R v Robinson - [2002] NSWCCA 359

No judgment structure available for this case.

CITATION: R v Robinson [2002] NSWCCA 359

FILE NUMBER(S): CCA 60679/00

HEARING DATE(S): 24 June 2002

JUDGMENT DATE:
25 September 2002

PARTIES :

R v Christopher Andrew Robinson

JUDGMENT OF: Giles JA; Dunford J; Greg James J

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S) : 70051/99

LOWER COURT JUDICIAL
OFFICER : Adams J

COUNSEL : T J Golding - Appellant
Dr P J Power - Crown

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

CATCHWORDS: Sentencing - murder - offender aged 17 - would be worst case but for age - sentence of 45 years with 35 years non-parole period - whether error in finding no remorse - no error - whether error in not reducing sentence by virtue of plea of guilty - no error - whether sentence manifestly excessive - gravity of crime and need for protection of public - consideration of protection of public - need for protction properly founded in evidence - no appealable error as to head sentence - weighing of factors different for non-parole period - special circumstances - appealable error as to non-parole period. D.

CASES CITED:
Bugmy v The Queen (1990) 169 CLR 525;
Dinsdale v The Queen (2000) 202 CLR 321;
Power v The Queen (1974) 131 CLR 623;
R v Costen (1989) 11 Cr App R (S) 182,
R v Crump (CCA, 30 May 1993, unreported);
R v Elemes [2000]NSWCCA 235;
R v Fernando; R v Fernando (1977) 95 A Crim R 533;
R v GDR (1994) 35 NSWLR 376;
R v Glen [1999] NSWSC 1018;
R v Harrison (1997) 93 A Crim R 314;
R v Leonard (CCA, 7 December 1998, unreported);
R v Purdey (1992) 65 A Crim R 441;
R v Simpson (2001) 53 NSWLR 704;
R v Stabler (1984) 6 Cr App R (S) 129;
R v Thomson; R v Houlton (2000) 49 NSWLR 383;
R v Tran [1999] NSWCCA 109;
Siganto v The Queen (1998) 194 CLR 656;
Veen v The Queen (No 1) (1979) 143 CLR 458;
Veen v The Queen (No 2) (1988) 164 CLR 465.

DECISION: Grant leave to appeal, uphold the appeal, confirm the head sentence, but quash the non-parole period and in lieu thereof fix a non-parole period of 27 years to date from 22 January 1999. The earliest date on which the applicant will be eligible for release on parole is 21 January 2026.

CCA 60679/00
SC 70051/99

GILES JA
DUNFORD J
GREG JAMES J
Wednesday 25 September 2002

R v ROBINSON

Judgment

1 THE COURT: The applicant pleaded guilty to the murder on 27 December 1997 of Trevor John Parkin. At the time of the offence the applicant was 17 years old. The maximum penalty for the offence was life imprisonment. On 19 October 2000 Adams J sentenced the applicant to imprisonment for 45 years commencing on 22 January 1999, the date of the applicant’s arrest, with a non-parole period of 35 years. This is an application for leave to appeal against the severity of the sentence.

2 It is submitted on the applicant’s behalf that his Honour’s sentencing discretion miscarried because -

(a) he wrongly concluded that there was no evidence capable of acceptance that the applicant felt any remorse for what he had done;

(b) he wrongly concluded that the sentence otherwise appropriate to be imposed should not be adjusted by virtue of the applicant’s plea of guilty; and

(c) in all the circumstances the sentence is manifestly excessive.

The offence

3 The victim was killed and mutilated in a truly horrific manner. Adams J said -

“He had been killed by massive blunt injuries to his head involving large fractures to the skull and extensive fracturing of the facial bones. Mr Parkin's body had been extensively mutilated with a knife. The chest cavity had been cut open and the body partially disembowelled. There were multiple cut and stab wounds to the trunk, including about ten stab wounds in the left lung and well over this number in the small bowel mesentery and the attached small bowel, which had been partially torn from its mesentery in a number of locations. The left testis had been amputated and was found in the kitchen sink. Mr Parkin's hands were tightly tied with an electric power cord which had also been wrapped around his neck. The pathologist was of the opinion this, as well as the mutilation, was done after death.”

4 On the night of the murder the applicant spoke of it to Mr Newman, who was staying at the house occupied by the applicant and the applicant’s then girlfriend, Ms Morris. His Honour said -

“The offender was carrying a bag which contained a stereo which he said he had stolen from ‘where the coaches go’. The offender also removed from the bag a bowling pin wrapped in a blue plastic bag. He told Newman that he had met a man whilst he was walking around and had gone to his place. He said, ‘I was having a joint with him. He needed to go to the toilet so I looked around to see what I could rort’. The offender took a knife with a black handle out of the bag wrapped in a clear plastic bag which seemed to be stained with blood. Newman said that the offender told him that whilst he was waiting for the man to come out of the bathroom, he was standing behind the door holding a bowling pin which he had found on the floor whilst he was looking around. He said that when the man came out of the bathroom, he hit him on the head ‘a couple of times’ with the bowling pin. He told Newman, ‘He dropped to the floor and was gasping for air. I got the knife and gave him a good going over. It took him a while to die. I cut him down the stomach.’ Newman thought that the offender added that he had cut the man in the back, but he was not sure about this. The offender told him, ‘There was heaps of blood and it stunk.’ Newman did not believe what the offender had told him because, as he said to the police, the offender seemed too calm. He was not upset and was very casual. Newman said that ‘it was as if he hadn't done anything’. He did not appear to be affected by drugs or alcohol. The offender also told Newman that he had looked around for the man's money because he said he had some but could not find any. The offender repeatedly commented that Newman did not believe him, although he pointed to his shoes and to the bottom of his pants which showed drops of blood. However, Newman noticed that the offender had a black eye and thought that he had been bashed and that the blood had come from his nose. During the conversation the offender said several times, ‘killing someone is liberating’. He threatened to kill Newman if he told the police. Shortly after this, the offender changed his clothes and took the jeans and shoes he had been wearing to the laundry. Sometime later, he picked up the knife which he had shown to Newman and walked out of the house, saying when he returned that he had buried it. This was just before dawn. (The knife was discovered by police following the offender's arrest.) The offender then took the bowling pin out of the plastic bag and washed it in the laundry, returning to the lounge room where Newman was and, after drying it, placed the bowling pin next to the television. It seems that, at some later stage, he put it back in the plastic bag.”

