R v Towner

[2002] NSWSC 951

CITATION:	REGINA v. TOWNER [2002] NSWSC 951
CURRENT JURISDICTION:	Criminal
FILE NUMBER(S):	SC No. 14 of 1997
HEARING DATE(S):	6 December 2001, 27 June 2002
JUDGMENT DATE:	18 October 2002
PARTIES :	REGINA v. TOWNER, Neville Raymond
JUDGMENT OF:	Greg James J at 1

COUNSEL :	Crown: P. Power, SC. App: H. Dhanji
SOLICITORS:	Crown: S.E. O'Connor App: D.J. Humphreys
CATCHWORDS:	Criminal law - life sentence - re-determination under s.13A, Sentencing Act 1989 - murder and attempted rape of child under 10 - considerations of principles applicable - consideration of life sentences under subsequent sentencing regimes - consideration of sentences passed after re-determinations - offence not meriting life means life - difference in nature between life sentence with parole and life sentence with no prospect of release - application of principles relating to non-parole period to fixing minimum term.
LEGISLATION CITED:	Sentencing Act 1989 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Baker [2001] NSWSC 412 Clarke (1990) 48 A. Crim. R. 100 Baker [2002] NSWCCA 184 Ainsworth (1994) 76 A. Crim. R. 127 Previtera (1997) 94 A. Crim. R. 76 Cribb (CCA, unreported 4 November 1994) Petrinovic [1999] NSWSC 1131 Fernando (CCA, unreported 21 August 1997) Garforth (CCA, unreported 23 May 1994) Purdy (1992) 65 A. Crim. R. 441 Johnstone (Badgery-Parker, J., unreported 20 November 1992) Carr (Greg James, J., unreported 23 April 1999) Harris [2000] NSWCCA 469 Hitchins (Grove, J., unreported 3 June 1993) Pearce aka Luckman (James, J., unreported 20 October 1993) MBD (CCA, unreported 6 March 1996) Gregory (Finlay, J., unreported 7 June 1991) Lewthwaite (Slattery, J., unreported 31 July 1992) Beatty (Newman, J., unreported 8 November 1991) Jessop (Sharpe, J., unreported 7 February 1992) Stephens (McInerney, J., unreported 22 December 1987) Kalajzich (1997) 94 A. Crim. R. 41 Veen [2000] NSWSC 656
DECISION:	The sentence for murder should be re-determined and the applicant is sentenced to life to date from 18 May 1989. That sentence comprises a minimum term of 20 years to expire on 17 May 2009, together with an additional term of life imprisonment.

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

GREG JAMES, J.

FRIDAY 18 OCTOBER 2002

No. 14 of 1997

REGINA v. NEVILLE RAYMOND TOWNER

RE-DETERMINATION OF LIFE SENTENCE

The application

1 HIS HONOUR: By application dated 3 September 1997, Neville Towner has applied for the re-determination of the life sentence imposed upon him in the Supreme Court following his conviction for murder. He had also been sentenced for an offence of assault with intent to have sexual intercourse with a person under the age of 10 years. The applicant is presently aged 36, having been born on 21 December 1965. He has been in continuous custody since 18 May 1989, on which date his sentences were directed to commence. He has therefore been serving his sentences for over 13 years. The application is brought pursuant to s.13A of the Sentencing Act 1989 (the Act), the history and applicability of which section I will refer to later.

The sentences

2 On 6 March 1992, Newman, J. convicted the applicant of the two offences and in respect of the offence of assault with intent to have sexual intercourse with a person under the age of 10 years imposed a sentence of 13 years and four months commencing on 18 May 1989 and expressed to expire on 17 September 2003. As his Honour expressed it, that sentence comprised a minimum term of 10 years and an additional term of three years and four months. There is a disconformity between his Honour's expression of the expiry date of the sentence and his expression of its length, but on any view, that sentence has either been completely or almost completely served.

3 The nominated expiry date is appropriate to a sentence one year longer than the length of the sentence expressed by his Honour. However, having regard to the life sentence imposed, even if it should be re-determined, that one year difference had and will have no practical significance.

4 On the same day, his Honour convicted the applicant of murder and sentenced the applicant to life imprisonment, directing that sentence also to commence on 18 May 1989. His Honour sentenced the applicant, applying the then statutory regime under s.19 of the Crimes Act 1900 under which he was required to impose the sentence of life imprisonment unless the applicant's culpability for the murder was found by him to be significantly diminished. In that regard he concluded:-

"In my view, there is nothing which can be gleaned from the facts of this case from which it can be said that the prisoner's culpability for murder has been significantly diminished. Accordingly, the only sentencing option open to me is to sentence the prisoner to life imprisonment. Under the Sentencing Act 1989 such a sentence confers upon the prisoner a right to apply to this court not earlier than eight years from the date that the sentence commences for a review."

5 His Honour refrained from making any further comment on the prospective release date of the prisoner. In particular, his Honour made no recommendation that the applicant never be released.

Facts as found by the trial judge

6 His Honour found the following as the facts of the offences:-

"The facts which I find that the jury determined are as follows: that on 17 May 1989, Lauren Jennifer Hickson, then aged four years, was residing with her parents at the Emu Plains Caravan Park. The prisoner, who had previously resided at the park, was then a friend of the victim's parents and was regarded with affection and consequent trust by his victim. On that day, the prisoner, who then lived a few kilometres from the caravan park, went there ostensibly to return a bike he had borrowed from the victim's father. Having returned the bike, the prisoner, on leaving the immediate area of the caravan in which the victim and her parents lived, came across Laurent Hickson who was playing by herself in the grounds of the caravan park. He then lured her to an area of bushland adjacent to the park where, in the seclusion of the bush, he attempted to have sexual intercourse with the child. These attempts, which resulted in a vaginal injury to the child, causing (sic) her to scream. To silence her, he struck her a number of occasions, including the use of a rock, and held her head under the waters of a stream.
Once he realised the child was dead, he placed her in the stream so that her body was totally immersed and then left the immediate area. Strangely, he did not leave the area of the caravan park forthwith but lingered, a factor which, amongst other things, led to his detection."

