R v Main

[2009] NSWCCA 14

New South Wales
Court of Criminal Appeal

CITATION:	R v Main [2009] NSWCCA 14
HEARING DATE(S):	11 December 2008
JUDGMENT DATE:	13 February 2009
JUDGMENT OF:	McClellan CJatCL at 1; Grove J at 2; Howie J at 45
DECISION:	Crown appeal dismissed
CATCHWORDS:	CRIMINAL LAW AND PROCEDURE - Life sentences imposed prior to Sentencing Act 1989 - Total of three impositions - Two offences committed on the same occasion and the third whilst in custody serving sentence for the earlier crimes - Discussion of procedure and specification of facts when application for redetermination made - Crown appeal asserting inadequacy of resentence for second murder committed while in custody - Life sentence left in place but non-parole period of 25 years ordered - Crown contention that longer non-parole period should be set - 25 years congruent with pattern of redetermined sentences for offences of similar degree of criminality - Finding by trial judge that rehabilitation under way - Some ambiguity about finding at first instance - Assuming level of seriousness and facts contended by Crown intervention not required
LEGISLATION CITED:	Crimes Act 1900 Crimes (Administration of Sentences) Act 1999 Crimes (Sentencing Procedures) Act 1999 Criminal Appeal Act 1912 Sentencing Act 1989
CATEGORY:	Principal judgment
CASES CITED:	Pearce v The Queen 1998 194 CLR 610 R v Robinson [2008] NSWCCA 188
PARTIES:	REGINA - Appellant Robert Michael MAIN - Respondent
FILE NUMBER(S):	CCA 2008/11674
COUNSEL:	D Frearson SC with J Girdham (Appellant/Crown) A Haesler SC (Respondent)
SOLICITORS:	S Kavanagh (Solicitor of Public Prosecutions) S O'Connor (Legal Aid Commission)
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	2003/002
LOWER COURT JUDICIAL OFFICER:	Adams J
LOWER COURT DATE OF DECISION:	4 July 2008
LOWER COURT MEDIUM NEUTRAL CITATION:	R v Main [2008] NSWSC 692

CCA 2008/11674

McCLELLAN CJ at CL
GROVE J
HOWIE J

13 February 2009

REGINA v Robert Michael MAIN

Judgment

1 McCLELLAN CJ at CL: I agree with Grove J.

2 GROVE J: This is a Crown appeal asserting the manifest inadequacy of sentence. The challenge is against a decision of Adams J in an application to redetermine an existing life sentence pursuant to Schedule 1 of the Crimes (Sentencing Procedure) Act 1999, whereby his Honour declined to set a specified term for the sentence but set a non parole period of 25 years. Mr Frearson SC, Deputy Director of Public Prosecutions, who appeared with Ms Girdham for the appellant informed the Court that it was not sought that the order fixing a non parole period be set aside in its entirety so as to effectively imprison the respondent for his natural life but it was sought that there be a non parole period fixed greater than 25 years. In an exchange with the Bench Mr Frearson suggested that an order which “adds a number of years, perhaps four, to the non parole period” would be appropriate.

3 The background, which includes a multiplicity of serious crimes having been committed by the respondent is complicated and it would be less than candid not to state that some imprecision which permeates the proceedings at first instance gave some initial concern. Having regard to the applicability of the Criminal Appeal Act 1912 (pursuant to clause 8 of Schedule 1) there exists a power of remitter if such is needed however, as acknowledged by Mr Frearson and for reasons to which I will turn, the issue for this Court reduced into a comparatively narrow compass and the appeal can be determined despite the existence of some imprecision.

4 The respondent was born on 22 April 1955. His first recorded appearance was before a Children’s Court in 1971 for stealing a motor vehicle. On 3 September 1980 he was convicted at Sydney District Court for supplying a prohibited drug and sentence was deferred upon his entering a recognizance to be of good behaviour for three years. On 26 February 1982 he was convicted, again at Sydney District Court, of armed robbery and he was called up for breach of the recognizance which he had earlier entered. For the armed robbery he was sentenced to four years hard labour with a non-parole period of one year commencing on 24 February 1982 and for the offence upon which he was called up, to two years hard labour with a non-parole period of twelve months.

