R v SLD
[2002] NSWSC 758
•30 August 2002
CITATION: R v SLD [2002] NSWSC 758 FILE NUMBER(S): SC 70092/01 HEARING DATE(S): 5/2/02, 22/3/02, 26/4/02, 14/6/02, 19/7/02, 2/8/02, 23/8/02 JUDGMENT DATE: 30 August 2002 PARTIES :
Regina
SLDJUDGMENT OF: Wood CJatCL at 1
COUNSEL : G. Smith
P. Zahra SCSOLICITORS: S E O'Connor
D J HumphreysCATCHWORDS: CRIMINAL LAW - murder - juvenile - plea of guilty - murder of child. LEGISLATION CITED: Children (Criminal Proceedings) Act 1987
Children and Young Persons Act 1933 (UK)CASES CITED: Cameron v The Queen [2002] HCA 6
R v Garforth NSWCCA, 23 May 1994
R v GDP (1991) 53 A Crim R 112
R v Hearne (2001) NSWCCA 37
R v JB and RJH (1999) NSWCCA 93
R v JPD (2001) VSC 204
R v Kama [2000] NSWCCA 23
R v Pham and Ly (1991) 55 A Crim R 128
R v Previtera (1997) 94 A Crim R 76
R v Preston NSWCCA, 9 April 1997
Regina v Secretary to State for the Home Department; Ex Parte Venables [1988] AC 407
R v SDM (2001) 51 NSWLR 530
R v Sharma [2002] NSWCCA 142
R v SK and OZ (2001) NSWCCA 492
R v WKR (1993) 32 NSWLR 447
Veen v The Queen (No 2) (1988) 164 CLR 465DECISION: Sentence: Imprisonment for 20 years, to commence from 29 January 2001, and to expire on 28 January 2021. Non parole period of 10 years to date from 29 January 2001 and to expire on 28 January 2011.
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
WOOD CJ at CL
Friday 30 August 2002
SENTENCE70092/01 Regina v SLD
1 HIS HONOUR: SLD appears for sentence following his plea of guilty to an indictment charging him with murder. That offence occurred on 29 January 2001, and the plea was entered on 5 February 2002, following arraignment that day. He was committed for trial on 9 October 2001, and the matter was first mentioned in the Supreme Court on 5 November 2001. Since that date there have been a number of adjournments, in order to enable an exhaustive investigation into the background and mental state of SLD. It is accepted that the plea was offered at the first reasonably available opportunity, following preliminary psychiatric assessment.
FACTS
2 At the time of the offence SLD was aged 13 years and 10 months. He lived with his adoptive parents in the near vicinity of the house of his victim, who I shall refer to by her initials CM-C. She was 3 years old. She had been put to bed on the previous evening at about 8.30 pm, and checked by her mother at about 1.00 am. It was a hot night, and while the screen doors were kept closed and locked, the other doors were left open.
3 At about 7 am on the morning of 29 January, her father noticed that the screen door and side gate were open. When he went to wake CM-C he found that she was not in the bunk which she shared with her brother. The rail of the bed was down. He went outside to look for her and found her nightgown lying near the gate. He made a quick search of the road and nearby bushes, but was unable to find any sign of her. Police were called, and a search was made of neighbouring homes and nearby bush land.
4 During the morning Mr LD, the adoptive father of SLD, alerted police to the fact that he was aware that a child was missing, and advised them that his son had been absent from their home during the early hours of the morning. His absence had been noticed when his wife had found the rear door of their house to be unlocked, and SLD to be away from his bed. Mr LD had checked the yard and driven around the nearby area looking for him without success. SLD had returned about 2.45 am, gaining access through the window to his sister’s bedroom. When confronted he was wearing only a pair of shorts. He claimed that he had been out walking and playing with his pet duck. Next morning his parents located some of his clothing secreted under their swimming pool.
5 Mr LD and police confronted SLD who initially claimed no knowledge of the girl. He then said he had seen her during the night, while he was out walking, and offered to lead police to a cave where he had left her to sleep. He said that she had been unharmed. A frantic search of the bush land was then made, with SLD giving contradictory accounts of where he had seen the young girl.
6 It became obvious that SLD was sending police on a wild goose chase, and they implored him to lead them to the girl. He then stated that he had killed her “with a knife. I stabbed her in the heart.” He directed them to an area in the street where a pool of blood was seen on a concrete drive way. A steak knife was lying nearby.
7 At that point SLD was arrested. The naked body of the young girl was found soon after in an area of very tall grass, with a stab wound through the heart.
8 When interviewed by police, SLD claimed that it had been his intention to steal property, and for that reason he had gone out looking for a suitable house. He chose the M-C house because the boys living there had boasted about their computer and video games. He said that having arrived at their house, he cut the mesh on the screen door and went inside to search for the games. Upon seeing the young girl he decided to take her for ransom.
9 Later in the interview, however, he said that he had gone to the house intending to kill the eldest boy in the family, who had been one of a group of boys who had picked on him after an incident at Scouts. It was his plan, he said, to kill three of these boys in turn. On other occasions, both when speaking to police and to the experts who have examined him, he suggested that he did not know why he had acted in the way that he had.
10 It was his assertion to police that he had removed the young girl’s clothes in order to find a good place to stab her. Although he denied any intention of sexually assaulting her, he acknowledged having removed her nappy while she was in her bedroom. She had not woken, he said, as he carried her 300 m or so towards his home. He had placed her on the concrete driveway and then stabbed her once in the chest. When she cried out, he blocked her nose and mouth with his hands until she stopped crying and struggling. He then threw her body up an embankment and covered her with long grass, before returning home where he washed himself, and changed his clothes, before making his way back inside.
11 A number of his answers in the ERISP (particularly those given to questions 188, 189, 203 and 204) make it clear that he had intended to kill the girl. It is upon that basis that he is to be sentenced. Whether or not the offence was premeditated or impulsive cannot be resolved, in view of the inconsistent answers which SLD has given, the utterly inexplicable and cruel way in which he behaved this night, and his history of exaggeration, fabrication, and repetitive anti social conduct.
12 During the interview and walk around he made further attempts to mislead police. For example, he initially said that he had buried the girl’s pants or nappy under the swimming pool, and directed police to where they supposedly were. He was present while they dismantled part of the pool. He later said that they were back at her house, where they were then found. He indicated that he had “toyed” with the police because he did not like them and because he had been in trouble so many times that none of them liked or believed him.
13 Somewhat disturbingly he gave one answer (to question 411) which suggested that, once he had killed one person, he expected that it would become easier killing the next one and the one after that.
14 The autopsy showed that the direct cause of death was a stab wound to the chest. No evidence was found of any sexual assault, although in the context of prior sexual misbehaviour on his part, and in the context of a killing where the young girl had been stripped of her clothing, concern must be entertained as to whether there was some sexual connotation involved, even if it fell short of a physical interference with her.