7 His Honour referred to the prisoner having been in custody since 18 May 1989 and having a minimal criminal history, being a person, other than in that respect, of good character. He had suffered a hard upbringing but was held in high regard by a number of people who provided testimonials at the sentencing hearing.

8 It was expected by his Honour at the time of sentencing that for much of his sentence the prisoner would be kept in strict protection and be subject to a hazardous life within the prison system.

9 His Honour accepted that the crime involved no prior planning, but was committed as it were on the spur of the moment, the crime having been left, in terms of the applicant's background, unexplained, but without any matter in his past indicating that he was predisposed to commit the offences in question.

10 The applicant was 23 at the time of the offences. At the time of sentencing, he was aged 26. His Honour took into account that during the applicant's confinement prior to sentencing he had taken the opportunity to advance himself in an academic sense. His Honour, however, was of the view that this was a case where no longer additional term was called for.

11 In fixing those sentences, his Honour expressly had regard to his agreement "in the main" with the observations made and with the sentence ultimately passed by Justice Sully following an earlier trial of the applicant. I am required to have regard to the recommendations, observations and comments of Newman, J. and hence those with which he agreed of Sully, J., by reason of s.13A(10A) of the Act.

The earlier trial

12 The second trial had come about as a result of the decision of the Court of Criminal Appeal on 9 September 1991 which determined that there should be a new trial having regard to certain directions given to the jury by the original trial judge. That court did not deal with matters of sentence.

13 Sully, J., in his remarks on sentence of 20 July 1990, had described the crimes as "horrible". In his view, the murder was "a worse kind of case". His Honour regarded the crime as dreadful enough and appalling enough without the additional factor of it having been committed against a little child of four and a half years, in which case the crime assumed, he said, "a dimension so ghastly that, in truth, language cannot be stretched far enough, adequately to describe it". His Honour, notwithstanding he was of the view that the crime was that appalling and dreadful, referred to the same statutory right to apply for a review to which Justice Newman later referred. His Honour determined that he should say nothing which would "inhibit", "fetter" or "cut across any proper exercise of the discretionary review contemplated by s.13A", but did express the view, that:-

"… if and when this prisoner is deemed fit for release back into the normal community, his subjective circumstances as they appear from the material which has been put before me are such that it would seem to me to be self evident that he will re-emerge into the community as a person who will require, in his own interest as well as in the interest of the proper protection of the community, such careful and measured supervision for a longer – and a distinctly longer – period of time than might otherwise have been appropriate."

14 Both judges were, I have no doubt, well aware of the matters which s.13A(9)(a) requires me to consider and which are referred to at paragraphs 51 to 53 and 72 of my judgment in Regina v. Baker [2001] NSWSC 412 . Those matters are set out in Regina v. Clarke (1990) 48 A. Crim. R. 100 at 104.

15 The references to the right to seek a review after eight years refers to s.13A(3)(a), and shows that their Honours were distinguishing the applicant's situation from that to which s.13A(3)(b) applied, ie., the necessity that at least 20 years of the sentence be served before the applicant is eligible to apply in the case of a sentence subject to a non-release recommendation. That was the relevant provision applicable in Baker (supra). It is common ground that the same statutory scheme applies to both this applicant and Baker's application albeit with that difference I have referred to.

16 Neither sentencing judge expressed the view that the applicant should never be released and in their recommendations, observations and comments both contemplated the possibility of review and the possibility of release. I will therefore proceed in accordance with s.13A(10A) in relation to those matters.

17 Those matters distinguish this application from that of Baker who I declared was not eligible to make the application, having regard to the non-release recommendations made in his case and to the statutory scheme applicable.

The statutory scheme

18 The history of the applicable statutory scheme is set out in detail in the judgment in Baker (supra) at paragraphs 35 to 38, 50 to 54. The statutory scheme was referred to by me in detail in that decision at paragraphs 59 to 73 and 78 to 79. The decision in Baker (supra) was the subject of an appeal to the Court of Criminal Appeal. The statutory scheme was referred to in the judgment of that court in Regina v. Baker [2002] NSWCCA 184 at paragraphs 6 to 9. In paragraphs 33 to 37, Ipp, AJA., with whom Dunford and Bergin, JJ. agreed, referred to the procedure contemplated by s.13A. (Since the point is not taken in the present proceedings, I need not discuss that court's upholding of the validity of the legislation, notwithstanding the constitutional challenge.)

19 That statutory scheme is set out in s.13A as it appeared in the Sentencing Act 1989 prior to the repeal of that Act by the Crimes (Sentencing Procedure) Act 1999. Section 13A is relevantly: -

