R v Page

[2002] NSWSC 1067

CITATION:	Regina v Page [2002] NSWSC 1067
CURRENT JURISDICTION:	Common Law Division Criminal List
FILE NUMBER(S):	SC L0002/01
HEARING DATE(S):	25/10/02
JUDGMENT DATE:	15 November 2002
PARTIES :	Regina Garry John Page (Appl)
JUDGMENT OF:	Kirby J

COUNSEL :	W Dawe QC (Crown) C Craigie SC/Ms C Loukas (Appl)
SOLICITORS:	S E O'Connor (Crown) W Hutchins (LAC)
CATCHWORDS:	CRIMINAL PRACTICE & PROCEDURE - Application for Determination of Life Sentence - Change in penalty - Whether Court obliged to give benefit of change - Is the redetermination a new sentence?
LEGISLATION CITED:	Crimes Act, 1900 Crimes (Sentencing Procedure) Act, 1999 Drug Misuse and Trafficking Act, 1985 Prohibited Weapons Act, 1989 Sentencing Act, 1989
CASES CITED:	R v Page (1977) 2 NSWLR 173 Veen v The Queen [No 2] (1987-88) 164 CLR 465 R v Lanigan (CCA, unreported, 31 August 1992) R v Dennis (CCA, unreported, 28.10.92) R v Purdey (1992) 65 A Crim R 441 Samuels v Songaila (1977) 16 SASR 397 R v MJR (2002) 54 NSWLR 368 R v Cafe (Supreme Court, unreported, 6.9.91) R v Malcolm (1991) 58 A Crim R 148
DECISION:	Ref para 76

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

DAVID KIRBY J

Friday 15 November 2002

L0002/01 - REGINA v Garry John PAGE

JUDGMENT

1 KIRBY J: On 7 October 1976 Garry John Page (the applicant) was found guilty of Wounding with Intent to Murder (s27 Crimes Act, 1900). That offence then carried a maximum penalty of life imprisonment. On 15 December 1976, Mr Justice Maxwell sentenced Mr Page to life imprisonment. Mr Page makes application to this Court for the determination of a term of imprisonment and a non-parole period (s44(5) Crimes (Sentencing Procedure) Act, 1999; Schedule 1).

The Crime

2 The crime was committed shortly after midnight on 12 April 1976. The circumstances are not in doubt. They are described in a Statement of Facts prepared by the Crown, which Mr Page accepted.

3 Mr Page was born on 26 July 1945. When the crime was committed, he was 30 years old. He occupied a room at the Globe Hotel at Albury. He had been at the hotel for a number of weeks. Mr Mirko Stojic was also staying at the hotel. Mr Stojic had come to Australia from Yugoslavia sixteen years earlier, attracted by tunnelling work associated with the Snowy Mountains Scheme. Mr Page had seen Mr Stojic at the hotel. However, he had not met him.

4 Also at the hotel was a Mr James Huntley. Mr Huntley knew Mr Stojic. They had, on one occasion, shared a drink.

5 On the evening of 11 April 1976, Mr Page and Mr Huntley went to a club in Albury. They had a meal. They also consumed a significant quantity of alcohol. There was a discussion about "killing some cunt". Mr Page ultimately got into a fight. He was asked to leave the club. He did so with Mr Huntley, returning to the Globe Hotel at about 10.00 pm.

6 Mr Stojic was in the habit of leaving the key to his hotel room in the door. Mr Page and Mr Huntley entered Mr Stojic's room. They went through his possessions, intending to steal anything of value. There was, in fact, nothing of value. Mr Page carried a large hunting knife in his boot. He used the knife to slash Mr Stojic's sandals and his clothing. Mr Page and Mr Huntley then went to the room next door, where the door was open. There was a couple drinking. Mr Page and Mr Huntley joined the couple and began drinking fortified wine.

