Regina v Wallace

[2006] NSWSC 897

CITATION:	Regina v Wallace [2006] NSWSC 897
HEARING DATE(S):	20-23/03/06, 27-29/03/06, 3-6/04/06
JUDGMENT DATE :	8 September 2006
JUDGMENT OF:	James J at 1
DECISION:	Sentence - Non-parole period of imprisonment of 14 years - balance of term 6 years
CASES CITED:	R v Isaacs (1997) 90 A Crim R 587 R v Twala (unreported NSW CCA 4 November 1994) The Queen v Olbrich (1999) 199 CLR 270 Weininger v The Queen (2003) 212 CLR 629 .
PARTIES:	Regina v Michael Anthony WALLACE
FILE NUMBER(S):	SC 2005/623
COUNSEL:	P Conlon SC - Crown P Bodor QC - Prisoner
SOLICITORS:	S Kavanagh Ford Criminal Lawyers

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

JAMES J

FRIDAY 8 SEPTEMBER 2006

2005/623 REGINA v Michael Anthony WALLACE

REMARKS ON SENTENCE

1 HIS HONOUR: On 6 April 2006, after a trial presided over by me, the jury found the prisoner Michael Anthony Wallace guilty of having murdered on or about 19 November 2003 a woman called Zoe Zou.

2 When the prisoner was arraigned before the trial commenced, he pleaded not guilty to the charge of murder but added that he pleaded guilty to the offence of the manslaughter of Zoe Zou. The Crown did not accept the plea of guilty to manslaughter in discharge of the indictment and the trial of the prisoner on the charge of murder proceeded.

3 By pleading guilty to the offence of the manslaughter of Zoe Zou the prisoner admitted that he had done an act causing the death of Zoe Zou, that is, that he had killed Zoe Zou. Furthermore, although the prisoner did not make any admission, there was no real dispute at the trial that at the time of killing Zoe Zou the prisoner had had the intent required for the offence of murder.

4 The only real issue at the trial was whether the Crown could disprove that the prisoner had done the act of killing Zoe Zou under provocation. By returning a verdict of guilty of murder the jury showed that the Crown had succeeded in eliminating any reasonable possibility that the prisoner had acted under provocation. It will be necessary later in these remarks to consider the basis on which the jury could have concluded that the Crown had disproved provocation.

5 As the sentencing judge I have to determine, so far as I can, what are the facts relevant to sentencing the prisoner.

6 The principles to be applied by me in determining those facts have been stated in such cases as R v Isaacs (1997) 90 A Crim R 587 and The Queen v Olbrich (1999) 199 CLR 270. Any facts I find must be consistent with the verdict of the jury and I must accept such facts as are necessarily established by the verdict of the jury. Subject to this constraint, the onus is on the Crown to prove beyond reasonable doubt facts which would be adverse to the prisoner and the onus is on the prisoner to prove on the balance of probabilities facts which would be favourable to the prisoner.

7 There may be matters which would be relevant to sentencing but as to which the state of the evidence does not permit a sentencing judge to make any finding, either a finding beyond reasonable doubt adverse to the prisoner or a finding on the balance of probabilities favourable to the prisoner. That a sentencing judge may not have sufficient evidence to be able to make a finding on a matter which is relevant to sentencing was recognised by the High Court in Olbrich and in Weininger v The Queen (2003) 212 CLR 629.

Facts Relevant to Sentencing

8 I am satisfied that the following facts have been established to the requisite standard.

9 The deceased was a woman of Chinese extraction, living in Sydney in an apartment block in the Haymarket known as the Quay or the Peak Apartments. From about Easter 2001 the deceased worked in the information technology section of a firm of business management consultants.

10 In 1998 the deceased met Mr Timothy Titheradge. Mr Titheradge was a wealthy man who had business interests in Sydney and a large rural property in the Southern Highlands near Goulburn.

11 Mr Titheradge had for many years had a relationship with a woman, who was generally referred to in the evidence at the trial as “Linus” (Caroline). There have been children of the relationship between Mr Titheradge and Linus.

12 After Zoe Zou and Mr Titheradge met, a relationship developed between them, which continued, almost without interruption, to the time of Zoe Zou’s death. After Mr Titheradge formed his relationship with Zoe Zou, Mr Titheradge divided his time between living with Linus in the Southern Highlands and visiting Zoe Zou at her apartment in Sydney. Each of the women was aware of the existence of the other woman and of Mr Titheradge’s relationship with the other woman.

