Regina v David Jack Glen

[2005] NSWSC 1093

CITATION:	Regina v David Jack Glen [2005] NSWSC 1093
HEARING DATE(S):	16 September 2005, 14 October 2005
JUDGMENT DATE :	28 October 2005
JUDGMENT OF:	Barr J at 1
DECISION:	Application granted. Set a term of the sentence of thirty-six years, commencing on 10 October 1985 and expiring on 9 October 2021. Set a non-parole period of twenty-four years. The earliest date on which the applicant will be eligible for release on parole will be 9 October 2009.

PARTIES:	Regina , David Jack Glen
FILE NUMBER(S):	SC L00001/01
COUNSEL:	Crown: G Smith SC Applicant: A Haesler SC
SOLICITORS:	Crown: S Kavanagh Applicant: Legal Aid Commission of New South Wales

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

GRAHAM BARR J

28 OCTOBER 2005

L00001/01 DAVID JACK GLEN

JUDGMENT

1 HIS HONOUR: This is an application by David Jack Glen for an order under Schedule 1 Crimes (Sentencing Procedure) Act 1999 setting a specified term for a sentence together with a non-parole period. On 22 December 1986 Wood J sentenced the applicant to imprisonment for life following his trial and conviction for murder. His sentence began on the day of his arrest, 10 October 1985. Consequently, the applicant has now been in custody for twenty years. This is how his Honour described the case -

“The prisoner was, on 18 December 1986, convicted of the murder of Kylie Jane Corbett, his ten year old cousin. The offence, which occurred on 10 October 1985, was both vicious and sadistic, even on the account most favourable to the prisoner, taken from his statement and record of interview.
Regrettably, it is essential as a part of the permanent record for the prisoner’s file to set out in a little detail the facts and aggravating circumstances which bring the prisoner before the court for sentence.
He met Kylie and her younger sister shortly after 8am on 10 October as they were on their way to school. He observed that Kylie had a bag of clothes for a school charity and he invited her to call at his unit to collect some further materials. This she agreed to do.
Once there, he seized her around the neck and pushed her onto a bed. He pulled out a knife and threatened to kill her if she screamed or cried out. She was made to undress and he said he inserted his finger into her vagina “as far as I could”.
He acknowledged that she began to bleed. She was tied up by the wrists and legs to the bed and left there by the prisoner while he callously went to a nearby shopping centre to play the pinball machines and to buy some food for himself.
On his return to the unit he said he repeated the act of sexual interference previously mentioned, while she was tied to the bed. Kylie pleaded to be released and to be allowed to dress. The prisoner relented to the extent of cutting the bonds on her arms but he continued his torment by requiring her to read to him from his [sic] schoolbooks. She was again tied to the bed while the prisoner ostensibly went for a shower.
I pause at this point to observe that the sexual assault on the child was far worse than this narrative would suggest and far worse than that to which the prisoner admitted. It is necessary to digress to the evidence of Dr Malouf who carried out a post mortem examination. This disclosed abrasions and contusions to the vulva, bruising of the vaginal wall, tearing of the perineum, contusions and lacerations to the vaginal wall, tearing of and abrasions to the anal verge and contusions to the posterior walls of both the rectum and the pelvis. The vaginal orifice was gaping such as to readily admit an object one finger in width. The anus was dilated and gaping such as to admit readily an object two fingers in width and had been so violently interfered with as to leave the sphincter muscle in paralysis.
Quite what the prisoner did to the deceased is known only to him, but there can be no doubt that he violently penetrated her vagina and anus with some hard object other than his finger. I categorically reject the prisoner’s denials in this regard as nonsense. He refused to disclose what brutal violation he committed to this girl to inflict those injuries, and that is a matter of grave aggravation to which I will return later.
While out of the room the prisoner clearly made up his mind to kill the child so as to avoid detection for his intrusion of her body. On his return he picked up a military-type wooden baton which, despite the child’s struggles, he pressed with both hands against her neck, choking her to the point of unconsciousness.
He then strung her up by the neck to a rail in the wardrobe with a belt tied around her neck by means of a slipknot. Her body was supported on a chair and there she was left to die by asphyxiation.
The prisoner departed the flat shortly after 3pm and remained out until about 5am when he returned to dispose of the body he knew to be there.
In his absence the body had been discovered by police, hanging in the wardrobe, dressed in a swimming costume with a school uniform draped over her upper body. The seat of her swimming costume and a cloth between her and the chair were seen to be soaked in blood, and the cord by which she was strung up was found to be tight and supporting her upper body. How the prisoner had the effrontery in these circumstances to say that he did not mean to kill the girl or that he left her tied by the neck merely to stop her falling from the chair, I do not know. That version was rightly rejected by the jury.
Dr Malouf’s post mortem showed, in addition to the injuries already mentioned, that there were constriction rings around the neck which were deepest in the centre with friction burn marks. Contusions and abrasions were obvious below the constriction rings consistent with having been caused by a hard object such as the baton. Bruised and constriction rings were found about her forearms just above the wrists and also around both legs just above the ankles.
There can be no doubt that the death of this child was brought about by asphyxiation due either to choking with the baton or constriction of the upper airways by hanging, for each of which even the prisoner was responsible. The injuries to the vulva and rectum were an inevitable cause of shock and may have been a contributing cause of her death.