7 At about midnight Mr Stojic returned to the hotel. He found his damaged clothing and sandals. He went to the gathering next door to see whether they knew what had happened. He complained about his clothing. Mr Page became very angry. In a Record of Interview made at 4.00 am that morning, Mr Page said this: (Q.50)

"I thought, fuck him, I'll do more than cut his shoes."

8 An argument developed. Mr Stojic retreated to his room. He locked the door. Mr Page and Mr Huntley went after him. Mr Huntley, in his Record of Interview, described how he started kicking the door, yelling at Mr Stojic and calling him a wog. Mr Huntley observed that his behaviour appeared to excite Mr Page. Mr Page started smashing the panel to the door. Ultimately he plunged the hunting knife through the broken door, striking the victim, severely cutting his lip and damaging his teeth.

9 Mr Stojic abandoned the door. Mr Page and Mr Huntley then forced their way into the room. Mr Stojic was trapped. He retreated inside the room as far as he could. Mr Page pursued him, later acknowledging that he set out to kill Mr Stojic. He forced him against the wall, inflicting a long and severe wound to his head, injuring his skull. The victim tried to take hold of the knife, sustaining severe injuries to his wrists and hands. Mr Page continued to stab Mr Stojic. Mr Stojic's lung was punctured. He received a deep wound to the abdomen, penetrating the bowel and intestines. The intestines protruded through the wound.

10 Mr Stojic fell to his knees. Mr Huntley told Mr Page to stop, that the victim was finished. Mr Page believed that he had killed the victim. The victim, remarkably, took advantage of this pause to get to his feet and flee, leaving a trail of blood.

11 Mr Stojic sought help from a friend. He was taken to the Albury Base Hospital. He underwent emergency surgery. But for that surgery, he most certainly would have died.

12 Mr Page, meanwhile, went to bed. A few hours later he was arrested by the police and interviewed. He readily acknowledged his responsibility for the injuries to Mr Stojic. He was asked whether he was affected by intoxicating liquor. He responded with these words:

"A. Never had a real lot to drink, but I had a bit."

13 He was later to say that he had consumed a considerable amount of alcohol. By normal standards, he certainly had. Nonetheless, he plainly knew what he was doing.

14 The police sought to understand his motivation. He did not know Mr Stojic. He had not met him. He was not even aware of his name. In his Record of Interview, Mr Page said this:

"A. I've seen him in the pub three or four times and he's a big weak cunt.
Q44. Why do you refer to this person as a 'big weak cunt'?
A. All Yugo's are, I don't like Yugo's. I thought about killing him before tonight. I only thought about it once before."

15 He was asked whether he had ever had an argument with this man. He said this: (Q62)

"A. No, never. But I don't muck around. If he hadn't come in going crook about his sandals and things I wouldn't have tried to do him in. That's why I tried to kill him. I was only going to go to sleep, he should've kept his mouth shut."

16 He later added: (Q74)

"A. I just thought fuck him, he's screaming about his sandals and I thought then that I'd kill him. After I stabbed him in the mouth and saw the blood it turned me on.
Q75. Will you tell me what you mean when you say it turned you on?
A. I wanted to see some more."

17 Mr Page was asked whether he wished to say anything further. He responded with these words: (Q76)

"A. Nothing, it doesn't worry me if he lives or dies, it's going to be the same result."

The Sentence Proceedings

18 Before Mr Page was sentenced, he was examined by a number of psychiatrists. He provided each with a history. The accounts he gave of his early life were not always consistent. Nonetheless, the broad picture emerged.

19 Mr Page was a quarrelsome child. He had an awkward relationship with his father. He left school at the age of 16. Shortly thereafter, in September 1961, he was charged with stealing. He was placed on a 12 month good behaviour bond. He obtained employment intermittently, experiencing long periods of unemployment. Mr Page told psychiatrists that he supported himself by shoplifting. He said he had never been caught.

20 Mr Page married for the first time at the age of 19. His wife was 16. The marriage was short lived. He married a second time in about 1973. That marriage was also short lived.

