(b) detention in accordance with an order under section 392 (2) of the Criminal Code."

"12B - (1) Where a court imposes a sentence of imprisonment on a person (not being imprisonment for the term of the person's natural life or detention in accordance with an order under section 392 (2) of the Criminal Code), either upon the conviction of the person for an offence or upon the determination of an appeal, or, on appeal, confirms the imposition of such a sentence, the court may, having regard to -

(b) the antecedents or character of the person; or

(d) that the person be not eligible for parole in respect of that sentence; or

(e) subject to subsection (2), that the person be not eligible for parole in respect of that sentence before the expiration of such non-parole period as is specified in the order.

(2) The non-parole period specified in an order under subsection (1)(e) in respect of a sentence of imprisonment to which section 12A(1) applies shall be not less than the non-parole period that, but for the making of the order, would be applicable, under that section, in respect of that sentence.

(3) An order made under subsection (1) shall be taken, for all purposes, to form part of the sentence to which it relates."

The sentencing court thus has a discretion either to deprive the offender of any eligibility for parole during the term of his sentence or to delay his eligibility therefor until some time after the elapse of one half of the sentence. In the event that the court does not choose to exercise that discretion, a prisoner sentenced to a finite term of imprisonment will automatically attain eligibility for parole after having served one half of his sentence.

"In my view the scheme of the Parole Act justifies the conclusion that prima facie a person who has been sentenced to a term of imprisonment is eligible for parole at the expiration of the period fixed by the Act and that the power to limit his eligibility for parole conferred by s12B should only be exercised when the judge imposing sentence is affirmatively satisfied that there exists sufficient reason why the accused should be deprived of his right to have the Parole Board consider his release on parole. I do not understand counsel for the applicant or the respondent to be arguing to the contrary of the substance of those propositions.

The provisions of s12B(1)(a), (b) and (c) of the Parole Act 1975 do not on their face limit the factors to which a judge may have regard when he is exercising the discretion conferred by that section but in my view nothing in the Act would suggest that Parliament was intending that a judge should take into account considerations which are not relevant to what are generally accepted as the principles and purposes of sentencing. In my view therefore in exercising his discretion under s12B a judge should have regard to the factors specified in s12(B)(1)(a), (b) and (c.), read in the light of the established principles and objectives of sentencing.

Those conclusions are reinforced by the conclusion reached by the High Court that the intention of similar legislation was 'to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence'. Per Barwick CJ, Menzies J Stephen J & Mason J in Power v The Queen [1974] HCA 26; (1974) 131 CLR 623 at 629 and re-affirmed in Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367. Notwithstanding that in that passage their Honours referred only to the 'circumstances of his offence' it is clear from other passages at pp 628 and 629 of their reasons that they also regarded 'deterring either the prisoner himself or others from crime' and the weight the judge gives 'to his estimate of the capacity of the prisoner for reformation' as relevant considerations which a judge was entitled to take into account in fixing a non parole period."

In exercising the discretion reposed in it, a sentencing court must consider (inter alia) what minimum time justice requires that the prisoner must serve, having regard to all the circumstances of his offence. That is a factor specifically addressed in the Act, s12B with its reference to "(a) the nature and circumstances of the offence". Time and again the courts have stressed it: Power v R (supra) at 629; Deakin v R (supra) at 367; Lowe v R [1984] HCA 46; (1984) 154 CLR 606 per Dawson J at 625. But the exercise of the discretion is not confined to that factor.

Where the crime is of a particularly serious nature, as in the case of murder, a sentencing court can be expected to give very careful consideration to the question whether the minimum period of 50 per cent of the finite term provided for by the Act in the absence of a direction from him to the contrary will represent the minimum term justice requires that the prisoner must serve and not be released even on parole. The figure of 50 per cent is an arbitrary one and may be appropriate in many cases; but each case must be individually considered. In Lennard v R [1984] 1 Qd R 1 at 10, Macrossan J (as he then was) said of the Queensland Offenders Probation and Parole Act 1980, which empowered the Parole Board to release prisoners on parole after the passage of time in accordance with the statutory formula, but subject to a power in the sentencing court to recommend the advance or delay of the time at which a prisoner would be eligible for parole, "a discretion is conferred by the legislation and the use of it should not be proscribed by any inflexible rules".