2 His Honour went on to deal with the evidence of two psychologists, Ms Duffy and Mrs Goldberg, and three psychiatrists, Dr Milton, Dr Barclay and Dr Robertson. I do not need to set out the detail of his Honour’s observations and findings. His Honour concluded that not a single factor had been advanced to mitigate the appalling circumstances of what his Honour described as “this hideous killing”.

3 As s19 Crimes Act then stood, his Honour was bound to impose a sentence of imprisonment for life unless the applicant’s culpability was significantly diminished by the circumstances contemplated by that section. His Honour concluded that the applicant’s culpability was not significantly diminished and continued -

“The only conclusion open, upon the evidence, is that the prisoner’s culpability for his act was not significantly diminished by any circumstance falling within the proviso. At the highest, what is shown is the kind of antisocial personality disorder shared by the vast majority of offenders who appear before the criminal courts. There is no suggestion that the prisoner was affected by alcohol or drugs, or that his culpability was significantly diminished by the so-called personality disorder. I reject the submissions to the contrary, as contradicted by the evidence. The fact that the prisoner may have behaved impulsively in initiating the assault is of little assistance in this regard, given the lengthy period of time involved. It may be that he acted impulsively in taking Kylie to his flat and assaulting her for the first time. Thereafter, however, I am satisfied that his acts were considered and deliberate and extended over a sufficient period to deny any suggestion of a reduction in self-control.
I accept that it is proper to have regard to the entirety of the incident, including the acts leading up to the final killing, when I come to assess whether there was a siginificant diminution in culpability. However, I am satisfied that the only conclusion open in this case is that there was no significant diminution in responsibility such as to attract the proviso. Unfortunately, I must conclude that the prisoner’s acts were both deliberate and were carried out for his pleasure and sexual satisfaction.
The prisoner has shown not a shred of remorse for his victim or the family at any time since his arrest. I have carefully observed him during the trial and I have been left with the overwhelming impression that he felt sorry not for the family or Kylie but merely for himself. At no time did he appear moved or distressed when the consequences of his acts were mentioned or his record of interview read out. His expressions of regret to the police and to the jury, I am satisfied, relate only to the predicament in which he now finds himself. The measure of his lack of contrition is indicated by the fact that the victim was his own cousin, well known to him, and that even now he seeks to justify or to excuse his acts on the basis that they were not meant. It is further indicated by the fact that he took a break in his mistreatment of the child to play the pinball machines and to feed himself.
The prisoner has been unwilling to explain why he accumulated the weapons used in this attack, including a hunting knife, and a wooden baton of the kind used as a weapon by the military or the police. This again is a matter of real concern for the future.
Most cruelly and clearly, however, is his lack of remorse indicated by a letter which he had the effrontery to send to the parents of his victim in recent weeks. I will read the letter in full since its terms speak more eloquently of the prisoner’s total lack of conscience and contrition than any words of mine could:
“Dear Aunty Barbara,
Hi, I’m writing to say that I’m truly sorry about what has happened, that all I can do is time inside, that is in gaol. Well, I know it might be hard for you but it is hard for me too because I have lost my freedom but I know I have to do time for what I have done. Well, as you know, I go for trial on the fifteenth of December this year and at the trial I’m going to plead not guilty to the murder charge and for the sexual assault and I’m going to say a dock statement. Well, not much more that I can say but that I’m truly sorry about what has happened and I meant that, Aunty Barb. Well, it’s bye, and I will see you at court.
Love from David.”
Even if the proviso had been applicable, nothing could be said in favour of the prisoner in the way of his subjective circumstances.
He is now twenty years of age and has a lengthy record. He left school at year eight, after an unsatisfactory history of truancy and fighting. He formed a de facto liaison relatively young in life and has left a wife and child separated from him.
His criminal record began at that age of eight years and he has returned before the courts almost every year since. Over that time he has acquired entries for twenty-one offences, including multiple offences of burglary, theft and stealing.”