15 Clearly, this was an exceedingly disturbing killing of a very young child with devastating consequences for the immediate family, as is apparent from the victim impact statements which I have carefully read. They demonstrate as clearly as could be imagined, the heartbreak and destructive impact of the loss of their child, in circumstances which exceed any parent’s worst nightmare. Nothing I say or do could even begin to adequately reflect their loss, let alone to compensate for it, particularly having regard to the limited role which victim impact statements have in the sentencing process: R v Previtera (1997) 94 A Crim R 76.
16 The objective criminality of the young person, SLD, whether spontaneous or planned, was extremely high. An adult who abducted a young child from her bed in the middle of the night and who then deliberately killed her, in a senseless and savage way, particularly one who had a lengthy history of deviant and antisocial behaviour, would be at a very strong risk of being sentenced to the maximum term available, that is, imprisonment for the term of his natural life.
17 It was submitted by Mr Zahra SC that while this was a grave offence, it should not be regarded as one which was premeditated or planned. Certainly no finding to that effect can be made to the criminal onus. However, in many ways a motiveless and inexplicable murder of the kind here seen is as serious as one which was pre planned and motivated, for example by revenge or greed, at least so far as it might be an indicator of future dangerousness.
18 In assessing the objective seriousness of the offence as extremely high, I record that I have taken into account a number of matters which the authorities recognize as circumstances of serious aggravation. They include the fact that it involved a night time break and enter of the victim’s home (R v Preston NSWCCA, 9 April 1997 at 25), that the victim was abducted while asleep in bed (R v Garforth NSWCCA, 23 May 1994 at p 7-8), that the killing involved the use of a knife (R v Hearne (2001) NSWCCA 37 at paras 18-21), that the killing accompanied an intent to kill, that the victim was a defenceless 3 year old girl, that her murder was utterly callous and cold-blooded, and that following the killing SLD went out of his way to play with police.
19 On the other hand, the present offender falls well short of having attained his majority, having been only in his fourteenth year of life at a time when he committed this terrible offence. Very few people of his age have been convicted of such an offence, and fortunately few attempt it.
20 As a young person, his case is to be considered by reference to quite a different set of sentencing principles, which are in part embodied in s 6 of the Children (Criminal Proceedings) Act 1987 and are otherwise reflected in decisions such as R v GDP (1991) 53 A Crim R 112, R v SDM (2001) 51 NSWLR 530, R v JB and RJH (1999) NSWCCA 93 (specifically in relation to murder), and R v WKR (1993) 32 NSWLR 447, all of which place significant weight upon the interest of rehabilitation. However, as the authorities also show, where the offence is one of grave criminality, as is the case here, the interests of punishment and personal deterrence do need to be taken into account, and they may provide a counterbalance to the special concern for rehabilitation: R v PhamandLy (1991) 55 A Crim R 128, R v SK and OZ (2001) NSWCCA 492, R v JB and RJH (supra), R v GDP (supra), and R v JPD (2001) VSC 204.
21 While punishment, retribution and personal deterrence are accordingly important elements in the sentencing exercise, I also observe, having regard to the offender’s age, the very special personal circumstances to which I will shortly come, that the case is one where general deterrence assumes less importance than it otherwise might have. All reasonable observers would recognize that this case is largely unique, and that punishment of SLD is likely to provide little by way of deterrence for other potential offenders.
22 The law also recognizes the relevance of emotional immaturity, of intellectual impairment and of a disturbed or deprived background as factors which can mitigate the objective severity of an offence in the case of young offenders: see for example R v Kama [2000] NSWCCA 23 and R v Hearne [2001] NSWCCA 37 in relation to immaturity, and R v Letteri NSWCCA 18 March 1992, R v Engert (1995) 84 A Crim R 67 and R v Wright (1997) 93 A Crim R 48, where aspects of mental disorder or impaired intelligence exist. Each of these factors is significantly present in this case, and I expressly take them into account as factors reducing his criminality on this occasion. On the other hand they are also matters to be taken into account when assessing what the future holds for SLD and the community when he is eventually released.
SUBJECTIVE CIRCUMSTANCES
23 In these circumstances, not only in order to assess SLD’s prospects of rehabilitation, but also to consider whether he presents as a continuing risk to the community, it became necessary to inquire, in considerable depth, into his background. My purpose in this regard is to determine, so far as I can, what it was that drove him to this crime, and how it is that his mind otherwise functions.
24 The inquiry made shows that his background is almost as bleak and disturbing as his crime, although nothing could, in truth, parallel it. For that assessment, I depend first upon evidence from his adoptive mother, and from Juvenile Justice Reports prepared by, and evidence led from, Karen Clark, a psychologist attached to the Violent Offenders Program, and from Linda Valenta, a Juvenile Justice Counsellor attached to the Sex Offender Program.
25 This evidence was supplemented by material gathered from the DOCS file which had been assembled in relation to the young person’s mother and family prior to his adoption, as well as by reports from various schools, disability services, Area Health Services and from Barnados Family Services.
26 Finally there were reports and evidence, specific to the present offence, from 2 psychiatrists, Drs Westmore and Brent Waters, as well as reports from two clinical psychologists, Timothy Hannan and Peter Champion. In part, their reports were dependent upon the background materials previously mentioned, which had come into existence as a result of long standing contact between his family and DOCS or FACS, and other health and education specialists arising out of the history of family difficulties, and of delinquent or disruptive behaviour on the part of SLD.
27 Together they reveal that SLD was born on 12 March 1987, the youngest of 3 surviving children born to a mother who had an extensive history of substance abuse, including heroin, barbiturates, alcohol and various medications, as well as one involving physical and emotional abuse of her children. She had given birth to three other children, two of whom were still born and one of whom died with SIDS. The oldest of her children was born with narcotic withdrawal symptoms; and she was apparently on the methadone program when SLD and his surviving sister were born, having been a user of heroin earlier in these pregnancies. She had been involved in multiple relationships, which had broken down for various reasons, although mainly as a result of substance abuse.
28 The family had been referred for a Montrose Assessment during July/August 1989, following a series of notifications dating back over the preceding 6 years, mainly concerning the physical and emotional abuse of SLD’s elder half brother, KN. The history then taken recorded continuing incidents involving assaults by SLD’s father of his mother and of the elder brother. This had led to transfers to refuges, to the placement of the children in temporary foster care, and/or of infants homes.
29 The Montrose Assessment was less than satisfactory, it being apparent that SLD’s mother was withdrawing from drugs, was displaying a hostile and a threatening attitude to the assessment team, and for a time went absent without leave. Eventually as a result of her lack of co operation, the assessment was terminated.
30 A Psychiatric assessment was undertaken of her at this time which suggested that she had a severe personality disorder along with a significant problem of polydrug abuse. Her own background was reported as having been one of physical, sexual and emotional abuse within a wholly dysfunctional family.