5 It follows that the parole period was current when the respondent committed the next three offences although he was obviously in custody when he committed the third of them.

6 The respondent was arrested on 29 June 1983 and charged with the murder of John Mitchell on 18 June 1983 at Whale Beach and with committing on the same date and at the same place an assault upon and an attempted robbery of a quantity of cocaine from Bruce Kitamura whilst the offender was armed with a revolver. That revolver was used to kill Mr Mitchell. An alleged co-offender was arrested on 2 July 1983.

7 On 27 November 1983 the respondent was in custody at 12 Wing of the Metropolitan Remand Centre at Malabar. Another inmate was Anthony William Cameron who died on that day as a result of narcotic (heroin) poisoning. As I shall later describe, Cameron was the victim of the second murder committed by the respondent.

8 In November 1984 the respondent and the alleged co-offender were tried at Central Criminal Court before O’Brien CJ of Cr D and a jury for the offences committed at Whale Beach in 1983. The alleged co-offender was acquitted by the jury but the respondent was found guilty on both counts. On 11 March 1985 the respondent was sentenced to penal servitude for life on each count. O’Brien CJ of Cr D noted the recommendation by the jury for leniency and expressed his view that there were two reasons for it. First, he said that he had observed an emotional reaction by some of the jurors at the time the verdicts were returned and, second, he noted that assertions had been made by the respondent that he had “accidentally shot a drug dealer”. In fact Mr Mitchell and his fiancée were innocent house guests staying overnight on their way to Bellingen and they knew nothing of the clandestine activity of drug dealing which Kitamura conducted at the premises. An appeal by the respondent against the conviction and sentence was dismissed in this Court on 2 May 1986.

9 In the meantime, on 28 February 1986 the respondent was charged with murdering Anthony William Cameron at Malabar on 27 November 1983. He was tried before Enderby J and a jury and in April 1987 he was convicted. On 28 May 1987 his Honour imposed upon him a further sentence of penal servitude for life. An appeal was dismissed by this Court on 8 April 1991.

10 It should be observed that, absent significant diminution of culpability by mitigating circumstances, pursuant to the then s 19 of the Crimes Act 1900 penal servitude for life as punishment for murder was mandatory.

11 Following the passage of the Sentencing Act 1989 it became possible, subject to conditions, for prisoners serving existing life sentences to apply for the setting of determinate impositions. This procedure was similar to and has now been replaced by Schedule 1 to the 1999 Act. As above recounted, the respondent was in custody serving three life sentences.

12 The respondent made an application which was refused by Allen J on 18 August 1995. In expressing his reasons his Honour referred to the murder at Malabar as “a cold, calculated, deceitful assassination”. He concluded that it would not be safe to release the respondent into the community and that he had not been at that point rehabilitated, however he added that there were some signs that progress towards rehabilitation may be underway. He anticipated that at a renewed application there might be a better opportunity to measure any rehabilitation.

13 A further application was heard and dismissed by Adams J on 19 November 1999. His Honour ordered that the respondent be restrained from making another application for a period of two years. He found that the killing of Mr Mitchell fell within the category of worst cases of murder, that the killing of Cameron was “a cold blooded, pre planned murder for reward”. He expressed the opinion that were he then resentencing the respondent he would have made an order so as to require the respondent to serve the term of his natural life, but he was mindful of the statutory requirement to consider matters, especially progress towards rehabilitation, with the benefit of hindsight. Although he considered that the respondent had shown no remorse, he found that it was possible to discern the commencement of genuine rehabilitation.

14 A new application came again before Adams J on 28 March 2008. On 4 July 2008 his Honour redetermined the sentences imposed for the murder and robbery at Whale Beach and set a non-parole period in respect of the murder at Malabar. For the murder of John Mitchell the respondent was resentenced to a term of twenty six years imprisonment commencing on 29 June 1983 and expiring on 28 June 2009 with a non-parole period commencing on 29 June 1983 and expiring on 4 July 2008. For the assault whilst armed and the attempted robbery of Kitamura the respondent was resentenced to a total term of twenty five years two months imprisonment commencing on 29 June 1983 and expiring on 28 June 2008 with a non parole period commencing on 29 June 1983 and expiring on 4 July 2008.

