Regina v Levy
[2000] NSWSC 355
•31 March 2000
CITATION: Regina -v- Levy [2000] NSWSC 355 FILE NUMBER(S): SC L3/98 HEARING DATE(S): 31/03/00 JUDGMENT DATE: 31 March 2000 PARTIES :
Regina
Barrie Ronald Bruce LevyJUDGMENT OF: Dowd J at 1
COUNSEL : Mr Berman (Crown)
Mr Nicholson S.C (Applicant)SOLICITORS: S.E O'Connor
CATCHWORDS: Life sentence - determination of minimim and additional terms - Sentencing Act 1989 - s.13A LEGISLATION CITED: Sentencing Act 1989
Criminal Appeal Act 1912CASES CITED: Application of Gary John Purdy (1993) 65 A Crim R 441
Application of Michael Bradley (unreported, 1 march 1996)
R v Malcolm (1991) 58 A Crim R 148
R v Rees (unreported, 22 September 1995)
R v Chester (unreported, 21 December 1992)DECISION: Sentence redetermined
- 1 -THE SUPREME COURT
FRIDAY 31 MARCH 2000
OF NEW SOUTH WALES
CRIMINAL DIVISION
REGINA -v- Barrie Ronald Bruce LEVY
1 This application is brought under section 13A of the Sentencing Act 1989 (“the Act") for a determination of a minimum term and an additional term in respect of a life sentence imposed for the murder of Lory De Barbarrez ("the deceased") at Kyeemagh on or about 18 September 1969, such life sentence having been imposed on 7 August 1970.2 Although there some a contest about the facts, I make the following findings of fact.
3 The applicant and the deceased had been associates and involved in criminal activity for some time having been co-offenders in a break and enter offence at Mark Foys Limited, Rockdale on 11 May 1965, during which robbery seventy-seven furs were stolen. Both the applicant and the victim received prison sentences for that offence and both spent some weeks of the early stage of that sentence in the Long Bay prison complex at the same time.
4 On 9 February 1967 the victim was released from gaol as a result of his remission entitlements. On 3 July 1968 the applicant was also released from gaol. After the applicant was released he resumed his association with the victim. The applicant also became associated in criminal activity with a Paul Barnhart.
5 On the afternoon of 18 September 1969 the applicant visited his friend Paul Barnhart's residence and secured his involvement in what the applicant said a safe blowing venture to be perpetrated near Kingsford-Smith airport, Mascot which was to take place that night.
6 Barnhart obtained some gelignite and detonators, and that evening went with the applicant in the applicant's car to Kogarah Oval and stole two spades and a mattock. After leaving the Oval the applicant informed Barnhart that he understood there could be a night watchman at the place they intended to rob. The applicant also told Barnhart that he wanted the victim to take part in the enterprise as he was a big fellow and had karate skills.
7 Just before midnight that night the applicant and Barnhart attended the victim's flat in Kings Cross to induce the victim to join in the enterprise. The victim acceded to that inducement and agreed to take part. The three men then drove in the applicant's car towards Mascot and parked on the Botany Bay side of General Holmes Drive at Kyeemagh.
8 When out of the vehicle the applicant handed Barnhart a spade and a mattock and the victim an iron bar. The applicant had obliged Barnhart to have a pistol in his waistband and the applicant was carrying a spade and a stillson wrench. The three men then walked over to a construction site where there were concrete blocks on the ground and piles of dirt. The applicant pointed to a building which had its lights on and told the victim and Barnhart that that was premises the victim he had targeted.
9 Whilst Barnhart was looking at the building the applicant hit the victim who fell to the ground, and then hit him again on the arm with the wrench. The applicant told Barnhart to keep out of it. The applicant said to the victim "Now you cunt, you will answer some questions," and then struck him on the leg with the mattock.
10 Barnhart called out to the applicant "Cut it out, you will kill him" and the applicant pulled the pistol out of his waistband, pointed it at Barnhart and told him to go and sit down on a concrete block. The victim called out for mercy, the applicant responded "He didn't give me any mercy. You nearly got me killed at Long Bay with Johnny Stewart." The applicant, to use Barnhart's terms, went "off his head" after that and started attacking the victim with the mattock. The applicant hit the victim a number of times. The victim screamed for a while and then stopped. He appeared to be lifeless.
11 Barnhart was then directed by the applicant to dig a grave between two concrete blocks. Both the applicant and Barnhart placed the victim's body in the grave. The applicant, after observing that the victim's legs were "sticking out the end of the hole," broke his legs with the mattock and kicked the protruding portions into the hole with his foot. The applicant then threw the mattock and wrench on top of the body and filled in the grave.
12 Before leaving the scene the surface of the grave was smoothed over and loose dirt was thrown around near it in case there was any blood on the ground. Barnhart and the applicant threw the spades used in connection with the offence into Botany Bay.
