Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Non-parole period or minimum term - Minimum term during which period prisoner not eligible for parole. Gill v R 34/1990, In Re Williams A64/1995, In Re Clark A21/1996, followed. Criminal Code Amendment (Life Prisoners and Dangerous Criminals) Act (Tas) 1994. Parole Amendment Act (Tas) 1994. Parole Act (Tas) 1975.

HOBART, 16 May 1997 (hearing), 17 June 1997 (decision)

1 That Alan John Smith be sentenced to imprisonment for the term of his natural life.

2 That in accordance with the Parole Act, s12BA(1)(b) Alan John Smith be not eligible for parole before the expiration of 25 years.

3 That for the purpose of calculation of such non-parole period, the relevant date of commencement is 4 December 1975.

1. Alan John Smith has applied for re-sentencing in accordance with the Criminal Code (Life Prisoners and Dangerous Criminals) Act 1994. In 1976, he was sentenced to imprisonment for the term of his natural life, following his plea of guilty to the murder of a seven year old girl. The victim had been enticed into the offender's motor vehicle and taken to a nearby forest plantation where she was sexually molested and murdered. The applicant, who was an initial suspect to the crime, denied involvement for some two months following the abduction. Following the discovery of the child's school bag, the offender was re-interviewed but maintained his denial of involvement. He remained a primary suspect, and following further interview, admitted responsibility and took police to where he had hidden the body. He was charged and committed for trial, pleading guilty at the first available opportunity.

2. His account to police indicated that he had abducted the girl for the purpose of sexual gratification and had killed in order to avoid detection. It is not clear from his statement whether it was the victim's cries which precipitated the act of strangulation, or whether he would have killed her in any event. One is left with the conclusion that, given the nature of the abduction, the knowledge that an extensive search would follow, the time of day and the location of the assault, the act of killing was an inevitable conclusion to the course of criminal conduct. That conclusion is supported by the opinion of the forensic psychiatrist who examined the prisoner before the date of the anticipated trial.

3. At the time of the murder, the applicant, aged 21, had two previous convictions for acts of sexual assault on young children. The first occurred when, aged 15, he took a young child playing on a beach behind nearby trees or bushes and effected an indecent assault. The second occurred some few months prior to the commission of the crime of murder. The applicant had encouraged some children to go with him to a show ground, where he separated his victim from the others and indecently assaulted her. His conduct on all three occasions was that of an opportunistic predator involving the selection of potential victims when a suitable opportunity presented itself and whilst the child was vulnerable. Although there was no planning involved in relation to a specific child, there was planning in a more general sense.

4. When interviewed by a forensic psychiatrist in 1976, the offender was unable to articulate in, "... what way the situation differed from the previous situations where he had neither killed nor injured his victims". He had expressed no remorse in relation to those previous assaults. Following a subsequent interview the psychiatrist reported that:

"He (the applicant) stated, in response to a question of mine as to what was different in this last case from the (three) preceding ones, in that he killed in the last case and not in the preceding ones. He replied that he probably would have killed in the case of the last two to prevent his being found out had circumstances been such that he could have killed with impunity. In none of the three cases, however, was he able to do this owing to the exposed situation in which he committed his offence."

5. The examining psychiatrist was presumably referring to a third occurrence which had not resulted in conviction. For the purpose of determining the sentence, regard is had only to the two incidents resulting in conviction. The Criminal Code Amendment (Life Prisoners and Dangerous Criminals) Act 1994, s9, affords the court with:

"... (3) ... the same powers and duties it would have had if the applicant had been convicted by that court of the crime referred to ...",

while s9(4) provides that:

"In resentencing an existing life prisoner under this part, the court must not take into account the applicant's conduct as a life prisoner.".

