ASP v R - [2007] NSWSC 339 - NSWSC 2007 case summary — Zoe

NSWNSWSC

ASP v R

[2007] NSWSC 339

Supreme Court of NSW|2007-02-23|Before: Johnson J, Mr P, Hunt J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2007-02-23

Before

Johnson J, Mr P, Hunt J

Source

Original judgment source is linked above.

Judgment (149 paragraphs)

[1]

The Applicant pleaded guilty to all counts on the indictment. 42 At the sentencing proceedings, the Crown called Detective Sergeant Anthony, Detective Sergeant Myers and Dr William Barclay to give evidence. A report of Dr Barclay dated 27 September 1988 was tendered. Dr Barclay had interviewed the Applicant at the Metropolitan Remand Centre, Long Bay on 13 September 1988. At the insistence of the Applicant, the interview took place in the presence of the Applicant's wife, Mrs Y. Dr Barclay reported that the Applicant told him that "speed and alcohol triggered it off - and problems in myself as well". The Applicant described regular use of cannabis. Dr Barclay said (page 3 of report): "The only mitigating circumstance one can see in this offence is [ASP's] use of amphetamine or an amphetamine type substance intravenously in the months leading up to the time of the offence. He describes symptoms that are consistent with amphetamine abuse and at times the development of some paranoid ideas and he describes a state of mind that approaches a mild degree of dissociation when he says 'it was like my mind was knowing what was happening but I seemed to have no feeling of any kind'. There is nothing, however to suggest that at the time of the offence there was any impairment of his ability to form the intent to commit the offence nor that there were any paranoid ideas influencing his behaviour at the time and in particular influencing his behaviour with respect to the actual offence. The Record of Interview is quite clear and there is nothing in that record of interview, nor was [ASP] able to tell me anything in my interview with him to suggest any influence by amphetamines played a part in the commission of this offence. I note that [ASP] has a previous offence for threatening to inflict actual bodily harm with intent to have sexual intercourse and having sexual intercourse without consent in 1983. I note that in 1982 there is any offence of sexual assault and there are a number of prior offences of assault and then a number of motor vehicle offences." 43 The Applicant's counsel called the Applicant's wife, Mrs Y, and Dr Rod Milton to give evidence at the sentencing proceedings. A report of Dr Milton dated 10 August 1988 was tendered in evidence. Dr Milton stated (page 1 of report): " [ASP] informed me that he sexually assaulted and killed a woman at Penrith after having been using amphetamines for some months. He remembers the occurrence well, although he was reluctant to talk about it. He said 'It's just like I was turned off - it's hard to explain, there were no feelings or emotions'. He remembers seeing the woman in the street and he assaulted her and took her into his car.' He would not proceed with a description of the event after that but said he was ashamed of what happened and is going to plead guilty because he believes he did wrong and has been converted to the Christian faith and wants to accept responsibility for what he did. He was upset when telling me this." 44 The Applicant told Dr Milton that he had married three months before August 1988 whilst in gaol, and had known his wife for over a year. 45 Dr Milton expressed the following opinion in his report (page 2): "The offences occurred after a period of particularly heavy use of amphetamines. The prolonged use of these drugs can certainly produce emotional disorders, particularly paranoid states. While [ASP] did not show clear evidence of being paranoid, his mental state certainly appears to have been altered in that he felt out of touch with himself, and unusually lacking in emotion. It is possible these effects were a result of the use of the stimulant drugs.

[5]

Those who came to her help described [LB] as dazed and incoherent. A doctor at Westmead Hospital examined her and has described numerous fresh superficial scratch marks over her whole body which were consistent with very recent violence. There was also a laceration to her neck. Her hymen had recently been torn. The forensic biology examination disclosed semen in her vagina. [LB] had not previously had sexual intercourse." 49 After reciting the facts concerning the abduction, sexual assault and murder of KS, Hunt J turned to the issue whether the Applicant was affected by drugs at the time of the offences (remarks on sentence, page 5): "An issue was raised as to whether, at the time when he murdered [KS] , the prisoner was suffering from the effects of amphetamines. According to the history given to Dr Barclay who was called by the Crown, the prisoner had been abusing drugs for some time. That evidence by Dr Barclay is evidence in favour of the prisoner. There is also the evidence of his wife to the same fact. But the prisoner did not tell Dr Barclay that he had injected speed (as it is known) on that particular day, nor did he tell the police, to whom he specifically denied that he had been affected by either drugs or alcohol at the time of the murder. He did tell Miss Scott, a drug and alcohol worker in the gaol system, that he had used speed and that he had consumed a large amount of alcohol on the morning when he killed [KS] but that report was tendered by the prisoner himself so the history is not evidence in his favour. That evidentiary position is correctly conceded by his counsel, who stated that he was unable to prove that fact. In other words, he was unable to do so without calling his client. I am satisfied that the prisoner was not affected by any drugs or alcohol at the time of the murder." 50 Hunt J recited the Applicant's criminal history in the following terms (remarks on sentence, pages 4-5): "The prisoner, who is now twenty eight years of age, has a very long record of offences stretching back to 1976. For the first few years, those convictions are frequently related to motor vehicle stealing and illegally using them, and driving them negligently. There are also a large number of break enter and steal convictions. There is one conviction for escaping lawful custody and one conviction for absconding. There is one conviction for driving with the prescribed content of alcohol in his blood, and one minor conviction for possessing Indian hemp.

[28]

The Applicant Admits Further Offences Committed in September 1987 69 On 9 January 1990, police at Bass Hill Police Station received a Christmas card containing a letter from the Applicant. The letter included the following: "My name is [ASP] . I am currently serving a 20 year sentence. When I finish that I begin a life sentence. I am writing to confess to a crime I committed in, or somewhere near, your area. Personally, I cannot see any point in doing this, because my sentence is so big now, it is unlikely I would receive any further time, and it would run concurrent to my life sentence. Plus the costs factor. However, I have since become a Christian and the Lord (I feel) is urging me to confess this crime. I wont be very helpful with details, as it was over two years ago and I was very drunk. The crime - I took a male, and female to an area (I can't remember where) and I raped the woman, then I left them otherwise unharmed. The only thing I can remember, was her name was [T] . Unfortunately, I can't remember anything apart from what I told you. If you wish to take this matter any further, I am at Long Bay Gaol." 70 Police were in possession of statements dated 13 September 1987 from TI, a 16-year old girl, and her boyfriend, AF, then 18-years old, concerning offences committed against them on 12 September 1987. 71 At about 12.15 am, on 13 September 1987, TI and AF had returned to premises at Yagoona after having been out together for the evening. They drove their vehicle into the car park area of the units, and were sitting in the vehicle talking when they noticed a sedan pull up directly behind their vehicle. The Applicant and another unknown male person were in the sedan. 72 The Applicant and his male companion approached the victims' vehicle, and identified themselves as police officers from the Drug Squad. The victims were ordered to leave their vehicle. At this time, AF asked to be shown identification. The Applicant produced a black coloured replica handgun and, at the same time, the unknown male person punched the victim once in the head. Both victims were then ordered into the Applicant's vehicle and, with the Applicant driving, were driven around the Bankstown area for a period of about 20 minutes. The victims were unable to get out of the Applicant's vehicle as, at the time that they were placed in the vehicle, the Applicant removed all of the buttons from the door locks. 73 The Applicant then drove the victims to a reserve at the corner of the Hume Highway and Johnson Road, Bass Hill. The victims were ordered from the vehicle and AF was made to lie face down on the ground whilst the Applicant stood over him pointing the replica handgun at him. The Applicant's accomplice forced TI into the bushes about five metres away from the vehicle. TI was forced to remove her clothing and was then forced to have sexual intercourse with the accomplice. At the same time, the Applicant had removed the wallet from AF at gunpoint, and removed $10.00 from the wallet which he kept. 74 The accomplice then approached the Applicant and took the gun from him. He then stood over AF, pointing the gun at him, whilst the Applicant went over to TI, who was lying naked and sobbing on the ground. The Applicant then forced her to have sexual intercourse with him. The Applicant and his accomplice then told both victims to get out of the area and not to tell anyone what had happened otherwise they would be shot. The Applicant and his accomplice left in their vehicle. The victims walked a short distance to houses and reported the matter to police. 75 In the course of a record of interview with police on 19 January 1990, the Applicant said that he had sent the letter to the police station as he had "become a Born Again Christian and by confessing to this incident I am doing what the Lord wants me to do" (Q/A11). When asked to identify his co-offender, the Applicant said "I don't want to say who it was because I feel that by doing this I would be going against what the Lord wants me to do" (Q/A25). 76 When asked whether there was anything further he wished to say about the matter, the Applicant said "just that I am sorry and that I hope that it brings some comfort to the girl and to the boy" (Q/A30). 77 On 4 May 1990, the Applicant was sentenced by his Honour Judge Gibson QC at the Liverpool District Court to four fixed terms of imprisonment for 10 years to commence on 4 May 1990 and to expire on 3 May 2000 with respect to offences of abducting a female to carnally know (two counts), assault and rob whilst armed and inflicting actual bodily harm with intent to have sexual intercourse with a third person.

