentenced the applicant. These were essentially the District Court Judge’s erroneous structuring of the majority of sentences as being minimum terms without additional terms.
Conversely, it was argued that, if Dunford J were entitled to approach the re-determination in the manner he did, he fell into error in that he should have adjusted the sentences downwards to some degree to reflect the fact that minimum terms and additional terms should have been set. A similar allowance should have been made by Dunford J because several of the offences for which Judge Gallen sentenced the applicant were closely associated with the murder and would normally have resulted in completely concurrent sentences with the murder in any event. That is to say, Dunford J erred by effectively accumulating the murder sentence upon these other sentences which were themselves closely associated with the murder.
There were two final attacks on Dunford J’s sentencing process. These were: first, that he should have made an allowance for the fact that a parity issue arose in relation to the manner in which the applicant had been dealt with for his escape from lawful custody in comparison with his co-offender Petty. Both offenders had escaped at the same time. Petty was serving a Commonwealth sentence. The applicant was serving a State sentence. The consequence of the applicant having been charged with a State offence for the escape, and Mr Petty having been charged with a Commonwealth offence, is that a disparity was created between the sentences that were imposed on the two offenders. This disparity gave rise to a justifiable sense of grievance on the part of the applicant. Dunford J, it was said, should have made an allowance for this factor.
Finally, it was argued that insufficient regard was had to the fact that the applicant had been held in protective custody for considerable periods of time; and might well be likely, in the future, to spend a considerable time in protection. There was a need to moderate the extent of the applicant’s re-determined sentence having regard to this factor (AB v The Queen (1999) 198 CLR 111.)
It should be noted that there were no submissions made before Dunford J in relation to the parity argument I have set out above.
Should this Court consider the submission that Purdey’s case was wrongly decided?
Purdey’s case was decided by Hunt CJ at CL in 1992. His decision was approved by a majority decision in the Court of Criminal Appeal (Regina v Purdey) in September 1993. An application for special leave to appeal to the High Court of Australia was refused on 7 December 1994. In Regina v Gary John Stephens (NSWCCA unreported, 2 November 1993) this Court reaffirmed the majority decision in Purdey namely that the words “remanded in custody for the offence” apply only to a case where the offender’s remand in custody was solely for the particular offence in question and do not apply where at the time the offender was already in custody for another offence.

The principles which establish whether this Court will depart from previous decisions and re-examine earlier decisions are clearly expressed and well known. The Court has never regarded itself as bound by its previous decisions: Regina v Johns (1978) 2 NSWLR 259 at 262, 264. Unlike the Court of Appeal, this Court has no practice of requiring the grant of leave before an earlier decision may be re-examined. It has nevertheless departed from previous decisions only with caution; and only when it is satisfied that justice seemed to require the earlier decision to be overturned. Regina v Mai (1992) 26 NSWLR 371 at 380F-G; Regina v Arnold (1993) 30 NSWLR 73 at 85.
No proposition was advanced on behalf of the applicant to support the suggestion that this Court should re-examine Purdey’s case other than the proposition that this Court should prefer the reasoning of the minority judgment of Carruthers J in Purdey.
In my opinion no sufficient reason has been advanced to warrant a re-examination of this aspect of the decision in Purdey’s case; and I am satisfied that there was no error on the part of Dunford J in dating the re-determined sentence to commence on the date when the applicant had been sentenced by Hunt J for the murder offence. His Honour correctly applied
s 13A(5) of the Sentencing Act 1989.
Has a Double punishment occurred?
As Dunford J’s reasons make clear, his Honour applied the second aspect of Purdey’s case in determining the method he would adopt in order to take into account the “non-murder offences” in relation to the re-determination of the life sentence for murder. His Honour said it was necessary to fix a sentence for the murder which reflected the seriousness of that offence and which took into account protection of the public, retribution, general and personal deterrence, as well as rehabilitation. Regard must also be had, he said, to the principle of totality, with the result that the additional term to be served for the murder would be less than it would have been if it had stood alone as a single offence and the applicant were being sentenced for it in isolation.