"13A. Existing life sentences
(1) In this section:-
“existing life sentence” means a sentence of imprisonment for life imposed before or after the commencement of this section, but does not include a sentence for the term of a person’s natural life under s.19A of the Crimes Act 1900 or s.33A of the Drug Misuse and Trafficking Act 1985.
“non-release recommendation”, in relation to a person serving an existing life sentence, means a recommendation or observation, or an expression of opinion, by the original sentencing court that (or to the effect that) the person should never be released from imprisonment.
(2) A person serving an existing life sentence may apply to the Supreme Court for the determination of a minimum term and an additional term for the sentence.
(3) A person is not eligible to make such an application unless the person has served:-
(a) at least 8 years of the sentence concerned, except where paragraph (b) applies, or
(b) at least 20 years of the sentence concerned, if the person was the subject of a non-release recommendation.
(3A) A person who is the subject of a non-release recommendation is not eligible for the determination of a minimum term and an additional term under this section, unless the Supreme Court, when considering the person’s application under this section, is satisfied that special reasons exist that justify making the determination.
(4) The Supreme Court may, on application duly made for the determination of a minimum term and an additional term for a sentence:-
(a) set both:-
(i) a minimum term of imprisonment that the person must serve for the offence for which the sentence was originally imposed, and
(ii) an additional term during which the person may be released on parole (being either an additional term for a specified period or for the remainder of the person’s natural life), or
(b) decline to determine a minimum term and an additional term.
(4A) In considering such an application, the Supreme Court is to have regard to all the circumstances surrounding the offence for which the life sentence was imposed, and all offences, wherever committed, of which the person has been convicted at any time (so far as this information is reasonably available to the Supreme Court).
(5) A minimum term set under this section is to commence on the date on which the original sentence commenced or, if the person was remanded in custody for the offence, the date on which the first such remand commenced.
(6) If the Supreme Court sets a minimum term and an additional term under this section, the sentence comprising those terms replaces the original sentence of imprisonment for life.
(7) A minimum term and an additional term set under this section are to be taken to have been set under this Part but are not required to comply with the other provisions of this Part.
(8) If the Supreme Court declines to determine a minimum term and an additional term, the court may (when making that decision) direct that the person who made the application:-
(a) never re-apply to the court under this section, or
(b) not re-apply to the court under this section for a specified period.
(8A) If the court gives a direction under subsection (8) that a person may never re-apply to the court under this section, the person is to serve the existing life sentence for the term of the person’s natural life.
(8B) If the court does not give a direction under subsection (8), the person may not re-apply within the period of three years from the date of the court’s decision to decline to determine a minimum term and an additional term.
(8C) A direction under subsection (8) that a person may never re-apply to the court under this section or not re-apply for a period exceeding three years may be given only if:-
(a) the person was sentenced for the crime of murder, and
(b) it is a most serious case of murder and it is in the public interest that the determination be made.
(9) The Supreme Court, in exercising its functions under this section, is to have regard to:-
(a) the knowledge of the original sentencing court that a person sentenced to imprisonment for life was eligible to be released on licence under s.463 of the Crimes Act 1900 and of the practice relating to the issue of such licenses, and
(b) any report on the person made by the Review Council and any other relevant reports prepared after sentence (including, for example, reports on the person’s rehabilitation), being in either case reports made available to the Supreme Court, and
(c) the need to preserve the safety of the community, and
(d) the age of the person (at the time the person committed the offence and also at the time the Supreme Court deals with the application),
and may have regard to any other relevant matter.
(10) The regulations may make provision for or with respect to reports referred to in subsection (9), including provisions relating to the matters to be dealt with in reports and the making of reports available to the Supreme Court.
(10A) The Supreme Court, in exercising its functions under this section:-
(a) must have regard to and give substantial weight to any relevant recommendations, observations and comments made by the original sentencing court when imposing the sentence concerned, and
(b) must give consideration to adopting or giving effect to their substance and the intention of the original sentencing court when making them, and
(c) must, to the extent that it declines to adopt or give effect to those matters, state its reasons for doing so.
(11) The Supreme Court may make a determination for a minimum term and an additional term for a sentence even though the court was not the sentencing court, or the court is not constituted in the same way as it was when the applicant was sentenced.
…”

20 The facts of the offence, as set out in the statement of facts filed in accordance with Practice Note 57 and accepted by the applicant, according to the reply filed by him, relevantly are:-

" Facts of the case
Background to events of 17 May 1989
14. The Hickson family: father Derek, mother Jurina, daughters Tracey (aged 14) and Lauren (DOB 11.10.84) had been residing in a caravan part at the Nepean River Caravan Park since shortly after Lauren's birth.
15. The applicant and his mother Ruby also resided at the Caravan Park until 1986 when they moved to a house at Kingswood.
16. Mrs. Towner and Mrs. Hickson had contact with each other within weeks of the latter moving into the Caravan Park and the applicant's mother babysat Laurent on occasions.
17. This arrangement continued after the Towners moved to Kingswood with Lauren being brought to their house.
18. The little girl was apparently used to the applicant being around as his employment was only intermittent and he was receiving social security benefits at the time of the offences.
19. It might be noted that this last employment was for a period of two weeks in March 1989 at a fabric warehouse in Alexandria where Lauren's father was a warehouse supervisor. It was apparently Mr. Hickson who had secured this employment for the applicant.
Events of Wednesday 17 May 1989
20. Shortly after 1.30 pm on that day, four and a half year old Lauren Hickson was allowed by her mother Jurina to go outside their caravan and play in the vicinity.

