Regina v Sharp

[2001] NSWSC 842

CITATION:	Regina v Sharp [2001] NSWSC 842
FILE NUMBER(S):	SC 96/016
HEARING DATE(S):	23/02/01;27/04/01
JUDGMENT DATE:	27 September 2001
PARTIES :	Regina v Brett Francis Sharp
JUDGMENT OF:	O'Keefe J

COUNSEL :	Crown : Mr M Grogan Applicant: Mr C B Craigie
SOLICITORS:	Crown: S E O'Connor Applicant: Legal Aid
CATCHWORDS:	Re-determination of life sentence - Rape and murder by young person - Effects of alcohol and drugs - Applicant in custody 13-1/2 years - Protective custody - Educational and other courses undertaken by applicant - Good prison reports - Risk of re-offending low - Need for time to prepare applicant for civilian life - Need for period of supervision in civilian life after release
LEGISLATION CITED:	Sentencing Act 1989 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	AB v The Queen (1999) 198 CLR 111 at 152 R v AB (No 2) [2000] NSWCCA, 6 December 2000 unreported at pp 9-12, paras 22-23 R v Lowe (1977) 66 Cr App R 122 R v Davis (1978) 68 Cr App R 319 R v Perez Vargas (1986) 8 NSWLR 559 R v Cartwright (1989) 17 NSWLR 243 R v Gallagher (1991) 23 NSWLR 220 The Queen v Golding (1980) 24 SASR 161 R v Hayes (1981) 3 A Crim R 286 WA
DECISION:	The Applicant is sentenced to imprisonment for 21 years. The sentence of imprisonment for 21 years will commence on the date from which the original sentences dated, namely 28 April 1988 and terminate on 27 April 2009. I fix a non--parole period of 16 years to commence on 28 April 1988 and terminate on 27 April 2004, on which date the Applicant will become eligible for release on parole.

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

O’KEEFE J.

DATE : 27 September 2001

JUDGMENT

Re-determination of life sentence

Introduction

1    On 8 May 1989, Brett Francis Sharp (the Applicant) was indicted before Lee CJ at CL on a count of murder and a further count of vaginal sexual intercourse with a female without her consent. He pleaded guilty to both charges and was sentenced to penal servitude for life on the charge of murder and penal servitude for seven years on the charge of sexual intercourse without consent, such sentence to be served concurrently with the sentence of life imprisonment, both to date from 28 April 1988. A non-parole period for the offence of rape was not fixed in the light of the crime of murder having been committed as a consequence of and immediately following the rape. The Applicant has been in custody since 28 April 1988, a period approaching 13½ years.

2    The Applicant has now applied under s 13A of the Sentencing Act 1989 for an order determining the term of the sentence to be imposed upon him.

Facts

3    The offences to which the Applicant pleaded guilty were committed on 24 April 1988 when he was 19 years of age. The victim was the same age.

4    At and prior to the time of the offences the Applicant resided with his parents and brothers in a small country town. He was the third youngest of eight children and his usual occupation was as a builders labourer, although at the time of the offences he was between jobs and thus technically unemployed. The offences were committed in the early hours of Sunday, 24 April 1988 after the Applicant and the victim had both been at a local RSL club, although each had been in a separate group. Before going to the Club, the Applicant had been drinking at two hotels in the town.

5    The Applicant had know the victim for about six years, from the time both attended the same school and were in the same class, but there was no history of romantic involvement between them. The Applicant also knew the victim’s family.

6    Shortly before midnight on Saturday, 23 April 1988 each was seen to leave the RSL club. Both the victim and the Applicant left the RSL Club at about the same time, but independently. Subsequently the victim was observed running along a street in the town pursued at a distance of some 30 metres by the Applicant.

7    At about 10 am on Sunday, 24 April 1988 school boys were riding their bicycles in the grounds of the local Central School where they observed the body of the victim lying on an asphalt surfaced playground between two of the school buildings. Her body was naked below the waist.

