R v David Graham FLEMING

R v Way (2004) 60 NSWLR 168 R v Mostyn [2004] NSWCCA 97 R v L (unreported, NSWCCA, 17 June 1996) R v AJP (2004) 150 A Crim R 575 R v Ohar [2004] NSWCCA 83 R v Wilkinson [2004] NSWCCA 46 R v Shore (1992) 66 A Crim R 37 R v MJR (2002) 54 NSWLR 368 R v PLV (2001) 51 NSWLR 736 R v Moon (2000) 117 A Crim R 497 R v Coman (unreported, NSWSC, 26 April 1991) R v Johns (unreported, NSWSC, 19 April1991) R v Jovanovic (unreported, NSWSC, 29 November 1991) R v Perry (unreported, NSWSC, 1 November 1991) R v Potter (unreported, NSWSC, 28 October 1991) R v Skillen (unreported, NSWSC, 29 November 1991) R v Walker (unreported, NSWSC, 1 November 1991) R v Bush (unreported, NSWSC, 25 September 1992) R v Keading (unreported, NSWSC, 8 May 1992) CASES CITED : R v Peacock (unreported, NSWSC, 24 April 1992) R v Walton (unreported, NSWSC, 24 April 1992) R v Sales (unreported, NSWSC, 7 November 1997) R v Nguyen (unreported, NSWSC, 13 August 1998) R v Marshall (unreported, NSWSC, 20 December 1999) R v Rosevear (unreported, NSWSC, 21 July 1999) R v Frawley (unreported, NSWSC, 5 December 2000) R v Websdale (unreported, NSWSC, 6 November 2000) R v White (unreported, NSWSC, 22 June 2000) R v Barker (unreported, NSWSC, 24 April 2001) R v Sorenson (unreported, NSWSC, 6 September 1990) R v Markham (unreported, NSWSC, 2 October 1990) R v Eldridge (unreported, NSWSC, 10 May 1976) R v Fuller (unreported, NSWSC, 16 August 1990) R v Cannon (unreported, NSWSC, 29 August 1991) R v Bossie (unreported, NSWSC, 16 April 1992) R v Hungerford (unreported, NSWCCA, 15 December 1993) R v Chetcuti (unreported, NSWCCA, 17 December 1993) R v Liew & Lim (unreported, NSWCCA, 24 December 1993) R v Stone (2004) 144 A Crim R 568

T R Hoyle SC (Crown) COUNSEL : G Turnbull (Accused) (13-14 March 2007) M. Austin (Accused (10-27 April 2007)

SOLICITORS : Office of the Director of Public Prosecutions (Crown) Nyman Gibson Stewart (Accused)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

SENTENCE 1 HIS HONOUR: David Graham Fleming has been found guilty of the murder of the deceased Johanne Hatty at Neutral Bay on 18 February 1984. The offender pleaded not guilty when arraigned before the jury but the jury returned its verdict of guilty on 26 April 2007. It is now my task to pass sentence on the offender. 2 I propose firstly to review the evidence that bears upon the circumstances of the crime and the events that led to the offender's detection. 3 The deceased was in 1984 a young woman who lived with Gregory Spicer at 6/196 Kurraba Road, Neutral Bay, a building very close to Spains Lookout in that harbour side suburb. The deceased then worked at Kables Restaurant at the Regent Hotel, Circular Quay, and the evidence discloses that she left work at the completion of her shift sometime after 1.00 am on Saturday 18 February 1984. The assistant manager of the Regent, Ms Charlton, was the last known person to see the deceased alive before this crime was committed. The sighting was in Harrington Street in the city. Gregory Spicer was employed at the Wynyard Travelodge and was working the night shift in February 1984. His evidence was that he had occasion to speak to the deceased several times in her last work shift and the deceased requested him to buy some croissants and the newspaper on the way home from work. Mr Spicer finished work at 7.10 am and caught the ferry home. The deceased was not at home when he arrived and there was no sign that she had been there at any time after he had left for work the previous evening. 4 Later that morning Mr Spicer observed a police vehicle in the street and he went downstairs, crossing to Spains Lookout, where he identified the body of the deceased. The body had been found a short time earlier by the late Eric Robinson, and another nearby resident, Ms Barbara Cardwell, alerted the police whose presence had attracted Mr Spicer's attention. 5 The deceased's body was discovered resting on a narrow rock ledge outside a stone wall at Spains Lookout. The deceased was lying on her back and her clothing had obviously been disturbed. Her handbag was beside her body and the keys to her locked vehicle were found in it. The deceased's vehicle was parked on the roadway adjacent to Spains Lookout and the compelling inference is that the deceased had parked her car there, having driven home from work, with the intention of leaving it there overnight whilst she returned to her nearby home. 6 The evidence compels the conclusion that after the deceased left her car she was attacked and taken onto Spains Lookout where she was strangled and her body was sexually abused. 