In relation to this aspect of his Honour’s decision, the approach taken by Hunt CJ at CL in Purdey was approved by all members of the Court of Criminal Appeal who dealt with the case on appeal. This approach was accepted as correct by this Court in the Regina v Boreland (unreported CCA 2 August 1994) and as recently as 1999: Regina v Salameh (1999) NSWCCA 300. In the latter case Wood CJ at CL at para 27 referred to a common practice among Judges re-determining life sentences in New South Wales. This practice was to take the course followed by Dunford J in the present case. His Honour said at para 26: -
“But, if there was any doubt about the matter it has been removed, in my opinion, by enactment of the 1997 amendments to the section. One of the changes was the insertion of sub-s (4A), which is as follows: -
(4A)In considering such an application the Supreme Court is have to regard to all the circumstances surrounding the offence for which the life sentence was imposed, and all offences, wherever committed, of which the person has been convicted at any time (so far as this information is reasonably available to the Supreme Court).”
His Honour went on to consider the principle of totality as it applies to this method of taking into account other offences in a re-determination application. His Honour specifically looked at the impact of the principles stated in Pearce (supra) in relation to this situation. The relevant passages are at paras 30-32 inclusive. His Honour said: -
“30.       It is beyond question that the totality principle does apply to re-sentencing under section 13A. So much has been made clear by the decision of this Court in Gary James Boreland, Court of Criminal Appeal, 2 August 1994. I am unable to see any significant difference in the approach which was favoured by Barr J in Fenech and that approved in Mill and in Boreland - that is, so long as the principle expressed is understood as one which requires an assessment to be made of the appropriate sentences for each offence, followed by a review of the manner in which the overall sentence is structured, including questions of concurrence or accumulation, in the light of the principle of totality.
31.         That principle has been subject to examination in recent times by the High Court, in particular as to the manner in which it should be applied. In Pearce (1998) 194 CLR 610 at 623, McHugh, Hayne and Callinan JJ, observed:
[45]        “To an offender, the only relevant question may be ‘how long’, and that may suggest that a sentencing Judge or appellate Court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A Judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.
[46]        Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision. It is, then, all the more important that proper principle be applied throughout the process.
[47]        Questions of cumulation and concurrence may well be affected by particular statutory rules. If, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation.
[47]        Further, the need to ensure proper sentencing on each count is reinforced when it is recalled that a failure to do so may give rise to artificial claims of disparity between co-offenders or otherwise distort general sentencing practices in relation to particular offences.”
In accordance with the principle expressed in Mill as explained in Pearce, his Honour was required to consider what was an appropriate sentence for each of the offences and then to apply the totality principle to ensure that the criminality involved in all of them was appropriately but not doubly punished.”
Two further points should be made in relation to Pearce. The aspect of double punishment which arose in the joint decision of McHugh, Hayne and Callinan JJ is set out at p 623 at para 40: -
“To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls into that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.”
Secondly, in the course of examining the situation which arose in the sentencing process under appeal in that case, their Honours referred to and restated an established sentencing principle. The relevant passage is at para 45: -
“To an offender, the only relevant question may be “how long”, and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality (Mill v The Queen (1988) 166 CLR 59).”
In my opinion, it is important to bear in mind that the sentencing process involved in the determination process under s 13A is one in which there are specific statutory requirements and restraints which affect, or are capable of affecting, basic sentencing principles. This extends to principles such as the one referred to at para 45 in Pearce. For example, sub-s (5) of 13A prevents the Court from making the re-determined minimum term cumulative on sentences already being served by the offender at the time when the original sentence was imposed. Similarly, sub-s (4A) requires the re-determining Court to have regard to all the circumstances regarding the offence for which the life sentence was imposed, and all offences, wherever committed, of which the person has been convicted at any time. Thirdly, the Court is to have regard to a number of matters set out in sub-s (9). Considerations of this kind would not normally be part of the sentencing process.
Dunford J’s reasoning makes it clear that his Honour sought to ensure that the criminality of the applicant’s “non-murder offences” was accounted for, and not ignored, in the setting of a re-determined life sentence. Dunford J was entitled to set the term of the murder sentence so that it was less than it might have been had it stood alone, in order to account for the criminality of these other offences. As Wood CJ at CL has held in Salameh (supra) at para 35, it is open to a Judge who is re-determining a life sentence under s 13A “to foreshorten the sentence for the offence of murder so as to achieve a total result that reflected all of the criminality involved, without any element of double punishment”.
In my opinion, Purdey and Pearce are not mutually exclusive. Dunford J’s approach in following Purdey’s case did not mean that he failed to follow the principles arising from Pearce. His approach complied with the principles stated in both cases. His Honour reduced the minimum term for the murder so as to account for the other offences, as required by Purdey. The principle stated in Pearce is aimed at ensuring that the criminal conduct inherent in each offence is punished appropriately. This is the same aim that can be extracted from the decision in Purdey.