13 In the year 2002 Zoe Zou became pregnant by Mr Titheradge and a child, a daughter who was named Yasmine, was born on 27 October 2002. However, before Yasmine was born, Mr Titheradge in about August 2002 married Linus. There had been a long standing arrangement between Mr Titheradge and Linus that they would marry in December 2002 but the marriage was brought forward by a few months for a number of reasons, including that Linus’ father was terminally ill. There is no doubt that Zoe Zou, who was then in an advanced stage of pregnancy, was seriously distressed and upset by Mr Titheradge’s marriage to Linus.

14 After the birth of Yasmine Mr Titheradge entered into a financial arrangement with Zoe Zou for the support of Yasmine.

15 In May or June 2002 the prisoner Michael Wallace was introduced to Zoe Zou by a woman named Zuni Wilding, with whom the prisoner was acquainted. Later in these remarks I will refer in some detail to the prisoner’s background. At this stage I will simply note that, not long before the prisoner was introduced to Zoe Zou, he had been released on parole after the expiration of the minimum term of a long prison sentence. He was living with another former prisoner in a flat at Wollstonecraft.

16 There is no doubt that the prisoner and Zoe Zou developed some kind of relationship. The prisoner attended to the servicing of Zoe Zou’s car and was allowed by her to use the car while she was overseas. Answers given by the prisoner when he was interviewed by police on 28 November 2003 show that he had acquired quite a lot of accurate information about Zoe Zou, including about her relationship with Mr Titheradge, and the source of that information must have been Zoe Zou. Images from closed circuit television in the Quay apartment block for the evening of Monday 17 November 2003 show the prisoner and Zoe Zou entering the block together. Whether, as the prisoner claimed, the relationship between Zoe Zou and the prisoner extended to a sexual relationship, I am unable to determine.

17 In early September 2003 Zoe Zou went to China with Yasmine to visit her parents, who live in China. She was accompanied on the trip to China by Mr Terrence Reece, a businessman, who had met her in November or December 2001 during a short interruption in the relationship between her and Mr Titheradge and who had continued to have a friendly, non-sexual relationship with her.

18 Mr Titheradge later joined Zoe Zou in China. As on a previous visit to China and on a visit by Zoe Zou’s parents to Australia, Mr Titheradge was presented to Zoe Zou’s parents as being her husband. Mr Titheradge and Zoe Zou returned from China together in early November 2003.

19 While Zoe Zou was in China, the prisoner, at her request, took possession of her car, which had the distinctive number plates ZZ1818, and, with her permission, drove her car.

20 On Monday 17 November 2003 Zoe Zou went to the office of the management consultants for whom she had worked and discussed with the manager of the information technology section her resuming work after the expiration of her maternity leave, which had been extended to enable her to make the trip to China.

21 On the evening of Monday 17 November 2003 the prisoner visited Zoe Zou at the Quay apartments. A still photograph from closed circuit television film shows Zoe Zou with Yasmine, accompanied by the prisoner, in a passageway leading into the apartment block. I accept that Zoe Zou and the prisoner had had a meal together that evening in a restaurant near the apartment block. On the evening of 17 November Zoe Zou asked the prisoner to take her car and advise her what she should do about a mechanical defect in the car.

22 A number of events happened on Tuesday 18 November 2003. In the afternoon Zoe Zou made a number of telephone calls in connection with a business of importing noodles from China, which she had set up. Mr Titheradge telephoned Zoe Zou and arranged to meet her at her apartment at about six o’clock in the afternoon of the following day. Zoe Zou explained to Mr Titheradge that she would be delivering noodles in the suburbs and that she might be a bit late.

23 A young woman named Lisa Fackender, who also lived in the Quay apartments and had a Eurasian child, saw Zoe Zou and Yasmine in a park at Darling Harbour at about six o’clock in the evening of Tuesday 18 November. Apart from the prisoner, Ms Fackender was the last witness at the trial to have seen Zoe Zou alive.

24 At approximately eight o’clock in the evening of 18 November a Mrs Coleman saw a car with the distinctive number plates ZZ1818 travelling along a road near North Head, Manly.

25 On Wednesday 19 November 2003 the prisoner drove Zoe Zou’s car from Wollstonecraft to the Quay apartments and met Zoe Zou and Yasmine.

26 I am satisfied that the prisoner killed Zoe Zou on Wednesday 19 November. However, the circumstances in which he killed Zoe Zou are contentious and I propose to defer an examination of the evidence about those circumstances until later in these remarks.

27 Mr Titheradge arrived at Zoe Zou’s apartment in the evening of 19 November. Zoe Zou was not there. At first he was not concerned, because she had warned him the previous day that she might be late. By about ten o’clock in the evening Mr Titheradge had become concerned, because it would be unusual for Zoe Zou to be out with Yasmine at such a late hour and he attempted to make enquiries by telephone about her.

28 Shortly before midnight on Wednesday 19 November a young woman driving in the North Head area of Manly saw a pram with a baby in it near Manly hospital. The baby was taken into the hospital. Subsequently, a wallet and a set of keys belonging to Zoe Zou were found in the North Head area.

29 On the morning of Thursday 20 November Mr Titheradge became aware from a radio announcement that a Eurasian baby had been left near Manly Hospital. He telephoned the Hospital and identified the baby as Yasmine.

30 In the following days a still photograph from the closed circuit television film of Monday 17 November showing Zoe Zou, Yasmine and the prisoner was widely published in the media and was seen by the prisoner.

31 On Tuesday 25 November 2003 the prisoner telephoned a former prisoner he knew, who was referred to at the trial as MJS, and then visited MJS at his place of work. He told MJS that “the triads had knocked her (Zoe Zou)” and that he was frightened of “the Asians,” who were pursuing him. He asked MJS to help him get rid of Zoe Zou’s car. MJS agreed to do so.

32 MJS provided some accelerants from the stores of the smash repair shop where he worked and on Tuesday 25 November 2003 the prisoner and MJS incinerated Zoe Zou’s car in vacant land at Malabar. Notwithstanding the incineration of the car, investigating police were able to identify the car from an identification plate in the engine bay.

33 After some delay the prisoner came forward and agreed to be interviewed by police. An electronically recorded interview of the prisoner was conducted on Friday 28 November 2003. In the interview the prisoner told police that the last time that he had seen Zoe Zou was on the night of Monday 17 November and that he had returned her car on the evening of Tuesday 18 November, without having seen her, by parking the car in a street near the apartment block, with the key left in the exhaust pipe of the car.

34 After the burning of the car MJS saw reports in the media of the disappearance of Zoe Zou and of the car which had been burnt being her car. MJS contacted the police. In his evidence at the trial MJS explained, and I accept his explanation, that he had helped the prisoner burn the car because the prisoner had told him that Asian criminals were pursuing the prisoner but, having learnt that a woman had disappeared and that a child had been left at a hospital, he had decided to contact the police.

35 MJS agreed to be fitted with a listening device to record conversations he would have with the prisoner. Subsequently an undercover police officer who gave evidence at the trial using the pseudonym “Mark”, also had conversations with the prisoner which were recorded by a listening device worn by Mark.

36 A series of recorded conversations took place between 4 December 2003 and 25 March 2004, between the prisoner and MJS or between the prisoner, MJS and Mark or between the prisoner and Mark.

37 In a conversation on 16 January 2004 between the prisoner and MJS, MJS told the prisoner that he knew someone who could assist in the fabrication of false alibis. In a conversation taking place on 24 January 2004 Mark was introduced to the prisoner as being a person who could assist in the fabricating and supporting of false alibis.

38 In the recorded conversations there was lengthy discussion about fabricating false alibis for the prisoner, which would be supported by evidence from apparently credible witnesses to be procured by Mark, particularly for the night of 25 November 2003 when the car was incinerated. It was agreed that the prisoner’s alibi for the night of 25 November 2003 would be that he was one of a group of diners at a restaurant in Kensington.

39 In these conversations Mark skilfully conveyed to the prisoner pieces of information about the police investigation into the disappearance of Zoe Zou, which Mark said he had obtained from careless or corrupt police officers.

40 In a conversation on 25 February 2004 Mark told the prisoner that the police had information identifying the prisoner as having been in Zoe Zou’s car on the day she had disappeared. The prisoner denied to Mark that he had been in Zoe Zou’s car on the day that she disappeared.