7 Dr Wong, who at the time was a pathologist with the Division of Forensic Medicine, attended the scene of the crime and on the same day conducted a post mortem. From Dr Wong and from Inspector Birley, the police officer who attended the crime scene, a picture emerged as to the nature of the injuries inflicted on the deceased. Dr Wong detected swelling of the eyes of the deceased and her lips were bruised and swollen. There was bruising of the forehead and at the tip of the nose, there was blood in the left ear and bruising of the right elbow. There was petechial haemorrhaging evidencing disruption of the venous blood supply. Of particular significance, there was a band-like mark around the neck depicted in photographs in evidence. This was consistent with some form of ligature having been applied by means of which the deceased was strangled. Dr Wong determined that the deceased met her death by strangulation causing asphyxiation and that this had been brought about by the application of a ligature of a width no less than the marking on the neck. 8 Dirt marks were observed on the back of the left hand of the deceased and her pubic region was dirt stained. There were also marks on her kneecaps and on the back of her feet. There were scrape markings on the outside rear edge of the left shoe heel. 9 Inspector Birley observed that the deceased's blouse was unfastened at the front and the zipper on her jeans had been fully unfastened. Inspection of the deceased's clothing revealed dirt inside her underpants and a leaf inside the right leg of her jeans, evidencing that both pants had been removed and then put on again. Dr Wong noted a blister on the anterior aspect of the left thigh and he concluded that this blistering was after death because there was no accompanying evidence of bleeding or bruising. Swabs taken at post mortem revealed that there was semen in the deceased's vagina. Dr Wong concluded that the deceased's attacker had intercourse with his victim, and Dr Wong's unchallenged opinion was that this occurred after death. 10 On 18 February 1984 Dr Wong took swabs from the vagina of the deceased, from her rectum and from her mouth. He also prepared slides and these were provided to Dr Baxter, who at the time was the senior forensic biologist of the Division of Forensic Medicine. Testing showed semen on the vaginal swab but Dr Baxter was unable to do blood grouping tests. At that time DNA testing did not exist. On 20 February 1984 Dr Wong took further swabs which were duly tested by Dr Baxter. The second vaginal swab also proved positive for the presence of semen. However, absent the availability of DNA techniques, the police inquiry came to a halt. 11 In 1989 police officers asked Mr Goetz, a forensic biologist with the Division of Analytical Laboratories, to examine the exhibits taken by Dr Wong. Again, with the techniques then available, Mr Goetz was unable to find sufficient material for any DNA procedure. 12 In May 2004 the Division of Analytical Laboratories was requested once again to examine the available exhibits and the senior forensic biologist at that time, Ms Sharon Neville, became involved in the matter. By this time DNA testing had advanced and with the method Profiler Plus introduced in 1998 only very small quantities of material were required to obtain a DNA profile and Profiler Plus had a very high discrimination capacity. In testing undertaken and detailed in the evidence, the later of the vaginal swabs taken by Dr Wong proved to be the source of what Ms Neville described as a very clear complete profile. 13 I do not propose to review all the police evidence that led to this, but Victorian police obtained a sketch prepared by the offender on a sheet of paper, and this found its way to Ms Neville and was the source of a DNA profile which led to the arrest of the offender in Victoria. When he was brought to New South Wales, a buccal swab was taken from him and this too was tested. The DNA profile from the offender's buccal swab matched the DNA profile from the sketch and it also matched the DNA profile obtained from the vaginal swab taken by Dr Wong on 20 February 1984. So it was that DNA profiling established that the offender had the same profile as the male person whose sperm was detected and analysed. 14 This DNA evidence and its significance was central to the prosecution case. The jury was clearly satisfied beyond reasonable doubt that it was the offender who had had sexual intercourse with the deceased and that it was the offender who had caused her death by strangulation. 