Regina v Rodney Thomas Clarke

[2005] NSWSC 413

CITATION:	REGINA v Rodney Thomas CLARKE [2005] NSWSC 413
HEARING DATE(S):	6 August 2004
JUDGMENT DATE :	4 May 2005
JUDGMENT OF:	Hidden J at 1
DECISION:	Application granted: life sentence confirmed but non-parole period of twenty-eight years set.

CATCHWORDS:	CRIMINAL LAW: Application for redetermination of life sentence - murder, associated with sexual assault - victim a nine year old girl - life sentence with lengthy determinate sentences for sexual offences - applicant twenty-one years old at relevant time, and of limited intellect - later admission of sexual fantasy relating to victim - significant progress in sex offender programs while in prison.
LEGISLATION CITED:	Sentencing Act 1989 Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900
CASES CITED:	R v Clarke [1999] NSWSC 1225 R v Bell [1985] 2 NSWLR 466 R v Garforth (CCA, unrep, 23 May 1994) R v Fernando [1999] NSWCCA 66 R v Harris (2000) 50 NSWLR 409 R v Merritt (2004) 59 NSWLR 557 R v Lewthwaite (unrep, 31 July 1992)
PARTIES:	Regina - respondent Rodney Thomas Clarke - applicant
FILE NUMBER(S):	SC L00001/03
COUNSEL:	Crown: D Frearson SC Applicant: J Stratton SC
SOLICITORS:	Crown: S Kavanagh (Department of Public Prosecutions) Applicant: W Hutchins (Legal Aid Commission)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

HIDDEN J

4 May 2005

L00001/03 REGINA v Rodney Thomas CLARKE

JUDGMENT – The application of Rodney Thomas CLARKE pursuant to Section 44 (5) of the Crimes (Sentencing Procedure) Act 1999

1 HIDDEN J: After a trial before Cole J and a jury in August and September 1988, the applicant, Rodney Thomas Clarke, was found guilty of murder and three counts of sexual intercourse with a person under the age of ten years. The victim of the offences was a nine-year-old girl. On 15 September 1988 Cole J sentenced him to penal servitude for life on the charge of murder. On each of two of the charges of sexual intercourse he was sentenced to penal servitude for twenty years with a non-parole period of eighteen years, and on the remaining charge he was sentenced to penal servitude for ten years with a non-parole period of eight years. Each sentence was directed to commence on the day of his arrest, 22 July 1987.

2 In November 1995 he lodged an application for re-determination of the life sentence under s13A of the Sentencing Act 1989, since repealed. In due course that application came on for hearing before Newman J, and on 15 December 1999 his Honour gave judgment refusing the application and directing that he not make any further application for a period of three years from that date. On 29 August 2003 he filed another application, on this occasion pursuant to s44(5) and schedule 1 of the Crimes (Sentencing Procedure) Act 1999, and it is that application which is before me.

Facts

3 The facts of the case are most distressing. In July 1987 Mrs Suzanne Keegan lived at a house in Tregear with her four daughters, including Deborah (then aged nine) and Sarah (aged seven). She had been separated from her husband, the father of the girls, for some time. The applicant, then aged twenty-one, lived in the same street with his parents and his brother. He knew of the Keegan family and was aware that there was no adult male in the household. He had seen Deborah Keegan in the street, walking to school.

4 In the evening of 15 July 1987 Mrs Keegan put her daughters to bed. The girls shared two bedrooms, Deborah sharing a room with Sarah. Mrs Keegan then watched television in the living room, and a little after 10pm she fell asleep on a lounge chair. At about 10.30pm the applicant went to the house. Passing the living room window, he could see through a gap in the curtain that Mrs Keegan was asleep and that the television was on. He went to the rear of the house and gained entry to Deborah and Sarah’s bedroom by prising open the locked window. Once inside, he went to the hallway to check that Mrs Keegan was still asleep before returning to the bedroom.