[29]

Alleged Incident of Sexual Assault by the Applicant Upon Miss X in About 1993 78 As mentioned earlier, Mr Kintominas objected to evidence being adduced by the Crown on this application with respect to the incident of alleged sexual assault by the Applicant upon Miss X during a contact visit at Lithgow Correctional Centre in about 1993. It was submitted that evidence of sexual misconduct of this type was not admissible on a life sentence redetermination application. I ruled that the evidence was admissible. 79 In taking this approach, I rejected the submission of Mr Kintominas that cl.3, Schedule 1, 1999 Act, in effect, covers the field concerning the admissibility of evidence of misconduct (capable of constituting an offence) on a life sentence redetermination application. It is common ground that the Applicant has not been convicted of an offence with respect to this incident. 80 I accept that evidence of a sexual assault by the Applicant, after 1988, is relevant on an application such as this. 81 Clause 7(1)(e), Schedule 1, 1999 Act provides for the Court to have regard to any other relevant matter on a life sentence redetermination application. In my view, the incident of alleged sexual misconduct is relevant to this application. Counsel for the Applicant submits that the Court should accept that there has been a process of reformation and rehabilitation, and a change in values, on the part of the Applicant since 1987, illustrated by his Christian beliefs and his volunteering, in December 1989, of his offences against TI and AF. It is submitted for the Applicant that, despite his history of recidivism during the 1980s with respect to abduction and sexual assault offences committed whilst on parole, the Court may have regard to aspects of his character, revealed in the evidence, to support a conclusion that a process of reformation and rehabilitation is well under way. The Applicant points to aspects of his conduct after his crimes in September-October 1987, in support of a favourable conclusion that he is unlikely to act again upon his previously demonstrated propensity to commit sexual offences. 82 Evidence of an alleged sexual assault by the Applicant is also relevant to the need to preserve the safety of the community (cl.7(1)(b), Schedule 1, 1999 Act), and is capable of bearing upon the public interest (cl.6(4)(b), Schedule 1, 1999 Act). The latter provision is relevant, given the Crown submission that the present application ought be refused, and an order made under cl.6(1)(b) that the Applicant not be permitted to make further application for a period of 10 years. 83 It is clear that post-offence criminal conduct is relevant to an assessment of an offender's prospects of rehabilitation: Charara v Director of Public Prosecutions (NSW) (2001) 120 A Crim R 225 at 233-234 [37]-[40]; Douar v The Queen (2005) 159 A Crim R 154 at 179 [131]. If the Applicant had been convicted of sexual assault in 1993 upon Miss X, that conviction would be relevant and admissible in the present application. In circumstances where the Applicant points to post-offence good behaviour in an effort to establish that a process of reformation or rehabilitation is under way, I am satisfied that conduct such as that alleged here is relevant to a determination as to whether reformation has, in fact, occurred. 84 In this respect, it is highly significant that the Applicant has a history, prior to 1988, of recidivism with respect to offences of sexual assault. A further incident of sexual assault whilst the Applicant is in custody is relevant to a determination as to whether there has been reformation and rehabilitation of the Applicant. The fact that the alleged incident in 1993 is said to have been committed against the Applicant's five-year old daughter whilst he was in custody, and that this incident is significantly different to his earlier crimes committed against older females who were strangers does not, in my view, bear upon the question of admissibility. It is the allegation that a sexual assault has occurred which is relevant, at a time when the Applicant asserts that he has changed his values and his approach to life. 85 The principles in Weininger v The Queen [2003] 212 CLR 629 at 638-640 [25]-[32] are applicable. Uncharged criminal acts may be relied upon, if revealed by evidence, in an assessment whether an offender is a person of prior good character at a time when he stands for sentence for an offence. I am satisfied that similar reasoning is available where the Applicant claims reformation and rehabilitation after his crimes, and where it is alleged that there has been a sexual assault which, if it occurred, would militate against a finding of reformation or rehabilitation. 86 Accordingly, I was satisfied that the evidence concerning the alleged incident was relevant and admissible in the present application. I admitted the statement of Miss X dated 2 July 2004 and the statement of Mrs Y dated 28 May 2004.

[63]

Q. Was that what, 2005 or-- A. Yes. It was between 2004 between making this statement and towards 2005 with my first visit was in between." 96 Miss X said that she wanted to visit the Applicant in the decade following 1994 "but my Mum wouldn't let me" (T33.21). 97 Under cross-examination by Mr Kintominas, Miss X said that she understood that her description of the room in the prison where the assault occurred, and of the clothing of the offender, was apparently wrong (T34-35). Miss X told Mr Kintominas that she commenced counselling and therapy in about 1995, about a year after the incident (T36.14). 98 According to Miss X, it was before her mother went to visit the Applicant in 2005 that she (Miss X) formed the view that it had not been the Applicant who had assaulted her (T37-38). Miss X denied that there had been communication of any form between the Applicant and herself prior to her coming to the view that it was not the Applicant who had assaulted her (T38.45). She said that when she saw a photograph of her father, she realised that it was not him (T38.49). Miss X stated that her father had tattoos on his arms, but that the person who had assaulted her did not have tattoos (T39-40). Miss X said that she could not now recall the exact location of the assault or whether it was in prison (T40.35). 99 Miss X said that her conclusion that it was not her father who had assaulted her after all, had not been reached at the suggestion of any other person (T43.1-14). 100 In re-examination by the Crown, Miss X agreed that she could not see the offender's hand whilst it was up her dress, but said that she observed it (and the absence of tattoos) "when I walked up to him" (T46.1). Miss X denied that she was rationalising away something that happened to her because she would rather that the opposite was true (T47.12). Miss X was asked by the Crown (T47.41): "Q. Did you tell one of the solicitors that you were - Lynn Broad, you remember that name, Lynn Broad a solicitor from the prosecution office? A. No I don't remember speaking to someone, let alone saying that.