8    The police were called. A doctor who later attended the scene pronounced the victim to be dead. A large amount of blood was found on and near her body and an examination revealed that she has suffered a large incision to her throat. A post-mortem examination was conducted at which it was found that the victim had suffered extensive bruising over the right side of her face, forehead and the right side of her head and to a lesser degree on the left side of her face, forehead and head. There was recent bruising of both lips and lacerations inside and outside her lower lip. There was a double tear to her anus. The injuries to her head included a fracture of the skull and damage to the brain. There was a deep wound present over the right side of her neck extending beyond the midline. The wound was 170mm in length. The incision had severed the victim’s internal jugular vein and had opened the pharynx immediately above the larynx which was exposed. Her parotoid gland had been severed as had her submandibular gland. Either of the major injuries, namely, the wound to the victim’s throat and the injuries to her head, was sufficient to cause death.

9    On 26 April 1988 Detectives interviewed the Applicant as a consequence of which he was taken to the police station where he was asked further questions about the events of 23 and 24 April 1988.

10    At first the Applicant denied having spoken to the victim and denied any involvement in her death. However on further questioning he told the police that he would tell them what had happened. He then said:

“It was me. I did it.”

11    The Applicant then informed the police that he had some marijuana, had seen the victim running down the street and had run after her to see if she wanted to smoke some of it. When he caught up with her and asked her if she wanted to smoke some of the marijuana she said that she did not, whereupon he said:

“Well, I’ll fuck you then.”

12    Thereupon the Applicant tackled the victim in the school grounds. In his record of interview he stated:

“Then I raped her and cut her throat.”

13    In amplification of what had occurred, the Applicant had said that after he had had vaginal and anal intercourse with the victim she said she was going to tell the police. The Applicant said in his record of interview that:

“I freaked out and bashed her head up and down on the ground.
Q. What happened then?
A. After I bashed her head on the ground I um got up, I thought she was still moving then I got a bottle, smashed it and cut her throat. I then ran.
Q. Did Fiona agree to have sex with you at any stage?
A. No, I just tackled her and forced her.”

14    The Applicant said that at the time he was “in a panic” and that he had cut the victim’s throat:

“to stop her telling the police and I didn’t think she was dead after I bashed her head on the ground, so I cut her throat.”

15    At a later date he added that he was fearful of retribution at the hands of the victim’s brothers, whom he believed to be violent and to have criminal records.

16    Later on the same day he was interviewed again. He was questioned about some items of clothing that had been found concealed in bushland outside the town in which he lived. He admitted that these were items which he had been wearing at the time the victim had been killed. When asked about a number of injuries including bruising and lacerations which were found on the body of the victim, he said that after the two acts of intercourse had taken place, she had got up and when she said she was going to tell the police he punched her. It was after this that he had repeatedly banged her head against the paving of the playground in which she was found.

17    The records of interviews of the Applicant revealed that he had been drinking for most of the day of 23 April 1988, during the course of which he had consumed a quantity of beer and spirits. In addition he had smoked a quantity of marijuana and on the night preceding the commission of the offences had “had about 4 joints”. He claimed that he had decided to have sex with the victim only when he tackled her in the school playground.

18    It emerged from a report by a consultant psychiatrist, Dr C L Wong, that the Applicant had left school at the age of 16 at the beginning of year 10 and since leaving school had worked for three different firms as a builders labourer. His work history was satisfactory. He had good references from his various employers and had never been dismissed from any employment. The only times that he had been unemployed were during periods between jobs, as is apparently common in the building industry.

19    In his psychiatric report Dr Wong expressed the opinion that there was “no reason to believe that [the applicant] was suffering from an abnormality of mind at the relevant time that would render his mental responsibility substantially impaired” and that “he was aware of what he was doing and what he was doing was wrong at the time.”