21. At about 2.00 pm, Ms. Hickson had a short conversation with the applicant when he returned a bicycle belonging to her husband Derek, to the caravan.
22. It was at some time between 1.3 pm and 3.30 pm (probably shortly after 2.00 pm) that the applicant was observed by a female resident of the Caravan Park approaching Lauren near the amenities block at the park.
23. The little girl was seen to come up to the applicant who bent his legs a little bit and when she put her arms up to him he picked her up. She then put her arms around his neck and 'snuggled into his shoulder'.
24. A short time later the witness observed the applicant and Lauren wandering off in the direction of the camping area and they appeared to be holding hands.
25. As the applicant has his victim reached a bushland area adjacent to the caravan park at a place where there was a small creek, he removed the little girl's footwear, jeans and underpants and attempted to have sexual intercourse with her.
26. The attempt at sexual assault caused her to scream and to silence her he struck her, mainly about the head, on more than one occasion using nearby rock for that purpose.
27. The applicant then held her head under the waters of the creek and, from the observations of Dr. Peter Ellis, the forensic pathologist, it would appear that in so doing he gripped the little girl's neck tightly.
28. Once he was satisfied his victim had died, the applicant totally immersed her body in the creek and then left the immediate area.
29. He was observed by and had a conversation with two maintenance workers in the caravan area at about 3.00 pm and was transported from the area to the vicinity of his Kingswood home by taxi at about 3.45 pm.
30. After a search for Lauren by local residents instigated by Ms. Hickson had proved unsuccessful, police were called in at about 4.00 pm and enquiries into her disappearance commenced.
31. The applicant was spoken to by police at a Penrith medical centre at about 6.00 pm and stated that he had not seen Lauren that day.
32. At about 7.50 pm, the applicant, accompanied by his mother, was transported from his home to Penrith Police Station where a two and a half page exculpatory statement was obtained from him in which he denied seeing Lauren whilst he was at the caravan park that day and added that he had not seen her since the previous Sunday.
…
33. At about 9.30 am on 18 May 1989, Lauren's body, naked from the waist down, was observed by one of the searchers when it floated to the surface of the creek into which it had been immersed. Her body was removed from the creek and placed on the bank.
34. Forensic pathologist, Dr. Peter Ellis, carried out a preliminary examination of the body in situ before conducting a full post mortem examination at Westmead Hospital from 3.30 that afternoon.
35. At about 10.00 am on 18 May 1989, police went to the applicant's Kingswood home and escorted him to Penrith Police Station.
36. After arriving at the police station, he authorised blood and hair samples to be taken from him just as earlier that morning he had given other police permission to take the clothing he had been wearing the previous day.
37. At some time shortly after 2.00 pm on 18 May 1989, Detective Sergeant Laney questioned the applicant about the statement he had made the day before and received the initial response that he was positive he had not seen Lauren on that day.
38. However, when Detective Laney informed him that he had been seen with Lauren the previous afternoon at the caravan park, the applicant said, 'that statement is not correct I'll tell you exactly what happened'.
39. Commencing at 2.30 pm, the applicant then took part in a seven page signed record of interview with Detective Laney which contains admissions of his responsibility for the sexual assault and murder of Lauren Hickson substantially in accord with the information at paragraph 25 through to 28 of this statement.
…
40. At 4.25 pm, the applicant indicated that he was prepared to go with detectives to the Nepean River Caravan Park and show them where the events of the previous afternoon had taken place. This conversation and what then occurred during the walk around at the caravan park were recorded in a police notebook. The applicant signed the notebook at Penrith Police Station at 5.30 pm.
…
41. Injuries observed by Dr. Peter Ellis during the post mortem examination described by him at trial can be summarised as follows:-
(a) Two main areas of bruising on the face; one around the right eye extending to the top of the nose and another in the centre of the lower part of the forehead. Also a long deep laceration about the right eye as well as a fairly large depressed fracture on the right side of the skull.
(b) The presence of small found fingertip bruises on the skin of the neck and upper body as well as petechial haemorrhages at the base of the neck, which strongly suggested to him that there had been a manual application of the hands in the form of an attempted strangulation.
(c) Fresh blood in the abdomen which appeared to have come from a tear at the tip or back of the liver. When asked to describe the nature of the trauma or blow which could have brought that about, the doctor said, 'it would certainly have to be a significant blow or significant trauma, either a blow or a kick, possibly severe trauma applied over a stead period of time, such as standing or kneeling on the abdomen but to injure the back of the abdomen would imply a fair degree of force'.
(d) A small tear one centimetre long at the back of the vaginal opening – also a number of small haemorrhages into the wall of the lower part of the vagina.
42. He agreed with the Crown Prosecutor that there were a number of injuries which contributed to the victim's death 'in particular the head injury the injury to the abdomen, the effects of strangulation and asphyxia'.
He deposed that he felt that the asphyxia, the strangulation was probably the most important cause but the head injury was also most serious and added 'I think they both contributed. They were both capable of causing death by themselves. The abdominal injury was very serious but the quantity of blood was probably not sufficient on its own to cause death but in combination with the asphyxia in particular would have contributed significantly. The injury to the vagina, while certainly not causing death or capable of causing death by itself, by virtue of effect on blood pressure in particular, the possibility of pain and to a certain degree a certain amount of shock may have contributed'.
43. On 19 May 1989, when he was in custody at Parramatta Gaol, the applicant gave the following version of the subject events (which had taken place two days earlier) to a psychiatric nurse, Patricia O'Neill:-
"I went to the caravan park that day to return the girl's father's bicycle. On leaving the caravan park, I met the little girl and took her for a walk. At some point during this walk the little girl began to scream for no reason. I held are head under the water. Then when I released she was almost dead and I hit her with the rock.'
44. Ms. O'Neill also deposed that the applicant was very worried about the effect this (the offences would have on his family and also on the girl's family."

21 It does not appear from what material that statement of facts was compiled. It is filed in accordance with Practice Note 57. IT is accompanied by the various reports in evidence before the trial judge, admissions by the applicant, a reference and the remarks on sentence.

22 I note that in his signed record of interview, one of the supporting documents to the statement of facts, the applicant claimed he had drunk almost all of a bottle of tequila and taken two painkillers during the day and prior to his attack on the victim.

23 The applicant had pleaded not guilty, defended both trials and appealed against the conviction at the first trial. He abandoned an appeal against the conviction at the second trial.

24 Following his conviction, the applicant denied his responsibility for the killing both to the psychiatrist, Dr. William Barclay, whose report dated 3 March 1992 was in evidence on the sentence, and to a Community Corrections Service officer, Patrick Besso, whose pre-sentence report dated 5 March 1992 was also in evidence before the trial judge.

An issue as to relevant intent

25 Notwithstanding acceptance by the applicant of the statement of facts and that I was informed an intent to kill was now conceded, at the end of oral argument and at the conclusion of the last hearing of the matter, an issue was raised concerning the applicant's intent which it was submitted had consequences for ascertaining the applicant's culpability. It was contended that the applicant was merely reckless as to the killing of his victim rather than intending to kill when he acted as he did and that his culpability was therefore diminished.