[81]

Submissions Concerning Miss X and Mrs Y 110 The Crown submitted that I should be satisfied that an incident occurred at Lithgow Correctional Centre in which the Applicant interfered sexually with his daughter in the manner alleged by Miss X in her statement of 2 July 2004 and that, thereafter, the Applicant confessed to Mrs Y that he had done so, in the manner alleged in Mrs Y's statement of May 2004. The Crown submitted that it was sufficient that I be reasonably satisfied, on the balance of probabilities, that the Applicant had so conducted himself, in accordance with the principles in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362. The Crown submitted that this was the appropriate standard as the Applicant was not on trial for an offence of sexual assault. Nor, the Crown submitted, was it an aggravating factor on sentence, in respect to which the Crown bears the onus of proof beyond reasonable doubt: The Queen v Olbrich (1999) 199 CLR 270 at 280-281. Rather, the Crown submitted that this incident was relied upon partly to rebut the Applicant's assertion of reformation and rehabilitation since his incarceration in 1988, and also with respect to the need to preserve the safety of the community (cl.7(1)(b), Schedule 1, 1999 Act) and the public interest (cl.6(4)(b), Schedule 1, 1999 Act). 111 The Crown submitted, in any event, that the Court would be satisfied beyond reasonable doubt that the Applicant had acted in this way. It was submitted that the oral evidence of Miss X and Mrs Y was implausible and that the truth lay in the statements made by them to police in 2004. 112 Mr Kintominas submitted that the applicable standard of proof on this issue was the criminal standard. He submitted that the Crown seeks to rely upon the occurrence of the alleged incident in a manner adverse to the Applicant in sentencing proceedings. Accordingly, he submits that the Court should only take this incident into account, in a manner adverse to the Applicant, if it is satisfied beyond reasonable doubt that the Applicant so conducted himself. 113 Mr Kintominas submitted that the Court could not be satisfied beyond reasonable doubt that such an incident occurred, nor should the Court be so satisfied on the civil standard of proof (applying the Briginshaw principle). It was submitted for the Applicant that the oral evidence of Miss X and Mrs Y was to the effect that the Applicant had not interfered with Miss X. It was submitted that the evidence of Miss X pointed to a degree of confusion on her part, which serves to explain how she came to make the allegation to police in 2004. It was submitted that Mrs Y had memory difficulties, and that no real weight could be attached to her claim to police, in May 2004, that the Applicant had confessed to her that he interfered with Miss X in 1993. 114 Particular weight was placed by Mr Kintominas upon the prison visiting records. According to those records, Mrs Y and Miss X visited the Applicant at Goulburn Correctional Centre between July and November 1994. Mr Kintominas submitted that it was difficult to reconcile continuing visitation with the assertion that the Applicant had interfered with Miss X during a contact visit at Lithgow, and had allegedly confessed to Mrs Y that this had occurred. It was submitted that the conflict between the prison visiting records, and the contents of the statements of Miss X and Mrs Y, was such as to cast substantial doubt over the whole account that the Applicant had interfered with his daughter in the manner alleged.

[82]

Resolution of Submissions Concerning Miss X and Mrs Y 115 I have given careful consideration to the submissions made by the parties on this question. On the face of the statements made to police in 2004, Miss X made a clear complaint to Mrs Y in about 1993 that the Applicant had placed his finger in her vagina in a manner consistent only with sexual assault. Miss X alleged to Mrs Y that the Applicant had so acted, and Mrs Y confronted the Applicant with this complaint. The Applicant acknowledged so acting, but deflected any further conversation with Mrs Y in the event that the telephone conversation was being recorded. Thereafter, Mrs Y stated that the Applicant confessed that he had interfered with Miss X. The prison visiting records disclose that, for a period exceeding 10 years, neither Mrs Y nor Miss X visited the Applicant in prison. 116 Mrs Y acknowledges that she complained, in the mid-1990s, to the Wentworth Area Sexual Assault Clinic that the Applicant had sexually interfered with Miss X, and that Miss X received counselling thereafter. It is undisputed that, in May 2004, Mrs Y signed a statement to police giving her account of the complaint of Miss X to her and the conversation between Mrs Y and the Applicant in which he confessed. In her statement to police, Mrs Y explained why Miss X was then coming forward, including the possibility that the Applicant may be released from custody and concern that females may be at risk if the Applicant was at large in the community. 117 The oral evidence of Miss X before me was unconvincing, to say the least. It seems clear that, by 2005, Miss X did not wish to press any complaint against her father. However, a clear complaint was contained in her statement to police of July 2004. I do not consider that her efforts to explain away the statement to police, including suggestions of mistaken identity and the presence or absence of tattoos on the offender's arm, detract from the veracity of the sexual misconduct by the Applicant alleged in the statement. 118 I am conscious that the incident is said to have occurred when Miss X was about five years of age. If she had not made complaint for some years and had asserted, for the first time, in 2004 that such an incident occurred, a substantial question would arise with respect to any allegation. However, it is undisputed that Miss X complained to her mother, Mrs Y, soon after the incident that the Applicant had sexually interfered with her. It is undisputed that Mrs Y spoke to the Applicant about this. It is undisputed that complaint was made to the Wentworth Area Sexual Assault Clinic in the mid-1990s concerning an alleged sexual assault upon Miss X by her father and that she received counselling as a result. It is the evidence of Mrs Y that there was no ill-will between her and the Applicant in the mid-1990s which may serve to explain the cessation of visits by her and her daughter to the Applicant for a period exceeding 10 years. All of these factors provide significant support to Miss X's claim of sexual assault by the Applicant upon her. 119 Mrs Y gave implausible evidence before me in an attempt to explain away her statement to police that the Applicant confessed to sexual interference with Miss X. 120 The actions of Mrs Y complaining to the Wentworth Area Health Sexual Assault Clinic and the Department of Community Services, and then to the police, concerning the Applicant fortify a conclusion that events recited in Mrs Y's statement, in fact, took place. The timing of Mrs Y's statement to police in May 2004 may be explained (as the statement reflects) by the fact that a life sentence redetermination application had by then been filed by the Applicant, and that his possible release into the community was then a matter of concern. 121 I have considered the submissions concerning the prison visiting records. There appears to be no dispute that the Applicant was transferred from Lithgow to Goulburn in July 1994. The records suggest that Mrs Y and Miss X visited the Applicant at Goulburn Correctional Centre between July and November 1994. Interestingly, the records do not reveal any visits by Miss X to the Applicant at Lithgow prior to July 1994. This cannot be correct. It was the evidence of both Miss X and Mrs Y (and was included in their statements to police) that regular visits were occurring whilst the Applicant was housed at Lithgow Correctional Centre. This suggests that the records may not be entirely reliable and complete in their content. It is noteworthy, also, that Miss X recalls visiting the Applicant at Lithgow, but cannot recall visits to Goulburn. 122 It is an undisputed fact that, from 1994 to 2005, Mrs Y and Miss X did not visit the Applicant in custody at all. The only explanation for this state of affairs in oral evidence was the fact that Mrs Y had met another person to whom she ultimately had a child in November 1996. I do not regard this explanation as being at all persuasive to account for a history of non-visiting exceeding a decade. The statement of Mrs Y to police explained that the reason for ceasing visits to the Applicant was his sexual assault upon Miss X whilst in custody. I do not consider that the contents of the prison visiting records prevent a finding that the Applicant sexually interfered with his daughter in prison in about 1993. 123 I have considered the totality of the evidence, both written and oral, concerning this issue. It is not necessary for me to resolve the dispute as to the applicable standard of proof, as I am satisfied beyond reasonable doubt that the Applicant sexually assaulted Miss X in the manner set out in her statement. 124 From time to time, accused persons are convicted of serious criminal offences despite the fact that complainants do not adhere at trial to incriminating accounts given in earlier statements to police: see, for example, Collins v R [2006] NSWCCA 162. 125 The contents of the police statements of Miss X and Mrs Y are admissible as evidence of the truth of the facts asserted by each of them in those statements: Collins v R at [44]. Significant concerns arise with respect to the credibility and reliability of aspects of the evidence of Miss X and Mrs Y, but those concerns relate to their oral evidence of denial and retraction of the contents of their police statements: Collins v R at [47]-[48]. I am satisfied beyond reasonable doubt that the contents of their statements to police are truthful and correct: Collins v R at [45], [48]. 126 Accordingly, I am satisfied beyond reasonable doubt that the Applicant sexually assaulted Miss X. In reaching this level of satisfaction, I have been persuaded, in particular, by the early complaint of Miss X to Mrs Y, by Mrs Y's account that the Applicant confessed to her that he had so acted, the fact that Mrs Y acted upon that complaint in conveying it to the Wentworth Area Sexual Assault Clinic and other authorities in the mid-1990s, by the fact that prison visits to the Applicant from Mrs Y and Miss X ceased completely for a period exceeding 10 years and that statements were made by Miss X and Mrs Y to police in 2004 in the context of a possible application by the Applicant for the redetermination of his life sentence. 127 It is apparent that, at some time in 2005, Miss X and Mrs Y changed their minds and determined not to press the complaint concerning the Applicant. The evidence does not permit a clear finding as to when this change of mind occurred. Both Miss X and Mrs Y deny that any communication with the Applicant played a part in such a decision. The Applicant has not given evidence on the present application. 128 Miss X re-established contact with the Applicant in early 2005 and has continued with that contact. Mrs Y has done likewise. 129 I am not in a position to form a clear conclusion as to why the allegation has been withdrawn by Miss X and Mrs Y. However, I am satisfied, and satisfied beyond reasonable doubt, that the Applicant did interfere with his daughter in about 1993 by placing his fingers in her vagina in a manner consistent only with sexual assault. 130 I will return later in this judgment to consider the relevance of this finding to the present application.

