Regina v Main

[1999] NSWSC 1174

CITATION:	REGINA v MAIN [1999] NSWSC 1174 revised - 26/06/2000
CURRENT JURISDICTION:	Criminal
FILE NUMBER(S):	L00022/97
HEARING DATE(S):	9 July 1999 19 November 1999
JUDGMENT DATE:	19 November 1999
PARTIES :	Regina Robert Michael Main
JUDGMENT OF:	Adams J at 1

COUNSEL :	Mr Phil Thompson (Crown) Mr J Grahame, solicitor for accused
SOLICITORS:	Director of Public Prosecutions (Crown) Prisoners Legal Service (Applicant)
CATCHWORDS:	Re-determination of life sentence - s13A Sentencing Act 1989 - purpose of - element of retrospectivity - significance of rehabilitation - relevance of Victims' Impact Statements
ACTS CITED:	Sentencing Act 1989 Criminal Procedure Act 1986
CASES CITED:	Regina v Christopher Hatziathanasiou (unreported NSWSC 25 October 1995) Regina v Terry Mark Hitchins (unreported, NSWSC 3 June 1993) Regina v Anthony Lanigan (unreported, NSWCCA 31 August 1992) Regina v Purdey (unreported, NSWSC 5 November 1992) Bugmy v The Queen (1990) 160 CLR 525)
DECISION:	Application dismissed; Applicant not to reapply for a period of two years from 9 July 1999

THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

ADAMS J

FRIDAY 19 NOVEMBER 1999

L00022/97

REGINA v ROBERT MICHAEL MAIN

JUDGMENT ON APPLICATION FOR
DETERMINATION OF LIFE SENTENCE

1    HIS HONOUR: On 30 November 1984, the applicant, who was then aged 29 years, was convicted of the murder of one John Wallace Mitchell on or about 18 June 1983 and of assaulting Bruce Kitamura and attempting to rob him of cocaine whilst armed with a .375 magnum revolver. These offences arose out of the same occasion. He was sentenced to penal servitude for life on each count to be served concurrently and dating from the time of his arrest, namely 29 June 1983. On 27 April 1987, whilst serving those life sentences he was convicted of the murder of Anthony William Cameron at Malabar on 27 November 1983 and on, 28 May 1987, he was sentenced to penal servitude for life in respect of this crime. The second murder was committed whilst the applicant was at Long Bay prison awaiting trial for the crimes of which he was convicted in November 1984. The offences of June 1983 were committed when he had been at liberty for about seven months following his release on licence after serving something less than eleven months of a four-year term of imprisonment for armed robbery imposed on 26 January 1982. 2    Having served in respect of the first two sentences of life imprisonment a little over twelve years and in respect of the second murder a little less than nine and a half years the applicant’s application for re-determination of those sentences under s13A of the Sentencing Act 1989 (the Act) was dealt with by Allen J on 18 August 1995. His Honour considered that the applications should be dismissed and specified that two years must elapse before an application might again be made to this Court for re-determination. In doing so, his Honour said -

“The objective gravity, however, of the offences for which the life sentences were imposed was so great that I do not consider that [I should] ... now proceed to re-determine the life sentences. In that regard I am most affected by the second murder which was a cold, calculated, deceitful assassination. It is an offence so grave that were he to be sentenced now for that offence, under present sentencing patterns, he might well be looking at a sentence of penal servitude for life, the sentence meaning precisely that.”

The applicant now seeks once again to have the life sentences re-determined under s13A of the Act.