5 Deborah awoke, asked him what he was doing there and started to scream. He put his hand over her mouth and pushed her head into the pillow. She became unconscious (or semi-conscious) and stopped struggling, although she was still breathing through her nose. He pulled the blankets off her and removed her lower garments. He pulled her to the side of the bed and spread her legs apart. She struggled a little but he kept his hand over her mouth and forced her head against his chest, so that she would not scream. He penetrated her vagina with his finger, apparently for a significant period of time, and during this he achieved an erection. Not without difficulty, he penetrated her vaginally and ejaculated inside her. She continued to struggle and he kept his hand over her mouth. The statement of facts before me recites that he ”subsequently” turned her over and, forcing her head into the pillow, had anal intercourse with her. It is not clear on the evidence at what stage this happened. What is clear, however, is that eventually she ceased to struggle and it was then that she died of asphyxiation.

6 According to the statement of facts, Sarah was asleep on her bed in the same room throughout the incident (although a victim impact statement by Ms Sarah Keegan presented to Newman J asserts otherwise). The applicant put Deborah’s legs back on to the bed and pulled the covers over her, but did not adjust her clothing. He left through the bedroom window, leaving it open. Mrs Keegan discovered Deborah the next morning and called for an ambulance, whereupon the matter came to the attention of the authorities. A post-mortem examination established that the girl had died of asphyxiation, and found signs of forcible penetration vaginally and anally.

7 For the most part, the detail of what happened to the unfortunate child is to be found in the applicant’s admissions to police, particularly in a recorded interview on 22 July 1987. He told police then that he did not mean to kill the girl and that he thought she was still breathing when he pulled the covers back over her. He could offer no explanation for his decision to have intercourse with her.

8 It is unnecessary now to recount what he had to say in a series of interviews with police between July and October 1987. That evidence was summarised by Newman J in his judgment: R v Clarke [1999] NSWSC 1225 at [22]-[31]. It is sufficient to say that he later claimed that he had entered the victim’s bedroom with an accomplice, that the accomplice had also had sexual intercourse with her and that it was that man who had suffocated her. This was his defence at the trial, when he admitted no more than digital and penile penetration of the girl’s vagina. In interviews with the police he had never admitted anal intercourse, and his case at trial was that that had been the act of his accomplice.

9 A transcript of Cole J’s summing up was never taken out and counsel were unable to tell me on what statutory basis or bases murder was left to the jury. The issue was not referred to in Newman J’s judgment. Nor did Cole J refer to it in his remarks on sentence apart from the observation that murder “in order to escape detection, and committed in conjunction with selfish gratification of sexual desires, has no place in civilised society”. Obviously, if the applicant had suffocated the girl to avoid detection he must have intended to kill her. The alternative view is that the suffocation was the unintended result of his sexual abuse and his determination to prevent her from raising the alarm, and was the product of a reckless indifference to human life. As the law now stands, an intent to kill to avoid detection would be a most significant finding for the purpose of sentence and it is inconceivable that a sentencing judge would deal with it in such a parenthetical way.

10 However, the law as it stood then was different. By s19 of the Crimes Act (since repealed) the prima facie sentence for murder was penal servitude for life unless it appeared that the offender’s “culpability for the crime” was “significantly diminished by mitigating circumstances…”. It had been held that that provision did not enable the prima facie sentence to be avoided simply by a favourable subjective case. Rather, it was confined to circumstances directly related to the commission of the crime, that is, circumstances which influenced the conduct constituting the commission of a murder and the relevant state of the accused’s mind: R v Bell [1985] 2 NSWLR 466. (Of course, at that time life sentence prisoners had a prospect of eventual release on licence.) In the present case the requirements of s19 could not have been met, whether the applicant’s guilt of murder was founded upon an intent to kill or reckless indifference to human life, and a finding one way or the other was of no practical significance in determining the sentence.

11 Not knowing how the applicant’s liability for murder was addressed by counsel and left to the jury by his Honour, I would hesitate to approach the present application upon the basis that he intended to kill the little girl. The case should be dealt with as one of reckless indifference to human life. The Crown prosecutor before me submitted that the distinction is now of little or no significance to the outcome of the application. To that matter I shall return. On either view, the crime was heinous.