31 Her mother had allegedly been a prostitute who had supplied her and her siblings with drugs from an early age, and had been uncaring and violent towards them. As a result of this background of neglect, she had no positive memories of her own childhood, or her teenage years, part of which had been spent in various institutions, foster placements, and in psychiatric institutions during late adolescence.
32 Two of her own brothers had allegedly died in a car accident, while two of her sisters had died of drug overdoses before reaching the age of twenty years, leaving behind only one sister and herself. She claimed to have commenced living on the streets at the age of twelve, to have been dependent on drugs from that age, and to have supported herself through prostitution and criminal activities, which had resulted in a number of convictions and periods of imprisonment.
33 What was clear to those preparing the Montrose Report and what was to become critical for SLD, was her significant lack of parenting skills and of any capacity to provide properly for the emotional needs of her own children, including SLD.
34 Sadly, the turmoil of her early life was repeated, as is commonly the case, for each of her surviving children, including SLD. His first foster placement occurred in 1989 when he was not quite 2 years of age. He was returned to foster care again that year, and was also moved to houses of safety, until he and his sister were eventually placed into long term foster care as state wards in 1990. They were then adopted by their foster parents in 1993.
35 Paediatric appraisal of SLD in 1989 suggested that he was developmentally on the borderline of normal range. He was reported by Mr. Champion in 1990 as being of an unusual cranio-facial appearance, a condition later diagnosed as Trigonencephaly, this being a physical feature which has led to him having been the recipient of teasing. He was also suspected to be suffering from an xyy chromosomal abnormality, a circumstance which was later confirmed.
36 His speech was regarded by Mr Champion as being, to a considerable extent, unintelligible and he gave the impression, then, of being significantly delayed in language development, and comprehension. When reviewed by Mr Champion 2 ½ years later in a report for the Children's Court, he said that SLD still demonstrated a significant deficit in his language development, as well as some intellectual compromise. He was reported to have had a chaotic cognitive style – involving impulsive and confused thought processes, and a tendency to extreme exaggeration, fabrication and fantasy. Both SLD and his sister were assessed by Mr Champion at this time as demonstrating “very clear signs of serious emotional damage” flowing from their earlier experiences.
37 A further review was conducted by Mr Champion in 2001, following the current charge and other charges which have since been dismissed, and which must accordingly be ignored by me for the purposes of sentencing. By the time of this review, the young person was noted to have had a history of multiple school placements and of suspensions or expulsions from regular schools as well as from those specifically catering for behaviourally disturbed students. Intervening intelligence testing he noted had placed him in the borderline disabled range. As a result, Mr Champion suggested that he was operating in the lowest 5% or so in terms of competence. Hence, he said, his judgment could be expected to have been impaired to some degree, at the time of the offence.
38 An alleged sexual assault, when he was about 10 years of age by his elder brother, with whom it appears SLD currently has his closest emotional ties, and which had led to that brother being sent from the home, along with a conflicting history of substance abuse, were noted by Mr Champion.
39 Additionally, reference was made by Mr Champion to the worrying history of sexualized behaviour on his part which I will mention later. Additionally there was some history of fire lighting and of cruelty to animals. Mr Champion noted that he seemed to distinguish between certain animals, favouring some but considering it appropriate to kill others, for example galahs and pigeons, and that he spoke of developing various weapons such as seed balls with spikes for that purpose.
40 In the course of this interview with Mr Champion, SLD spoke of his “work” with a group of other unidentified individuals who, on his account, broke into homes and stole cars. He claimed to be the specialist “breaker” and to have derived excitement and satisfaction from being part of that group.
41 Mr Champion had reservations about the truth of his claims of involvement in these acts of larceny, which have in fact been repeated to several of the other experts who have seen him. They were unequivocally rejected by his adoptive mother as untrue, and as incapable of occurrence, in view of the restrictions which had been placed upon him at home.
42 Similarly his adoptive mother queried the truth of the history which SLD had given to Mr Champion of prior substance abuse, which was itself contradictory, and which has not been consistently given to the various health professionals who have seen him.
43 The account of the killing of the young girl which SLD offered to Mr Champion was vague, confused and contradictory of his interview with police.
44 Mr Champion considered his presentation on this occasion to be demonstrably atypical, and although he found no evidence of any of the more overt or florid symptoms of a psychotic process, or of a major mood disorder, he entertained concerns in relation to his problems with reality testing, his tendency to grandiose and magical thinking, his dysfunctional affective display and his confused and disorganized thought processes. Of some concern was his suicidal ideation, his fatalism, his preoccupation with death and his expectation that he would die by his own hand.
45 His current presentation Mr Champion confirmed as indicative of “detachment”, arising from a basic failure in the bonding and attachment process which had resulted in a young man, with few affectionate ties, and with little in the way of a commitment to relationships.
46 His emotional functioning Mr Champion described as “grossly impaired and blunted”, and he considered that this, along with his compromised intelligence and disengagement, were matters which might operate in mitigation. His prognosis he thought to be “very poor”, both in terms of his future mental state, and in terms of his future involvement in criminal offending. The potential for violent offending, however, he found difficult to assess in circumstances where SLD’s account of himself was in such a state of flux.
47 Timothy Hannan retested SLD’s level of cognitive functioning and current mental age, in November 2001. This assessment placed his general intellectual abilities at about the 18th percentile for his age, that is, within the low average range of intellectual functioning. His test age Mr Hannan thought was 2 years and 8 months behind his chronological age.
48 For a while it was theorized that the xyy karyotype, which was confirmed to be present in SLD during 2001, was associated with a predisposition to violent criminal behaviour. More recent studies however contradict that proposition and I do not place any reliance upon it as an indicator of future dangerousness for the reasons outlined in Gunn and Taylor, Forensic Psychiatry: Clinical, Legal and Ethical Issues, 1993, Butterworth- Heinemann, Oxford.
49 Further investigations into the existence of some possible organic basis for SLD’s problems have been conducted. They included a CT brain scan, which found no abnormality.
50 Dr Brent Waters recorded a similar history to that mentioned so far. In the course of his report he drew attention to some of the disruptive incidents in which SLD had been involved after he began his secondary education at Hopetoun special school, which culminated in him causing some $10,000 worth of damage to the walls of the school following his assault of another boy and an ensuing confrontation with the vice principal. He was then transferred to the Annexe, a specialist unit at The Entrance High School, which he was still attending at the time of the present offence. Dr Waters made note of the continuation of his behavioural problems, which had included assaults, acts of teasing and intimidation of other students, and the taking of dangerous implements to school.
51 Dr Waters gave particular attention to those aspects of his behaviour which appeared to have had a sexual connotation. They included incidents of exposure at a special camp for disturbed children, at a scout camp, and also at school; incidents of stealing female underwear from a neighbouring home, and possibly from other premises, and an occasion when he urinated on the bed of the girl whose underwear he had taken, which had followed the family initiating police action against him. SLD’s explanation for stealing underwear was that he did it for fun, so that its owners would not have any such items to wear. He denied any sexual motivation.