13 The two men returned at the applicant's instigation to the victim's flat in Kings Cross where the applicant forced the door open with a screwdriver and with Barnhart putting his weight to the door. The applicant and Barnhart packed the victim's goods into a couple of suitcases and an overnight bag. The applicant and Barnhart then took the victim's effects out along the Princes Highway, dumped them in the bush and set them alight with petrol.
14 About one week later at the request of the applicant he and Barnhart returned to the place as the applicant wanted to make sure the property had been completely destroyed. To this end they scattered the ashes of the victim's property around the bush area.
15 Some few months later on 23 December 1969 Barnhart, who was in custody in respect of other matters, was interviewed by police concerning a number of matters including what happened on the night of 18-19 September 1969. At the conclusion of the interview he accompanied police to the area where the murder had taken place and pointed out certain locations.
16 Initially on 26 and 27 December 1969 efforts to locate the grave were unsuccessful. The following day the grave was located and the body of the deceased was exhumed in the presence of Dr Oettle, forensic medical specialist. A mattock and a pair of stillson wrenches were located in the vicinity of the body. The two spades were recovered from Botany Bay.
17 On 26 December 1969 Dr Oettle carried out a post mortem examination of the deceased where he found the victim had sustained fractures to both arms, a small wound to the upper chest between the first and second ribs, fractures to both legs below the knee and a depression to a bony structure of the upper and lower jaw.
18 Dr Oettle also observed a depressed fracture on the back of the left hand side of the skull and on testing with the stillsons wrench observed the relationship of a part of the stillsons, which is a circular part, with the depressed fracture in the skull. Dr Oettle opined that the injuries to the head rather than those to the limbs were the ones which caused death.
19 On 8 June 1970 Barnhart pleaded guilty before Lee J to a charge of accessory after the fact to murder. He was sentenced to ten years penal servitude to date from 6 January 1970. His Honour specified a non-parole period of four years six months.
20 On 4 August 1970 the applicant was indicted for murder before Mr Justice Else-Mitchell at Central Criminal Court. The applicant pleaded not guilty before the court and on 7 August 1970 the jury returned with a verdict of guilty. His Honour thereupon imposed the then mandatory sentence of penal servitude for life.
21 The applicant appealed against his conviction. The Court of Criminal Appeal dismissed the appeal against conviction and directed that time should count. The appeal was dismissed notwithstanding that the court held that the trial judge erred in excluding certain evidence from the jury's consideration and applied the proviso to s.6 of the Criminal Appeal Act 1912 that an appeal may be dismissed if the Crown is able to persuade the court there has been no miscarriage of justice caused by the error shown to have occurred.
22 On 20 November 1970 the High Court refused a Special Leave to Appeal Application against the conviction. On 1 November 1971 the Privy Council refused the applicant's petition for leave to appeal against conviction.
23 In terms of the matters to be considered in the section it is clear that the applicant is serving a life sentence and has served, as required by the section, at least eight years of that sentence. The court is empowered by the section on appropriate application to set both a minimum term of imprisonment the person must serve and an additional term during which the person may be released to parole, either for a specified period or for the period of the remainder of the person's natural life, or the court may decline to determine a minimum and an additional term. Section 5(2) of the Act does not apply to a re-determination and there is therefore no need to look at the relationship of the minimum and additional term. Any minimum term is to commence on the date that the original sentence commenced or, if that was not the date of the applicant being remanded in custody, the date of such remand. The court, should the determination be made of a minimum term and an additional term, thereby replaces the original sentence of imprisonment for life
24 The other matters to consider are set out in the new s. 13A(9) of the section and the new s. 13A(4A) of the Act.
25 Subsection (9) provides:
"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 section 463 of the Crimes Act 1900 and of the practice relating to the issue of such licences; 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.26 At the time of the sentence the applicant had a criminal record dating back to 1963. The applicant was first convicted of a criminal offence at the age of twenty-five years and his record contains offences for break, enter and steal, larceny, false pretences, possess housebreaking implements, unlawful possession and matters that I have set out above and will set out hereunder. In the matters that I have to consider in this application I have considered that record as I am obliged to do.
27 There have been extensive exhibits before the court setting out aspects of the applicant's life in gaol. The applicant has spent a great deal of time, particularly in his early years, criticising the system. Mr Nicholson S.C. for the applicant puts it to the court that his - and it is my word, not his - truculence is as a result of that twenty-seven year term. In my view the early reports, as Mr Bermen for the Crown has submitted, show that the applicant had that attitude at an early time and the attitude is merely a continuation.
28 Following his arrest the applicant was taken into custody and went to the Malabar Training Centre. In a report of 11 June 1976, Mr J C Brown, the Regional Programmes Officer at the MTC, described the applicant as a very demanding person with a total lack of humility. I must say I do accede in part to what Mr Nicholson has said in that people who stand up for themselves, whether their belief is right or wrong, are often treated as lacking in humility. Humility is not the only characteristic that a human being requires.