12 Before passing sentence upon the applicant, Cole J made the following observations:

It is difficult to comprehend that a human being could engage in such conduct in a civilised society. Sexual attacks upon persons in public places are frequently reported, but are not to be tolerated. But much worse is a sexual attack upon a defenceless child who believes, and is entitled to believe, that she is secure in the comfort, security and sanctuary of her own bed in her own home. Clarke selected as his victim a near neighbour, whose window he was prepared to force, no doubt confident in the knowledge that no male was within. Having gained entry he gratified his sexual desires upon an innocent 9 year old girl while slowly killing her. The trauma which that young girl underwent whilst being subjected to these gross sexual attacks and at the same time being suffocated, is too horrible to contemplate.

………

Looked at objectively, it is difficult to perceive a more appalling sexual attack upon a defenceless child. Similarly, to suffocate a child to death in her own bed is a terrible murder.

With those observations no-one could disagree.

13 I have before me victim impact statements by Deborah’s parents and her sister, Sarah, which were prepared for the application before Newman J. I also have further statements by her parents and by another sister, Barbara Keegan, prepared for the present application. Those statements speak eloquently of the grief and anguish all of them have suffered as a result of this senseless tragedy, and of its serious and enduring effects upon their lives. They have my deepest sympathy, as do all of those who have been affected by Deborah’s brutal and untimely death. However, like any sentencing exercise, the determination of this application requires the balance, in the public interest, of a number of competing factors. I can but hope that the finalisation of these proceedings will see the Keegan family pass a milestone in their lives. I am acutely aware that nothing this Court can do could ever assuage their pain.

Subjective case

14 The applicant was twenty-one years old at the time of the offences and is now thirty-nine. In July of this year he will have been incarcerated for eighteen years. He had a minor criminal record of no present significance. He was brought up in a large family and his background appears to have been satisfactory. His parents stood by him after his arrest. His father has since died but he continues to enjoy support from his family, particularly his mother.

15 He is of limited intellectual capacity. A psychological report prepared for the sentencing proceedings before Cole J disclosed his intellectual functioning to be “within the borderline area of mild mental retardation”. For some years prior to the offences he had been a drinker and used a variety of drugs. I accept that on the night in question he was affected by a combination of alcohol and marijuana but this affords no explanation for his behaviour. That view is supported by the preponderance of the psychiatric evidence before me and, indeed, in evidence before Newman J he acknowledged as much.

16 What is significant for present purposes is his progress within the prison system and, in particular, the extent to which therapeutic programs have developed his self-awareness and his insight into his crimes. There is a volume of material before me about this. I trust that I do it justice by a relatively brief summary. By late 1999, when his application before Newman J was heard, he had made considerable progress. He had been the subject of a number of favourable reports about his conduct and industry. He had been dealt with on only two occasions for breaches of prison discipline, which were of a nature of no present relevance. He had undertaken a number of educational courses, including a course in adult literacy. In July 1995, following the recognition by the Serious Offenders Management Committee of his “excellent effort and sustained progress through his sentence”, his classification was reduced from A2 to B. By October 1997 his classification had been further reduced to C1 because of his progress in therapy.

17 In mid-1997 he embarked upon the Sex Offender Redirection Training Program (abbreviated as “SORT”). That was a tiered program of group therapy directed to his recognition of the seriousness of his crimes and the factors which led to them, and to the resolution of his “personal deficits” so as to reduce the risk of his re-offending. By the end of that year, a psychological report described him as having “made substantial gains over the course of the program” and having developed an ability “to identify as a sex offender…”. A further report of April 1999 attested to his continued progress within the program, speaking of his “important insight” and “real sense of victim empathy”. The author of the report concluded:

Mr Clarke presents as being motivated to undertake all therapeutic options which have been presented to him. He appears to be committed toward moving forward in his own personal journey of rehabilitation. Mr Clarke is viewed with favour by therapeutic staff and his commitment toward personal endeavours is well acknowledged.

The report recommended his consideration for the CUBIT program, to which I shall turn in a moment.