4 Having imposed sentence, his Honour continued -

“Before I depart from the matter, I wish to have recorded certain further observations in relation to the prisoner, for the assistance of the Corrective Services Commission and also for the information of any Release on Licence or Parole Board to which the prisoner may apply in the future.
First, it is necessary to record that the prisoner is especially vulnerable to attack by fellow prisoners by reason of the nature of his offence and there is material available to the court, within the Corrective Services Division Records, to suggest that he is in particular danger at the Central Industrial Prison at Malabar. It is my recommendation that he be kept in the Protection Unit at the Metropolitan Remand Centre pending classification and decision as to where he should commence to serve his sentence. It may be that consideration should be given to at least the early years for him to serve that sentence at some place other than the Central Industrial Prison, but that is a matter for the prison authorities to assess and my observation in that regard is not to be taken as any fetter upon the discretion of the Department.
Next, I wish to have recorded that the sentence I regard as appropriate for the prisoner is such as to require very careful consideration by the authorities in relation to his future custody and in particular as to whether he should be, at any time in the future, returned back to the community. My assessment in this regard is based upon the most careful and dispassionate analysis of the crime charged and the prisoner’s personal profile.
There are matters in this case which I regard as of very great concern. They include the total lack of contrition expressed by the prisoner, his callous attitude towards the parents of his victim and his obvious lack of insight into and acceptance of his wrongdoing.
Additionally, there is his refusal to discuss with the psychologists and psychiatrists the matters concerning his sexual attitudes and his state of mind in that regard, when carrying out the sexual violation of his victim. The material available leaves me with the view that this prisoner at this time presents a very grave danger to the community, in particular to young children.
While once again I do not mean by these remarks to fetter the discretion of any relevant Board entrusted with a decision as to the future release of him back to the community, I would be remiss in my duty not to have these observations recorded, since I have had the special opportunity to asses the prisoner at the time he comes up for sentence.
It may be that after a lengthy period of imprisonment and counselling, a fundamental change in his personality and ability to modify his behaviour, together with an acceptance of his criminality, may emerge. Hopefully, that will be the case and it is proper that he be given the advantage of further psychiatric counselling and assistance while he serves his sentence.”

5 By clause 4, Schedule 1 of the Crimes (Sentencing Procedure) Act empowers the Court to dispose of an application of this kind by setting a specified term together with a non-parole period, by declining to set a term for the sentence but setting a non-parole period or by declining to do either. By cl. 5, if the Court sets a specified term, the life sentence is taken to have been replaced by a sentence of imprisonment having that term. If a non-parole period is fixed, it is taken to have been set under the relevant provisions of the Act (see s44).

6 By cl. 6 a Court which declines to set a specified term or to set a non-parole period may order that the applicant never reapply or not reapply for a period of time which the Court specifies. In the absence of such a direction an applicant who is refused relief under the Schedule may reapply within the period of three years from the date of the Court’s decision.