No error has been demonstrated in relation to this aspect of his Honour’s decision.
Error in Judge Gallen’s sentences?
Since I have come to the conclusion that there is no occasion for this Court to revisit the principles stated in Purdey, and as I am of the opinion that Dunford J re-determined the applicant’s life sentence correctly, it is necessary to turn to the sentences for “the non-murder offences”. Leave is sought to appeal against Gallen DCJ’s sentences on the basis that errors are shown in that sentencing process. It is then argued that should such errors be demonstrated, the Court should reduce the applicant’s re-determined sentence because of such errors.
In my opinion, leave to appeal against Gallen DCJ’s sentences should be refused. There are three reasons. First, and as I have already demonstrated, Dunford J took great care to adjust, and to make proportional, the relationship between “the non-murder offences” and the minimum term of the re-determined murder sentence. He did this by significantly shortening the minimum term for the murder. In theory, his Honour, had he been sitting on appeal, might have achieved this same result by restructuring Gallen DCJ’s sentences. His Honour, however, was not sitting on appeal from those sentences, and was bound to weigh the objective seriousness of those crimes by reference to the sentences themselves. By seeking leave to appeal against those sentences, the applicant is really seeking an adjustment of sentences which have already been effectively adjusted by Dunford J. This he is not entitled to do. Moreover, the applicant’s counsel conceded during argument that the sentence imposed by Dunford J was not, in terms of assessing the overall criminality involved in all the offences, and making due allowance for the relevant subjective features, outside the range.
Secondly, I do not think that, in reality, Gallen DCJ treated the sentencing structures as academic. Gallen DCJ was required, pursuant to the provisions of s 34 of the Prisons Act 1952, to make the sentence for “escape custody” commence at the expiration of the sentence that the prisoner was serving at the time of the escape. True it is that he gave as his reason for not imposing an additional term in relation to this sentence, that the prisoner was serving a life sentence and was not entitled to apply for determination of that sentence until 1998. Nevertheless, his Honour did, in relation to the charge that the appellant stole a vehicle on 19 January 1988 at Werris Creek, structure the sentence so as to include both a minimum and maximum term. Indeed, it was this sentence which effectively set the expiration time for the minimum period.
Thirdly, Gallen DCJ extended leniency to the applicant by back dating the sentences to 29 January 1988.
These matters, together with the fact that the sentences were imposed by Gallen DCJ over eight and a half years ago, persuade me that leave to appeal should be refused. Essentially for the same reasons, I do not consider that this Court is entitled to find that Dunford J should have adjusted those sentences downwards to some degree so as to reflect the fact that minimum terms and additional terms should have been set.
In this connection it was also argued that Dunford J should have reduced the sentences imposed by Gallen DCJ to reflect the fact that those sentences were closely associated with the murder and would normally have resulted, in any event, in completely concurrent sentences with the murder sentence. As I understand it, no such submission was made to Dunford J. Moreover, the structure of the sentences was such as to make them generally concurrent, with the exception of the escape, and of the Werris Creek larceny. The sentences in relation to these two offences were the effective structuring components. The Prisons Act 1952 required that the sentence for the escape be made cumulative; the Werris Creek larceny was sufficiently removed from the murder for its sentence to be regarded as one which should be made cumulative. In any event, I do not agree that Dunford J effectively accumulated the murder sentence upon the sentences for “the non-murder offences”. He restructured the murder sentence so as to have regard to the principle of totality, and so to make allowance for the previous offences as to ensure that the applicant was punished for the criminality involved in all offences.
The Parity Argument
As I have noted above, there was no submission made by counsel for the applicant to Dunford J in connection with this issue at the re-determination hearing. It was raised for the first time on the hearing of this application. There is in my view, however, no substance in the point. Each of the offenders fell to be sentenced in connection with a different statutory regime. First, the maximum penalty in each case was significantly different. The maximum penalty for the Commonwealth offence was five years whereas the State offence carried a maximum penalty of ten years
(s 47 Crimes Act 1914 (C’Wealth); Crimes Act (NSW) s 310D). Secondly, s 16G of the Commonwealth Statute required the sentencing Court to make an adjustment in the case of the offender Petty. Additionally, s 34 of the Prisons Act 1952 required Gallen DCJ to commence the applicant’s sentence for escape at the date of expiry of the sentence he was serving at the time of the escape; whereas, in relation to Petty, the sentence commenced on the date of rearrest and charge for the offence. Additionally, it is not without significance that the prior criminal record of the co-offender Petty appears to have been less serious overall than that of the applicant. In the proceedings before Dunford J the applicant agreed, after being shown the criminal record of Petty, that it was largely one of “petty crime”. The same could not be said for the applicant’s prior record.
