R v Craddock [2004] VSC 397

9. On the following day, the deceased went to work and the prisoner stayed at home. At approximately 6 PM the deceased returned home from work. He and the prisoner had dinner together. At about 8:30 pm they again engaged in sexual activity following which the deceased went to bed and fell asleep. The prisoner sat in the lounge room where he drank five cans of Jim Bean and Cola while thinking about killing the deceased. He obtained a knife from the kitchen - 20 cm long. Being concerned that it might be not sufficient, he retrieved a wood splitter from behind the shed in the garden. He wanted to make sure that he killed the deceased because if he did not, he would go to jail for attempted murder but the deceased would not be punished for his prior sexual abuse of the prisoner.

12. Armed with the two weapons, he made his way to the bedroom. He struck the deceased twice with the wood splitter. The deceased managed at the time of the second blow to get to his feet. The two struggled and the woodsplitter fell to the floor. The prisoner then produced the knife and stabbed the deceased a number of times. The two continued to struggle and the struggle continued into the lounge room where they fell to the ground. During the struggle the deceased gained possession of the knife but the prisoner regained it and continued to stab the deceased until he struck what was probably the fatal blow. In all there were 30 stab, incised and abraded injuries to the deceased. As soon as he was sure the deceased was dead, the prisoner rang "000". He told the person who took the call that he had attacked and killed the deceased with a woodsplitter and a knife and that he had done this as revenge for sexual abuse he had suffered as a child. The transcript of the conversation reveals great distress on his part. The operator kept the prisoner on the phone until the police arrived. They described him as being visibly distressed and sobbing. He made comments such as "What have I done!" And "You've ruined my childhood" and "He shouldn't have fucked with my family".

The allegation of sexual abuse and its connection with the murder

16. As appears from the record of interview conducted on 6 and 7 November 2003, the prisoner alleges that the deceased had sexually abused him from about the age of 12 until his family moved from Stratford to Bacchus Marsh. He told police that, since being abused, he had had the desire to kill the deceased but had not had the courage to act. He said that in 1999, after a period of no contact, their paths had crossed and he set about trying to regain the trust of the deceased with the intent of killing him. From then until the events of 6 November 2003, he said that they had engaged in sexual activity on some 10 occasions.

19. The prosecution does not concede that sexual abuse occurred or that, if it did, it had any connection with the murder of the deceased. It does concede, however, that the prisoner believed it had occurred and believed he was punishing the deceased for that abuse. It also concedes that, if that were the case, that belief would be relevant to the culpability of the prisoner and be a mitigatory factor. Before proceeding further, therefore, it is necessary to determine whether sexual abuse did occur and whether it was that which motivated and led to the killing.

22. The relevant evidence comprises the statements of the prisoner to various people including the police and hospitals and their staff, observations of family and friends of the behaviour of the prisoner during and following the alleged sexual abuse, evidence of the behaviour of the deceased in his dealings with the prisoner's family including his younger brother Mitchell and expert opinion evidence, the latter in turn, of course, relying substantially on the statements of the prisoner and his behaviour. We do not of course have the deceased's account of the past. The evidence that is available needs to be carefully considered bearing that in mind. After doing so, however, I have come to the conclusion that the case for sexual abuse is very strong indeed.

25. The only direct evidence is that of the prisoner but that is supported in a number of ways:

* Plainly, sexual activity occurred between the deceased and the prisoner on 6 November 2003. The deceased at that time was in his 40s and prisoner 23 years of age. This activity suggests a sexual relationship of some sort had been in existence prior to 6 November 2003.

* There was a significant and dramatic change in the behaviour of the prisoner and his relations with his family at about the time when he says the sexual abuse began. I accept the evidence of his mother and others that he changed from a happy and loving 11 or 12 -year-old to a withdrawn and unhappy one.

* Against the wishes of his parents, he left school and left home at the age of 15 and took up an itinerant life which involved alcohol and drug abuse and resulted in a number of visits to hospital after episodes of self-mutilation. In the course of his visits he spoke about his suicidal feelings and, in later visits, the sexual abuse which he linked to his suicidal feelings and desire to self-mutilate. While at one time[1] he was diagnosed as suffering from a psychiatric condition, the expert evidence now contradicts that diagnosis and accepts a connection between sexual abuse and his disturbed behaviour.