15 This appeal does not challenge the redeterminations of the sentences in respect of the murder of Mr Mitchell and the attempted robbery of Kitamura. His Honour expressed as his reason for departing from the statutory proportion between total term and non-parole period in these resentences that he did not consider it appropriate to impose sentences which would substantially exceed the period which the respondent had already served. Although no challenge against these redeterminations is made, the commission of the offences remains relevant.

16 Clause 3(1) (b) of Schedule 1 provides:

“3 (1) In considering an application in relation to an existing life sentence, the Supreme Court is to have regard to:
(a) ….
(b) all offences, wherever and whenever committed, of which the offender has been convicted……”

17 Adams J observed that the sentence of life imprisonment originally imposed for the offence involving Kitamura was most unusual. It would have been unlikely that it would have been imposed if that offence had been committed in isolation but in 1985 it was not unusual for sentences for multiple offences to reflect criminality in total, a practice which is now contrary to the approved approach of individual assessment specified in the later decision of the High Court in Pearce v The Queen 1998 194 CLR 610.

18 In relation to the murder of Cameron which is the subject of this appeal, earlier mention was made to what was referred to as imprecision. It was the Crown case that the respondent had been approached by a fellow prisoner named Lo Surdo who feared that Cameron was going to give evidence against him at a forthcoming trial and the respondent agreed to murder Cameron in return for payment by way of a pound of heroin. On 27 November 1983 the respondent provided Cameron with a substitute which purported to be but was not in fact heroin. Cameron either snorted or injected the substance, which of course did not have the desired effect and when Cameron complained the respondent then gave him some heroin of very high purity, which Cameron then either snorted or injected with fatal consequence. Some time after Cameron’s death the respondent in conversation with another prisoner, Crawford, and later again in a conversation with a former prisoner Murray, who was visiting him, said that he had killed Cameron for Lo Surdo. These assertions by the Crown were recited in a document entitled “Statement of Facts” prepared and served on the respondent in accordance with the procedure which has been adopted for dealing with applications of this kind. A Notice of Reply to the Statement of Facts, signed by a solicitor acting for the respondent stated, inter alia, that “the applicant (respondent) accepts that the Statement of Facts sets out the Crown case.” That language obviously avoided an acknowledgement of the truth of the Crown allegations. Senior counsel for the respondent pointed out that the Statement of Facts was couched not only in terms of Crown allegation but also recounted extracts from the unsworn statement at trial of the respondent, in which he denied the conversations with Murray and Crawford and said that he had no transaction with Cameron and was not responsible in any way for his death.

19 Although the documentation of the respondent was in terms abovementioned, at the commencement of the hearing before Adams J senior counsel stated that the “notice of reply indicated that the applicant accepts the statement of facts set out in the Crown case and appended the report of Professor Bell and the report of Dr Khan”. Clearly that reference to the statement of facts must be understood as excluding the recitation relating to the respondent’s case at trial which would traverse the verdict. However, some obscurity was later introduced when, in the context of discussion about the “contract” to kill Cameron and the disputation by the respondent recorded for example in an interview with Dr Khan counsel said “and we say there is a key distinction here because the applicant (respondent) is not accepting the Crown case. He is accepting that he told lies and that put him where he is today and he told lies about his involvement with Mr Cameron’s death.”

20 The intent of the procedure requiring the production of a Statement of Facts is obviously to enable a judge being required to consider redetermination to have a foundation of facts when it is inevitably going to be many years after the events when an application can be made and it would be impossible to re-assemble witnesses. Nor was the procedure designed to allow retrial of the issue of guilt. I am conscious that there are now few pre-1989 impositions of life sentence which have the potential to be brought before the Court for redetermination, but I have detailed what happened in this instance in order to specify that the documentation should not be drafted so as to enable avoidance style of “pleading”. It is plain from the construct of the schedule that the issue of guilt is not to be retried and if it is intended to dispute collateral facts not traversing the verdict, the ambit of the dispute should be delineated. What happened in the present case demonstrated why as a matter of practicality this needs to be done.