15 Objectively, this was a very serious crime indeed. It was the crime of a predator who took advantage under cover of darkness of a vulnerable and unsuspecting young woman after she had left her car to go to her home nearby. The evidence establishes that a high degree of violence was employed and that the crime was motivated by a desire for sexual gratification. Not only did the offender cause the death of the deceased, but he defiled her body by the act of intercourse committed after death. 16 This offender has expressed no contrition. Indeed, he has persisted in denying his guilt so there is no element of contrition or remorse to be weighed in his favour. 17 The offender was born on 15 March 1953 so that he was thirty years of age at the time he committed this crime. He is now fifty-four years old. He has no criminal record in this State but he was convicted of rape in the State of Queensland, and at the Mackay Circuit Court on 9 April 1976 Mr Justice Kelly sentenced him to eight years imprisonment with hard labour for that offence. He had no convictions thereafter in the period that passed until he was arrested on 18 January 2005 for the crime for which he is now to be sentenced. 18 The offender is a married man. He met his current wife in about November 1984 after the offender had had a partial amputation of the left leg. The offender's wife now lives in New Zealand. There was tendered in the Crown case on sentence a communication from the Queensland Police Service disclosing that the offender is recorded on the domestic violence index and that the aggrieved spouse was Maureen Anne McConville (see Exhibit D). However, the offender's wife has denied ever making a complaint to the Queensland Police about the offender. Indeed, in her statement, Exhibit 2, the offender's wife has written that the offender was never physically violent to her and that he was considerate and loving. I do not propose to attach any significance to the content of Exhibit D in performing my present task. 19 There have been a number of medical reports in relation to the offender which have been introduced into evidence. I draw on the report of Dr Bruce Westmore, psychiatrist, dated 20 March 2006 to record some matters of the offender's personal history. He was born in Mackay in the State of Queensland and grew up in Cairns. It appears that he had an unhappy childhood and left school at an early age. The offender told Dr Westmore that he drove earthmoving equipment and trucks for a livelihood. He told Dr Westmore he has two daughters and one son by earlier relationships but no children with his present wife, who has been living in New Zealand in the period since the offender was arrested. 20 Exhibit H records a number of admissions of the offender to hospital in Cairns. The first of these admissions was in December 1971 when he was diagnosed as having a personality disorder and reactive depression following a car accident. There was another period of admission in October 1972 and the diagnosis was of a personality disorder. Then there was a further brief admission in December 1972 when a depressive illness was diagnosed. In March 1974 he was admitted to Cairns Hospital after he had been shot in the left leg. In April 1974 he was admitted to hospital again, complaining of pain in the leg, and he remained in hospital for eight days. A history was taken of concerns voiced by his parents as to his being violent at home. In May 1974 there were two further periods of admission, one after a suspected overdose of methadone and the other after a car accident. In December 1975 the offender was admitted to Cairns Hospital for amputation of his fifth right finger, and in March 1983 he was admitted to Cairns Hospital briefly with a gunshot wound to the left hand. 21 The offender came under the care of Dr Selby-Brown, orthopaedic surgeon, in Sydney in 1984. After a long period of assessment, a through-knee amputation was performed by Dr Selby-Brown and after that procedure it would seem that the offender returned to Queensland. There are Cairns Base Hospital records referring to attendances at that hospital in October and November 1984 with problems in relation to the leg stump, and then in 1985 the offender was again treated there twice; once following an overdose of barbiturates and narcotics and on a second occasion after a motor accident. The hospital records record a diagnosis as at September 1985 of a personality disorder. 