[84]

SORC Report of 7 May 2002 132 The SORC report of 7 May 2002 disclosed that, from the time when the Applicant was taken into custody on 7 October 1987 until 1995, he was housed in maximum-security prisons. He was classified A2 until his classification was reduced to B on 20 March 1995 when he was transferred to Junee Correctional Centre. 133 The Applicant was transferred from Parklea Correctional Centre to Goulburn Correctional Centre on 31 October 1990 and placed in protective custody following his refusal to take part in a prisoner disturbance at Parklea. According to the SORC report, the Applicant's refusal prompted threats of violence from other inmates. From 1995, the Applicant has been housed at Junee, a medium-security establishment, with other inmates who have been similarly identified as being at risk if placed elsewhere. 134 The report noted that the Applicant had rarely been placed on report for breaching prison rules, and that none of the incidents were serious and none involved drugs or alcohol. The report stated that, from the commencement of his sentence, the Applicant had been very involved in religious studies, including translating the Bible, and he claimed that becoming a "born again Christian" had been responsible for his changed attitude, including his attitude towards drug abuse. A further report dated 23 August 1994 by the Reverend JL Steele, Anglican Chaplain at Lithgow, described the Applicant's involvement in Bible studies. 135 The report of 7 May 2002, under the hand of the Chairperson, the Hon PJ Moss QC, noted that the Applicant had usually been described in SORC reports as compliant, a good worker and as an inmate who relates well to both staff and fellow inmates. Occasionally, he had been said to be argumentative when he disagrees with a direction, but generally he had not been a management problem. It was noted that, during the early years of his sentence, the Applicant received regular visits from his wife and two children, however, this family contact had ceased in late 1994. With respect to counselling and treatment, the Chairperson stated (pages 4-5): "Since his transfer to Junee on 28 April 1995 [AJP's] contact with Inmate Development Staff (including psychologists) has been spasmodic despite regular encouragement by Council members that he become involved with these staff members, the inmate maintains he has experienced difficulties in arranging interviews with these officers (a view not always shared by the officers concerned) at other times stating he has no outstanding issues to resolve." 136 It was observed that Mr Bazaley, psychologist, had commented that the Applicant attended four sessions in 2001 and then stopped attending. It was said that, during the sessions, the Applicant had engaged in discussion pertaining to his attitude and life in prison. The Applicant also had resumed computer studies and was described by the Education Officer as "a consistent student over three years … a good learner". 137 The Chairperson concluded the report with the following comments (page 5): "Notwithstanding the circumstances of the offences leading to his term of imprisonment and the earlier sexual offences whilst on parole, [ASP] has nevertheless been a well behaved inmate and a willing worker throughout his sentence.

[96]

SORC Letter of 25 October 2006 150 By letter dated 4 October 2006, the Solicitor for Public Prosecutions sought clarification from SORC with respect to a number of matters referred to in the SORC reports dated 7 May 2002 and 19 September 2006. The Executive Officer and Registrar of SORC responded to these questions by letter dated 25 October 2006. 151 A report of KE Hedge, Probation and Parole Officer, dated 7 October 1987 provided information concerning the Applicant's life after release on parole in December 1986 and before his arrest on 6 October 1987. It will be remembered that the offences against LB were committed on 4 September 1987, the offences against TI and AF occurred on 13 September 1987 and the offences against KS on 2 October 1987. The Applicant entered custody on 7 October 1987 and later married Mrs Y. 152 Mr Hedge stated that the Applicant met Mrs Y in January 1987 and commenced living in a de facto relationship with her in March 1987. In April 1987, the Applicant was formally referred to the Fairfield Area Health Centre for drug and alcohol counselling and psychological assessment and/or counselling. The Applicant initially attended counselling. However, the drug and alcohol counsellor considered that the Applicant's motivation was low and he failed to keep a number of appointments. At interview, the Applicant was reported as presenting as "superficially co-operative". The Applicant commenced employment on 20 July 1987 as a storeman with a firm at Marrickville, a position which he retained until his arrest. He was said to be "a reliable employee who did not appear to have an alcohol problem". 153 Mr Hedge said with respect to the Applicant's family position whilst he was at large in 1987: "On 19th August 1987 (during a home contact) the parolee's de facto wife (a nurse working part time) stated that their relationship was improving and that the parolee had been through a 'bad patch' in May and June, 1987 during which he had been introverted and would not discuss issues concerning his situation with her. The writer was not aware of this difficulty, and she had not disclosed much information in previous contact. Nevertheless she stated that in August, 1987 the relationship had strengthened through his full time employment and controlled alcohol consumption." 154 Further information was sought concerning the Applicant's entry into the Special Care Unit at Long Bay in 1989. Included in the materials provided by SORC was a report dated 6 October 1989 from A Grapsas which included the following (Annexure P to Exhibit G): "Since he was sentenced [ASP] has become totally preoccupied in Bible studies, and describes himself as a 'born-again Christian'. He applied and was accepted into the Special Care Unit and has been there since 28th August, 1989. His contact and participation in the Programme are considered satisfactory. Prior to his admittance into the Special Care Unit he was seeing a psychologist on a regular basis for counselling.

