R v Q

[1994] QCA 390

IN THE COURT OF APPEAL [1994] QCA 390

SUPREME COURT OF QUEENSLAND

C.A. No. 248 of 1994

Brisbane

[R. v. Q]

THE QUEEN

v.

Q

Applicant

Macrossan CJ Fitzgerald P Pincus JA

Judgment delivered 06/10/94

Each member of the Court delivering separate reasons, the Chief Justice and the President concurring, Mr Justice Pincus dissenting.

Application granted. Appeal allowed to the extent only of adding a recommendation that the applicant be considered for parole after serving 3½ years of his nine year sentence. The sentences otherwise imposed for the offences involved, including the sentence of nine years, remain unaltered.

CATCHWORDS: CRIMINAL LAW - Sentence - rape and indecent assault of complainant at gunpoint - whether early recommendation for parole should be made - whether the nine year head sentence manifestly excessive - effect of youth, remorse, good record, prospects of rehabilitation, early guilty plea, co-operation.

Counsel:	Mr A. Rafter for the Applicant Ms L. Clare for the Crown
Solicitors:	Patrick T. Murphy for the Applicant Director of Prosecutions for the Crown

Hearing Date: 01/09/94

REASONS FOR JUDGMENT - THE CHIEF JUSTICE

Judgment delivered 06/10/1994

The applicant seeks leave to appeal against a sentence

imposed for rape committed upon a seventeen year old girl. At

the date of the offence the applicant was a twenty-three year

old with no prior criminal history. He was well known to the complainant, having lived for a time in the complainant's household with her mother and father and her sister, M, to whom

he was engaged to be married.

The applicant had been charged with ten offences and on 20

May 1994 pleaded guilty to each of them and was accordingly

sentenced. The District Court Judge who dealt with the matter was invited to impose a global sentence which seems to have been taken to mean that he should proceed by considering the overall

criminality of the offences which had all been committed in the course of one continuing episode. This resulted in the longest custodial term, one of nine years, being imposed for the offence of rape in respect of which the application for leave to appeal is brought.

The offences to which the applicant pleaded guilty and for which he was sentenced to custodial terms of varying length to be served concurrently were: one count of housebreaking for

which a term of four years was imposed; one of rape, nine years; two of indecent assault, two years in each case; one of

attempted rape, three years; and on each of the others, one count of deprivation of liberty, one count of going armed in public to cause fear, two counts of assault and one count of

unlawful killing of an animal, twelve months. It was ordered that the terms of imprisonment imposed should have effect on and

from 12 July 1993, that being the date from which the applicant

had been continuously in custody in connection with the

offences. No recommendation for parole was made by the
sentencing judge.

On the hearing of the application in this Court, it was submitted for the applicant that the nine year term was excessive and that it should be reduced to eight. This was a difficult submission to sustain since the Court is justified in interfering only if the sentence is shown to be manifestly

excessive, and the difference between two terms of those lengths at that level in the sentencing scale would not readily be regarded as sufficient to justify the Court's intervention. It was further submitted that a recommendation for early parole be made.

The facts as outlined by the Crown for the purpose of sentencing were not disputed. On one view of the applicant's conduct it would have been possible to dissect it to demonstrate the commission of two rather than one offence of rape and three

rather than two of indecent assault. However, the Crown appears to have been content to charge the number of offences that it did on the basis that there was a single continuing

episode in the course of which various actions, which were not disputed, were performed by the applicant. Indeed, none of the

relevant facts outlined by the Crown were disputed. The sorts of problems discussed in Jemmison v. Priddle (1972) 1 Q.B. 489 at 495 and R. v. Morrow and Flynn (1991) 2 Qd.R. 309 at 312 need not attract the attention of the Court.

Prior to sentence, the applicant's condition had been considered by a psychiatrist, Dr Mulholland, who provided a report to assist the Court and by a prison chaplain, Father Horton, who also provided a statement. The judge clearly gave some weight to the opinions expressed by each of those persons.

He also had a statement from the complainant undated, but apparently obtained more than six months after the date of the offences deposing to the effect which they had had and were continuing to have upon her.

Prior to the commission of the offences, the applicant had enjoyed a long-standing relationship with the complainant's sister M. It had commenced in 1987. In 1991 when he was twenty-one, the two commenced to live together in the home of

her parents. Prior to that time he had lived at home with his

own parents and with one brother. He had been working as a process worker. The applicant and M became engaged to be

married in April 1992 and planned to marry in 1993. Particular problems affecting the relationship commenced on Friday, 9 July

1993.