The learned judge at first instance expressed the view that:

"... murder is a uniquely serious crime and in most circumstances this fact alone would justify a sentencing judge in fixing a lengthy period of parole ineligibility in exercise of his discretion under the Parole Act, s12B. Such a view is consistent with the cases reviewed by Professor Warner in her Book, Sentencing in Tasmania, par9.710 and by Slicer J in In re Smith 66/1997. The fact that life imprisonment is no longer mandatory in no way diminishes the validity of this approach. The task of the sentencing court will be to determine the minimum term of imprisonment which is appropriate to achieve the joint goals of prevention, punishment and deterrence (see Bugmy v R [1990] HCA 18; (1990) 169 CLR 525). This minimum term should then be nominated as the period during which the offender is to be ineligible for parole."

One of the cases cited by Professor Warner in the passage referred to is that of R v Van Beelen (1984) 36 SASR 488 where King CJ said at 489:

"Before a judge, who is considering a non-parole period, proceeds to consider factors personal to the prisoner which might render him responsive to parole, he must determine the minimum term of imprisonment which a prisoner must spend in prison in order to satisfy the punitive, deterrent and preventive purposes of punishment. Murder is the most serious crime known to the law. The mandatory sentence prescribed by law is imprisonment for life. Any non-parole period fixed for the crime of murder must reflect the unique seriousness of that crime and the fact that the head sentence is imprisonment for life."

The learned sentencing judge may well have had that passage in mind when he made the above remarks; but although in this case the head sentence is a finite one and the Act provides effectively that subject to the discretion of the court the appellant would be eligible for parole after the expiration of half that term, his Honour's observations are, in my respectful view, equally valid. Although Bugmy v R (supra), to which he also adverted, is likewise a case involving the determination of a non-parole period in respect of a life prisoner, the High Court's dicta there are essentially a repetition of those made in earlier cases not involving life prisoners (eg, Power v R (supra), Deakin v R (supra) and Lowe v R (supra)) and have been held applicable in the subsequent case of Shrestha v R (1990 - [1991] HCA 26; 1991) 173 CLR 48 which again involved a prisoner serving a finite term. I see no occasion, therefore, to confine the dicta in Bugmy v R to cases where life imprisonment has been imposed.

In the present case, the learned sentencing judge determined a non-parole period of eighteen years as the minimum period of actual imprisonment to achieve the goals of prevention, punishment and deterrence. He in no way expressly misdirected himself in carrying out his task. The fact that in the majority of the relatively few cases to date of finite terms for murder the court has not imposed a higher non-parole period than that fixed by statute has not established any precedent in respect of the way he should approach the exercise of his discretion. In my opinion this was a proper case where the circumstances did justify the making of an order under the Act, s12B(e), notwithstanding that the gravity of the offence had already been taken into account in setting the head sentence. I am, however, troubled by the length of the non-parole period. A sentence of twenty-five years' imprisonment is, in my view, just punishment for this dreadful crime and if the appellant fails to persuade the Parole Board to release him on parole before its expiration, he will not have been unduly punished for it. I agree with the learned sentencing judge that the release of the appellant on parole after serving only twelve years six months' imprisonment would result in a penalty which would be significantly less than justice requires he should serve in prison. To deny him the possibility of release until he has served the full eighteen years, however, is a very severe penalty and considerably above the non-parole period set in a high percentage of the cases dealt with since the Act was amended to enable such orders to be made in murder cases. Only the cases of Curtis (eighteen years non-parole - thirty years head sentence) and Smith (twenty-five years non-parole - life imprisonment head sentence) equal or exceed this non-parole period and they were cases of particular depravity. Having regard to the appellant's age, his lack of convictions prior to the murder for violent conduct since he was fifteen years old, his mental background and his prospects for the future at the time of resentencing, I am of the opinion that the non-parole period of eighteen years set was manifestly excessive and that a lower term should be set. I would confirm the head sentence but substitute for the order that he not be eligible for parole before the expiration of eighteen years from 23 April 1986 one that he not be so eligible before the expiration of fifteen years from that date.