[115]

I am unable to conclude that his conversion to Christianity as such has reduced his likelihood to re-offend. To do so is tantamount to saying that people of a particular religious belief are less inclined to offend. According to him, through his conversion he has discovered his conscience and become more empathetic. Even assuming that some such changes did occur, their effect on the likelihood of his sexual re-offending is nebulous." 167 Dr Wong referred to the Applicant's prospects of reintegration into society (page 10): "Being a loner and without friends and an extended family, [ASP's] supportive network outside consists at present of his ex-wife, his two children and a few church friends. Of course, the situation may change considerably, for the better or for the worse, when the time comes for his release. Speaking generally, the support he has on the outside may help to ameliorate his likelihood of re-offending. However, it is difficult to be more precise about this without an understanding of what motivated the crimes and this is at present almost entirely lacking." 168 Dr Wong concluded that there were virtually no unequivocal positive prognostic pointers, apart from the Applicant's age. Dr Wong stated that, in any case, "such positive pointers as there are pale into insignificance beside the fact that he has hardly participated in any therapeutic programs". Dr Wong concluded that it was therefore not possible to say that the Applicant's risk of reoffending now is significantly different to what it was when his crimes were committed. 169 With respect to the CUBIT program, Dr Wong observed (page 10): "It might be more appropriate for some individuals to participate in the CUBIT program close to their release. However, bearing in mind that to date [ASP] has not had the opportunity to partake in any treatment program, he should I feel be afforded one without further delay in order that the relevant issues relating to his offences could be explored." 170 Dr Wong concluded with the observation that, if the Applicant did interfere with Miss X whilst in custody, "this would make the underlying aberrance even more ominous, bearing in mind that the victim was his five year old natural daughter and that the alleged crime was committed when he was serving a sentence for another sexual offence" (page 10). As stated above, I am satisfied beyond reasonable doubt that the Applicant interfered sexually with his daughter during a contact visit in about 1993. 171 Dr Wong furnished a further report dated 2 November 2006 after being provided with the remarks on sentence of Reynolds J of 5 August 1983. Dr Wong contrasted the version of the 1982 offences which the Applicant gave him with that revealed in the remarks on sentence, and observed that the Applicant's version "was an attempt on his part to play down his culpability in relation to those offences". Dr Wong continued: "For treatment to be effective, it is vitally important that [ASP] be entirely forthright about his state of mind at the time of the offences. In my report of 25.10.06, I expressed my concern that the account he gave me to establish a nexus between his illicit drug usage and the murder and rape of [KS] might be contrived, as that would cast doubt on his incentive to receive effective therapy.

[120]

Report of Dr Lucas 176 The Applicant was examined by Dr William Lucas, forensic psychiatrist, at the request of the Prisoners Legal Service on 15 December 2005. Dr Lucas provided a report dated 27 February 2006 which was tendered before me in the Applicant's case. Dr Lucas did not give oral evidence on the application. 177 With respect to treatment whilst in custody, Dr Lucas stated (Exhibit 1, page 2): "In Junee Correctional Centre there are courses for sex offenders but he has not been offered one of these or asked to be included. When his sentence is determined he will make a request. He knows of the CUBIT program available in Long Bay Correctional Centre which is difficult to access without a C classification." 178 Concerning the Applicant's conversion to Christianity, Dr Lucas stated (pages 9-10): "Two to three months after his arrest [ASP] converted to Christianity. He said he did not claim to have been perfect thereafter. His religion is bible-based and his beliefs are not extreme. He believes more in God than outward things. He used to attend services in prison but no longer does so. He usually went to Roman Catholic services which he found too ritualistic and when he turned to other services he found that they were 'explaining away the Bible'. [ASP] set himself a project in prison, translating the New Testament from Greek into English. He told me he is nearly there and had twelve months to go. When I saw him he had just been told he could not finish it - his use of computers in the education section was terminated." 179 Dr Lucas observed that the Applicant was motivated to accept further assistance, but seemed to have received relatively little during his 18 years in custody. He observed that the Applicant had little contact with psychologists during his imprisonment and, since his trial, had not been referred to a psychiatrist. The Applicant told Dr Lucas that he had not had any contact with psychologists in the last two-and-a-half years despite efforts to arrange this. The Applicant said that he wished to see a psychologist and wanted "to try to better understand what happened" (page 12). 180 Dr Lucas expressed the opinion that the Applicant's offences were serious and "to date have not been completely understood", and that the Applicant "requires further investigation and treatment" (page 13). He considered that the Applicant would benefit from being in a position to apply for the CUBIT program which "is confronting and participants need strong motivation and a desire to persist with it" (page 13). 181 If the Applicant participated in the CUBIT program, Dr Lucas considered that it would be possible "to get a better idea of the circumstances of and reasons for his offences which in turn will enable a better estimate of what risks he might present to the community if released" (page 13). Dr Lucas observed that the Applicant's personality problems are likely to have ameliorated with the passage of time and his risk of reoffending diminished, but that confirmation of this was required and inclusion in a treatment program is the only way in which the Applicant can be tested while in custody. 182 It does not appear that Dr Lucas was informed of the alleged sexual assault upon Miss X whilst the Applicant was in custody and, accordingly, his report is silent on that issue.

[123]

The Offence of Murder 187 The Crown submits that it is open to the Court to find that the facts surrounding the offence of murder are of very great heinousness, and that there are no facts mitigating the seriousness of the crime. The Crown points to the fact that the Applicant had armed himself with a knife with an eight-and-a-half inch blade, had cruised around looking for a victim and, after unsuccessful attempts with four other women, he abducted KS, removed her clothing and sexually assaulted her. KS was a vulnerable victim given her physical disability. When she called for assistance, the Applicant stabbed her a number of times with an intention to kill. He told the police that he would not have let her go, even if she had not screamed. He said that he planned to kill her. 188 The Applicant confirmed to Dr Wong that it had been his intention to kill KS and that he had planned to rape and kill her. Having stabbed KS, the Applicant left her in shallow water. Similarly, the Crown noted that the Applicant confirmed to Dr Wong that his initial intention was to rape, and then kill LB. 189 The Crown submits that the Applicant had admitted to Dr Wong that he fantasised about abduction, rape and murder in the weeks leading up to the offences against KS. 190 The Crown submits that the murder of KS was committed to prevent detection of her abduction and sexual assault, and that these factors would place the case close to the worst-case category of murder: Ibbs v The Queen (1987) 163 CLR 447 at 451-452. It was submitted that the circumstances of the abduction and sexual assault aggravated the murder: R v Garforth (Court of Criminal Appeal, 23 May 1994, unreported, BC9402546 at pages 8-9). 191 Although the Crown is not seeking a direction that the Applicant never be permitted to reapply (cl.6(1)(a), Schedule 1, 1999 Act), the Crown submits that a number of authorities which address the worst case of murder for the purpose of imposition of a life sentence, are instructive. Reference was made to the judgment of Abadee J in R v Fernando (1997) 95 A Crim R 533 at 535-536. In order to characterise any case as being in the worst-case category, it must be possible to point to particular features which are of great heinousness, and it must be possible to postulate the absence of facts mitigating the seriousness of the crime (as distinct from subjective features mitigating the penalty to be imposed): R v Twala (Court of Criminal Appeal, 4 November 1994, unreported at page 7); R v Fernando at 535. 192 The Crown submits that the Court would be readily satisfied that this case is a most serious case of murder. Dr Wong refers to the Applicant having "highly aberrant sexual fantasies" that preceded the murder which was committed in circumstances of utter callousness.

