The Queen v Horrell
[2019] NTSC 65
•23 August 2019
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 DARWINThe 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 a non-parole period of 27 years to run from the date the respondent was first taken into custody.[8]
In fixing a non-parole period, I declined the Director’s application in so far as it asked the Court to refuse to fix a non-parole period. I was not satisfied that the respondent’s level of culpability in the commission of the offence was so extreme that the community interest in retribution, punishment, protection and deterrence could only be met if he were imprisoned for the term of his natural life without the possibility of release on parole.[9]
I indicated that I would publish detailed reasons for decision, and I now do so. I note that the respondent will not be eligible to apply for parole until March 2022.[10]
The respondent’s offending
On 15 June 1995, the respondent was found guilty of the murder of a female, MC (count 1), and causing grievous bodily harm intending to cause grievous bodily harm to PC (count 3). He was then sentenced in accordance with s 164 of the Criminal Code (as it then was) to imprisonment for life on the count of murder. No non-parole period was fixed. At that time, the only sentence for murder was a life sentence without parole.
On 23 June 1995, the respondent pleaded guilty to three counts of having sexual intercourse with JM (the daughter of the deceased) without her consent. He was sentenced to terms of imprisonment of 11 years, 11 years and 10 years respectively for the three acts of sexual intercourse without consent, and a term of imprisonment of 12 years for causing grievous bodily harm to PC.
The sentences for two of the rape counts were concurrent with each other, but cumulative as to six years on the 12-year term for causing grievous bodily harm. The sentence for the third rape count was made cumulative on the sentences imposed on the other two. The effective head sentence for these four matters was 20 years imprisonment, with no non-parole period. The sentences were to be served concurrently with the life sentence for murder.
The respondent’s application for leave to appeal was dismissed by the Court of Criminal Appeal on 11 April 1997.[11]
The respondent’s offending in August 1994
The respondent was born on 1 July 1953. As at 27 August 1994, he was 41 years old.
MC (“the deceased”) was the respondent’s de facto partner. They had been living together on and off, for about a year, at [address in Millner]. PC was the deceased’s son and was aged 8 at the time. JM was the deceased’s daughter and was aged 18 at the time. The deceased and members of her family had lived at [the Millner address] for many years. The respondent’s two daughters also lived in the home.
On Saturday 27 August 1994, the respondent was at the [Millner] home. Early in the day, the respondent and the deceased argued about the respondent giving money to JM for cigarettes and a video tape. During the afternoon, the deceased became very drunk and she argued with the respondent in their bedroom. She told the respondent to leave the house. He left with his own two children and went to visit a friend at Kulaluk.
After about half an hour, the respondent returned to the [Millner] home. He parked his car nearby [redacted] and left his two children there. His suggested reason for returning to the home was to pick up some clothes he had left there. However, he had formed an intent either to kill the deceased or to cause her grievous harm. When he got to the house, he broke in by removing the fly screen and the louvres to the lounge room. He got his axe, which was in the kitchen, and went into the bedroom. There he struck the deceased a number of axe blows to the head, causing her death. The head injuries were very significant. The victim was awake at the time she was hit on the head the first time, evidenced by the defensive injuries to her hands noted by the forensic examiner. The deceased was pregnant to the respondent at the time of her death.
At some time during the course of the fatal attack, PC woke up and probably tried to intervene. The respondent struck the boy a single axe blow to the back of his head, and the jury’s verdict indicates that he did so with intent to cause grievous harm. The boy ended up under the bed in an unconscious state. He regained consciousness later and crawled from a position under the bed in the general direction of the door. He was found by police at about 10.00 am the following morning and taken to hospital.
PC suffered a compound depressed fracture of the skull and a broken collar bone. If he had not been treated, his injuries would have been fatal.
The respondent returned to his car and drove to a service station in Bagot Road, and from there to an address in Moulden, where JM lived. When he arrived at the Moulden home, he sent his daughter to yell out for JM to come with them to return to [Millner] on the pretext of speaking to her mother. The respondent claimed that the mother was behaving irrationally because she was drunk.