20    The Applicant was unable to be precise about the amount of alcohol he had consumed during the course of 23 April 1988, however it appears from a report by a consultant forensic psychiatrist, Dr W L. Metcalfe, that the Applicant had been drinking beer steadily throughout the afternoon as well as smoking marijuana. This occurred at two hotels in the town in which he was residing. He continued drinking and smoking marijuana at the RSL club, where he switched from beer to spirits. An indication of the amount of alcohol consumed may be obtained from the fact that he started the day with $80 in his pocket but had no money on him the following morning. In addition to the marijuana he ate “4 magic mushrooms”, as a result of which he experienced some hallucinations. On waking on the morning of Sunday, 25 April 1988 he could not remember what had happened and felt physically ill. However over the course of the next two days he gradually remembered all that happened at the time of committing the offences. The consultant psychiatrist obtained this information from him at the time of his examination on 5 September 1988. At that time the Applicant was “full of remorse” and as a result of abstinence from alcohol and drugs he was sleeping well, apart from nightmares, and was feeling physically fit.

21    The examination of the Applicant revealed him as a young man of below average intelligence who had difficulty in reading. He engaged in sport, horse riding and fishing and his long term ambition was to marry and have a family. His parents’ marriage was normal; his own background emotionally supportive. It emerged that his parents and friends were “stunned” by his actions but during the time leading up to trial and subsequently they regularly visited him in prison. The consultant psychiatrist described his general state on the night in question as one of “disinhibition and intoxication” and expressed the view that “the considerable quantities of alcohol and marijuana taken that day had converted a rather unremarkable country boy into a temporarily violent anti-social offender.”

22    Another psychological assessment was made of the Applicant on 2 May, 1989 by Mr W J Taylor, a consultant psychologist. This included a number of psychometric tests. Mr Taylor was of opinion that “the Applicant was an immature person who was fairly narcissistic and at times egocentric” who although “fairly well controlled behaviourally and emotionally most of the time and has learned appropriate behavioural and emotional controls … when in a state of drug or alcohol intoxication those controls appear to become rendered ineffective and he would be disinhibited.” Mr Taylor expressed the view that the background of the Applicant and the remorse that he exhibited “suggests that his behaviour in raping (the victim) was inconsistent with his belief patterns”. His conclusion was that:

“There seems to be little doubt that his consumption of drugs and alcohol that day contributed very highly to the events that led up to the raping and killing (the victim). However, it is recognised that loss of voluntary control through intoxication as a result of the voluntary ingestion of alcohol and drugs does not provide an excuse for his behaviour. Nevertheless, it is relevant to state that had these conditions not existed, the tragic events which occurred would almost certainly not have occurred.”

23    This conclusion was confirmed by another doctor who specialised in psychiatry, Dr H Jolly, when he stated:

“I think we have a young man whose mind and usual mental functioning was disturbed and disorganised by the substances he had used … and who acted quite out of character as a consequence.”

Sentencing Judge’s Remarks

24    In sentencing the Applicant Lee CJ at CL doubted that the Applicant had been concerned about the prospect of reprisals from the victim’s brothers. He expressed the view that the Applicant had correctly stated to the police his reason for killing the victim, namely, to prevent her from going to the police and being able to give evidence against him. He further said:

“… the excuse put forward is that you had drink and alcohol and drugs. One might well concede that if you had all the drink you say you had and the drugs, that that would make you more readily to give in to a desire to have sexual intercourse and then give in to a willingness to kill much more readily than would have been the case if you had not had drink and drugs.
Human experience tells us that men will rape and kill more readily when their minds are inflamed by alcohol or drugs or both but that is as much as can be said. That knowledge is no basis at all for a conclusion that your culpability for this crime has been reduced.
If, in such a state of alcohol and drugs men resort to felony, whether by rape or deliberate killing, they can only rarely call upon their intoxicated state to reduce the culpability of what they have done. To kill merely to avoid being taken by police or merely to avoid retribution at the hands of the victim’s brothers for the crime of rape, is a crime the culpability for which is not reduced, let alone significantly reduced by reason of the killer having taken alcohol and drugs and I am not satisfied on the evidence before me here upon that I should exercise the power given under s 19 to impose a lesser sentence than a sentence of penal servitude for life.”

25    He added:

“How could anyone ever be sure that you would not do the same again after alcohol and marijuana or one or the other? I cannot accept at all Dr Taylor’s opinion that you are not likely to reoffend.”

26    Lee CJ at CL made no recommendations in relation to the Applicant and in particular made no recommendation or comment to the effect that the Applicant should not be released on licence in accordance with the practice then in force. Furthermore, there is no indication in the remarks on sentence that the life sentence imposed should be for the term of the Applicant’s natural life.