29 After conviction, the applicant was transferred to the Katingal Special Security Unit at the Long Bay prison complex. He also spent time in Grafton, a then notorious place of incarceration, in The Circle at Parramatta and at Maitland, although Maitland is not quite as bad as perhaps the others. Katingal was a specially dehumanising place in which to serve a prison sentence. The applicant remained at Katingal until May 1978, at which time he was supposed to return to normal discipline at Maitland Gaol. However, the applicant, after suffering a fracture of his lower leg was admitted to the hospital at Long Bay and the following month submitted a lengthy statement requesting that he not be transferred to Maitland but remain in the Sydney metropolitan area so he could pursue education courses and receive visits from his daughters who lived in Canberra.
30 A report prepared for consideration of the Life Sentence Review Committee in September 1978 noted the applicant to be guarded in his attitude and resentful that his applications had been referred to the Life Sentence Review Committee as they had taken no interest in his classification when he had spent lengthy periods at Grafton and Katingal. The report stated:"Levy continues to criticise trenchantly the Department of Corrective Services and various individual officers for a number of other matters including lack of medical treatment, past inability to visit of his now deceased parents, his convictions for two offences in custody and the failure of his appeal against conviction. All of these complaints will be familiar to the Committee members. Levy does not accept responsibility for the murder and he continues to explore avenues to have his case reopened. In short he displays the traits of suspicion, defensiveness and self-justification evident throughout his contact with the Probation and Parole Service since 1963."
31 The applicant's requests however were supported by Helen McCarthy a psychologist, to whom Mr Nicholson has referred me, and the applicant was transferred to the MTC as a C1 classification. On 2 November 1979 the applicant was transferred to Silverwater as a C1 and on 28 February 1980 the Classification Committee reduced the applicant's security classification from a C1 to a C2. In January 1981 the applicant's classification was further reviewed and it was decided that he should remain at the MTC until his review in July 1981. For that review in a report of 22 June 1981, Helen McCarthy remained unchanged about his behaviour stating:
"Levy still behaves in an arrogant fashion. He does not suffer fools gladly and his superior attitude and the disdain with which he treats staff probably disadvantages him. He is extremely inflexible and persistent and will not be deflected from pursuing an end which he sees as involving a matter of principle, even where a more comprising course would make the situation easier. In short, Levy is a difficult and abrasive personality but not in my opinion to be regarded as a risk to the community."
32 In 1981 the applicant applied for entry onto the Day Leave Programme. That application was approved on 25 June 1981 and in August 1981 permission was granted to the applicant and four other inmates to attend a festival in Hillsdale displaying goods made by prisoners.
33 In August 1981 the Indeterminate Sentence Committee, in reviewing its management of the applicant, noted that the Corrective Services Commission had not yet made a decision about the applicant's request for day leave. That same month the then Minister for Corrective Services declined to approve the granting of day leave to the applicant. However, in the meantime the Establishments Committee had already made arrangements for the applicant to have that one day leave.
34 On 28 October 1981, the Indeterminate Sentence Committee resolved to support the applicant proceeding onto day leave commencing on 2 December 1981. The applicant however declined to proceed to day leave as he was not prepared to have departmental staff confirm that he was in fact at his sponsor's address.
35 On 30 October 1981 the applicant wrote to the Minister for Corrective Services requesting a personal interview so that he could discuss "lies" he had been told for the last two years regarding his participation on day leave and access to other programmes he had applied for. His request for an interview was declined.
36 Throughout early 1982 the applicant persisted with claims that the Indeterminate Sentence Committee had jeopardised his enrolment in education programmes. The IDC wrote to him and stated that he would have his involvement in programmes processed through the normal channels or his applications would not be considered.
37 On 7 April 1982 the Sub-Committee of the IDC reviewed his management of the application and resolved to suggest to the Commissioner that his security be reduced from a C2 to a C3 classification to permit attendance at Tandy Computer Centre in the Sydney CBD. The recommendations were accepted and the applicant thereafter attended a Sydney Technical College Data Processing Course for three hours on three days each week.
38 In a report of 20 September 1982 a Mr Holmes, Probation and Parole Officer, assessed the applicant's performance in prison and his release arrangements. His evaluation of the applicant was as follows:
"Since his transfer to the Malabar Training Centre over two years ago the prisoner has attempted to act and speak in a more positive manner than was predicted prior to the transfer. In addition he has had a number of day leaves and has fulfilled his responsibilities to an acceptable level. He is at present highly motivated to be released to licence."
39 On 18 November 1981 Father P W Henry, Roman Catholic Chaplain, wrote a letter expressing his support for the applicant's release on licence. That application was supported again by Helen McCarthy, who recommended the applicant be released as soon as possible, since there had been no suggestion of any behaviour which would lead to assessment of him being a danger to the community.