22 This brings me to a review of more recent assessments of those psychiatrists who have seen the offender in recent times. I referred to Dr Westmore having seen the offender in March 2006. Dr Westmore assessed the offender as being "an intelligent, articulate man". Dr Westmore was addressing the issue in March 2006 as to whether the offender was fit to be tried and as to whether there was any psychiatric defence available to the offence of murder. Dr Westmore considered the offender was fit to be tried and that he had no psychiatric defence. 23 Dr Westmore saw the offender again on 30 May 2007. I record the opinion expressed by Dr Westmore in his report of 31 May 2007: "Mr Fleming has been convicted of the charge of murder. He continues to maintain his innocence in relation to the charge despite the findings of the court. He is very distressed, anxious, agitated and somewhat disorganised. These changes reflect a psychological condition rather than organic impairment. I think he is probably a highly intelligent man but his incarceration and the outcome of the court case has clearly disturbed him. He has been treated with an antidepressant but probably needs more aggressive treatment with medication. I will attempt to speak to his prison doctors about that although ultimately they will make decisions about his management. This man will find incarceration an extremely difficult experience. I note his age, his very obvious physical disability and there are I think aspects of his personality which are likely to cause him to come into conflict with other inmates and perhaps with some prison officers. It is likely he will need to be managed in protection for most if not all of his incarceration and that will further increase his sense of isolation and probably alienation. He should be considered to be an at risk prisoner because of his disability, his personality and the likely conflict that will cause with others and the nature of the conviction. His physical problems will require him to have extra medical care and it is also probable that during, for example, the periods when he is transferred between correctional centres there may be some lack of continuity in his physical and psychiatric care. This will further aggravate his various problems. He is an at risk prisoner for many reasons and his long term incarceration will be an extremely difficult experience for him." 24 Other psychiatric assessments were made by Dr Giuffrida on 1 August 2006 and by Dr Nielssen on 29 August 2006. 25 When Dr Giuffrida saw the offender, he did so to assess his fitness to be tried. Dr Giuffrida did not consider at that time that the offender was fit to be tried because he did not regard the offender as capable to present his defence coherently or sensibly. He regarded the offender as having an extremely serious personality disorder. 26 Dr Nielssen made his assessment some four weeks after Dr Giuffrida. Again, Dr Nielssen had to consider the offender's fitness to be tried. Dr Nielssen considered that he was fit. Dr Nielssen did not consider the offender mentally ill or to have a psychiatric condition requiring treatment in a psychiatric hospital. Dr Nielssen saw medical records from Cairns Base Hospital and from South Sydney Rehabilitation Hospital compiled in 1984, and his understanding from those records was that the offender was not thought to be mentally ill when assessed in that year. Dr Nielssen concluded that the offender had a personality disorder and opiate dependence. He went on to say: "The diagnosis of personality disorder, or a pattern of maladaptive personality traits resulting in significant distress and distress to others, is based on the accounts of Mr Fleming's reported behaviour at the time of admissions to hospital between 1972 and 1985 and his presentation at the recent interview. His personality would be best classified as having antisocial and borderline traits, from the history of conduct disorder in adolescence, adult convictions, chronic depression, extreme anger, recurrent episodes of deliberate self harm and the pattern of his behaviour whilst in hospital. The diagnosis of opiate dependence is based on his account of longstanding treatment with abnormally high doses of potent opiate medication." 27 I determined on 14 March 2007 that the offender was fit to stand trial for reasons which I then published. I reviewed in that judgment the medical evidence available from Dr Westmore, Dr Giuffrida and Dr Nielssen. I will not repeat what I then wrote. Since the trial there has been the additional assessment by Dr Westmore in May 2007. 