After stabbing the deceased, the applicant returned to the party and told his girlfriend that he had stabbed someone and that they would hear the ambulance soon. One of the other guests observed the applicant and said that "old Keith Stutterd has been stabbed up the road". In response to this, the applicant was alleged to have said either "a fucking stabbing in Somerset, not little Somerset" or "a fucking stabbing in Somerset; that will liven the old place up, not little old Somerset". On either version it was a remarkably callous comment. It was not challenged in cross-examination.

On 17 February 1986 the applicant was spoken to by police and claimed to have gone to bed at the place where the party took place and not to have left it. He repeated his denial of any involvement on 26 March 1986, but on 8 April 1986 told police he had taken a knife to slash some tyres and en route had bumped into a person named Chris O'Loughlin who said he did not like Mr Stutterd. Thereupon the applicant told police he had gone to the deceased's front door, knocked on it and stabbed Mr Stutterd when he answered it. Asked by the police why he did so, he said "to impress the other bloke I suppose - I didn't really mean to kill him. I just meant to stab him and frighten him". The next day the applicant changed his story and claimed that O'Loughlin had suggested they rob Mr Stutterd and when the latter opened the door, O'Loughlin had assaulted him and the applicant had stabbed him, thinking he would recognise them. This account was contrary to Mrs Stutterd's evidence and the Crown case was that there was no other person with the applicant at the time he stabbed the deceased. By now he was in custody and in a clumsy effort to suggest he was being framed by somebody else, gave his girlfriend a note which he asked her to put in a bottle and throw against his mother's house in the expectation that she would take it to the police. The note read:

"Take this here letter to the pigs if you want your boy to stay out of 'Jail' seeing he's done a top job not to dob us in to the fuckin pigs. We didn't mean to kill the old man but he wouldn't give us any money so we had to stab him he would of described us. We found out were [sic] your boy lives and sent him a letter saying that if he described us we'd kick his fucking head off, and if he dose well [sic] still fuck him up and his little woman. By the way pigs you'll never catch us because we've got another rig. Ha. Ha.

Dont try and trace the writing because you will never trace it PIG."

On 21 April 1986 he signed an acknowledgement that he had written the note and asked his girlfriend to deliver it as described above.

A Mr Christopher Barry O'Loughlin of Somerset gave evidence that he was at home all evening on the night of the stabbing, had nothing to do with it and did not know the applicant. He was not cross-examined.

At his trial he made an unsworn statement claiming to have felt depressed at the party and to have left with the knife, contemplating doing himself harm with it. He had met a man whose name he believed was Chris O'Loughlin who had suggested the robbery of Mr Stutterd, and when the latter had answered the door, "O'Loughlin" had assaulted him. The applicant had the knife in his hand and when Mr Stutterd tried to get away, he had brought his hand up intending only to keep the deceased away from him. He claimed he had not intentionally stabbed him.

Clearly the jury rejected the applicant's accounts. On the Crown case the applicant knocked late at night on the door of a complete stranger and when the elderly householder answered the door, he stabbed him in the chest and fled. It appears he did not even speak to him. All his counsel on the hearing before me was instructed to say in relation to the offence was that:

"The applicant has no explanation as to why he committed the events of the evening. He did have an alcohol problem, he had been drinking on that occasion but he does not offer that up as a reason why a person who had never committed an act of violence would commit this act. He simply is unable to provide a reason and there does not appear to be one."

There was no repetition of the claim that a third man was present and I proceed on the basis that there was not.

The applicant had no serious previous convictions. He was an only child of parents who separated when he was ten years old. His father abused alcohol and assaulted his wife in front of the applicant on numerous occasions. He left school at the age of 16 without skills and remained unemployed until the date of the offence. Continual rejection by potential employers reduced his self-esteem and he sought refuge in alcohol. He had two prior convictions for drink-driving offences. Notwithstanding his problems, he enjoyed a stable relationship with his girlfriend. He also related well to his father, despite minimal contact consisting of visits every eighteen months or so and occasional telephone calls in the meantime. His father died about ten weeks prior to the murder and this caused an increase in his alcohol consumption. At times he became depressed and maudlin and on occasion even contemplated suicide. Doctor Ian Sale, a psychiatrist, examined him in August 1997 and could not find any evidence of any psychiatric or personality disorder. He thought he was probably alcohol dependent at the time of the offence. He concluded:

"Alcohol will represent his most obvious future risk. His prospect for rehabilitation probably relies heavily upon his gaining employment."

In a similar application (Re Clark, A21/1996 at 1 - 2 - unreported, available in SCALEplus) I said:

"The purpose of the Act in effecting these amendments is, clearly enough, to acknowledge that heinous though the crimes of treason and murder are, they may be committed in a wide range of circumstances which involve differing degrees of culpability. In respect of murder, the definition of the crime is set out in five separate paragraphs which contemplate a variety of different circumstances and states of mind on the part of the offender. Section 157(1)(a), for example, provides for culpable homicide to be murder if it is committed with an intention to cause death, while s157(1)(c) contemplates that an unlawful act causing death is also murder if the offender knew or ought to have known it to be likely to cause death in the circumstances, although he had no wish to cause either death or even bodily harm to any person. Then again the degree of danger such an offender may afford the public can vary from that presented by the psychotic hired killer to the greatly reduced risk presented by the misguided but well-meaning mercy killer. It was Parliament's intention to bring to an end the requirement of treating all alike with a mandatory life sentence, leaving their possible conditional release into the community in the hands of the Executive Government, and to substitute for that regime the court's normal exercise of judicial discretion in setting the appropriate punishment and determination by the court of the minimum period before which conditional release might be authorised by the Parole Board when the Board, as opposed to the court, had regard inter alia to the conduct of the prisoner during his incarceration."

Obviously the first consideration is to determine the gravity of the crime and to set a head sentence in respect of it. Since the abolition of mandatory life penalties and the re-sentencing of those previously subject to the mandatory penalty, many convicted murderers have been sentenced to finite terms of imprisonment. In some cases the prisoner has been regarded as having diminished responsibility due to mental retardation or significant immaturity (Scott, sentenced to sixteen years' imprisonment, Underwood J, 13 December 1996; Farrow, sentenced to nineteen years' imprisonment, Crawford J, 5 November 1996). A youth who stabbed another in the throat in a drunken melee was sentenced to sixteen years' imprisonment (Simpson, Crawford J, 28 February 1996). Other cases have been met with sentences of the order of twenty years' imprisonment where angry or jealous confrontations have got out of hand or where excessive force has been used in a robbery (Rudman, sentenced to twenty years' imprisonment, Wright J, 1 July 1996; Stingel, sentenced to twenty-one years' imprisonment, Crawford J, 30 August 1996; Clark, sentenced to twenty-one years' imprisonment, Cox CJ, 1 May 1996; and Williams, sentenced to twenty-one years' imprisonment, Wright J, 5 October 1995). Premeditated murders in domestic situations have attracted higher penalties (Leaman, sentenced to twenty-five years' imprisonment, Cox CJ, 10 December 1996; Murphy, sentenced to twenty-four years' imprisonment, Zeeman J, 2 July 1996). The murder of a child after sexual molestation resulted in the re-imposition of a sentence of life imprisonment and the setting of a non-parole period of twenty-five years in the case of Smith, who had previous convictions for offences of a sexual character involving young children.

It is trite law that a sentence should be proportionate to the gravity of the offence. In Veen v R (No 2) (1987 - [1988] HCA 14; 1988) 164 CLR 465 at 472 Mason CJ, Brennan, Dawson and Toohey JJ in their joint judgment said:

"The principle of proportionality is now firmly established in this country. It was the unanimous view of the Court in Veen [No 1] [1979] HCA 7; (1979) 143 CLR 458 that a sentence should not be increased beyond what is proportionate to the crime in order merely to extend the period of protection of society from the risk of recidivism on the part of the offender."

"It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible."

Murder is undoubtedly a very serious crime. As my brother Wright said in R v Williams, A64/1995 (unreported, available in SCALEplus):

"To deliberately take another human life is the gravest offence that an individual can commit. It has traditionally attracted severe penalties, and rightly so. In recent years life imprisonment has been the norm rather than the exception. Before this, the sentence was death."

This case is a bad case of murder. Although the applicant had been drinking prior to the commission of the offence, there was no suggestion that he was severely intoxicated. The liquor he drank may have contributed to his morose mood, but it in no way explains, let alone excuses, the violent and senseless attack he made upon an elderly stranger who answered the door of his own home and who collapsed from the lethal blow in front of his wife.

There was no evidence as to the applicant's psychiatric condition at the time of the trial. Doctor Sale's opinion based on his examination in August 1997 suggests that there was no psychiatric or personality disorder at the time of the offence; but the absence of any explanation for this violent behaviour is cause for concern that the public may need the protection of a longer head sentence than one of finite duration, at the elapse of which the crime will be deemed expiated and society have no further hold over him. It is accordingly a material factor in setting the head sentence which, in my view, having regard to all the circumstances, should be the maximum allowed by law.

On the other hand, Dr Sale's observations give cause for hope that provided suitable measures can be taken to avoid the abuse of alcohol, the applicant is capable of rehabilitation and should be made eligible to apply for parole "once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence" (Deakin v R [1984] HCA 31; (1984) 58 ALJR 367 and affirmed in Bugmy v R [1990] HCA 18; (1990) 169 CLR 525 at 536). In my opinion, however, the protection of society requires that if the applicant is released on parole, it should be a conditional release revocable for the rest of his life should he not observe the conditions of his parole.

Accordingly, I re-sentence the applicant to imprisonment for the term of his natural life but I order that he is not eligible for parole in respect of that sentence before the expiration of fourteen years from the date of his conviction on 6 August 1986. In setting that period, I take into account that he has been in custody in respect of this matter since 8 April 1986.