Applicable Law

27 Section 44(5) of the Crimes (Sentencing Procedure) Act 1999 gives effect to Schedule 1 of that Act in relation to the determination of a term and non-parole period for an existing life sentence referred to in the schedule. Schedule 1 empowers the Court to determine the term and the non-parole period for a sentence of imprisonment for life imposed before 12 January 1990 (Cls (1) and (2)). Schedule 1 relevantly provides that an offender is not eligible to make an application for a redetermination of sentence unless such offender has served at least 8 years of the sentence imposed. Since the Applicant had served more than this period at the time of making his application for re-determination, the Court has jurisdiction to redetermine the sentence imposed on the Applicant by Lee CJ at CL.

28    In exercising that jurisdiction the Court is given a discretion in relation to an existing life sentence the Court to set a specified term and a non-parole period or to decline to do so (Cl. 4). In considering an application for redetermination of a life sentence the Court is required to have regard to:

“(a) any reports on the offender made by the Review Council, and any other relevant reports prepared after the offender was sentenced that are available to the Supreme Court, and
(b) the need to preserve the safety of the community, and
(c) the age of the offender (at the time the offender committed the offence and also the time the Supreme Court deals with the application), and
(d) in the case of an offender sentenced before 12 January 1990 (the date on which section 463 of the Crimes Act 1900 was repealed by section 5 of the Prisons (Serious Offenders Review Board) Amendment Act 1989), the fact that the sentencing court:
(i) would have been aware that an offender sentenced to imprisonment for life was eligible to be released on licence under section 463 of the Crimes Act 1900 and,
(ii) would have been aware of the practice relating to the issue of such licences, and
(e) any other relevant matter.” (Cl 7(1))

29    Clause 7(3) of Schedule 1 provides that in considering an application to redetermine a life sentence the Court:

(a) must have regard to and give substantial weight to any relevant recommendations, observations and comments made by the sentencing court when imposing the sentence concerned; and
(b) must give consideration to adopting or giving effect to any such recommendations, observations and comments and the intention of the sentencing court when making them, and
(c) to the extent that it declines to adopt or give effect to any recommendations, observations and comments must make a record of its reasons for doing so.”

Matters Subsequent to Sentence

30    Victims Impact Statements by the mother, brother and two sisters of the victim have been prepared. All, but especially the victims mother’s statement, are naturally and understandably sad to read. The victim’s mother says that her life “has never been the same and will never be the same when you lose a child. I suppose I’m still in shock.” It reveals that following her daughter’s death she had a nervous breakdown and has had to take anti-depressants. She likens her sense of loss to “a pain in your chest that won’t go away no matter how much medication you take.” She expresses the view that justice was done 13 years ago and the hope that justice stays that way.

31    The impact statements by her sisters are to like effect. One required and still requires psychiatric help. Following the death of her sister she took up smoking and drinking and the experience she had has caused her to be very protective, perhaps overly protective, of her two children. She still questions why the events of 24 April 1988 occurred and expresses the view that “justice was done 13 years ago and I have no doubt it will continue to be served.” The other sister’s statement reveals that the loss of her sister “has effected my life in so many ways. It doesn’t seem that life has values any more.” She too has been on anti-depressants since the death of her sister and says “I will never be the same person I was years ago.” She expresses the hope that “the right thing will be done.”

32    A short statement by a brother of the victim states that he too suffered a nervous breakdown and because of the events involving his sister he does not let his two daughters go out with friends and this has caused friction in his own family.

33    The responses by the victim’s family are, as I have said, sad and understandable. They are matters which may be received and considered in the present application (s.28(2)) and I do so.