The respondent remained at the Moulden address for a short period of time talking to JM and her husband. Eventually JM agreed to accompany the respondent and got into the front seat of his motor vehicle. The respondent’s children were seated in the back seat. The respondent drove to Humpty Doo, intending to have his daughters stay with a friend there. However, the older girl protested at being left there and as a result the respondent drove to a camp near Whaler Barracks, where he left both girls with a friend. From there, the respondent drove away in the direction of Noonamah with JM still in the vehicle.
Before reaching Noonamah the respondent turned right off the Stuart Highway into Jenkins Road and drove along that road for a considerable distance, finally turning down a track and parking an isolated location, near some pandanus trees. There the respondent spoke with JM about the deceased having an affair with another person.
The respondent then asked JM to have sex with him, but she refused. As she went to take off her seatbelt to get out of the vehicle, the respondent jumped up, climbed over her and stood outside the front passenger door. He grabbed JM’s throat and threatened to kill her with a knife which was in the car unless she did what he told her to do. The respondent then … [details of coerced sexual acts redacted]. He proceeded to interrogate her about her mother having an affair with JM’s father. JM was crying by this stage. The respondent stopped, stood up and had a smoke. When JM went to put her jeans back on, the respondent told her not to put them on but to get into the back seat of the car. He [redacted] … then proceeded to have penile/vaginal and penile/anal sex with her. JM complained of pain … [further details redacted].
The respondent then drove from the isolated area at Noonamah back along Jenkins Road, onto the Stuart Highway. He then drove south, towards Pine Creek. Some distance short of Pine Creek the vehicle ran out of petrol. The respondent turned the vehicle around facing towards Darwin and told JM that a friend of his was going to Katherine the following day and would see his car there. He then took JM into the bush and said they were going to walk to Katherine, where he would be safe.
Around mid-morning on Sunday 28 August 1984, the respondent and JM stopped near a waterhole for a rest and some water. The respondent again had penile/vaginal intercourse with JM without her consent. [Further details redacted]. Throughout this ordeal the victim was crying.
The respondent and JM then continued walking south. During the walk, the respondent made various threats. Over the next 24 hours, they walked a distance of approximately 25 kilometres, to the Dorisvale Station turnoff on the Stuart Highway.
On Monday 29 August, at about 7.30 am, the respondent agreed to let JM go, but only after he had hitched a ride south with a passing motorist. JM was eventually able to travel back to Palmerston with an acquaintance.
Mr Nathan, counsel for the Director, identified the following aggravating features of the offending:
(a) The killing involved planning and pre-meditation with the intent having been formed before the respondent entered the deceased’s residence.
(b) The offending involved the use of a substantial weapon, an axe.
(c) During or shortly after committing the offence of murder, the respondent attacked an eight year old boy with the axe, causing life threatening injuries.
(d) The respondent then travelled to the deceased’s daughter’s residence and used his own children to help persuade the deceased’s daughter to travel with him under a false pretence.
(e) The respondent then repeatedly raped the 18 year old victim orally, vaginally and anally, causing injuries.
(f) The victim was held against her will for a period of about 36 hours and threatened with a knife if she did not comply with the respondent’s demands.
(g) The offences had a significant and longstanding impact upon the two surviving victims, both physically (in relation to PC) and emotionally (in relation to both victims).
All of the aggravating circumstances in [25] were accepted as such. The respondent did not contend otherwise.
The respondent’s prior offending
The respondent had a previous conviction for manslaughter arising out of events which took place on 9 March 1970. He was 16 years and eight months old at the time. I state the relevant facts in [28] to [35] below.
On Monday 9 March 1970, at about 8.00 am, sisters CR and JR left their home in Rapid Creek to go to work in Coconut Grove. At 9.15 am they left work and went to a house in Coconut Grove, where their father used to live. JR went to the toilet outside the house while CR remained inside. JR came across the respondent, who was standing at the back of the house. JR and he had been seeing one another casually for approximately a year. The respondent was a “child of the state” and had been in and out of welfare homes. CR joined her sister and the respondent and both girls shared a cigarette. The respondent then pulled out a sawn-off .22 calibre rifle. The girls told him to stop waving it around but he replied that he was “only mucking about”.