As a result of reading in draft form the reasons for judgment of the Chief Justice and Crawford J, I find it unnecessary to write reasons of my own. In common with the learned Chief Justice, I agree with the reasons of Crawford J for his conclusion that no error attended the imposition of a sentence of twenty-five years' imprisonment.

With respect to the issue of the non-parole period, I agree with the reasons of the Chief Justice and the order that he proposes be made.

By way of footnote, I just observe that at the time Gill v R 34/1990 was decided, the remission period for good behaviour was up to one third of the total sentence, if that sentence was more than three months' imprisonment. See Prison Act 1977, s40 and Prison Regulations 1985, reg48. Crawford J referred to this in his reasons for judgment in Gill at 8. The sentence in Gill's case was six years' imprisonment. If Gill received the maximum period of remission, he would have been released after serving four years in prison. The Parole Act, s12A(1) operated, absent any order from the sentencing judge to the contrary, to make him eligible for parole after serving three years' imprisonment. Thus, any order fixing a non-parole period could do no more than extend the period in prison by more than twelve months, at most, if the prisoner received full remission for good behaviour. Although there is ample authority to the effect that remission for good behaviour is an irrelevant consideration when fixing sentence (eg, Maguire v R (1956) 40 Cr App R 92; R v Menz [1967] SASR 329), fixing a non-parole period in the case of a sentence of less than -- say -- twelve years, at the time Gill was decided, was, in reality, often an exercise in futility. The present position is quite different. The remission period for good behaviour is limited to a maximum of three months (Statutory Rule 248/1993). This is so in the case of the appellant, even though the sentence for a term of years replaced the original sentence for all purposes. See Criminal Code Amendment (Life Prisoners and Dangerous Criminals) Act 1994, s10(1)(c).

On 5 April 1986 the appellant entered the home of a neighbour intending to steal. While in the house he stabbed her a number of times and she died of her wounds a few days later. After a trial he was convicted of murder and on 30 September 1986 he was sentenced to life imprisonment, which was the sentence then required by law. Subsequently he applied to be re-sentenced pursuant to the Criminal Code Amendment (Life Prisoners and Dangerous Criminals) Act 1994, s8(1). On 24 June 1997 he was re-sentenced to twenty-five years' imprisonment, to commence on 30 September 1996, which was the day upon which the original sentence of life imprisonment was imposed and not the day upon which the appellant was taken into custody for his crime which was 23 April 1986. It was also ordered, pursuant to the Parole Act 1975, s12B(1)(e), that he be not eligible for parole before the expiration of eighteen years. On 2 July 1997 the sentencing judge varied the terms of the new sentence so that the period of twenty-five years' imprisonment was expressed to commence on 23 April 1986 and the eighteen year period of ineligibility for parole was expressed to commence from the same date.

The appellant has appealed against both the sentence of twenty-five years' imprisonment and the parole ineligibility period of eighteen years. The grounds of appeal which were argued on his behalf were:

1 His Honour erred in the exercise of his discretion in sentencing the appellant to a sentence of twenty-five years imprisonment in that such a sentence was manifestly excessive in all the circumstances.

2 His Honour erred in the exercise of his discretion in ordering that the appellant not be eligible for parole in respect of the sentence of twenty-five years imprisonment before the expiration of eighteen years from 23 April 1986 in all the circumstances of the case including the facts that --

(i) he failed to give adequate consideration to the contents of the psychiatric report of Dr W Lopes dated 19 June 1997;

(ii) he gave undue weight to the principles of personal and general deterrence;

(iii) he gave undue weight to protecting the community by imposing a lengthy non-parole period;

(iv) he failed to give adequate consideration to the appellant's prospects of reform.

3 His Honour erred in the exercise of his discretion by giving consideration to the fact that a life sentence enables a prisoner to be taken back into custody for a parole violation for the balance of his life compared to a prisoner who receives a sentence for a fixed term of years.

The appellant was aged twenty-two years at the time of the crime and had appeared in courts on a number of occasions for crimes and offences, those appearances being in children's courts, courts of petty sessions and criminal courts. His record for offences of dishonesty was a bad one. A number of sentences of imprisonment for offences which included burglary and stealing were imposed between 1979 and 1984, the last being for a total of eighteen months' imprisonment on 12 November 1984. In all he had appeared in courts for twenty-five burglaries and twenty-nine stealings, and for single counts of motor vehicle stealing, attempted motor vehicle stealing and receiving. He had also been dealt with for other offences, about which I will say more later.

