The Queen v Horrell - [2019] NTSC 65

The Queen v Horrell [2019] NTSC 65
PARTIES:THE QUEEN
v

HORRELL, Edward James

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:9417139
DELIVERED:  23 August 2019
HEARING DATES:  30 July 2015, 28 April 2016.
JUDGMENT OF:  BARR J
CATCHWORDS:

CRIMINAL LAW – SENTENCING – Murder – mandatory sentence of life imprisonment without parole – offender sentenced in 1995 – subsequent statute creating deemed non-parole period – power to revoke deemed non-parole period – whether court satisfied that level of culpability so extreme that offender should be imprisoned for life without parole – whether the non-parole period should be longer than the deemed non-parole period because of objective or subjective factors affecting the relative seriousness of the offence – discretion in s 19(4) to fix a longer non-parole period enlivened – non-parole period of 27 years fixed.
Sentencing (Crime of Murder) and Parole Reform Act 2003 s 18, s 19 (4), s 19 (5), s 19 (7)
Leach v The Queen [2007] HCA 3; 230 CLR 1, followed; R v Leach (2004) 14 NTLR 44, approved
REPRESENTATION:
Counsel:
Applicant:M Nathan
Respondent:  J Hunyor
Solicitors:
Applicant:Office of the Director of Public Prosecutions
Respondent:  North Australian Aboriginal Justice Agency
Judgment category classification:    B
Judgment ID Number:  Bar1909
Number of pages:  30

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Queen v Horrell [2019] NTSC 65

No. 9417139
BETWEEN:

THE QUEEN

Applicant

AND:

EDWARD JAMES HORRELL

Respondent

CORAM: BARR J
REASONS FOR JUDGMENT – REDACTED VERSION
(VICTIMS’ NAMES ANONYMIZED)
(Delivered 23 August 2019)

The respondent is serving a mandatory life sentence for murder, for which he was convicted and sentenced on 15 June 1995. At that time, the penalty for murder was imprisonment for life without parole. However, in 2003, the Sentencing (Crime of Murder) and Parole Reform Act 2003 (“the Act”) became law, and the Supreme Court was given the power to fix a non-parole period for past sentences imposed for the crime of murder.
On 30 July 2015, I heard an application made by the Director of Public Prosecutions pursuant to s 19 of the Act.[1] The Director had sought an order that the Court revoke the non-parole period of 20 years fixed by s 18(a) of the Act, and that it refuse to fix a non-parole period;[2] alternatively fix a non-parole period longer than 25 years;[3] alternatively fix a non-parole period of 25 years.[4]
On 29 April 2016, I formally revoked the non-parole period of 20 years. I did so because, at the time the respondent was convicted of the offence of murder for which he was imprisoned, he had a previous conviction for the crime of manslaughter.[5] That prior conviction required that any non-parole period had to be a minimum of 25 years.[6]
I was satisfied that objective and subjective factors affecting the relative seriousness of the offence warranted a longer non-parole period than 25 years,[7] and I fixed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading The Queen v Horrell

Details

AGLC: The Queen v Horrell [2019] NTSC 65
Case: [2019] NTSC 65
Decision Date: 23 August 2019

CaseChat Overview and Summary

In the case of The Queen v Horrell, the High Court of Australia considered the application of the Director of Public Prosecutions to extend the non-parole period of the respondent, who was serving a life sentence for murder. The court was required to determine whether the level of culpability in the offence was so extreme that the respondent should be imprisoned for life without parole, and if the non-parole period should be longer than the deemed non-parole period due to factors affecting the relative seriousness of the offence.

The court examined the principles governing the sentencing of murder and the application of section 19(4) of the Sentencing Act. It considered expert evidence and submissions regarding the respondent's rehabilitation, his potential risk of reoffending, and the objective and subjective factors that might affect the relative seriousness of the offence. The court also took into account the respondent's behaviour while in custody, including his participation in treatment programs and his positive impact on the community.

The court determined that the level of culpability in the offence was indeed extreme, warranting a life sentence without parole. However, it found that the non-parole period should be fixed at 27 years, rather than the deemed non-parole period of 20 years. The court was satisfied that the respondent had demonstrated a good level of insight into his offending behaviour and had successfully completed treatment programs, and that the form of personality disorder likely suffered by the respondent at the time of the murder tends to become less evident and remit with age. The court also considered the respondent's positive behaviour in custody and his potential risk of reoffending, which it found to be low.