3    It is necessary briefly to set out the facts underlying the three convictions. At approximately midnight on 17 June 1983, the applicant, who was armed with a loaded .357 calibre revolver and accompanied by another man, both disguised with balaclavas, arrived at Kitamura’s house at Whale Beach planning to rob him of drugs, of which he was a supplier. Present at the house as a guest was the deceased Mitchell who struggled with the applicant and was fatally wounded when the loaded revolver was discharged during the struggle. The applicant told the police that he realised that a man was dead, but said “I only went there to rob them not hurt them, that’s the truth”. The report of the Probation and Parole officer tendered for the purpose of the sentence proceedings before the trial judge stated that he displayed “little remorse” over Mr Mitchell’s death. That this is so is plainly demonstrated by the commission of the murder of Cameron almost exactly five months after Mitchell’s killing. Cameron was killed by either inhaling or having had injected pure heroin. This murder was committed by the applicant on a promise of payment of a large quantity of heroin by another prisoner, then facing serious drug charges, who thought that Cameron, jointly charged with him, might give evidence against him. It was a contract killing. To my mind, the characterisation by Allen J of this crime, which I have set out above, is entirely justified. It is a matter of concern that the applicant continues to deny that he was involved in the death of Cameron in any way at all, a denial which he also maintained before Allen J. Quite apart from the uncertainties which this introduces so far as rehabilitation is concerned, the element of remorse and contrition which, if genuine, is relevant to be taken into account on sentence in a prisoner’s favour is not available to the applicant. 4    The Serious Offenders Review Council, the report of which the Court was required to take into account for the purposes of his former application, said -

“The Council has found MAIN (the applicant) to be drug affected from time to time and generally to be an unsatisfactory prisoner. He has been tested at B classification institutions and has failed on each occasion.
Occurrences since October 1993 reinforces the Council’s opinion of 5 October 1993 that he is not yet rehabilitated.
His murders were drug-related, he committed one murder whilst on remand and has been troubled throughout his imprisonment by indulgence in illicit drugs.
The Review Council will persevere with further efforts to assist him overcome his drug problems but holds no hope at present. It would not be safe in the foreseeable future for MAIN to return to the community.”

Allen J and, with respect I agree with him, was not persuaded that all the incidents adverted to in the documentation which accompanied the Council’s report showing the partaking of illicit drugs by the applicant whilst in custody did occur. But there was good reason for thinking that the applicant had not then overcome his dependence on drugs. That he still requires 100 to 110 milligrams of methadone a day and expects to do so for the foreseeable future demonstrates that there has been little change in this respect. Having regard to the circumstances surrounding the crimes for which he is seeking sentence re-determination, this matter is a troubling one.

5    The report of the Serious Offenders Review Council of 20 April 1998, prepared for the purposes of the present application disclosed that, since about 1997 there had been significant improvement in the applicant’s attitude and behaviour; in particular he is now regarded as being an excellent worker and has taken on significant responsibilities by running Narcotics Anonymous for the benefit of other prisoners. Even so, the Council’s report falls short of assessing him as suitable for eventual release into the community, although this course is not opposed as it had been when he first applied for re-determination. The Council’s conclusion is as follows -

“In the event that the Supreme Court grants MAIN’S application for the redetermination of his indeterminate sentence, then the Serious Offenders Review Council will develop a plan for his management during the remainder of any minimum term imposed. Hopefully, MAIN will be progressively reduced in security classification leading ultimately to his inclusion in unsupervised Day Leave and Work Release programs in preparation for his eventual return into the community.”

6    I think it fair to say that, in the present context, the applicant has shown some real progress towards rehabilitation in the last two years but he must go much further before he can be released. His son gave evidence that the applicant has become easier to communicate with and is “just a calmer person basically”. He was able to offer the applicant work and provide accommodation. 7    Rehabilitation, of course, is not the only function of sentencing. There must be appropriate punishment for the crimes which have been committed. Murder, it hardly needs saying, is an extremely serious crime but the murders committed by this applicant fell into the more serious and culpable class. In the first, he sought out a victim in his own home with an armed weapon the discharge of which at any human being would obviously be very likely to cause serious injury and possibly death. The applicant showed very little, if any, remorse. The second victim also did not, as it were, come across his path and because of something that occurred between them, meet his death. Rather, the applicant sought him out to murder him for reward. 8    I frankly do not know by what measure it is possible to assess with any reasonable degree of confidence the extent to which any person who committed crimes such as these might demonstrate such a change of character to enable a reliable prediction that there was such a change as to allow his safe release into the community. There are signs, however, that point, in my estimation, towards the possibility of this being so in due course so far as this applicant is concerned. In his report of 23 March 1995, Mr A Andreasen, a consulting clinical psychologist who examined the applicant at the Grafton Correctional Centre for psychological testing and assessment, concluded as follows -