For these reasons, I agree with the Crown argument that the re-determined murder sentence did not incorporate an unjustified disparity between the applicant and Petty so as to warrant interference by the re-determining Judge.
Past and Future Periods in Protective Custody
I shall set out a brief history of the protective custody history of the applicant, as it appears from the material before Dunford J.
After the life sentence had been imposed on the applicant by Hunt J in September 1998, the applicant was classified A2 and went to the Goulburn Correctional Centre with this security rating. He remained in protective custody even after his temporary transfer to the Reception Prison at Long Bay Correctional Centre in about May 1991. His performance and attitude however, improved at Long Bay. He commenced a mathematics course and later became heavily involved in computer studies. He was found to be suitable for the Inmate Motivation and Attitude Development Course operating at the Industrial Centre at Long Bay in September 1992. He performed well in this programme and came out of protective custody.
By mid-1994 reports prepared for the Visiting Committee described his behaviour and performance as outstanding. He was still involved in computer studies. However, in October 1994 he was placed back in protective custody at his own request because of trouble he was experiencing with two fellow inmates. As a consequence he had lost his employment as a clerk in the Office of Assistant Superintendent of Industries.
There was a fracas at the prison in December 1994 and the applicant was subsequently charged with attempted murder and malicious wounding. There was a proposal to transfer the applicant from Long Bay to Goulburn Correctional Centre in early 1995 but the applicant deliberately inflicted wounds on himself and was transferred instead to Lithgow on 28 February 1995. Later that year the charges against the applicant were dismissed following a committal hearing.
In September 1995 the applicant was transferred to Grafton Correctional Centre with a reduced B classification.
Because it housed inmates of B and C classification only and because it was a smaller institution than other correctional centres, Grafton did not require protective custody facilities for prisoners located there. The applicant received highly favourable reports at this centre. He was able to conclude further computer programs. He was labelled “an outstanding worker” in the print shop, and a facilitator of the Young Offenders’ Programme.
Unfortunately, towards the end of 1997 the print shop closed down and there was no employment available in the Grafton Centre. It appears that about this time the applicant signed himself back into protection, apparently because he was having difficulties with other inmates. These difficulties led in turn to the authorities determining to transfer the applicant to Junee Correctional Centre.
He went into Junee Correctional Centre in about September 1997. Initially, the applicant “was not happy” at Junee. This prison was one in which all inmates were on protection. Despite this, the applicant was able to enrol in a pre-university course and to undertake courses in woodwork and welding. He was employed there in the cable factory. Towards the end of 1998 he made application for, and was being considered for, entry to a Special Care programme at Long Bay. If successful, this would lead to his subsequent re-classification and transfer to a minimum security prison in a country area where he hoped to finish his sentence after re-determination, if granted.
Dunford J had all of this material before him. In summary form, he referred to the history of the applicant’s life in prison including the periods when he was in and out of protection. Moreover, he noted the success the applicant had achieved in relation to his employment in various prisons and his success in relation to various courses he had done including, especially, computer courses.

In my opinion a fair reading of his Honour’s judgment demonstrates that it cannot be suggested that his Honour did not take into account, in fixing sentence, the protective custody history of the prisoner. His Honour made specific reference to the fact that the applicant was contemplating leaving Junee Correctional Centre and attending a Special Care course at Long Bay where he would not be in protective custody at all. Of course, his Honour was not to know whether the application would be successful; but all the evidence before him indicated there were reasonable prospects that it would be successful.
In my opinion there is no substance in this aspect of the submissions made on behalf of the applicant.
Conclusion
For the reasons I have outlined I am of the opinion that there is no merit in the applicant’s appeal. I propose the following orders: -
1.In relation to the application for leave to appeal against the sentences imposed by Gallen DCJ, that leave to appeal be refused.
2.In relation to the application for leave to appeal in relation to the sentence imposed by Dunford J on 8 April 1999, that leave be granted, but that the appeal be dismissed.
HOWIE J: I agree with Whealy J.

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LAST UPDATED: 21/12/2000