52 SLD gave the impression, Dr Waters said, of being buoyant in his mood, and of behaving in a manner, and expressing himself in a way, that did not appear consistent with remorse. He noted that SLD had attempted to explain his aggression at school as being attributable to taking out “his emotions” on other children, due to the physical abuse which he had experienced at home from his adoptive father. The occurrence of any such abuse, whether by way of correction or otherwise, his adoptive mother dismissed in her evidence as untrue. Dr Waters also recorded that SLD had repeated, in a boastful way, his account of being involved in break enter and steal offences, or “sneaks” as he called them, with other boys.
53 When asked by Dr Waters about the killing of the young girl, SLD suggested that although he had been responsible, he had been big noting and had not told the police the truth in the interview, adding that he was not “in the right zone”, whatever that might mean. The Police interview, he said he had regarded as “exciting” and as something which might attract media attention to himself.
54 He was unable, or unwilling, to explain his reason for the killing, but inferred that others had been present, although they were occupied in taking CDs. When challenged as to whether he was “big noting” again, he indicated that he had felt angry and frustrated when he used the knife, digressing to add that this would show his father “how mean he could be” when he gets angry. Later he indicated that anger at his father, on the night of the offence, had set the killing off.
55 At one point in the interview he digressed to complain about the police who he described as “bastards”, adding that he had thoughts of killing one of them.
56 Dr Brent Waters thought him probably quite unreliable as an historian. That was not delusion-based, but rather, it amounted, in his view, to “self-serving simplistic boasts”. No evidence of anxiety or depression emerged, nor was there any evidence of “clear cut regret or distress” concerning the offence.
57 It was his opinion that SLD does not now, and did not at the time of the offence, suffer from any form of mental illness, although his long history of antisocial conduct would meet the criteria for a conduct disorder. His measured IQ at his chronological age at the time of the offence, he said, would have been consistent with a mental age of 10 to 10.5 years.
58 He thought SLD to be strikingly lacking in emotion when describing the killing, and to be motivated by gratuitous self aggrandisement when doing so. He added that his history, leaving aside the charges of which he was acquitted, raised a serious question as to whether there was a sexual motivation behind the murder, and whether he had a predisposition towards violent sexual offences.
59 When giving evidence he said that, while “to date I think it’s not possible to be certain whether there was a sexual motivation in [his crime]… I think there are enough indicators that there may have been”, and that as a consequence this should be addressed as part of his rehabilitation. Similarly he agreed that it was difficult to know how dangerous he was, given the disjunction between the range of his previous disruptive, aggressive, destructive and intimidating behaviour and the present offence. He pointed out, however, that the pervasiveness of the problems, the absence of a believable story and of believable remorse would “put him quite high up the scale of dangerousness.”
60 Dr Waters added that SLD seemed not to think very highly of himself, and to have a need for self-aggrandisement, which had been manifested in his fascination in relation to the media attention he had received. While SLD was reasonably compliant in a setting where there was structure and control, he thought that the people, who were most at risk from him, were those over whom he had the advantage of age and size. Again, he expected that violence, aggression and impulse control needed to be addressed as part of his rehabilitation, and that any program provided for him should also have a socialisation and behavioural element to help him feel better about himself, to develop more mature ways of interacting with others, and to develop empathy and understanding for others.
61 His history of fabrication and confabulation, which made assessment and prediction difficult, Dr Waters said was typical of people who have a deep sense of worthlessness. His early history, Dr Waters thought, was “still reverberating through his life”, since unlike many children who had been adopted at the age of 4 years, with a similar history, and then given a supportive family, he had not changed for the better. While what had happened in these first four years of life was not necessarily irreversible, the likelihood of him now changing into a reasonably socialised adult, he thought to be “reasonably low”.
62 Positive factors which he identified were the fact that during those periods when he had teachers to whom he responded, he had done better, the fact that he was still going through the stages of early adulthood so that some further maturation might occur, and the circumstance reported to him that he seemed not to have presented as a management problem while in custody, and to be responding to the programmes which had been provided. To the correctness of that circumstance or assumption I shall return, since I am not convinced of its accuracy.
63 He made it clear that there would be difficulties in coming to any definite diagnosis, as to the presence of a personality disorder, before the age of 18 years, although SLD’s history of a very disruptive pattern of behaviour from early childhood, which had worsened during early adolescence, meant that the chances of him developing an anti social or substance abuse disorder, or a borderline personality, were in excess of 50% and could be of the order of 70%. The fact that SLD had killed once, he agreed, made it even more likely that such a disorder would develop.
64 His continued expression of homicidal thoughts, Dr Waters accepted could either be genuine reflections of his feelings, or a means of attention seeking. Which it was he could not determine with any certainty, although he accepted that SLD’s observations about it being easier to kill again were of concern.
65 Additionally he agreed that while he appeared to respond to a very close supervisional structure, that did not mean that he would continue to behave in the same way after those controls were lifted.
66 In this regard, he accepted the desirability of the possibility of a redetermination or review of sentence for an offender such as SLD when he attained the age of 21 years or thereabouts, because by then he would have been incarcerated for 6 years and his response or progress to the several programs available could be better assessed.
67 This he thought would be long enough to form some view of how entrenched and dangerous he was. However he also cautioned:
A lot of disruptive children are disruptive in detention, they are very troublesome, you have a pretty clear idea of what is happening but he has shown an ability to be much more compliant in those circumstances and also even when he wasn’t in gaol before when he was a child to be quite compliant under certain social situations. Yet when the context changes there are fewer limits, I would think the problems come back straight away so, to some extent, even at the age of twenty-one it is quite possible that you may not know but there may be important things happening over that period. You may start to see a diminution in the self serving talking and you might see prosocial behaviour where he is helpful with other people and demonstrates empathy. There might be some behaviour outbreak and you will be able to see that their behaviour does improve with time.”“In some people who are quite dangerous when they are in a tightly controlled environment, they can be quite compliant and almost model citizens and yet their nature, when they are out in the community where they can express themselves will return immediately on their release and I think that the problem with that young man is that he is a bit like that.
68 Dr Westmore reviewed SLD on 14 March 2001, 1 December 2001 and 11 July 2002. On the first of those occasions he received a history of him having been involved in break, enter and steal offences, with a friend, and of going out with another friend on the night of the killing, in order to commit some further robberies. According to this version of events, SLD and his friend jump started a vehicle which they found at one of the premises and drove around in it for a while. SLD said that when that friend went home he returned to the victim’s house, where he took some computer games and then abducted the young girl whom he later killed.
69 He was unable to explain to Dr Westmore why he had committed this offence, but said that he had subsequently regretted what he had done and felt sorrow for it. His initial thought, he said, was to take the girl for ransom.