21 Mr Page was described by Professor Kiloh, Professor of Psychiatry at the University of New South Wales, as "abnormally aggressive since at least the age of 14 years", especially after alcohol. He enjoyed fighting. He regularly became involved in street fighting and hotel brawling.

22 However, Mr Page appears to have had some insight that his behaviour was unacceptable. He feared that he may kill someone. He, indeed, threatened to kill his brother in law, and threatened his father with a knife. At his father's urging, he saw a psychiatrist. On 29 October 1970, Mr Page became a voluntary patient at the Callan Park Mental Hospital. He remained at the hospital until 9 November 1970, when he discharged himself. The hospital diagnosed a personality disorder and alcoholism.

23 In the years that followed Mr Page's aggression did not abate. On 8 July 1971, he was charged with assault occasioning actual bodily harm. In January 1972, he was committed for trial. Ultimately, in 1973, Mr Page was placed upon a good behaviour bond for three years.

24 However, before that matter was resolved, Mr Page had a further fight with his father, who was almost killed. In February 1972, Mr Page wrote to his father, both threatening to kill him and pleading for help. Arrangements were made for him to be admitted once more to the Callan Park Mental Hospital on 8 March 1972. He remained at the hospital until 7 June 1972. He came under the care of Professor Kiloh. Professor Kiloh made a diagnosis of aggressive psychopathy. He prepared a report, which included the following:

"This is an abnormally aggressive and dangerous man. I felt that his aggression was such a disability to him that it merited the operation of bilateral amygdalotomy which is helpful in such patients."

25 The operation was undertaken. Mr Page told Dr Oscar Schmalzbach in September 1976 that he regarded the operation as a success. He lost "all the tension and desire for violent behaviour". However, he also told Dr Arnaud Reid, a consultant psychiatrist to the Prison Medical Service, that he saw the operation as a disaster. It had affected his memory. After the operation he felt scared, like a coward. Dr Reid provided the sentencing Judge with the following bleak opinion:

"8. There is little doubt in my mind that Page is a grossly aggressive psychopath who has had an amygdalotomy which whatever its fault, does appear to have reduced his aggression to a considerable extent. However, it has not reduced it to the extent of making him harmless as his present conviction shows. That the operation may not have been so successful as could be wished for is also shown by this man's aggressive manner and his tendency to take offence very easily. I would personally still regard him as being an aggressive person in spite of the operation."

26 Dr Reid added:

"9. As far as the future is concerned, he may be alright and behave himself, but obviously the disinhibiting effect of alcohol is likely to cause further trouble if he returns to drinking heavily as seems probable in view of his past form."

27 Dr Reid saw no value in further psychiatric treatment.

28 In a report of 9 December 1976, shortly before the sentence was handed down, Dr Reid reaffirmed his view in these words:

"As I stated in my former psychiatric reports, he is a confirmed psychopath, who is most unlikely to respond to any available type of psychiatric treatment.
I fear therefore that there is a grave risk of his committing similar offences if released."

29 On 15 December 1976, in his remarks on sentence, Maxwell J accepted Dr Reid's view. His Honour said this:

"I am satisfied that he is a person who has a personality disorder and when he drinks he is unable to restrain his impulses to kill or to do serious bodily harm, and he will always be likely to commit an offence again."

30 His Honour added:

"I am concerned to protect the community from risk by reason of this aggressive psychopath being released until such time as the appropriate authorities are satisfied that this can be done with safety."

31 His Honour sentenced Mr Page to penal servitude for life.

The Court of Criminal Appeal

32 An application for leave to appeal against the severity of the sentence came before the Court of Criminal Appeal on 15 September 1977 (Street CJ, O'Brien and Carmichael JJ). The Chief Justice said this, referring to the argument of counsel then appearing for Mr Page (R v Page (1977) 2 NSWLR 173): (at 174)

"The main thrust of Mr Foord's argument on this appeal is that, in a matter not otherwise calling for the maximum sentence, an indeterminate life sentence has the vice of exposing the person suffering such a sentence to administrative rather than judicial control in the matter of the ultimate length of his incarceration."