26 The offence of murder was defined by s.18 of the New South Wales Crimes Act 1900 as at the date of the offence and now as including certain relevant intentional states: an intent to kill; an intent to cause grievous bodily harm; and reckless indifference to human life. Since the offence of assault with intent to have sexual intercourse was not an offence to which a sentence of life imprisonment or imprisonment for 25 years was applicable, that statutory form of liability for murder often referred to as "murder felony" which does not require any such intent, was not here applicable.

27 Neither trial judge made any express finding of any particular intent. Newman, J. referred to the striking of the deceased "[T]o silence her" and the placing of the body under the water "[O]nce he realised the child was dead". Sully, J. did not turn to the facts in detail.

28 The question of the applicant's precise intent was not in issue in the Court of Criminal Appeal.

29 In evidence before me the applicant claimed no relevant memory. That state of affairs was supported by numerous reports and psychiatric evidence. The trial evidence and summing up are not before me and the events are now so many years old. All I can do then is proceed to determine the question on those facts admitted and the findings of the trial judge drawing such appropriate inferences as I find made out as of sufficient strength, having regard to the gravity of the conclusion on which they bear.

30 So far as there is any difference between the statement of facts and the findings of the trial judge, at least so far as any matter adverse to the applicant and material to the result about which I am in doubt is concerned, I should resolve that doubt in the applicant's favour, conformably with general principles of sentencing.

31 It was submitted for the applicant that "an intention to kill cannot be established beyond a reasonable doubt at this later time when paragraph 28 of the statement of facts is read in this context" That reference is to paragraph 28 in the statement of facts.

32 I repeat paragraph 28:-

"Once he was satisfied his victim had died, the applicant totally immersed her body in the creek and left the immediate area."

33 The reference to his being so "satisfied" in paragraph 28 is not reflected in Newman, J.'s conclusions that I have set out.

34 The Crown submits:-

"1. The Crown does not concede that the applicant acted with reckless indifference when he struck the victim 'mainly about the head, on more than one occasion using a nearby rock'. In the Crown's submission, his actions were clearly deliberate and evidenced a clear intention to kill or inflict grievous bodily injury upon the young victim.
2. If this approach is not accepted, the Crown nevertheless submits that there is no other conclusion available but that the applicant acted with a clear intention to kill the victim "when he gripped the little girl's neck tightly' and 'held her head under the waters of the creek' until he was satisfied his victim had died."

35 Consistent with Newman, J.'s expressed views, I am unable to conclude that the applicant "held her head under the waters of the creek" until he was satisfied his victim had died or gripped the little girl's neck tightly so as to display an intent to kill but in my view, the striking plainly evidences an intent to kill or to do grievous bodily harm, rather than reckless indifference.

36 It appears that the actions of the applicant causing the death were unpremeditated and the result of panic occasioned by the victim's scream. But the context of an attempted rape of a child so young and which attempt caused her to so scream gives to the murder additional gravity.

37 In my view, nothing turns on the difference between the challenged intent to kill and the asserted reckless indifference as the culpability of the applicant if he struck her, as Newman, J. described while adverting to the probability of killing her (reckless indifference) or with intent to cause grievous bodily harm, rather than intending to kill her would not, in my view, be relevantly diminished (see Regina v. Ainsworth (1994) 76 A. Crim. R. 127).

The evidence on the application

38 I now turn to the material and evidence before me on the application.

39 In the report of the Serious Offenders' Review Council dated 7 April 1998, the applicant's gaol history is revealed in detail. He had initially attempted self-harm and had, for a long time, been at risk of attack and kept for years under an onerous regime of protection. Various psychological reports on him showed and show no indication of his presenting a risk to the safety of the community such that the need to preserve that safety would mitigate against the application being granted (s.13A(9)). Except for reference to the applicant's attitude of denial, ie., being "unwilling or unable to fully accept his actions or his reasons for them" (Crown submissions, p.4), the Review Council's report is favourable. The Council comments:-

"Towner has not been a problem in custody. He has had no punishments recorded against him. He has received consistently good reports and has begun to show a willingness to work on his personal problems. His initial attitude of denial together with his fear of being part of the mainstream inmate community are issues which, on the Council's opinion, are to be resolved if he is to make further progress.
If and when Towner's life sentence is determined, the Council will encourage him to participate in specialised sex offender programmes. It will use this as a basis for assessing his suitability for progressing, eventually, to unsupervised external leave.

40 By supplementary report of 20 November 2001, the Council informed the court that the applicant continued to receive excellent custodial and work reports. He was maintaining appropriate contact with rehabilitative services and counselling. His reports and assessments were positive. His progress was satisfactory and should his sentence be re-determined and he receive a minimum security classification he would commence the CUBIT (Custody Based Intensive Treatment) programme, he having successfully completed the psycho-educational sex-offender programme and undertaken individual counselling with the psychologist.

41 The applicant relied on a number of certificates confirming his attendance at and completion of various courses and certain reference. He also provided reports from Dr. W.E. Lucas, psychiatrist, dated 25 January 1999, 12 December 2000 and 6 November 2001.

42 In the 1999 report, Dr. Lucas referred to the applicant being depressed, taking anti-depressants and the history of alcohol and drug abuse. He referred to the applicant being troubled about his lack of complete memory of the crime and his work with counsellors to attempt to recall it. The applicant claimed that, notwithstanding he understood the enormity of what he had done he had, because of that, blocked out the memory of the detail during his eight years in maximum security. He had no problem accepting responsibility. His abused childhood was referred to. Dr. Lucas said at that time:-