7 Special provisions appear in the Schedule to deal with cases the subject of what is called a non-release recommendation. They are cases in which a recommendation or observation was made at the time of sentencing to the effect that the offender should never be released from imprisonment. It should be noted that notwithstanding his Honour’s strong observations about the serious nature of the applicant’s crime and the poor case that he personally presented, his Honour stopped short of making any recommendation or observation of that kind. On the contrary, it appears from the closing passages of his Honour’s judgment, extracted above, that his Honour held out the hope that the applicant’s personality might change and that he might modify his behaviour and accept his criminality. Implicit in his Honour’s remarks was an acceptance that in those circumstances the applicant ought to have an opportunity to earn his release from custody on parole or licence.

8 On 12 October 1993, a few days after he became eligible to do so, the applicant applied for orders of the same kind as are now sought under the predecessor of Schedule 1, s13A Sentencing Act 1989. In view of the very serious nature of the offence and the gravity of his Honour’s remarks, that application might have been regarded as premature, even though there was a strict legal entitlement to make it. However that may be, the application was left undetermined until listed for hearing in 1999. It was obvious to the parties then that the application was by no means ready for hearing. I shall explain why as I deal with the course of progress of the applicant through the corrective system. Counsel then appearing for him applied for an adjournment. Counsel for the Crown opposed the application and asked for an order dismissing it. Implicit in the Crown’s application was an acknowledgment of the right the applicant would have, in the absence of any order that he never reapply, to bring another application. As the legislation then stood he would be able to bring it after a further period of two years. His Honour declined to adjourn the hearing of the application and dismissed it, but shortened to eighteen months the period after which the applicant might make a fresh application.

9 In giving judgment his Honour reviewed the applicant’s progress, as evidenced by reports from the Serious Offenders’ Review Council and from medical practitioners. His Honour summarised the position as follows -

31 The applicant is now aged 33 years. His current classification is B and he is held as a prisoner at the Junee Correctional Centre. Initially, he was held in the Protection Centre of Long Bay until he was moved, in 1987, for a short time to Maitland and then to Goulburn.

32 He was returned to Long Bay in June 1989 following unsubstantiated suspicions of an escape plot by some life sentence prisoners. While there, he remained on strict protection with consequent loss of opportunity for education and employment.

33 From about October 1989, repeated attempts have been made for him to seek assistance from a psychologist to address the issues related to his offence and, in more recent years, to join a sexual offenders programme. Until very recently, on the face of the prison files, he has resisted all of that encouragement.

34 After returning to Goulburn in 1990, he made some progress in so far as he enrolled in an adult education course and sought employment in the tailoring shop. Since then, he has completed other courses and has been in fairly regular work in the tailoring shop at various of the prisons, as well as in their libraries and kitchens.

35 In 1993, he was transferred to the Cooma Correctional Centre with a B classification. His performance deteriorated some time after this move, in the sense that he discontinued his educational courses and was sacked from his position in the prison library, when he became involved with a transsexual inmate. He did, however, later take up work in the kitchen and he began a cooking course.

36 He declined to participate in the sexual offenders SOAP (Sexual Offenders Assessment Programme) programme at Cooma, because he claimed that his offence was not sexual but rather to do with anger, his cousin being a substitute for his wife.

37 In 1994, he was transferred to Parramatta Correctional Centre before moving back to Goulburn in January 1995 when the protection facilities at Parramatta were closed.

38 In February 1995, the Review Council transferred his management to the Serious Offenders Management Committee, which recommended his transfer to Junee in anticipation of the establishment of a sex offenders programme at that centre. The programme did not, however, materialise at that time.

39 In a letter dated 5 June 1995, the applicant did indicate, for the first time, it would seem, an interest in undertaking the SOAP programme and, for that purpose, requested a transfer to Cooma. The reason for the request was expressed in the following terms:

"I wish to undertake the assessment because I have my determination of sentence coming up soon and believe this course will help me in my rehabilitation."

40 Following this letter, the Case Manager prepared a programme pathway providing some goals for him to aim at, on the way to rehabilitation. These goals included consultation with a psychologist, completion of an anger management course and admission to SOAP.