28 I have reviewed the medical evidence in some detail. That evidence establishes that the offender has a personality disorder in the sense explained by Dr Nielssen and recognised by Dr Westmore in his recent report. I accept that the personality disorder is likely, as Dr Westmore opines, to bring him into conflict with others in the prison system and that this will make his prison existence more difficult for him and for others. 29 So far as the offender's physical state is concerned, the offender is obviously handicapped by the amputation. He has complained of chronic back pain and of an osteoarthritic condition in his right leg. He exhibited some hearing difficulties during the proceedings in this court and he has complained of sleep disturbance. I do not have the advantage of a recent comprehensive medical assessment of his physical condition, but his physical difficulties will plainly be burdensome for him in prison, as, indeed, they would be if he was not in custody. The same might be said as to his personality disorder and the conflict with others stemming from it. 30 However, it is appropriate that I take into account the added hardship of custody for this offender with the physical and psychological problems to which I have referred. 31 A report from the General Manger of the Metropolitan Remand and Reception Centre (Exhibit E) provides some information in relation to the offender's management in custody. The report is dated 30 April 2007. It is stated in the report that since 17 June 2005 the offender has been in special management where he is currently on protection. He occupies a cell alone and has access to a wheelchair-accessible shower. The cell has an exercise yard attached to it. The reports concludes: "If inmate Fleming is to remain on protection, he will have limited or no access to other inmates depending on his status and he will be confined in a protection facility wherein there is generally reduced access to services. Once inmate Fleming is classified after sentencing there may be an opportunity for him to reintegrate into the normal discipline within the centre. However, it may be determined that for his own safety he may need to remain on protection." 32 The matter of the offender's future management within the prison system is not a matter to be ignored. In R v Way (2004) 60 NSWLR 168 the Court of Criminal Appeal, constituted by the Chief Justice, Wood CJ at CL and Simpson J, said in relation to protection (at [176]): "The fact of protection has been taken into account as a special circumstance in the case of such offenders, subject to the court being satisfied that the sentence will in fact be served in conditions which are more onerous - a circumstance that is no longer necessarily the case for all such offenders, in the light of the current arrangements which exist for their alternative accommodation and special management, which were considered in R v Totten, R v Durocher-Yvon (2003) 58 NSWLR 581 and R v Mostyn [2004] NSWCCA 97." 33 However, their Honours went on to refer to the judgment of Howie J in R v Mostyn [2004] NSWCCA 97: " [177] In R v Mostyn , Howie J sounded a note of caution, with which we would respectfully agree, in relation to the manner in which the fact of protection should be taken into account, as follows: '[179] The material raises once again the issue of what mitigation of a sentence should be made on the basis that the offender might spend all or some of his sentence in protective custody. The matter has been recently considered in R v Totten [2003] NSWCCA 207 and R v Durocher-Yvon [2003] NSWCCA 299. It can no longer be assumed that a prisoner, by reason of the fact that he will serve his sentence on protection, will find prison life more difficult or onerous than other prisoners in the general prison population or that the prisoner will be deprived of amenities or opportunities for self improvement courses and education. The present is another instance where a sentencing judge has presumably taken into account in favour of the offender the fact that he will serve his sentence under the harsh conditions and deprivations of protective custody, but that has not proved to be the case. It is an example of the difficulty of a sentencing court taking into account possible executive or administrative action in respect of a prisoner's custody when predicting how a sentence will be served. Although in R v Durocher-Yvon the court indicated that a sentencing judge was entitled to assume that an informer would find himself in strict protection for the best part, if not the whole, of his sentence, that assumption would have proved to be erroneous in the present case.