33 His Honour added:

"I am prepared to assume for the sake of analysing this argument (without being taken to assent to the assumption) that this case did not call for the maximum sentence. It must be conceded at once that the indeterminate life sentence passed for reasons of public safety in a case not otherwise calling for life does involve an inroad upon an important aspect of the judicial administration of the criminal law: insofar as it commits to the Crown authorities the determination of the ultimate point of time at which it can be seen to be safe in the interests of the community to free the person concerned from custody, it introduces at a critical point a non-judicial decision governing the liberty of the subject."

34 The Chief Justice ultimately determined that, within carefully circumscribed limits, such a sentence was available where a criminal could be seen to be dangerous to the community. Other members of the Court agreed. O'Brien J thought, in any event, that the offence was the worst of its kind and therefore merited the maximum fixed by statute, life imprisonment.

35 This decision pre-dated by a decade Veen v The Queen [No 2] (1987-88) 164 CLR 465. There the Court, by majority, determined that a sentence should not be increased beyond that which is proportionate to the crime, in order to protect society from the risk of re-offending. There is, in other words, no warrant for a sentence which amounts to preventative detention. On the other hand, in fixing an appropriate sentence, the Court may have regard, amongst other matters, to the protection of society.

Release on License

36 After Mr Page had served 8 years imprisonment, the Release on License Board (the Board) asked, in May 1984, for a psychiatric assessment of Mr Page. He was examined by Dr Fischer, psychiatrist. Dr Fischer found no evidence of psychiatric illness. He said that Mr Page suffered from a gross personality disorder. He nonetheless recommended a trial within a minimum security institution, with a view to release on day leave if his behaviour were satisfactory.

37 The Board did not immediately embrace that recommendation. Instead, it resolved to reconsider Mr Page's application for reclassification once he had completed a period of industrial training. In April 1985 Mr Page began a course in bricklaying.

38 At about this time Mr Page again saw Dr Arnaud Reid. Dr Reid added his voice to those recommending reclassification. On 26 March 1985, Dr Reid sent a report which included these words:

"I interviewed Page again today and found a vast difference from when I saw him last. He was previously arrogant and self-righteous, and he is now co-operative, friendly and reasonable. He can argue his own case very fluently and I am convinced now that he is being sincere in what he says.
Apparently, two things have changed his life ... One is the fact that he has been a staunch member of AA and has realised that most of his past offences were related to alcohol. He has also formed an affectionate relationship with a woman visitor and this has also given him motivation to change his mind about his past way of life.
I must repeat that I am most impressed with this man's change for the better and I note that he is not in any kind of trouble at all in the gaol for many years. I think it would be therefore beneficial to him and ultimately to the community for him to be granted a much lower security rating and be given more freedom in order that he can prove himself worthy for release in the not too distant future ... I think that if he is given a chance now, it is likely that he will cause no further trouble and may even become an asset to the community."

39 Mr Page made substantial progress in his trade. In December 1985 his classification was reduced from the highest classification, "A", to a lesser classification, "B". The following year it was further reduced to "C2". In July 1987, approval was given for Mr Page to participate in the Work Release Programme.

40 Whilst on work release, however, Mr Page was observed entering licensed premises. He was then removed, for a time, from the Work Release Programme. Later, he was allowed to attend courses outside the gaol two nights a week at various educational institutions.

41 In August 1988, Mr Page applied for Release on License. The Board obtained a report from Dr Reid, dated 30 November 1988. Dr Reid said this:

"There is no doubt at all that this man is a very different man from the one I saw and reported on during his first years in gaol. He appears to be free of aggression now and anxious to be usefully occupied. I think that he is a reasonable prospect for release and is unlikely to be a danger to the community."