On the day mentioned the applicant damaged a motor vehicle which was jointly owned by M and himself. At the time he had been affected by liquor. He gave her some account of the

episode which was untrue. The upshot was that she left the scene where the damaged vehicle was, departing with a young man, whose name was Craig. Thus began a rift which continued over the next few days to the great upset of the applicant. He commenced to

drink excessively and in his concern was unable to sleep. His

condition seems to have become steadily worse as he made certain attempts to re-establish contact with M and her family. By the following Monday he made the decision to go to M’s house. He

has subsequently said that he had some notion of collecting his

clothes and other belongings. His precise actions and motivation prior to his arrival at the house are not completely clear, but he took a rifle and ammunition from his own father's house. From the time of his arrival at M's house, the following

summary of his actions, as taken from the prosecutor's account
and accepted by counsel for the applicant, will suffice.

The applicant drove around to M’s family’s house and, no one being at home, he broke in to gain entry. He was there for a time alone and drank more alcohol. He killed the household cat by shooting it and stabbing it and he placed its body on M's bed.

The complainant was a school girl who normally arrived home before M. On this day she got home at just after four. M's usual time of arrival was about a quarter past five. When the complainant entered the house she encountered the applicant who jumped out at her holding the gun. She was very frightened and

screamed but the applicant commanded her to be quiet saying that otherwise he would shoot her. He told her she had to do as he commanded her, repeating that otherwise he would shoot her. The complainant was terrified and did as she was directed.

The applicant forced her into her bedroom. He said he had

killed the cat because he had bought it for M and he did not

want it to be there as a reminder. He declared that after M came home, he would speak with her and then kill himself. He spoke also of killing M and the complainant. He made her take off all her clothes and endeavoured to have sex with her. He had difficulty inserting his penis in her vagina and demanded that

she help him. He did then manage to penetrate her. He questioned her on a number of intimate matters. He made her take

his penis in her mouth. All the while the gun was kept quite

close to hand. He penetrated her again. He then placed his head in the vicinity of her vagina but when he asked her if she

wanted him to proceed with that activity and she indicated that she would rather he did not, he in fact desisted. He made her go into another room to have sex in front of a mirror. He sat

on a chair and directed her to sit on top of him, but he was unable to achieve penetration. He then made her take his penis again in her mouth while he observed proceedings in the mirror.

He said he wished he had not done the things he was doing, but
it was now too late and he could not turn back. None of it

would have happened, he said, if M and her mother had listened to him. He asked the complainant to find him a cigarette. He permitted her to dress but then again directed her to undress.

Intermittently he pointed the gun at her. Once more he sat down

on the chair in front of the mirror and directed her to perform an act of oral sex. He decided to tie her up but when she asked permission to go to the toilet, he allowed it but accompanied

her. He spoke in rambling fashion saying that all he wanted to

do was talk to M that if she did not listen he would shoot her

and shoot himself. He spoke also of shooting the complainant's boy friend but then made her telephone him to dissuade him from

visiting on that evening. He tied up the complainant with scarves attempting at first to gag her. He said things to the effect, "If I can't have M, then no one else can." He said that he had not thought he would have the courage to carry out his

plan until he broke into the house and then he knew he could do

it.

M arrived home and events became more confused. The applicant, carrying the gun, rushed to confront M. A conversation followed among the complainant, M, and the applicant. The two sisters tried to calm him down and to persuade him to leave the house. The girls’ mother, Mrs G, came

home and a heated exchange took place. In the course of this

the applicant announced that he had come to kill M and then kill

himself. At one point Mrs G grabbed the gun and tried to take

it away from him. In the struggle that followed the gun was

discharged but not, apparently, while it was directed at any of

those present. M hit the applicant over the head with a pot

plant during the struggle, and the complainant ran to the next door neighbour and the police were contacted. Mrs G managed to

move the applicant out of the house to the driveway leaving the gun behind. But then he went back into the house to retrieve

it. The police arrived and conversation with them followed.

He told them that he wanted to speak to his mother. Eventually

the police persuaded him to relinquish custody of the gun and so

the episode ended.