21 Obviously the respondent could not, and did not, rely upon his unsworn statement at trial which amounted to a denial of guilt. On 18 August 1995 he gave evidence before Allen J but this was limited in its focus essentially to matters of post conviction conduct and the likelihood of rehabilitation.

22 However, on 28 March 2008 the respondent again gave evidence, on this occasion before Adams J, and his evidence in chief included:

“Q. When you conducted your trial you were in complete denial?
A. Yes.
Q. You were in 12 wing on that day, where (sic) you?
A. Yes I was.
Q. And you were using heroin?
A. Yes I was.
Q. And you were the person, one of the people in the gaol who had a syringe?
A. Yes I was.
Q. And it was your syringe that was responsible for Mr Cameron’s death?
A. Yes it was. I take responsibility for that foolish action.
HIS HONOUR:
Q. What foolish action?
A. Having that syringe and I shared it with him. That was the direct cause of his death.
HAESLER:
Q. Do you tell his Honour that so far as the allegations by the prisoner informants and informers that you still can’t accept what they say as being the truth either?
A. No, no. I think they said what they thought would assist him to get out of gaol which couldn’t have been further from the truth.
Q. But by telling lies and going into denial back then you have to accept, don’t you, that you can’t reverse time?
A. No, I accept the jury’s verdict and I am responsible for the death of Anthony Cameron.
Q. And you are, in a way--?
A. Yes.
Q. -- even on your own version of events?
A. Yes . ”

And in cross examination:

“Q. Mr Main, just a moment ago you spoke about the death of Mr Cameron?
A. Yes.
Q. And you said that you felt responsible. What did you mean when you said that you felt responsible?
A. If I had not let him use the syringe he would not have had the injection that killed him.
…..
Q. What do you think about your responsibility?
A. It’s hard to explain. I feel responsible. If I hadn’t done that he would still be alive today probably.
Q. Are you saying you feel responsible because you were reckless in what you did?
A. Yes in lending him the syringe and using the heroin with him. It was a direct cause of his death. ”

23 That evidence, if accepted and despite the equivocal acknowledgement of “responsibility”, contradicted the respondent’s guilt of murder whether intentional or as a result of reckless indifference. In his reasons Adams J, under a heading “Facts” summarized the Crown allegations above set out, referred to the respondent’s denial in his unsworn statement at trial and concluded “the jury accepted the evidence of the informers and the applicant (respondent) was convicted.” His Honour later stated that “the applicant (respondent) gave some brief evidence about his involvement in the Cameron death, saying that he shared the syringe with him and that this was the direct cause of his death.”

24 The Crown correctly pointed out that this version of “sharing the syringe” is contradictory of the evidence of Crawford and Murray that the respondent had said that he had done the killing “for Charles Lo Surdo”. Although it is imprecise, his Honour’s statement (which appears in the extract which is about to be cited) that he could scarcely evaluate the respondent’s present evidence as against that of the informants (Crawford and Murray) is taken to indicate an acceptance of the latter for the purpose of sentence redetermination.

25 Adams J stated:

“The particular substantial aggravating matters here are that this was the second murder committed by the applicant and that it appeared that the applicant acted at the instance of another criminal to prevent the victim from giving evidence. A complicating feature is that the applicant has now given a sworn account of how Mr Cameron met his death. It will be recalled that the Crown case, which relied on prison informants, was that the applicant had told them that Mr Cameron was killed in order to prevent him from giving evidence on behalf of the Crown in an impending prosecution. The accused’s initial denial that he had been in 12 Wing at the relevant time was contradicted by prison officers who placed him there at the material time. If the jury accepted their evidence and concluded that, indeed the accused was present despite his earlier denial, and considered that his later acceptance that he was there was opportunistic they may well have rejected the whole of his account for that reason. Moreover, in accepting that the applicant admitted his involvement in the death of Mr Cameron, as asserted by the informers, it was not necessary for them to have positively accepted the whole of that evidence which, having regard to its character, was inherently unreliable. It is scarcely possible for me to evaluate the applicant’s present evidence as against that of those informants.
At the same time, the applicant did not explain in his evidence here – although he was not asked either by his own counsel or by the prosecutor – how it was that Mr Cameron died from an overdose or whether he was aware of Lo Surdo’s apparent interest in the victim’s demise – and one can think of other issues upon which (if this matter were really controversial) the applicant might have been cross-examined. Certainly, he made himself available for that cross-examination. I think it implicit in his evidence, and he was not cross-examined on this aspect, that he provided the syringe but not the heroin. At the same time, this account is far from convincing and, of course, he has a motive for minimising his involvement. Nevertheless, I think I should accept the submission of Mr Haesler SC for the applicant that, without going behind the verdict, there is room for doubt that the death of Mr Cameron was quite the cold, calculated, planned murder of a would-be witness as I had previously thought. I am also minded to accept that the applicant was himself affected by having taken heroin at the time he shared his syringe with Mr Cameron. ”