42 The Board recommended that Mr Page should re-enter the Work Release Programme. In the meantime it sought a second opinion from Professor Gordon Parker, Professor of Psychiatry at the University of New South Wales. On 8 November 1989, Professor Parker said this:

"In conclusion, I do not believe that the psychosurgery is a relevant issue and I believe that his past history of alcoholism has been corrected as well as one could possibly wish during the last decade. Despite noting some idiosyncrasies of personality and speech pattern, I do not believe that either of these indicate substantive concerns that should prevent his release from prison."

43 On 19 July 1989, the Board recommended Mr Page's release on license, subject to a number of conditions. The conditions included supervision by the Probation and Parole Service, and that he refrain from entering licensed premises. That recommendation was accepted. On 28 August 1989, Mr Page was released from custody, having spent 13 years 4 months and 16 days in custody since his arrest on 12 April 1976.

Life After Release

44 After release Mr Page found it difficult to adjust, as you would expect after such a long period of incarceration. He had acquired a number of skills in gaol, including bricklaying and cooking. Yet he found it difficult to obtain employment. He experienced periods of depression. At times he was, according to his sister, destitute. His sister, Ms Sue Page, said this:

"Gradually he pulled himself together and made a life for himself. He found a good flat and paid his rent on time, was a regular speaker at AA meetings and qualified as a boxing coach and used to train boxers at Woolloomooloo Police Boys Club. He had helped so many people along the way and you will find he has an abundance of loyal friends."

45 In his sister's view, alcohol had been the primary source of Mr Page's problems. After his release, he remained alcohol free.

46 Mr Page was subject to the supervision of the Adult Probation and Parole Service for five years following his release. That supervision then ceased, although he remained on license.

47 On 2 January 1991 Mr Page was charged with two offences, goods in custody and having registration plates calculated to deceive. He received a small fine in respect of each. More disturbingly, on 23 April 1993, he was again charged, this time with robbery in company and a number of other offences. I have been provided with a short statement of the facts giving rise to these charges. A woman, Ms Crook, held a sum of $6,000 on behalf of a Mr Watson. She devised a plan to deter Mr Watson from reclaiming his money. She engaged Mr Page and another man to intimidate Mr Watson when he asked for the money. A listening device captured the conversation between Ms Crook, Mr Page and his companion. Mr Watson duly claimed his money. He was met by Mr Page and the other man. They said they were police and threatened him. Mr Watson was then allowed to leave without his money.

48 On 29 March 1996, Mr Page pleaded guilty to the alternative charge of assault with intent to commit a felony. He was dealt with very leniently. He was required to enter a recognisance for a period of four years to forfeit the sum of $2,000.

49 Within an alarmingly short time, Mr Page committed further offences. He was arrested on 11 September 1997. He ultimately pleaded guilty to two offences under the Drug Misuse and Trafficking Act, 1985. He asked the sentencing Judge, Howie DCJ, to take account of two other offences on a Form 1. The offences, chronologically, were as follows:

· On 30 November 1996, Mr Page met a person in Rushcutters Bay Park to discuss the supply of heroin. The person was, in fact, an undercover police operative. Having obtained the sum of $10,000 from that person, Mr Page then introduced him to another person who suppled 27.7 grams of heroin. Mr Page's commission was $500.

· On 20 December 1996, a further meeting took place between Mr Page and a person who was an undercover police operative. The arrangements were similar to those I have just described. Mr Page's commission was again $500. The quantity of drugs supplied was 28 grams.

50 On 19 June 1997, Mr Page sold two Smith and Wesson revolvers to an undercover police operative. The matter was included on the Form 1. Mr Page acknowledged possession of the two revolvers, contrary to the Prohibited Weapons Act, 1989. The maximum penalty for that offence is 10 years imprisonment.

51 On 22 August 1997, Mr Page provided another police operative with a small sample of heroin, 0.06 grams. The supply of that drug was the second matter acknowledged on the Form 1.