41 In a conversation on 25 March 2004 Mark told the prisoner that everything had been fixed for the alibi for 25 November 2003 and the conversation turned to devising an alibi for the prisoner for 19 November 2003.

42 On 25 March 2004 police staged a mock arrest of MJS. MJS was served with a summons to give evidence before the New South Wales Crime Commission at a future date and was then released. Later that day MJS had a conversation with the prisoner in which he told the prisoner that he had been arrested and had been served with a summons. MJS gave evidence at the trial, which I accept, that he said to the prisoner “I’m prepared to go to the Crime Commission and wear the car but I’m not prepared to wear the body, if a body is found. So, if a body is out there, please tell me.” The prisoner said “we have to go and fix something up and take it for a drink”.

43 Arrangements were made between the prisoner and MJS to retrieve the body of Zoe Zou and dispose of it out to sea.

44 On 29 March 2004, under police surveillance, MJS travelled with the prisoner in a utility vehicle which MJS had borrowed. At exactly forty kilometres from the commencement of the Bells Line of Road the prisoner ordered MJS to stop the vehicle. The prisoner took some tools and recovered out of bushland the skeletal remains of Zoe Zou. On the return journey towards Sydney MJS stopped at the Kurrajong Heights Hotel, where police arrested the prisoner and MJS.

45 A forensic pathologist Dr Ellis examined the skeletal remains the prisoner had retrieved and further human bones which were located at the same site near the Bells Line of Road. There was no issue at the trial that the remains and the bones were those of Zoe Zou.

46 Dr Ellis noted two abnormalities in the skull, an almost round hole at the back of the skull, which he considered was clearly an entry wound from a gunshot, which had been the cause of death, and a depressed fracture on one side of the skull, which Dr Ellis considered had been caused by another bullet glancing the skull.

Facts of the Killing

47 Earlier in these remarks I said that I would defer until later an examination of the evidence about the circumstances in which the prisoner killed Zoe Zou. I now turn to this subject.

48 The skeletal remains of Zoe Zou and the evidence of Dr Ellis clearly establish that Zoe Zou was killed by being shot with a projectile which entered the back of her head. I find that this shot was fired with an intent on the part of the prisoner to kill Zoe Zou. Another shot was fired which glanced past Zoe Zou’s skull. Dr Ellis could not determine which of the two shots was fired first. After killing Zoe Zou, the prisoner concealed her body in dense bushland and precisely noted the location of the spot. I will refer to the facts that I have just stated as “the bare facts of the killing”.

49 The only evidence at the trial about the circumstances of the killing was given by the prisoner and I will now summarise that evidence.

50 At the dinner on 17 November 2003 it had been arranged that the prisoner and Zoe Zou should go to Katoomba on Wednesday 19 November to have lunch.

51 On the morning of 19 November the prisoner drove Zoe Zou’s car to the Haymarket and picked up Zoe Zou and Yasmine and then drove towards Katoomba along the Bells Line of Road.

52 Some distance along the Bells Line of Road the prisoner stopped the car so that Zoe Zou could attend to Yasmine. While the car was stopped Zoe Zou spoke to the prisoner.

53 Zoe Zou said that the relationship between the prisoner and herself was over; that she did not wish to be with the prisoner; that Terry Reece had asked her to become more to Zoe Zou and Yasmine than simply a godfather to Yasmine; that Terry Reece was younger and had more money than the prisoner; that there was already some kind of relationship between Zoe Zou and Terry Reece; and that Terry Reece would not allow the prisoner to see Yasmine. The prisoner protested to Zoe Zou that he loved her.

54 When the prisoner tried to touch Zoe Zou, she used crude and insulting language to him, she struck him across his face and she pulled his hair.

55 The prisoner had had two previous relationships with women, which had been terminated by the woman leaving with another man, and the thought of these two previous relationships was present in his mind.

56 The prisoner believed that he had supported Zoe Zou in various ways, by preventing her, when she was distraught, from taking her own life, killing Yasmine and proceeding in a desire to have Mrs Titheradge killed.

57 The prisoner had made plans to live with Zoe Zou and have children by Zoe Zou and the two of them had made plans to coordinate some of their business activities.

58 The prisoner asserted, “I just blew up. I just lost control”.

59 In his evidence the prisoner said that he did not remember taking a gun out of a bag on the floor of the car or of shooting Zoe Zou or of taking her body out of the car but he did not dispute that these things had happened.

60 After the killing, the prisoner, in a state of emotional turmoil, drove the car to various parts of Sydney, including Maroubra, where the car was sighted by a witness, and Manly, where he dropped off Yasmine near the hospital.

61 That concludes my summary of evidence given by the prisoner at the trial.

62 Most of the evidence which I just summarised was relevant to the issue of provocation, which as I have stated, was the only live issue at the trial. By returning a verdict of guilty of murder the jury showed that the Crown had proved beyond reasonable doubt that the prisoner did not act under provocation in killing Zoe Zou. However, as was submitted by counsel for the prisoner in the proceedings on sentence, it does not necessarily follow from the jury’s verdict, that the jury rejected as not reasonably possibly being true the prisoner’s account of how the killing had happened. The jury could have accepted the prisoner’s account as reasonably possibly being true but have been satisfied beyond reasonable doubt that the conduct of the deceased was not such as could have induced an ordinary person in the position of the prisoner to have so far lost self-control as to have formed an intent to kill the deceased or to inflict really serious bodily injury on her. Accordingly, it is necessary for me to determine whether I accept, on the balance of probabilities, the prisoner’s account or any substantial part of the prisoner’s account of what happened.

63 In the proceedings on sentence counsel for the prisoner submitted that I should accept the prisoner’s version. It was pointed out that the prisoner had clearly had some kind of relationship with Zoe Zou and had been confided in by Zoe Zou. It was submitted that evidence given in the trial showed that Zoe Zou gave different presentations of herself to different people and could have given a presentation of herself to the prisoner which led the prisoner, as an infatuated older man, down a false trail of hope and expectation.

64 In the proceedings on sentence the Crown prosecutor submitted that I should reject in its entirety the prisoner’s account of what he said had happened.

65 I have concluded that I should not accept, even on the balance of probabilities, the prisoner’s version of what he says were the circumstances of the killing. My principal reasons are the prisoner’s general lack of credibility and the implausibility of the version he gave.

66 As to the prisoner’s lack of credibility, I have already referred to the false answers given by the prisoner in the recorded interview of 28 November 2003, the false statements made by the prisoner to MJS about the prisoner being pursued by Asian criminals and the assiduous attempts by the prisoner to fabricate false alibis.

67 As to the implausibility of the version, it is not credible that the prisoner, even if infatuated by Zoe Zou, could have believed that she would have abandoned Mr Titheradge, her child’s father, for the prisoner. Even allowing for some tendency on the part of Zoe Zou to say different things to different people, it is not credible that she would have said to the prisoner that she intended to form a close relationship with Mr Reece, which would be in stark contradiction with the evidence of both Mr Reece and Mr Titheradge, each of whose evidence is far more credible than the prisoner’s.

68 In the proceedings on sentence the Crown submitted that I should find that the prisoner had planned the killing of Zoe Zou. The Crown submitted that an inference that the prisoner had planned the killing of Zoe Zou could be drawn from the circumstances that: -

(1) on Tuesday 18 November 2003 the prisoner had told a man named Goska with whom he was collaborating in the renovation of a truck at Mr Goska’s property at Richmond, that he would not be coming on the following day Wednesday 19 November;
(2) on the evening of Tuesday 18 November Mrs Coleman had sighted Zoe Zou’s car in the same general area as that in which Yasmine was left the following night and Zoe Zou’s wallet and keys were later found;
(3) the prisoner had noted the precise location where he had concealed Zoe Zou’s body.

69 I do not consider that the only reasonable inference which could be drawn from these circumstances is that, no later than Tuesday 18 November 2003, the prisoner had planned to kill Zoe Zou.

70 The arrangement with Mr Goska was a loose arrangement and Mr Goska and the prisoner did not work on the truck every day. It is reasonably possible that on 17 November 2003 the prisoner had made an innocent arrangement with Zoe Zou that they should go out together on 19 November 2003, which would have precluded the prisoner from going to Mr Goska’s property on that day.

71 Evidence was given at the trial of sightings of Zoe Zou’s car on Wednesday 19 November in widely separated parts of Sydney, which would support the part of the prisoner’s evidence in which he said that, after the killing, he drove erratically, in a state of emotional turmoil, to various parts of Sydney.

72 The circumstance that after the killing the prisoner concealed the body at a location which he precisely noted does not show that the killing had been planned.

73 I consider that I am unable to make any finding, which could only be made if the criminal standard of proof was satisfied, that the killing was planned.

74 It was submitted by the Crown that I should find that the prisoner had a motive, and a base motive, for killing Zoe Zou. The Crown submitted that I should accept evidence from the prisoner, supported to some extent by evidence from MJS, that in July 2003 Zoe Zou, deeply distressed and disturbed by her anomalous situation and her jealousy of Mrs Titheradge, engaged the prisoner for a remuneration of $20,000 to have Mrs Titheradge killed and that MJS, at the request of the prisoner, twice telephoned Zoe Zou in July and September 2003, pretending to be the person the prisoner had hired to carry out the killing. The prisoner gave evidence at the trial that he had pretended to accept the engagement only to appease Zoe Zou and had never intended that Mrs Titheradge should be killed. Nothing in fact happened to Mrs Titheradge.

75 MJS asserted in his evidence that the prisoner had told him that the prisoner had actually received the payment for the contract killing. The prisoner in his evidence denied that he had received any payment.

76 The Crown submitted that I should prefer MJS’s evidence and find that the prisoner had received payment from Zoe Zou and that I should make further findings that, after Zoe Zou returned from China and found that Mrs Titheradge was still alive, she demanded that the prisoner repay the money she had paid the prisoner.

77 However, even if I accepted parts of the prisoner’s or MJS’s evidence on this subject, there is simply no evidentiary basis on which I could make, beyond reasonable doubt, the further findings contended for by the Crown.

78 For reasons which should become clear when I examine the subjective circumstances of the prisoner, I accept that he usually travelled with a gun for his own protection and that he did not obtain a gun for the purpose of shooting Zoe Zou.

79 Counsel for the prisoner submitted that I should find that the prisoner had been provoked by Zoe Zou, even if at the trial the Crown had disproved the statutory defence of provocation. I accept that it would be relevant to sentencing, if I found that the prisoner had been provoked into acting, even though the statutory defence of provocation had been disproved. However, as I have not accepted the prisoner’s version of what he says happened on 19 November, there is no evidence on which I could make a finding that the prisoner had been provoked.

80 The conclusion I have reached about the objective facts of the killing is that I am left with no more than what I have described as the bare facts of the killing.

Subjective Circumstances of the Prisoner

81 In the proceedings on sentence an affidavit by the prisoner and a report by Dr Giuffrida, a forensic psychiatrist, were admitted. The Crown did not seek to cross-examine either the prisoner or Dr Giuffrida.

82 The prisoner was born on 3 May 1951 and is accordingly now fifty-five years old.

83 He had a variety of jobs in his early life, including being a rigger and a shooter of feral animals.

84 In 1983 he obtained employment with the New South Wales Department of Corrective Services. In 1985 he joined the Internal Investigation Unit with the Department, carrying out surveillance of other prison officers. In 1986 he joined the Hostage Response Group within the Department as a specialist sniper or marksman. He found the work stressful.

85 In 1987, at the relatively advanced stage of thirty-six, the prisoner joined the Australian Federal Police.

86 In 1989, while a Federal Police officer, he stole a large quantity of drugs held by the Australian Federal Police in a drug registry. In July 1990 he was sentenced for three offences of possessing prohibited imported drugs, the longest sentence consisting of a minimum term of twelve years commencing on 26 September 1989 and an additional term of four years.

87 In December 1993 the prisoner was attacked by other prisoners and placed in protective custody.

88 In May 1999 the prisoner was attacked by a group of Vietnamese prisoners, armed with a hammer and an iron bar. His skull was fractured and he was unconscious for some hours. In consequence of this attack the prisoner has suffered severe headaches, loss of balance, impaired memory, blurred vision and tinnitus in both ears. In 2002 he was medically assessed as having suffered a fifteen percent permanent impairment of brain function as a result of the attack.

89 The prisoner brought a claim for compensation for the injuries he had suffered in the 1999 assault and this claim was eventually settled in about March 2003 for a gross amount of approximately $300,000.

90 The prisoner was released from custody on parole, soon after completing serving the minimum term of his longest sentence. He was on parole at the time of committing the present offence.

91 Since he was taken into custody for the present offence the prisoner has been classified as a “non association” “extreme high security inmate”. He is housed in a special management unit in a cell approximately sixteen feet by six feet with a small rear yard. Because of staff shortages, the door to the backyard is often locked. The prisoner’s access to a telephone is limited to one call a day. All telephone calls are monitored and any outgoing mail is opened and read. All meals for a day are delivered within a period of six hours. The prisoner has no access to facilities for keeping or cooking food. The prisoner has no access to the prison oval, the prison gymnasium, TAFE courses or the general prison library. The prisoner has only limited access to the prison barber and prison medical staff. He has no opportunity for social interaction with other inmates. When he is escorted anywhere, he is required to wear orange overalls, double handcuffs and leg chains.

92 I accept that the prisoner as a former Federal Police officer and a former Corrective Services officer who worked for the Internal Investigation Unit, is the object of hatred by many prisoners and of dislike by many prison officers. He is at serious risk of harassment or physical injury, including serious physical injury.

93 In his report Dr Giuffrida diagnosed the prisoner as having organic brain injury including frontal lobe syndrome, a personality disorder with a range of traits characteristic of both a borderline and an anti-social personality disorder and a number of physical symptoms associated with the serious head injury he suffered in 1999.

Section 21A of the Crimes (Sentencing Procedure) Act

94 Of the factors set out in subsection (2) of s21A of the Crimes (Sentencing Procedure) Act, most of those which are present are either elements of, or necessarily inherent in, a crime of murder and do not operate as aggravating factors. The offence was committed while the prisoner was on parole. The only offences of which the prisoner has previously been convicted are the drug offences I have already referred to, which are offences of a different type from the present offence, and I do not regard them as an aggravating factor.

95 As to paragraph (h) of s21A(2), Zoe Zou was of Asian origin but there is nothing to suggest that the offence was motivated by hatred for or prejudice against Asians.

96 As to paragraph (l) Zoe Zou was a female but she was not vulnerable within paragraph (l).

97 Of the mitigating factors set out in subsection (3) of s21A, the only factors which I am satisfied are present are that the prisoner, if only because of his age, is unlikely to re-offend and that he gave a limited degree of assistance to law enforcement authorities by his plea of guilty to manslaughter. I have declined to find that the offence was planned but nor am I able to find that the offence was not planned.

98 It was submitted by counsel for the prisoner that I should find that the prisoner has shown contrition by pleading guilty to manslaughter and by expressing contrition in his evidence at the trial. I do not consider that I should find that the prisoner has shown any contrition. Numerous things that he said during the recorded conversations between January and March 2004 are inconsistent with the prisoner experiencing any contrition.

99 The paragraphs of subsections (2) and (3) of s21A of the Crimes (Sentencing Procedure) Act do not exhaustively state all of the factors which it may be necessary to take into account in sentencing an offender. The concluding words of section 21A(1) provide that other matters may be taken into account which are required or permitted to be taken into account under any Act of Parliament or any rule of law.

Protective Custody

100 A factor not expressly mentioned in s21A(3), which counsel for the prisoner submitted and counsel for the Crown accepted, that I have to take into account in mitigation in sentencing the prisoner is that he has already served and will continue to serve his sentence in conditions of custody which are more onerous, and much more onerous, than the conditions of custody to which prisoners in the general prison population are subject. I have already referred to the prisoner’s classifications and to the prisoner’s conditions of custody and to the continuous risk of harassment and physical injury to which the prisoner is subject.

101 In a number of recent cases the Court of Criminal Appeal has drawn attention to the difficulty of predicting in what conditions of custody a prisoner will serve his sentence and to the existence within the Correctional System of different regimes of custody, all of which are described as protective custody but some of which are in fact fairly benign.

102 However, in the present case, a prediction can be confidently made that the prisoner will serve the whole of his sentence in conditions of custody which are much harsher than those for prisoners in the general prison population. The conditions in which the prisoner has already served approximately the first two and a half years of his sentence assist in making such a prediction and demonstrate that the part of the sentence already served should be regarded as having been equivalent to a longer period served in more usual conditions of custody.

103 I accept that every year spent and to be spent by the prisoner in the kind of custody to which he has been and will be subject is equivalent to a significantly longer period of imprisonment under ordinary conditions of custody. Accordingly, as the Crown recognised in the proceedings on sentence, I am obliged to give a significant discount for this matter. I do not, however, accept that there is an arithmetical rule of conversion that one year in protective custody is to be regarded as equivalent to eighteen months in ordinary custody.

Decision

104 The Crown prosector made a submission that a life sentence should be imposed upon the prisoner.

105 A life sentence can be imposed, only if a sentencing judge is satisfied that the Crown has proved beyond reasonable doubt that the case falls within the worst class of cases of murder. In R v Twala (unreported New South Wales Court of Criminal Appeal 4 November 1994) Badgery-Parker J in remarks which continue to be quoted or referred to, said:-

“In order to characterise any case as being within the worst case category, it must be possible to point to particular features which are of very great heinousness and it must be possible to postulate an absence of facts mitigating the seriousness of the crime.”

106 In the present case the only objective facts of the killing the state of the evidence has permitted me to find are what I have described as the bare facts of the killing. On those bare facts it could not be found that the case falls within the worst class of cases of murder.

107 I recognise that the kinds of cases which can fall within the worst class of cases of murder are not closed. Nevertheless, the only proven facts of the present murder do not exhibit any of the features, one or more of which are to be found in almost all cases in which life sentences have been imposed for the crime of murder. The killing was not a multiple killing. Although there is evidence that the prisoner was engaged, by the victim herself, to carry out a contract killing of Mrs Titheradge, the killing of Zoe Zou, who was well known to the prisoner, could not have been an intended performance of the contract to carry out the killing of Mrs Titheradge. I could not find beyond reasonable doubt that, even if the prisoner was hired to carry out a contract killing of Mrs Titheradge, he ever intended that the contract should be performed.

108 There is no evidence upon which any finding could be made, still less a finding beyond reasonable doubt, that the prisoner kidnapped Zoe Zou or that the prisoner sexually assaulted her or that the prisoner committed any other kind of offence against her before killing her or that the prisoner subjected her to torture or cruelty before killing her or that the prisoner demanded a ransom for her.

109 In the event of my not accepting the submission that a life sentence should be imposed, the Crown prosecutor in the proceedings on sentence referred to the statutory non-parole period of twenty years for an offence of murder in the middle of the range of objective seriousness.

110 It seems to me that the prisoner’s offence, on the limited facts the state of the evidence has permitted me to find, is approximately in the middle of the range of objective seriousness for offences of murder.

111 I have, however, concluded that I should set a non-parole period that is shorter than the standard non-parole period. My reasons for setting a shorter non-parole period than the standard non-parole period include the factors within s21A(3) of the Crimes (Sentencing Procedure) Act which I have found but principally the much more onerous than usual conditions of custody in which the prisoner has commenced serving and will continue to serve his sentence.

112 Under s54B(3) of the Crimes (Sentencing Procedure) Act the reasons for which a sentencing court may set a non-parole period that is longer or shorter than the standard non-parole period are limited to the reasons referred to in s21A of the Act. Although the conditions of custody in which the prisoner is likely to serve a sentence are not expressly referred to in s21A, they are, in my opinion, capable of being a reason “referred to” in s21A, as falling within the concluding words of subsection (1) of s21A as a matter “required or permitted to be taken into account under any rule of law”.

113 It was submitted by counsel for the prisoner that I should find that there are special circumstances within s44 of the Crimes (Sentencing Procedure) Act in the prisoner’s age including the age he will have attained when he is ultimately released, his ill health and, to the extent to which it is permissible to have further regard to it, his conditions of custody. I consider that I should make a finding of special circumstances on these grounds.

114 The sentence I pronounce will commence on 29 March 2004, the date on which the prisoner was taken into custody and from which he has remained in custody

115 Michael Anthony Wallace, for the crime of the murder of Zoe Zou I sentence you to a non-parole period of imprisonment of fourteen years commencing on 29 March 2004 and expiring on 28 March 2018 and a balance of the term of imprisonment of six years. The earliest date on which you will be eligible for release on parole will be 28 March 2018.

**********