41 The conclusion of the Serious Offenders Review Council as at 22 September 1995, is encapsulated in the following paragraph of its report, which was prepared in anticipation of this application coming on for hearing:

"Glen's behaviour in custody has, for the most part, been satisfactory. There is concern, however, that he lacks the capacity to tackle the issues which were raised by the sentencing judge, especially his lack of insight into the nature of his offence and lack of remorse and its implications for those who must decide if, and when, he should be returned to the community.

42 The Review Council, while not making any comment on the minimum sentence, if any, the Court might consider appropriate, is of the view that Glen has not been rehabilitated and nothing can be said at this stage as to when, if ever, he will be fit for release. He has failed at all material times to take advantage of psychological assistance within the department.

It is observed that the Case Management Officer at Junee was not optimistic that Glen would cooperate in the carrying out of the programme prepared for him ."

43 Additionally, in anticipation of the application coming on for hearing, the applicant was reviewed by Dr. Westmore in March 1996. His opinion, at that time, is encapsulated in the following passage of his report:

“This man has evidence of an antisocial personality disorder dating from an early age. There is no evidence that he suffers from a mental illness. He certainly, at a verbal level, is expressing appropriate regret and remorse regarding his actions, although acknowledges that he has some difficulty in expressing emotions regarding his behaviour or about any of the difficulties he encountered in his early life. He needs continued and extensive psychological and psychiatric support and indeed this was recommended by the judge, it has been recommended by others and is recommended now by myself.

Until this is done I fear that it is very difficult to predict even at general level his future risk to the community. The nature of his offending behaviour, the quality of his behaviour is of major concern. I think that we would need to know a great deal more about this young man, his psychosexual development and his general levels of psychological adjustment and adaptation before one could comfortably make any predictions regarding his future risk to the community”.

44 The supplementary report of SORC, dated 21 April 1999, discloses that in November 1995, the applicant declined to be included in a Sex Offenders Redirection Programme (SORT) when it was introduced to the Junee Correctional Centre, and that he was not cooperating with the efforts which had been made to get him to see a psychologist for assistance.

45 When the opportunity arose for him to take a place in an introductory pre-SORT program me in March 1999, he declined to participate, even though he had earlier expressed a desire to do so. The opinion of the Review Council, at this stage, is expressed in the following paragraph of its report:

“While Glen’s custodial reports and behaviour are excellent, he still refuses to participate in any Sex Offenders counselling program. The Council will continue to urge Glen to participate in suitable counselling while in custody.

In the event that the Supreme Court grants Glen’s application for the redetermination of his sentence, then the Serious Offenders Review Council will develop a plan for his management during the remainder of any minimum term imposed. If Glen is prepared to co-operate with the plan developed for him he will be progressively reduced in security classification. When he attains a C3 classification he will be eligible to participate in unsupervised Day Leave and Work Release programs in preparation for his eventual return into the community.”

46 Some further material has been placed before me since that last assessment by the Council in the form of a further psychiatric report from Dr Bruce Westmore, a psychological report from Associate Professor Susan Hayes and a report of Dr Roger Blake, together with attached documentation concerning the participation of the applicant in a preparatory SORT programme this year. That programme was one which lasted a period of 8 weeks, comprising 24 hours, and it led to a certificate of completion dated July 2, 1999.

47 To that document and a more recent assessment I will return. However, I should note that Dr Bruce Westmore, who reviewed the applicant in August 1999, noted that the applicant had informed him that he had previously believed that he had no need for treatment, and that he had only gone onto the pre SORT programme because of this application. He noted, however, that the applicant had said that having started the course, he felt that he had benefited and had more understanding about how to avoid situations such as that which had got him into gaol.

48 He thought that the applicant needed more intensive work in relation to several matters. They included development of greater insight into his criminality, preparation for a move from institutionalisation to the community, the provision of psychosexual education and support, further occupational training, and development of a social network to assist him in gaining employment and in re-establishing social contact outside the correctional system.