“The overall evaluation of this man in terms of both the interview and the testing is that he remains a very self confident highly active manipulative person who operates as much as possible in terms of being a law unto himself. He clearly continues to have the considerable distortion of personality that was the basis of his criminality and drug addiction before his incarceration on these offences. I note that there is a history of negative attitudes toward this man on the part of the jail authorities although these have not always resulted in charges or in proven evidence. While such behaviour in prison could of course be his means of surviving in custody, it is nevertheless likely to predict continuation of the self centered, impulsive, hyperactive approach that was associated with him getting into trouble in the past and with his use of heroin.”

I should point out that I do not see any element of impulsiveness at all in the applicant’s commission of the crimes I am presently considering. Indeed, it is their very deliberate character (except for the killing of Mr Mitchell) which to a considerable degree renders them so grave.

9    The applicant was again assessed by Dr Lucas in July 1998. Despite the improvements to which I have referred, Dr Lucas commented that -

“Overall, his presentation was consistent with the assessment carried out by Mr Allan Andreasen in 1995. My assessment of him is not markedly different from Mr Andreasen’s.”

Dr Lucas’s diagnosis was as follows -

“The most likely personality diagnosis is of antisocial personality disorder. It is likely he had a conduct disorder prior to the age of fifteen. His principal personality characteristics have been well described by Mr Andreasen. What one looks for in a man his age who suffered a personality disorder of the antisocial type is evident of maturation with amelioration of antisocial and impulsive traits. One hopes that such changes will become evidence in the fourth decade of life - they do in a significant number of cases - and there may be some indications that Mr Main, rather late in life, is showing signs of improvement in his prison conduct. However it seems probable that there are a number of personality traits including a high level of activity, impulsively and possibly excess confidence, which in some circumstances in the community might get him into difficulties. As to how much these traits will change over time is difficult to predict.”

10    Not surprisingly, Dr Lucas opines that the applicant’s “personal history and criminal record, combined with his personality, make the difficulties in deciding how [he] ... would function outside prison.” The most important consideration, from Dr Lucas’s point of view, was whether there was reasonable evidence of an improvement in prison behaviour in recent years and the need for the applicant to demonstrate that any such improvement has a strong foundation. 11    The applicant did not give evidence before me, so I have had no opportunity to assess him for myself. However, after carefully considering the whole of the material before me, I am persuaded that there is some indication of genuine change. It is more, but not much more, than slight and sufficient, I think, to enable the Court to infer that there is a reasonable possibility (and I can put it no higher) that it will continue and improve. However, having regard to the applicant’s history, I have no doubt that a great deal more time must elapse before he will reach the stage when indeed he will be reasonably fit for release. 12    As I understand it, the philosophy underlying s13A of the Act is that it would be unfair and certainly contrary to our accepted notions of justice if the passing of the “truth in sentencing” legislation had the effect of retrospectively imposing more serious sentences than those which had already been lawfully passed. The sentences currently being served by the applicant were imposed according to the law as it then stood. That law, as O’Brien CJ at CL observed on the occasion of first sentencing the applicant to life imprisonment was that a life sentence did not mean what it said. His Honour made this observation in response to the jury’s recommendation for leniency which they added as a rider to the guilty verdict on the murder count. This, very likely, followed because the Crown case was not that the applicant intended to kill or cause grievous bodily harm or that he acted with reckless indifference to human life but rather he was guilty of murder because the unintended death occurred in the course of a felony. In my opinion, the evidence would not have supported a conclusion beyond reasonable doubt that the applicant had shot the victim with any relevant murderous intent. The situation is altogether different, of course, so far as the second killing is concerned. 13    The relevant principles to be applied by a court hearing an application under s13A of the Sentencing Act have been usefully summarised in the judgment of James J in Regina v Christopher Hatziathanasiou (unreported NSWSC 25 October 1995) as follows -