Enough has been said to indicate the unusual nature of this episode. The activity was quite different from the kind of circumstances more usually involved in rape offences, but nevertheless rape was involved and this would have to be categorised as a bad case. The complainant was a seventeen year old virgin and was left emotionally disturbed by its

aftermath and no doubt, although to a lesser degree, the same could be said of the others involved. The complainant, for six months or so, had disturbing nightmares and at first for comfort slept either with her mother or her sister. For some considerable time she was very troubled about re-entering the house unless she could be sure that another family member was

there or it could otherwise be confirmed that no intruder had

managed to gain entry. She remained conscious of the applicant's threat to kill her and for a time at least felt that she would be at risk whenever the applicant was released from custody. It should be possible for her to be reassured on this point, that is, if this particular anxiety still continues.

Both Dr Mulholland and the prison chaplain specifically discounted the likelihood that the applicant would act in any

similar way in the future, as the sentencing judge has recorded.

The seriousness of the offences clearly made it necessary

for the sentencing judge to impose a substantial custodial term.
He has done this with the nine years term of imprisonment for
the rape. It is not possible to say that that term is excessive

when the circumstances are considered. The factors personal to the applicant have to be noticed. The motivation for his

actions seems to have been some confused notion of revenge. He was in a state highly emotionally disturbed and aggravated by alcohol and the tensions of the previous few days. Dr Mulholland considered that although the applicant was not

totally deprived within the meaning of s.27 of the Code of the

ability to control his actions, nevertheless his state of mind was not normal. Because of his agitation, emotional distress and depression he was in a state of acute psychiatric disorder where his ability to consider in a rational way what he was doing and control his behaviour was substantially impaired.

The applicant's actions on the day of the offences, it could be said, were not the manifestations of a personality which in his case had ever previously been exhibited and there is no reason to think that conduct of a similar kind would, for

the future, be repeated. It appears that the applicant, having

recovered his control, has good prospects for rehabilitation and is remorseful about what he has done. Even during the episode

itself, he at times appeared to express hesitation and regret. Although he armed himself and acted in the way described, he

directed no gratuitous additional physical violence towards

anyone present and, within limits, appeared to be capable of being reasoned with and brought under some control, particularly

by Mrs G. His involvement was undisguised and there was no

chance that he was ever going to escape the consequences of his actions. The feeling remains that the applicant did not embark on this course of conduct in any rational frame of mind, and that if given an opportunity in the future, his prospects of

rehabilitation are good. He was a twenty-three year old with a respectable work history, no criminal history other than traffic offences, and he pleaded guilty. The grossness of his behaviour towards the young complainant demands a severe penalty and a

substantial custodial term but it remains a case where both he and more importantly, society, would benefit from a moderately advanced opportunity for parole. The considerations favouring this are sufficiently compelling to justify interference. The automatic parole eligibility point accompanying a sentence of nine years would be reached after four and a half years have been served. In this case it should be reduced to three and a

half years.

The application should be granted and the appeal allowed to

the extent only of adding a recommendation that the applicant be

considered for parole after serving three and a half years of his sentence of nine years. The sentences otherwise imposed for

the offences involved including the sentence of nine years

should remain unaltered.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 06/10/1994

The applicant was sentenced to imprisonment for 9 years for an offence of rape and lesser periods for a number of associated offences. The application is one which challenges the 9 year sentence; it is argued that a recommendation for consideration for release on parole should be made, so as to shorten the

period which would ordinarily apply, namely 4 years and 6

months.

The applicant committed the offences in July 1993. He was

born on 9 September 1970 and his only previous convictions are

for a number of drink-driving offences. The victim of the rape

was the 17 year old sister of a girl who had been, until three days before the rape, the applicant's fiancee. As a response to

the breaking of the engagement, the applicant took a rifle

belonging to his father and some ammunition. After practising a

little with the rifle, he drove to his former fiancee's home and

broke into the house which was empty. The applicant then killed

the family cat, hid the carcass in his former fiancee's bed, and

made some attempt to clean up blood in the lounge room, the result of his killing the animal. When the complainant came home from school the applicant pointed the gun at her; he had

his hand on the trigger and threatened to shoot her. He told

her to go into her room, pointing the gun towards the room. He came in behind her, holding the gun and again threatening her; he mentioned that he had killed the cat and would kill her as

well. The applicant told the girl to take off her clothes, informing her that he proposed to tie her up, wait for his

former fiancee to come home, kill her and then himself.

There followed a long ordeal for the girl. Under the

threat of being shot she was raped, forced to suck the

applicant's penis and forced to engage in other sexual acts. According to the argument of counsel for the respondent, the

victim was raped a number of times, but the case seems to have been presented below as constituting a single rape, being a

number of penetrations interrupted by other activity. The other events involved in this appalling episode need not be set out in detail, but are mentioned in the reasons of the Chief Justice.