* When he was 16, he spoke to Ms Hart, the mother of his then best friend, about being sexually abused. She described him as being very distressed. He gave few details but spoke generally about his feelings for over one hour. He did not identify the person responsible but said that he was a friend of the family when they were living in Stratford. She has remained in contact with the prisoner and describes his condition as deteriorating since that time. This is confirmed by his medical history and his offending history.

* Since the killing, he has been described by those who know him as being at peace.

33. I propose to refer in more detail to the medical history and the expert opinion evidence that has been made available. This evidence is particularly important.

* 14 October 1999: The prisoner was then aged 19. He presented to Sale hospital in an agitated state with superficial wounds to his wrists. The hospital recorded that he appeared to be affected by alcohol. Before he could be assessed and assisted he absconded. The police were alerted. He was seen at the hospital the following day. He said he was embarrassed about the previous night and that he believed he had "some" drug and alcohol problems that he needed help with and he was agreeable to a referral to CENGAS. The Progress Notes record a conversation with his mother in the course of which she reported a three year history of deteriorating behaviour and mood swings, loss of temper, frequent fights and violence towards others. She was also recorded as stating that he regularly smoked dope and abused alcohol. .

* 8 April 2000: He was again admitted to the Latrobe Regional Hospital. On examination he was found to have multiple self-inflicted wounds. He had been suffering depressive symptoms for the previous 12 months with suicidal thoughts. He had a history of illicit drug and alcohol abuse. He had attempted to harm himself on the previous Friday night by taking an overdose of Temazepam with alcohol and turpentine. Recent stressors were identified as alienation by his family and threats of physical harm for drug debts.

* 30 April 2000 to 29 May 2000: The prisoner was admitted to Latrobe Hospital between those dates. The notes reported that his admission followed an overdose of alcohol and Temazepam and the slashing of his chest and right wrist requiring a total of 11 stitches to close. The notes record depression and persistent thoughts of suicide, noting depressive disorder, self harm and borderline personality disorder.

* 16 June 2000: He was admitted to the Latrobe Regional Hospital after being arrested for shop lifting a bottle of alcohol. In police custody he threatened to self-harm, was demanding admission to hospital and was very manipulative (according to the discharge summary). The hospital record states that "Patient had no psycho-pathology" and notes as stressors, the death of a friend from a heroin overdose and breaking up a week earlier with his girlfriend. He was discharged the same day having been seen by a psychiatrist with plans in place to sort out his accommodation through CENGAS. The record also states a psychiatric diagnosis of "borderline personality disorder with drug and alcohol abuse."

* 23 June 2000: He was assessed by Charles M. Huson, a psychologist, at the request of Ms Dawn Schembri to assist in the assessment and treatment of his addiction problems. In his report, Mr Huson noted that the prisoner told him that he had been using drugs and alcohol on an increasing basis since he was 11 years old. At the time of the assessment, he stated that he had undertaken hospital withdrawal program and had been clean for about two months. Prior to that he had been consuming beer, wines and spirits daily and in large quantities, marijuana since the age of 13 in increasing quantities and heroin heavily for the previous 18 months. He reported mood swings and insomnia averaging about three to four hours of intermittent sleep. He also reported smoking approximately 20 cigarettes per day. Psycho-metric test results showed high anxiety and moderate to severe depression. Mr Huson stated in his report that he was not certain what was the underlying condition of the prisoner. Significantly, he stated -

"He certainly appears to be traumatised but, I am not sure whether this is mostly due to his drug and alcohol abuse or from circumstances within his family of origin."

He indicated that he would undertake personality assessment and advise of his findings. The results of the personality assessment, using MMPI-2 questionnaire were contained in a report dated 3 July 2000. He expressed the following opinion:

"The way Ben answered questions combined with the computer output suggests that he has either: a schizophreniform condition; personality disorder; or a paranoid condition brought on by his long-term drug abuse. Taken together, the validity indicators, interim conclusions and the clinical scales confirmed these findings."

He also recorded a suggested treatment plan which included continued detoxification, medication to assist with anxiety reduction, long-term depression and a mood stabiliser, relaxation training, biofeedback and post traumatic stress disorder treatment.

It should be emphasised that up to this point, the medical records did not note any discussion of sexual abuse.