34    The prison record of the Applicant shows that he refused urine tests on three occasions and that on 3 September 1996 and again on 4 June 2000 he was found to have drugs in his urine. This is a matter which needs to be taken into account and viewed in the light of the remarks of the sentencing judge, the climate and culture of prison life and the evidence given by the Applicant in the present proceedings. That evidence was to the effect that he realised that drugs were a problem for him and that should he be released on parole and found to have taken drugs he would be likely to go back to prison. Having experienced more than 13 years of imprisonment, including a significant period in protection, he was firm in his conviction that he did not wish to be imprisoned further that he would avoid both alcohol and drugs should he be released. A powerful incentive to do so whilst in prison would be provided by a determined sentence. A like incentive would be provided by the existence of a substantial non-parole period.

35    The report of the Serious Offenders Review Council (SORC) reveals that he had been in protective custody for some time, that his family has been supportive and has continued to visit him in prison. It further reveals that the reason for his being placed in protection was because of concerns of harm being done to him by brothers of the victim who were in prison. This echoes the concern expressed by him to the psychologists who examined him before he was sentenced. Since protection in the prison system is in effect an additional penalty (AB v The Queen (1999) 198 CLR 111 at 152; R v AB (No 2) [2000] NSWCCA, 6 December, 2000 unreported at pp 9 - 12, paras 22 - 23) his going into protection for the stated reason would seem, contrary to the conclusion of the sentencing judge, to give some substance to the concerns he expressed in this regard prior to his sentencing. It would now seem that at least in his mind they were well founded.

36    The Applicant left protective custody on 21 September 1999 and since that time, notwithstanding his refusal to undergo the urine testing to which I have referred, the SORC has commended him on his good work and good custodial reports. In the prison reports he is consistently noted as “quiet and compliant”. In a report of 19 June 2000, the Governor of the Junee Correctional Centre comments: “excellent reports all round.”

37    Whilst in prison the Applicant has received certificates in respect of:

(i) his participation in the HIV Peer Education Programme;

(ii) his successful completion of courses that involved dealing with relaxation, stress management and control;

(iii) his successful completion of a communications course;

(iv) his participation in a course dealing with assertiveness skills;

(v) his completion of a personal development course concerned with strength through knowledge;

(vi) having undertaken a TAFE course in wood working with power tools;

(vii) a pre-employment training course;

(viii) a Toast Masters’ speech course.

Very relevantly he has also completed a course extending over some nine weeks as part of the psycho-educational sex offenders programme. The comments concerning his work in this course include “well done Brett … your contribution and insight were valued.” In August 1999 at the end of a Sex Offenders Normalisation Education, Training and Redirection Programme he received a certificate of graduation. In addition he has attended a number of vocational courses and successfully completed a 10 week programme with the Drug and Alcohol Department.

38    Whilst in prison he has also undertaken adult health education through TAFE and on the urging of the Visiting Committee was encouraged to contact Drug and Alcohol Services. The report of the SORC (KFE Torrington, Chairperson) states:

“When his sentence has been redetermined a management plan will be developed and will provide progression through the various classifications leading ultimately to inclusion in temporary leave programs as preparation for his return into the community.”

39    On 29 July 1994 the SORC recommended that the Applicant’s classification be reduced to B category. This was because of, inter alia, “the good reports he has received.”

40    In April 1995 the SORC’s Visiting Committee noted that the Applicant was currently undertaking adult education through TAFE and was enjoying it and on 22 May 1995 the SORC wrote to the Applicant as follows:

“The Committee commends you on your good work and custodial reports.”

41    In October 1995 the Serious Offenders Management Committee (SORM) encouraged the Applicant to:

“continue his participation in Drug and Alcohol Counselling and psychological counselling in view of the sexual nature of the crime and the fact that alcohol abuse was a factor in the commission of the crime.”

42    In 1996 he was the subject of a further review in which it was noted as follows:

“Very quiet inmate does not pose any problems to staff integrates well with inmates from strict and normal discipline.”

43    From the foregoing it can be seen that the Applicant has, with occasional lapses that were not major, cooperated well with prison authorities, has endeavoured to improve himself whilst in prison and as a consequence the view has been expressed by Dr W E Lucas, a specialist forensic psychiatrist on 14 December, 2000:

“usually one does not expect conduct of this type to occur after a person serves a long prison sentence. The assessment of psychologists at Junee Correctional Centre suggests the risk of reoffending in this case is low to medium. My own view is that it is low … when he finally returns to the community careful supervision and follow up counselling will be necessary … the setting of the minimum at (sic) an additional term will assist Mr Sharp and the correction authorities in planning his future management in custody. It will also allow him to be tested in other correctional settings and in special programmes as the time for possible release approaches.”