40 On 28 October 1982 the ISC recommended to the Corrective Commissioner that the applicant be released as soon as possible and on 30 November 1982 his Excellency, the Governor, on the advice of the Executive Council approved the release from custody of the applicant upon the issue of a licence to be at large under the provisions of s.463 of the Crimes Act 1900. The licence was issued by the Chairman of the Corrective Services Commission on 9 December 1982 and the following day the applicant was released from the Malabar Training Centre, having served twelve years, eleven months and four days. That licence was subject to a series of conditions set out below: - I incorporate in this judgment.
41 On 5 January 1984 the applicant travelled to the ACT and approached his former wife, claiming it was she who initiated the meeting. After an assessment by the applicant's probation and parole officer, who noted that the applicant demonstrated a capacity for violence and had continually attempted to extend the parameters of his freedom. It was recommended that the applicant's licence be revoked.
42 On 8 February 1984 His Excellency the Governor on the advice of the Executive Council approved the revocation of the applicant's licence and for him to be confined to prison, to serve the remainder of the sentence of penal servitude for life. On 6 March 1984 the applicant returned to prison. This, in retrospect, looks a fairly harsh judgment on his action but was not inconsistent with the attitude of the department at that time to what on the face of it was not a very great breach but nevertheless was a breach demonstrative of the applicant’s attitude.
43 On 9 April 1984 Helen McCarthy forwarded a report on the applicant to the Release On Licence Board (“ROLB”). Ms McCarthy stated in that report the applicant had been rankled by the clause in his licence prohibiting him from communicating with his ex-wife, not because he needed communication with her but in principle. Ms McCarthy found the applicant's behaviour to have remained unchanged, that he was stubborn, arrogant and garrulous.
44 On 16 April 1984 the applicant's probation and parole officer submitted a report recommending the applicant be re-released in the light of the lesson he should have learnt from the revocation. The recommendation was declined by the ROLB on 30 April 1984 and it resolved to review him again in six months.
45 On 12 June 1984 the sub-committee of the ROLB interviewed the applicant and discussed with him the revocation of his licence and at the meeting of the board on 25 June 1984 it was resolved to recommend to the Commissioner that the applicant be classified as C3 day leave so he could attend computer courses. Leave was subsequently approved.
46 On 10 December 1984 the board recommended that the applicant again be released on licence. Despite the board noting that the applicant's breach of his first licence had been "a flagrant and deliberate breach of the condition of his licence", it was recommended he be released on licence since, from his return to custody, he had dedicated himself to his studies in business management and computer programming.
47 On 25 January 1985 his Excellency, the Governor of New South Wales, on the advice of the Executive Council, approved again the release from custody of the applicant upon the issue of a s.463 licence. The licence was issued on 4 January 1985 and on 11 January 1985 the applicant was released upon the same conditions as the first licence.
48 On 26 May 1985 the applicant was again in custody, charged with one count of armed robbery, allegedly committed in Queensland in September 1983 during his first period of release. The applicant denied the offence and had applied for bail. He was extradited to Queensland on 17 July 1985.
49 On 25 July 1985 the ROLB recommended the applicant's licence be revoked and on 14 August 1985 his Excellency, the Governor, on the advice of the Executive Council, revoked the applicant's licence and recommended he be confined to prison to serve the remainder of his sentence. It appeared from correspondence admitted before me that the ROLB were unaware of the Queensland charge at the time it recommended the applicant's second release on licence and had it been fully appraised of the facts it would never had made the recommendation for release.
50 Whilst on remand in respect of the Queensland charge of armed robbery, the applicant on 9 June 1986 escaped from Boggo Road Gaol. On 14 October 1986 a warrant in respect of the revocation of the licence was executed upon the applicant and he was taken into custody at Long Bay Correctional Centre, where he remained until 19 February 1987.
51 Upon being taken into custody, the applicant filed a summons in the New South Wales Court of Appeal seeking a declaration that the warrant issued for his apprehension was null and void and that the warrant and its execution be set aside and that he be released from custody forthwith. The matter was heard by the court on 11 December 1986. An order was made declaring the revocation of the applicant's licence on 14 August 1986 null and void, in accordance with the orders agreed between the parties.
52 On 15 December 1986 the board placed the applicant on notice and invited his solicitor to make submissions about all of the charges laid in Queensland, including the charge of escape from lawful custody and any other relevant matters whilst at liberty on licence. At its meeting of 22 December 1986 the board deferred further consideration of the matter until January 1987, pending receipt of submissions from the applicant's solicitor and by letter recommending the outstanding warrant be discharged.
53 On 29 January 1987 the applicant was discharged from custody from Long Bay Gaol but arrested by police at the gate on a provisional warrant. The applicant was placed in custody at the then Metropolitan Remand Centre and was extradited to Queensland on 21 February 1987 for the charges of armed robbery and escape.
54 On 15 May 1987 the applicant was sentenced at Brisbane Magistrates' Court to twelve months imprisonment for escape from lawful custody. He was acquitted and discharged in respect of the armed robbery charge and on 29 July 1987 he appealed the escape conviction to Brisbane District Court. His sentence was reduced to one month imprisonment and on 10 August 1987 the prisoner was released from prison in Queensland and returned to New South Wales. The applicant resumed contact with the Probation and Parole Service and placed himself under their supervision.