5 The applicant told other persons in Mr Newman’s presence that he had killed someone, and on another occasion that he waited behind the door, hit the victim with a bowling pin and “cut him up”.

6 At a time specified only as shortly after Christmas 1997 the applicant threatened to kill Ms Morris, saying that he had done it before and would do it again and adding “I don’t give a fuck”. He showed her a plastic shopping bag containing a white bowling pin and said that he had killed someone with it, and told her to clean it up. She did so. Later that night Ms Morris said to the applicant, “Did you really do that?” and the applicant replied, “What the fuck do you think, of course I fucking did it”. Ms Morris said, “Who was it?” and the applicant replied, “Some fucking faggot that wanted his dick sucked”. The applicant also said, “I chopped off his cock and shoved it down the sink”; “I ripped his guts out”; “The bloke was in the bathroom and I fucked him up”.

7 Ms Arnautovich, a later girlfriend of the applicant, began her relationship with him in mid-1998. In her statement she said that a few days after commencing the relationship he told her about a time when he was covered in blood and had beaten someone to death. The applicant said, “My shoes were soaked in blood like I’d been swimming in it. It was all over my pants and there was blood all over the place. I told the taxi driver I was a butcher”. Ms Arnautovich asked the applicant, “Why did you kill him?” and the applicant replied , “Because he was trying to make a move on me”. After describing this further, the applicant told Ms Arnautovich that he hit the man over the head. Ms Arnautovich asked the applicant, “What else did you do?” and the applicant replied “I dissected the cunt. I took the knife off him and started stabbing him”. The applicant said further, “I remember the sound he was making out of his throat was just like in the movies”. The applicant said, -

“The guy was coughing up blood, “I’ve never seen so much blood in all my life. Blood was pissing all over the place. My pants were drenched in blood all the way to the inside. My shoes had so much blood in them I tried scrubbing them off and it wouldn’t come out. I had to chuck them, that’s how much blood there was. I could hear his skull shattering. Do you know how strong those tubes and things inside you are? I don’t know how doctors operate, they must have some really sharp knives. Do you know how long it takes to cut all those organs and those tubes that connect everything together? I couldn’t believe it man”.

8 Ms Arnautovich stated that she remembered the applicant also said that he either ripped off one of the guy’s balls with a knife or he had cut through his shorts and stabbed his balls. The applicant said, “I could see what the guy had eaten” and, “I stabbed him in the eye”. Ms Arnautovich said to the applicant, “Why did you do all this if he was already dead?” The applicant replied, “Because I wanted the police to think they were dealing with someone who really meant business, like a complete psycho who was out to get him, like a real mental case”. The applicant further stated, “You know what, after I was smoking a cigarette man and I saw all of these people walking past on the road down below me and I had just killed some cunt they’re all going about their lives walking about the street, while I’m up there killing some cunt”.

9 Ms Arnautovich said that on many occasions the applicant said things to her like, “It is easy to kill people, I’ve done it before”, and that on at least twenty occasions the applicant spoke to her about the bowling pin and sometimes showed it to her and said, “See I smashed someone’s skull with that”.

10 The applicant spoke to others of the murder. In about April 1998 he told Mr Demertzis that he had “killed some cunt” and “I stabbed someone at Glebe, right in the back near their rib, I felt it go in”. A couple of months later he said to Mr Demertzis, “I got away with murder, you don’t understand”. During 1998 the applicant told Ms Julia Israel, “You know I killed someone once and chopped him up” and told Ms Odelia Israel, “I killed someone and chopped him up”.

11 The victim was not previously known to the applicant. When the applicant was arrested he told the police that he had acted in self-defence and that the victim had tried to rape him with a knife. He said similar things to Dr Wilcox, a consultant psychiatrist who examined him in June 1999, and Dr Nielssen, a forensic psychiatrist who examined him in January 2000. Adams J said -

“I have no doubt that these explanations are false. Although, at one stage, the offender told Ms Arnautovich that he hit the victim with the bowling pin after the victim had walked into the kitchen and come out with a knife (an account starkly contrasting with what he told Newman, Dr Wilcox and Dr Nielssen), he had also said to her -

‘You know, I saw him at Central Station and the moment I looked into his eyes I knew I was going to kill him and he knew I was going to kill him and I knew he was a paedophile and he knew that I knew. It’s like he wanted me to do it … I knew I was going to kill him, something told me I was going to do it and he knew it too … we both just knew. I just walked into the kitchen and got the knife and I slashed him up.’

The mutual telepathy, of course, is invention, but I consider that this statement gives some support for the inference that the offender thought of killing, or at least attacking, Mr Parkin well before the event and that this was the motive for accompanying him home. It is also inconsistent with the offender’s assertions that he acted to any degree in self defence.

In the accounts given by the offender to Newman, Morris and Arnautovich he did not suggest that he was adversely affected by either drugs or alcohol. On the other hand, he said to Dr Nielssen (and the doctor accepted) that he was intoxicated with a combination of heroin and alcohol at the time of the offence, assertions which he repeated to Dr Wilcox. I accept that the offender may well have been to some extent affected by alcohol and perhaps by marijuana, at the time of his attack on the victim, I do not accept that he was so affected as to significantly reduce his culpability for the crime. The details in his accounts to Newman, Morris and Arnautovich belie any substantial level of intoxication. Nor do I accept that his varying accounts of the occasion arise from confusion or confabulation. His later accounts merely reflect attempts at justification.

As it happened, the victim had been convicted in December 1995 of six offences of sexual assault involving young persons (both male and female) between May 1985 and July 1988. However, the offender’s statement that he was unaware at the date of the crime that the victim had been a paedophile is almost certainly true although it seems reasonably possible that Mr Parkin had expressed a sexual interest in the offender when they met. The offender told Dr Wilcox and Dr Nielssen that when he needed money for heroin he had posed as a male prostitute in order to assault and rob potential customers, although he denied any homosexual desires or activities. When this statement is considered together with the accounts of his homosexual activities given to Ms Arnautovich (and, in general terms, to the psychologist at Kariong Juvenile Justice Centre after his arrest) and his statement to Newman to the effect that he had formed the intention to steal from the victim before he attacked him, I think it virtually certain that, either explicitly or implicitly, the offender had encouraged the victim to think that he would be willing to engage in sexual activity with him and that he went to the victim’s house intending, at least, to assault him and steal what he could. I am unable to say at what stage the offender formed the intention to kill the victim but I have no doubt that he had contemplated a serious assault well before it actually occurred. I accept the submission of Mr Molomby, counsel for the offender, that I could not conclude that the intention to kill Mr Parkin was formed an appreciable time before the attack in the sense that it could properly be described as premeditated.”