"Mr. Towner was convicted of two very serious offences including murder of a girl aged four. His current life sentence dates from 18 May 1989 and in addition he has a 10 year sentence with an additional term of five years for the less serious offence. Mr. Towner appreciates the seriousness of his offences and of course anticipates the court hearing his application will take a serious view of them.
Although he now accepts responsibility for what he did he is unable to talk about it in detail and, I suspect, has at best limited memories of the day in question. He has had a difficult time in prison and for this and other reasons, probably including his friendship with the girl and her family and the emotional unacceptability of his conduct, he has actively sought to forget it. He is anxious to receive further help and willing to attend another programme for sexual offenders. The sentencing judge did not consider he was predisposed to offences of this type and there is no evidence in reports and other documents to contradict this view. His history suggests that it is important he continue to have counselling so that he can avoid the abuse of alcohol when he is at last released.
Despite the uncertainties about the reason for the offences, I believe it would be useful at this stage to have a minimum and additional term determined to enable Mr. Towner to benefit from the management programmes available in prison. He is now in a prison where he feels safe and able to participate in treatment. Although it would be useful to have more information at the time of the hearing of his application I think it might not be unreasonable to take the attitude that such information is likely to emerge only gradually and that knowledge of it will be necessary before the releasing authorities can look favourably on Mr. Towner returning to the community.
I understand Mr. Towner is ambivalent about proceeding with the application at this stage. A delay to allow more time for counselling would not be a disadvantage. I wonder if his depression is a factor in his ambivalence and his probable pessimism."

43 In his further report of 12 December 2000, Dr. Lucas said:-

"Little has changed since I last saw Mr. Towner but it is possible that he has made some progress in his discussion with the psychologist. He is will motivated to undertake treatment and counselling courses for sex offenders.
…
I have an impression which I am unable to fully confirm that he has significant post-traumatic symptoms. Mr. Towner committed a violent and most serious crime which involved the sexual assault and murder of the young daughter of friends. At the time he spoke to the police he had sufficient memory of the event to describe it to them but now he cannot talk about it and there is a strong air that his avoidance is a protective symptom and not simply self-serving in terms of his assessment. He also thinks about his victim regularly and he can have disturbing dreams and panic attacks which wake him. There are problems with social relationships due to anxiety and avoidance – an exaggeration of a longstanding personality difficulty. As well he has chronic insomnia, difficulties with concentration and tends to startle, all symptoms of increased arousal.
The symptoms he suffers are of the type seen in depressive, anxiety and post-traumatic stress disorders which are often difficult to disentangle for diagnostic purposes. A case could be made for Mr. Towner suffering from a post-traumatic stress disorder as a result of his crime but further assessment is required in a different setting. While this is not an urgent matter, it certainly should be done before he enters a demanding sexual offender programme as there is a risk that some symptoms could be exacerbated rather than controlled. The fact that he perpetrated the crime does not exclude the possibility that he suffered a post-traumatic stress disorder as a result.

I believe Mr. Towner should proceed with his application and that he setting of a minimum and an additional term could assist him and the prison authorities in planning his future management so that he can be included in treatment and rehabilitation programmes to fit him for eventual release. Mr. Towner has longstanding problems some of which will make the treatment process difficult for him – for example group treatment – but he is willing to go through necessary steps. He will require careful assessment during rehabilitation and prior to release."

44 In his report of 6 November 2001, Dr. Lucas concluded:-

"It appears that Mr. Towner has made progress in the last 12 months. Apart from his social withdrawal and continuing poor sleep he has done well in Berrima and received excellent work reports. I thought he was somewhat less nervous and more forward looking as well as anxious to make progress in terms of his classification and becoming eligible for a sex offenders course.
Mr. Towner would be considerably assisted by having his sentence determined. When a minimum sentence is known both he and the Department of Corrective Services can plan for further rehabilitation with a view to eventual release.
Mr. Towner has important psychological problems going back to childhood and these need to be addressed along with the specific ones associated with his offence. Mr. Towner is motivated to accept assistance but he will require considerable supporting view of his fears for his safety, realistic fears but exacerbated by personality traits. There will need to be careful planning in the pre-release phase and, when he is released, supervision and support will be essential. Mr. Towner is not currently seeing a psychiatrist but if the need arises he can be referred to a psychiatrist in prison and eventually followed up after release."

45 Dr. Lucas gave oral evidence before me and in addition a reference in highly favourable terms was also provided by the Gaol Governor.

46 In his oral evidence, Dr. Lucas said that he believed the applicant accepted the responsibility for his crime and its enormity. The applicant had described the crime as horrific. He referred to the difficulty the applicant had in talking about it and the distress he exhibited. Dr. Lucas referred to the absence of any evidence of the applicant otherwise having a history of violence or having any sexual interests in young children. He referred to the applicant having committed the killing in panic, on the spur of the moment and without premeditation. Particularly, having regard to the applicant's age and the absence of any instance of violence in prison, he saw little risk of future violence. He said:-

"Q. Does that have any bearing on the assessment of likelihood of a repeat offence? A. Yes. He is motivated to accept treatment and to explore the matter further. This is despite his problems with recalling everything. He has, as you will see in my reports, he is a man who has also had difficulty in dealing with people from childhood on. He has tendered (sic) to keep to himself. He has a lot of social anxiety close to social phobia at times. He is extremely conscious of what other people think of him. All this continues in prison. He had difficulty being in groups of people but he is willing to undergo a sexual offender's course, an intense course of eight to 10 months which involves group treatment and exposure to the questioning of others and the opinions of others. I think these are important steps. He has also enquired about restorative justice which if it went ahead would mean the willingness of confronting the parents of his victim and these are quite big steps for a man of his personality."

47 In cross-examination, Dr. Lucas expressed the view that further years in custody would be needed for the applicant to achieve, through counselling and such measures as the CUBIT course, appropriate psychological resolution and that, if at liberty in the community, lengthy and close supervision would be appropriate. It is clear to me, however, from all the material and Dr. Lucas' evidence, that I am at present in as good position to determine the application now as I am ever likely to be.

48 Certain additional affidavits, the contents of which I suppressed from publication unless the court should otherwise order, were read. They were filed and contained evidence indicative of the applicant's conduct such as to show a willingness to conform, suggestive of a likelihood to abide by the terms of any parole.

49 Two statements were provided to me from the deceased's parents. Both statements demonstrate the agonising loss each of the writers has suffered and still suffer as a consequence of the applicant's crime.