In essence it was a bad rape, at gunpoint, of a young girl, for

which no other excuse is proffered than that the rapist was upset by the conduct of the victim's sister in breaking off an engagement.

The argument was that there should have been a
recommendation for early parole in view of the plea of guilty,

the applicant's remorse, his age and the absence from his record

of any significant offences.

Some emphasis was laid, on behalf of the applicant, on the

depth of his remorse and it was pointed out that, before the

applicant's attack on the girl was over, he had begun to express sorrow. As was pointed out by counsel for the respondent, that expression does not appear to have been very convincing, for it was accompanied by the applicant laying the blame, not on himself, but on his mother for not listening to him and upon his

former fiancee for not talking to him. It is also submitted,

and it seems to me cogently, that doubt is thrown upon the genuineness of the applicant's remorse by the circumstance that

in discussions with a psychiatrist Dr Mulholland and also in his

interview with the police the applicant gave an account of

events tending to minimise the extent of his guilt. It appears that the following account of the circumstances in which the

attack on the complainant began was given to the doctor:
"To his surprise K came home. ...He told her that he was

going to shoot himself and she tried to talk him out of it. She went to her room to get changed out of school clothes. He subsequently followed her and saw her in her underclothes. It was at this time that the first thought of sexual activity occurred. In his intoxicated state he half believed that she was attracted to him".

The truth is, and is not disputed, that he got her into the

bedroom by threatening to shoot her, the gun being then pointed

at her body, and attained the removal of her clothing by threatening to kill her. It is also not disputed that he

repeatedly threatened her during the subsequent sexual activity during which he had the gun with him and pointed it at her. He

gave a similar, but not identical, misleading account to the

police, part of which should be quoted:
"...I was in the computer room and I was playing um golf

which is on the computer and I heard the door open and I turned the computer off and I hopped round the corner and K came in and I didn't actually point the gun at her. I showed her the gun and she said, I think she said 'What are you, what are you doing' or 'what you doing' or you know 'What do you think you're doing' I think she said. And I told her I had no intentions of hurting her or any..... the only person that I had any intentions of hurting was myself. ...I said to her I've got no intentions of hurting you K and she goes oh, she asked me again 'what are you doing here' and I said I told you I've gotta talk to M. That I wanna try and work things out and she said fair enough and I said to her um, sorry no, she said, she walk, she was walking towards her room because she asked me, she asked me once again what do you think you're doing and I said I told you, I'm not going to hurt you and she started walking towards her room and she was getting undressed out of her school clothes and um, I think I said something about you know I've always loved you as in um how do you say um, not as any emotional love but as in like the way you saw her as a sister or a sister-in-law just say a sister to me and when she took her clothes off and was undressing, she had a bra and her underpants on and I asked her if she would take the rest of her clothes off and she asked me why. And I said I think I asked her um, I think I intimated to her can you take your clothes off and she said to me 'yes'. Whether she was afraid or what she was, but she said yes and she took her clothes off...I said to her, 'Do you love me' as in not love love as in like brother love and she said to me she did and she was hurt um over what I'd done to M and I said fair enough and I'd finished my cigarette by this time and went out and lit another smoke up. And I'd finished that. I come back in and K was laying on the bed with nothing on and I walk, I walked up to her. The gun was on the ground at this stage and I said to her at first I said to her 'Do you mind if we had sex' and she said 'No' and I put the gun on the bed not facing her, it was facing the wall the gun was and I said to her, like not angrily or nothing like that I said to her 'Do you mind if we have sex' and she said 'Yes'".

I find it difficult to reconcile the applicant having told these

lies with genuine contrition. The submission based on remorse

also loses force when one considers that there was no indication of a plea of guilty until a few days before the date fixed for trial.

Attention should also be directed to another aspect which was discussed and that is the extent of the applicant's intoxication during these events. The prosecutor told the primary judge, without contradiction, that to the complainants, who knew him well, the applicant did not appear to be drunk. According to the story the applicant told the doctor, he seems

to have been on an alcoholic binge for days before the offences

were committed: paras. 16.3 - 16.12 of the report.