The court made orders extending the non-parole period of the respondent's life sentence to 27 years, and directing that the respondent be released on parole after serving that period. The court also ordered that the respondent be credited with time served and that he be released on parole after serving a further period of imprisonment for his escape from lawful custody.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Commissioner Ken Middlebrook, the former Commissioner of Correctional Services, provided this opinion in relation to the respondent, by letter to the North Australian Aboriginal Justice Agency dated 4 May 2015: From my perspective, I have observed Mr Horrell on a regular basis for a period of three years as I have had regular contact with the work camp projects at Adelaide River and Nhulunbuy.At Nhulunbuy in particular, Mr Horrell has had a very positive impact on the other inmates and has demonstrated a high degree of leadership especially when the camp operated on a mobile basis.I have also noted his positive interaction with the community both in Nhulunbuy and at the Garma festival held by the Yolngu people each year.In my opinion Mr Horrell has prepared himself well for a return to community life and I strongly support his release under the supervision of the Parole Board.Expert evidence The respondent was assessed by Associate Professor Stephen Woods, Forensic Psychologist, on 25 March 2015 and a report subsequently provided to the Court dated 4 May 2015. The history set out by Professor Woods indicates that the respondent and two younger siblings were removed from their mother’s care when the respondent was approximately three or four years old. He was subsequently separated from his siblings, who were adopted when the respondent was about five years old. Professor Woods wrote as follows:The early losses experienced by Mr Horrell appear to have caused him to suffer very significant attachment difficulties as well as negatively impacted on his ability to develop an intact and integrated sense of self; these emotionally destabilising factors at developmentally critical stages of his life appear to have largely, but at least in part, underpinned his offending behaviour.[21] Based on the nature of his various disclosures it would seem highly probable that the sudden and unexplained (to him) separation from his family in Alice Springs, but of greater significance, the subsequent loss of his two younger siblings … had a profound impact on his sense of self and ability to form meaningful, stable relationships in later life.[22] Professor Woods considered that the respondent had greatly benefited from the structured environment, support provided and treatment received whilst in custody. He expressed the opinion that the respondent demonstrated a good level of insight into his offending behaviour in acknowledging that he had always felt emotionally insecure, which had negatively impacted upon his interpersonal relationships, and that his offending resulted in “a lot of victims”. Professor Woods agreed with an observation made by Mildren J that the respondent was, at the time of sentencing, a “time bomb likely to offend again violently, even after many years, if he was to form a strong attachment to a woman who were to reject him, but that otherwise he would probably not re-offend”.[23] However, in the opinion of Professor Woods, the respondent was no longer a “time bomb” because, in the 20 years since the murder, the respondent had successfully completed appropriate treatment programs and abstained from alcohol and drugs, which had enabled him to develop a good level of personal insight and emotional maturity. He expressed the further opinion that the form of personality disorder likely suffered by the respondent at the time of the murder of the deceased (Antisocial Personality Disorder with Borderline Features) tends to become less evident and remit with age.[24]

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Professor Woods’ conclusion to his supplementary report was expressed as follows: … Mr Horrell has completed sex offender focused treatment programs relevant to his forensic needs since being convicted and entered into custody. Without exception, the authors of each of the relevant reports have indicated that Mr Horrell was compliant with and benefited from the treatment received.[27] Mr Horrell, by virtue of his prisoner classification, has been able to move in and involved himself in the Nhulunbuy community with a very considerable degree of “freedom”. The successful manner in which he has been rehabilitated is, I believe, best evidenced by the fact that he is not abused the trust bestowed in him – rather he has become a respected member of the local Indigenous community.Additional matter for consideration – the respondent’s prison escape The supplementary report of Professor Woods was filed in September 2015, after the hearing had taken place. On 9 November 2015, before a decision was made in relation to the Director’s application, the respondent escaped from prison. Counsel for the Director and counsel for the respondent agreed that I should not determine the application, pending the outcome of any fresh charges. An ex officio indictment was subsequently filed and, on 27 April 2016, the respondent entered a plea of guilty to a single count of escaping from lawful custody on 9 November 2015. The agreed facts were that, at the time of his escape, the respondent was serving his sentence at the Datjala Work Camp. On Monday, 9 November 2015, the respondent completed his daily work commitments and was present for the evening muster at 6.30 pm. That evening, however, he decided to escape. He had been informed by Correctional Services that his transfer to the work camp had been revoked. The revocation was policy-based, and was not on account of any misconduct on the part of the respondent. The announcement that his participation in the Datjala Work Camp would soon cease greatly upset the respondent, and was the reason he decided to escape. Later in the evening, he used a portable stepladder to scale the camp’s perimeter fence, escaping into surrounding bushland. He then went into the Nhulunbuy town area, where he sought refuge with persons described as ‘family’. The respondent’s absence was detected at 8.00 am the following morning, and an extensive police search commenced. The respondent’s decision was impulsive and not carefully thought through. It was clearly an unwise decision. After reflecting on his situation, the respondent handed himself in to police at the Nhulunbuy Police Station at 10.30 am on 11 November 2015. He had been at large for about 36 hours. In sentencing the respondent to a term of imprisonment of seven months for escaping lawful custody, I made the following remarks: Clearly, general deterrence is an important factor. All persons in lawful custody must understand that, if they escape, they will be appropriately punished.Specific deterrence may not be so important. You had never previously escaped, and you handed yourself in after a reasonably short period of time. You clearly appreciated the error of your ways within a day or thereabouts of your impulsive decision to escape, and then made an effort to put things right.I take into account that this was your first offending of this kind, notwithstanding many previous opportunities to offend.Your escape did not involve violence to any person, nor did it involve damage to property. In the short period of time that you were at large, you did not misbehave or commit any offences. However, there were significant problems with what you did, which this Court cannot overlook.First, your offending was a breach of the trust placed in you by Corrections Officers. That breach of trust has already adversely affected you, in that the conditions of your incarceration are more stringent. …Further, significant resources were diverted to the Police search for you. Because of the nature of your offending in the past, there was community concern, and even alarm, that you had escaped and remained at large.I take as my starting point a sentence of imprisonment of nine months.However, you are entitled to an appropriate discount for your early plea of guilty, which not only reflects your remorse but which has also facilitated the course of justice in your case.The starting point will be reduced by two months, resulting in a sentence of imprisonment of seven months.