[124]

Other Offences Committed by the Applicant 193 The Crown submits that the Applicant comes before the Court with an appalling record of sexual offences which culminated in the abduction, sexual assault and murder of KS. 194 The Applicant had been convicted after trial and sentenced by Reynolds J in 1983 for sexual assault offences. The Crown draws attention to the Applicant's account of these offences given to Dr Wong. The Applicant refers to an incident where he had sexual intercourse with a girl after a traffic accident. He claimed that he believed she was consenting, but did not accept that it may have been rape. The Crown submits that the remarks on sentence of Reynolds J do not support such a misunderstanding. The Applicant gained entry to the victim's car by subterfuge. He pretended to be injured and sought a lift to hospital. He then sexually assaulted the victim at gunpoint, and later at knifepoint. 195 Reynolds J referred to the Applicant being "obviously abroad on that evening seeking a victim such as the complainant" (page 2.6, remarks on sentence). The Crown submits that the predatory nature of these offences, committed in 1982, accords with the Applicant's conduct in his later serial offending in 1987. 196 The Crown submits that the Applicant was engaged in a sexual rampage in a period of a month between 4 September and 2 October 1987. The attack on LB on 4 September 1987 involved her abduction from a public place, and the administration to her of a drug, culminating in sexual assault. 197 The Crown submits that the offences committed by the Applicant and an unidentified co-offender on 13 September 1987 against TI and AF, were serious and troubling as they demonstrate a very different mode of offending to the offences against LB and KS. The Applicant and his co-offender followed the 18-year old male and 16-year old female victims in their car from a hotel to the home of the female victim. There, they impersonated police and abducted both victims. After driving to a remote area, TI was sexually assaulted by both men whilst her boyfriend was subdued by the Applicant by means of threats with a gun. 198 The Crown acknowledges that the Applicant wrote to police on 14 December 1989 confessing to these crimes, but submits that the tenor of his letter suggests that his motivation was to raise and finalise the matter by way of a concurrent sentence, without further cost to him, as against the possibility that the matter may come back at a later time and be raised against him. The Crown pointed to the fact that the Applicant declined to identify his co-offender to police as that "would be going against what the Lord wants me to do". The Crown submits that the Applicant's motivation in raising this matter was pragmatic and self-serving, and that his refusal to identify his co-offender supported a conclusion that the revelation of his involvement in the crime was not indicative of genuine remorse. 199 The Crown observed that each of the three incidents committed on 4 and 13 September and 2 October 1987 was accompanied by the theft of property from the victims and the use of a weapon, a gun on two occasions and a knife on the third. 200 The Crown submits that the Applicant committed three abductions and sexual assaults and one murder, within the span of a month. All of these offences were committed whilst the Applicant was on parole. Disturbingly, the Crown submits, these offences were committed whilst the Applicant was said to be in a "tremendous relationship" with Mrs Y (page 3.8, Wong report) and "his sexual life was fine and he had never been so happy" (page 4.10, Lucas report). Further, at the time of the offences, Mrs Y was pregnant with their first child. 201 The Crown submits that an examination of other offences for which the Applicant had been convicted in the 1980s, provides no support for the present application but, rather, fortifies a conclusion that the orders sought by the Crown should be made.

[126]

Absence of Insight into Offending 203 The Crown points to concern, in various reports, over the Applicant achieving insight into his offending. Insight is recognised as being integral to the path to rehabilitation and understanding of the motivations underlying the offending. 204 The Crown submits that the Applicant's continued denial to Dr Lucas that he had sexually assaulted LB, although admitting that he abducted her for that purpose, is not consistent with remorse or the development of insight into his offending. It was apparent from the medical and forensic evidence that LB had been sexually assaulted. 205 The Crown points to the evidence of Dr Wong that the underlying abnormalities leading to the commission of the crimes remain unexplored. It was submitted that the Applicant had not demonstrated a strong commitment to obtaining treatment and counselling in his years in custody. 206 With respect to the Applicant's reliance upon his conversion to Christianity, the Crown submits that there is limited opportunity to assess the manner in which this conversion may impact upon his conduct. The Crown acknowledges that the Applicant volunteered his involvement in the offences against TI and AF, citing his Christianity as a motivating factor for this step. Nonetheless, the Applicant sought to rely upon his religion as an excuse for declining to nominate his co-offender. The evidence suggests that the Applicant participated initially in group religious sessions, but his more recent Christian practices have been solitary and therefore difficult to gauge. Dr Wong was unable to conclude that the Applicant's conversion to Christianity has reduced his likelihood of reoffending (page 9, Wong report). 207 The Crown relies upon Dr Wong's conclusion that it is not possible to say that the risk of reoffending now is significantly different from what it was when the Applicant's crimes were committed. In assessing the Applicant's prospects of reintegration into society, Dr Wong found it difficult to be precise without an understanding of what motivated the crime and this "is at present entirely lacking" (page 10, Wong report). 208 The Crown submits that there is nothing in the reports to negate a real danger to the community if the Applicant is released. It was submitted that the risk of reoffending, by way of similar offences, remains high.

[127]

Totality 209 The Crown submits that the Applicant has been serving sentences for other offences (balance of parole for his 1983 offences and related and unrelated abductions and sexual assaults committed in 1987) during his period of incarceration. The last of those determinate sentences expired on 30 April 2003. In his remarks on sentence, Hunt J directed that the sentence for murder was to commence at the expiration of the balance of parole that the Applicant was serving (which was to expire on 28 October 1994). 210 All sentences imposed upon the Applicant prior to the commencement of the Sentencing Act 1989 have been readjusted. The concurrent sentences of imprisonment for 10 years imposed at the Liverpool District Court in 1990 for the offences against TI and AF did not expire until May 2000. 211 It was submitted for the Crown that the existence of very lengthy determinate sentences running concurrently with the life sentence for murder, was an important factor in determining whether to fix a non-parole period for the offence at all and, if so, in determining the length of any non-parole period. The Crown submits that any sentence imposed for the murder must be a meaningful sentence, having regard to totality. The Applicant has been in custody solely in relation to the murder since 30 April 2003. If a determinate sentence was to be fixed, the Court should not disregard other determinate sentences, otherwise the Applicant would, in effect, only be punished for the murder and not the other offences: R v Purdey (1993) 31 NSWLR 668 at 680. 212 The Crown submits that it is not enough to be well behaved in prison and that the Applicant must demonstrate real progress on the course of rehabilitation. It was submitted that conversion to Christianity does not equate with rehabilitation. Given the seriousness of the murder, and the Applicant's substantial history of offences of abduction and sexual assault committed whilst on parole, tangible evidence of reform is required. It was submitted that this can only flow realistically, from the Applicant seeking out actively participation in counselling and the provision of treatment by way of such programs as are available within the prison system. The Applicant has not demonstrated serious efforts to achieve this result. 213 The Crown submits that it is in the public interest that a direction be given that a substantial period of time, not less than 10 years, pass before this Court may be called upon once again to consider whether a determinate sentence should be fixed, in light of such evidence as may be adduced on a future application.