The deceased was aged fifty years and the mother of five adult children. She lived alone, in close proximity to the appellant. She knew him and had employed him on several occasions to cut her lawn and clean her car. The following is a version of the events given by the appellant to the police. At about 1am he went to the deceased's home with the intention of stealing money. He believed that she had about $200 in the house. He waited outside in the back yard for her to go to bed. After she had done so, he entered the house through a spare bedroom window, carrying a metal bar and wearing gloves which he had obtained from an outside cabinet. Once inside he proceeded to unsuccessfully search the house, looking for money. At one stage he smoked one of the deceased's cigarettes in a spare room, and then continued with the search. The deceased was fast asleep throughout all of this activity. Eventually he saw her handbag through the doorway of her bedroom and determined to take it. He went to the kitchen and took possession of a large carving knife and returned to the bedroom. He tripped and then ran out the back door, where he sat for a while to see what the result of his tripping would be. He then returned into the house, went to the bedroom and grabbed the deceased's handbag. He was about to leave the house when he remembered that he had left his shoes in the spare bedroom. He claimed to the police that he bumped into the deceased in the passageway when he was running to retrieve his shoes and that she was accidentally stabbed in the arm.

The Crown did not accept that the stab wound to the arm was an accidental one, and pointed to a doctor's opinion that the wound was not of the character of an accidental one, but was deep. There was in any event a struggle between the two persons, with the deceased lying on her bed and attempting to prevent the appellant causing her harm. In the course of that struggle she was stabbed five times. The major stab wounds were three to the anterior chest, one to her right armpit and two to her right arm. There were also defensive wounds to her thumbs. The appellant then left the house. "I never run so fast in me life," he told the police. He returned to his own house, hiding his blood-stained windcheater and the knife on the way. He had managed to obtain $20.90 from the handbag.

In answer to a question by police as to his reason for carrying the knife he said "just in case she woke up". Later he said "to protect myself if anybody else came into the house and I had it because she may have seen me before and recognised who I was and I had the knife to frighten her". The obvious inference is that he armed himself with the intention of doing harm to the deceased should it become necessary to prevent his identification.

No doubt in considerable pain and agony from about 2.20 until about 4am, the deceased managed to struggle out of the front of her house and attract attention. At about 4am a number of persons heard her screams. The appellant was the first person to reach where she was lying on her front porch. He spoke to her and returned to his home where he arranged for his mother to call an ambulance. He then returned to the deceased. She asked him to contact her friend to come to her aid. He went to the friend's house and returned with him to the deceased, who was by this time being treated by persons with first aid experience. An ambulance took her to hospital where, as a result of a wound to her liver, she died on 5 April 1986. The appellant attended her funeral, "because I cared so much for her", he said to the police.

While still on her front porch the deceased, in front of witnesses, said that the appellant had been her attacker. However when in hospital she retracted the accusation. The appellant had denied involvement, but upon the police locating and identifying his blood-stained windcheater, and also locating the bent carving knife, he voluntarily took himself to a police station and confessed to his involvement in her death. Thereafter he cooperated fully with police officers.

In his comments when re-sentencing the appellant, the learned judge observed that only the appellant and the deceased had known how the wounds came to be inflicted, but accepted that the appellant had no thought of murder when he entered the house. His Honour sentenced upon the factual basis that the appellant either intended to cause death when he stabbed the deceased or knew that death was a likely consequence of his actions.

Regard was paid by the learned judge to a recent report from a forensic psychiatrist, Dr W P Lopes. There was no evidence of mental illness. There was still some degree of immaturity and lack of sophistication. The appellant had acquired reading and writing skills which had given him greater self-confidence than when he was first sentenced. Dr Lopes expressed his "prognosis" as "hopeful". The learned judge thought that Dr Lopes' report provided no evidence of a dramatic character transformation but suggested that the element of public risk was somewhat less than it was in 1986.

Counsel for the appellant drew the attention of this Court to thirteen other sentences, both original sentences and re-sentences, which have been imposed for murder since the commencement of the operation of the Criminal Code Amendment (Life Prisoners and Dangerous Criminals) Act 1994 on 5 July 1995 and submitted that twenty-five years' imprisonment for the appellant's crime was manifestly excessive having regard to what he referred to as a discernible sentencing pattern which has begun to emerge. He also submitted that three distinct classes of murder have emerged since the enactment of that legislation,they being:

1 Murders committed in circumstances of diminished responsibility, either due to mental retardation or significant immaturity.

2 Murders involving angry or jealous confrontations or the use of excessive force in robberies.

I reject such a simplistic approach and classification of murder. I certainly do not consider that murders involving angry or jealous confrontations may appropriately be bracketed with murders resulting from excessive force in robberies as one class or type of murder. A murder in the form of a crime of passion or anger bears little comparison with a deliberate act of violence committed in the course of a robbery or in the course of a burglary by an armed man against a defenceless householder.

Nevertheless I accept that although there have only been thirteen other sentences for murder since the new sentencing legislation commenced to operate, some guidance as to the appropriate level of sentence in a particular case may be found in those sentences and I have considered all of them in the course of determining how this appeal should be resolved. It should be observed that murder in the form of a deliberate stabbing of a defenceless householder in the course of a burglary late at night, committed by the burglar out of a concern that the householder might recognise him and that he may consequently be charged with burglary, is an appalling crime demanding a significant term of imprisonment. It is my view that twenty-five years' imprisonment was within the appropriate range and not manifestly excessive.

I turn to a consideration of whether the order that the appellant be ineligible for parole until he has served eighteen years of that sentence was an erroneous exercise of the sentencing discretion. Ground 3 arises out of a passage in the learned judge's comments on passing sentence about a matter which his Honour regarded as important when determining whether to make an order with regard to parole. In that passage, his Honour placed particular emphasis on the fact that a prisoner serving a life sentence, under the law both before and after the passing of the 1994 Act, may well be released from prison on parole after a number of years but will remain liable to be taken back into custody for the rest of his life and will be likely to be reclaimed into custody for the rest of his life in the event of committing any further serious offence, whereas on the other hand, a prisoner serving a finite term of years will no longer be liable to be reclaimed once that term has passed. That of course is the law which is to be found in the Parole Act 1975. His Honour classified this case as one of murder committed, not from a motive such as personal revenge or hatred of an individual, but by callous and almost casual acts of violence apparently designed to prevent identification of the appellant as a burglar and thief and as one of an almost impersonal act committed in the course of a well established pattern of criminality such as burglary, a circumstance in which violent contact between the offender and an unlucky householder was an obvious risk. His Honour expressed disquiet about releasing the appellant back into the community and spoke of the risks involved if "convicted murderers are released back into the community without effective controls being placed upon them". His Honour's disquiet did not result in a sentence of life imprisonment being imposed and it is not possible to ascertain how it influenced the making of the orders which were in fact made.

The learned judge also made the following comments:

"It cannot be assumed that Parliament, in giving judges greater control over the actual disposition of murderers, intended that there should be a significant relaxation of the principal[sic] of retribution and deterrence which a sentence of life imprisonment carries with it. That a practice had grown up of releasing convicted murderers on parole after 10 or 12 years cannot, in my opinion, be used as a legitimate argument to bolster a contention that sentences to be imposed under the new legislation should be tailored so as to achieve a similar outcome for the future, particularly if the release from custody also shortens the period of effective control which may be exercised by the parole authorities from that time onwards. Life prisoners should not be encouraged to think that an application for re-sentencing will necessarily achieve a reduced period actually spent in gaol or secure other personal benefits."

As to the first sentence in that paragraph, I am not sure that I agree. Giving judges a power to impose imprisonment for a term of years and not only life imprisonment, suggests that Parliament intended there to be a relaxation in the level of retribution and deterrence to be expected from future sentences for murder. It is not readily apparent why the learned judge referred to the "practice ... of releasing convicted murderers on parole after 10 or 12 years" which was, I presume, a reference to what his Honour believed was a practice prior to the enactment of the Criminal Code Amendment (Life Prisoners and Dangerous Criminals) Act 1994. It was a matter to which his attention was directed in re Williams (1995) 2 Tas R 294 but it was not raised in argument by counsel in this case and did not require attention.