12 His Honour later said -

“I have, with some reluctance, come to the conclusion that the murder of Mr Parkin was deliberate and unprovoked. The blows to the head were extremely violent. The offender intended to kill, not merely to disable. The mutilation of the body must have extended over a considerable period of time and required a great deal of physical effort. The offender told Ms Arnautovich, when describing the mutilation -

‘Do you know how strong those tubes and things inside you are. I do not [know] how doctors operate, they must have some really sharp knives. Do you know how long it takes to cut all those organs and those tubes that connect everything together. I couldn’t believe it, man.”

I think it unlikely that the offender had decided to mutilate the body as a sudden, spur of the moment aberration and that it was likely that, before he killed him, he had it in mind to mutilate his victim’s body. As I have mentioned, the victim’s hands were tied and the mutilations inflicted after his death. However, having regard to a number of statements made by the offender about the killing and the fact that he bound the victim’s hands, I consider it virtually certain that, at least when he did so and commenced using the knife, he believed the victim was or may have been still alive. Moreover, having regard to his previous mutilation of the cat, I consider that the offender did not mutilate Mr Parkin’s body in order to kill him, although this must have occurred if he were not already dead, but primarily because doing so satisfied some deep-seated need or provided an unimaginable pleasure.”

13 The reference to “his previous mutilation of the cat” was to an occasion described by Ms Morris on which the applicant used a pocket knife to cut off the ears, tail and toes of a cat and then eviscerate it, all while it was alive. Ms Morris described another occasion when the applicant put a plastic bag over the head of a cat and burned its tail with a cigarette lighter. The applicant told Dr Wilcox that during his childhood he had in anger thrown his pet cat, and once his dog, off a balcony, but denied to her the occasions described by Ms Morris.

14 Adams J accepted the opinion expressed by Dr Milton, a forensic psychiatrist who did not examine the applicant but reported on the basis of materials supplied to him. The opinion was -

“An attack of this level of violence on minimal or no provocation, followed by bizarre mutilation of the body, raises the question of why the offender did it. I do not believe it can be explained on the basis of drug intoxication but is more likely to be a reflection of longstanding extreme aggression and bizarre fantasies and unusual tastes, including pleasure in killing.

The most probable explanation of the murder is that it was deliberate and provided an outlet for feelings of inadequacy, the particular act of killing causing Mr Robinson to feel powerful and effective. That is in accord with his keeping the murder weapon and boasting about his act.

His evisceration and other mutilation of the body is consistent with a liking for extreme morbid stimulation, with unusual curiosity, and with the cruelty described by Ms Morris in regard to Mr Robinson's callousness and sadism to animals (including evisceration similar to that carried out on Mr Parkin). He told Dr Wilcox of having thrown animals from a height.

The killing of Mr Parkin is consistent with Mr Robinson's poor self-concept, past history of violence, interest in weapons, antisocial behaviour and lack of concern for the feelings of others. The offence cannot in my view be explained as a sudden angry reaction to homosexual advances, even if one accepts he was affected by drugs or alcohol at the time. The factors causing the offence are likely to be deeply established in Mr Robinson's being. Thinking about the offence is pleasurable to him, and such behaviour that is rewarding to him is likely to be repeated."

Remorse

15 Counsel for the applicant submitted that there were two specific aspects of the evidence which indicated that the applicant was remorseful. He submitted that it was necessary to bear in mind that the applicant was 17 years old at the time of the offence, and that Adams J described him as an “immature young man” and of low average intelligence. It was unlikely, it was said, that all manifestations of remorse would be in clear terms.

16 The first aspect of the evidence was that in her report Dr Wilcox said that the applicant “expressed considerable regret for his past actions”. Dr Wilcox examined the applicant in relation to his fitness to plead. The applicant told her that killing the victim made a lot of his anger go away. She said, “I asked Mr Robinson if he had ever thought of killing anyone else. He said he would sometimes think about how he would like to kill someone but knew that he would never do it again and he expressed considerable regret for his past actions”. This was not amplified in the evidence.

17 The second aspect of the evidence was that in August 1998 the applicant told Ms Arnautovich that he had done something very bad that he could not take back, something he should not have done, and that although he was “getting rid of just another piece of scum off the streets” he was just as bad as the victim. Ms Arnautovich asked, “Didn’t you say he tried to rape you?”, and the applicant replied that he should have let the police and courts deal with the victim and was just as much a scum as he was. This was, however, followed by the statement referred to by his Honour as mutual telepathy earlier set out. The applicant said other things to Ms Arnautovich which his Honour described as suggesting that he was haunted by the events of the night and was frightened and panicked when he referred to the bowling pin.

18 The applicant’s counsel submitted that this was a substantial body of evidence capable of acceptance which demonstrated that the applicant had a deep sense of remorse and insight into the offence which his Honour had failed properly to take into account.

19 In our view this overstates the position. Further, Adams J did not overlook this material. It was assessed together with the other evidence going to the applicant’s state of mind, and on the evidence as a whole his Honour was not satisfied that the applicant felt remorse for what he had done.

20 The other evidence revealing the applicant’s state of mind was strikingly inconsistent with remorse. His Honour said that the comments made by the applicant in the statements before him were fairly characterised as defiant, self justificatory and boastful, and that they seemed to him to display a distinct tone of relish.

21 Counsel for the applicant submitted that this characterisation was not warranted. He said that it did not take account of the evidence of Dr Milton. Dr Milton said that he considered that the applicant was not capable of the emotions expressed as contrition or recognition of guilt. But it was submitted that Dr Milton accepted that it was “a fairly common paradigm of behaviour” that a person would be publicly boastful and unconcerned but privately remorseful and worried, and that a person from a disadvantaged background might find it more difficult than others to express remorse. In general Dr Milton did accept these propositions, but he nonetheless said that he would have expected from the applicant “some expression of continuing remorse”. Although he had been taken to the material on which the applicant relied for remorse, Dr Milton saw an absence of remorse and “perhaps … some kind of justification”. On a reading of his evidence as a whole, we do not think it goes against his Honour’s characterisation.