26 I would comment in passing that I would not, with respect, accept a proposition that the evidence of a prison informer is necessarily inherently unreliable. A warning that evidence from such a source may be unreliable is required at common law and pursuant to statute, but this is only required if the evidence is unfavourable to an accused. It demonstrates that such evidence should not be categorized as inherently unreliable that such a requirement is absent in the event that the evidence is favourable to an accused: R v Robinson [2003] NSWCCA 188.

27 Although his Honour’s expression is inconclusive, his reference to the implication in the respondent’s testimony that he supplied the syringe but not the heroin is contradictory of his Honour’s apparent acceptance of the Statement of Facts which included the statement that, “when Cameron complained that the substance did not have the desired effect the applicant gave the victim the pure heroin which once again he either snorted or had injected.” It must be accepted that the respondent supplied the heroin to Cameron and it is on that basis that the alleged inadequacy of sentence should be gauged.

28 In this Court senior counsel for the respondent expressly accepted that he could not resist the proposition that the killing of Cameron was a “worst case murder”. That could hardly be the situation if the respondent was simply “responsible” for sharing a syringe in the fashion which he described in the testimony to which his Honour referred. But the evidence was not inconsistent with the proposition that the respondent was himself affected by an injection of heroin and that there was room for doubt that the respondent’s crime was “quite the cold, calculated, planned murder of a would be witness” as he had previously thought when dealing with the earlier application.

29 The Crown submitted that Adams J underestimated the objective gravity of the offence. As is indicated in the foregoing, there are included in his Honour’s remarks observations which suggest an assessment of some matters in a more favourable light for the respondent than the Crown case of killing for the promised reward of a parcel of illicit drug. Whilst greater precision and therefore clarity would be desirable, an exercise to attempt to reconcile the assertions of the respondent reflecting a lesser culpability with the higher culpability contended by the Crown is unnecessary if it be the case that intervention by this Court is not called for even though the Crown case is accepted.

30 It was also submitted that his Honour placed too much weight on the prospect of rehabilitation. It is not contended that it was erroneous to perceive some such prospect. The weight which is given to something which is predicted but cannot be determined because of its inherent future nature is obviously a matter upon which estimates may differ. The assessment by Adams J is not shown to be wrong. In any event, as later reference will show, the actual release of the respondent will be conditional upon demonstration, inter alia, to the parole authority that the respondent has at a time in the future when it is a matter for deliberation that he can lead a normal, lawful life, in other words that rehabilitation is achieved as distinct from forecast.

31 The categorization of the killing in the worst case class is reflected in the determination to leave the life sentence in place. Whilst this Court is not bound by concessions such as that in the exchange earlier mentioned, the issue effectively reduced to whether this Court should intervene to increase the non parole period for, in accordance with it, something in the order of four years. Although the foregoing reveals what I have described as imprecisions and some obscurity concerning the conclusiveness of findings at first instance, the issue as articulated by the Deputy Director of Public Prosecutions was appropriate and this Court is in a position to rule upon it. That is undertaken on the assumption of the correctness of the Crown allegations of fact, critically that the killing was performed for a “contracted” payment of a pound of heroin.