70 He disclosed prior thoughts of killing a number of other people, who included adults, teenagers, and a ten year old. In the case of the teenagers, it was because they had fought and beaten him. He said “the only way to deal with this is to go around and kill them.” In two cases, he said, his thoughts had progressed to the stage of actual planning.
71 He claimed to have had a girlfriend with whom he had been engaging in full sexual activity over about three years. He also claimed to have numerous pets, including scorpions, funnel web spiders, a snake, rats and a pig. He also said that he had lit fires in the bush. His claims in relation to fire setting, and in relation to his “pets”, are unverified. Those relating to sexual activity with a girlfriend, and the commission of robberies were refuted by his mother, as I have earlier observed.
72 Dr Westmore did not think that SLD was clinically depressed, or that there were any psychotic features in his presentation. He had obvious reservations about the truth of the history which he had provided, which he reiterated when giving evidence.
73 When reviewed 8 months later, Dr Westmore again found no evidence to indicate that SLD was suffering from a mental illness. However he raised the possibility of him suffering from a severe personality disorder, but was reticent, due to his age, to provide a definitive opinion to that effect. He expressed particular concern about “the lack of affect displayed by him when discussing this incident” and said that “his lack of emotional expressiveness may have sinister implications for him in terms of his eventual personality profile”.
74 His long term outcome “from a developmental perspective and a dangerousness perspective” he thought to be “most uncertain”. Of some difficulty in this regard, no doubt, were the indications in the history, which was taken on this occasion, that he preferred to keep his thoughts about the incident to himself, and that he tended to do things and think of the consequences afterwards.
75 At the most recent review, SLD offered as a reason for the killing, that it was due to “anger from a long period of time” that he could not get out. He suggested that he had come to this realisation a month or so ago when he had become angry with another young person in the juvenile justice institution who he felt like killing. He said that he had visualized doing this, and disclosed that he had experienced similar feelings once every 5 months or so. He also disclosed having thoughts of killing the police officers who had arrested him, and of wanting to blow up the tallest building in Australia “to show how pissed off I can get”.
76 He claimed to have constant thoughts of feeling bad about the murder of the young girl, but said that he did not show his emotions.
77 Dr Westmore’s conclusions in relation to this disclosure were expressed as follows:
Once again I think the most likely diagnosis is that SLD has a severely troubled personality, the full extent and precise nature of his difficulties will become more apparent as he grows older.”“[SLD] has apparently made a connection between his offending behaviour and the affect of anger. This realisation came about when, while in custody he had feelings of anger and developed homicidal thoughts towards another resident. Theoretically the recognition or realisation of this is a positive step, perhaps the first step in his psychological rehabilitation although as can be seen from the content of this report, he continues to harbour homicidal thoughts intermittently and this young man has a large number of complex unresolved psychological issues which are yet to be addressed.
78 In his evidence to me, Dr Westmore accepted that SLD’s propensity for fabrication and confabulation, and of giving unreliable statements, was material to the assessment of his future dangerousness. In this regard, he also recognised that his expression of homicidal thoughts could be genuine or for his own self enhancement, to make him feel empowered or more dangerous.
79 While it was not possible to reach a definite conclusion, the fact of his previous behaviour and his apparent lack of awareness of the impact of his continuing statement of homicidal thoughts, on a listener Dr Westmore said were of concern. Similarly the pervasiveness of his behaviour over the past 10 years, despite strenuous attempts at remediating it and his reluctance to fully self disclose, were troublesome.
80 While his prognosis was poor at the present time, Dr Westmore accepted that in view of his age, immaturity, intellectual deficits, and the problems in understanding the impact of his earlier history, a positive outcome could not be excluded. In this regard he agreed that if SLD was gaining some insight into the connection between anger and behaviour, and if he was able to form a close therapeutic relationship with a psychologist at the detention centre, then these could be positive indicators.
81 Dr Westmore agreed with the comments of Dr Brent Waters concerning the possibility that offenders, who comply with the ordered structures of the correctional system, can resume their dangerousness once released, that SLD could fit into this category, and that those most likely to be at risk were the more vulnerable people in society. It was his opinion currently that “the balance of the information…is against him in terms of the dangerousness issue.”
82 He agreed with Dr Waters that there was a tradition or practice not to say that a person has a personality disorder before he or she reaches young adulthood, adding:
“.. as Dr Waters said, the pattern of behaviour during early life leads us to forming the diagnosis in reference to some personality disorder and he has that history of that at an early stage so I am really saying that he has got a very troubled personality at best and in a few years time we will become aware whether or not he has a severe personality disorder”.
83 He was also of the view that there would be merit, if it were possible, to redetermine SLD’s position at a later time, observing that by the time he was in his early 20’s, “the patterns of his behaviour are going to be really quite determined and evident”.
84 The report of Karen Clark relating to his behaviour while in custody raised a number of matters of relevance, including his commencement of self harm and tattooing, his claims to have been carrying implements for protection, and to having a plan, which he would not share, in the event of him receiving greater than a five year custodial sentence, as well as a plan to “get even and take care of” a list of people who “have wronged him or his family”.
85 While in custody, she reported, he had been admitted to the Robinson programme, a specialist therapeutic programme for young people with significant issues. She noted that he had continued to attend school, presently at Year 8 level, and appeared to be functioning reasonably well in that school.
86 The description he gave of himself to Ms Clark of being “a cold hearted killer” was somewhat disturbing, as was his perception that others would now be scared of him.
87 The feelings he identified to her, as having been present at the time of the offence, were no less disturbing, namely that they included being “charged up”, that is “getting in and out of the house without being caught”, being “angry” with his adoptive father, and “powerful”, that is, “I had the biggest thing in the world – a young child”.
88 His report of being happy with the results of the offence and of not wanting to change anything, and of his motivation of wanting to get back at the girl’s parents for “repeatedly telling him to get off the grass”, reflect adversely on any claim which he might make to remorse or to have an insight into his offending. In this regard, he specifically denied any remorse and claimed that he had spoken to the young girl in the spirit world and had received her forgiveness.
89 Ms Clark’s psychological testing of him showed that he is an angry young man who is liable to damage other people when he loses his temper, is a potential cutter - self harmer - and has a problem with interpersonal relations and social skills. His mildly elevated levels on the psychopathology scale, she warned, could portend the later development of more serious clinical problems, a matter which would appear to be of some concern, having regard to his history of elevating violence from late childhood.
90 His anger problem she thought to be driven by revenge, and to be a manifestation of his early emotional and psychological damage. She thought him in need of a structured environment that provided security and containment and also to be in need of intensive treatment. In view of the different persona which he presents to different people, and in different situations, any therapist dealing with him, she suggested, would need to address his highly manipulative behaviour over an extended period.
91 It was her conclusion that
- “should SLD receive the proper treatment, he has some chance of becoming a productive member of society in the future. Without the treatment, revenge and resentment is likely to build up over the years and upon release he is likely to carry out acts of revenge.”