55 On 24 August 1987 the ROLB resolved that the prima facie breach of the applicant's licence was that he escaped from lawful custody, that he committed an offence in Queensland and had served a sentence in respect of that offence and that he had been found not guilty of the more serious charges. In the light of these circumstances, the Release on Licence Board resolved to exercise its discretion not to recommend a revocation of the applicant's licence.
56 On 13 July 1988 the applicant was arrested at Hornsby and charged with having goods in custody and housebreaking implements in his possession. The applicant was allowed and entered bail. On 6 November 1988 he was further charged with a number of serious offences relating to firearms and conspiracy to commit armed robbery. The applicant was arrested and taken into custody in Parramatta Gaol.
57 On 5 January 1989 the applicant attempted an escape from lawful custody and was charged with that offence. The applicant maintained a plea of not guilty in relation to all offences.
58 On 16 March 1989 the applicant was sentenced at Hornsby Local Court to one month imprisonment for the goods in custody offence and, on 5 September 1989, after standing trial on the charge of housebreaking implements in possession, was sentenced to four years, three months imprisonment to date from that day. The Sentencing Judge specified a non-parole period of two years, nine months. The sentence was adjusted under the transitional provisions of the Act to a minimum term of one year, eight months and twenty five days, to commence on 5 September 1989 and to expire on 29 May 1991 and an additional term of eleven months and eight days to commence on 30 May 1991 and to expire on 7 May 1992.
59 In relation to the charges of conspiracy to commit armed robbery and having a shortened firearm in possession, the applicant was sentenced at Gosford District Court to twelve years penal servitude for the armed robbery charged, accumulative upon the sentence imposed by Maguire DCJ and seven years penal servitude for the possession of the firearm, concurrent with the first sentence. Walsh DCJ declined to specify a non-parole period. The applicant lodged an appeal to the Court of Criminal Appeal against his conviction and sentence.
60 On 23 March 1989 the ROLB wrote to the applicant inviting his submissions to show cause why he was not in breach of the conditions of his licence. The applicant replied to that letter seeking a reprieve until his charged had been dealt with.
61 In January 1991, at the meeting of the Serious Offenders Review Board (“SORB”), which replaced the Release on Licence Board, SORB resolved to ask the applicant why his licence should not be revoked. As the release on licence scheme had been abolished with the introduction of the Act, the SORB instituted a policy of not acting to revoke a licence until all court proceedings including appeals were completed.
62 On 20 February 1992 the New South Wales Court of Criminal Appeal adjusted the sentence imposed on the count of armed robbery so that it now constitutes a sentence of seven years eleven months and twenty eight days to date from 30 May 1991, to expire on 27 May 1999, on which date the applicant would then be eligible for release on parole.
63 On 25 May 1992 the applicant was sentenced for the offence of attempt to escape lawful custody to a fixed term of eighteen months, to date from 28 May 1999 and to expire on 26 November this year, 2000. An appeal was lodged to the Court of Criminal Appeal but was subsequently withdrawn.
64 In October 1993 the SORB sought advice from the Crown Solicitor as a matter of urgency as to whether the wording of the applicant's licence was invalid. The Crown Solicitor opined that the applicant's licence was legitimately granted and it was therefore open to the board to revoke the licence, which occurred on 10 June 1994.
65 The Court has been very much assisted by a number of assessment reports from the various boards in determining the applicant's progress in the prison system while in custody since 1992 to the present. It is quite obvious that the applicant has recently been making considerable effort. In July 1994 for example a visiting committee of the Serious Offenders Review Council (“SORC”) rated the applicant, who was then employed as the clerk in educational services, as an excellent worker and the SORC resolved that the applicant should remain at Lithgow Correctional Centre on its existing A2 security classification. The following year the SORC decided, after interviewing the applicant, that he should remain on his A2 security classification. However, owing to a rationalisation of departmental resources, the applicant was transferred to the Goulburn Correctional Centre, retaining his A2 security classification.
66 On 18 April 1996 the SORC reviewed its management of the applicant, noted the applicant had become angry about his transfer to Goulburn, viewing it as a punishment. The SORC recommended his security classification be reduced from A2 to a B and that he be transferred to Bathurst, owing to the time served and the satisfactory prison reports. That recommendation was approved by the Commissioner on 22 April 1996.
67 In June 1996 the council, due to medical concerns, reviewed management of the applicant. The following month the chairman of the council requested that an order be raised for his urgent move from Goulburn Correctional Centre to the MRC at Long Bay, in view of medical reports that the applicant had atypical cells in his prostate that could be consistent with cancer.
68 On 6 June 1997 the applicant's security classification, on recommendation of the Escape Review Committee of the SORC was reduced from B to a C1. The applicant was transferred to the Industrial Training Centre at Long Bay.