I am unable to conclude that the learned judge was in error when he placed importance on the fact that a life sentence enables a prisoner, for the rest of his life, to be taken back into custody for a parole violation, whereas a prisoner who is sentenced to a fixed term of years will not be liable to be recalled once that term has expired. It was not an invalid point and not knowing the extent to which it influenced his Honour to make the orders he in fact made, no error is ascertainable. Later in his comments the learned judge said that he was not confident that sentences which had been imposed since the 1994 Act "necessarily take account of ... the unfettered freedom which the offender sentenced to a finite term ultimately enjoys", suggesting perhaps a begrudging acceptance of the new sentencing provisions, but that is merely speculation on my behalf and, as I have said, I am unable to find specific error in what his Honour said.

In considering the question of parole the learned judge said that it was his opinion that murder is a uniquely serious crime and in most circumstances that fact alone would justify a sentencing judge in fixing a lengthy period of parole ineligibility under the Parole Act 1975, s12B. Although it has not been made a ground of the appeal, it is my respectful view that his Honour erred in taking that position. Firstly, I agree with Green CJ in Gill v R A34/1990 at 1 that the scheme of the Parole Act 1975 justifies the conclusion that prima facie a person who has been sentenced to a finite term of imprisonment is eligible for parole at the expiration of the period fixed by the Act and that the power to limit that eligibility should only be exercised when the judge imposing sentence is affirmatively satisfied that there exists sufficient reason why the accused should be deprived of his right to have the Parole Board consider his parole. There is no statutory warrant or principle for excluding a particular crime from that prima facie position. Secondly, what was said by his Honour is not borne out by the practice of judges of this State since the Criminal Code Amendment (Life Prisoners and Dangerous Criminals) Act 1994 commenced. In the majority of cases of finite terms of imprisonment for murder no order has been made with respect to parole. Thirdly, his Honour considered that his view was consistent with the cases reviewed by Professor Warner in Sentencing in Tasmania, par9.710 and by Slicer J in re Smith 66/1997, but with respect those cases concerned the fixing of non-parole periods for murderers sentenced to life imprisonment and do not support what his Honour said. His Honour also claimed support from Bugmy v R [1990] HCA 18; (1990) 169 CLR 525, but it also was a case about setting a minimum term for parole eligibility with respect to a murderer serving a life sentence.

A non-parole period of eighteen years is equivalent to the minimum non-parole period for which the Parole Act 1975 provides in the case of a prisoner sentenced to imprisonment for thirty-six years. When viewed in that light the order made by the learned judge was particularly severe. In any event I do not consider that the circumstances of the case justified it and I regard the order made as excessively harsh, to the point of error. It cannot be overlooked that when he was fifteen years of age the appellant appeared in the children's court for one count of robbery with violence and four counts of assault with indecent intent, but that was some years before he committed the murder and there was no evidence enabling a conclusion that he had a proclivity for violence. He had no other appearances for crimes of violence until he committed the murder at the age of twenty-two years. By that time he was plainly a committed burglar and thief, but that is all.

That the circumstances of the murder itself ought to be categorised as bad has largely been reflected in the head sentence of twenty-five years' imprisonment. At the time of the crime he was aged twenty-two years with no evidence of mental illness and a borderline IQ, with some degree of immaturity and a lack of sophistication. By the time he was re-sentenced there was still some degree of immaturity and lack of sophistication but nevertheless Dr Lopes was "hopeful" concerning the future. The learned judge concluded that the element of public risk from the appellant was somewhat less than it was in 1986.

It is my view that the circumstances did not justify the making of an order under the Parole Act 1975, s12B(1)(e). This is a case for which the provisions of s12A(1) ought to be allowed to apply, that is to say the appellant should become eligible for parole after having served one half of the period of the sentence. It will then be a matter entirely for the Parole Board to determine whether it is appropriate to release him on parole, having regard to the interests of the public and the interests of the appellant and if the Board is satisfied that it is proper to do so.

I would therefore allow the appeal to the extent of quashing the order that the appellant be not eligible for parole before the expiration of eighteen years.