92 The treatment she saw as necessary for his many needs included participation in the sex offender and violent offender programmes, as well as psychological and psychiatric attention.
93 When giving evidence she agreed that the program in which he had been engaged so far suggested that SLD had developed a better sense of his issues, had established relationships with staff, and had learned some more appropriate skills and ways to deal with conflicts. Again I will return to that assessment when I refer to his Reiby file.
94 Ms Clark’s report was supplemented by that of Miss Valenta, who concentrated upon SLD’s previously documented history of sexual misbehaviour including his theft of female underwear, genital exposure, his admitted feelings of having some sexual thoughts at the time of the present offence which, disturbingly, had focused on hurting the victim sexually by stabbing her in the genital area, and the fact that he had removed her clothes. By reason of these factors she thought that he may benefit from participation in the sex offender programme.
95 She made it clear that he could not be included in the sex offenders program until he had been sentenced, but she thought that there were some indications from his participation in the Robinson program, and from her discussions with him, that he may respond to treatment.
96 The adoptive mother of SLD gave evidence supportive of the proposition that he was less aggressive and disruptive when subject to a more structured and supervised environment, as he had been in his early years at home, and later at the Annexe. His problems had tended to magnify, she said, when he was attending schools which were less well supervised, or when he had teachers whom he did not respect, or with whom he did not have a good rapport.
97 She also confirmed that he has always had a tendency to exaggeration and fabrication, suggesting that he made up the accounts which had been of particular concern to the health professionals because he liked to shock people, and as a control mechanism, because he did not like people to get to know him too closely. She saw his need to be in control of importance for him.
98 She also thought that his behaviour had deteriorated significantly after the sexual assault by his half brother, after which he seemed to lose his sense of humour, to become aggressive, and more angry and hurtful, particularly at home, even though, paradoxically, he still looks up to that half brother. She conceded that this offence had occurred as he approached puberty.
99 Attempts at counselling and the use of drugs such as Epilim and Ritalin, she said had not redressed the problem, nor had the placements at Glenvale and Hopetoun Schools. However, his time at the Annexe to the Entrance High School had been more productive under the influence of strict guidelines and a strong staff, an assessment which is mirrored by the reports from this school which were included in the material tendered on sentence.
100 Attempts by her to inquire of him as to the reasons for the offence, she said, have been wholly unproductive, and have in fact only resulted in violent outbursts. As a result, that has not been pursued and she could provide no further insight into the offence.
101 Mr Fairall, the clinical coordinator of the Robinson Program at Reiby Detention Centre, who has qualifications in psychotherapy and adolescent psychology, gave evidence of his impressions of SLD since the time of his arrest. He said that, on his arrival, SLD presented as disorganized and disoriented to some extent, and “as a peculiar looking child who did peculiar things and who related to people in a peculiar way”.
102 Mr Fairall reported that he had not presented any particular difficulty in going along with the Robinson program, had been attending school and participating in groups. While there had been difficulties and time out from the school, he said that SLD had always been able to negotiate his re-entry to it. He added that while SLD had difficulty in establishing reasonable peer relations, he had developed quite a way to the point where he wanted to be part of the groups.
103 Of some importance Mr Fairall suggested, was his recently reported realization that he had been previously full of anger all of the time, but now there were periods where that was no longer the case. He also thought that SLD was developing some insights into his anger, and that those who were responsible for him were gaining an appreciation of the range of things, such as frustration with equipment not working as he expected, or external threats, which caused his unregulated anger.
104 It was his assessment that SLD used statements which were designed to shock people as a protective mechanism, to keep others such as the psychiatrists who had spoken to him, away, and as a means of exercising power. This he thought could be attributed to his earlier life history, which had left him fearful, vulnerable, alienated, helpless and disorganised.
105 A complicating factor, which Mr Fairall identified, was the elaborate fantasy which SLD had built in relation to his natural family, at the expense of his relationship with the real and supportive world of his adoptive family. This involved an unreal belief in the goodness of his natural mother and frank hostility to his adoptive family. It was an area which the program was addressing through organising contact with his unreliable natural mother and half brother, in the hope of exposing him to the reality of his situation. So far this contact appears to have been confined to an occasional letter.
106 Mr Fairall explained that caution has been exercised so far, in relation to exploration of the issues surrounding the present offence, both for legal reasons and because this was seen as representing a very difficult and disturbing area for SLD. However he saw some signs of him beginning to develop an insight, which he thought had something to do with his vulnerability as a child, and with seeing, in the victim, a reminder of his family having been taken from him. He expected him to develop remorse through acquiring a capacity through his own experience to appreciate the impact of a loss of a child. However, he also thought because this was a threatening situation, and because SLD had limited defences, that he would have difficulty exposing his feelings.
107 He had not himself been aware of any consistent pattern of SLD harbouring homicidal thoughts and suggested that, so far as the psychiatrists had received such a history, it might be explicable as a defence mechanism. He agreed, however, that SLD was manipulative, and that he had in recent times expressed homicidal thoughts in relation to another detainee, that he had physically attacked a youth worker, and had lost his temper and caused damage during a family visit. He said that SLD had been the victim of teasing and taunting by other inmates, but so far had not been involved in a fight with them, an observation which is in fact contradicted by the file notes. He conceded that SLD does make known to those who taunt or tease him that he has killed before.
108 In general, Mr Fairall held out some expectation of progress, although he acknowledged that it must be said that problems continue and that the intervention must be regarded as still being in its preliminary stage.
109 Mr Fairall’s evidence was confirmed to a substantial degree by Ms Manion. However a review of the incident notes (Exhibit D) shows that, apart from ongoing disruptive and provocative behaviour designed to encourage other inmates to commit mischief, there have in fact, been several incidents of seriously unacceptable or violent behaviour on SLD’s part. These include an occasion in June 2002 in which he and another youth became involved in a fist fight, some little time after each had been disarmed of potentially dangerous cutting implements.
110 On 16 May 2002 he flooded his room, barricaded his room and tried to hit one of the workers while being moved. In April 2002 he engaged in acts of self harm by cutting his left arm, after leaving a suicide note outside his room and on various occasions in March 2002 he was found to have implements in his room which were capable of inflicting injury. In February 2002 he made threats in relation to school staff, and in January 2002 he was found to have taken a set of keys, on an occasion when he was inappropriately out of his room at night, during which incident he threatened a staff member with a tennis racquet.
111 On 31 January 2002 he disclosed having contemplated cutting the throat of a night shift worker and getting his keys in an attempt to escape. He also indicated on this occasion that if he received a sentence of more than 5 years he would kill someone in the unit.
112 On other occasions he has barricaded his door, assaulted other inmates and consistently, it would appear, behaved in an aggressive and disruptive fashion towards staff and other residents, to the point where it is somewhat difficult to understand Mr Fairall’s assessment that he has made any real progress.