6. It is not necessary for the purpose of this sentencing determination to decide whether the Act precludes any consideration of matters, other than a prisoner's conduct, which might have arisen since the date of the original sentence, since, in the circumstances of this case, the only matters referred to relate to the conduct of the prisoner since 1976 and opinion evidence dependent on observations of such conduct. But there may be occasions when significant developments in a discipline such as psychiatry would warrant a different interpretation of the material available to the original court and which could lead to a different appreciation of risk. No such issue arises here and I am required to make an assessment of risk as at the time of the original sentencing on the material available and relevant at that time. The protection of the community is a fact relevant to the determination of penalty (Veen v R [No 2] [1988] HCA 14; (1988) 164 CLR 465), although it does not permit preventive detention (Chester v R [1988] HCA 62; (1988) 165 CLR 611). The assessment must be made on the basis of what is known at the time of sentencing (see by analogy R v Carr [1996] VicRp 43; [1996] 1 VR 585), and in this case the only material which is relevant to that question is that existent as of 1976. The legislation differs from that considered by the Court of Appeal of Queensland in Ford v R (1994) 75 A Crim R 398, a case in which the court nevertheless applied constraints to the use of material obtained after the date of the original sentence. It follows that no regard is had to the material comprised in the report of a forensic psychiatrist dated 10 April 1987.

7. In determining the appropriate sentence on the basis of the material before me, the following matters are significant:

1 The act of killing a child must be equated with the most serious form of murder. The vulnerability of a child permits no amelioration by reason of provocation, excessive self-defence, inadequate emotional response and the like. No question of intoxication arises in the circumstance of this case. Although some regard may be had to the "battered baby syndrome", (Bayley, unreported, 77/1972; Scott, 13 December 1996), such can never be afforded to the abduction and killing of a child chosen by random opportunity.

2 The taking of a child for sexual purposes with a resultant act of killing must always be of the utmost abhorrence to any community.

3 The act of a random predator strikes at the very confidence of every parent that the vulnerability of his or her child will be recognised and respected by members of the community.

4 Whether the act of killing is an integral part of sexual gratification or is a consequence of fear of detection, the callousness of such act places the conduct in the category of the most extreme form of criminal conduct warranting society's sanction.

5 The impact on the community as a whole is far greater than that which attaches to most other forms of non-serial killing.

6 There existed no element of remorse or emotional response to the conduct. The offender persisted in a calculated manner to avoid detection immediately after both the abduction and the killing and during the course of the subsequent investigation.

7 The offender had previously acted as a sexual predator of young children in circumstances where their lives or safety were at risk.

8 There remains an element of risk to the community. The approach taken accords with that stated by Mason CJ, Brennan, Dawson and Toohey JJ in Veen v R [No 2], supra, in the following passage at 473:

"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."

On the material before me, there is persuasive evidence that certainly as of 1976, the applicant remained a risk to the community. The pattern of predation, the risk to the previous children, the circumstances of the killing, the absence of remorse or insight, together with the opinion of the examining forensic psychiatrist all pointed to a continued risk of future harm to the community.

9 The effect on the family of the victim is a relevant factor. Regard is had to the intense anguish experienced by the family, both before and after the discovery of the body of the victim. The learned Director of Public Prosecutions tendered materials supplied by the family as to their actual experiences suffered since the date of the imposition of the original sentence. In some respects, the provision of that material runs counter to his position adopted with respect to the reception of the recent psychiatric report; but it matters little, since reason demands the conclusion that the trauma suffered by the family will always remain. But prosecutors ought to be cautious in the formulation and presentation of "victim impact" statements in cases of unlawful homicide. In cases of death, it is the taking of the life of a person, not the regard in which that person was held, which is the dominant factor in the determination. As Zeeman J said in Inkson v R (1996) 6 Tas SR 1 at 30 - 31:

"The senseless killing of a human being cannot but give rise to outrage. At the same time particular outrage, expressed in large part because of the regard in which a particular deceased was held, is not a relevant consideration. To admit it as being relevant would give rise to the perception that punishment is to be governed by the value placed on a particular life rather than on human life in general. That would be entirely contrary to principle, as was accepted by the Court of Criminal Appeal of Victoria in R v Penn, unreported, 9 May 1994 at 6. Courts uphold the sanctity of human life. They should not put greater value on one life rather than on another or do anything which may be so understood."

The material tendered by the learned director also stated the wishes of the family in relation to the determination of sentence. Whilst the court respects and understands those wishes, its function differs. If I were in the position of the family, it is almost certain that I would have the same wish, and desire the outcome which they so understandably seek. But the sentencing process requires consideration of a range of matters, some of which are external to the human desire for retribution.

10 The age and circumstance of the offender are relevant. The applicant was 21 when he committed the crime of murder. It appears that he had been the subject of sexual abuse when he was aged 11. That may have given rise to his thoughts concerning young persons. He had married and his acts of predation occurred concurrently with an otherwise unexceptional life. It is always difficult to say that any human is beyond the possibility of change.

11 The applicant pleaded guilty at the earliest opportunity.

8. Giving weight to these factors, I have reached the conclusion that the appropriate penalty is that which was originally imposed, namely, that he be sentenced to life imprisonment. I have considered other sentences imposed in accordance with, or subsequent to, the passage of the relevant legislation. Only one sentence of life imprisonment has been imposed, and that for crimes with which no comparisons can ever be made. But it would be incorrect to regard the sentence imposed by the learned Chief Justice on Bryant, 22 November 1996, as constituting a commencement point from which other sentences should be measured. That sentence reflects an acceptance that no greater penalty could have been imposed. It does not follow that all other sentences should be less. Regard has been given to other sentences (Curtis, 30 August 1996; Murphy, 2 July 1996; Stingle 30 August 1996; In Re Clark A21/1996, and others), but I regard the murder of a child in circumstances as here occurred, by an offender who remains a risk to the community, as warranting the imposition of a life sentence.

9. Different considerations apply in the determination of parole. The Parole Amendment Act 1994, s12BA provides:

"Eligibility of life prisoners for parole

12BA ( (1) A court that sentences a person to imprisonment for the term of his or her natural life, either upon the conviction of the person for an offence or upon the determination of an appeal, must -

(a) order that the person is not eligible for parole in respect of that sentence; or

(b) order that the person is not eligible for parole in respect of that sentence before the expiration of such non-parole period as is specified in the order.

(2) An order made under subsection (1) forms, for all purposes, part of the sentence to which it relates.

(3) In determining which of the alternative orders under subsection (1) it should make, a court may have regard to such matters as it considers necessary or appropriate and, without limiting the generality of this, may have particular regard to all or any of the following: -

(a) the nature and circumstances of the person's offence; (b) the person's antecedents or character; (c) any other sentence the court has imposed on the person.

(4) A life prisoner in respect of whom an order has been made under subsection (1) (a) is not eligible to be released on parole in respect of his or her sentence."

10. The general effect of the provisions of the Act have been considered by this Court in the cases of Gill v R 34/1990, R v Parole Board; ex parte Palmer (1993) 2 Tas R 316; In Re Williams A64/1995 and In Re Clark A21/1996, and the purposes and constraints on its use and effect stated by the High Court in cases such as Power v R [1974] HCA 26; (1974) 131 CLR 623, and Bugmy v R [1990] HCA 18; (1990) 169 CLR 525. Effect will be given to the relevant propositions set out in each of those authorities. That different factors may be considered in relation to the imposition of the sentence different from those in relation to parole might appear to the community to be an artificial or illogical exercise. Given that different conclusions may be reached in relation to questions of future risk to the community, or to a possible release date, depending on which question is posed, members of the community could be tempted to regard the dichotomy as an exercise in sophistry. Yet the legislative scheme enacted by the Tasmanian Parliament is an attempt to accommodate competing principles of both law and justice. Parliaments in other states have endeavoured to reconcile those competing principles by the implementation of different models (cf, Prisons Act Amendment Act (No 2) 1983 South Australia, Crimes (Amendment) Act 1986 (Vic)), and there are practical difficulties with respect to any approach (see Sentencing Serious Offenders: A Commentary on the New South Wales Model, Nicholson, 1992 16 Crim LJ 216) but the underlying philosophy has been to attempt to reconcile the need for certainty and consistency in sentences appropriate to a particular crime whilst affording some opportunity for a future assessment of risk and change in the nature or behaviour of a convicted person. The dichotomy was expressed in the joint judgment of Mason CJ and McHugh J in Bugmy v R, supra, at 530 in the following passage:

"It has been said that '[t]he intention of the legislature is that a minimum term is a benefit to the prisoner': Iddon & Crocker v R (1987) 32 A Crim R 315 at pp325 - 326; and so it is. The effect of fixing a minimum term is that the Parole Board may thereafter, in the exercise of its discretion, grant parole: Corrections Act 1986 (Vict), s74(1); Community Welfare Services Act 1970 (Vict), s195(1), since repealed_._ But that does not mean that the sentencing judge, in fixing the minimum term, approaches the task on the footing that he or she is solely or primarily concerned with the prisoner's prospects of rehabilitation. Power v R [1974] HCA 26; (1974) 131 CLR 623 put paid to that notion. Barwick CJ, Menzies, Stephen and Mason JJ observed (1974) 131 CLR at p628:

'In a true sense the non-parole period is a minimum period of imprisonment to be served because the sentencing judge considers that the crime committed calls for such detention.'

After pointing out that the fixing of the non-parole period was concerned with deterrence ((1974) 131 CLR at p628), their Honours went on to say (1974) 131 CLR at p629):

'To read the legislation in the way we have suggested fulfils the legislative intention to be gathered from the terms of the Act, ie to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence.'

That comment was repeated in the unanimous judgment of the Court in Deakin (1984) 58 ALJR at p367."

11. That there is community advantage in the approach was recognised by the Court of Criminal Appeal of Victoria in Attorney-General v Morgan and Anor (1980) 7 A Crim R 146, a view approved by the High Court in Bugmy (supra). It is to the benefit of a community that a person cease abhorrent behaviour; it is beneficial to undertake a future risk assessment and to give consideration to the necessity for continued supervision of conduct. At the same time, there is benefit in the knowledge that a particular offender will be removed from the community for at least a specified period. It may be that future assessment will result in continuation of custody. The problem is that any sentencing tribunal, of necessity, is ill-suited to make any credible future assessment at the time of the imposition of sentence. To attempt to do so might amount to the imposition of an order of preventive restraint, disproportionate to the deserved penalty (Veen v R [No 2], supra), or one based on intuitive prediction. It is for that reason that the Parole Act permits the taking into account matters different from those relevant to the fixing of the original sentence (R v Van Beelen (1984) 36 SASR 488). Given that the applicant has already served in excess of twenty years' imprisonment:

"... the court will be in a better position to ascertain the degree of risk towards the end of a fairly long parole period, after behaviour in prison is taken into account in the limited sense in so far as it might throw light on probable post-release behaviour, and after psychiatric and other evidence is available". R v Stewart (1984) 36 SASR 186 at 188.

12. In August 1983, the applicant was examined by the present Clinical Director of the Forensic Psychiatry Services of the Department of Community and Health. No evidence of a psychiatric disorder was found. He has been regularly visited by that psychiatrist since 1983. Psychological testing in 1984, 1987 and 1988 revealed no abnormality. Two separate psychiatrists examined the applicant in 1981, 1990 and 1992. The first examining psychiatrist found indications of feelings of guilt, remorse and shame, and no evidence of a psychiatric disorder. This finding can be contrasted with the clinical observations of 1976 in which no expression of remorse was discerned. The differing findings are indicative of a process of change. In the opinion of the psychiatrist who conducted the examinations in 1990 and 1992, the applicant's sexual drive has diminished and his earlier sexual inclinations towards children have changed through the process of maturation. In April 1997, the Director prepared a report for the Director of Public Prosecutions summarising the earlier psychiatric assessments and presenting his own opinion based on clinical examinations and observations. His report contains a number of matters of significance which impact on the question of parole, which include:

1 There has been considerable maturation on the part of the applicant with attendant insight into past behaviour and realism in future possibilities.

2 There has been no evidence of mental disorder during the period of imprisonment.

3 There is no pattern of fantasy or reliving of experiences or exploits. This runs contrary to what one might expect in paedophilia which often possesses such characteristics. In the opinion of the Director:

"Although it is not possible to be dogmatic and say that he will not reoffend or that he is no longer a 'Pedophile' I feel that in my own observations which included, discreet observation of the contents of his Prison cell and taking into consideration - comments by Drs Eisen and Sale, there is strong evidence that he has matured, has become more assertive, has good grasp on real priorities of life and no evidence of psychosexual abnormalities and there is no evidence suggestive of Pedophilic tendencies."

13. Thus current psychiatric opinion shows a different person to the one observed some twenty-one years previous. Whilst there is always uncertainty in the assessment of any human behaviour, there exists proper reason for concluding that there has been an appreciable lessening of risk of repetition of behaviour since 1976. There is reason to believe that the inner person has changed, through the process of time, maturation and psychiatric guidance. Thus the opinion which I hold on the basis of the material relevant to the determination of penalty differs from that formed on material relevant to the question of parole. That difference is a natural result of the dichotomy recognised by Parliament in the two processes.

14. The applicant will be 43 in July 1997. He has been in custody since 8 December 1975, and has spent nearly all of his adult life in prison. There is prospect that he can commence a new life. Whilst some would understandably claim that the need for retribution for the taking of the life of a child and the harm caused to others warrants permanent incarceration, decisions which take into account change in the nature of an offender and which permit finite rather than infinite punishment where there is good reason to believe that the safety of the community is protected, also reflect on the nature of our society. Retribution is not our sole value.

15. Release on parole does not mean that the sentence has been served. Release is on licence and a person subject to licence can be required, at any time, to return to prison. A person released on parole remains, except under exceptional circumstances, under supervision and must comply with any terms and conditions made by a parole officer. The person is regarded as being still subject to sentence and the parole may be revoked at any time by the Parole Board. The applicant remains subject to the sentence of life imprisonment (R v Singh [1965] 2 QB 312) and the effect of any grant of licence simply permits return to society on terms. The process affords recognition that persons can change, whilst providing continued supervision. The social utility of this approach has long been recognised (R v Gills (1967) Crim LR 247; R v Whittaker (1967) Crim LR 431 and Donnelly v R (1968) 52 Cr App R 731).

16. But, Parliament, by virtue of the Parole Act, s12BA(3), permits the courts to pay regard to a wide range of matters in its determination of parole. It permits regard to character, transformation, assessment of risk and the interests of the general community.

17. It follows that a parole period will be fixed in accordance with the Act. Yet I do not believe that the parole period should permit immediate release. The period should afford the applicant some hope that his continued good behaviour and response to psychiatric advice will permit the commencement of a new life. It should afford those with a responsibility for his continued imprisonment to make further assessment of future conduct. The Parole Board will then be in a position to make a proper decision as to whether effect should be given to the intent of my determination. I accept responsibility for the conclusion as to future risk and do not seek to assign responsibility to another. My assessment is based on material ably presented to me by both counsel and any future consideration of disposition should take into account my conclusion.

18. My determination, giving effect to the above considerations, is that the appropriate period is one of 25 years, such period to be calculated as and from 8 December 1975.

1 That Alan John Smith be sentenced to imprisonment for the term of his natural life.

2 That in accordance with the Parole Act, s12BA(1)(b) Alan John Smith be not eligible for parole before the expiration of 25 years.

3 That for the purpose of calculation of such non-parole period, the relevant date of commencement is 4 December 1975.