46. The medical records supplied do not relate to the period between June 2000 and January 2002 and there is no medical evidence for that period. There is other evidence relevant to that period. I note that on 24 July 2000 the prisoner was convicted on charges of theft, damaging property, tampering with a motor car and failing to appear on bail and he received a community based order which included conditions relating to treatment and medical, psychological and psychiatric assessment. On 15 January 2001, however, he was brought before the Magistrates' Court at Moe for a breach of that order and was sentenced to be imprisoned for an aggregate term of one month suspended for six months. On the same day he was convicted of further property offences, burglary and theft, driving offences and failing to appear on bail. For those charges he received an aggregate of two month's imprisonment suspended for nine months on six of the charges and one month's imprisonment suspended for six months on the others. All licences were cancelled in respect of the remaining charges and he was disqualified from obtaining a licence for six months. I note also that from December 2001 he was receiving assistance from the Western Region Accommodation Program and, in particular, valuable assistance from Mr Turner. This resulted in him receiving accommodation and support from 19 December 2001 to 13 March 2002 and he was on their Outreach Program until 20 September 2002.

49. Returning to the hospital records, the next record of hospital attention relates to an admission on 7 January 2002. There is reference on that occasion, for the first time in hospital records, to an allegation of sexual abuse.

* 7 January 2002: A psychiatrist with the Mid-West CATT, Dr Akinbiyi, in a report of that date noted that the prisoner had been living in a WRAP program for the past five weeks. He reported that he had presented at CATT

"with a two-week history of low mood, poor nutrition, lower energy, decreased interest, social withdrawal, negative thoughts, poor sleep bordering on total insomnia, nightmares and poor appetite."

After commenting on his poor relationship with his family and noting that he had been living out of the family since the age of 16 years, Dr Akinbinyi then referred to a long history of substance abuse involving heroin, speed, ecstasy and cannabis. He referred to there being a history of sexual abuse on many occasions between the age of 8-11 years noting also that the family was aware of it. He also noted a history of mood disturbances lasting for months over the previous two to three years and a past history of self-mutilation and overdosing occurring in response to low and angry mood. He recorded that the prisoner's related drug use, self harm and low mood to negative life experiences. His report noted that the prisoner had been commenced on antidepressant therapy with daily home visits to supervise medication and monitor his mental state. Relaxation techniques were discussed. He concluded that the prisoner was currently stable on medication and was no longer having suicidal ideation and his mood had improved. His final comment was that the prisoner would benefit from sexual abuse counselling.

* 22 January 2002 to 6 February 2002: During this period the prisoner underwent further assessment and treatment. The record states amongst other things that he was experiencing regular thoughts of suicide although he also reported that he had no intent to act upon those thoughts. Handwritten notes contain details consistent with Dr Ackinbinyi's report including the reference to sexual abuse and family awareness of it. On 28 January 2002 notes of a home visit record that there were superficial cuts on his stomach and torso - approximately 10 cuts of approximately 5 cm in length. They record that the prisoner said that he had done those on Friday night in response to being angry with his parents - to whom he had spoken on Friday morning. He is recorded as complaining that a fellow resident had hassled him constantly about what was wrong and that got him thinking about the phone call and he cut himself. The notes record him stating that he would have cut himself more seriously if he had had access to a sharp knife. The notes record a nightmare the previous night but that despite that, and the self-harming, the last three days had been the "best" days he had had in the previous 11 years. The notes also record that he had telephoned his parents that day and spoken to his sister but that his mother had yelled in the background negative things about him . In addition, he stated that his mother had said that he could not look after himself so should never let him see his brothers. This made him very angry. I also note that there is reference in the records of this period of treatment for his occasional substance abuse. On 6 February 2002, CATT ceased to be involved and his care was transferred to Dr Dinh

* 7 February 2002: The prisoner was admitted to the emergency department at Sunshine hospital at 1900. He had an open laceration to his left forearm and other wounds. He received 26 sutures to his left forearm and hand due to some superficial wounds. His mental state was described as "depression".

* 28 February 2002: The prisoner was treated for multiple bruising and abrasions resulting from him punching a number of solid objects including glass.

* 7 March 2002: He presented to the Sunshine Hospital Emergency Department with superficial lacerations to his left forearm and multiple cuts that were not deep and about two to three centimetres in length.

* 21 April 2002: The prisoner was treated at the Sunshine Hospital having threatened to jump off a railway bridge in front of a train at Sunshine Station. The notes record that he had had an argument with his girlfriend. He was brought to the hospital by the police.