69 Subsequently, a recommendation was approved by the Commissioner that the applicant's security classification be considered for reduction to C2 after this application for redetermination of his life sentence had been heard.
70 The council's concluding comments on the applicant in the report of 9 March 1999 were
"Levy has spent almost half his life in prison. He has failed to adapt to a normal community life on each occasion that he has been released. Notwithstanding these noticeable hurdles, it will be possible to work with this inmate to prepare him for release into the community should the court exercise as its authority to redetermine his life sentence. The council would devise a management plan which would include the provision for progressive reductions in classification, leading ultimately to inclusion in day leave and other pre-release programs as a means for preparing him for release into the community. Consideration would be given to his medical condition and any ongoing treatment."
71 Before returning to the evidence adduced on behalf of the SORC, I want to now return to the sentencing task imposed by the section.
72 The sentence notwithstanding the 1997 amendments is somewhat free from guidance to indicate the criteria to be used in carrying out the task set by the section and the power to determine the application, with the exception of the new s.13(A)(4A) and the new s 13(A)(9) which gives some limited assistance and more so than the unamended section.
73 The exercise generally as was held by Hunt CJ at CL, on the Application of Garry John Purdy (1993) 65 A Crim 5 441 at pp. 444 and 445 to which I referred in the Application of Michael Bradley, a unreported decision of this Court of mine of 1 March 1996, in which I held
"It seems in essence no different to that which would have been undertaken at the time of the original life sentence had the penalty then prescribed been taken (as it is now) wholly at the discretion of the judge.
74 The sentence to be imposed for any crime must take into account the many different purposes for which that sentence is expected to serve, the protection of society, personal and public deterrence, retribution and reform: Veen (No 2). But as the original judgment of the majority in that case went on to point at 476:
`The purposes overlap and none of them can be considered in isolation from others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.'
As was stressed in Purdy at p.472, a sentence should not be increased beyond what is proportionate to the crime in order merely to extend the period of protection of society from the risk of the prisoner re-offending on release. It is nevertheless always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offences viewed objectively, for without such an assessment the other factors requiring consideration before arriving at the proper sentence to be imposed cannot properly be given their place. ( Dodd (1991) 57 A Crim R 349 at 354).
Except in well defined circumstances such as the youth or the mental incapacity of the offender. However, public deterrence is generally regarded as the main purpose of punishment and the subjective considerations relating to the particular prisoner, however persuasive, are necessarily subsidiary to the duty of the courts to see the sentence which is imposed will operate as a powerful factor in preventing the commission of similar crimes by those who may otherwise be preventing the commission of similar crimes by those who may otherwise be tempted by the prospect that only light punishment would be imposed. (( Rushby [1977] 1 NSWLR 594 at 597-598.) Retribution, or the taking of vengeance for the injury which is done by the prisoner, is also an important aspect of sentencing. ( Goodridge (1952) 70 WN (NSW) 42 at 43; Cuthbert (1967) 86 WN (Pt 1)(NSW) 272 at 274; Rushby at 598.) Not only must the community be satisfied the offender is given his just deserts, it is important as well that the victim, or those who are left behind, also feel that justice has been done.
What all those principles make clear is that rehabilitation or reform, the hope that the offender will be released back into the community a better person than when he or she left it, is only one of the purposes of punishment and that, when some measure of rehabilitation has been achieved, such a subjective consideration remains necessarily subsidiary to the need for the sentence to act as a deterrent to the public."
75 That was a decision of course before the presently framed section came into effect.
76 The issue in this determination of whether to set a minimum and additional term is, as well as those matters decided in Purdy cited above, the question of the applicant's just deserts for the offence and the further issue of denunciation of such a callous and terrible crime. In effect, the section requires the Court to fix a sentence that would have been appropriate if the mandatory life penalty had not applied at the time of the commission of the offence, but taking into account those matters which indicate that rehabilitation has occurred since the original sentence was passed. (R v Malcolm (1991) 58 A Crim R 148 and the appeal of Rees (unreported, 22 September 1995, the judgment of Gleeson CJ at p.6 with which the other members of the court concurred.
"Section 13A is part of a wider scheme of legislation aimed at achieving what has been described as truth in sentencing. The old system of release by executive action on licence of prisoners ostensibly sent to prison for life by judicial decision was one aspect of the previous regime thought to require legislative attention. Section 13A empowers a redetermination of sentences to alter previously indeterminable life sentences to sentences involving minimum and additional terms. The court is not obliged to make such a redetermination and, just as the current sentencing legislation permits a judge to sentence a prisoner convicted of murder to penal servitude for life (that is, until the prisoner dies), there have also been cases where judges have refused to impose determinate sentences under s 13A ( Crump v The Queen (1995) 69 ALJR 570). The legislation potentially affects the custodial position of those persons currently serving sentences. Section 13A gives such persons the right to seek from the court a discretionary decision and s 13A(9) requires the court, by paragraph (a) to have regard to any other relevant matter. The role of the court is to exercise its discretion judicially, as directed by the legislation."
