Criminal law and procedure - Indictment for murder - Offender killed victim by inflicting multiple stab wounds - Whether death caused without intention in prosecution of unlawful purpose - Sentence passed on basis of finding of intention to cause life­threatening injury - Aboriginality of offender

Austic v State of Western Australia [2010] WASCA 110

Director of Public Prosecutions v Beard [1920] AC 479

Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293

Hughes v The King [1951] HCA 34; (1951) 84 CLR 170

Macartney v The Queen [2006] WASCA 29; (2006) 31 WAR 416

R v Churchill [2000] WASCA 230

R v Fernando (1992) 76 A Crim R 58

State of Western Australia v JWRL (A child) [2010] WASCA 179

Stuart v The Queen [1974] HCA 54; (1974) 134 CLR 426

1 MURRAY J: The accused was charged with the offence of murder. The deceased woman was his partner of some years. The offence was committed in Wiluna on 19 August 2009.

2 When he appeared, represented by counsel, before Blaxell J on 8 June 2010, he was arraigned and pleaded guilty to the offence of murder. He added, 'but not intentionally' (ts 7). His Honour inquired whether there was an issue as to the nature of the intent. Counsel said that the issue was not only the nature of any intention, but whether there was any intent at all. He said that the accused relied upon the Criminal Code (WA), s 279(1)(c).

3 His Honour noted that issue, but, as was properly open to him, evidently being satisfied that the accused understood the nature and effect of the plea, entered a judgment of conviction of murder.

4 The offender was remanded in custody and the matter was remitted to me for sentence.

5 Section 279 was repealed and re-enacted in its present form by the Criminal Law Amendment (Homicide) Act 2008 (WA). The amendments were operative from 1 August 2008 (Government Gazette, 22 July 2008, p 3353). This was the form of the section which therefore applied to this case. Section 279(1) now provides:

(1) If a person unlawfully kills another person and -

(a) the person intends to cause the death of the person killed or another person; or

(b) the person intends to cause a bodily injury of such a nature as to endanger, or be likely to endanger, the life of the person killed or another person; or

(c) the death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life,

6 Section 279(3) provides that for the purposes of subsection (1)(c), it is immaterial that the offender did not intend to hurt any person.

7 The prosecutor did not contend that the offender intended to kill his victim at the time of the acts which caused her death. The prosecutor contended that I should make the finding beyond reasonable doubt, for sentencing purposes, that the offender intended to cause a bodily injury of such a nature as to endanger or be likely to endanger the life of the deceased.

8 In that regard, s 279(1)(b) is a more limited form of the former s 279(1), which defined the offence of murder when the offender, 'intends to do to the person killed or some other person some grievous bodily harm'. Section 279(1)(c) is now expressed in terms identical with the former s 279(2), defining the offence of murder in a way which equated with what, at common law, used to be called 'felony murder'. In the result, the cases concerning the meaning and effect of s 279(1)(c) which were decided in respect of this or an equivalent criminal code expressed in the same terms, and the common law cases, continue to provide guidance as to the proper application of this part of the subsection.

9 A preliminary question arose whether the matter should be dealt with under s 279(1)(c) if the death was caused in the course of an attack or an assault upon the deceased in the prosecution of the purpose to inflict punishment upon her, if the act or acts which cumulatively caused death were of such a nature as to be likely to endanger human life. As to that, the State's submissions were that the prosecutor did not contend, 'that the acts of the offender causing death, ie, the dangerous act and the unlawful purpose, were one and the same for the purposes of the present case'. In my view, that did not absolve me from the need to draw the conclusion whether or not the approach to the case for which the offender contended was open.

10 For the offender, reliance was placed upon the decision of the Court of Appeal in Macartney v The Queen [2006] WASCA 29; (2006) 31 WAR 416. In that case, the accused was charged with the offence of murder, as it was formerly defined. The question was, if the appellant was proved to be the killer, whether the case was one of felony murder (not a murder defined by an intention to do grievous bodily harm) or whether the proper verdict was manslaughter.

11 The Crown case was that the deceased woman, whose body had been found on a beach, had been asphyxiated by the actions of the offender in the course of committing a sexual assault upon her, acts which he had done to advance the purpose of sexual assault by reducing the capacity of the deceased to resist the assault. It was a trial by judge alone, and the trial judge found that the deceased was killed in the manner identified by the Crown case, and accordingly the proper verdict was one of murder, pursuant to s 279(2) of the Code, as it was then - now s 279(1)(c).

12 On appeal, the question was not whether there was a separate unlawful purpose, in the prosecution of which the act or acts which caused death had been done. There was no argument that the unlawful purpose to sexually assault the deceased was separate from the acts by which the appellant fatally stopped the breath of the deceased. That was unsurprising, if for no other reason than that the seminal case at common law, Director of Public Prosecutions v Beard [1920] AC 479, was itself a case where the victim had been killed by an act of violence done in the course or furtherance of the commission of the felony, rape. In the course of the judgments in Macartney, however, there were obiter observations about the width of the notion of, 'an unlawful purpose': see, for example, Steytler P at 431 [112].

13 The leading case in relation to the question at issue here remains Stuart v The Queen [1974] HCA 54; (1974) 134 CLR 426. The facts are well-known. The case concerned deaths in a nightclub which the offenders set on fire, in the execution of a plan to extort protection money from the nightclub owners. Putting to one side the issues which arose out of s 8 of the Criminal Code (Qld), the question was whether an offender involved in the commission of the arson offence could be convicted of murder, pursuant to s 302(2) of the Qld Criminal Code, even though it was no part of the purpose of the offenders that any patron of the nightclub would be hurt, let alone killed. Section 302(2) is the Queensland equivalent of the former s 279(2) of the WA Code, and hence it is the equivalent of s 279(1)(c) of our Code.

The third element in s. 302(2) has sometimes occasioned difficulty. It appears clearly from the words of the section, and it has been laid down by this Court, that the act of the accused which caused the death cannot at once constitute the dangerous act and the unlawful purpose: 'The paragraph relates to an act of such a nature as to be likely to endanger human life when the act is done in the prosecution of a further purpose which is unlawful.' (Hughes v. The King [1951] HCA 34; (1951) 84 CLR. 170, at pp. 174-175). The facts of Hughes v. The King clearly exemplify this principle; the dangerous act causing death was a violent assault but the accused had no purpose other than to assault the deceased (438).

The case presented by the Crown and put to the jury was that the act was done in prosecution of the unlawful purpose of extortion. ... It was quite correct to put the matter to the jury in this way, although it would have been equally correct to have left the case to them on the basis that the unlawful purpose in the prosecution of which the dangerous act was done was arson. In truth, the act was done in the prosecution of one unlawful purpose (arson) which itself formed part of a wider purpose (extortion). (439 - 440)

16 In his judgment, when discussing the case of Hughes v The King [1951] HCA 34; (1951) 84 CLR 170, Jacobs J also adverted to the need for there to be a purpose separate from the dangerous act by which death is caused, but linked to that act or those acts, because they may be found to be done to put the purpose into effect. His Honour said:

The unlawful purpose must in fact be prosecuted by the dangerous act but the unlawfulness of the purpose may appear from the act whereby that purpose is prosecuted. The dangerous act need not be itself an offence and the purpose unrelated to the dangerous act need not be an offence. It is when the combination of them results in an offence, but only when there is in fact a combination, that is to say, when a purpose can be discerned beyond the doing of the dangerous act itself that the requirements of s. 302(2) are satisfied. It is thus permissible to look at the act in the light of the purpose and likewise the purpose in the light of the act by which that purpose is prosecuted (448).

17 In this case, I am satisfied that there was no separate unlawful purpose, separate from the acts of the offender by way of repeated violent assaults upon the deceased to punish her for her confessed sexual infidelity with other men. Indeed, the case is, in my view, factually very like that of Hughes (also a case concerned with s 302(2) of the Qld Code), to which reference is made in Stuart.

18 That being the case, it seems that the plea of guilty to murder was entered under a misconception as to the availability of s 279(1)(c), but in relation to that there was nothing to be done. So far as I was concerned, judgment of conviction had been entered. The charge by way of indictment had merged into the conviction of the offence of murder, and in circumstances where the prosecutor did not allege an intention to kill, the conviction was to be taken as establishing all matters of fact necessary to constitute the commission of the offence, including the intention to cause bodily injury of such a nature as to endanger, or be likely to endanger the life of the deceased: Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293 and Maxwell v The Queen (1996) 184 CLR 501.

19 While there might have been a capacity to accept the plea provisionally and try out the availability of s 279(1)(c), it seemed to me that that course had not been taken. The plea was unequivocal and it was accepted. The misconception about the availability of s 279(1)(c) did not, in my view, qualify the plea when made or the effectiveness of the conviction entered. That having occurred, pursuant to the Criminal Procedure Act 2004 (WA), s 147(1), the court was committed to sentence the offender for the offence of which he had been convicted: Criminal Procedure Act, s 148. The conviction could only be vacated on appeal: Criminal Appeals Act 2004 (WA), s 23(1)(a), and there is, of course, a body of law which governs when the Court of Appeal will feel that there is justification or necessity to set aside a conviction entered upon a plea of guilty.

20 Nonetheless, upon the basis that it might be held that a conviction of murder pursuant to s 279(1)(c) was open, I was invited by the parties to try out, for sentencing purposes, on the basis of the information provided to the court, the question whether I was satisfied beyond reasonable doubt, or not, that at the time of doing the acts which caused death the offender intended to cause bodily injury of such severity that it might be held to be likely to endanger the life of the deceased.

21 It was convenient that I should take that course, utilising the informal process by which the court may inform itself about matters relevant to the imposition of sentence: Sentencing Act 1995 (WA), s 15; State of Western Australia v JWRL (A child) [2010] WASCA 179 per Martin CJ, McLure P and Buss JA agreeing, [9] - [10].

22 The penalty for murder is that set out in s 279(4) of the Code:

(4) A person, other than a child, who is guilty of murder must be sentenced to life imprisonment unless -

(a) that sentence would be clearly unjust given the circumstances of the offence and the person; and

(b) the person is unlikely to be a threat to the safety of the community when released from imprisonment,

in which case the person is liable to imprisonment for 20 years.

23 For the offender, it was argued that in the circumstances it would be unjust to sentence the offender to life imprisonment and that, when released, he was unlikely to be a threat to the safety of the community. It was submitted that I should impose a term of years, but I declined to draw the conclusions which would support that course, and therefore the 'default' position under the Code, that the offender should be sentenced to life imprisonment, was applicable.

24 In that event, s 90 of the Sentencing Act applied to the case:

(1) A court that sentences an offender to life imprisonment for murder must either -

(a) set a minimum period of at least 10 years that the offender must serve before being eligible for release on parole; or

(b) order that the offender must never be released.

(2) Any minimum period so set begins to run when the sentence of life imprisonment begins.

(3) A court must make an order under subsection (1)(b) if it is necessary to do so in order to meet the community's interest in punishment and deterrence.

(4) In determining whether an offence is one for which an order under subsection (1)(b) is necessary, the only matters relating to the offence that are to be taken into account are -

(a) the circumstances of the commission of the offence; and

(b) any aggravating factors.

25 I determined that this was not a case in which it was appropriate to order that the offender must never be released, having regard to the circumstances of the commission of the offence and the aggravating factors attendance upon those circumstances. It was therefore the case that I was required to set a minimum term of at least 10 years before the offender would become eligible for parole.

26 In so doing, I had regard to the general principles helpfully formulated by Buss JA, McLure P and Jenkins J agreeing, in Austic v State of Western Australia [2010] WASCA 110 [171] - [176]. I need not set those matters out here.

27 But I should set out the general principles to which I must have regard in relation to the impact which the offender's Aboriginality might have upon the sentencing process, which, I agree with Mr Giudice, have clear application to this case. The formulation of the principles to which I refer was by Wood J of the Supreme Court of NSW, in R v Fernando (1992) 76 A Crim R 58, 62 - 63. They were referred to with approval by Kennedy ACJ, Anderson and Wheeler JJ agreeing, in R v Churchill [2000] WASCA 230 [26]. They are as follows:

(A) The same sentencing principles are to be applied in every case irrespective of the identity of a particular offender or his membership of an ethnic or other group but that does not mean that the sentencing court should ignore those facts which exist only by reason of the offenders' membership of such a group.

(B) The relevance of the aboriginality of an offender is not necessarily to mitigate punishment but rather to explain or throw light on the particular offence and the circumstances of the offender.

(C) It is proper for the court to recognise that the problems of alcohol abuse and violence which to a very significant degree go hand in hand within aboriginal communities are very real ones and their cure requires more subtle remedies than the criminal law can provide by way of imprisonment.

(D) Notwithstanding the absence of any real body of evidence demonstrating that the imposition of significant terms of imprisonment provides any effective deterrent in either discouraging the abuse of alcohol by members of the aboriginal society or their resort to violence when heavily affected by it, the courts must be very careful in the pursuit of their sentencing policies to not thereby deprive aboriginals of the protection which it is assumed punishment provides. In short, a belief cannot be allowed to go about that serious violence by drunken persons within their society are treated by the law as occurrences of little moment.

(E) While drunkenness is not normally an excuse or mitigating factor, where the abuse of alcohol by the person standing for sentence reflects the socio-economic circumstances and environment in which the offender has grown up, that can and should be taken into account as a mitigating factor. This involves the realistic recognition by the court of the endemic presence of alcohol within aboriginal communities, and the grave social difficulties faced by those communities where poor self image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects.

(F) That in sentencing persons of aboriginal descent the court must avoid any hint of racism, paternalism or collective guilt yet must nevertheless assess realistically the objective seriousness of the crime within its local setting and by reference to the particular subjective circumstances of the offender.

(G) That in sentencing an Aborigine who has come from a deprived background or is otherwise disadvantaged by reason of social or economic factors or who has little experience of European ways, a lengthy term of imprisonment may be particularly, even unduly, harsh when served in an environment which is foreign to him and which is dominated by inmates and prison officers of European background with little understanding of his culture and society or his own personality.

(H) That in every sentencing exercise, while it is important to ensure that the punishment fits the crime and not to lose sight of the objective seriousness of the offence in the midst of what might otherwise be attractive subjective circumstances, full weight must be given to the competing public interest in rehabilitation of the offender and the avoidance of recidivism on his part.

28 What follows are the remarks I made in passing sentence. They were delivered extempore, and in them I am speaking to the offender. I have left them in those terms and incorporate them into this judgment.

29 You may remain seated. I am talking to you, and I do so for two reasons. One is to make clear the basis upon which the court proceeds with sentence, to make that clear for public reasons, but also to make clear to you the framework, as I see it, in which I must deal with the case. The other thing is just to simply let you know the basis upon which I approach it and why I do what I do.

30 Now, you have been convicted by Blaxell J of the offence of murder on your own plea earlier, when you appeared before the court, and the matter was remanded for sentence and reports to be obtained. I have now had the benefit of those, including a report from Dr Hilton, a private consultant pathologist to which Mr Giudice referred your case for his observations about it. Dr Hilton is a very experienced man in that area.

31 So I have had the benefit of that, as well as reports by the psychiatrist, Dr Febbo, who spoke to you and saw you, and the psychologist, Ms Borg, who similarly was involved in discussions with you and has reported to the court. Then there is the pre-sentence report itself, which adds a little to that picture, and I will come to that in a minute.

32 The question which is crucial and central to the sentencing process today is the intention with which the act of killing was accompanied, and I take the view that I should make my findings about that intention on the basis that I am satisfied of the relevant facts beyond reasonable doubt, on the criminal standard of proof that we apply in the court, because it has a direct and materially aggravating part to play in the seriousness with which the law would regard the killing that has occurred.

33 Now, I say immediately that there is no evidence, and it is not suggested, that I should come to the conclusion that when you killed the deceased you intended to cause her death. There is no suggestion of that.

34 The question is whether there was at that time an intention to cause her bodily injury of such a nature, of such a seriousness, as to be likely to endanger her life, and I tell you that, having heard the arguments that the lawyers have presented on both sides and having looked at the factual material that has been put before the court, I am of the clear view that the appropriate finding, beyond reasonable doubt, is that you did, when you attacked her and caused her death, intend to do her bodily injury of that degree of severity; that is, sufficiently serious to be regarded as being likely to endanger life.

35 I should tell you the facts upon which I proceed. They are the facts, which I accept with the one qualification that has been introduced to them, as read out by Mr Mactaggart, the prosecutor. I need to say a couple of things about them, and these seem to me to be matters which materially bear upon the decision I make about the intention with which your conduct was accompanied.

36 In the first place I note that you were, during the previous night and the previous day, apparently drinking heavily. You had quite a lot to drink. You were, as you said to the police yourself, drunk, at the relevant time. You had been smoking cannabis during that day and that no doubt also had an effect upon your state at the time, but you were still mobile and you were still actively making decisions about what to do.

37 When you decided to return home, I accept that you then looked for and located the deceased and got her to come home. I accept that at that time, when she was located, the circumstances were, at least from your point of view affected by alcohol as you were, suspicious that she had been misbehaving with another man sexually.

38 I need not go into the detail of those circumstances, but you found her and you required her to come home and the argument developed. I accept, because I think it is significant, that she confessed to a degree, that she had been sexually misbehaving herself, but said to you, 'Don't be wild about it. It's of no importance,' or words to that effect.

39 Nonetheless, you were wild about it. You became very angry. You are a person who may be adversely affected by jealousy. You became angry, I think, because of that, because of the fact that she was being unfaithful to you and because you were gravely intoxicated. The anger, I think, was certainly what produced the violence.

40 I think all the evidence supports the conclusion that you attacked her with the intention to punish her severely and to hurt her badly and that, as I say, in the end translated into an intention to cause her injury of sufficient severity to be able to be properly described as life threatening, or likely to be life threatening.

41 It is perfectly apparent that the attack was substantially with a knife, although I accept that there may have been another weapon used at some stage. But certainly the major part of the attack was with a knife, and it was persisted in, despite what appears to be her efforts to defend herself, resulting in what Dr Hilton supposes to be defensive wounds received by her. She tried to defend herself but you soon overcame her.

42 The fact that the blows were struck particularly in the region of her legs does not seem to me to be of particular significance in reaching a conclusion about the intention with which those blows were accompanied. There is certainly no suggestion that you endeavoured to avoid striking her in the torso, in the chest or in an area that might more directly express an intention to do serious harm, indeed even to kill, and I think the blows were simply struck repeatedly and randomly with the intention of causing her serious harm, without them being struck particularly at a part of her body which was chosen for any reason.

43 There were a considerable number of blows which were struck with the knife and she suffered a great number of penetrating stab wounds, one to her head and mainly to the limbs. There were 18 incised wounds to the deceased, a majority to the right leg, as well as other numerous lacerations and superficial abrasions to her head, neck, limbs and torso. All the evidence supports a generalised attack upon her and one that was persisted in for some time.

44 I do not think there is any doubt that it started in the bedroom and I do not think it matters how she came to be in the passageway outside the room, but I do note the evidence of the witness who heard you calling out to her, 'Get up, get up.' Whether it was in your mind at that stage to resume the attack if she should do so, I do not know and it does not matter. You were there standing over her at least, I would find, in the passageway.

45 When that was over, once you appreciated what you had done, at least that she was very gravely injured, I think your first thought was to get rid of evidence of your involvement, and you sought to do that in the shower. The shower was still running when the police arrived some time later. The knife, which I think was quite evidently a knife that was picked up deliberately from somewhere in the house for the purpose of using it as a weapon, was there in the bathroom where it had been left.

46 You fled into the bush. You removed a singlet and bloodstained footwear and I think you left those items in the bush, realising that they may well contain evidence of your guilty involvement with the deceased in the circumstances that I have described. It is to your credit that that response to what you had done was a response which passed away relatively quickly and you realised, I find, that you had to go and turn yourself in and I think you were at that time overcome with remorse for what you had done, clearly realising that at least she was gravely injured, if not dead.

47 You went to the police. You had had little to say to them. I draw no conclusion about your behaviour in that regard but I think it is perfectly evident that once you were seen by the psychiatrist, Dr Febbo, and the psychologist, Ms Borg, and you spoke more freely and openly to them as to what had occurred, your expressions of remorse and deep sadness for what had happened were perfectly genuine.

48 You carried that forward and expressed it in the plea of guilty that was made. As I said to counsel during the course of the hearing it seems to me that the expression of remorse, its unprompted nature and its obvious genuineness is a much more powerful circumstance in mitigation that is available to you than the plea itself.

49 I should say that although I have had regard to the sort of incidents that have occurred and which have resulted in convictions on previous occasions, they do not seem to me to illuminate anything of particular significance for sentencing purposes in relation to the fatal attack upon the deceased on the night of 19 August 2009.

50 I turn to the matters which are the subject of the reports by Dr Febbo and Ms Borg. As I say, the pre-sentence report simply confirms that upon the basis of the acceptance of the accuracy of those opinions, the matters of treatment and assistance, which appear clearly to be required in your case, would need to be addressed with some care during the period of time which you must serve of the sentence which I must impose.

51 I note that you told the court, through your lawyer, that you are keen to get started and do some work in relation to that, understanding that unless you do your future looks very grim indeed. So it is a matter that you need to push for when you are in the prison. You need to keep at it. You need to seriously engage in it if it is to be of any benefit to you. That sort of work is lengthy, it is hard and it requires persistence. It requires determination that you have certainly never shown in your life thus far.

52 May I say something briefly about your history? It is exemplified of course in the very long record of criminal convictions which you have accumulated, but there is nothing, I suppose, in one dreadful sense, remarkable about that document. It is a document of the sort which for a person in your situation this court sees regularly and distressingly often, but it does I think confirm the public face of what is otherwise evident in the expression of the opinions by the psychiatrist and the psychologist, and that is that much of what is causally related to the extremely violent attack which was perpetrated on this woman when you killed her is a reflection of the awful situation in which you were placed as a child growing up, and in the breakdown of the community of which you are a part.

53 There are some particular aspects of that to which I should refer because I think I may properly have regard to them in mitigation of punishment. The first is that you are a man who has been brought up and inculcated into the tribal law of your community, and so I accept that although I must impose a lengthy term of imprisonment, you will do that period of service harder than others in the community would do, for reasons which need not be amplified, but it is because you are the sort of person you are that that is going to be the case. I have regard to that.

54 In addition, another feature is that, for a relatively long period of time, there will be an inability for the tribal group, of which you are a part, to carry out its own expression of punishment in a tribal way, and I understand, because I have heard evidence of this before often enough, that the delay can be and will be, in your case, a matter of particular hardship.

55 You will be unable to achieve any closure in relation to the awful thing that you have done. You will be unable to complete and undertake properly a grieving process for the deceased woman and her loss. Those who are associated with you in a family way will also be in a position where, either as members of the victim's family or members of your family, the closure which tribal punishment may bring will be put on hold for a very long period. It will not go away, and that makes worse, the punishment the court must impose.

56 I do not want you to understand by those remarks that I approve of that process of tribal punishment by which the community takes the law into its hands. But I know that is the way, and I have regard to the fact that that is the way, in imposing sentence upon you. I have mentioned your remorse and the genuineness of that, and how that is necessarily put on hold and made to linger for a long period by the circumstances to which I have referred.

57 It is very evident, I think, and I do not think that Dr Febbo and Ms Borg were saying anything different from each other about this, that you are the sort of person they describe. You have the sort of antisocial and paranoid personality disorders, I accept, that they describe.

58 Perhaps, putting it bluntly, an important reason for that is that from early in your life as a child and then on into adulthood in your immediate family, in the wider family groups and in the wider tribal situation of which you are a part, you have regularly seen violence, often considerable violence, as a response to disagreement. Violence by men upon men and men upon women, women upon women and women upon men on occasions, although as Mr Giudice says, in the latter situation often there are different reasons involved. That sort of extreme expression of violent behaviour has become normalised for you.

59 I think it is a great thing for you that finally in this dreadful situation you may be coming to the view that it is not normal; that it is not right, and that something has to be done about it if you are to have any degree of useful life ahead of you, although you are still a young man.

60 It is a matter which I have regard to, although I think it is also noteworthy that the ordinary behaviour of idleness, aimlessness, lack of purpose in your life, habitual intoxication, habitual use of cannabis, have exacerbated the tendency to offend to which I have referred and made it worse. I think it is a mixed bag of influences that produced that state and it is important that I have, in accordance with the law, the capacity to consider those influences as a matter of some particular mitigation and I do regard them in that way.

61 The importance of you coming to an understanding about what things are producing your present impaired thought processes and psychological condition is that there is also clear evidence, and the opinion is offered by Dr Febbo, about your danger to the community, particularly I would think to people with whom you come into close association and, perhaps even more particularly, members of the opposite sex, women with whom you become involved.

62 You are a danger to people like that and there is a moderate to high risk, Dr Febbo says and Ms Borg agrees, that you will for a foreseeable period in the future remain a danger to the community or that section of the community to which I have referred. So that limits the extent to which I can simply react by allowing mitigatory effect to the sort of matters to which I have referred. In the end the task that I have to perform is one about which the law is very clear.

63 I must, for various purposes which are of no interest to you, endeavour to fix a sentence which is properly proportionate to the seriousness of the offence which was committed, having regard to the matters which are personal to you to which I have referred, which, as I say, can be identified as having a degree of mitigatory effect. There are some particular matters that need to be attended to in relation to sentence.

64 In the first place Mr Giudice urges upon me that I should have regard to a section of our law which says that ordinarily I would impose life imprisonment upon you unless to do so would be clearly unjust given the circumstances of the offence and the nature of the person before the court. I think that is not the case. In addition I would have to be of the view that the offender, you, would be unlikely to be a threat to the safety of the community when released from imprisonment if I was to take a course other than to impose life imprisonment. It will be perfectly obvious to all who listen that I am not of that view.

65 This is not a case where I may do anything other than impose a sentence of life imprisonment. What does that mean - that sentence? Another law sets it out. It says that upon the imposition of that punishment I may make an order that you must never be released. I am told to give consideration to that if it is necessary to do so in order to meet the community's interest in punishment and deterrence, and the only matters I may have regard to in that regard, although it seems to me to be extraordinary that the law should be framed in this way, are the circumstances of the commission of the offence and any aggravating factors.

66 I say immediately that I am not of the view that I must make the order that you never be released and so this will be a sentence of life imprisonment in respect of which I will fix a minimum term before the expiration of which you may not be released. That minimum period must be at least 10 years in length, but as I say, in the end, within the context of that framework of the law, the task which I must perform is to consider the circumstances of the commission of the offence, those things which mark out how serious it is, as well as what I can find in your situation which enables me to reduce the punishment which might otherwise be appropriate.

67 So in the end, I look for a sentence which is proportionate to the gravity of the offence and your culpability. In all the circumstances of this case it seems to me that the minimum period which should be fixed is one of 14 years and I make that order. I will backdate the sentence to let it run from the day when you were first taken into custody in relation to this matter on 20 August 2009. That will mean that the minimum term will commence to run on 20 August 2009. So it has been running then for some time and the period that you have been serving in prison since 20 August will count in that way.

68 That is all I wanted to say, Mr Wongawol. The court will now rise and at the rising of the court you may stand down.