[180] As was recognised in R v Totten , the court is placed in a difficult position. On the one hand, the sentencer should take into account the conditions of the prisoner's custody where it appears that they will be unduly onerous because of some matter particular to that prisoner. This requires that, at the time of sentence, the court make some prediction about the nature of the custody that will be endured by the prisoner. On the other hand, the courts should now be aware that assumptions or predictions, which have been made in the past about the nature of an offender's custody because, for example, the offender has given assistance to the authorities, no longer hold good. But the vagaries of prison life are such that it could never be confidently assumed or predicted that a prisoner will serve the whole of his sentence in any particular type of custodial arrangement." 34 Their Honours added in Way (at [179]): " [179] We would add that, now that special arrangements exist for certain classes of prisoners, which do not reflect the harsh conditions, or the degree of isolation and lack of access to programs, that had been the lot, in the past, of prisoners on protection, it is important for precise evidence to be called, so that this factor can properly be weighed in the sentencing exercise." 35 Unhappily, the report Exhibit E earlier mentioned does not assist in determining how the offender's imprisonment will be managed following sentence but part of Exhibit E comprises a letter from the Coordinator and the Principal Officer of Statewide Disability Services (SDS) to the Solicitor for Public Prosecutions. The co-writers of that letter dated 24 May 2007 said this as to the offender's future custodial placement: "As with all inmates Mr Fleming's future classification and custodial placement when sentenced will depend on the length of his sentence and other security concerns. Initial discussions have been held with the Director Inmate Classification and Case Management Branch concerning long term correctional centre placement for Mr Fleming. Currently better disability access is available within medium rather than maximum security environments. If the sentence Mr Fleming receives is that which usually attracts maximum security classification, a special case will be made to the Commissioner for medium security placement to allow for his disability access and medical issues to be best managed. As SDS provides a state wide service, regardless of where Mr Fleming is placed, SDS will continue to be involved in Mr Fleming's ongoing management and care so that adaptations can be made to cater for his disabilities. His special bedding and hearing augmentation devices will be transferred to his correctional centre of classification." 36 It emerges from that letter that the offender will have the benefit of assistance from SDS wherever his placement after sentence, and I have regard to the content of the SDS letter when considering the sentence to be imposed. I must recognise that the offender's future placement and its conditions remains uncertain but, wherever he is placed, Statewide Disability Services will be available to afford him assistance, and can be expected to alleviate the burdens of his imprisonment to some extent. I must heed the role of SDS in my sentencing task, and also what was said by the Court of Criminal Appeal in R v L (unreported, 17 June 1996) as to how the court is to approach an illness in the sentencing process (see pp 6-9). I observe that there is absent in this case adequate evidence as to the nature and extent of the prisoner's ongoing problems and the impact of the conditions of incarceration upon those problems. This is a significant matter, as pointed out in R v L at p 8. 37 Apart from the added burdens of imprisonment for the reasons I have reviewed, the other matters Mr Austin asked me to consider by way of mitigation are the offender's age and his prospects of rehabilitation together with the unlikelihood of him reoffending. 38 Mr Austin did submit that the prospects of rehabilitation are favourable. There has been no conviction for any offence since the commission of this crime in February 1984, and the offender has been married to his present wife since 1988. That relationship began in 1984 and the offender's wife supports him, as is evidenced by the content of the letter written by Mrs Fleming on 4 February 2007 which became Exhibit 2. 39 I accept Mr Austin's submission as to rehabilitation, the prospects of which I assess as favourable. I bear in mind that the offender has not been convicted of any other offence between the date of this crime and the date upon which he was taken into custody. I take into account the offender's age and as best I can the features of this case as reviewed such as may render the offender's incarceration more burdensome. I refer to his physical problems, his personality disorder, and the possibility of his remaining under protection. 40 These subjective features, however, must not be given undue weight for the objective gravity of the crime which the offender committed must be appropriately recognised. The offender must be adequately punished and the crime must be appropriately denounced. Due regard must be had to issues of retribution and deterrence, although so far as personal deterrence is concerned, I consider it unlikely that the offender would reoffend following his eventual release. 