CR then returned inside and JR remained outside talking to the respondent. JR told the respondent that she was no longer interested in seeing him. The respondent replied that she was going to keep seeing him whether she liked it or not. They then went inside and put on some records and sat around the kitchen table. The respondent said he wanted the music turned off, but JR refused to turn it off and told the respondent that she no longer wished to go out with him and that she did not love him.
The respondent at that stage hit JR on the head with the gun, before pointing the gun at CR, who was in the bedroom. When CR came out of the bedroom, JR told her sister to go home with her. The respondent then shot CR in the back of the head. JR had her head down under the table and screamed when she heard the shot. The respondent then hit JR again on the head with the gun, jerked her head up, grabbed her by her left arm and took her out the back. She fell down beside an old car in the yard. When she looked inside the house, she saw her sister slumped on the table, her hand moving.
The respondent then pulled JR up and took her out to the back of the shed. He then told her to run or he would shoot her. He told JR that he had only chopped the back of CR’s neck with his hand. JR ran to the nearby beach and the respondent continued to threaten to shoot her if she did not hurry.
Once they had reached some bushes, the respondent and JR had sexual intercourse. They then continued walking through the bush towards Bagot, sheltering for a little while because of the rain. When night came, they walked to a building at Bagot and stayed there overnight. The following morning, they headed back into the bush. They had a conversation in relation to another young man who, the respondent believed, JR had previously had sex with. The respondent wanted JR to admit that she was going out with that young man.
The couple remained in the bushes for a few more hours, until dark. After repeated complaints from JR that she wanted to go home, the respondent agreed that she could.
When interviewed by police, the respondent said that, at Coconut Grove, he had got really wild with JR because he kept thinking of her with other boys. He mentioned the name of a specific person. He also said that JR told him that she wanted to go with that boy because he had a mother and father, and the respondent did not. The respondent admitted to police that he had become “really wild” when JR told CR to come home with her to Rapid Creek, because he wanted to see more of JR. The respondent told police that he then said to the girls, “The first one moves will get heaven or hell”. At that stage, according to the respondent, JR replied, “He must be mad”, and this made him angry. He admitted to then pointing the gun to the back of CR’s head and shooting her. He said, “After she said I was mad, she accused me of being mad because I had been to Hillcrest Asylum. Then I got the gun and I pointed it at JR and all of a sudden I didn’t know what I was doing and CR, she was looking at JR, and I pointed the gun behind CR’s head and I shot her”.
When asked why he had shot CR, the respondent answered, “I don’t really know why I shot CR, because I have thought about it myself”. He was then asked, “When you shot her did you intend to kill her?” to which he replied in the affirmative.
The jury returned a verdict of not guilty to murder but guilty to manslaughter, and on 10 June 1970, the respondent was sentenced to a term of imprisonment of two years and six months.
In his sentencing remarks on 23 June 1995,[12] Mildren J identified some significant similarities between the two lots of offending committed by the respondent, the second lot after an interval of 24 years:
There are a number of similarities between these two offences. They were both triggered by rejection by a person to whom the prisoner had directed all of his affections. Both resulted in rage causing death, both resulted in rage being directed at victims other than the person the object of the affection and both involved sexual activity after the killings. [Transcript, 23/6/1995, p 49.5]
I see the similarity of the pattern of rejection resulting in extreme violence which, in my view, is unmistakable. I have been referred to Dr Lucas’s report and I note that, in the opinion of that psychiatrist, the prisoner is not suffering from any major psychiatric disorder and that he does not require treatment. He suggests, however, that he should avoid alcohol and difficult personal relationships. My view of the prisoner is that he is a time bomb likely to offend again violently, even after many years, if he were to form a strong attachment to a woman who were to reject him, but that otherwise he would probably not re-offend. [Transcript, 23/6/1995, p 52.2]
The analysis by Mildren J of the respondent’s offending reinforced the need for protection of the community, referred to (with retribution, punishment and deterrence) in s 19(5) Sentencing (Crime of Murder) and Parole Reform Act 2003. This was particularly so when the offending in August 1994 was considered against the background of the offending in March 1970.