113 The additional statements included in the police brief concerning his pre custody behaviour provide some further insight into SLD’s background. In substance they tend to show that his behaviour at home, despite the efforts to control him and the extended assistance provided by a number of health and education professionals, continued typically to be aggressive, and included harassment, including physical and verbal cruelty, of his sister and another adopted child, to the point where at one stage police were contacted with a view to obtaining an AVO.
114 His manner was said to be dominating both of his siblings and of any other children who came to the home to play. His anti social behaviour and excessive anger, when confronted with complaints of inappropriate conduct, had come to the fore on more than one occasion, and had caused him significant problems with his peers and others in authority.
115 Although his adoptive father reported, in his statement, some improvement, at least at school, during the latter part of the year 2000 when SLD had been moved to the Annexe, he had not remained free from problems, having been involved, for example, in an incident late in the year, when he and another boy engaged in the highly dangerous activity of dropping bottles and rocks onto motor vehicles as they passed under a bridge.
116 A statement from the Principal at the Annexe showed, additionally, that he continued to pick on weaker students, and that on one occasion he had stolen some computer games. To his credit on that occasion, he had voluntarily offered an apology to the rest of his class. He had similarly stolen a videocassette while at Hopetoun School, as a pay back to a teacher for not giving him a star sticker for good behaviour.
117 The teachers’ notes for the year 2000, up until his final suspension from Hopetoun School make for very dismal reading, recording incident after incident of aggressive, offensive and disruptive behaviour.
118 During a 1999 camp for young offenders, from which SLD was later excluded because of indecent exposure, he was reported to have expressed an inappropriate interest in killing animals, and to have been consistently non co operative and disruptive, to have engaged in behaviour that had been expressly forbidden because of the dangers it presented for the outdoor activities being undertaken, and then to have threatened a police officer when he was being brought back to the camp after absconding.
119 He has had several other contacts with police due to various antisocial or aggressive incidents, which were noted in the folder of statements tendered in evidence, but which for one reason or another were not pursued, although in the course of them he had displayed a significant lack of respect for police and for other adults, as well as an absence of any appreciation of the significance of his wrong doing. Among the materials tendered were also statements showing that he had displayed a significant lack of respect, and disobedience, during the 2000 season, to those who had tried to coach him in a local soccer team. It was reported that, on more than one occasion, he had assaulted or abused fellow players, behaviour which was again consistent with a pattern of him seeking attention and trying to assert domination over others by threats and violence.
120 In summary, it has been evident, from a very early stage in his life, that SLD has been seriously affected by his background of upheaval, abuse and lack of emotional support, by his intellectual and speech disability, and by his dysmorphic appearance. Despite the enormous contribution put in by many health and education professionals, and the commendable efforts by his foster/adoptive parents who have done their very best for him, he has been quite unable to overcome these deficits, and he remains a very disturbed and problematic young person.
121 His school history has been one of bullying, aggressive behaviour and lack of self discipline, with one serious incident of destruction of property at Hopetoun Special School. Of concern are the number of suspensions and expulsions on record, along with recorded threats of violence to teachers and students, of assaults, of possession of weapons at school, and of sexually deviant behaviour.
122 Of further concern is his history of damage to his own home and out of control behaviour, since the age of 10 years, which was reported by his adoptive parents, and which seemed to become worse after the alleged sexual assault by his elder half brother.
123 At times, however, depending upon the degree of control shown by his teachers, there has been some moderation in his otherwise disruptive, bullying and aggressive ways. This is a characteristic which has attracted the notice of his adoptive parents and of the psychiatrists, all of whom emphasise the need for him to be contained in a strictly controlled environment.
124 A report of Jean Mcguiness in 1993 was, in my view, somewhat prescient in so far as she noted that due to SLD’s poor self image, he tended to test limits in order to gain approval, affection and security. More recently it may have manifested itself in the way identified by his mother, and by Mr Fairall, as a means of shocking people with whom SLD felt uncomfortable, so as to maintain his own security, or in the way noted in the Juvenile Justice Report and by Dr Westmore as a means of gaining control.
125 Either way, this aspect of his conduct has seriously affected his ability to integrate with or to be accepted by others, a factor which is likely to remain even more problematic as he ages, unless his problems with anger, conflict resolution and socialisation can be appropriately addressed. In this regard, his readiness to resort to aggressive behaviour in order to get his own way, and his lack of sympathy or empathy in the past for others, are of considerable ongoing concern, as are his expression of homicidal feelings, and his unwillingness to make full and reliable disclosure in relation to the killing or in relation to the post sentence plan he claims to have. Additionally he has shown himself to be streetwise and capable of manipulation and deception of others.
126 In my view, his history is such that, consistently with the expert opinions placed before the Court, he must be judged as posing a significant level of future dangerousness and to be at a substantial risk of reoffending in both violent and sexual ways. There are also very strong indications from his history of elevating aggression and disruptive behaviour, and from the killing itself, that he will develop a significant antisocial or borderline personality disorder, of some magnitude.
127 Whether that can be addressed in the course of the Robinson programme, and precisely how SLD would behave once freed of the structured and controlled environment of the custodial system, are problematic in the extreme. There are some indications both of progress and of regression, but clearly SLD has to change to a very significant extent, if he is to overcome the effects of a tragic background, which was not of his making, and if he is to leave behind a pervasive history of seriously anti social, aggressive, disruptive, destructive and homicidal behaviour.
128 These findings do need to be taken into account in structuring a sentence that will reflect the interests of the community, in accordance with the principles noted in Veen v The Queen (No 2) (1988) 164 CLR 465. While preventative detention is impermissible, it is proper for the Court to take into account the risk which the community faces from an offender when he or she is sentenced.
129 Additional to the matters noted so far, SLD is entitled, in accordance with the principles enunciated in R v Sharma [2002] NSWCCA 142 to the benefit of his plea of guilty which I accept is to be taken as having been offered at the earliest reasonable opportunity, and to have had a significant utilitarian value, as well as having displayed some acceptance of responsibility and a willingness to facilitate the course of justice of the kind noted in Cameron v The Queen [2002] HCA 6.
130 I do not consider that it displays much in the way of remorse, as distinct from an acceptance that a conviction was inevitable. The presence of remorse and insight remain highly questionable, since there has been very little which SLD has done, or said, to convey that he has any genuine feelings in this regard. On the other hand it is possible that he entertains some regret and shame, but is emotionally unable, by reason of his personality problems, to show that openly.
131 To sentence a person of his age for the offence of murder, is a formidable challenge, for which there is very little, if any precedent in this country or elsewhere. In this regard the various decisions concerning the fixing of a tariff arising out of the conviction of the two boys who murdered Jamie Bulger, when they were aged 10 ½ years, particularly that reported in Regina v Secretary of State for the Home Department; Ex Parte Venables in the Court of Appeal [1998] AC 407, House of Lords [1998] AC 467, and the later decision of the Court of Appeal in Re Thompson [2001] 1 All ER 737, provide some, although limited, assistance by reason of the very different sentencing regime there involved.