[128]

The Applicant's Submissions 214 Mr Kintominas submits that it is appropriate to fix a non-parole period with respect to the Applicant but that, in the event that the Court declined to do so, an order excluding the Applicant from making further application for a period of 10 years should not be made. 215 If the Court does not make any other order, the Applicant may not reapply to the Court within a period of three years from the date of the Court's decision not to give such a direction: cl.6(3), Schedule 1, 1999 Act. In the event that the Court refuses the present application, Mr Kintominas submits that the statutory period ought stand, thereby allowing the Applicant an opportunity to make further application in three years' time. 216 Counsel for the Applicant acknowledges that this was a serious case of murder, but submitted that it fell short of a "worst case" and that a finding ought not be made that the offence was a "most serious case of murder" for the purpose of cl.6(4)(b), Schedule 1, 1999 Act. 217 Mr Kintominas emphasised the Applicant's positive history of conduct within prison, and contends that there were features which pointed towards the commencement of a process of reformation and rehabilitation on the part of the Applicant. He submits that a difficulty confronting the Applicant has been the limited availability of appropriate treatment and counselling at Junee Correctional Centre, a matter noted in the reports of Ms Rosen, Dr Lucas and Dr Wong. 218 Mr Kintominas submits that the best way forward is to set a non-parole period to facilitate the process whereby the Applicant could undertake the CUBIT program, which would provide an opportunity for an understanding to emerge of the factors underlying the Applicant's offending. In due course, it would be a matter for the State Parole Authority to determine whether the Applicant should be released on parole in the light of evidence then available. Mr Kintominas submits that this approach would serve the public interest, and the protection of the community, by reducing the risk of reoffending on the Applicant's part. 219 Mr Kintominas submits that, were the Applicant to be required to wait another 10 years before renewing his application, he would have spent over 29 years in prison since he was taken into custody for the murder offence. He submits that the objective circumstances of the murder, although admittedly grave, are not such as to compel a conclusion that anything less than a non-parole period of 30 years would be insufficient to satisfy the demands of justice, irrespective of how favourable the subjective circumstances of the Applicant might be. 220 As the life sentence was set by Hunt J to commence at the expiration of his 1983 sentences (recalculated as 26 October 1990), the Applicant has now served almost 16 years and six months of that sentence, and an order preventing him from reapplying for another 10 years would see him serving some 26 years and six months of the sentence before he could then reapply to have his sentence determined. Mr Kintominas submits that this was getting close to the enforced wait of 30 years applying to prisoners whose sentence had a recommendation that they never be released pursuant to cl.2(b), Schedule 1, 1999 Act. Hunt J had made no such recommendation in this case. 221 Mr Kintominas submits that, in fact, Hunt J accepted that the total head sentence in respect of the other offences for which the Applicant was sentenced "should not be so crippling that there be no hope left for the prisoner for the future". Counsel submits that acceptance by his Honour of that proposition clearly demonstrated that his Honour was not of the view that the crime was so serious as to preclude future release. 222 Counsel submits that sufficient time has now passed for the Court to be in as good a position as it is ever likely to be to evaluate the Applicant's remorse and potential for rehabilitation. Nor can it be said, he submits, that the application is made so prematurely as to offend any public expectation that the formal stigma and denunciation of the life sentence be dissolved too early, given the objective facts of the crime and the views expressed by the sentencing Judge. 223 Mr Kintominas submits that determining the sentence, or at least imposing a non-parole period, will make it more likely that the Applicant would be admitted to the CUBIT program. 224 Mr Kintominas submits that there is sufficient evidence to satisfy the Court that the Applicant's prospects of rehabilitation are reasonably good. He has managed to stay drug free in prison for nearly 20 years. The worst that can be said about his relatively few and minor infractions of prison discipline is that he has, on rare occasions, expressed his frustrations. Counsel submits that it is of great significance that such expressions of frustration have not been accompanied by violence of any kind. 225 Mr Kintominas submits that a significant early pointer to the Applicant's prospects of rehabilitation was his confession in December 1989 to participation in the sexual assault of TI on 13 September 1987. This was an unsolved crime until the Applicant, some 15 months after being sentenced by Hunt J, wrote to police and confessed to the crime. The Applicant claims that he did so as a result of his conversion to Christianity whilst in gaol. 226 Mr Kintominas acknowledges that religious conversion is not, in itself, a matter which can automatically attract favourable consideration on sentence. He submits, however, that what is important and relevant, if it can be demonstrated, is that the Applicant has earnestly chosen henceforth to live and abide by a set of values which involve him accepting that he must not do wrong by other people, and taking responsibility for and accepting punishment for, the wrongs he has done in the past. 227 It was submitted that the Applicant's action in giving himself up for the offence on TI was a marked departure from the way in which he had previously conducted himself, and demonstrated a true and fundamental change for the better. The Applicant's failure to nominate his co-offender, it was submitted, does not detract either from remorse for past conduct, or from the prospect for future rehabilitation demonstrated by the Applicant's acceptance of responsibility for the sexual assault of TI. Mr Kintominas noted that identification of the Applicant's co-offender may have had adverse consequences for him in the prison setting, and that this may serve to explain why the Applicant refused to reveal the identity of his accomplice. 228 Mr Kintominas noted the finding of Hunt J that the Applicant had not been affected by drugs or alcohol at the time of the murder. Although it was suggested, at one point, that the Applicant may invite this Court to come to a different factual conclusion, no such submission was pressed at the end of the hearing. The Applicant did not give evidence on the present application. 229 In any event, Mr Kintominas submits that the Applicant had never claimed that the substances, which he said he had ingested, had provoked a murderous rage on his part. Rather, the Applicant had described to the psychiatrist a dissociative state of mind which appears consistent with heavy amphetamine usage. It was submitted that such a dissociative state of mind may result in the weakening of usual human inhibitions in murdering a fellow human being. 230 Counsel submits that the significance of a potential finding that the Applicant was not affected by drugs and alcohol is that the Court may have more confidence in the proposition that he is unlikely to offend, given his abstinence from drugs whilst in prison. 231 Mr Kintominas concluded that the setting of a non-parole period would provide incentive for the Applicant to undertake appropriate treatment and counselling within the prison system, and that this would be in the public interest.