44    In a report of 20 February 2001 Dr Lucas, notes that there appears to be no current indicators suggesting high risk of future sexual re-offence and further notes that reports in relation to his motivation, level of involvement and level of progress during the course of a number of programmes were favourable and contained comments indicating ‘a determined effort at treatment’ and that he was ‘a valuable member’ who was ‘travelling well’.

45    Dr Lucas concludes this report as follows:

“To my mind, all the indicators are that the risk of serious reoffending will be low once he has been through further treatment programmes of the type envisaged.”
I support the setting of a minimum and additional term. This will encourage Mr Sharp and make it possible for the correctional system to move him though the programmes suggested in the SORC report”.

46    The NSW Department of Corrective Services has a number of post release community programmes for sexual offenders. The nature of these is set out in a document of February 2001. They are designed to assist prisoners who have been released on parole to continue, inter alia, with the self-awareness and control training of the kind undertaken by the Applicant during his period in prison.

Analysis

47    The crimes to which the Applicant pleaded guilty were most serious; the mode of their commission brutal. The circumstances were blameworthy in the extreme. However, he was then aged 19, his date of birth being 3 January, 1969. That is a factor which the legislation mandates being taken into account. Since the time he committed those crimes he has spent almost 13 ½ years in prison, an appreciable part of it in circumstances of protection. Such circumstances are recognised by the authorities (AB v The Queen (supra); R v AB( No 2) (supra); R v Lowe (1977) 66 CR App R 122; R v Davis (1978) 68 CR App R 319; R v Perez Vargas (1986) 8 NSWLR 559; R v Cartwright (1989) 17 NSWLR 243; R v Gallagher (1991) 23 NSWLR 220; The Queen v Golding (1980) 24 SASR 161; R v Hayes (1981) 3 A Crim R 286 WA)) as being much more severe and punitive than ordinary imprisonment. A year spent in protection can be regarded as the equivalent “of 18 months or two years” in conventional custody (R v Davis, supra at 322; R v Perez Vargas, supra at 563 per Street CJ). The concern which he expressed before he was sentenced, namely, that he feared retribution at the hands of members of the victim’s family who were criminals, although not accepted by the sentencing judge, clearly seems to have had a foundation. It is difficult to believe that a prisoner would subject himself to the rigours of protective imprisonment without good reason. Furthermore, if released, he may not readily be able to return openly to his home town, because of concerns of what might be done to him by those members of the victim’s families, whose presence in prison caused him to enter into protective custody. It may even be on the cards that he will have to change not only his place of residence, but perhaps even his identity.

48    The Applicant is now 32 years of age. That fact is also one to which the Court must, by virtue of the legislation, have regard. A man of 32 years of age is likely to be very different from a man of 19. The effects of imprisonment appear to have brought about a change in the Applicant; change for the better. He has undergone a number of course which, on the material before the Court, have raised his level of awareness of his personality and character deficiencies and taught him ways to deal with them. They seem to have increased the strength of his control mechanisms. I was impressed by the fact that he has consistently and favourably impressed the prison authorities, the SORC and the SORM. I was also impressed by his evidence at the hearing. I formed the opinion that he was genuinely remorseful and that as indicated in the various reports to which reference has been made, the prospects of his re-offending are low. There are no certainties when trying to look into the future. However, the evidence strongly supports this conclusion.

49    The Crown does not oppose the re-determination of the Applicant’s sentence. Indeed in address the Crown Prosecutor conceded:

“The application is not challenged. It’s appropriate for Your Honour to proceed to determination in some form.”

50    When regard is had to the attitude of the Crown, the reports of the Review Council, the SORT and the SORM, the reports from the prison authorities, the age of the offender at the time of the offence and now, the fact that at the time he was sentenced he would not normally have served a term of imprisonment for the whole of his life but for an amendment to the law effected after he was sentenced, the fact that he has undergone a significant change for the better as a result of his long term of imprisonment to date (including imprisonment under protection), the fact that the prospects of re-offending are low, the fact that the sentencing judge did not make any recommendations to the effect that he should never be released, I am of opinion that the life sentence imposed on the Applicant on 8 May 1989 should be redetermined.

