R v Staples

[2001] NSWSC 990

CITATION:	R v Staples [2001] NSWSC 990
FILE NUMBER(S):	SC 95/007
HEARING DATE(S):	9/2/2001 4/5/2001 29/6/2001 25/10/2001
JUDGMENT DATE:	8 November 2001
PARTIES :	Regina Rodney John Staples
JUDGMENT OF:	Dowd J at 1

COUNSEL :	Mr C Craigie SC- Applicant Ms E Wilkins- Crown
SOLICITORS:	DJ Humphreys- Applicant SE O'Connor- Crown
CATCHWORDS:	Re-determination of life sentence - Murder - Manslaughter - Totality - Rehabilitation - Relevant matters to be taken into consideration - Re-sentencing
LEGISLATION CITED:	Crimes Act 1900 Crimes (Administration of Sentences) Act 1999 Crimes (Sentencing Procedure) Act 1999 Prisons (Serious Offenders Review Board) Amendment Act 1989 Crimes Legislation (Existing Life Sentences) Act 2001 Prisons (Serious Offenders Review Board) Amendment Act 1989 Sentencing Act 1989
CASES CITED:	Dinsdale v The Queen (2000) 74 ALJR 1538. R v Attard & Sharah (Unreported, NSWSC, 9 June 2000). R v Baker (Unreported, NSWSC, 10 May 1993). R v Boyd (Unreported, NSWSC, 7 July 1994). R v Cribb (Unreported, NSWSC, 12 November 1993). R v Crump (Unreported, NSWCCA, 30 May 1994). R v Dodd (1991) 57 A Crim R 349. R v Ellis (1986) 6 NSWLR 603. R v Harris (Unreported, NSWCCA, 20 December 2000). R v Ibbs (1987) 163 CLR 447. R v Lawson (Unreported, NSWSC, 31 May 1994). R v Mansour [1999] 29 MVR 409. R v Petroff (Unreported, NSWSC, 12 November 1991). R v Purdey (1993) 65 A Crim R 441. R v Rushby [1977] 1 NSWLR 594. R v Thompson (2000) 115 A Crim R 104. R v Twala (Unreported, NSWCCA, 4 November 1994). The Queen v De Simoni (1980-1981) 147 CLR 383. The Queen v Veen (No 2)(1987-88) 164 CLR 465.
DECISION:	1. That the life sentence for the murder of Gye Staples is re-determined; 2. The applicant is sentenced to a period of 28 years imprisonment from 19 February 1987 to 18 February 2015. I fix a non-parole period of 20 years from 19 February 1987, to conclude on 18 February 2007, by which time the applicant will be eligible for consideration of parole; and 3. Conditions of parole are as outlined in paras 112-113.

95/007

Regina v Rodney John STAPLES
Judgment

: This is an application by Rodney John Staples originally lodged pursuant to s13A of the Sentencing Act 1989, for an order determining a minimum term and an additional term, for the life sentence imposed by McInerney J on 8 December 1988, for the murder of his two year old son, Gye William Staples, on 19 February 1987. This application was originally made on 27 April 1995. A fixed sentence of fifteen years penal servitude was imposed on the applicant by McInerney J on 8 December 1988, for the manslaughter of his wife, Stephanie Staples.

2 The re-determination of life sentence regime established by the Sentencing Act 1989, which was continued in the Crimes (Sentencing Procedure) Act 1999 (‘the Act’), and the Crimes (Administration of Sentences) Act 1999, abolished the former “Governor’s Licence” provisions of the Crimes Act 1900, under which the applicant could be released from custody before his sentence had expired, without the need for a parole order.

3 The applicant, who was sentenced to life imprisonment before the present regime was established, was entitled to apply to this Court to replace the life sentence with a sentence for a fixed term and, in particular, to set a non-parole period after the expiry of which the Parole Board may grant a parole order. The application can only be made once the applicant has served eight years of the imposed life sentence, which prerequisite has been satisfied in this application.

4 This application is now governed by Sch 1 of the Act, as a result of Sch 2, Div 4, cl 21(1), which provides:

“Any application under s13A of the 1989 Act that had been made, but not determined, before the appointed day is to be determined in accordance with Schedule 1 to this Act.”


The appointed day was 3 April 2000. The Crimes Legislation ( Existing Life Sentences) Act 2001 did not affect this application.

Facts

5 The events which took place on 19 February 1987 at the applicant’s home, consistently with the forensic observations made by the police investigating the murder scene, are largely set out in the applicant’s first interview, there having been many subsequent variations to the applicant’s version of what occurred, as to the reasons and events that led up to the killing of his wife and son.

6 Prior to his first trial and right up to the most recent psychiatric report of 5 June 2001 and indeed in evidence to this Court, the applicant has recounted many different versions of the events that occurred on 19 February 1987. These versions continue to be contradictory and at variance with one another and with the answers given to the police in the Record of Interview on 20 February 1987.

7 I find the facts as set out below.

8 The applicant married his wife Stephanie Staples in February 1986 after they had been living together in a de facto relationship for some two years. The applicant’s marriage to Stephanie had been his third marriage, he having been first married in 1974, when he was aged twenty-one years. His second marriage was in 1977 when he was twenty-five years of age. He had a daughter by his first marriage and a son from his second marriage.

9 Gye William Staples was born on 31 October 1984, less than one year into the de facto relationship. Up to the night before the deaths, the applicant believed himself to be Gye’s biological father. The couple moved to 42 Highgate Street, Bexley, in October 1985, which had, since October 1986, been shared with Stephanie Staples’s brother, Luke Margetts. Luke Margetts was on holidays in Tasmania from early in February, returning on the day of the murders.