“(i) The fresh sentencing exercise required by s13A is in essence no different to that which would have been undertaken at the time of the original proceedings on sentence, had the penalty to be imposed then been wholly at the discretion of the sentencing judge, save that the judge on the application under s13A has the advantage of a great deal of hindsight.
(ii) The refusal of an application under s13A of the Sentencing Act is tantamount to confirming the sentence of penal servitude for life originally imposed. Hence, an application under s13A should not (at least normally) be refused, unless the appropriate sentence, by virtue of the application of ordinary sentencing principles to all of the material available to the court, is one for the remainder of the life of the prisoner. Such a sentence will be the appropriate sentence only if the applicant’s case falls within the worst category of cases of murder.
(iii) If a judge decides to set a minimum term, then in setting a minimum term the judge fixes the minimum period which the prisoner must serve in prison. On the expiration of the minimum term set by the judge the offender will be eligible for release on parole but he will not be entitled to be released on parole unless a parole order is made by the Offenders Review Board, and the Board is not to make a parole order unless the Board has inter alia determined that the release of the offender is appropriate, having regard to the principle that the public interest is of primary importance.
(iv) By virtue of the provisions of s13A(5) it is not possible to impose cumulative sentences on an application under s13A. Consequently, where, as in the present case, more than one sentence was imposed by the original sentencing judge, then, if the application is granted, the longest of the sentences imposed by the judge hearing the s13A application must reflect the totality of the criminality in all of the offences committed by the offender, including the offences for which determinate sentences were originally imposed.”

I respectfully adopt and apply what was there said by his Honour.

14    Applying those principles to the present case, I think it reasonably clear that although it was very serious, the killing of Mitchell did not fall within the worst category of cases of murder. On the other hand, the killing of Cameron is much more serious again. The applicant was a mature man of 28 years. He was in prison awaiting trial for the killing of another person only months before. It was a cold-blooded, pre-planned murder for reward. Whether or not his victim was a drug addict or involved in drug dealing is, to my mind, irrelevant. The law will not weigh in the scales the value of a life. The applicant has shown no remorse. It is possible to discern, as I have said, the commencement of genuine rehabilitation but whether this means that the applicant is less likely to kill again, it is impossible to know and I have significant doubts that this is so. If the sentencing judge had a discretion such as is now the case, the imposition of a life sentence upon the applicant, that is, life meaning life, would have been a proper exercise of his Honour’s sentencing discretion. 15    It was submitted, however, that it would be appropriate to impose a minimum term on the applicant with an additional term of life imprisonment: see, eg Regina v Terry Mark Hitchins (unreported, NSWSC 3 June 1993). This would have the effect of permitting the Offenders Review Board to determine whether, following expiration of the minimum term, the applicant is fit to be released into the community for the balance of his sentence and, if so released, to be supervised appropriately. The mere fact that the applicant is not presently ready for release and no prediction can be made when, if ever, he will be is not a sufficient reason for refusing to set a minimum term: Regina v Anthony Lanigan (unreported, NSWCCA 31 August 1992), Regina v Hitchins (supra). While the possibility of rehabilitation will be taken into account in a prisoner’s favour, to a greater or lesser extent depending on the gravity of the offence (see eg Regina v Purdey (unreported, NSWSC 5 November 1992), Bugmy v The Queen (1990) 169 CLR 525 at, 530, 532), the lack of rehabilitative prospects must not increase a sentence that is otherwise proportionate to the crime. Nor are retribution and deterrence the only relevant factors in sentencing, even for murder, although for two murders they must comprise by far the most importance considerations. 16 Several Victims’ Impact Statements have been tendered in respect of the killing of Anthony Cameron. The law provides for this to be done: s23C of the Criminal ProcedureAct 1986. In these statements, Anthony’s mother and his widow express their intense feelings of grief at Anthony’s killing and their justified anger towards his murderer. Nor have their sufferings come to an end, as each succeeding day reminds them of their loss. In permitting these statements to be received, however, the law does not thereby place them to be weighed in the scales of judgment. I respectfully agree with and adopt the careful reasoning of Hunt CJ at CL in R v Previtera (1997) 94 ACrimR 76 at 85 ff as to why this must be so. The heinousness of murder is so great in the eyes of the law that it matters not whether the victim’s death is the cause of pain or grief to many or to none. Few notions could be more obnoxious to the moral standards essential to the rule of law than the suggestion that justice could regard the life of one person as more or less valuable than the life of another or, to put it in another way, the killing of one person as more grievous than the killing of another because of their personal and social circumstances. All right thinking people would accept that it would be completely wrong to take one day from an otherwise appropriate sentence for murder because the deceased was obnoxious, stupid, friendless and alone. By exact parity of reasoning, it cannot be right to add a day to an otherwise appropriate sentence because the deceased was loving, intelligent and surrounded by friends and family. If this were not so, counsel for a murderer might rationally submit that, as the deceased was of the former character, the sentence should be more lenient and the Crown Prosecutor, by pointing to a grieving widow, submit the contrary. The virtues or vices of the deceased, the extent of his or her social connections and whether the death caused grief or relief or was simply unnoticed by the indifference of the uninvolved, would then become the subject of evidence and argument. The law will neither value a life nor punish a death by such a demeaning process. In this case, for example, no Victims’ Impact Statement has been filed in respect of Mr Mitchell. Yet it would be completely wrong of me to deal with his death on the basis that, somehow, it is less serious than that of Anthony Cameron. The reason that sentences in respect of those two murders might differ arises from the circumstances in which they occurred. Of course, I acknowledge and sympathise with the grief and loss which Anthony Cameron’s family have suffered but, for the reasons I have stated, it would be wrong of me to allow those feelings to increase the sentence that, in point of law, is otherwise appropriate. 17 Section13A(8) states -

“(8) If the Supreme Court declines to determine a minimum term and an additional term, the Court may (when making that decision) direct that the person who made the application:
(a) never reapply to the Court under this section; or
(b) not reapply to the Court under this section for a specified period.”

18    A direction under s13A(8)(a) (that a prisoner may never reapply to a court for redetermination) may be given only where the applicant was sentenced for the crime of murder and “it is a most serious case of murder and it is in the public interest that the determination not be made”: section 13A(8)(c). Were I to sentence this applicant today, having regard to the extreme seriousness of the crimes of murder that he has committed, more especially that of Cameron, I would have made an order under s13A(8)(a) with the effect that he would be required to serve the life sentence relating to the murder of Anthony Cameron for the term of his natural life. I am mindful, however, that under s13A(9), the Supreme Court in exercising its functions under this provision, is required, amongst other things, to consider whether there has been any material change in the applicant’s character, especially concerning his or her possible rehabilitation. It is this requirement which gives a significantly different sentencing context to a proceeding under this provision than that which applies when sentencing a prisoner for the first time. It is, I consider, a reflection of the circumstance that when a life sentence was imposed under the old law a prisoner was eligible to be released on licence under the Crimes Act 1900 as it then stood and that age and good behaviour, alone, might eventually provide a sufficient basis for release despite the heinousness of the crime. A marked degree of rehabilitation in such a prisoner could permit a minimum term to be determined (although it would necessarily be lengthy) in due course, even though the crime might, if sentence were now to be passed for the first time, attract a life-means-life sentence. It is this possibility that leads me to conclude that I should not at this time give a direction under s13A(8)(a) that the applicant may never reapply to the court for a re-determination of his life sentences. However, I have concluded, in all the circumstances, that I should decline the application to determine a minimum term and an additional term in order to permit the applicant to demonstrate a greater degree of rehabilitation and hence establish possibly that it is appropriate that he should obtain in due course a minimum term. Therefore, I dismiss this application and direct that the applicant not re-apply to the Court under s13A of the Act for a period of two years from 9 July 1999.

Last Modified: 06/26/2000