51    I am conscious of the seriousness of the offences to which the Applicant pleaded guilty. I am very conscious of the brutal way in which those crimes were committed and the effects of the Applicant’s crime on the victim and on the sense of security of the community, including the victim’s family as part of the community. The objective seriousness of a brutal murder, in association with a rape, calls for a substantial prison term. However, on the other side of the scales of justice I am conscious of the strong body of evidence that supports a redetermination of the Applicant’s sentence and of the fact that if it is redetermined it is not likely that there will be any adverse effect on the safety of the community, a factor to which the Court must have regard under the Crimes (Sentencing Procedure) Act, 1999 (Sch. 1 Cl 7(1)(b)).

52    Statistics were produced in relation to offences of the kind for which the Applicant had been sentenced by Lee CJ at CL. Although these give some indication of trends and as to the range within which the bulk of sentences fall, they are not a substitute for judgment. They are an aid to judgment, as are particular cases in which the facts are somewhat similar. However, it is rare that two cases are identical in relation to the way in which the crime or crimes were committed, the circumstances surrounding their commission and the particular circumstances relevant to the offender.

53    A court re-determining a sentence many years after the original sentence was imposed has many advantages that the original sentencing court did not have. Not the least of these is the fact that the offender has been under close scrutiny for many years in circumstances in which the offender’s response to the prison environment can be observed and its effects assessed. For some the response is poor and the effects detrimental; for others quite the opposite. The latter is the clear picture that emerges in relation to the Applicant.

54    The Applicant has long since completed the term of imprisonment imposed on him in respect of the rape of the victim. It is nonetheless necessary to recognise the seriousness of the nature and circumstance of the murder committed by the Applicant and indicate the strong disapprobation by the Court and the community of such a crime. These considerations of themselves call for a substantial sentence. That conclusion is reinforced by the factors referred to above. Having weighed the considerations and factors to which I have referred as well as the various other matters dealt with above, I am of opinion that a proper balance can be achieved in the circumstances by imposing a minimum term of sixteen years. This will require the substitution for the life sentence imposed on the Applicant on 8 May 1989 of a term of imprisonment for 21 years and by fixing a non-parole period of 16 years. That will mean that the Applicant will have to serve a further period of some 2½ years before he becomes eligible for release on parole. Whilst this is somewhat shorter than the usual period taken to move prisoners from a B classification to a C3 classification, it should be noted that the Applicant was recommended for a C1 classification back in March 1998, that such recommendation was approved by the Commissioner for Corrective Services in April 1998, but the re-classification was frustrated by the Applicant having to go into protection following a prison transfer in early May 1998.

55    The period of some 2½ years which the Applicant will have to serve before he becomes eligible for parole should, as Dr Lucas stated in his report of 14 December 2000:

“assist Mr Sharp and the Correction Authorities in planning his future management in custody. It will also allow him to be tested in other correctional settings and in special programmes as the time for possible release approaches. If he progresses satisfactorily through the system the Parole Board should have all relevant information when re-considering his release.”

56    A period of five years on parole during which the Applicant is subject to control, direction and supervision by the Parole Authorities should be adequate to assist the Applicant in resuming life in the community and in helping him to maintain the control and motivation which he has exhibited whilst in custody. Breach of parole conditions is recognised by the Applicant as a matter which could lead to his return to prison. His strong desire to avoid this should help to ensure that his return to civilian life will be unmarred by further offences. The offer by his family to provide support should also assist him in this regard.

57    The Applicant is sentenced to imprisonment for 21 years. The sentence of imprisonment for 21 years will commence on the date from which the original sentences dated, namely 28 April 1988 and terminate on 27 April 2009. I fix a non--parole period of 16 years to commence on 28 April 1988 and terminate on 27 April 2004, on which date the Applicant will become eligible for release on parole.

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Last Modified: 10/03/2001