Relevant legislation
It is useful at this stage to refer to s 19(4) and s 19(5) of the Act, extracted below:
(4). The Supreme Court may fix a non-parole period that is longer than a non-parole period referred to in section 18 or subsection (3) if satisfied that, because of any objective or subjective factors affecting the relative seriousness of the offence, a longer non-parole period is warranted.
(5). The Supreme Court may refuse to fix a non-parole period if satisfied the level of culpability in the commission of the offence is so extreme the community interest in retribution, punishment, protection and deterrence can only be met if the offender is imprisoned for a term of his or her natural life without the possibility of release on parole.
As was observed by Gleeson CJ in Leach v The Queen,[13] sub-section (5) deals with extreme cases, where the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, protection and deterrence can only be met by incarceration for life. His Honour further observed:[14]
The words “can only be met” in sub-s (5) are the reflex of the words “is warranted” in sub-s (4). A non-parole period longer than the s 18 period may be set where the Court is satisfied that the longer period is warranted. However, the Court may conclude, not merely that a longer period is warranted, but that the removal of any non-parole period is demanded, because that is the only way of meeting the community interest. The level of culpability in the commission of an offence may be so extreme that not only is it necessary to intervene to set aside the period fixed by s 18 but, in addition, the community interest demands that there be, not merely a longer non-parole period, but a refusal to fix any non-parole period.
The provisions of sub-ss (1), (4) and (5) of s 19 call for an exercise of discretionary judgment within a wider context of legislative prescription. They are different aspects of a single decision-making process. They do not require a court to disregard the consequences for the prisoner of the orders that may be made. They do not require a court to disregard events that have occurred over a period since original sentencing, including rehabilitation. They empower the court to set aside the legislatively prescribed non-parole period for the purpose either of increasing the period or of removing the possibility of parole. They condition the power to make orders in substitution for the legislative provision by reference to a judgment made about culpability. The highest level of culpability is that described in sub-s (5). It is a level of culpability such that the community interest in the matters referred to can only be met by, (that is, the community interest demands), incarceration for life.
… Considerations relevant to sentencing, and fixing non-parole periods, are relevant because what is involved in s 19 is a sentencing exercise. Events that have occurred since the original sentencing, to the extent to which they bear upon such considerations, may be taken into account. These considerations and events are taken into account within the framework of s 19. Ultimately the Court asks itself whether the level of culpability is so extreme that the community interest identified in the statute demands incarceration for life.
It should be noted that the use of the word “may” in s 19 (5), in the context “may refuse to fix a non-parole period”, does not confer a discretion but rather confers a power which is to be exercised upon the court being satisfied of the matters described in the provision. It means ‘must’.[15]
The need to have regard to evidence in relation to the period between sentencing and hearing of the application was explained by Martin (BR) CJ in R v Leach:[16]
There is nothing in the wording and context of the legislation which suggests a legislative intention to deprive the court of relevant material that has emerged since an offender was sentenced. Section 19 (5) of the Act requires the court to consider not only the level of culpability in the commission of the offence, but also the community interest in retribution, punishment, protection and deterrence. There is no reason why that community interest should not be assessed as at the time that the court makes the decision on the application by the Director. It is a community interest which may, for various reasons, have changed over the period during which the prisoner has been serving the life sentence. It would be logical, and potentially misleading, to attempt to assess that community interest solely as it stood when the sentence was imposed.
… in the absence of the clearest words to the contrary, the provisions should be interpreted as supporting a legislative intention that the court should have available to it all relevant and up-to-date information concerning the prisoner. There is no basis for … ignoring relevant material that has emerged during many years of incarceration.