10 In late 1986, the applicant had become involved in a sexual relationship with a woman, that relationship continuing up to time of the deaths of his wife and son, as the woman concerned had last seen the applicant on 17 February 1987, two days before these events occurred.

11 On the evening of 18 February 1987, the applicant and his wife Stephanie were discussing potential names for their anticipated new baby, Stephanie being eight months pregnant with what was to be the couple’s second child. It was during the course of this discussion that a disagreement broke out over the naming of the new baby. The applicant did not approve of the wife’s chosen name, Gesinta. As a retort, Stephanie revealed to the applicant that even though he had named their son, he was not in fact the father of Gye. This information was subsequently confirmed through blood tests. The applicant was understandably upset and shocked by this information, and left the house to spend time at the local hotel before returning home.

12 On 19 February 1987, the applicant went to work as usual, at about 7.15am, he having worked for Patti’s Party Hire at Campsie. He was on his way to an afternoon job at Bangor, with his work partner Glenn Bouffler, when the applicant requested that Bouffler drop him off one street away from his Bexley home, under the pretext that he needed to check the time of his brother-in-law’s return from Tasmania.

13 The applicant returned to his home through the back door announcing to his wife that he was home, his wife then sitting on the lounge.

14 The applicant said that he was seeking clarification from his wife about the discussion they had had the previous night concerning him not being Gye’s father. The applicant’s wife repeated that Gye was definitely not his son, but the son of the man with whom she had been having a relationship when they first met. Furthermore, she revealed to the applicant that Gye’s biological father, on hearing of the pregnancy, did not want any contact with either Stephanie or the child.

15 The applicant, on having this information confirmed, began screaming and yelling at his wife. As he continued to yell, his wife responded by saying that Gye’s real father would never have behaved in such a manner.

16 On hearing this comment, the applicant in his rage went to the kitchen, took a large knife from the drawer, and returned to the lounge room where his wife was still sitting, and began to stab her repeatedly.

17 The circumstances of the killing were extremely vicious and horrendous. In his Record of Interview, the applicant recounted the disturbing events as follows:

“I just kept stabbing her in the back. She tried to run away, but I caught up with her between the kitchen door and the bathroom door. As I grabbed hold of the bathroom door, I think I slipped and I bumped into her causing her to fall into the bath. I kept stabbing her. I was finding it difficult to see because the blood was staring to squirt out of her. I left her in the bathtub.”

18 Stephanie Staples sustained 39 stab wounds, covering her neck, chest, breast, abdomen, back, thighs, arms and hands. The wounds to her hands and arms were a result of defensive movements. The eight month old foetus also died as a result of the stabbing.

19 The applicant left the house to urinate in the outside toilet. Before leaving the house, he put the knife down on the cupboard in the kitchen. However, before reaching the toilet the applicant turned around and went back up into the kitchen, picked up the knife again, and then went out to the toilet.

20 When the applicant went outside, his son, Gye was playing in the yard. The applicant called him over to him asking him to go to the toilet. Gye did not come immediately. The applicant relieved himself and as he turned around to make his way out of the toilet, Gye had started to come in. The applicant said to the police:

“I looked at him. All I could see was another man, and not me as his father, so I took the knife and put it into his throat.”

21 The injuries sustained by the child as revealed through the post-mortem, were examined by McInerney J, at page 7 of his Remarks on Sentence. His Honour concluded from the evidence that:

“the knife was plunged in some centimetres in the space between the second and third ribs, was partially withdrawn, and driven in again, this time entering into the upper lobe of the left lung…[T]here was probably a slight withdraw with a thrust of the knife, accounting for the second stab wound in the left lung.”

22 The applicant then returned to the house where his wife was still in the bath. He went into the bedroom and on return to the lounge room he observed that his wife, notwithstanding her terrible injuries, had managed to raise herself from the bathtub and was staggering towards the dining room table. She asked him to get her a pillow. He complied with her request.

23 He went back outside and began to wash the blood off his body and clothes with a hose, as he could not stand the smell of the blood. Before leaving the house, he wrapped the knife in a towel and took it with him. He also cut the telephone cable lines in the loungeroom and the bedroom. The applicant returned to the work van, and placed the knife at the back of the van, before he and Bouffler resumed their journey to Bangor. At Bangor, the applicant put the knife down a stormwater drain.

24 Mr Bouffler said that the applicant returned to the van after about twenty minutes and said

“They are not at home”.

25 Mr Bouffler further stated that he observed nothing different about the applicant’s demeanour or his appearance. The applicant went about his work as normal, also doing overtime.

26 Luke Margetts, at about 5.25pm, on the same afternoon found the applicant’s wife, Stephanie, lying in the dining room and her son, Gye, was found near the outside toilet.

27 The police first spoke to the applicant at his place of employment at approximately 9.10pm the same night. In answer to the police questions concerning his wife, the applicant stated that he attempted to ring home earlier but there was no answer, and when told that his wife and son were both dead he exclaimed:

“Oh no, it can’t be”.

28 He was then taken to Kogarah Police Station where the police questioned him in relation to the murders, he denying any involvement. The applicant denied going home that day. Even when confronted with the statement taken by the police from Mr Bouffler as to the applicant’s movements that afternoon, he continued his denial. At this time, the police officers questioning the applicant noticed blood on the applicant’s clothes and samples were collected for forensic testing.

29 Some time afterwards, the applicant admitted to killing his wife and son with a carving knife at their home in Bexley. He also told detectives where he had placed the knife, which was recovered immediately by the police.