* 14 June 2002 to 17 June 2002: The prisoner was admitted to the Sunshine Hospital Emergency Department on referral from the CATT team after self-inflicting multiple superficial lacerations to his forearms with a razor blade and voicing suicidal ideation. The notes record him describing nightmares of increasing frequency and intensity relating to childhood sexual abuse that he had experienced when he was eight years old and also related to the death of a girl friend who suicided by hanging herself three years earlier. He reported "lowered mood" and a daily use of intravenous amphetamines. He had ceased taking his medication of Sertraline a month earlier because he felt it was not helping with his mood. He was admitted to the Acute Psychiatry Unit as an involuntary patient. The notes record him describing his self harming behaviour as giving him a "sense of relief".

* 9 July 2002: The prisoner was again admitted to the Sunshine Hospital Emergency Department with 20 to 25 superficial lacerations to the lower chest and upper abdomen and left and right forearms. The notes record that he felt angry and that things were getting on top of him.

62. There are no other hospital records produced. Recent expert evaluation negates psychiatric illness as an explanation for what occurred and supports the explanation of sexual abuse. I was referred to two reports - from Ms Warren, a psychologist and Dr Jager, a psychiatrist. Both accept the history of sexual abuse and its connection with his mental state at the time of the murder. Ms Warren stated that when she saw the prisoner for assessment, he was severely depressed and had symptoms of suicidal ideation, apathy, insomnia, loss of enjoyment of previously enjoyed activities, worry and transient stress induced psychotic phenomena of auditory hallucinations. She expressed the opinion that the depression manifested itself from about the age of 14, noting that that was when he recalls first considering suicide attempts via either an overdose or the slashing of his arms. He also expressed the opinion that his slashing of his body was more often something that provided tension release or reassurance of feelings by a temporarily cessation of a disturbing feeling of numbness. She also stated that he fulfilled the criteria for Post traumatic stress disorder; re experiencing the event (nightmares and daytime memories), avoidance (detached and estranged from others) and increased arousal or physiological re-activity (insomnia, impaired concentration and hyper vigilance). He now also experiences nightmares often associated with the murder. He also has symptoms characteristic of childhood sexual abuse; notably, identity confusion (particularly his sexuality), conflicted sense of guilt, shame and responsibility for an activity that is not rationally a youngster's fault and an almost palpable feeling of being "dirty". He also suffers other symptoms commonly seen with sexual abuse such as: impaired affect modulation; self destructive and impulsive behaviour; dissociative symptoms; somatic complaints; feelings of ineffectiveness, shame and despair or hopelessness; feeling permanently damaged; a loss of previously sustained beliefs; hostility; social withdrawal; feeling constantly threatened; impaired relationships with others; change from the individual's previous personality characteristics.

65. Dr Jager's report based on an interview with the prisoner and police interviews with him presents a similar picture. He expresses the opinion that the prisoner satisfied the diagnostic criteria for poly substance dependence at the time of the offence, but did not have a psychotic disorder. He said he was "labouring under" the emotional consequences of the earlier sexual abuse which, together with his substance abuse, severely impaired his judgment and disinhibited his behaviour at the critical time. Counsel for the prosecution was critical of this report on the basis that Dr Jager, unlike Ms Warren, did not have access to the medical records. It seems to me, however, that access to those records would only have confirmed Dr Jager's view.

68. The prisoner also relies upon a report by Mr Turner, team leader of the Western Region Accommodation Program, a crisis accommodation program operating from Sunshine for people between the age of 15 to 25 years. As noted above, it provided the prisoner with accommodation and support between 14 December 2001 and 13 March 2002 and outreach support when he left the program until 20 September 2002. Mr Turner had dealings with the prisoner and his report is based on both his own experience and that of his staff in dealing with the prisoner. He confirms the existence of symptoms consistent with post traumatic stress disorder. He said that staff confirmed the problems he had sleeping and their witnessing of his disturbed sleep. He notes that the prisoner cut himself on his arms and wrists on several occasions while in the program and how he related this to coping with the pain he felt as a result of sexual abuse and as an attempt to kill himself to end his pain. He also refers to his long history of homelessness and unemployment and the lack of stability in his life and difficulties in developing and maintaining relationships. He regards his drug and alcohol abuse as a strategy adopted by the prisoner to live with and dampen the impacts of sexual abuse. He also comments that a significant factor has been a negative response from his parents to his disclosure of the sexual abuse. He comments that this is not uncommon. His report notes that his staff contacted the prisoner's family but the response received was that they were not interested in talking about the issue of sexual abuse and the prisoner. He describes his family life as a tragedy.

73. The prosecution pointed to a number of matters which caused it not to concede a relationship of sexual abuse when the prisoner was a boy. One point relied upon is a failure to mention the sexual abuse when receiving medical treatment in October 1999. Reliance is placed upon alleged inaccurate statements recorded in the hospital records, for example, that he had been beaten up by his father, that the family knew but was dismissive of his claim of sexual abuse. The prosecution also drew attention to inconsistencies between the hospital records which refer to sexual abuse from as early as eight years of age and his current position that it began at around the years 11 to 12.

76. I attach no significance to his failure to mention the sexual abuse in his earlier attendances. That is something that is common in sexual abuse cases of children and, probably reflects the degree of his conflicted sense of guilt and shame and responsibility. His obvious difficulty in speaking of the sexual abuse and the distress he showed when he made the attempt probably reflect such factors. Assuming that the records accurately document later what the prisoner said to hospital staff, it must be remembered that at the time he was in a disturbed state. As to his allegations that his family was dismissive of the sexual allegations, he was alienated from his family and lacked their support. In his disturbed state he was trying to avoid family involvement. One way to do that was to say that the family knew and was dismissive. There is some support for the allegation, however, in the statement of Mr Turner who noted that WRAP staff in their contact with his family "received a response that they were not interested in talking about the issue of sexual abuse . . .". His mother in her statement, tendered on the plea, refers to a telephone conversation in which the prisoner told her that something terrible had happened while they were living in Stratford and states that she did not act on the accusation.

79. As to the discrepancies as to the age at which the sexual abuse began, bearing in mind his state of mind and alcohol and drug abuse, some discrepancies were inevitable. As to the allegation against his father, there is insufficient evidence to assess the assertion.

82. The prosecution also sought to highlight a coincidence between difficulties with girlfriends and episodes of self-mutilation and threats of suicide. In my judgment, while a causal connection can be demonstrated, such difficulties as did occur occurred in the context of a young man with little or no capacity to cope with them because of his depressed and emotionally fragile state.

86. At the conclusion of submissions I sought a psychiatric report. It has been supplied to me by Dr Lester Walton.[2] The history given to Dr Walton is reasonably consistent with that contained in the other reports mentioned above and the prisoner's own account. It confirms amongst other things the prisoner's acknowledgment that he would become angry when he thought about the sexual abuse and resolved one day that he would get back at the deceased. He records that the prisoner said to him that after their contact resumed in about 1999, they engaged in sexual activity on nine or ten occasions and that each time the prisoner had intended to kill the victim but "I lost my nerve". He recalls the prisoner as stating that on the night in question "I finally just snapped".

89. Dr Walton states that there seemed to be an insufficient clinical basis for concluding that the prisoner may have suffered from attention deficit hyper activity disorder as a child and that in any event most children grow out of that condition. He saw the picture as being more one of recurring depression in parallel with and not unrelated to a lengthy history of alcohol and drug abuse. His view was that the prisoner could properly be described as a "substance-dependant person". While he considered there was evidence that the prisoner had reached a point of drug-induced psychosis when admitted psychiatrically in 2000, he could find no convincing evidence that he may have been psychotic more recently. He regarded him as of limited intelligence but not intellectually disabled. While acknowledging there were some post-traumatic psychological symptoms which seemed to have emerged after the killing, there was not sufficient to justify a diagnosis of post-traumatic stress disorder. He said that -

"While Mr Craddock had a lengthy history of a range of significant psychiatric problems he could not be described as having a major mental disorder with immediate relevance to sentencing ..."

93. As to the issue of sexual abuse, Dr Walton stated the following:

"Clearly Mr Craddock highlights the childhood sexual abuse as a principal motivator towards the killing and I have encountered previous cases where that has occurred. Mr Craddock provides a fairly convincing account of the childhood sexual abuse and it would appear that he made disclosures about it well prior to the killing, albeit reluctantly and disinhibited by alcohol, which is quite consistent, as is the history of substance abuse and repeated self injury. What I do have some difficulty with is that if Mr Craddock had entertained a long standing murderous loathing of the victim, this appears to be at least somewhat inconsistent with his subjecting himself to multiple further bouts of sexual involvement with the victim. He describes this as lulling the victim into a false sense of trust in order that he could kill him but it is difficult to see how that was actually necessary. Nevertheless, there does seem to be a weight of evidence which tends to confirm Mr Craddock's assertions and otherwise the killing would be apparently motiveless."

Issues raised for sentencing by the sexual abuse

98. In my view, the evidence overwhelmingly points to the motive for the killing being revenge for sexual abuse. As a result, a major issue in determining the sentence in this case is the way in which the revenge aspect of the killing should be treated.

101. Plainly the pre-meditated murder with which we are concerned in this case is a crime of the gravest kind and normally warrants condign punishment. It has devastated the deceased's family. Further, the courts cannot condone and cannot be seen to condone people taking the law into their own hands and should, through the sentence imposed, denounce such behaviour. But the sexual abuse and its consequences which lie behind and explain the decision to kill raise issues relevant in other ways to the purposes to be addressed in the sentencing process.[3] Alternatively, they would, in my view, warrant and require the exercise of the ultimate discretionary power to extend mercy to the prisoner.[4]

In determining a just punishment it is necessary to assess the prisoner's culpability. In this instance, I accept Dr Jager's view that the emotional consequences of the sexual abuse together with the effect of his consequent substance abuse severely impaired his judgment and disinhibited his behaviour at the critical time. I am satisfied that it was the earlier sexual abuse which led him towards the substance abuse. Thus, his culpability is reduced and reduced because of the consequences of the actions of the deceased.

Another factor relevant to the assessment of what would be a just punishment is that the prisoner has already suffered horrendously as a result of the actions of the deceased. The above account of his life from his pre-teen years to early adulthood is appalling. It seems to me that in determining what would be an appropriate punishment for this crime, it would be wrong to ignore the life the prisoner has endured from the time the sexual abuse commenced. The prisoner is someone who has suffered enormously as a result of the actions of the deceased.

Another matter of possible relevance in assessing just punishment is whether the community itself must accept some responsibility for what occurred. Community organisations have attempted to help him deal with the consequences of the sexual abuse. They plainly have done all that they could do. But the deep seated nature of the consequences of the sexual abuse would have made the task one beyond the resources that we have chosen over the years to make available to them. This issue, however, was not the subject of submissions and, accordingly, I have not taken it into account in reaching my decision.

General deterrence, must not be overlooked and is a weighty consideration in determining the appropriate sentence. People cannot be allowed to take the law into their own hands as the prisoner did and exact a revenge for wrongs done to them. The prisoner took it upon himself to impose a death sentence on Mr Denham, a sentence far in excess of that available under the law.

As to personal deterrence, it has a role to play but less than might normally be the case. There is no evidence of remorse but Dr Walton expresses the opinion that the prisoner's violent behaviour, as he understands it, was an out- of - character event, which is reassuring in terms of his re-offending aggressively. He also suggests that the circumstances surrounding the killing with a specially targetted victim would suggest there is no other person readily identifiable as being at risk. The crime was a victim specific offence and the prisoner it seems does not have a reputation for violence. Nonetheless, the psychological damage that has been done to him and the seriousness of the crime involved require that the sentence have an impact of specific deterrence so far as he is concerned. To that extent it is relevant to fix a sentence that will deter him and offer protection to the community.

Facilitating the rehabilitation of the prisoner is an important consideration having regard to his age.[5] The consequences of the sexual abuse by the deceased make rehabilitation even more significant as a sentencing consideration. The actions of the deceased resulted in the loss of some 11 very important years of the life of the prisoner. He needs help to retrieve his life. To that end, the sentence needs to be structured to give him the opportunity to leave custody at an age where he can rebuild his life.

Rehabilitation will not be easy but there are encouraging indications. Dr Walton says there are no indications for the reintroduction of psychotropic medication but the prisoner would be well advised to continue with psychological counselling. He noted that the pattern of self inflicted wounding has not been a recent feature. He also spoke of the positive consequences of the unfortunate event being that the prisoner now had support coming from his family. He also noted that the prisoner had been applying himself to various educational and other rehabilitation services within the prison system.

Ms Warren's assessment of his intellectual testing was that he showed a sound inherent intelligence but there were areas of the lower average results, something she attributed in part to his state of depression and anxiety. Her assessment of him was that he had the capacity to complete his secondary education and many tertiary studies.

Mr Turner sees the reconciliation between the prisoner and his family as a positive factor, it providing the support he had lacked. He states that it has given him his greatest opportunity to heal his pain and that of his family and lead a stable life in the community in the future. He also expresses the opinion the prisoner is not a violent person in his nature. He states that the prisoner was never violent while receiving assistance from WRAP. He was never aggressive to staff in any manner.

While at WRAP, the prisoner was given direct support and referred to specialist services including mental health (Mid-West CATT), drug and alcohol (DAS WEST) and sexual assault counselling services (Currajong). Mr Turner reports that the prisoner attended a few sessions of sexual assault counselling but found them distressing and was liable to use drugs or self harm himself shortly afterwards. His distress caused him to withdraw from that counselling.

Efforts having failed in the past, every effort must be made now to assist him to recover his psychological health, deal with his drug addiction, address the consequences of the sexual abuse and address the consequences of his killing of Mr Denham. There is some cause for optimism in the rehabilitation of the prisoner because of the reconciliation between him and his family, the support it brings and the opportunity it gives to heal the scars of the past and to lead a stable life in the future. His lack of remorse is a concern and is relevant to his rehabilitation. It is, however, understandable in the circumstances and there is evidence of at least a concern about the wrong doing he has done.

119. The prisoner has prior convictions incurred in and between October 1998 and May 2002. Ordinarily they too would be cause for concern in considering the issue of rehabilitation - and specific deterrence. The first was the offence of being a minor in possession of intoxicating liquor for which he was fined. From April 1999 to May 2002 he was charged on four occasions for offences including failing to appear on bail and theft. I have referred to the details of two occasions in July 2000 and January 2001. The charges in May 2002 were charges of theft and carrying a controlled weapon without lawful excuse.

122. Counsel did not focus a great deal of attention on these convictions. He appears to have been dealt with leniently in each case and, on the evidence before me, I infer that they were all related to his need for drugs which was a consequence of the sexual abuse. Addressing his drug addiction through appropriate rehabilitation processes will be important and his reconciliation with his family and their support offers some cause for optimism in dealing with those problems.

125. Finally, it seems to me important for the prisoner's rehabilitation that he sees himself as being punished. It is important that he sees society's rules being applied. His actions in ringing the police immediately after he had killed the deceased points to someone who was well aware and accepted that he had seriously breached society's laws and that there should be consequences to his actions. It will be important that he has a sense that those consequences have followed. This may also assist him to come to terms with what he has done.

(e) The acknowledgment of guilt and plea of guilty

129. There is a further factor to be borne in mind and that is that the prisoner pleaded guilty. In addition, although it could not be used as evidence of remorse, he did contact the police as soon as the killing had occurred and has fully cooperated with the police throughout. He pleaded guilty at the earliest opportunity and so spared the family of the deceased the trauma of a trial and saved the community the cost and time demands of a contested trial. Under the Sentencing Act 1991 the plea of guilty is to be taken into account[6]and in this case requires a significant reduction of the penalty that would otherwise be imposed.

133. Applying the foregoing analysis, I have come to the conclusion that the issues that might activate the discretion to extend mercy are dealt with. If that analysis be unsound, however, I am satisfied that this is a case where that discretion should be exercised to reduce the term of imprisonment and, in particular, to reduce the non-parole period that would otherwise be imposed.[7]

136. Whichever approach is taken, a significant sentence of imprisonment must still be imposed but it should be at the lower end of the spectrum of sentences that may be imposed for murder.

139. It seems to me that a maximum term of imprisonment of 14 years should be imposed. The relevant considerations appear to me to justify a non-parole period of 8 years' imprisonment. Accordingly, he will be sentenced to 14 years imprisonment with a non-parole period of 8 years.

[1] For example 16 June 2000; borderline personality disorder, see below.

[2] Dr Walton was provided with a copy of the depositions, the transcript of the plea, a psychiatric report of Dr Jager, a psychological report from Ms Warren and the prison medical records.

[3] S 5 Sentencing Act 1991.

[4] R v Miceli [1997] VSC 22; [1998} 4 VR 588. I refer particularly to the valuable analysis of Richard G Fox in "When Justice Sheds a Tear: The Place of Mercy in Sentencing" [1999] MonashULawRw 1; (1999) 25 Monash University Law Review 1.

[5] R v Tran [2002] VSCA 52; (2002) 4 VR 457, 462.

[6] S 5(2)(e).

[7] See Fox, above' Smart; "Mercy" Ch 14 in Acton (ed), The Philosophy of Punishment: a Collection of Papers, 1969 212-218.