132 In view of the concerns which I will later mention, in relation to sentencing in a case such as the present, it is convenient to make brief reference to the Bulger case, which fell to be dealt with pursuant to the Children and Young Persons Act 1933. Under the sentencing regime so established, the offenders were sentenced to be detained pursuant to her Majesty’s pleasure.
133 Pursuant to s 53(1) of the Act “tariff recommendations”, concerning the minimum period which would need to expire before the offenders were released, were made in 1993 by the trial judge and by the Lord Chief Justice respectively of 8 and 10 years. In the exercise of the power reserved to the Secretary of State, in 1994, the tariff was set at 15 years, which would have permitted a first review after 12 years (that is, 3 years before the tariff date), so as to determine whether the offenders could be released on licence at the expiry of the tariff. Upon appeal the Secretary of State was found to have taken inappropriate considerations into account and the 15 year tariff was quashed.
134 Following that decision and other proceedings in the European Court of Human Rights, a change of legislative policy was announced so as to allow for the tariff in cases involving children aged under 18 years to be set in open Court. In the meantime, the case was referred back to the Lord Chief Justice for a recommendation which the Secretary of State indicated he would accept.
135 After a consideration of the striking progress and genuine remorse which each of the offenders had displayed over the intervening 7 years, and taking into account the undesirability of undoing the good work which had been achieved, by sending them into young offender or adult institutions, Woolf LCJ refixed the tariff at 8 years (at 742). His Lordship did however indicate that had he been determining the matter in 1993, he would probably have selected 10 years as being the appropriate tariff. Moreover, he made it clear (at 741) that the sentencing regime in existence meant that the offenders would be on licence, and liable to be recalled to custody for the rest of their lives, if they did not comply with the terms of their licence.
136 Nothing approaching this procedure is available to me. If a life sentence were to be specified, I could not fix a non parole period. Moreover, there is no procedure in existence for sentencing a young offender to Her Majesty’s pleasure, or for fixing a minimum term and accompanying date for a review as to whether the offender should be released on licence or parole at the end of that period. The only option I have is to fix a head sentence, and if it is one other than imprisonment for life, to specify a non parole period.
137 In undertaking that exercise, I must take into account not only the extreme objective seriousness of the offence, but also the interests of rehabilitation, which have particular significance for a young offender, including the question whether imprisonment in an adult institution will undo any attempts at rehabilitation. They in turn, are to be judged in the light of the offender’s subjective circumstances, both so far as they may explain the offence, and so far as they may provide an indication of whether he will respond to any therapeutic or other program, and whether he will continue to present a danger to society.
138 As the law presently stands, I must impose a sentence in the light of what is presently known, notwithstanding the circumstance that none of the psychiatrists or psychologists who have examined SLD and who have given evidence, can be certain what the future holds, or what truly motivated him. I have given consideration to the possibility of adjourning the sentencing to a date well into the future, so that SLD’s performance in the Robinson Programme can be better assessed, and so that a firmer diagnosis as to his mental state can be made. However, I am of the view that to leave the matter in a state of uncertainty for the period required, would be counter productive, and that a case such as the present does not admit of an application of the kind of principles which underlie Griffiths remands.
139 The only alternative, as I see it, is to impose a significant head sentence which would reflect my assessment that the present offence fell into the upper range of objective seriousness, and that SLD poses a significant risk of recidivism and of being a serious risk to the community in terms of potentially killing again or committing sexual offences.
140 The interests of rehabilitation, and the faint signs that he may yet acquire some control of his anger, and some degree of empathy and social skills, through the intensive programmes available within the Juvenile Justice System and elsewhere within the Correctional System, should in my view, be reflected by fixing an appropriate non parole period. That should be one which will permit an extended period of release subject to supervision on parole, dependant however upon the way in which SLD responds to these programs while in custody, and upon the resolution or development of the personality problems presently evident.
141 I am satisfied, by reference to his age at the time of the offence, his early childhood trauma, his intellectual impairment, the fact that he has not yet matured either intellectually or emotionally, and the special treatment which can be provided initially within the juvenile justice system, and later within the adult system, that these constitute special circumstances, so as to permit a variation of the usual ratio between the head sentence and the non parole period. Additionally they justify permitting SLD to remain in a detention centre for a limited period after attaining the age of 18 years.
142 However, in view of the fact that he is physically very well developed, has limited empathy and a record of bullying and domination of younger children, as well as one of disruptive and aggressive behaviour over the past 8 months while held in custody, I consider that it would be inappropriate for him to remain in a detention centre beyond the age of 19 years. I say that having regard to the interests of the other detainees who are likely to be exposed to the kind of aggressive behaviour and poor example which he has set so far, but also having regard to his own interests since there is a risk that experience, age and superior physical strength will only entrench any tendency he has to dominate other more vulnerable persons.
143 The period between now and the age of 19 years I regard as sufficient for him to gain at least the school certificate, as well as to establish the basis for readjustment and socialisation, and to prepare him for vocational training more relevant to an adult.
144 In the meantime he can benefit from the sexual assault and violent offender programmes, and can then reinforce those gains in the programs specifically available for adults. In that regard I do not consider that a sentence and non parole period can properly be handed down which would free him from transfer to the adult correctional system. Any such sentence would fail to reflect the objective severity of the offence or the need for the protection of the community.
145 SLD, in the light of the forgoing findings, I sentence you for the murder of CM-C to imprisonment for 20 years, to commence from 29 January 2001, and to expire on 28 January 2021. I fix a non-parole period of 10 years to date similarly from 29 January 2001 and to expire on 28 January 2011. Whether you can be released on 29 January 2011, being the earliest possible parole release date, will depend upon such progress as has been made towards your rehabilitation by that time. You will need to understand that even if released to parole, you will be subject to close supervision for the following 10 years, and will be at risk of being returned to custody for the whole or part of that period if you re-offend.
146 In accordance with s 19(1) of the Children (Criminal Proceedings) Act 1987, I direct that such of this sentence as shall relate to the period until SLD attains the age of 19 years is to be served in a detention centre.
147 I will refer these reasons for sentence to the Criminal Law Review Division for consideration of a possible amendment of the law so as to cater for special cases such as the present. The cases I have in mind are those involving juveniles who are convicted of offences attracting a possible maximum sentence of 25 years or more, who are aged less than 15 years at the time of the offence, and where the information available at the time of sentencing does not permit the Court to make a proper assessment as to the presence or likely development of a serious personality or psychiatric disorder, and/or propensity for future dangerousness. In such a case it would be desirable, in my view, if the Court could sentence the offender initially to be detained at her Majesty’s pleasure, with provision for review and resentencing at a later date, for example at the age of 21 years, or after say 5 years in custody.
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