The Law

30 Clauses 3 and 7 of Sch 1 of the Act outline the principal matters to be considered by this Court on this application. For completeness, I have set out the principle relevant provisions in those clauses of the Schedule:

“3 Matters for consideration by the Supreme Court
(1) In considering an application in relation to an existing life sentence, the Supreme Court is to have regard to:
(a) all of the circumstances surrounding the offence for which the sentence was imposed, and
(b) all offences, wherever and whenever committed, of which the offender has been convicted

so far as this information is reasonably available to the Supreme Court….”

“7 Matters relating to the exercise of Supreme Court’s functions

(1) In considering an application referred to in clause 2(1), the Supreme Court is to have regard to:
(a) any reports on the offender made by the Review Council, and any other relevant reports prepared after the offender was sentenced, that are available to the Supreme Court, and

(b) the need to preserve the safety of the community, and

(c) the age of the offender (at the time the offender committed the offence and also at the time the Supreme Court deals with the application), and
(d) in the case of an offender sentenced before 12 January 1990 (the date on which section 463 of the Crimes Act 1900 was repealed by section 5 of the Prisons (Serious Offenders Review Board) Amendment Act 1989), the fact that the sentencing court:

(i) w ould have been aware that the offender sentenced to imprisonment for life was eligible to be released on licence under section 463 of the Crimes Act 1900, and
(ii) would have been aware of the practice relating to the issue of such licences, and

(e) any other relevant matter….”

31 I will now deal in turn with each of these factors.

32 Pursuant to clauses 7(d) and (e), a Judge of the Supreme Court concerned with an application for re-determination of a life sentence must have regard to relevant comments by the Learned Sentencing Judge, at the time the sentence was imposed.

33 The Learned Sentencing Judge in imposing sentence was particularly concerned about the inconsistencies in the version of events relayed by the applicant to the various psychiatrists and psychologists, who had examined the applicant prior to the trial. McInerney J stated at page 18 of his Remarks on Sentence that he accepted the facts set out in the Record of Interview on the very night of the incident, as follows:

“This was a version given to the police freely and voluntarily when the matters were fresh in his mind”.

34 Further, McInerney J found at page 18 that the fatal wounds sustained by the child showed:

“…. considerable determination to effect the killing of the child and to that extent I believe the killing was deliberate and determined. One must bear in mind that his plea of guilty concludes he intended to kill or inflict grievous bodily harm on the boy when he stabbed him”.

35 His Honour concluded that the murder of the child was not impulsive or without premeditation as was suggested by the psychiatrist, Dr Barclay, nor did he accept the applicant’s evidence, when he stated to psychiatrists that he could not remember stabbing the child. The applicant had had time to recover his self-control following the frenzied attack upon his pregnant wife, but instead he deliberately enticed the child into the toilet with the clear intention of causing at least grievous bodily harm.

36 The Learned Sentencing Judge, further stated at page 24 of his Remarks on Sentence that he saw little evidence of remorse since the incident, particularly evidenced by the applicant’s subsequent actions such as the cutting of the telephone cables and his initial denial, with the exception of only one comment: the applicant’s acknowledgment that he loved his wife and child, made during the Record of Interview with the police. He had otherwise shown no remorse.

37 His Honour found that the applicant was clearly aware of his own potential for violence, but nevertheless knowingly went ahead with the altercation with his wife. His Honour acknowledged the profound effect upon the applicant on hearing that his son was not his, but that the applicant nevertheless deliberately placed himself in a situation where there was a possibility of violence and with knowledge of his own propensity for violence. McInerney J concluded that the offence merited heavy punishment.

38 In terms of cl 7(d) of Sch 1 of the Act, it is settled principle that the task of re-determining a sentence in relation to existing life sentences is essentially different from that of releasing a prisoner on licence: R vCrump (Unreported, NSWCCA, 30 May 1994), as per Hunt CJ at CL, at page 12. Prior to the enactment of s13A of the Sentencing Act 1989, prisoners convicted of life sentences were likely to be granted a licence sooner than they would have been granted parole. It is agreed that prisoners could expect to be released after about ten to thirteen years of imprisonment on a Governor’s licence. In Crump, Hunt CJ at CL held that that fact is not relevant when setting parole, as the conditions for parole are vastly different. Licences were more readily and more easily revoked for minor infringements, than is the case with parole, which requires a more formal and more difficult procedure for revocation.

39 Whilst parole may come at a later stage, it is of considerably greater benefit to those serving life sentences, as the prisoner is given more certainty in that there is a definite date for parole, rather than an indeterminate sentence, as was the case prior to the enactment of s13A of the Sentencing Act. It also permits the prisoner to continue progression through the prison classification system.

40 This finding of benefit in relation to parole was further elaborated in R v Petroff (Unreported, NSWSC, 12 November 1991), per Hunt J (as he was then), who held that research by those concerned with the prison system and punishment of offenders in general indicated overwhelmingly that a life sentence deprived a prisoner of any fixed objective to aim for, depleted incentive and can effectively demoralise the individual. He went further to hold, at page 2, that:

“The life sentence imposes intolerable burdens upon most prisoners because of their incarceration for an indeterminate period, and the result of that imposition has been an increased difficulty in their management by the prison authorities.”

41 The Crown submitted to this Court that the applicant would have no expectation of early release on licence in respect of offences involving multiple deaths, and that the Learned Sentencing Judge would not have contemplated that occurring. I agree that the applicant would not have expected early release. This was evidenced in the applicant’s delayed application under s13A of the Sentencing Act. I agree that McInerney J would not have contemplated an early release.