52 I have been provided with the remarks on sentence by Howie DCJ. His Honour accepted that Mr Page's role was that of middleman, bringing together the supplier of the drugs, a person well known to him, and the purchaser. Mr Page was not an addict. His motive was commercial gain. The offences were plainly serious. They were the more serious because Mr Page was subject to a good behaviour bond, and the conditions of his release on license.

53 Nonetheless, his Honour acknowledged that Mr Page had a strong subjective case. He had performed valuable community service, including with Alcoholics Anonymous. Howie DCJ had before him many testimonials which described Mr Page's quite remarkable success in overcoming an addiction to alcohol.

54 His Honour dealt with the issue of rehabilitation. He said this:

"The prisoner is, in my view, fully rehabilitated. These offences were committed by reason of the fact that he persisted in an involvement with people in the community which led to him being presented with an opportunity to make some 'quick profit' on the side, by being presented with this offence."

55 Mr Page was sentenced on 18 July 2000. On the first count, the supply of heroin on 30 November 1996 (including the Form 1), Mr Page was sentenced to imprisonment for 3 years 6 months, commencing on 1 July 2000 and ending on 31 December 2003. A non parole period of 2 years 7 months was fixed, expiring on 31 January 2003. On the second count, Mr Page was sentenced to a concurrent term of 3 years, with a non parole period of 2 years 6 months to expire on 30 September 2002.

56 On 23 January 2001, the New South Wales Parole Board revoked Mr Page's license. Since re-entering custody, Mr Page has continued to receive exemplary reports from gaol authorities. The Serious Offenders' Review Council, in March 2002, sought a psychological report. Mr Page was examined by Ms Victoria Bel and Mr Michael McElhone, psychologists. Their report records that Mr Page has no record of gaol offences. He has continued to attend Alcoholics Anonymous meetings, and to maintain contact with persons described as "his support network in the community". Mr Page was assessed as a "low/moderate risk/needs category". Ms Bel and Mr McElhone supported his application to attend an external programme, which would provide him with qualifications which would be useful in obtaining work after his release.

Amendment to the Crimes Act, 1900

57 At the time Mr Page was sentenced, the maximum penalty under s27 of the Crimes Act was life imprisonment. The Act was amended in 1989. The maximum penalty was reduced to 25 years imprisonment. It was submitted that Mr Page was entitled to the benefit of that change, in accordance with s19 of the Crimes (Sentencing Procedure) Act, 1999. That section is in these terms:

"19. Effect of alterations in penalties.
(1) If an Act or statutory rule increases the penalty for an offence, the increased penalty applies only to offences committed after the commencement of the provision of the Act or statutory rule increasing the penalty.
(2) If an Act or statutory rule reduces the penalty for an offence, the reduced penalty extends to offences committed before the commencement of the provision of the Act or statutory rule reducing the penalty, but the reduction does not affect any penalty imposed before that commencement.
(3) In this section, a reference to a penalty includes a reference to a penalty that is expressed to be a maximum or minimum penalty."

58 It was submitted that the sentence, once redetermined, cannot exceed 25 years. The sentence, moreover, must date from the first remand, 13 April 1976. Even were the crime viewed as a worst case, requiring a head sentence of 25 years, the term would have expired on 12 April 2001. A non parole period, set at three quarters of that term, would have elapsed after 18 years 9 months.

59 The Crown, in its submission, rejected that view. It drew attention to the words of exclusion in s19(2), namely, "but the reduction does not affect any penalty imposed before the commencement", that is, before the commencement of the Act which reduces the penalty for the offence. The penalty of life imprisonment was imposed in 1976. The Act reducing the penalty to 25 years imprisonment did not commence until 1989. Mr Page, accordingly, was subject to "an existing life sentence", as defined by para 1 of Schedule (1) of the Crimes (Sentencing Procedure) Act, 1999. It was open to him, under clause 2(1) of the Schedule, to apply to the Supreme Court for the determination of a term, and a non parole period. In its determination of that application, the Supreme Court was obliged to have regard to the matters in clause 7(1)(a) to (d), and may have regard to "any other relevant matter" (cl 7(1)(e)). The Court may then dispose of the application in one of the ways identified in clause 4, namely:

"4. Determination of application
(1) The Supreme Court may dispose of an application in relation to an existing life sentence:
(a) by setting a specified term for the sentence together with a non-parole period for the sentence, or
(b) by declining to set a specified term for the sentence but setting a non-parole period for the sentence, or
(c) by declining to set a specified term for the sentence and declining to set a non-parole period for the sentence."

60 The Crown did not oppose the determination of Mr Page's sentence, by fixing a non parole period, perhaps coinciding with that imposed by Howie DCJ (31 January 2003). The Court should, however, in accordance with clause 4(1)(b), decline to set a specified term (cf R v Lanigan (CCA, unreported, 31 August 1992).

61 Mr Craigie SC, appearing for Mr Page, answered the Crown's argument by drawing attention to the nature of the Court's task in the redetermination of a life sentence under Schedule (1). The Court, when redetermining an existing life sentence, stands in the position of the sentencing Judge. The person applying for redetermination is sentenced anew. Accordingly, the sentence is imposed after the commencement of the Act which reduces the penalty. The exclusion in s19(2) therefore has no application.

62 Certainly there are passages in the cases which are capable of suggesting that the task of redetermination is akin to sentencing anew. Carruthers J (with whom Campbell and Ireland JJ agreed) in R v Dennis (CCA, unreported, 28.10.92) said this (referring to s13A Sentencing Act, 1989, which has been replaced by Schedule (1): (at 7)

"Further, it must not be overlooked that when a judge is exercising the jurisdiction vested in the Court by s13A, the judge is undertaking a sentencing exercise."

63 In R v Purdey (1992) 65 A Crim R 441, Hunt CJ at CL said this: (at 444)

"... the fresh sentencing exercise required by s13A so far as the crime of murder is concerned is in essence no different to that which would have been undertaken at the time of the original life sentence had the penalty prescribed then been (as it is now) wholly at the discretion of the judge."

64 I believe the better view is that s19(2) has no application to an "existing life sentence". The penalty, life imprisonment, had been imposed before the commencement of the legislation which reduced the maximum to 25 years imprisonment. Having said that, the Court, in redetermining a sentence, cannot ignore the change in the law. It is a matter relevant to the sentencing discretion. It would be unfair were it otherwise. In Samuels v Songaila (1977) 16 SASR 397, King J said this: (at 420-21)

"If Parliament were to reduce a penalty, it might appear that Parliament had judged the former penalty to be harsher or unjust and therefore intended that the harshness or injustice should not be continued even in relation to offences already committed."

65 In R v MJR (2002) 54 NSWLR 368, Spigelman CJ made the following comment: (at 373)

"Section 19 of the Crimes (Sentencing Procedure) Act 1999 and its predecessor reflects a principle of perceived fairness applicable to maximum and minimum penalties, which it is appropriate to adopt for other aspects of the exercise of the sentencing discretion."

66 I believe, therefore, that I have jurisdiction to select the appropriate alternative in Schedule (1) clause 4(1), even though more than 25 years has elapsed since Mr Page was remanded in respect of this crime.

The Appropriate Sentence

67 The Crown, as mentioned, urged the Court to adopt the alternative in clause 4(1)(b) of Schedule (1), that is, fixing a non parole period for the sentence, but declining to set a specified term. Mr Page would then remain subject to the supervision of the Probation and Parole Service. According to the Crown, that supervision was plainly needed. In 1996, at a time when he was subject to a bond, as well as the license, he nonetheless committed serious offences.

68 The sentencing task in redetermining an existing life sentence is, in essence, no different from that arising in respect of any offence, apart from the need to have regard to those matters identified in Schedule (1) clause 7(1)(a) to (d) and any other relevant matter. The sentence, once redetermined, is, like any other sentence, the product of an assessment of the objective gravity of the offence and the subjective circumstances of the offender.