18 In the sentence proceedings before Cole J there was a report from Dr William Barclay, psychiatrist, who did not find the applicant to be suffering from any mental illness. This view was shared by Dr William Lucas, psychiatrist, who prepared a report in April 1999 for the application before Newman J. That report recorded a history of his having been sexually abused by a family friend when he was only seven years of age, something which he had not revealed before. He also told Dr Lucas that his sexual contact in his teenage years and early adulthood was very limited. His description of his erotic fantasies disclosed nothing abnormal, and he denied any sexual feelings towards young girls.

19 Significantly, in a letter to his solicitor in May 1998, he abandoned his account of having broken into the house with an accomplice and admitted that he was the sole perpetrator of the offences. The effect of what he told Dr Lucas and of his evidence before Newman J was that he had broken in to steal property and that his sexual assault upon Deborah was opportunistic. As he put it to Dr Lucas, it was while he was trying to prevent the girl screaming that suddenly his “own abuse came forward” and he saw a chance to “put all this on someone else, a chance to get rid of it”. He said in evidence that he had “taken ownership” of his crime, an expression he appears to have learned during counselling. He expressed remorse, describing what he had done to the little girl as “horrific” and “evil”. He acknowledged the impact of his actions upon her family, adding that not a day went by when he did not think about them.

20 In his report, Dr Lucas observed that it was “hard to know just what circumstantial factors were important and the extent to which the offence was opportunistic”. He noted the applicant’s intellectual limitations, impairing his “ability to understand the offence himself and to explain it to others”. On the other hand, he observed that the applicant had “co-operated with treatment and made good progress”. The doctor concluded:

His offence was most serious. He has not given a history suggesting longstanding sexual problems. Rather, there was a lack of sexual activity and of social skills. If he continues to receive assistance and co-operates with supervision on release, then I believe the chance of his re-offending will have been substantially reduced.

21 Dr Lucas adhered to this view in his evidence before Newman J. Asked whether he considered the applicant to be a danger to the community in the future, he acknowledged that the assessment of future dangerousness is difficult, but noted that the applicant did not suffer from “a major psychiatric disorder” and that he was not “an established sexual offender nor a violent offender” apart from the event in question. He was impressed that he had been through the SORT program at Junee, suggesting positive efforts towards rehabilitation, although there was “room for further improvement.”

22 Such was the state of the evidence before Newman J. His Honour referred to the question whether the applicant’s crime of murder fell within the worst category of cases, such that he should never have the opportunity of release, but did not decide it. He was unpersuaded that the applicant would not be a danger to the community if released, and noted that he was yet to undertake the CUBIT program. It was for those reasons that he took the course of dismissing the application, while leaving it open to the applicant to make a further application in due course. His Honour expressed his conclusion in this way (at [68]):

There may well be hope that if the applicant successfully completes the CUBIT program it may be that this Court could then be satisfied that the applicant no longer presents a danger to the community. The fact that he is still unable to give an explanation for his conduct on the evening and the fact that Dr Lucas can give the court no explanation other than that of being an opportunistic event, in my view, supports that conclusion. On the other hand of course, even if he does successfully complete the CUBIT program those reservations may remain.

The present application

23 Two more recent reports of the Serious Offenders Review Council, together with their accompanying documents, establish that the applicant’s industry and general behaviour in prison have continued to be good. He has developed trade skills, which would enhance his prospect of employment if he were eventually to be released into the community. There have been two further breaches of prison discipline, again of no present significance. Given the length of time he has been incarcerated, a record of only four breaches of discipline does not reflect badly on him.

24 More importantly, in early 2000 he entered the CUBIT program, completing it in January 2001. It led to a most significant development. In the course of the program, he revealed that his sexual offences were anything but opportunistic. He provided a long history of sexual fantasies, some with a violent theme, not only about adult women but also about under age girls. He admitted having fantasized about Deborah and, indeed, having had thoughts of abducting her. He acknowledged that he had got into her bedroom on the night in question with the intention of sexually assaulting her.

25 CUBIT, which stands for “Custody Based Intensive Treatment”, is a residential treatment program within the prison system for moderate and high risk sexual offenders. Its approach and aims appear to be similar to those of the SORT program but, as I understand it, it is considerably more demanding. The applicant embarked upon it early in 2000 and completed it in January 2001. In April of that year he entered the sexual offenders maintenance program at Kirkconnell Correctional Centre, where he came under the care of Ms Anne Young, psychologist, the statewide clinical co-ordinator of sex offender programs.

26 Another psychologist involved in the CUBIT program prepared a final treatment report on the applicant in March 2001. That report is not encouraging, noting that he had made some gains but concluding that, overall, his progress had been “slight”. I find it unnecessary to recite the detail of that report. It may be that it is unduly critical of the applicant, particularly given his intellectual limitations. That was the view of Dr Lucas in a report of 5 December 2003, to which I shall return. On his progress generally in sex offender programs in recent years I have been more assisted by the thorough and insightful report of Ms Young, prepared on 3 August 2004. She also gave evidence before me.

27 In her report Ms Young noted that, while in CUBIT, the applicant developed his “offence cycle”. That expression, she explained, “describes an individual’s sequence of thoughts, feelings and behaviours which have led or could in the future lead to a sexual offence”. The offence cycle recognised by the applicant was described in the final treatment report to which I have referred. Put shortly, the cycle was triggered by a stressful situation (loss of his employment) which affected his self-esteem. He considered himself a failure, became resentful, isolated himself, and sought to cope by resort to alcohol, drugs and sexual fantasies. Those fantasies were characterised by resentment and hostility towards women, whom he saw as unattainable. They became more violent and increasingly involved under aged girls. This set him on the path which led to his sexual fantasies about Deborah.

28 The author of that final treatment report described the applicant’s efforts in developing his offence cycle as “positive”. However, his progress was seen to be deficient in developing empathy for his victim and strategies to address the risk of re-offending by dealing with stressful situations in an appropriate manner. He had difficulty managing a number of the tasks required of him in the program, exacerbated by a lack of self-esteem. This is a very brief summary of that lengthy report which, with due respect to its author, was expressed in technical jargon which I found somewhat impenetrable. In her evidence Ms Young did not challenge those findings, but she did acknowledge that CUBIT is “a very difficult program to undertake” and that there is a drop out rate of about thirty percent. The applicant, to his credit, completed the program and was able to proceed to the custodial maintenance program with which she was involved.

29 Moreover, he does appear to have made some further progress in that maintenance program. It involved his attending a weekly group session and was much less intensive than CUBIT. As Ms Young put it in her report, it “focuses on relapse prevention issues specific to the needs of each individual and reinforces the gains made in intensive treatment programs”.

30 In her report and in her evidence, Ms Young said that that the applicant’s attendance at the group sessions had been intermittent and that he often delayed completing “homework tasks” set for him. She noted a “pattern of avoidance”, whereby he felt that he was not up to a task and, rather than asking for help, would isolate himself and not attend the next group session. Nevertheless, she said that, when he did attend, he was “capable of good work – active participation, disclosure of relevant personal information, and appropriate feedback to other members”. Generally, she said that in his second year in the program he had become “a very valuable group member”. On the other hand, while accepting that he “takes responsibility for his offence”, she described “a tendency to think that he does not need to continue to work on his risk factors.”

31 In her report Ms Young expressed her conclusions as follows:

Mr. Clarke has certainly become more open about his offence since undertaking the CUBIT and custodial maintenance program. At the time of his first re-determination hearing he was denying any attraction to young girls and any intention to sexually assault the victim prior to breaking into the house. Mr. Clarke is now admitting to a history of sexually deviant behaviour over a number of years – abusive sexual fantasies that commenced in his mid-teens, use of pornography, being around areas where he could observe female minors, voyeurism, masturbation to deviant images, fantasizing about abducting a future victim.
Mr. Clarke needs to make a consistent commitment to working on issues to do with his offending. He has a pattern of avoidance coping. This has been demonstrated throughout CUBIT and custodial maintenance. Mr. Clarke tends to miss groups, avoid doing homework tasks that are difficult. Mr. Clarke is aware of this tendency and at times actively implements strategies to overcome it but when he is feeling stressed or overwhelmed he avoids rather than deals with problems. This tendency is very much part of his offence cycle and is an issue Mr. Clarke needs to demonstrate he is actively dealing with prior to release. Mr. Clarke needs to demonstrate he is taking active steps to reduce his risk and that he remains continuously aware of his ongoing risk. …having a determinant date of release and a period of parole supervision is likely to help Mr. Clarke set goals for release and work towards them. A period of external leave prior to release would help him re-integrate into the community and allow him to demonstrate his ability to manage his risk factors prior to release. Should Mr. Clarke be given a determinant sentence it would be important for him to have a relatively lengthy period of parole supervision and it would be important for Mr. Clarke to attend the weekly community maintenance program in Sydney run by the Department’s Sex Offender Programs.

32 Dr Lucas’ second report followed his consultation with the applicant at Kirkconnell at the end of September 2003. He found him “much more open than when first interviewed”. He wrote of the applicant:

He was able to speak at some length and in reasonable detail about his earlier fantasy life and how the offence came about. He did this without embarrassment. Given his borderline intellectual functioning I thought Mr Clarke had done quite well – he had certainly made good progress in the five years since I last saw him.

33 Dr Lucas noted that, at the time of Newman J’s judgment on the first application, the applicant had not disclosed to him “or those caring for him in the correctional system the essential background to his offences”. He referred to the final treatment report from the CUBIT program, acknowledging that the applicant appeared to have made limited gains during that program. However, he observed that “due allowance” should be made for the applicant’s “intellectual limitations”, and expressed the view that he had “clearly moved a long way from the position he maintained” before undertaking the program. He added that, taking into account the applicant’s “borderline intellectual disability”, his progress at CUBIT should be considered ”rather better than slight”.

34 Dr Lucas concluded:

At this stage it is not possible to give a definite estimate of what risks Mr Clarke might present if released. However the main areas of concern have been identified, he has cooperated with assessment and treatment and there are good indications that he will be amenable to supervision and further treatment on release and should have prospects of employment. He has family support.
I support his application for determination of his life sentence. The nature of his offence means that the correctional authorities will move carefully on further assessments and placements and in planning towards his release on parole.

35 The Crown prosecutor before me submitted that this application should be refused and the applicant should be directed never to re-apply to the Court. The effect of that order would be that he would never become eligible for parole and would remain in prison for the rest of his life. The Crown prosecutor argued that this is a case falling into the worst category of murder, for which that disposition would be appropriate. He referred to R v Garforth (CCA, unrep, 23 May 1994) and R v Fernando [1999] NSWCCA 66, both cases in which the offenders had been sentenced to life imprisonment under s19A of the Crimes Act. It is unnecessary to restate the principles to be derived from those notorious cases, or from more recent decisions in which the approach to the imposition of the maximum sentence for murder has been examined: R v Harris (2000) 50 NSWLR 409, R v Merritt (2004) 59 NSWLR 557.

36 Dreadful as this murder is, I am not persuaded that it is such as to demand that the applicant should never have the prospect of release. True it is that the sexual offences themselves were of the utmost gravity. They were the subject of very heavy sentences passed by Cole J and are not before me for the purpose of this application. Nevertheless, they form the context in which the unfortunate little girl met her death and bear directly upon the applicant’s culpability for her murder. This is so whether the killing was intended, for the purpose of avoiding detection, or was the product of reckless indifference to human life.

37 That said, the distinction remains of significance. In written submissions the Crown prosecutor advanced as one of the reasons for placing the matter in the “worst case” category the proposition that the applicant had killed the girl “to conceal his sexual gratification.” In oral argument, he submitted that it remained a worst case even if that were not so and the killing had been the unintended result of the sexual assaults. However, my conclusion that the applicant ought to have the opportunity for release in due course is fortified by my view that the case cannot fairly be approached as one of intended killing. That remains my view notwithstanding his revelation in recent years that the purpose of breaking into Deborah’s home was to sexually assault her.

38 Even if the case were approached as one of intended killing, it would not necessarily follow that the applicant should never be released. That, however, is not a matter which I need to decide. This is a very serious crime of murder perpetrated by a twenty-one year old man of limited intellect and with no significant criminal history. In determining how it should be treated little assistance can be gained from an examination of other cases. Nevertheless, reference might be made to two cases which have some similarity to the present.

39 In Garforth, the offender sexually assaulted a nine year old girl and then consigned her to death by drowning by throwing her, with her hands and feet bound, into a dam. A natural life sentence was upheld on appeal. That killing demonstrated a callousness which could not fairly be ascribed to this applicant.

40 On the other hand, Slattery AJ, formerly the Chief Judge at Common Law, allowed an offender a prospect of release on parole in a redetermination application in another notorious case: R v Lewthwaite (unrep, 31 July 1992). Some eighteen years earlier, his Honour had sentenced that offender to penal servitude for life for the murder of a girl who was not quite six years old. The offender had broken into the family home, intending to abduct and sexually assault her brother. He armed himself with a knife from the kitchen. The little girl awoke and disturbed him. He tried to keep her quiet by putting his hand over her mouth, but then became angry and stabbed her a number of times. He was on parole at the time of the offence. Psychiatric assessment at the time of his trial was bleak, describing an obsessive sexual preoccupation, with homicidal overtones, with young boys, for which no effective treatment appeared then to be available. However, over the lengthy period in custody leading up to the hearing of his application for redetermination he had made remarkable progress in treatment and counselling, such that Slattery AJ concluded that he ought to have the opportunity of conditional liberty. The application was under s13A of the Sentencing Act and, in accordance with the procedure then in place, his Honour set a minimum term of twenty years with an additional term of life.

41 The fact that the killing of Deborah was the product of the applicant’s sexual fantasy about her, and that that fantasy itself was part of a wider pattern of sexual fantasies with a violent component, is disturbing. That background obviously poses the question whether he would be a danger to members of the community if he were released. On the other hand, it is encouraging that it was he who brought this pattern of fantasy into the open and that he has begun to take steps, however faltering, to address it. A fair reading of the reports in evidence before me is that, given his limitations, he is to be commended for his progress so far, although much remains to be done.

42 The Crown prosecutor’s alternative submission was that I should take the same course as Newman J, that is, to refuse the present application but allow the applicant the opportunity to make a further application after some years, when his progress towards rehabilitation might better be assessed. I do not think that any purpose would be served by taking that course. The time has come to set a date on which he has a prospect of release on parole, providing him with an added incentive to come to terms with the aspects of his personality and background which led to his offences and to work towards a law abiding lifestyle in the community. With continued counselling and therapy, and with the support that would be available to him in the event of his release, that goal could not be said to be unattainable.

43 The interests of the community are best protected by specifying a non-parole period in association with the existing life sentence, a course which is still available under the legislation governing this application. At the end of that period he would be eligible for release on parole, but whether and, if so, when he were to be released would be a matter for the appropriate authority. If he were released, he would remain subject to the sanction of parole indefinitely.

44 In accordance with ordinary sentencing principles, the non-parole period must be such as itself to reflect the gravity of the applicant’s crime of murder. In addition, it must embrace the criminality of the sexual offences because it must date from the day on which the life sentence commenced. Much of the time the applicant has served in prison is referable to the concurrent sentences passed in respect of the sexual offences. In the aggregate, they amounted to a term of twenty years imprisonment with a non-parole period of eighteen years. At the time sentence was passed those terms were subject to reduction by remission, so that the aggregate head sentence expired on 14 January 2000 and the effective non-parole period on 13 October 1998.

45 This is not to say that the non-parole period I fix should be assessed in a mathematical way. What I must do is set a non-parole period which marks the criminality of all four offences. In doing so, I take into account the applicant’s subjective case, including his progress within the prison system. I also take into account the fact that, because of the nature of his offences, he has served his sentence so far on protection and it is likely that he will continue to do so. Nevertheless, the non-parole period which I set must be a lengthy one.

46 Accordingly, the application is granted. I decline to set a specified term for the life sentence imposed by Cole J. However, in respect of that sentence, I set a non-parole period of twenty-eight years, to date from the day on which the sentence was passed, 22 July 1987. The applicant will be eligible for release on parole on 21 July 2015.

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