There is no doubt that the respondent’s level of culpability in the murder of the deceased was extreme. The issue I had to consider was whether the respondent’s level of culpability was so extreme that the community interest in the matters referred to in s 19(5) of the Act could only be met by incarceration of the respondent for life. In that context, consistent with the observations of Gleeson CJ extracted in [40] and Martin (BR) CJ in [42], I considered evidence of events subsequent to the original sentencing, all of them occurring during the period of the respondent’s imprisonment, and evidence (including expert evidence) in relation to rehabilitation.
The respondent’s imprisonment – relevant aspects
When the Director’s application came on for hearing in July 2015, the respondent was serving his sentence at the Datjala work camp in Nhulunbuy. He was 62 years old and had been imprisoned since 29 August 1994.
I set out below some extracts from the affidavit of the respondent:[17]
2. I am serving my life sentence for the murder of MC. I own up for what I did. I take full responsibility. I’m ashamed of myself and I hate myself for what I’ve done. I think about what I did every day. I will often think about it while I sit by myself, particularly when it is quiet.
3. I feel no good within myself about what I did. I am angry at myself and I ask myself “Why did you do it?”. I don’t have an answer to that question. Any answer that I try to come up with is just not good enough. I know that I should not have done it.
4. At the time I had pressures at home in Katherine with my wife and kids. I had pressure from MC too. I felt torn between the two of them. It was a very volatile relationship with MC and a volatile time of my life and I just panicked. But really anything I say about why I did it is not good enough.
The respondent’s affidavit disclosed that he engaged in the Sex Offender Treatment Program in prison from 31 August 2009 to 30 March 2010. He then engaged in further individual treatment, attending weekly for some 15 sessions. The focus of the individual treatment was exploration of his violent offending behaviour, to identify triggers and coping strategies for the future.[18]
The respondent had pleaded not guilty to the murder of the deceased. However, he deposed that after he had completed the programs, he abandoned all attempts at denying his offending conduct and admitted what he had really done.
The respondent set out in his affidavit details of work and vocational training while in prison. For his first four years, he was a prisoner in ‘B’ Block and did not engage in any activities or programs. After four years, he decided that he would try to do something. At his request, he was given a job as a barber. He did that work for about four years. He subsequently transferred to ‘H’ Block and obtained work in the kitchen. He became head cook, in charge of about 15 other prisoners.
In or about 2004, the respondent assumed a greater degree of responsibility, being made the foreman of work parties. His duties included selecting prisoners for teams engaged in work outside the prison.
The respondent worked outside the prison, on the railway at Larrimah. The task was to clear the old railway line and burial ground. The respondent camped in Larrimah for about eight days. He did not abscond. He next worked at Adelaide River, on the construction of a footpath from the service station to the War Cemetery. He also worked on Cape Arnhem road, cutting trees and making paths and lookouts for tourists. For that job, the respondent and other prisoners camped in a remote location, without prison officers. The respondent also worked at Lake Evella, doing clean up as part of ‘Cleaning Australia’. After that, he travelled to Ramingining, as part of a work party. The respondent also carried out site preparation for the 2012 and 2013 Garma festivals.
In April 2013, the respondent was transferred out of the prison to a mobile work party in Nhulunbuy. However, he became involved in a dispute with a supervisor in about September 2013 and was transferred back to the Darwin Correctional Centre. He was subsequently allowed to return to Nhulunbuy in January 2014.[19] At the time of the hearing, the respondent had been in Nhulunbuy continuously for about 16 months. In that time, he had engaged in paid work for about five months, with Zenco Construction in Nhulunbuy.[20] He then worked for the Gumatj Corporation doing house maintenance, working 7 am to 4.30 pm, Monday to Friday. He had a vehicle allocated to him, and would drive from the work camp to the work site and back again each day, picking up workers from Yirrkala and Ski Beach to take them to and from work.
The respondent was, in effect, a leading hand or foreman. He worked under the direction of a manager. His intention was to keep working for the Gumatj Corporation. On weekends, he had day leave, in respect of which he adhered to the conditions imposed. He described his Saturday activities as preparing equipment for the next week, sharpening chainsaws and carrying out maintenance. On Sundays he would go fishing or go to an outstation, at the invitation of men he worked with. In his spare time he would paint. If his paintings were sold, he would receive 49% of the sale price and the balance would go to a fund set up for victims of crime.
The respondent completed a number of vocational educational courses, including literacy and numeracy, First Aid, and licences for scaffolding, forklift and bobcat. He also qualified for a Certificate IV in Construction.
The respondent stated these reasons for wanting to apply for parole:
34. I want a chance at parole because I want to contribute to the community. I would like to stay out here in Nhulunbuy and keep working. I've got a good job here with Gumatj and they want me to stay on. I want to run my own crew for Gumatj. I’m teaching the young fellas things like how to care for machinery and how to fix engines
40. I know I’ll be on my sentence for the rest of my life. But I would like to have a chance to ask for parole. I’m getting older now but I still think I can do something to make a contribution through my work and teaching the young men out here.
The respondent’s evidence was supported by the evidence of a number of persons, referred to in [56] to [60] below.
A letter written by an officer of the Department of Correctional Services confirmed that the respondent had been found suitable to work at the Datjala Work Camp, Nhulunbuy, because of his past work performance and good behaviour working as a volunteer in Community Service Work Parties from 2012. The confirmed details of all work parties were: 2012 Garma festival, four weeks; 2012 Larrimah Railway line, one week; 2013 Garma festival, four weeks; 2013 Adelaide River, three months, and 2014 Datjala work camp, 13 months.
The letter read, relevantly, as follows:
The general observation of Prisoner Horrell is [that] he is a mature aboriginal adult male with old school values, suitable for release. I have personally supervised this prisoner for nine months and I have always found him to be very compliant. He has never demonstrated aggression and is a respectful individual who is intelligent and has a high degree of common sense. Prisoner Horrell has shown strong leadership skills which has worked to the advantage of the work camp. He has also mentored young indigenous prisoners and guided them to achieve successful outcomes.
During this time Prisoner Horrell has demonstrated exemplary conduct with no causes for concern and has acted in a manner that brings credit to our Department. Prisoner Horrell has a good working knowledge of all locations mentioned above and has had many opportunities to abscond.
The respondent achieved an ‘open security’ classification in May 2014, after his return to the Datjala Work Camp in January 2014.
The Operations Manager of the Gumatj Corporation Ltd provided a character reference for the respondent in April 2015, as follows:
Eddie has been a valuable member of our team for approximately five months and in this time has worked closely with up to 10 young Yolngu men. Eddie has established positive rapport with everyone he interacts and is identified as a leader among his peers.
Eddie is a positive role model within the team and demonstrates a strong work ethic, pragmatic approach to solving issues, good attendance and a great sense of accountability, all skills which by virtue of his personality have transferred to our impressionable young staff.
I make no reservation in advising Eddie’s participation has been crucial to Gumatj’s success in maintaining two commercial contracts with Rio Tinto. On many occasions I have had to personally depend on Eddie to get the job done and consequently have absolute trust in his commitment to achieving positive outcomes.
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]
Professor Woods noted that the respondent had not used alcohol or illicit substances for more than 20 years and had expressed the intention not to resume the use of those substances. He considered that the “stable and supportive environment of the Datjala Work Camp and local community [had] enabled the respondent to develop a more intact self-concept and work through many of his attachment issues”.
Professor Woods reviewed the factors which had been found to provide a reliable indication of the risk of future offending, and determined that the respondent was in the low risk category. I say more about that in [69] to [72] below.
In his concluding comments to his first report, Professor Woods wrote as follows:
In my opinion, Mr Horrell is highly unlikely to present a risk to himself or indeed any member of the community in the event that he is ultimately granted parole provided he a) continues to maintain his long-term abstinence from alcohol and drugs and b) continues to reside at Nhulunbuy and remains mindful of and maintains his responsibilities and (associated) respect of being an elder in the local Indigenous community.
Notwithstanding his assessed low level of risk of future offending, I would, with respect, recommend that Mr Horrell, if ultimately successful in gaining parole a) be required to continue to reside at Nhulunbuy where he has strong and stable community support, b) be subject to random supervised drug and alcohol use screening and c) be periodically monitored by an officer of the Probation and Parole Service.
In a supplementary report dated 20 September 2015, Professor Woods explained the principles which underlie “Best Practice” risk assessment and confirmed that the risk assessment he carried out in relation to the respondent took into account the respondent’s psychosocial history, his history of offending behaviour, and included the assessment of both static and dynamic risk factors. He utilized the risk assessment instrument known as HCR-20 (Version 3), and another instrument or ‘risk inventory’ called the Violence Risk Scale (VRS - 2nd edition). “Best Practice” risk assessment recognises the relevance of historical factors (the offender’s criminal acts or past conduct) but incorporates structured clinical judgment based on such dynamic factors as (1) the lapse of time, (2) the offender’s participation in relevant treatment/rehabilitation programs and (3) the age of the offender at the projected time of release from the controlled environment of prison (or other facility) into the community.
Professor Woods explained that consideration of the age of an offender at time of release is particularly important because symptoms of personality disorder ameliorate with age and often “burn out” or at least have begun to burn out by the time the person reaches his late 40s, and thus a personality disorder becomes less of a risk factor. Moreover, an individual’s level of physical functioning, including sex drive, decreases with age. Static assessment tools or instruments take into account age at time of release.[25] The authors of the several Static actuarial risk tools referred to research which had consistently documented “the meaningfully lower recidivism rates” of convicted sex offenders who are 60 years of age or older at the time of release, compared to those released in their 30s or 40s, or even those released in their 50s.
Consideration of the respondent’s likely age at time of release and demonstrated appropriate behaviour while working in the community were ‘dynamic factors’ to which Professor Woods gave greater weight in relation to the question of future risk than the fact that he had offended so terribly at the age of 17 and then at the age of 41. Professor Woods relied on Best Practice assessment models for offender management, as distinct from assessment based only on the seriousness of the offending conduct in the past. He stated that the respondent’s “now positive social interaction, non-deviant community functioning, non-criminal orientation and attitude in general reflect a substantial change from his previous i.e. historical antisocial behaviour”.[26]
Although counsel for the Director questioned, appropriately, whether Professor Woods had underestimated the significance of the respondent’s offending history, I considered that the expert evidence contained in Professor Woods’ supplementary report satisfactorily resolved the concerns raised. Moreover, the Director did not call expert evidence to challenge the opinions expressed by Professor Woods.
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.
The fact of the respondent’s escape was obviously a matter which I had to take into account in considering the Director’s application and the evidence relied on by the respondent. However, given (1) the circumstances leading to the respondent’s decision to escape, (2) the respondent’s motive in escaping, and (3) the events after the escape (in particular, the fact that the respondent did not further offend, and surrendered to Police after a relatively short time), I determined that the escape did not affect my considerations under s 19 of the Act.
As stated in [5], I was not satisfied that the level of the respondent’s culpability in the murder of the deceased was so extreme that the community interest in retribution, punishment, protection and deterrence could only be met if he were imprisoned for the term of his natural life without the possibility of release on parole. Extreme it clearly was, but given his significant progress to rehabilitation and reliable evidence as to his low risk, I did not consider that it was extreme to the extent that the respondent should be forever denied the opportunity to apply to the Parole Board for release on parole.
However, I was satisfied that the objective and subjective factors affecting the relative seriousness of the murder warranted a longer non-parole period than the 25 years specified in s 19 (7)(c)(i) of the Act. Accordingly, I fixed a non-parole period of 27 years in accordance with s 19 (4) of the Act. That reflected my assessment of the minimum term of imprisonment that justice required the respondent to serve.
Having fixed a non-parole period of 27 years in respect of the murder, I made an order extending that non-parole period by seven months, pursuant to s 60A (1) Sentencing Act 1995, to incorporate the seven-month sentence imposed for the escape from lawful custody. The consolidated non-parole period is to date from 29 August 1994.