Although comparison of the seriousness of rapes is very much a matter of impression, the present is an offence of considerable gravity. The applicant seemed to suggest to the police that there was an element of consent, and to the doctor

that he might have thought there was such an element; that is,

on the conceded facts, plainly false. One should not in considering the matter ignore the possibility that had the victim not been sufficiently terrified, by the applicant's threats to her, to comply with his demands, she might well have

been shot by him, perhaps killed. It is my view that conduct of

this kind needs to be strongly discouraged and that the

emotional upset which, the applicant claimed, triggered it off
goes no distance towards excusing it.

A considerable number of rape sentences were collected in a schedule tendered to the primary judge and I have found this of some assistance in comparing the sentence imposed here with that imposed in comparable cases, although some of the cases

mentioned below are not to be found in the schedule. It appears to me convenient to mention only cases in which the offender is

not said to have had a record of similar offences, and pleaded guilty, and in which the complainant was subjected to or threatened with violence, with or without a weapon.

In Kwan (C.A. No. 65 of 1988, 23/5/88) the applicant was 42

years of age. He broke into a house and raped a woman who had

been a stranger to him, threatening her with a knife. The

applicant was said to have a psychiatric problem. The judge imposed a head sentence of 12 years imprisonment and recommended

that he be eligible for parole after serving 4½ years. The

judge took into account a plea of guilty and the applicant's

remorse, reflected by an agreement he had made to pay

compensation.

In Penniment (C.A. No. 38 of 1992, 29/4/92) the applicant

pleaded guilty to three counts, of entering a dwelling house at

night with intent, rendering the female occupant incapable of resistance by choking her, and rape. Sentences of 10, 12 and 15 years (equivalent to 16 years) respectively were imposed, with a

recommendation for parole after six years. The attack was prolonged and a considerable amount of force was used, the

applicant choking the complainant to the point of unconsciousness more than once, and making a number of violent threats. He was affected by alcohol at the time and had a

serious drinking problem. It was held that the head sentence, combined with the recommendation for parole, although heavy, was within the permissible range and was not disturbed on appeal. The case was one in which the offence was more reprehensible than the present.

In George (C.A. No 226 of 1991, 13/11/91) the 18 year old applicant, who had a minor criminal history but no previous convictions for sexual offences, violently raped, and also sodomised, a 27 year old virgin in an isolated area after following her for a kilometre. He was in an intoxicated

condition at the time. The complainant had been struck with a large stone or rock, and hit on the head with the applicant's

fist. Her shoulder was dislocated during the attack and she

suffered other, relatively minor, injuries. The offender pleaded guilty at a very early stage, and was sentenced to 11

years imprisonment, which was reduced on appeal to 9 years. No

early recommendation for parole was made. Again the case was

worse than that with which the Court is now concerned.

Watcho (C.A. No 158 of 1992, 23/7/92) was an Attorney-

General's appeal against a sentence of 10 years imposed for rape

and related offences, the 23 year old respondent having entered the complainant's home with the intention of committing an

indictable offence. Once in the complainant's home he raped her

in front of her four year old son, having threatened her with a

garden fork and threatened the child. The sexual assaults

extended over a substantial period. The respondent was intoxicated at the time, and had prior convictions, but none for

sexual offences. There was a plea of guilty, on the first day of trial. The respondent had been in custody for 10 months prior to sentencing, the Chief Justice, who gave the principal

judgment, stating that the sentence was therefore equivalent to

a custodial term of almost 12 years. There was no recommendation for early parole, and the Attorney-General's appeal was dismissed. The sentence appears to give some support to that with which we are now concerned.

In Jamieson (C.A. No. 350 of 1993, 9/11/93) the 36 year old applicant had a substantial record, including assaults but no sexual offences. The case was one of breaking and entering leading to rape. There was a degree of violence, no weapon

being used. A sentence of 14 years was reduced to 12 years,

because of the applicant's having pleaded guilty.

In Quigley (C.A. No. 269 of 1984 5/3/85) the applicant was sentenced to 9 years, having been held in custody for slightly more than a year - making an effective sentence of 10 years. The victim was a girl aged 13 known to the applicant who was

threatened with a knife. Again, there was psychiatric evidence

which seems, to put it simply, to be comparable to that in the present case. The sentence was not disturbed. In Alexander and

Anderson (C.A. Nos. 261 and 262 of 1990, 27/11/90) Anderson was

described as having "a number of convictions for petty

offences". He was 25 years of age. The complainant girl was subjected to an ordeal over a period of 1½ hours and there were threats to kill her, as here. Williams J remarked:

"I regard the use of a gun as even more serious than the use of a knife in this type of situation. A rifle has a much more traumatic effect on the victim and also, in my view, the production of the rifle in this context shows a greater degree of premeditation".