77 I am obliged to examine the material which has been made available at the original sentencing, of which I have none, and subsequently to determine the imposition of a minimum and additional term, if I so determine.78 In considering the factors set out in the section and in the assistance that I have been provided by counsel, I determine that the applicant should be re-sentenced and a minimum and additional term imposed. In that respect I take into account the number of authorities which have been referred to me, in particular R v Chester, an unreported decision of Slattery AJ of 21 December 1992, which has some similarities to this present matter.
79 In Chester the circumstances were very grave and involved the cold blooded brutal execution of a defenceless man who had been enticed by a subterfuge to come to Sydney for a job. It was a scheme to get him into New South Wales. It is in this respect very similar to the subterfuge that was used in this case to bring out perhaps not so defenceless a man but someone who in the circumstances was lured by a subterfuge into circumstances where he would have little prospect of defending himself in a remote location.
80 In determining an appropriate sentence, I have had the difficulty in this particular case of the countervailing circumstances in the various periods that the applicant has been at large and the fact that he has been in custody as a result of other sentences. However, his release on licence was revoked whilst he was in custody in Queensland, awaiting trial and although he was ultimately given a light sentence, I must infer that the period in custody was taken into account for that period.
81 It is contended by Mr Nicholson that the applicant has been in custody for a period of twenty seven years, two months and twenty five days and that on the murder it is a period of sixteen years and seven months. Some of that was in very tough custody by any standards.
82 In sentencing, I find on the facts as proved before me that the applicant caused the death of the deceased in a scheme in which he planned and organised circumstances to “get even” with the deceased. He took equipment with him. He clearly intended to kill and, although submitted that he may have only contemplated the possibility, I find in these matters to the necessary criminal standard that he intended to kill and that he did kill the deceased. I find the necessary facts for the offence of murder of which he is convicted.
83 In relation to the subjective matters, I have been referred to a judgment of Spigelman CJ in a matter of Raymond Leslie White, (unreported, 23 June 1998) with which the other members of the court agreed. I quote from page 5 of His Honour’s judgment.
"Whilst accepting a degree of rehabilitation had occurred, his Honour (referring to McInerney J) took into account the failure to acknowledge his guilt as a factor which would tend to cast a question mark or constitute a matter of concern over his ultimate rehabilitation. In my opinion, it was open to his Honour to do so. It would not have been permissible for his Honour to proceed on any basis other than that. The continuing denials of involvement were false, whatever may otherwise suggest good prospects of rehabilitation. The failure to admit that he committed the crime may be seen as casting a doubt on his rehabilitation. As the Crown submitted in its written submissions to the court, there is nothing to suggest that, given the same set of circumstances, the applicant would not act in the same way. I do take into account the fact that this applicant has shown no remorse for the action which I find proved and must treat as proved in this sentencing process. There is no consciousness of guilt."
84 The applicant is now some sixty two years of age and will have turned sixty three when the period of the fixed term of 26 November 2000 occurs.85 He was born in Queensland, an only child, and his parents are deceased. He married in 1958 at the age of twenty one. That marriage lasted for about five years and he has two daughters. His ex-wife remarried after their divorce in 1963 and expressed the desire of not having any communication with him. He is very close to one of his daughters and has the support of his daughters, and of other members of his family.
86 According to the applicant, he left school when he was eighteen after obtaining a Leaving Certificate. He thereafter completed a number of in-house courses to qualify him in laboratory technology. Once qualified he worked as a laboratory assistant for the CSIRO for three years and then as a laboratory technician at the ANU for three and a half years. At the same time he was working at the university the applicant also had a milk run for two and a half years. After his work at the university, the applicant began his own business of supplying sheep and fox skin rugs to retail stores. He did this for about two years until he was arrested.
87 Between 1968 and 1969 the applicant owned a share in a clothes manufacturing business for about four months and then worked for about five months as a sales representative for an importing company until he was again arrested in 1982. When the applicant was released on licence he began a business selling flowers in a nursery and three months later worked casually in an area of sales and advertising.
88 In relation to the applicant's medical state I noted earlier, there is some evidence of possibly having prostate cancer, although it is too early to tell.
89 I have seen the very extensive educational work carried out by the applicant in recent years within the various institutions in which he has been held.
90 It is put by Mr Bermen that Court DCJ found him to be an incorrigible criminal and on the evidence available to Court DCJ that was a not unreasonable view if one took into account the extent to which he committed offences whilst he was out of prison custody and of course there is evidence that in the early stages he committed some offences whilst in prison.
91 I have carefully considered that matter because I have been concerned with the fact that the applicant usually fairly quickly turns to criminal offences after release from custody.
92 I have been referred to a report of a Mr John Taylor, a clinical forensic psychologist who examined the applicant. Mr Bermen for the Crown has pointed out that there is statistically about a fifty per cent chance of not re-offending in the future. However, as Mr Nicholson points out to the Court, it is reported
"There is also no reason to believe that he would engage in substance abuse once he is released. These factors tender to lower his likelihood of recidivism even further, together with the fact that he is now sixty two years of age, a factor which in itself would tend to lower the likelihood of his re-offending.