50 Those statements are received and considered under s.28(2) and (3) of the Crimes (Sentencing Procedure) Act 1999. At the time of their reception, I commented then and re-iterate now that the court is cognisant of the immense grief and is cognisant of the loss experienced by the parents and the compassion that everyone would feel for them.

51 I noted, however, that I was bound in law to treat those statements in accordance with the direction of the Court of Criminal Appeal in Regina v. Previtera (1997) 94 A. Crim. R. 76 and I do so.

52 The Crown submitted in its two written submissions and at least initially in its oral submissions that I should refuse the application and give a direction the applicant never re-apply or alternatively, direct the applicant not to re-apply for a specified period or at least merely refuse the application giving no direction. Absent such a direction, in the event of a refusal s.13A(8B) prevents re-application for three years. It was submitted that the application was premature, considering the applicant did not display a full memory of the detail of his crime. That submission, however, cannot stand in the light of Dr. Lucas' evidence.

53 It would not, however, be appropriate to refuse to consider the application or refuse the application if the information on which the court should act is as it is here, all now available or give a direction the applicant never re-apply unless the appropriate order is that the applicant remain in custody for the whole of his nature life (see Regina v. Cribb, CCA, unreported 4 November 1994 per Badgery-Paker, J.).

54 I must consider all the circumstances of the offences (s.13A(4A)) and may decline to determine a minimum term and an additional term. Should I do so, I may direct that the applicant never re-apply (s.13A(8)) and in such case the applicant is to serve the sentence for the term of his natural life (s.13A(8A)). But I may only give such a direction if (s.13A(8C)(b)) it is a most serious case of murder and it is in the public interest that the direction be given. I have reviewed in Baker (supra) and in Regina v. Petrinovic [1999] NSWSC 1131 the various expressions of the test to be applied when considering whether the "life means life" sentence should be imposed. Presently, the test requires the consideration of whether the crime is such that a sentence of life imprisonment for the whole of the offender's life without prospect of release is, even with the present knowledge of matters relevant to sentence, appropriate.

55 Were the applicant to come forward for sentencing under the present statutory regime, such a sentence could only be passed if I were satisfied that the level of culpability in the commission of the offence were so extreme that the community interest in retribution, punishment, community protection and deterrence could only be met through the imposition of that sentence (s.61, Crimes (Sentencing Procedure) Act 1999).

56 I was referred to such cases as Regina v. Fernando (CCA, unreported 21 August 1997) and Regina v. Garforth (CCA, unreported 23 May 1994) and to various expressions of the test as it has been enunciated under the various differing sentencing regimes from time to time. It was submitted that the applicant's asserted inability now to recall the detail of what he did and "to fully accept his actions and the reasons for them" means that there was not a full acknowledgment of guilt. It was submitted (although without evidence in support) that without such full acknowledgement, rehabilitation could not commence so that, as it was submitted, the community could not be satisfied that the applicant will not offend in a similar manner again. In the absence of evidence on this question, I am unable to conclude, having regard to the applicant's evidence, the reports and the psychiatric evidence, that on that ground, all other considerations being favourable to granting it, that the application should be refused. The relevant considerations are referred to in Regina v. Purdy (1992) 65 A. Crim. R. 441; Regina v. Johnstone (Badgery-Parker, J., unreported 20 November 1992).

57 On an application for re-determination, a judge is in a much more advantageous position than when sentencing at first instance. (See Regina v. Carr (Greg James, J., unreported 23 April 1999 at 37-39). The information about and professional observations of the offender are much more extensive, the years since the offence allowing the opportunity for both. Unlike when sentencing at first instance, there is available the option of imposing a determinate minimum term with an additional term of life imprisonment (see Regina v. Harris [2000] NSWCCA 469 at paras.127-134), so that life time supervision is available coupled with the prospect of an offender spending some of his future life on conditional liberty under supervision if able to satisfy the Parole Board, the Serious Offenders Review Council or such body as may then be charged with the responsibility for such release that release is appropriate. The life sentence so imposed thus differs markedly from that which might be imposed by a judge now sentencing at first instance. Where a life sentence means the offender will spend the whole of his life in prison, a life sentence with the prospect of parole is markedly more lenient in nature having the feature of life time supervision. It seems to me that such a sentence is much preferable to one involving a very lengthy determinate additional term even approximating an offender's life expectancy.

58 Although this crime was horrible, its seriousness, having regard to the views of the trial judges, was not such as to require the applicant never be released, having regard to the principles in Harris (supra) and Regina v. Miles [2002] NSWCCA 276.

59 Having regard to all the applicant's circumstances, as they are now revealed, I consider that he should have the prospect of release in the future. I am therefore required to grant the application and to allow a minimum term.

60 I have come to this conclusion after considering and evaluating the numerous cases in this court in which life sentences, operative for the whole of the offender's life, have been imposed or in which there have been re-determinations. These have been the subject of extensive written and oral submissions by the parties.

61 In particular, I have had regard to the decision of the Court of Criminal Appeal in Regina v. Garforth (supra), where the circumstances superficially resembled those of the present case but where the killing involved planned torture and was committed over a considerable period of time, which distinguished that matter from this.

62 I have also considered the re-determinations of the sentences of Regina v. Hitchins (Grove, J., unreported 3 June 1993), Regina v. Cribb (supra), Regina v. Pearce aka Luckman (James, J., unreported 20 October 1993), Regina v. MBD (CCA, unreported 6 March 1996), Regina v. Gregory (Finlay, J., unreported 7 June 1991), Regina v. Lewthwaite (Slattery, J., unreported 31 July 1992), Regina v. Beatty (Newman, J., unreported 8 November 1991) and Regina v. Jessop (Sharpe, J. unreported 7 February 1992), who were at the time of their offences young or juveniles and in the case of adults, Regina v. Stephens (McInerney, J., unreported 22 December 1987), Regina v. Kalajzich (1997) 94 A. Crim. R. 41 and Regina v. Veen [2000] NSWSC 656.