22 His Honour specifically referred to Dr Wilcox’s statement that the applicant expressed considerable regret for his past actions. He referred in full to the account of doing something he should not have done given to Ms Arnautovich, and to the other conversations with Ms Arnautovich. His Honour said -

23 His Honour did not ignore such material as there was suggestive of remorse. On a consideration of the evidence as a whole, he did not think it capable of acceptance. The applicant did not give evidence. We can see no error in his Honour concluding that he was not satisfied that the applicant felt remorse for what he had done.

Plea of guilty

24 The applicant pleaded guilty when he was indicted, and Adams J said that he considered that this was, practically speaking, the first opportunity for him to do so. His Honour referred to Siganto v The Queen (1998) 194 CLR 656 and to s 22 of the Crimes (Sentencing Procedure) Act 1999. He then said -

R v Winchester

R v Thomson; R v Houlton

33 Having regard to the extreme gravity of the crime committed by the offender and the serious danger which he represents, I consider that the sentence otherwise appropriate to be imposed should not be adjusted by virtue of his plea of guilty.”

25 R v Thomson; R v Houlton is now reported (2000) 49 NSWLR 383. The Court cited for the passage extracted by his Honour R v Stabler (1984) 6 Cr App R (S) 129, in which a sexual offender with an untreatable personality disorder received no discount (the sentencing judge had said that the only thing he could do consistent with his duty was to protect the public from the offender as long as his powers allowed him to do so), and R v Costen (1989) 11 Cr App R (S) 182, in which R v Stabler was cited with approval. The Court went on to say that (at [158]) there are also crimes which so offend the public interest that the maximum sentence, without any discount for any purpose, is appropriate.

26 The applicant’s counsel accepted that the extreme gravity of the offence and the protection of society could properly mean that no reduction for a plea of guilty is appropriate. But it was submitted that those factors had wrongly been elevated to being determinative against a reduction of sentence, and that there had in any event been failure to recognise the utilitarian value of the plea as distinct from whether it demonstrated contrition.

27 The second element in the submission can conveniently be first considered. It was said that even a plea in recognition of the inevitable had utilitarian value. That is no doubt true, but Adams J did not say otherwise. His Honour accepted the independent recognition of a plea of guilty by reason of utilitarian considerations of public policy. But he considered that there should be no adjustment to the sentence otherwise appropriate for that reason, because of the extreme gravity of the crime committed by the applicant and the serious danger which he represented. Those considerations, and not failure to recognise the utilitarian value of the plea, meant that the utilitarian value of the plea was not productive of a reduction in sentence.

28 The first element in the submission was addressed to his Honour’s reference to the extreme gravity of the offence. It was said that his Honour had “effectively discounted” extreme gravity, because he had earlier noted the Crown submission that but for the applicant’s age the offence “would fall into the most serious category of murder” and because he later described as a proper concession that the Crown had “not submitted that this case falls into the worst category of murder”. One of the factors for declining to reduce the sentence, it was said, was in truth absent.

29 In our opinion this has no substance. The reason for the Crown’s concession was the applicant’s age, and when referring to the proper concession Adams J went on to explain, with reference to s 61 of the Crimes (Sentencing Procedure) Act 1999, that unless the circumstances were very exceptional the heaviest penalty was reserved for mature adults. His Honour’s reference to the extreme gravity of the offence took up his earlier account of its commission and the circumstances in which it was committed. There is no inconsistency between such a description of the offence, taking up the earlier account, and the view that because of the applicant’s age it does not fall into the worst category of murder.

30 We do not think that the submissions of error in the regard paid to the applicant’s plea of guilty should be accepted. However, it should be noted that Adams J referred also in that connection to the serious danger the applicant represents, apparently having in mind the protection of the public in circumstances such as those in R v Stabler. In his submissions as to manifest excess of sentence the applicant’s counsel took issue with the significance given by his Honour to protection of the public, and what he said in that regard could be seen as relevant also to the regard paid to the plea of guilty. We will return to that.

Manifest excess

31 While there was some reference to the non-parole period, the submissions concentrated on the sentence to imprisonment for 45 years. What follows is in the first instance directed to that sentence. We will go separately to the non-parole period of 35 years.

32 As we have indicated, Adams J accepted that having regard to the applicant’s age the offence was not in the worst category of murder. For that reason, he did not sentence the applicant to life imprisonment. But early in his remarks on sentence he said that “[t]he conclusion that this crime was committed by an extremely dangerous and disturbed individual is both obvious and inevitable and requires no psychiatric training to be discerned”. He accepted the opinion of Dr Milton which we have already set out. He referred more than once, including when he declined to reduce the sentence by reason of the plea of guilty, to the applicant presenting a serious danger, as we have said apparently having in mind the protection of the public in circumstances such as those in R v Stabler. The danger represented by the applicant and the need to protect society was prominent in his Honour’s sentencing.

33 His Honour noted that all the doctors agreed, in substance, that there was no evidence of developmental disability, brain damage, psychotic illness or mood disorder, although the applicant’s intelligence was estimated in the low average range. He continued -

“As Dr Milton, however, concluded -

‘In any event, and regardless of the cause, Mr Robinson showed restless, aggressive, anti-social behaviour prior to the killing and such a pattern does not as a rule change much over time’.”

34 His Honour said -

“26. In this case, Dr Wilcox does not suggest that this offender has any real prospect of rehabilitation, although her report appears mainly directed to the issue of his fitness to plead and the possible existence of a defence of either mental illness or diminished responsibility. However, certain aspects of the case led her to suggest that the offender, ‘may have a vulnerability for a psychotic illness and it is possible that at a later time he may develop a mental illness such as schizophrenia’. Dr Nielssen also did not deal with the issue of rehabilitation in terms but stated that, although the offender ‘denied having any sadistic or sexually deviant interests, the pattern of behaviour reported is strongly suggestive of a serious psycho-sexual disturbance that warrants extensive exploration in a counselling relationship’ and recommended treatment including intensive counselling and further education and vocational training. Dr Milton considered that, whilst Dr Nielssen's suggested approach could be supported on humanitarian grounds, from a clinical point of view, counselling or psychotherapy was not likely to produce significant change. Dr Milton concluded that the offender could be ‘contained by a consistent, closely structured environment’ and thought that perhaps over time this, combined with education and medication, might have some positive effect but warned that, ‘the depth of his problems as demonstrated in his history, the murder and mutilation, suggest entrenched and self-rewarding patterns of violent and bizarre thought, with a risk of repetition’.”

35 After further reference to the circumstances in which the offence was committed, his Honour noted -

Veen v The Queen (No 2)

36 After citing from Veen v The Queen (No 2), his Honour said -

“29. Here, it cannot be said that the applicant suffered from a medical abnormality in the medical or psychiatric sense, still less from an abnormality which diminished his moral culpability for Mr Parkin’s murder. Accordingly, not only is the offender dangerous but there is no factor, with the exception of his youth at the time of the crime, which reduces the extent of his criminality. In saying this I do not overlook his family and childhood history which, in a number of respects, was most unfortunate”.

37 In the course of a discussion of sentencing for life his Honour noted, as one of the reasons for restricting a life sentence to the most serious kind of case, the experience of reform of young offenders of which Allen J had spoken in R v Crump (CCA, 30 May 1993, unreported). When arriving at the length of the term of imprisonment his Honour said -

R v Crump

43. Having regard to the gravity of the crime and the requirements of the protection of the public, both the sentence and the non- parole period must be lengthy.”

38 His Honour then pronounced the applicant’s sentence.

39 In relation to the plea of guilty, and generally, his Honour had regarded the applicant as presenting a serious danger from which society should be protected, and he specifically stated that the requirements of the protection of the public (together with the gravity of the crime) called for a lengthy sentence. Yet he said that he could not confidently state that it will never be safe to release the applicant, and referred to the experience of reform of young offenders and to the part played by the Parole Board. The sentencing purpose of protection of the public is, of course, served by a sentence marking retribution, providing deterrence and assisting rehabilitation as well as by incarceration to prevent repetition, but his Honour seems to have focussed on incarceration to prevent repetition. The need for protection of society, in that sense, informed the sentence to be imposed, and that the Parole Board could assess any change in the applicant in 35 years time did not assist in determining whether the 45 years was appropriate because of the need for protection of society. What was the finding as to prospects of rehabilitation?

40 Counsel for the applicant submitted that factors other than the applicant’s age took his case out of the worst category of murder. It was the murder of a single victim, it had been unpremeditated, and it was not the product of enduring hostility or specific motive. Further, it was said, his Honour in reality found, and wrongly found, that there were no or no appreciable chances of rehabilitation, which was unwarranted. The emphasis in the submissions was on this last matter.

41 His Honour was conscious that a sentence otherwise appropriate by virtue of the gravity of the crime can not be extended merely to protect society. On the other hand, where the offender would be a danger to the public if at liberty the protection of society is a matter to be considered in imposing sentence, see Veen v The Queen (No 2) at 475-6 (a case such as R v Stabler reflects that principle). As was said in Veen v The Queen (No 2) at 474, the practical observance of a distinction between extending a sentence merely to protect society and properly looking to society’s protection in determining the sentence “calls for a judgment of experience and discernment”. That judgment is necessarily founded on a finding as to the offender’s future conduct.

42 In the present case the difficulty thus presented was manifest. Given the gravity of the offence, satisfaction of other sentencing purposes demanded a lengthy term of imprisonment – it was said by the applicant’s counsel that a term of imprisonment of the order of 25 to 30 years represented the appropriate range. Protection of society, in the sense abovementioned, therefore looked to the danger which the applicant would present and his state of rehabilitation very many years in the future. The medical evidence fell short of a permanent personality disorder, and the applicant was young at the time of the offence with the possibility of beneficial change with maturity. On the other hand, the offence was horrific, was medically unexplained but probably sourced in “factors … deeply established in [the applicant’s] being” (Dr Milton), and the consequences of repetition in the future would be grave. The gravity of those consequences was undoubtedly material to the exercise of the judgment spoken of in Veen v The Queen (No 2).

43 The applicant’s counsel submitted that his Honour “determined that this applicant was likely to reoffend” and so imposed very close to a life sentence. That was then the basis for a further submission to the effect that the psychiatric and other material before his Honour was insufficient for such a positive finding, and the ultimate submission that his Honour “should have found that he was unable, on the material available to him, to confidently hold that the applicant presented a real danger to the community in that there was a real likelihood of his reoffending” and that there was error in concluding “that there was that degree of dangerousness, that degree of community protection necessary as [it] was reflected in this sentence”.

44 In Veen v The Queen (No 1) (1979) 143 CLR 458 Stephen J asked (at 462) whether the evidence justified the conclusion that the offender “was, and would probably always remain, a source of danger to the community”. His Honour thought the evidence unsatisfactory. He said (at 464) -

“No doubt the whole question of prediction of behaviour in the future is a most difficult one. Its very difficulty is in itself a potent reason against undue weight in sentencing being given to the protection of the community from what is predicted as the likely future violence of the convicted person.”

45 Mason J, with whom Aickin J relevantly agreed, said (at 468) that the court must, in sentencing a person who has been convicted of a very serious offence involving violence, if his record and expert evidence plainly demonstrate that there is a real likelihood of his committing that kind of offence again if he is restored to liberty”, ensure that by the order which it makes that he will not be released whilst that likelihood continues. His Honour said (at 472) -

“The conclusion that an offender suffers from a disordered or unstable mind and that he will commit serious crimes of violence if released with the consequence that he should be imprisoned for life to protect the community is not a conclusion to be reached lightly. It will only be established, if at all, by compelling evidence.”

46 Jacobs J referred to the unsatisfactory nature of the evidence in that case, and said (at 489) that “the court itself must be satisfied that the prisoner has a mental disorder which will lead him to kill or seriously injure in the future before proceeding to sentence on that basis”.

47 Veen did offend again after his release. In Veen v The Queen (No 2) what had been said about establishing likelihood of reoffending was not modified. The sentencing judge, Hunt J, had found that the offender “is potentially – or, indeed, certainly – a continuing danger to society when released, in that he is likely to kill again or to inflict serious injury upon his release … “ (see at 469). In the High Court it was said (at 470) -

Veen [No 1]

48 The imprisonment in Veen v The Queen (No 1) was for life, and the offence was manslaughter but by reason of diminished responsibility. What was said about likelihood of reoffending is relevant in the present case, where the imprisonment is for a very long time and the offence is murder. But certainty is not required, as indeed it could not be.

49 Giving weight in sentencing to protection of society against future reoffending must involve an assessment of both degree of likelihood and gravity of consequences. The likelihood must be a real likelihood, but certainty of reoffending can never be found. In looking to society’s protection in determining the sentence the probability of the offender remaining a source of danger to the community and the gravity of the danger as a probability interact. Thus in R v Harrison (1997) 93 A Crim R 314 it was emphasised (at 319) -

“ … that a sentencing judge is not required to be satisfied beyond reasonable doubt that a prisoner will in fact re-offend in the future. It is sufficient if a risk of re-offending be established by the Crown.”

50 In the present case the nature of the offence and the circumstances in which it was committed of themselves called for serious concern as to future reoffending. His Honour summarised the medical opinions, but some further reference is appropriate.

51 Dr Wilcox examined the applicant in relation to fitness to plead, and did not specifically address reoffending. So far as may be relevant, she said -

“Mr Robinson has had a repetitive history of behavioural disturbance characterised by aggression to people, theft and violation of rules. As a result of his behavioural disturbance he has experienced an impairment in academic and occupational functioning. He would therefore fulfil the criteria of a Conduct Disorder of Childhood and it is probable that unless there is a dramatic change in his behaviour his Conduct Disorder will progress to an Antisocial Personality Disorder. He may have also had ADHD but this is less evident now. In association with the Conduct Disorder he has the additional diagnosis of poly substance abuse/dependence involving alcohol, cannabis, amphetamine and in the past heroin.

Although Mr Robinson does not currently present as having a mental illness, that is, he does not suffer from either a serious disturbance in mood or have schizophrenia there have been periods in the past where he has experienced paranoia. However as he was using both cannabis and amphetamines when he experienced the paranois it is highly probable that he had a drug induced psychosis. The fact that he experienced of a loss of contact with reality (psychosis) while using these drugs suggests that he may have a vulnerability for a psychotic illness and it is possible that at a later time he may develop a mental illness such as schizophrenia.

…

In conclusion, it is my opinion that on the balance of probabilities Mr Robinson is fit to plead. As I believe he was not suffering from a disease of the mind at the time of the alleged offence he does not fulfil the M’Naughten criteria and does not have a defence of a mental illness. However it is possible that a case could be made for a defence of diminished responsibility as Mr Robinson has a disturbance in his personality which is an abnormality of mind that is due to an inherent cause. As a result of having a disturbed personality (Conduct Disorder) he easily loses his temper and has markedly reduced impulse control as evidenced by his past history of violent behaviour. The drugs that he took that evening would have further reduced his ability to resist an impulse and substantially impaired his mental responsibility for his actions.”

52 Dr Nielssen also did not specifically address reoffending; again so far as may be relevant, he said -

“A particularly troubling aspect of the case was the mutilation of the body of the victim, which occurred after he believed the victim was already dead. Mr Robinson did not offer any explanation for his behaviour, and said that he was also puzzled by having done it. I did not elicit a history from Mr Robinson of fetishistic sexual interest, sadistic impulses or any confusion about his sexual identity, which might explain the mutilation of the victim’s body.

Mr Robinson’s behaviour was in keeping with a pattern of revulsion towards homosexuals and people he met whilst posing as a male prostitute, whom he claimed to have robbed. His behaviour was also consistent with the reported history of an interest in weapons and previous mutilation of animals, although Mr Robinson angrily denied both allegations. Keeping the weapon and later boasting about the offence to several people is perhaps consistent with a wish to get caught, but is more likely to be due to pride in his achievement.

I did not establish the presence of any condition likely to have resulted from an abnormality of mind being present at the time of the offence, apart from intoxication with a combination of drugs, particularly alcohol. Intoxication with drugs known to reduce inhibitions may partly explain Mr Robinson’s subsequent mutilation of the body. Impulsive behaviour is a feature of both ADHD from conduct disorder, although a tendency to act impulsively is not of itself and abnormality of mind.

Treatment should be intensive counselling as well as further education and vocation training. Although Mr Robinson denied having any sadistic of [sic: or] sexual deviant interests, the pattern of behaviour reported is strongly suggestive of a serious psychosexual disturbance that warrants extensive exploration in a counselling relationship.”

53 Adams J indicated at one point that Dr Nielssen had not had the episodes with the cats as part of his history. The Crown accepted that this was partly incorrect, in that Dr Nielssen had had this history. We do not think that materially assists the applicant.

54 Dr Milton’s report was much more extensive. It was without the benefit of an examination of the applicant, but Dr Milton had the reports of Dr Wilcox and Dr Nielssen and witness statements, apparently all those which were put before Adams J. Dr Milton said that he preferred to provide an opinion after interviewing a person, but did not suggest that his opinion was of less weight in the absence of an interview; nor was that put to him in cross-examination.

55 We have earlier set out extracts from the report accepted by Adams J. In his summary Dr Milton said -

“Mr Robinson has a long history of antisocial behaviour culminating in a very violent calculated attack, followed by prolonged mutilation of Mr Parkin’s body. His long history of personality problems, criminal acts, including pretending to be a homosexual prostitute and robbing his would-be clients, widespread illicit drug use, rebelliousness and aggression raise obvious doubts about his future behaviour and suggest it will be a very long time before a psychiatrist could reliably say there is no risk of him carrying out a similar violent attack.

He is not of high intelligence, is not very co-operative with counsellors, has difficulty trusting others, is often highly suspicious, and has a strong sense of entitlement. These factors mitigate against successful counselling. On the other hand, containment in the relatively stable environment of prison, with its limited opportunity to express his aggression and in which he could receive education, medication as required, and be prevented from having ready access to drugs, might have some positive effect over a prolonged period.

Dr Nielssen considered there was a serious psychosexual disturbance that warranted extensive exploration in a counselling relationship. He said at page 7 of his report, that treatment should include intensive counselling, further education and vocational training. I support that approach on humanitarian grounds; but from a clinical point of view I am doubtful that counselling or psychotherapy is likely to produce significant change.

Mr Robinson can be contained by a consistent, closely structured environment. Perhaps over time that, combined with education and medication, might have some positive effect, although the depth of his problems as demonstrated in his history, the murder and mutilation, suggest entrenched and self-rewarding patterns of violent and bizarre thought, with risk of repetition.”

56 Dr Milton gave oral evidence. He was asked why he doubted whether counselling or psychotherapy was likely to produce significant (mistranscribed as negative) change, and said -

“A. The behaviour of the kind shown in the offence is rewarding to the person and, therefore, thoughts about it and thoughts of that kind tend to be repeated because they provide satisfaction. The intervention of therapists, education and the like, has that barrier to face before it can effect changes in behaviour. While I think it’s essential that prison, medical and other services provide all possible help by way of changing behaviour, such deeply entrenched behaviour is, in my view, unlikely to be changed by these measures.”

57 Dr Milton said that multiple killings were indicated where a person found satisfaction in killing for its own sake, or killed as a result of a condition of being quick to anger and show violence, or exhibited cruelty to animals.

58 There was the cross-examination earlier considered as to Dr Milton’s opinion concerning the applicant’s remorse. At the conclusion of the cross-examination he was invited to revise that opinion in the light of that “what you have said earlier today orally about his prospects of responding usefully to counselling and therapy and such matters”, and he said -

“A. Let me look at the issues. One is an expression of guilt and haunting and – and if we assume that is genuine, that is a positive factor. One is, I think, his unawareness of himself. And that is something to be taken into account generally as him not understanding being able to express remorse and so on. Yes, I think there is a positive thing, but I would feel, in the absence of anything more that you have said, that I adhere to what I’ve already stated”.

59 In re-examination Dr Milton was taken to what the applicant had said to Dr Wilcox -

“Q. His statement to Dr Wilcox is he knew that he would never do that again. Did you see anything in the material or in the histories taken by the doctors that could have supported that statement by the prisoner; that is, his opinion that he would never do it again?

A. I thought the material generally suggested there was a risk of him doing it again, rather than just being able to say ‘No, I’ll never do it again’.”

60 In our opinion Adams J was entitled to conclude, from the nature of the offence and the circumstances in which it was committed and from the medical evidence, that whatever caused the applicant to murder the victim in the way he did was likely to remain affecting his conduct, and that there was a significant risk of like violence in the future, even very many years in the future.

61 We do not think that his Honour simply made a positive finding that the applicant was likely to reoffend. His Honour was sceptical of rehabilitation. But he could not be confident that it would never be safe to release the applicant. He thought the applicant’s motives and state of mind when offending were speculative. The applicant was an immature young man at the time, and change for the better could come with age. In our opinion his Honour was satisfied that there was such risk of the applicant reoffending that it was appropriate to regard the applicant as presenting a serious danger, so that protection of society should be looked to in determining the sentence: the likelihood was such that, in combination with the grave consequences of reoffending, protection of society by a lengthy term of imprisonment should be part of the sentencing. When he said that it could not confidently be stated that it would never be safe to release the applicant, and recognised that change for the better might come with age, his Honour was doing no more than acknowledge that there could be no certainty.

62 In our opinion the approach his Honour took was properly founded in the evidence, and has not been shown to be erroneous.

63 To return then to the plea of guilty, it follows that his Honour did not err in declining to reduce the sentence otherwise appropriate so far as he had regard to “the serious danger which [the applicant] represents”.

64 We were referred to the sentences imposed in a number of other cases. The sentences on redetermination are of little assistance, as they were imposed with the benefit of knowledge of the offender’s progress in custody, but in R v Glen [1999] NSWSC 1018 an offender who was 19 when he murdered a young girl in shocking circumstances was left with a life sentence, albeit with the possibility of a further application if recent signs of change in his attitude from one of denial and resistance to rehabilitation bore fruit. For all cases the circumstances of offending of course vary widely. Relatively young offenders have received life sentences (R v Fernando; R v Fernando (1977) 95 A Crim R 533; worst category murder, ages 24 and 23; R v Leonard (CCA, 7 December 1998, unreported), two separate worst category murders, age 24). The principle considered in a slightly different context in cases such as R v Tran [1999] NSWCCA 109 at [9] – [12] must be remembered, that although in sentencing young offenders rehabilitation is of particular importance the court must protect society and give effect to the retributive and deterrent elements of sentencing where the offender conducts himself as an adult and commits a crime of violence or considerable gravity.

65 As we have said, counsel for the applicant relied also on the factors that the murder was of a single victim, that it had been unpremeditated, and that it was not the product of enduring hostility or specific motive. It is equally important to consider that the victim was a random object of extreme violence. It was a worst category murder save for the applicant’s age, and had the applicant been older a life sentence could have been anticipated. His was an adult offence, and a grave one. There was no remorse and a need to protect society in determining the sentence.

66 It must be firmly borne in mind that sentencing is inescapably judgmental, and that there is no such thing as one “correct” sentence. That is why appellate decisions speak of manifest excess (or manifest inadequacy) and attribute a discretionary character to the sentencing judge’s decision. And that is why this Court does not intervene simply because its judges would have imposed a different sentence, but only when error in exercising the discretion has been shown or the result is so unreasonable or unjust (the manifest excess or inadequacy) that error is inferred (see for example Dinsdale v The Queen (2000) 202 CLR 321 at 324-5). As was said by Sully J in R v Elemes [2000] NSWCCA 235 at [23], the question is “whether the disproportion relied upon is so manifest on its face as to be indicative of, not a mere difference of idiosyncratic opinions, but, rather, of substantive error of law”. While the sentence imposed on the applicant was a lengthy sentence, according to these principles we are unable to conclude that it was outside the bounds of his Honour’s sentencing discretion.

67 We go to the non-parole period. We do so separately because, as we shortly explain more fully, while the considerations applicable to the setting of the non-parole period are generally the same as those applicable to the setting of the head sentence, the weight to be attached to the material factors and the way in which they are relevant differs according to the different purposes behind each function: Bugmy v The Queen (1990) 169 CLR 525 at 531.

68 Section 44 (1) of the Crimes (Sentencing Procedure) Act requires that the court first set the term of the sentence and secondly set a non-parole period for the sentence. The non-parole period is described as “the minimum period for which the offender must be kept in detention in relation to the offence”. By s 44(2), the non-parole period must be not less than three-quarters of the term of the sentence “unless the court decides there are special circumstances for it being less, in which case the court must make a record of its reasons for that decision”.