49 Dr Westmore's opinion was expressed as follows:

"There is evidence this man has made some progress since my assessment of him in 1996. He is certainly appearing more willing to attend the Sex Offenders Programme and seems keen to have further counselling in this regard. Once again, I think it is too early to indicate what current risk he represents to the general community as he really has not had any extended counselling. He certainly requires psychiatric and psychological support and, as notified earlier in this report, this should extend while in the community. I have identified a number of other areas which I think are significant in terms of his eventual ability or otherwise to cope while in the community and unless he is provided with support and assistance while in custody; and unless this support and assistance is extended when he returns to the community, then this man would, again, be vulnerable to psychological stress and perhaps a further behavioural breakdown.

I note that prior to the homicide he was under stress, having separated from his wife and apparently not dealing with that situation. He talked about anger and `having to take it out on somebody and the victim was the recipient of that anger'."

50 Associate Professor Hayes undertook a psychological assessment of the applicant, also in August 1999. She obtained a similar history to that previously noted concerning the applicant's earlier lack of motive for psychosexual counselling, the reason for his late entry into the preparatory stage of the SORT programme and his wish to complete the further tiers. Her testing confirmed that he was of low/average intelligence and free of clinical symptoms of mental illness. As to his propensity for further violence, she noted that, apart from the one horrific and violent murder for which he is serving the life sentence, he had no recent or other history of violence and had shown a significant change in his attitude and circumstances, as well as in his personality traits.

51 Her report concluded:

“It is vital that Mr. Glen be given the opportunity to participate in therapeutic programmes and in my opinion his involvement in the Special Care Unit would be a good idea. Mr. Glen realises that he is destined to spend many more years in prison, and indeed that he may not be released at all; he himself states that he wants to ensure that he uses this time so that in the event that he is eventually released, he will be able to cope and will not be a further danger to society. One of the major difficulties in preparing him for release is his protection classification, which is no doubt necessary, given the nature of his crime. It is difficult gradually to lessen his security classification, given the need for protection. Therefore, within the restrictions imposed by being on protection, Mr. Glen needs to engage in whatever programmes are available. Any programmes in which Mr. Glen is engaged should take cognisance of the significant discrepancy between his verbal and non-verbal reasoning skills. This is a source of great frustration to Mr. Glen because he knows he functions well in some arenas, but he finds it extremely difficult to reason verbally and to express himself verbally. This results in awkward and inarticulate expression of his feelings, which can readily be misinterpreted as lack of cooperation or lack of insight. He needs practice in developing his verbal skills, as well as his writing skills.

Given appropriate, consistent and prolonged engagement in therapy, both group and individual, and involvement in programmes for increasing living skills, self esteem, and coping skills, as well as a suitable and gradual lessening of security classification, Mr. Glen will have adequate opportunity to demonstrate that he really is capable of making progress. In these circumstances, it is my opinion that he is capable of being re- integrated back into the community with minimal risk.”

52 The matter has been further updated, by the report of Dr Roger Blake, a psychologist who reviewed the applicant at the request of the Review Council, following his entry into the pre SORT programme. Of significance, Dr Blake notes:

"In the writer's opinion, much of Mr Glen's request for psychological assistance seems to involve a need for amelioration of his own sense of suffering and ostracism within the system because of his crime. It is speculative at this point in time as to whether Mr Glen has any real insight into the feelings of guilt, shame or empathy, and clearly closer scrutiny and assessment is needed.".

53 Dr Blake noted, at the time of this report, that the applicant was in week 4 of the preparatory programme, that he had joined the group under great duress, and that he had projected anxiety about the group process. He noted:

"At this point, the writer is not convinced that a strong motivation to embrace treatment in any rehabilitatory context exists. While it is conjecture, the satisfying of SORC requests may be his major motivation for joining the Introductory Sex Offender Redirection Training Programme. Despite these factors, the writer concedes that Mr Glen is meeting all attendances and homework requirements of this preparatory programme."

54 The self report inventory conducted by Dr. Blake led him to the view that within the range of items covered, the applicant " presents as being within the very high risk category" in regard to his potential to engage in further sexual violence. Such factors related to: Evidence of sexual deviation, previous substance abuse problems, physical harm to victim, negative attitude towards intervention, and evidence of personality disorder.

55 It was his opinion that:

"No major decisions should be made concerning Mr Glen's status within the system until such time as a more complete risk assessment can be conducted. The optimal time for such assessment would be at the completion of the 17 week SORT programme…"

56 That programme the applicant could join in early 2000, if so motivated.

57 In conclusion, Dr Blake noted that it was his belief that Mr Glen was “certainly a high risk individual”. He added:

"Accordingly, he should be viewed and assessed over an extended period of time in a range of treatment contexts before any firm judgment on his future risk status or rehabilitation potential could be offered."

58 In relation to the Pre SORT programme, I notice that his assessment in areas of participation and motivation were at the lower level of "satisfactory," and that of attendance in the medium assessment of "good".

59 It is the fact that the applicant has generally proved cooperative within the general prison system, subject to the requirements of being on strict protection, and has not been a problem inmate. His disciplinary record in the prison is minimal and is not of the kind to suggest that he has been accustomed to behaving in a violent fashion, or otherwise in a way which would suggest any significant ongoing behavioural problems, within the strict confines of that environment.
RESOLUTION OF THIS APPLICATION

60 The case is one of some difficulty, having regard to the relative youth of the applicant at the time of committing an offence of such hideousness as to place it in the most serious category, and also having regard to the fact that there was no apparent justification or reason for him to behave in this fashion. Moreover, his case has proved to be of some difficulty in assessment by the psychiatrists. I am, in these circumstances, left with some concern as to whether he has ever at any time been entirely frank when discussing the offence with them, or for that matter, with anyone else . However, there have been no ongoing signs of mental disorder of any significant kind other than the antisocial personality disorder previously diagnosed.

61 The problem that I face is that until very recently, the applicant has simply failed to appreciate the seriousness of his criminality and has offered very little by way of remorse. Additionally, for many years, he has turned his back on the many attempts which have been made to encourage him to seek psychological assistance, or to join one or other of the sexual offender diversionary programmes. His attitude seems to have consistently been one of denial; although, in very recent times, at face value, he has begun to express remorse and greater insight, as well as having undertaken the step of entering the preparatory SORT programme. Whether that step was taken to enhance this application or was a step genuinely motivated by remorse and insight, remains to be tested.

62 But for the possible emergence of the encouraging signs mentioned, and his greater maturity, this is a case where a life sentence would indubitably still be appropriate. The signs now being somewhat more positive, although subject to testing, I am of the view that the application should, at this stage, be dismissed, but that the time for reapplication should be reduced to a period of 18 months. Within that period, the applicant will have the opportunity of undertaking the remainder of the SORT programme, as well as the other programmes which Dr Westmore thinks appropriate. Until those programmes have been completed, the extent of the dedication or commitment of the applicant to his rehabilitation and the extent to which he presents a continuing danger to the community, cannot properly and independently be assessed. I consider that it would be inappropriate in the interests of the community, and unfair for the applicant, for any determination to be made today, involving the imposition of a minimum and additional term, and so dealt with as to preclude or limit the later possibility of fixing a sentence other than a life sentence.

10 Because of his Honour’s imminent retirement, the application was listed for hearing before me. The material which had been before his Honour was tendered. So were a further supplementary report of SORC dated 5 July 2005, together with annexures, and reports of psychiatrists Dr Lucas of 2 July 2005 and Dr Wong of 22 August 2005 and of psychologist Ms Robilliard of 15 March 2005. Dr Lucas and Dr Wong gave evidence.

11 This body of evidence establishes that since his first application the applicant has made progress towards an acknowledgement of his wrongdoing. Wood J’s concern about the applicant’s lack of frankness in his discussions about the offence has been met to a considerable extent.

12 From an uncertain beginning in 1995 has emerged a frank acknowledgement that the applicant’s crime had a serious sexual side to it. It is correct to point out, as the Crown does, that the applicant still does not acknowledge the full horrific extent of his attack on Kylie, and that that is an indicator that the applicant has some way to go before achieving full remorse for his crime. I do think, however, that there is a process going on in the applicant’s mind and that, given participation in the intensive course of which I shall speak, he will probably come to a full acknowledgment of his criminality.

13 The applicant has completed a preliminary course of low intensity, designed for sexual offenders, and wishes to enter into the CUBIT program, a ten-month intensive course conducted in Sydney. That course identifies for each offender the things which give rise to the risk of reoffending and teaches the offender how to recognise those risks and guard against them.

14 The applicant is now aged 40 years. He is of average intelligence. Dr Lucas, Dr Wong and Ms Robilliard agree that he is willing to enter the CUBIT program and that he has the capacity to see it through. They agree that his continued rehabilitation would be promoted by his participation in the program. In fact they all think it necessary.

15 The applicant has the support of his daughter, with whom he has regular contact, and of certain other members of his family.

16 In my view, if he is to be granted a determinate sentence and a non-parole period, the public’s best interests will be served if he enters the CUBIT program at the earliest possible opportunity.

17 I accept the opinions of Drs Lucas and Wong that the applicant’s risk of reoffending is significantly lower than at any time hitherto. I accept that if the applicant completes the CUBIT program the risk of his reoffending will continue to lessen. I think that the stage is achievable at which the applicant will be able to be released into the community under supervision without unacceptable risk to the community.

18 The Crown submitted that the offence fell into the worst category of offences and that on that account this application should be dismissed. It would follow, if that were the correct view of the matter, that the applicant ought to be ordered never to reapply for a determinate sentence or a non-parole period. I do not accept the Crown submission. I am bound to take into account his Honour’s remarks in sentencing, delivered almost nineteen years ago, which even then held out the hope of a change in the applicant’s personality, a modification of his behaviour and an acceptance of his criminality. His Honour’s hopes, it seems to me, are on the way towards being realised.

19 I am bound to take into account his Honour’s awareness at the time of sentence of the applicant’s eligibility for release on parole and the practice that then existed in the issue of licences. In that connection, I note his Honour’s express desire not to fetter the discretion of those who would decide such things. I note also the implication in his Honour’s order shortening the time for a further application that a determinate sentence was likely to result if the applicant made satisfactory progress. The applicant has accepted the opportunity he was offered.

20 Like his Honour, I do not think that the offence fell into the worst category so as to require the imposition of a sentence of imprisonment for the rest of the applicant’s life. Although the offence was a very grave one, it was a single offence and it was committed by a young and immature man in response to a major stressor in his life. However, the offence was callous and brutal and a most serious one of its kind and merits an unusually long head sentence.

21 Inmates are classified from most to least seriousness as A, B or C. It is not usual to reclassify an inmate C until there is a non-parole period and the inmate is approaching the end of that period. Those classified C are ordinarily expected to be in the course of preparation for release into the community on parole.

22 At present the applicant is classified B, and unless an exception is made will not qualify for admission to the CUBIT program. The evidence shows that if he is granted a determinate sentence and a non-parole period he will be considered for reclassification C and so fulfil one of the criteria for entry to CUBIT.

23 The Court was invited to consider recommending that the applicant be approved for entry to CUBIT, with such reclassification as was necessary for that purpose. Although I am firmly of the view, particularly relying on the evidence of the expert witnesses, that the applicant can do the course, wishes to do the course and needs to do the course and that it is in the public interest that he do the course, I do not think it appropriate to make any recommendation. It seems necessary to recognise the separate powers and responsibilities of the Court and of those who have the oversight of the applicant.

24 I do not doubt that when the Court makes its orders, the Corrective Services Department and SORC will take every appropriate step to prepare the applicant and give him the chance to earn his release on parole. I assume that the steps that will be considered will include reclassification and entry to CUBIT.

25 I propose to fix a non-parole period which recognises the very serious nature of the offence and which will allow waiting and preparation time for entry to the next available program, the conduct of the CUBIT program itself and such other steps as are considered necessary to prepare the applicant for release on parole.

26 The application is granted. I set a term of the sentence of thirty-six years, commencing on 10 October 1985 and expiring on 9 October 2021. I set a non-parole period of twenty-four years. The earliest date on which the applicant will be eligible for release on parole will be 9 October 2009.

************