42 The Crown further submitted that this case was very close to a “worst case”. The Learned Sentencing Judge found the murder of the applicant’s son to be pre-meditated and brutal. The offences involved a double killing and the effective loss of a third life with the death of the eight-month-old foetus. The totality of the applicant’s criminality, it was submitted, would place the case in the “worst case” category, thereby attracting a life sentence at common law: R v Ibbs (1987) 163 CLR 447 at 451-452.

43 When hearing a case such as this, which requires a re-determination of a life sentence, the Court needs to take into consideration two fundamental principles of law. The first concerns the objective seriousness of the particular crime, and the second concerns the general sentencing principles that need to be applied in re-determining the life sentence.

44 Pursuant to s61(1) of the Act, a Court must impose a mandatory sentence of life imprisonment, if it is satisfied that:

“…. the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence.”

45 In R v Harris (Unreported, NSWCCA, 20 December 2000), Wood CJ at CL, Giles JA and James J, held that s61(1) of the Act has not introduced a code that is narrower than the common law “worst case” category of cases which requires life sentences. There is no obvious difference between the assessment of whether a particular case falls within the “worst case” category or the level of culpability required under s61 of the Act. The Court in Harris held at page 21, that the decision in The Queen v Veen (No 2) (1987-88) 164 CLR 465,

“…. permits reference at common law to background material for the purpose of assessing moral culpability, and dangerous propensity and there is long standing precedent for regard to be had to each of the matters specified in s61(1) when considering a sentence”.

46 The common law principle is set out in R v Twala (Unreported, NSWCCA, 4 November, 1994) per Badgery-Parker J (with whom Carruthers and Finlay JJ agreed). Badgery-Parker J stated at page 7:

“However in order to characterise any case as being in the worst case category it must be possible to point to particular features which are of very great heinousness, and it must be possible to postulate the absence of facts mitigating the seriousness of the crime (as distinct from the subjective features mitigating the penalty to be imposed)”.

47 The level of culpability in the offence requires, therefore, consideration of any factors in mitigating the objective seriousness of the crime, such as provocation, but does not include subjective features mitigating the penalty to be imposed, such as the subsequent guilty plea or remorse of the offender. In Ibbs at 451-452, the High Court held that the heinousness of a crime depends not on the statute defining that crime, but rather the particular facts of the individual case. Therefore, it is the objective seriousness of the crime that remains of paramount relevance in the sentencing process: R v Dodd (1991) 57 A Crim R 349 at 354.

48 I have had the benefit of reviewing cases which were held by this Court to be in such a “worst case” category: R v Baker (Unreported, NSWSC, 10 May 1993); R v Cribb (Unreported, NSWSC, 12 November 1993); R v Lawson (Unreported, NSWSC, 31 May 1994); and R v Boyd (Unreported, NSWSC, 7 July 1994).

49 On careful review of these cases, I do not consider this case to fall into a “worst case” category. It was not a case of serial murders, nor was it a cold-blooded contract killing for financial gain, the types of cases that have been considered in the worst case category. There was no element of torture or sexual gratification, which are recurring elements in those cases that have been characterised by the Courts as being especially heinous. Whilst I do not consider that this case falls into the “worst case” category, I do want to emphasis that I consider this to have been an appalling and extremely grave crime.

Sentencing Principles

50 The sentence to be imposed for any crime must take into account the many different purposes which that sentence is expected to serve; the protection of society; personal and public deterrence; retribution and reform: Veen (no 2). The joint majority judgment in Veen (No 2) of Mason CJ, Brennan, Dawson and Toohey JJ held at 476:

“The purposes overlap and none of them can be seen in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to appropriate sentences but sometimes they point in different directions.”

51 One of the most important sentencing principles set out in Veen (No 2) was in terms of proportionality. A sentence, it was held by the majority, should not be increased beyond what is proportionate to the crime in order to simply extend the period of protection of society from the risk of the prisoner re-offending upon release. With this in mind, it must nevertheless be finely balanced with considerations of the objective gravity of the offence and to reiterate the point I made above, for without such an assessment the other factors requiring consideration before arriving at a proper sentence to be imposed, cannot properly be given their place: Dodd at 354, R v Purdey (1993) 65 A Crim R 441 at 445.

52 Public deterrence is generally regarded as the main objective of sentencing and subjective considerations (with the exceptions of youth and mental incapacity) made on behalf of each offender, no matter how persuasive, will always be subordinate to the primary duty of the Courts, which is to impose a sentence which must principally serve to deter the further commission of similar crimes: R v Rushby [1977] 1 NSWLR 594 at 597-598; Purdey at 445. Retribution for the injury perpetrated by the offender is also an important aspect for consideration in sentencing: Crump. In this respect, Hunt CJ at CL in Crump held that it is important that not only the community feel satisfied that the offender receives his just desserts, but also that the victims and in this case the family left behind, are satisfied that justice has been done.

53 These principles of sentencing emphasise the fact that rehabilitation is only one of the purposes of punishment, and as Hunt CJ at CL enunciated in Purdey at 445, will always be subsidiary to the need for a sentence to act as a deterrent to the public, and particularly as a means of retribution for the crime that has been committed.

54 The applicant’s age is not a consideration in sentencing or indeed a matter to be taken into account, as the applicant was thirty-three years of age when he committed these offences.

55 The applicant’s plea of guilty, albeit in the face of a very strong Crown case against him, might be taken into account under the utilitarian principles of R v Ellis (1986) 6 NSWLR 603 and R v Thompson (2000) 115 A Crim R 104. However, the value of the guilty plea, whilst I acknowledge its utilitarian value, will not lead to any significant discount in sentence because of the nature of the crime and the overwhelming extent of evidence the police had gathered against the applicant in this case.