[138]

Recommendations, Observations and Comments of Hunt J 243 In considering a life sentence redetermination application, the Court must have regard to, and give substantial weight to, any relevant recommendations, observations and comments made by the sentencing Judge when imposing the sentence concerned: cl.7(3)(a), Schedule 1, 1999 Act. The Court must give consideration to adopting or giving effect to the substance of any recommendation, observation and comment and the intention of the sentencing Judge when making them: cl.7(3)(b). To the extent that I decline to adopt or give effect to any such recommendation, observation or comment, a record of reasons for doing so must be made: cl.7(3)(c). 244 Hunt J made no recommendation in his remarks on sentence. Prior to 1989, it was the case that some Judges considered it appropriate in a heinous case to make a non-release recommendation and other Judges did not: Baker v The Queen [2004] 233 CLR 513 at 522 [9]. There was no statutory basis for making such a recommendation: R v Jamieson (1992) 60 A Crim R 68 at 80; Baker v The Queen at 520 [7]. 245 Mr Kintominas drew attention to certain observations and comments by Hunt J in the course of his remarks on sentence on 14 October 1988. He submitted that Hunt J had not made a non-release recommendation and had observed that the determinate sentences ought not be so crippling that there be "no hope left for the prisoner in the future". Mr Kintominas submits that this comment demonstrates that Hunt J was not of the view that the Applicant's crime was so serious as to preclude future release. 246 Care must be taken not to read too much into this comment by Hunt J which related to the fixing of determinate sentences for crimes other than murder. In any event, the Crown is not contending on this application that the Applicant should never be released. Rather, the Crown argues that the present application ought be refused and a lengthy period fixed before the Applicant may again apply to the Court. I do not consider that this comment of Hunt J provides support for the present application. 247 There are further comments or observations of Hunt J which I should mention. His Honour observed (see paragraph 51 above) that subjective material tendered on sentence indicated that the Applicant had "embraced religion since he has been in custody" and that "two quite remarkable references tendered … speak of the prisoner's apparently genuine remorse for what he has done and of his attempts at personal rehabilitation". Hunt J said that "all of the material put before me shows that the prisoner has indeed changed in his attitudes over the year that has passed since his arrest". 248 I do not consider that my findings are inconsistent with these comments or observations of Hunt J made in 1988. His Honour observed what appeared to be the commencement of a process of change in the Applicant. On the evidence before me in 2007, I do not consider that the Applicant has taken objective steps towards personal rehabilitation. He has not made serious and sustained efforts to obtain treatment and counselling in prison. Further, his sexual interference with Miss X operates against the Applicant's claim of reformation and rehabilitation. In summary, although the Applicant's path towards rehabilitation appeared promising in 1988, as Hunt J commented, his action and inaction since that time does not provide a foundation for findings now which are favourable to the Applicant.

[142]

Remorse, Reformation and Rehabilitation 258 The existence of contrition or remorse is relevant to an assessment of an offender's prospects of rehabilitation and the likelihood of him committing further offences in the future: R v MAK and MSK [2006] NSWCCA 381 at [41]. 259 It may be said on behalf of the Applicant that he confessed to police with respect to his crimes against KS, and pleaded guilty to charges with respect to KS and LB. Thereafter, in December 1989, the Applicant volunteered the fact that he had committed offences against TI and AF. He pleaded guilty to those charges. 260 On the other hand, the Applicant still appears to maintain that he did not sexually assault LB, despite his plea of guilty to that charge. He adheres to a self-serving version of his 1982 offences which continues to minimise the criminality found by the jury (at trial) and Reynolds J (on sentence). He denies sexual interference with Miss X in about 1993. I have found that such an incident did, in fact, take place. 261 I accept that there is some element of remorse revealed by the Applicant's voluntary disclosure in December 1989 of his offences against TI and AF. However, I am also satisfied that significant pragmatic considerations, of a self-serving type, operated on the Applicant's mind as well, leading him to take that course. Disclosure of these crimes does not, in my view, constitute unequivocal evidence of genuine remorse on the Applicant's part. I am satisfied that the Applicant had in mind that these offences may possibly come back to haunt him at a later time and that the best course, in his interest, was to admit to the offences, thereby ensuring an entirely concurrent sentence running with his life sentence. The contents of the Applicant's letter (see paragraph 69 above) supports this conclusion. The Applicant's disclosure of these crimes appears to fit more comfortably into Dr Wong's category of disclosure to "wipe the slate clean". 262 The Applicant's claim of reformation and rehabilitation is compromised significantly by the incident of sexual interference upon Miss X in about 1993.

[146]

Conclusion 273 Courts have observed that a Judge, on a redetermination application, has the advantage of hindsight when approaching the question of sentence: R v Malcolm (1991) 58 A Crim R 148 at 150, R v Page [2002] NSWSC 1067 at [69]. This is an advantageous position where information about, and professional observations of, the offender are much more extensive given the passage of years since imposition of the original sentence: R v Towner [2002] NSWSC 951 at [57]. In the present case, however, hindsight provides little assistance to the Court. This is because there has been no real therapeutic process by way of treatment or counselling which would assist an objective assessment of the Applicant's prospects of reformation and rehabilitation, and the risk of reoffending. 274 I do not accept the Applicant's submission that the interests of the community may be adequately protected at this time by the setting of a non-parole period with the State Parole Authority to consider the question of the Applicant's release to parole at some future time. 275 I have formed the view that the application to fix a non-parole period, and to specify a term for the Applicant's life sentence, ought be declined. The gravity of his crime of murder, taken with his serious history of criminality and the presently inadequate evidence concerning measures which would permit an objective assessment of a reduced risk of reoffending, lead me inexorably to this conclusion. 276 This is a conclusion which I would have reached even if I had not found that the Applicant sexually assaulted Miss X. However, that finding clearly does not assist the Applicant in this case. I stress that the Applicant is not being sentenced to a further term of imprisonment for the sexual assault on Miss X. That incident is being taken into account as part of the assessment of the Applicant's prospects of rehabilitation, his risk of reoffending and with respect to the statutory factors of protection of the community and the public interest. 277 In my view, the present application is premature. The lengthy determinate sentences imposed upon the Applicant in 1987 and 1990 are such that, having regard to the principle of totality, more time should pass before further consideration is to be given to redetermination of the life sentence. Further, there is an inadequate and unsatisfactory evidentiary foundation for the Court to address the statutory criteria and, in particular, the protection of the community. 278 I am satisfied that the Applicant's crime is a most serious case of murder. I am satisfied that it is in the public interest that a direction be made that the Applicant not be permitted to reapply to the Court for a period exceeding three years. The phrase "in the public interest" takes its meaning from the statutory context in which it appears: R v Kalajzich at 49. It classically imports a discretionary value judgment, and a determination where the public interest lies is a question of fact and degree: WorkCover Authority (NSW) v Law Society of NSW (2006) 65 NSWLR 502 at 533 [146]. Factors which bear upon the public interest, in this context, include those referred to in paragraph 277 above. An emphatic statement must be made to the Applicant that he should take more effective steps to advance his own cause with respect to treatment and counselling, if further application for redetermination is to be made by him. 279 If the Applicant is prepared to undertake the CUBIT program, and that opportunity could be made available to him by custodial authorities, it is apparent that such a course could advance the public interest in this case. The Crown drew my attention to the decision of Newman J in R v Clarke [1999] NSWSC 1225, where a life sentence redetermination application was refused to an offender who was able thereafter to undertake the CUBIT program, leading to a later setting of a non-parole period by Hidden J: R v Clarke [2005] NSWSC 413. 280 If it is open to the prison authorities to facilitate the Applicant's entry into the CUBIT program, or some other or equivalent program, that course would appear to be highly desirable. In raising this prospect, I should not be understood as indicating that, if the Applicant completes such a program, he will be liable to succeed on a future redetermination application. If such application is made, it will be a matter for the presiding Judge to determine, on the evidence before the Court, whether the application ought be granted. 281 I have been led to make these observations because the common view of Dr Wong, Dr Lucas and Ms Rosen is that it is more than highly desirable that the Applicant have an opportunity to undertake the CUBIT program. 282 Having regard to the various factors to which reference has been made in this judgment which bear upon the fixing of a period during which the Applicant may not bring a further application, I am satisfied that a direction ought be made that he not reapply to the Court for a period of seven years from today. 283 I make the following orders: