Pollock v R

Totality 100 With respect to totality, the Crown submitted that Wood J had been somewhat generous towards the Applicant in choosing the commencement date for sentence given that the Applicant still had a significant period to serve for the sentences imposed in the District Court. As a result, there was a substantial period of concurrency between the sentences.

Determination 101 It is, of course, a matter for the Court to determine whether the application may be disposed of by setting a specified term for the sentence together with a non-parole period: cl.4(1)(a), Schedule 1. However, the Crown's submission that this is an appropriate case for such a determination assists the Court in the resolution of the application. I am satisfied that the Crown's concession is an appropriate and realistic one in the circumstances of this case.

Circumstances Surrounding the Offence 102 The Court is required to have regard on the application to all of the circumstances surrounding the offence for which the sentence was imposed: cl.3(1)(a), Schedule 1. 103 I have had regard to the submissions concerning the appropriate finding to be made, beyond reasonable doubt, with respect to the Applicant's intention at the time of the crime. It is clear, on the evidence, that a vicious and sustained attack was perpetrated by him on the deceased. It is apparent that the jury was satisfied beyond reasonable doubt, for understandable reasons, that the Applicant intended to cause, at the least, grievous bodily harm to the deceased. Wood J, as the trial Judge, did not make a finding that he was satisfied that the Applicant had acted with intent to kill. It falls to me to consider this question on the evidence adduced at trial. 104 I have had regard to the medical evidence, together with the admissions made by the Applicant principally to police in the record of interview, but also, on a more guarded basis, to the admissions made to Mr X and Mr Y. Having regard to the totality of the evidence, I am not satisfied beyond reasonable doubt that the Applicant acted with intent to kill. I am satisfied that the Applicant acted with intent to cause grievous bodily harm. 105 I acknowledge the statement in Apps v R at [49] that an intention to kill, as distinct from an intention to cause grievous bodily harm, is a consideration tending to greater objective seriousness. However, although it will generally be the case that an intention to cause grievous bodily harm is less culpable to a greater or lesser degree than an intention to kill, this is not always the case. There are circumstances where an intention to inflict grievous bodily harm could reflect similar criminality to other cases involving an intention to kill: R v Hillsley (2006) 164 A Crim R 252 at 258 [16]-[17]. There is no prima facie presumption that murder resulting from reckless indifference to human life is less culpable than murder involving one of the other categories of intent referred to in the definition of murder: R v Ainsworth (1994) 76 A Crim R 127 at 139; R v Towner [2002] NSWSC 951 at [37]. 106 This was a savage attack perpetrated for no good reason by the Applicant on the deceased, accompanied by an intention to cause grievous bodily harm. In my view, the circumstances of this case reflect substantial criminality on the Applicant's part, not far below criminality involving an intention to kill. 107 I do not accept the Applicant's submission that this offence lies towards the lower end of the range of objective seriousness. I am satisfied that the offence may be placed above that point, but below the middle of the range of objective seriousness for this offence. In using this formula, I am conscious that the standard non-parole provisions have no application to this case. Nevertheless, the identification of the objective seriousness of the offence assists an assessment of the Applicant's criminality revealed by this offence.

The Applicant's Other Offences 108 The Court is required to have regard to all offences, wherever and whenever committed, of which the Applicant has been convicted: cl.3(1)(b), Schedule 1. 109 Prior to 1989, the Applicant had an extensive criminal history for offences of dishonesty which were clearly related to his long-term use of illicit injecting drugs. However, the Applicant had no record for offences of violence before the present offence. 110 His record for gaol discipline offences since 1989 does not reveal any significant history of violent incidents. Further, his custodial disciplinary history has shown significant improvement in the past decade.

SORC Reports and Other Relevant Reports Concerning the Applicant 111 The Court is required to have regard to SORC reports and any other relevant reports prepared after the Applicant was sentenced that are available to the Court: cl.7(1)(a), Schedule 1. 112 The initial SORC report of 1997 (see paragraphs 40 to 48 above) contained a guarded assessment concerning the Applicant's progress in custody and his prospects of rehabilitation. His ongoing therapeutic use of methadone in custody, together with other areas of unsatisfactory progress, posed some difficulties for the Applicant. 113 The supplementary SORC report of 2006 (see paragraphs 49 to 54 above) points to a more satisfactory history of the Applicant in custody including improved prospects of rehabilitation if granted release. Given his continuing therapeutic use of methadone in custody, caution remains appropriate in this respect. Nevertheless, a more positive picture emerges from the supplementary report than its predecessor prepared some nine years before. 114 The psychological report of 12 October 2006 (see paragraph 53 above) provides some assistance to the Applicant's case, but also indicates difficulties which he will confront upon release. These difficulties again lie in his capacity to live outside prison without use of illicit drugs or further breach of the criminal law, in particular with respect to offences of dishonesty. Nevertheless, the psychological report, on balance, points to a structured pathway towards the Applicant's release and a framework in the community, including family support, which would promote the prospects of a law-abiding life by the Applicant. 115 The reports of Dr Lucas provide guarded support for the Applicant's release to the community. I note Dr Lucas' opinion that the risk of a further serious violent offence being committed by the Applicant is probably low. 116 The contents of the various reports support the setting of a specified term for the sentence, together with a non-parole period for the Applicant.

The Need to Preserve the Safety of the Community 117 The Court should have regard to the need to preserve the safety of the community in considering the present application: cl.7(1)(b), Schedule 1. 118 The Applicant has an extensive history of dishonesty offences prior to 1989, clearly linked to his use of illicit drugs. However, he has no prior history of offences of violence. His last assault charge in custody was in March 1992. Having regard to the Applicant's history, Dr Lucas considered that the risk of the Applicant committing a serious offence of violence is probably low. 119 Having regard to the Applicant's history, the greater risk appears to be that he will commit offences involving the use of illicit drugs, and associated offences of dishonesty, upon release. 120 On the evidence, I accept, however, that the risk of the Applicant committing a further serious offence of violence appears low.

The Age of the Applicant 121 The Court is required to have regard to the age of the Applicant at the time of the offence and at the time of the present application: cl.7(1)(c), Schedule 1. 122 The Applicant was born on 2 October 1965 and was 22 years old at the time of the offence on 9 May 1988. He has been in custody continuously since 5 October 1988. The Applicant is now aged 41 years. 123 It is apparent, as already observed, that the Applicant had a significant criminal history for offences of dishonesty, which were drug related, from the time he was 11 years old until his present incarceration at the age of 23 years. He spent a significant period of time in custody over the 12-year period between 1976 and 1988, before his present incarceration which has now occupied in excess of 18 years. 124 The present offence was committed when the Applicant was a young man. He is now approaching middle age. A significant test for the Applicant will be his ability to live a law-abiding and drug-free life upon release.

Practice of Release on Licence, Statistics and Comparable Cases 125 It is clear that cl.7(1)(d), Schedule 1 has no application to the present application. Do the factors referred to expressly in that subclause (which do not apply here) arise for considerations by means of the catch-all provision permitting reference to "any other relevant matter" in cl.7(1)(e), Schedule 1? 126 I have difficulty with Ms Burgess' submission to this effect, as a matter of statutory construction. An express reference to the particular topic in cl.7(1)(d) tends to suggest that the same subject matter cannot be considered, by a different and broader route, under cl.7(1)(e). I accept the Crown's submission in this respect. 127 I note in passing that in R v Lagopodis [2000] NSWSC 1201, Sully J observed at [24] that cl.7(1)(d), Schedule 1 applied only in the case of an applicant sentenced before 12 January 1990 and that the applicant there (like the present Applicant) had been sentenced after that date (on 7 September 1990). No issue arose in that case as to whether the former practice of release on licence could, in some other way, be taken into account on the application. 128 I do not consider that R v MJR assists the Applicant. The Applicant was sentenced to life imprisonment under a statutory scheme where it was open to him, after a specified period, to seek the fixing of a determinate head sentence and non-parole period. The principles in R v MJR have no application to the decision which I must make. 129 Even if the material concerning release on licence practice was relevant, I do not consider that the material relied upon provides particular assistance to the Applicant. The caution expressed by Gleeson CJ in R v Rees concerning reliance upon release on licence material, for the purpose of determining a non-parole period, is apposite to the present case. 130 I do not derive any particular assistance from the schedule of cases in which life sentences were redetermined under s.13A for murder involving assault. Limited factual information is provided in the schedule and care must be taken before drawing conclusions concerning a possible range of sentences. I did access the actual judgment in a number of the cases included in the schedule. Having done so, I remain of the view that they provide limited assistance in determining an appropriate non-parole period and total sentence in the particular circumstances of this case.

Contrition 131 I accept the submission of the Crown that the Applicant has not demonstrated contrition with respect to this offence. It was submitted by Ms Burgess that the Applicant had accepted the end of the legal process and accepts his punishment. It might be said, given the decision of the Court of Criminal Appeal in 2005, that the Applicant had little alternative but to accept the end of the legal process. 132 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]. I have referred to other features of the evidence before the Court which bear upon the Applicant's prospects of rehabilitation and the prospect of him committing further offences. This Court has observed that the absence of contrition cannot of itself defeat an application for redetermination of a life sentence: R v Plevac [2004] NSWSC 916 at [49].

Totality 133 It is clear that the totality principle applies to re-sentencing on a life sentence redetermination application: R v Salameh [1999] NSWCCA 300 at [30]. In this case, it was the District Court which sentenced the Applicant in 1989 and 1990 to lengthy terms of imprisonment for break, enter and steal offences. I have no information concerning those offences beyond that contained in the Applicant's criminal history. 134 The issue here is the extent to which any determinate sentence which I fix for the offence of murder will run concurrently with pre-existing sentences of imprisonment imposed by another Court for serious offences of a different type. 135 It was common ground before me that any determinate sentence which I fix ought commence on 20 November 1990. Accordingly, it is appropriate to have regard to the significant period of concurrency during which the Applicant's sentence for murder ran together with his sentences imposed in the District Court. 136 As the determinate sentence for murder which I fix must be backdated to 20 November 1990, I ought not disregard these other sentences as otherwise the Applicant would, in effect, only be punished (after 20 November 1990) for the murder and not the other offences: R v Purdey (1993) 31 NSWLR 668 at 680; R v Salameh at [30]-[36]; R v Maiden [2000] NSWCCA 519 at [21]ff. 137 In my view, it is appropriate to treat that part of the Applicant's incarceration up to July 1992 as being referrable essentially to his District Court sentences. To approach the matter otherwise would see the Applicant serving no significant identifiable sentences for serious offences of dishonesty committed by him against the background of a long history of offences of dishonesty at that time. The magnitude of the sentences imposed in the District Court in 1989 and 1990 reflect the gravity of the criminality involved in those offences.

The Appropriate Sentence 138 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 at [57]. 139 In setting a non-parole period, I recognise that I am setting a period at the expiration of which the Applicant will merely be eligible to be released, but will not necessarily be released. It will be a matter for the State Parole Authority to consider whether it is satisfied, on the balance of probabilities, that the release of the Applicant on parole is appropriate in the public interest: s.135(1) Crimes (Administration of Sentences) Act 1999. 140 In setting a non-parole period, I am required to set a period which I consider to be the minimum term that justice requires that the Applicant should serve in prison having regard to all the circumstances of the offence: Power v The Queen (1974) 131 CLR 623 at 628; The Queen v Bugmy (1990) 169 CLR 525 at 536; R v Simpson (2001) 53 NSWLR 704 at 716-717. 141 Having regard to the various matters to which reference has been made in this judgment, I have determined that it is appropriate to set a specified term for a sentence, together with a non-parole period for the sentence under cl.4(1)(a), Schedule 1 of the 1999 Act. 142 I set a specified term for the sentence of 24 years' imprisonment commencing on 20 November 1990 and expiring on 19 November 2014 with a non-parole period of 17 years and nine months commencing on 20 November 1990 and expiring on 19 August 2008. I specify 19 August 2008 is the earliest date upon which the Applicant will be eligible for release on parole.

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