56 The matter before this Court is the re-determination of the life sentence of the applicant for the murder of his son, Gye Staples. Hunt CJ at CL in Purdey at 441 held that under the new legislation (which is now incorporated in Sch 1 of the Act), there is essentially no difference between what is required to be undertaken by the Court in re-sentencing and that which would have been undertaken at the time of the original life sentence, except that now the sentence is wholly at the judge’s discretion. Also in re-sentencing, the Court has the benefit of reviewing the applicant’s rehabilitative progress through the Serious Offenders Review Council (SORC) reports.

57 In re-determination, the Court must decide what can be taken into account as a “relevant matter” within the meaning of clauses 3(b) and 7(e) of Sch 1 of the Act, in the re-sentencing process and still accord with the principles enunciated in The Queen v De Simoni (1980-1981) 147 CLR 383 at 384:

“.... that where an indictment does not refer to particular circumstances of aggravation, a judge in imposing a sentence may have regard to those circumstances only if they would not render the accused liable to a greater punishment pursuant to the Criminal Code”.

58 Taking into account the sentencing principles enunciated in De Simoni, Hunt CJ at CL in Crump held at page 21 that the applicant in that case was liable to a mandatory maximum penalty of penal servitude for murder, that is, life imprisonment, and thus to take into account the other circumstances surrounding this case, which included rape and torture, could not render the applicant liable to a more serious penalty than that which was prescribed for the offence of which he was found guilty. The principles stated by Hunt CJ at CL in Crump properly sets out the totality principle.

59 The Court is required by Sch 1 of the Act, in a consideration of a re-determination, to have regard to all the circumstances surrounding the subject offence and to “all offences, wherever and whenever committed, of which the offender has been convicted”. In this case, the applicant was also sentenced, as I have indicated, to a period of fifteen years imprisonment for the manslaughter of his eight month pregnant wife. Hulme J in R v Attard & Sharah (Unreported, NSWSC, 9 June 2000) stated that even without the express terms of Sch 1, this would clearly be a “relevant matter” under cl 7(1)(e). He went on to further discuss at length the difficulty for the Court to determine in what way it should be considered in sentencing.

60 The Attard and Sharah case involved two offenders who were convicted of murder and also of the offence of robbery with wounding, for which both offenders were sentenced to eight years imprisonment. In re-sentencing, Hulme J was concerned that because the lesser charges were subsumed under life sentence for murder, the applicants in their re-determination would be inadequately punished for the murder if the Court could not take into consideration, when re-sentencing, the offence of robbery with wounding.

61 In the recently published Sentencing Manual: Law, Principles and Practice in New South Wales (Sydney: Judicial Commission of New South Wales, Law Book Co, 2001), Ivan Potas writes at page 178:

“When the court is re-determining a life sentence for murder and there are other outstanding sentences to be served, the outstanding sentences must not be disregarded, because to do so would amount to punishing the offender for murder and not for the other sentences. A re-determination sentence must not be made cumulative upon other sentences. Thus the Court should make the sentence for murder longer than it might otherwise determine by taking into account those other offences.”

62 In Attard, Hulme J held at paragraph 54 that:

“Section 3 is to all intents and purposes, a copy of sub-section 13A(4A) of the Sentencing Act 1989 introduced into that Act after 1997, after the remarks of Hunt CJ at CL in Purdey and Stephens to which I have referred. Furthermore the references to “all” and “wherever and whenever” indicate to my mind that parliament intended that the more than usual factors relevant to sentencing for an offence were to be taken into account when exercising the power to re-determine a life sentence.”

63 I respectfully agree with His Honour and I am satisfied that in dealing with the total criminality and the objective seriousness involved in the murder of Gye Staples, I can take into account, in the event that I decide to re-determine this sentence, the preceding events, including the manslaughter of the applicant’s then pregnant wife. However, the principle of totality would mean that I do not simply add to an otherwise appropriate sentence an additional term for the manslaughter, but rather that, the Court, in exercising its power in the re-determining of the life sentence, can take into account the manslaughter of the applicant’s wife as a “relevant matter” when contemplating the objective seriousness of the murder of the applicant’s son.

64 I have had the benefit of examining in detail the life sentence re-determinations made by this Court, dealing with similar case circumstances, including multiple murders and a list of domestic stabbings, giving details of minimum and additional terms, from the inception of s13A of the Sentencing Act in 1990 right through to 2000, providing me with precedents of the sentencing practices held by this Court, as well as an examination of the cases referred to in those schedules.

65 Whilst I acknowledge the importance of uniformity in sentencing, I also recognise that each case is different and, if justice is to be administered fairly, sentencing must be “individualised”. This is succinctly put by Kirby J in Dinsdale v The Queen (2000) 74 ALJR 1538 at 1568:

“Each case must be judged on its own facts. The adoption of a blanket rule would itself be an error of sentencing principle. A discretion must be left to permit those with the responsibility of sentencing to take into account the peculiar circumstances of the case....”

66 I have received and considered, as I consider it appropriate to do so the Victims’ Impact Statements furnished by William and Margaret Margetts, and one by Dr A.C. Castagna on behalf of Luke Margetts and tendered in this Court as Exhibit D. Mr and Mrs Margetts express the daily anguish they go through since the death of their daughter Stephanie and their grandson Gye. They have lost their zest for life since that terrible day in February 1987. Their greatest concern since that happened has been the impact it has had upon their son Luke, who, as a young man, was the person who discovered the mutilated bodies of his pregnant sister, Stephanie, and his nephew, Gye. Luke Margetts, as evidenced by Dr Castagna’s statement, has never got over the ordeal of what he witnessed and has been suffering from Post Traumatic Stress Syndrome ever since. He has been tormented and has never been able to speak about the event to anyone. He has had broken relationships, is unable to maintain a job and has abused alcohol over the past fourteen years.

67 I acknowledge the terrible impact of the crime upon the family of the victims, giving public recognition of the grief endured by the family as a result of the applicant’s crime: R v Mansour [1999] 29 MVR 409 per Spigelman CJ at paragraph 7; s28(2) of the Act. The report by Dr A.C Castagna affords the Court with an objective assessment of the effect of the applicant’s crime upon the victim’s family and in particular on the brother, Mr Luke Margetts.

68 In considering an application to re-determine a life sentence, the Court must have regard to any evidence of later events that are relevant to the sentencing exercise. Among such matters is evidence on the issue of the offenders’ rehabilitation. In the case of the applicant, this will require me to provide an overview and take into consideration the reports from the Serious Offenders’ Review Council (SORC) and the most recent reports from the two forensic Psychiatrists. Although I have considered the Victim Impact Statement, I have not taken that into account in what I have come to say in these remarks, as I consider the other factors which I have set out are the basis for the decision that I have reached.

69 The Victim Impact Statements underline the appalling impact this has had on the family and the Court acknowledges and sympathises with the ongoing pain the family must inevitably feel. There is no way that any re-determination of sentence in respect of this applicant could satisfy or ease that pain that is felt. The decision that I have come to as will be expressed in this judgment is governed by the other factors set out in this judgment.

70 In terms of the subjective material before the Court, the first report from the SORC was on 12 September 1995, Exhibit A in these proceedings, when the applicant first made his application under s13A of the Sentencing Act 1989, for re-determination of his life sentence. I will refer only briefly to this report, as there is another report from the SORC covering 1995 to 2001, which for the purpose of this re-determination application is of greater relevance.

71 In a report for the Classification Committee, Annexure B in Exhibit A, an officer at Long Bay Gaol stated that while the applicant considered himself as the ideal father and husband, his own perception of himself varied considerably with the perception held of him by his work colleagues. He had a reputation for telling fantastic stories and was regarded as a gambler, womaniser and an excellent liar.

72 There was also a report prepared by the Parole Unit for the Release on Licence Board, Annexure D in Exhibit A, which provided information concerning the applicant’s previous conviction. It was noted in a deposition relating to that offence, which concerned the indecent assault of an eight-year-old girl, a daughter of a female friend of the applicant’s, that the applicant had threatened to kill the child if she made a noise. It was also reported that the applicant, when charged with the offence, had attempted to commit suicide by cutting the upper parts of both his arms.

73 The applicant’s reputation as a good, reliable worker within the prison system is evidenced throughout the 1995 SORC Report. He earned a positive reputation from prison staff as a compliant and credible prisoner. The applicant remained in protective custody during this period. There also appears to have been minimum contact with psychologists during these early years in the prison system. He has been in continuous custody since 20 February 1987.

74 A report submitted by Dr William Barclay in July 1994, Annexure J in Exhibit A noted that the applicant was still unable to accept responsibility for the killing of his son and the applicant did not accept the need for psychological counselling. Also in this report, Dr Barclay stated that the applicant dismissed the story, without any elaboration, that he had told prison authorities concerning the “murder” of his mother. This, it would seem, was simply another episode of fabrication on the part of the applicant.

75 However, Dr Barclay concluded that the applicant was not mentally ill either during the commission of the crime or at the time of the examination, and was assessed as being ready to progress through the system. In light of this, the SORC recommended that the applicant be transferred to Berrima Correctional Centre, with a B classification.

76 The recent SORC report, dated 30 January 2001, Exhibit B in these proceedings, indicated that the applicant has had three prison offences recorded, all of a minor nature. The applicant was reclassified to a C1 classification in October 1997.

77 Assessment Committees have interviewed the applicant on a regular basis since 1995, and apart from an aberration on 17 March 2000, when the applicant declined to meet with the Interviewing Committee, on all occasions the applicant was reviewed favourably. These reports are Annexure F in Exhibit B. He presented with a balanced mix of therapeutic contact, personal interests, educative courses and contact with visitors.

78 Certificates of achievement and completed courses were tendered to the Court and are contained in Exhibit 1. They outlined a variety of courses undertaken and completed by the applicant, including educational and what can be described as personal development and awareness courses. I reviewed all these favourably as it does indicate that the applicant is making some attempts towards rehabilitation.

79 The applicant has certainly undergone more psychological counselling in the past five years as compared with the early prison years, which may indicate some effort on the part of the applicant to deal with the acceptance of his responsibility for the offence. In early December 1999, an undated psychologist’s report, Annexure G in Exhibit 2, was submitted to the SORC by Ms Campbell, psychologist, who, in the report stated that the applicant was aware of the vicious nature of the offence perpetrated by him, and verbalised the gravity of the crime and its impact on the lives of the victim’s family.

80 Ms Campbell advised at this time that specific strategies would need to be developed by the applicant to deal with frustration or anger, in the event he should face a similarly stressful situation. Ms Campbell also addressed the matter of the applicant’s attitude towards the offence, and made the following significant assessment, at page 6 of her Report:

“Hence there is a possibility that the attack did not occur immediately after the discovery, but that some planning may have occurred, which Mr Staples has failed to acknowledge. This strongly suggests a lack of insight into the offence. Without knowledge of the factors, planning etc, leading to the crime, it may be very difficult to devise necessary strategies to avoid any future planning”.

81 The SORC, in consideration of these recommendations, stated that if the Court should decide to grant the applicant’s application and determine his sentence so that at some time in the future he would be eligible for parole, then the SORC would develop a management plan to address the matters referred to in the Psychological Report made by Ms Campbell. These strategies would assist in facilitating the applicant’s reduction in security classification, whereupon he would be considered in pre-release programs aimed at testing the applicant in the community, as a prelude to parole.

82 The overall view of the SORC was that the applicant has consistently applied himself whilst incarcerated. He has not presented as a management problem.

83 I want now to deal with the observations made in Ms Campbell’s report and juxtapose them with the evidence given by the applicant in these proceedings, both in examination–in-chief and in cross-examination, and with the reports submitted by psychiatrists, Dr Bruce Westmore and Dr Jeremy O’Dea, concerning the applicant.

84 Dr Westmore’s report is Exhibit 2 in these proceedings, and is dated 18 January 2001. In this report, the applicant recounts a different version of events to those given in the police Record of Interview. Dr Westmore concluded that there was no evidence of mental illness with even some positive signs of growth and maturation. The applicant, he stated, suffered from a personality disorder that is reflected in his hypersensitivity to rejection, producing some fixed ideas about intimate relationships and he had a past history of impulsivity and extreme aggression.

85 In this report, the applicant also stated, when asked how he would respond if faced with a similar situation, that for him to act violently he would have to be in a position where he was protecting something that was his. This, I consider, is a great cause of concern, particularly as the applicant was asked the same question during this application. The following is part of the Transcript of Proceedings of the applicant’s examination-in-chief, at pages 5 & 6, dated 9 February 2001:

Q “A central concern about you in the future will be how you cope with domestic crisis if you happen to be in a domestic situation again.

A I understand.

Q Have you ever given any thought as to what capacity you have or may develop to deal with such eventualities in life?
A Yes I have.
Q If for instance you were in an intimate close relationship again and were ever let down, perhaps let down very badly, betrayed, or deceived, how do you believe you would cope with such an event?
A I would walk away from it”.

86 In cross-examination, the following questions and answers were recorded in the Transcript of Proceedings on the same day, at page 24:

Q “Did you ever say to him [Dr Westmore] that for you to act violently you would have to in a position where you were protecting something that was yours?
A I don’t remember saying that to him, or speaking to him about that.
Q Well is it the situation that you feel that you would or might act violently if you were in a position of protecting something that was yours?
A If I was in a position where, as you say, I was protecting something that was mine, yes, I would more than likely as any person act violently if called for.
Q Would you explain what you mean by protecting something that is yours?
A Not let anybody take it from me.
Q Are you talking about personal possessions or people?
A Children.
Q Children are you?
A Yes.

87 There is an obvious conflict of evidence here and one that is of great concern to me. At this stage in the application, I requested that the applicant be examined by Dr Jeremy O’Dea, in light of the above evidence.

88 Dr Westmore furnished the Court with a further assessment on the rehabilitation strategies that would be required to assist the applicant with long-term behavioural management.

89 Dr Westmore acknowledged that there were some long-term concerns regarding the applicant’s psychological well-being and his behavioural potential. He has suggested in his report dated 12 March 2001, marked Exhibit 4, that along with parole officers, he would recommend that the community-based Mental Health Team, in the area in which the applicant intends to reside, if released, be notified prior to his release on parole, so that they can become involved in his management on his return to the community.

90 Dr Westmore further recommended that with the applicant’s permission, a liaison should be set up between the Mental Health Team, the parole service and the probation team, with reports relevant to the applicant’s mental health made available to the Mental Health Team. This would ensure that the staff managing the applicant’s case would be fully briefed as to the potential danger the applicant may present to the community.

91 Dr O’ Dea’s report to the Court, Exhibit F, dated 5 June 2001, found that the applicant provided him with a complicated history, with many inconsistencies and contradictions in respect of relevant information. Again, much of the information concerning the indexed offences was contradictory to that given to Dr Westmore, and to the version of events given by the applicant in this Court.

92 The applicant was the eldest of six children. He had no contact with his biological father since the age of two, not meeting with him again until he was thirty-four, by which time the applicant was in prison. His mother had many different male partners whilst the applicant was growing up, with some of whom the applicant had a fairly stable relationship. The applicant alleged that his first stepfather was a dominant and abusive man, claiming that he had deliberately driven over the applicant with a tractor. The applicant alleged that most of his mother’s partners were abusive towards him. He left home permanently at the age of twenty-two. He had had an appalling up-bringing.

93 The applicant’s previous two marriages both broke down over apparently “excessive family involvement in the relationship”.

94 The applicant had no psychiatric history prior to the killing of his wife and child. Routine assessment by Dr O’ Dea did not reveal any major abnormalities in his cognitive functioning. As with Dr Westmore’s diagnosis, Dr O’ Dea reported that the applicant is not suffering from any psychiatric illness, but that he had a personality disorder with narcissistic and anti-social traits. Dr O’ Dea related the inconsistencies and contradictions in the applicant’s account of events as to be best understood in the context of his personality and his way of dealing with a situation in which he has found himself since his arrest.

95 There is, according to Dr O’ Dea, great difficulty in assessing the applicant’s potential risk for further violence should he be faced with a similar situation, and can only be meaningfully assessed and managed in the community, but like Dr Westmore, Dr O’Dea suggested that risk management strategies will need to be labour-intensive and long-term, and even at that, the improvement to be obtained is likely to be modest. Dr O’Dea has recommended that the applicant be managed in prison by a senior forensic psychiatrist, experienced in the management of personality disorders in conjunction with corrective services staff to assist the applicant to come to a better understanding of his crimes.

96 Both Doctors Westmore and O’Dea have recommended that the applicant be provided with intensive and extensive input from the Parole and Probation Services when he is released on parole. The applicant will need long-term and labour-intensive management to address the risk of further violent behaviour.