32 For comparison purposes counsel have helpfully produced a schedule of redeterminations of pre-1989 life sentences made either pursuant to s 13A of the 1989 Act or Schedule 1 of the 1999 Act. This schedule refers to the setting of non-parole periods (or expressions of minimum term) in connection with a life sentence which is to remain in place, thus exposing an offender to the potential of revocation of parole during the term of his or her natural life.

33 It suffices to refer briefly to only some of these to demonstrate that the non-parole period set by Adams J is not inconsistent with sentencing pattern and appears to be within the range of the sound exercise of sentencing discretion. If that be so the ground of appeal that it was manifestly inadequate in terms of the non-parole period must therefore fail.

34 Some of the relevantly comparable instances which have been scheduled are as follows:

35 McCafferty (15 October 1991). The offender stabbed or shot three strangers on different occasions. He had some mental problems but a defence of mental illness was rejected at trial and diminished responsibility was not available. On redetermination a non-parole period of 20 years.

36 Rees (12 August 1993). The offender shot two men during a robbery as well as a police officer who came to make enquiries and he wounded a second officer who was attempting to arrest him. He was convicted on three counts of murder and one count of malicious wounding with intent to avoid apprehension. On redetermination a non-parole period of 27 years.

37 Hitchins (12 June 1993). The offender robbed and stabbed a taxi driver with co-offenders. Later he robbed another taxi driver with a different co-offender placing the victim in the boot of the vehicle and setting fire to it. Convicted on two counts of murder. On redetermination a non-parole period of 24 years.

38 Lyttle (6 March 1996). The offender set fire to a hotel killing fifteen people and injuring twenty two. Indicted and convicted on four counts of murder. Evidence showed that he had lit four other fires at about the same time. On redetermination a non-parole period of 28 years.

39 Robinson (28 November 1997). The offender shot two people, a seventy four year old woman and her fifty three year old son. He did this for financial gain. Whilst in custody he was convicted of conspiracy to murder a witness in a forthcoming trial. On redetermination a non-parole period of 16 years.

40 Picknell (10 November 1998). The offender participated in a raid in company upon a boatshed. Both the caretaker and a police officer who came to investigate were shot dead. The offender in the course of time was released on licence but licence was revoked and he was returned to custody. Upon redetermination for sentences on two counts of murder a non-parole period amounting to approximately 24 years was set.

41 Constantiou (4 June 1999). The offender committed a series of robberies on older men, three of whom died as a result of mugging. Some of the offences were committed in company and on one occasion by the offender alone. A redetermination at first instance of a life sentence with a non-parole period of 30 years was varied on appeal to a total term of 35 years with a non-parole period of 25 years.

42 In addition to that material the Court was supplied with a tabulation of what were described as redeterminations in respect of “contract/gangland killings”. All of them can be distinguished from the situation of the respondent in that they related to single offences but in no case was a non parole period exceeding 25 years imposed and this applied to only two of them. In most of these cases the non-parole period was considerably less than 25 years.

43 It is important to stress that the high level of criminality exhibited by the respondent in his multiple offences remains reflected in the maintenance of the head term of imprisonment for life. The specification of a non-parole period merely sets a date of eligibility and does not imply a probability of release. The setting of a non-parole period establishes only a date upon which release is possible. Whether actual release in fact occurs is dependent upon a decision of the parole authority which is obliged pursuant to s 135 of the Crimes (Administration of Sentences) Act 1999 not to make an order for parole unless it is appropriate, having regard, inter alia, to the need to protect the safety of the community and the likelihood of the respondent being able to adapt to normal lawful community life. It is also obvious, but if the respondent is granted parole and breaches any of its conditions he is liable to be returned to custody at any time during his lifetime, having regard to the over-arching and remaining indeterminate head sentence.

44 The non-parole period is compatible with those set for crimes of a similar level of seriousness to those of the respondent. Even if what have been referred to as imprecisions in the remarks on resentence by Adams J should be categorized as error, this Court retains a lively discretion to dismiss a Crown appeal contending inadequacy of sentence. In all the circumstances I would, if required, invoke that discretion and dismiss this appeal.

45 HOWIE J: I agree with Grove J.

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