93 He is described as having a narcissistic personality and that he is not institutionalised and I think whatever character traits the applicant has, I suspect he is a lot less institutionalised than most people who have been in for the length of time that he has.
94 I consider that Mr Nicholson’s submission that I must look at this in the fixing of the minimum term, taking into account all of the factors that I have, that I should look at it on the basis of totality, looking at all of the offences. It seems to me, looking at the factors to which I have referred earlier in this judgment, that a Court must take into account in fixing a sentence that the purposes of punishment, of retribution, of denunciation of such a callous and vicious crime have been served by the length of time that he will have served by 26 September 2000.
95 Mr Bermen for the Crown does not contend that it would be appropriate for a much longer term than that to fix a minimum term but I think that in terms of the totality of the criminality of all of the offences for which he has been sentenced that to have a minimum term any longer than 26 November 2000 would be to set a term which is inappropriately long in the circumstances. I must take into account particularly the way he has recently rehabilitated himself. As I have indicated I have concern in this case about the applicant, because of his failures in the past and I share in some part Mr Bermen's concern about the likelihood of recidivism but I refer to the passage that I have referred to earlier in fixing a minimum term. It is clear that a lot of people in fact do commit further crimes, even after a lengthy period of time, and even after a lengthy period of an additional term.
96 The applicant has clearly demonstrated a change in attitude and behaviour, particularly in recent years. That change is evident from all the reports that are put before me. The computer courses and the studies that he has undertaken have partly been inhibited by his constant movement. The certificates that have been evidenced before me are impressive. During the last couple of years the applicant's computer skills appear to have significantly developed. The applicant is conversant with a number of software programs, including Microsoft, Windows, Publisher and Small Business Tools. I could wish that I had the same skills. The applicant has also developed his understanding of the operational aspects of computers and is able to serve many of the technical difficulties that may arise.
97 For the past two and a half years, the applicant has been employed as the librarian with the ITC and has taken on the full responsibility of managing the day to day operations of the library. The applicant on his own initiative has implemented the Dewey system of organising books and has encouraged the purchasing of a wider circle of journals and books for inmates. The applicant has also assisted inmates with their legal or procedural problems that they have encountered within the gaol system.
98 The applicant has been in custody for the majority of his adult life, having spent about thirty years in incarceration. Since being charged, as I have mentioned, he has always maintained his innocence but I must treat this sentencing as though he is guilty of the offences found against him.
99 The primary debate between counsel has been on the question of the length of the additional term. The Crown suggests an additional term of the whole of life with a view to deterring further offences, on the record of the applicant but says if I do not accede to that, that the twenty seven year term obliges in general sentencing practice rather than any matter of law under the Act that it should be a period of some nine years.
100 It must be remembered that the new section, which includes the fact that this Court must take into account the age of the applicant, the applicant as I have said will be sixty three on 26 November 2000 and it will be probably early in the New Year before he could be considered. To lengthen the term to as long as nine years would be to take him until his seventy second year. I consider that the work done by the applicant and taking into account the period that he has spent inside and the rehabilitation that has occurred within him, that to impose a term that long would be an artificial extension of the period that he sould be obliged to serve. I appreciate that it is an additional term but I think the applicant would well understand that if, even after a period of the five years that I propose to impose as an additional term, he commits an offence, it would not be right that he automatically go in for the rest of his term. He has served a lengthy term for a very serious offence, the objective seriousness of which must not be underrated. However, I consider that any sentence would take into account his long criminal history, even beyond that term.
101 I think in the light of his age and the fact that five years on top of 26 November 2000 would get him into his sixty ninth year, that the comment of Court DCJ that he is incorrigible might not be correct. I think he has shown that is corrigible and I propose to impose minimum and additional terms to reflect that.
102 Would you stand up. I have resolved to redetermine your life sentence. In applying the principles of totality for the offence and taking into account the other convictions for which you have been sentenced, I consider that an appropriate minimum term of imprisonment which I now impose from the date of your arrest on 6 January 1970, is a period of thirty years, ten months and twenty days, from 6 January 1970 to 25 November 2000 and you will be eligible to release to parole from 26 November 2000. I impose an additional term of five years from 26 November 2000 to 25 November 2005.
103 May I apologise for the length of time that you have had to hear me give the judgment. However, it seemed to me that after this length of time, in view of the good hard work done over the last few years by the applicant that he was entitled to the reward of not having to wait for a judgment which I could have published later but nevertheless obliged him to wait.
104 Can I wish you good luck, applicant, with your progress now through the system and hope that you can give some acceptance to the fact that in the years that remain to you, you ought not to do anything that deprives you of a person's general right to be at large.
105 APPLICANT: Thank you, your Honour.
106 HIS HONOUR: May I thank both counsel for their very considerable assistance.
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