97 Because of the nature of the offences of which he was convicted, much of the period of imprisonment has been served under protection, which has excluded the applicant from training programs and courses. He has though, in recent years, undergone a vast number of courses and qualifications which are, as I have indicated, significant steps in his maturity and rehabilitation. He was savagely attacked on one occasion and has been subject to other insults and injuries, such as the smashing of a model he had made in class work, which was caused by another inmate, on which he had spent nine hundred hours. He has had high work standards in the prison system and, as I have indicated, has posed no problems for the prison authorities.

Sentencing Re-determination

98 It is submitted by the Crown that this is a matter where a re-sentence should not be made, taking into account the need to preserve the safety of the community and the evidence of his elevated scores on the Psychopathic Deviant Scale, which suggest anti-social sentiments and aggression. The Crown points out that the Court should adopt the learned Sentencing Judge’s findings that it is a most serious case of murder.

99 It is submitted by the Crown that this is very close to a worst case. The learned Sentencing Judge found that the murder of the child Gye, to be pre-meditated and brutal and the offence involved a double killing and the effective loss of three lives, and any new sentence should attract a substantial sentence at the top end of the range for murder if a sentence is to be imposed.

100 The Crown submitted that the applicant is of low-average intelligence with little insight into his offences, and is in need of ongoing supervision and that there is evidence that he may become dangerous in personal relationships.

101 The Crown submitted that the Court should dismiss the application as premature and for the applicant to re-apply in two years time.

102 It is conceded on behalf of the applicant that there are many features of his personality disorder, but that there is little that can be done to treat the traits that have been identified and it is put that these do not constitute an argument to keep him perpetually imprisoned. It is put on the applicant’s behalf by Mr Craigie of Senior Counsel that the imprisonment has had a calming effect with the passage of years and with the opportunity for reflection. It is also put on the applicant’s behalf that the setting of a non-parole period does not mean, in his particular circumstances, that the applicant will be automatically released to parole. On the evidence, he clearly had no mental illness.

103 The applicant is an unusual, narcissistic and eccentric man, who displays limited insight yet into his problems. He is of limited intelligence and clearly has a personality disorder. I have considered carefully what has been put by the Crown in respect of this application, but notwithstanding that the applicant has given conflicting evidence, and has not demonstrated that he clearly accepts full responsibility for his actions, I nevertheless consider that most of the personality problems from which he suffers are ongoing and that although his rehabilitation program and his maturing and indeed the aging process will reduce those problems, they are not such as to prevent him from having his sentence re-determined.

104 Although this case is, I agree, close to a most serious case, nonetheless, taking into account the highly provocative circumstances which led to the killing of the applicant’s wife and his child, and taking into account his conduct whilst in prison and the rehabilitation process which is clearly well established, and he has also produced evidence of people outside the prison system with whom he has made contact who wish to assist him. I take into account that a lengthy period of parole under a fairly strict supervisory regime would provide considerable assistance to him during any parole period.

105 I consider that to refuse the application would be just to create, in effect, a preventative detention simply because of the personality that he is.

106 I therefore propose to re-determine the applicant’s sentence. In so doing, I propose to put a regime in place to reduce the risks which must on the evidence exist, but which risks do not outweigh his entitlement to a sentence determination.

107 I do not consider that this is a matter where the parole period should be the whole of life, but I do consider that it should be a lengthy period to allow a very close supervision of the applicant, to allow him the prospect that in the latter years of his life he will be free of supervision. I therefore find special circumstances that permit the non-parole period to be less than three-quarters of the total sentence.

108 The sentence, however, that I propose to impose is a lengthy one and is designed to reflect the totality of the criminality involved, as I am required to consider by Sch 1 of the Act. I note that the sentence of fifteen years imposed on the applicant for the manslaughter of his wife expired on 13 November 1995, he having been taken into custody on 20 February 1987.

109 I have also taken into account the Remarks on Sentence by the learned Sentencing Judge as to the heinous nature of the offence, the subject of this re-determination.

110 The sentence that I impose, to reflect the seriousness of the offence of murder is a period of twenty-eight years, commencing from 19 February 1987 and concluding on 18 February 2015. I fix a non-parole period of twenty years from 19 February 1987 to conclude on 18 February 2007, from which time the applicant will be eligible for consideration for parole.

111 The Parole Board should, when considering the granting of any parole, take into account any treatment or medication to which the applicant is subject in this plan of management at the time he is under consideration for release, and an assessment of the development of his capacity to handle and deal with interpersonal relationships.

112 I direct that as a condition to any parole order, a supervisory management plan should be established by the Probation Team and the Parole Service involved in the applicant’s supervision, in conjunction with an appropriate community-based Mental Health Team, to achieve adequate supervision of the applicant’s conduct and behaviour. He should be as closely supervised as can be reasonably achieved, particularly in the light of any friendships or associations that he may form, once released to the community, in order to ensure that any risk of further offending is significantly reduced. Initially, his release should involve weekly psychiatric examinations.

113 On release to parole, it is a condition that that release should involve weekly psychiatric examinations until the person conducting such examination considers that the interval between visits should be longer.

114 The formal order, therefore, that I make is:

(a) That the life sentence for the murder of Gye Staples is re-determined;

(b) The applicant is sentenced to a period of 28 years imprisonment from 19 February 1987 to 18 February 2015. I fix a non-parole period of 20 years from 19 February 1987, to conclude on 18 February 2007, by which time the applicant will be eligible for consideration of parole; and

(c) Conditions of parole as I have outlined should be attached to any such parole.

oOo

Last Modified: 12/10/2001