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[1]The hearing of the application took place on 30 July 2015. Subsequently, with the consent of counsel for the Director, the respondent’s counsel filed further written submissions and, in September 2015, a supplementary expert report (Associate Professor Stephen Woods).
[2]Sentencing (Crime of Murder) and Parole Reform Act, s 19(1)(a)(ii).
[3]Sentencing (Crime of Murder) and Parole Reform Act, s 19(1)(a)(i), (3) and (4).
[4]Sentencing (Crime of Murder) and Parole Reform Act, s 19(1)(a)(i) and (3).
[5]Sentencing (Crime of Murder) and Parole Reform Act, s 19(3)(d), s 19(7)(b).
[6]Sentencing (Crime of Murder) and Parole Reform Act, s 19(3), s 19(7)(c)(i), s 19(7)(c)(ii).
[7]Sentencing (Crime of Murder) and Parole Reform Act, s 19(4), s 19(7)(c)(ii).
[8]29 August 1994.
[9]Sentencing (Crime of Murder) and Parole Reform Act, s 19(5).
[10]For reasons which conclude in [82] below, the respondent is subject to a non-parole period of 27 years and seven months, dating from 29 August 1984.
[11] Horrell v The Queen (1997) 6 NTLR 125.
[12]Sentencing of the respondent for three counts of sexual intercourse with JM without her consent, on 28 August 1994.
[13]Leach v The Queen [2007] HCA 3; 230 CLR 1 at [17].
[14]At [17]-[19].
[15]Leach v The Queen [2007] HCA 3; 230 CLR 1 at [38] per Gummow, Hayne, Heydon and Crennan JJ.
[16]R v Leach (2004) 14 NTLR 44 at [67]-[68]. His Honour’s approach to the interpretation of s 19 was approved by Gleeson CJ in Leach v The Queen at [19].
[17]Affidavit of Edward James Horrell, affirmed 7 May 2015.
[18]The Darwin Correctional Centre Institutional Report dated 14 April 2015 confirms that the respondent completed the Sex Offender Treatment Program in March 2010. A specialised assessment then carried out recommended that he participate in Individual Treatment “to address further risk and need”. He commenced Individual Treatment in September 2012 and completed that treatment in December 2012. There were no recommendations for further treatment.
[19]The Darwin Correctional Centre Institutional Report dated 14 April 2015 confirmed that the respondent was transferred to the Mobile Work Party at Gove, Nhulunbuy in April 2013 for the purpose of employment on the work party. His prisoner classification was ‘Low 2’ prior to and at the time of transfer. In September 2013, after he was “deemed to be purposefully causing trouble” at Djatala Work Camp, his prisoner classification was altered to ‘medium security’ and he was withdrawn from the Djatala Work Camp. However, after demonstrating good behaviour, attitude and conduct for a period of three months, he was re-classified ‘Low 2’ in December 2013 and returned to Djatala Work Camp in January 2014.
[20]The Darwin Correctional Centre Institutional Report dated 14 April 2015 confirms that the respondent commenced paid employment with Zenko Construction in March 2014. He held the position for approximately five months, and was terminated as a result of a downturn in the local construction industry. He received positive supervisor reports and worked at a number of Nhulunbuy locations, with limited supervision.
[21]Report p. 4/5.
[22] Report p. 9.
[23]Report p. 17. The sentencing remarks of Mildren J are extracted in [37] above.
[24]Report p.17
[25]Prof Woods referred to Static-99, Static-99R, Static-2002 and Static-2002R, the most commonly used actuarial risk tools for estimating sexual behaviour recidivism risk. He states that the Static-2002 was revised in 2012 with a new age weighting for “Age at Release” – supplementary report page 8.5.
[26]Supplementary Report, p 12.5.
[27]Professor Woods referred to the respondent's participation in offender treatment programs, and the reports and comments of the psychologists and facilitator who had conducted the programs, at page 12 of his earlier report.
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