63 I have had regard to the two sets of written submissions provided by the Crown and the detailed sentence statistics analysing the effect of the decisions of this court and the Court of Criminal Appeal in respect of life sentences and re-determinations.

64 I am conscious that whatever the additional term selected, release only becomes a possibility at the expiry of the determined minimum term. Even should a minimum term be granted, the applicant may be detained in custody for the whole of the re-determined sentence. These are matters to which Sully, J. has adverted when re-determining the sentence in Veen (supra) at 127.

65 I accept the submissions of the applicant concerning the principles to apply on the fixing of a minimum term and set them out here, quoting from the written submissions:-

"24. Section 13A was in Part 2 of the Sentencing Act. Section 13A(7) provided:-
'A minimum term and an additional term set under this section are taken to have been set under this Part but are not required to comply with other sections of this Part.'
25. Section 5(2), also in Part 2 of the Sentencing Act, did not allow a court to set an additional term of greater than one-third of the minimum term unless the court found special circumstances. Thus, when re-determining a sentence under s.13A there is no relationship between the minimum term and additional term set by legislation.
26. In Bugmy v. The Queen (1990) 169 CLR 525, Mason, CJ. and McHugh, J., examined the factors relevant to the setting of a minimum term and said (at 531):-
'… the considerations which the sentencing judge must take into account when fixing a minimum term will be the same as those applicable to the setting of the head sentence. Obviously the weight to be attached to these factors and the way in which they are relevant will differ due to the different purposes behind each function.
A prisoner's prospects of rehabilitation will be relevant to the fixing of a minimum term, both by way of mitigation and because the community benefits from the reformation of one of its members. Conversely, the community needs to be protected from a violent offender, especially one whose prospects of rehabilitation are bleak. Likewise the nature of the crime will be relevant because a more serious offence will warrant a greater minimum term due to its deterrent effect upon others. But the nature of the offence does not assume the importance which it has when the head sentence is determined.'
27. It is submitted that the above remarks must be read in the light of the practical information available in relation to the role and practice of the Parole Board in relation to former life sentence prisoners referred to in paragraph 16 above.
28. It should also be noted that the applicant has spent his entire sentence on strict protection. This is a factor that renders his imprisonment more arduous, and is a matter relevant to the duration of any sentence – Burchell (1987) 34 A. Crim. R. 148, Perez-Vargas (1986) 8 NSWLR 559 at 564-656, Cartwright (1989) 17 NSWLR 243 at 251. It may also be properly regarded as a factor which can have an increased significance in the setting of a minimum term. It's (sic) importance to the minimum term is such that it has been recognised as a 'special circumstance' for the purposes of s.5(2) of the Sentencing Act and s.44(2) of the Crimes (Sentencing Procedure) Act – Astill (No. 2 ) (1992) 64 A. Crim. R. 289, PPB [1999] NSWCCA 360, Wahabzadah [2001] NSWCCA 253."

66 Whilst those principles appear to me correct and applicable, it does not follow that on a re-determination the applicant should receive a minimum term as short as his counsel submitted.

67 The Crown's oral and written submissions conceded the applicant's exemplary conduct in gaol over the past 13 years, notwithstanding the onerous circumstances in which he has, by comparison with other prisoners, been confined. But the Crown submitted that even if the crime was not in all the circumstances to be found to require the applicant to spend the whole of his life in custody, it was nonetheless so appalling that the offender's culpability, even having regard to the circumstances of his confinement and his exemplary conduct, required the imposition of the life sentence, so that he is liable to life long custody, albeit with the prospect of possible, eventual parole only when and if he can demonstrate an ability to avoid any risk to any member of the community. It was pointed out that the imposition of a determinate sentence would have the consequence that he would eventually have to be released whether fit for it or not.

68 Orally, the Crown submitted that if the sentence were to be re-determined, a total sentence of life or at least 35 to 40 years with a minimum term of 20 to 30 years should be imposed. Such a minimum term would require the appellant to serve at least a further 10 to 20 years imprisonment before the prospect of release could arise.

69 Counsel for the applicant submitted that at most a sentence totalling 25 to 30 years including a minimum term of from 15 to 20 years was appropriate.

70 A re-determined sentence must commence from the date the applicant was first remanded in custody. In this case, that is 18 May 1989. The sentence for the murder offence will need to be of such duration as not to deprive the sentence for assault with intent to have sexual intercourse of its importance – Pearce v. The Queen (1989) 194 CLR 610. Consequently, there is much to be said for the Crown's submission that the total sentence should be one of life imprisonment, having regard to the necessity that the whole of the sentence and particularly the minimum term needs to be appropriate to the gravity of the crimes and the totality of criminality for the two offences.

71 The length of sentence submitted by the applicant's counsel as appropriate is much shorter than the authorities would suggest is appropriate for a crime of this gravity. The minimum term submitted by Mr. Dhanji is simply below an acceptable range in my view, even seeking to adapt the application of the principles in Regina v. Bugmy (1990) 169 CLR 525 to the present sentencing regime.

72 I have regard, so far as the evidence is available to enable me to do so, to all the matters to which s.21A of the Crimes (Sentencing Procedure) Act 1999 refers, since, although this is a sentencing exercise of a specialised nature, those principles are applicable to sentencing generally. However, having looked at each of the matters to which that section speaks as might mitigate the sentence, I conclude that the crime, whilst it may not be so awful as to merit the applicant never being released, is so grave that it requires a life sentence, albeit with the prospect of parole.

73 For these reasons, I conclude that the sentence for murder should be re-determined and sentence the applicant to imprisonment for life to date from 18 May 1989, which sentence comprises a minimum term of 20 years to expire 17 May 2009, together with an additional term of life imprisonment.

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Last Modified: 10/21/2002