69 However, the obvious difference between my position, redetermining Mr Page's sentence, and that of Mr Justice Maxwell, is that I have the advantage of hindsight. Badgery-Parker J, in R v Cafe (Supreme Court, unreported, 6.9.91) (quoted in R v Malcolm (1991) 58 A Crim R 148 at 150), put the matter in this way:

"Notwithstanding that the purpose is, as I have observed, to approximate the situation of existing life sentence prisoners to that which would obtain if they had been sentenced under the present law, it is clear that the determination process differs substantially from an original sentencing hearing. Ordinarily, in sentencing, the court, having ascertained and evaluated the objective facts, is called upon to make predictions as to the prisoner's likely future. It is necessary to evaluate the prospects of rehabilitation, and (particularly when sentencing for crimes of violence) where there is reason to be concerned that the prisoner upon release may be a danger to the community, it is necessary to evaluate the degree of his dangerousness."

70 However, the issue is not whether Mr Page will be ready to be released into the community (Hunt CJ at CL in R v Purdey (supra) at 443). Nor should the sentence be increased beyond that which is proportionate to the crime, in order merely to extend the period of protection of society from the risk of the prisoner re-offending upon release (Veen v The Queen [No 2] (supra) at 472). The offence, and Mr Page's life to this point, must determine the appropriate sentence.

71 The crime committed by Mr Page, in repeatedly stabbing Mr Stojic, was brutal in the extreme. It was a cowardly attack upon an unarmed man. It was unprovoked. The fury of Mr Page which caused him to act in that way was so irrational as to be incomprehensible. It is unsurprising, therefore, that Mr Page should have been viewed at that time as a dangerous psychopath. Objectively, his crime was within the worst class of case.

72 However, the portents of danger which were evident in 1976 have not materialised. The transformation of Mr Page, after more than quarter of a century, whilst incomplete, is nonetheless remarkable. It can be traced, in part, to the philosophy of Alcoholics Anonymous which he has embraced, and also to his determination to remain free of alcohol. Without alcohol his tendency to violence appears to have receded.

73 Mr Page's crimes since his release on license in 1989 cannot be described as crimes of violence, although they are obviously matters of concern. The offence Mr Page committed in 1993 (for which he was sentenced in 1996), involved intimidation, and had the potential for violence, although none erupted. The possession of the two revolvers in 1997 is also a worrying feature of his record. Nonetheless, the matters which concerned the original sentencing Judge, and caused him to impose a life sentence, have not recurred. Mr Justice Maxwell plainly feared Mr Page's capacity to commit crimes of violence which were even worse than that committed against Mr Stojic, such that society required protection.

74 Mr Page is now aged 57 years. He has demonstrated over more than 26 years a capacity for non-violence. He has done so, even though 13 years of that time was spent in gaol, where there is simmering violence. Mr Page has a sister, Ms Sue Page, who is willing to house him in self-contained premises under her home until the allocation of a Housing Commission home. He has accumulated many friends through his work with youth, and especially Police Boys' Clubs.

75 In fixing a sentence, I am mindful of the injuries to Mr Stojic, which were disabling, and especially the psychological damage, which was severe. Fortunately Mr Stojic survived the attack. I am also mindful of the sentences imposed for murder. I have been provided by counsel with a table which contains a short description of cases in respect of offenders sentenced under s27 of the Crimes Act. I have found that table helpful. The sentence that I believe appropriate reflects my view that the crime committed by Mr Page falls within the worst class.

Order

76 Pursuant to Schedule (1) clause 4 of the Crimes (Sentencing Procedure) Act, 1999, I specify a term of imprisonment of 20 years commencing on 12 April 1976 and expiring on 11 April 1996, with a non parole period of 15 years expiring on 11 April 1991.

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Last Modified: 11/18/2002