Anderson's role in the rape was that of the "prime mover".
A sentence of 7 years imprisonment was set aside and in lieu it

was ordered that he be sentenced to 10 years imprisonment.

It was suggested in argument that had it not been for the mitigating circumstances, and in particular the applicant's youth and the plea of guilty, 12 years imprisonment might have

been appropriate for this offence. I do not find it necessary

to reach a conclusion about that, but I do conclude that a 9

year sentence for such a bad rape as this necessarily involves

the making of an allowance for the principal mitigating factors

which appear to me to be the applicant's youth, the lack of any
comparable previous offences and his plea of guilty.

I can see the force of the argument that a rape of a total stranger is particularly heinous, but it does not appear to me that this applicant is entitled to any credit on account of the

circumstance that he was well known to his victim. She was sexually innocent, a fact one might safely presume him to have known or suspected, and he had been, it appears, a trusted guest

or resident in the victim's family home.

The question is whether the sentence considered as a whole -9 years with no recommendation for early parole - is manifestly excessive. I do not regard the sentence as a light one and there may be room for differences of view on the point whether

some modest reduction in the non-parole period might have been added to whatever allowance was involved in the setting of the head sentence at 9 years, instead of at a higher level. But in my opinion the conclusion at which the primary judge arrived was within the range of a sound exercise of discretion and I do not think this Court would be justified in altering it.

I would dismiss the application.

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 06/10/94

This is a difficult case. The rival considerations emerge from the judgments of the Chief Justice and Pincus JA., who have arrived at different conclusions. Each judgment is persuasive and, in the end, the outcome depends on a decision whether the applicant's personal circumstances and prospects of rehabilitation should be permitted to attract any leniency despite the seriousness of his offences and their consequences

for the complainant. Certainly, the sentences imposed are not

excessive if regard be had only to the appellant's reprehensible

conduct and its effects upon the complainant and her family.

But sentencing is a process of balancing competing
interests. The community, and the complainant and her family,

are entitled to require that the applicant be adequately punished for his crimes, and acceptance that her attacker has

been suitably punished might reasonably be expected to assist

the complainant to recover from her ordeal. Deterrence is also

important, both of others who might commit such crimes and to

discourage the appellant from re-offending, although on the material available that seems unlikely. All these considerations support the sentence which was imposed.

On the other hand, it is correct in principle and consistent with the policy underlying the Penalties and Sentences Act 1992 that young first offenders with prospects of

rehabilitation should not be incarcerated for any longer than is necessary. The community, as well as the offender, is interested in maximising the prospects of rehabilitation.

I am troubled by what Pincus JA. has said concerning whether or not the appellant was and is genuinely remorseful, but in the end I am influenced by the reports of Dr. Mulholland

and, especially, Father Horton, a correctional chaplain. Father

Horton wrote:
"This is by way of a report I put to the judge in Q's case. It

is rare that I make such requests but am compelled to do so in Q's case. My visits with Q began over six months ago. Sometimes an hour would be spent discussing his life and situation. On many occasions Q expressed his remorse at the hurt he had caused all concerned. From time to time a chaplain experiences a very genuine example of a person who does need another chance to prove themselves capable of the community's confidence. I believe Q is such a person. After many soul searching hours with him I appreciate his inner resolve to make any opportunity given to him a focus for challenging his past destructive behaviour. I am convinced that alcohol and state of mind contributed to his actions. His time in prison (remand) has already given him quite some time to comprehend this and again come to grips with the human damage done.

Q is also well respected by the centre officers who encounter him on a regular basis. He has been appointed a "buddy" in his unit. This role was set up for a particular inmate in each unit to deal with serious problems such as suicide. His behaviour there indicates a positive development in character and behaviour.

I know that the charges Q faces are serious but I am confident that the chances of him re-offending are minimal because of his inner search and ongoing family support. Q has also been a support to me with my father's death recently. The letter he wrote to me gave me renewed hope in the young people in prison I encounter. He is a good friend and someone I believe in.

... ."
Not without considerable hesitation, I have concluded that
the appellant's personal circumstances warranted a
recommendation for early consideration for release on parole.
Accordingly, I am of opinion that, to the extent that there
was no such recommendation, the sentencing discretion

miscarried. I agree with the orders proposed by the Chief

Justice.