69 This does not constrain the discretion of the sentencing judge in relation to setting a non-parole period more than three-quarters of the term of the sentence, nor subject to the statutory fetter in s 44(2) does it create a “statutory norm” for the relationship between the term of the sentence and the non-parole period or make ordinary sentencing principles inapplicable (R v GDR (1994) 35 NSWLR 376, in relation to the differently structured predecessor to s 44 but holding good for s 44).

70 The release of an offender on parole is governed by Pt 6 (ss 125 – 161) of the Crimes (Administration of Sentences) Act 1999. Release at the expiration of the non-parole period is not automatic. An offender can only be released on parole if he has served the non-parole period of each sentence and is not subject to any other sentence (s 126) and the Parole Board has made an order directing his release (s 127). In making a decision whether to order the release of an offender the Parole Board must have regard to the public interest as a consideration of primary importance and to a number of specified matters, including the likelihood that if granted parole the offender will be able to adapt to normal lawful community life (s 135; see R v Purdey (1992) 65 A Crim R 441 at 445-6). In this case it will be the responsibility of the Parole Board not to order the applicant’s release on parole until satisfied that it is likely that he can adapt to normal lawful community life.

71 The court does not fix the non-parole period with regard to the time within which the Parole Board should consider the offender’s case. Section 44(1) describes it as the minimum period for which the offender must be kept in detention, reinforcing the position established in Power v The Queen (1974) 131 CLR 623 that the non-parole period is a minimum period of imprisonment to be served because the sentencing judge considers that the crime committed calls for such detention (see R v Simpson (2001) 53 NSWLR 704 at 716-7). But, as was said in Bugmy v The Queen at 532 -

But the nature of the offence does not assume the importance which it has when the head sentence is determined. There, the sentence must be proportionate to the gravity of the offence

Veen v The Queen [No 2]

, whereas the minimum term represents a portion of the head sentence during which the offender will not be considered for parole.

72 While Adams J said that both the sentence and the non-parole period must be lengthy having regard to the gravity of the crime and the requirements of the protection of the public, it does not seem that his Honour was asked to weigh those matters differently for the purposes of setting the non-parole period. Further, in the particular circumstances of satisfaction that there was such risk of the applicant reoffending that it was appropriate to regard him as presenting a serious danger, but nonetheless reflecting his Honour’s recognition that there could be no certainty (“ … it cannot be confidently stated that it will never be safe to release him”), there is room for the possibility of earlier rather than later release on parole if, contrary to the position indicated by the evidence at the sentencing hearing, there is rehabilitation and otherwise the Parole Board considers release appropriate at a time in the future. The non-parole period must still bear a proportionate relation to the crime. What can amount to special circumstances is not confined, and the considerations relevant to the determination of special circumstances encompass the full range of issues relevant to the determination of a minimum period of detention (R v Simpson at 717). But in the present case the applicant’s youth, the difficulty of predicting the future, the length of the head sentence, the contribution to and by release on parole of rehabilitation if it occurs, and the fact that release on parole is not automatic, in combination seem to us to constitute special circumstances calling for a lesser non-parole period than that stated in s 44(2).

73 The non-parole period fixed by Adams J was almost 78 per cent of the term of the sentence. It is considerably longer than non-parole periods customarily imposed for determinate offences of murder. It appearing that his Honour was not invited to find special circumstances, we consider that we may more comfortably conclude, as we would do in any event, that the non-parole period he set was outside the range of a proper sentencing discretion. In our opinion an appropriate non-parole period which recognises the special circumstances and still bears a proper proportionate relationship to the crime is 27 years, being 60 per cent of the term of the sentence.

The result

74 We grant leave to appeal, uphold the appeal, confirm the head sentence, but quash the non-parole period and in lieu thereof fix a non-parole period of 27 years to date from 22 January 1999. The earliest date on which the applicant will be eligible for release on parole is 21 January 2026.

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Citations

R v Robinson [2002] NSWCCA 359

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CITATION:	R v Robinson [2002] NSWCCA 359
FILE NUMBER(S):	CCA 60679/00
HEARING DATE(S):	24 June 2002
JUDGMENT DATE:	25 September 2002
PARTIES :	R v Christopher Andrew Robinson
JUDGMENT OF:	Giles JA; Dunford J; Greg James J

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	70051/99
LOWER COURT JUDICIAL OFFICER :	Adams J

COUNSEL :	T J Golding - Appellant Dr P J Power - Crown
SOLICITORS:	D J Humphreys - Applicant S E O'Connor - Crown
CATCHWORDS:	Sentencing - murder - offender aged 17 - would be worst case but for age - sentence of 45 years with 35 years non-parole period - whether error in finding no remorse - no error - whether error in not reducing sentence by virtue of plea of guilty - no error - whether sentence manifestly excessive - gravity of crime and need for protection of public - consideration of protection of public - need for protction properly founded in evidence - no appealable error as to head sentence - weighing of factors different for non-parole period - special circumstances - appealable error as to non-parole period. D.
CASES CITED:	Bugmy v The Queen (1990) 169 CLR 525; Dinsdale v The Queen (2000) 202 CLR 321; Power v The Queen (1974) 131 CLR 623; R v Costen (1989) 11 Cr App R (S) 182, R v Crump (CCA, 30 May 1993, unreported); R v Elemes [2000]NSWCCA 235; R v Fernando; R v Fernando (1977) 95 A Crim R 533; R v GDR (1994) 35 NSWLR 376; R v Glen [1999] NSWSC 1018; R v Harrison (1997) 93 A Crim R 314; R v Leonard (CCA, 7 December 1998, unreported); R v Purdey (1992) 65 A Crim R 441; R v Simpson (2001) 53 NSWLR 704; R v Stabler (1984) 6 Cr App R (S) 129; R v Thomson; R v Houlton (2000) 49 NSWLR 383; R v Tran [1999] NSWCCA 109; Siganto v The Queen (1998) 194 CLR 656; Veen v The Queen (No 1) (1979) 143 CLR 458; Veen v The Queen (No 2) (1988) 164 CLR 465.
DECISION:	Grant leave to appeal, uphold the appeal, confirm the head sentence, but quash the non-parole period and in lieu thereof fix a non-parole period of 27 years to date from 22 January 1999. The earliest date on which the applicant will be eligible for release on parole is 21 January 2026.