41 In written submissions the Crown submitted that the facts of this case do not put it within the worst category of case such as would warrant the imposition of a life sentence. Serious as I consider the offender's criminality to be, I accept that submission as being correct. What, then, is the appropriate sentence in this matter? 42 Division 1A of Pt 4 of the Crimes (Sentencing Procedure) Act 1999 makes provision for standard non parole periods and under the regime for which that Division provides the legislature has now provided for a standard non parole period for the crime of murder of twenty years. The setting of that standard non parole period does not deprive the court of a discretion in setting a sentence appropriate to the case under consideration but the court has to have regard to that standard non parole period in a sentencing task to which Div 1A applies in the manner considered in R v Way and in R v AJP (2004) 150 A Crim R 575 and in particular the judgment of Simpson J at 579-80 [13]. However, Div 1A applies only to sentencing where the offence for which sentence is to be imposed was committed on or after 1 February 2003. Express provision to this effect is made in Sch 2 Pt 7 of the Crimes (Sentencing Procedure) Act 1999. 43 Nor are the provisions of that Division to be taken into account when sentencing, even as affording some guidance in the sentencing task, in relation to offences committed before 1 February 2003. The Court of Criminal Appeal has made it clear in a number of cases that a sentencing judge who seeks guidance from Div 1A of Pt 4 when sentencing for an offence committed before 1 February 2003 falls into error: see R v Ohar [2004] NSWCCA 83 and in particular the judgment of James J at [84]; and R v Wilkinson [2004] NSWCCA 46 and in particular the judgment of Hidden J at [23]-[24]. 44 It is now settled that the sentencing judge should have regard to the sentencing attitudes and principles which applied at the time the offence was committed and not those applying at the time of sentence in those cases where, since the date of the offence, sentencing practice has moved in a direction adverse to the offender: see R v Shore (1992) 66 A Crim R 37 and R v MJR (2002) 54 NSWLR 368. MJR was a case in which a specially convened five judge bench was constituted because there was an earlier decision in R v PLV (2001) 51 NSWLR 736 in which a decision contrary to Shore had been reached. In his judgment in MJR Spigelman CJ said at 374 [31]: "…I am now satisfied…that it is 'out of keeping' with the provisions of s 19 of the Crimes (Sentencing Procedure) Act for this Court to refuse to take into account the sentencing practice as at the date of the commission of an offence when sentencing practice has moved adversely to an offender." 45 In this context, I refer to the provisions of s 19 of the Crimes (Sentencing Procedure) Act 1999: "(1) If an Act or statutory rule increases the penalty for an offence, the increased penalty applies only to offences committed after the commencement of the provision of the Act or statutory rule increasing the penalty. (2) If an Act or statutory rule reduces the penalty for an offence, the reduced penalty extends to offences committed before the commencement of the provision of the Act or statutory rule reducing the penalty, but the reduction does not affect any penalty imposed before that commencement…" 46 It is my task here to have regard to sentencing practice in 1984 and to be influenced by it as best I am able to determine the practice at that time. 47 There are obvious difficulties in this task. When the offender committed this crime in 1984, s 19 of the Crimes Act made provision for only one penalty, namely penal servitude for life. "Imprisonment" replaced "penal servitude" by Act No. 94 of 1999 (Crimes Legislation Amendment (Sentencing) Act). Since the penalty to be imposed in 1984 was one of life imprisonment, the sentencing judge then had no discretion. An offender sentenced had the opportunity of being released on licence during his lifetime, very often after 10-12 years. However, of course, release in this way was not a judicial act in respect of which a record can be found in the court. 48 The Sentencing Act 1989 was introduced with the express objective of promoting truth in sentencing. It required the setting of a minimum term and an additional term, the latter not to exceed one-third of the minimum term in the absence of special circumstances (s 5). However, the section did not apply to sentences of imprisonment for life. Hence, it did not apply to a sentence set under s 19 of the Crimes Act. 49 Section 19 was removed from the Crimes Act by Act No. 218 of 1989, being the Crimes (Life Sentences) Amendment Act. It was this statute which introduced s 19A. Thereafter, a person sentenced to penal servitude for life (later "imprisonment" by Act No. 94 of 1999) was to serve that sentence for the term of his natural life. However, the section also enabled the court to pass a sentence other than a life sentence for the crime of murder. 50 Act No. 220 of 1989, the Sentencing (Life Sentences) Amendment Act, introduced s 13A into the Sentencing Act. This enabled a person serving an existing life sentence to apply to the Supreme Court for the determination of a minimum term and an additional term in lieu of the life sentence set before the enactment of s 19A: s 13A(2). The applicant had to have served at least eight years of his sentence before making an application for determination: s 13A(3). 51 In R v Moon (2000) 117 A Crim R 497 Howie J, with whom Fitzgerald AJA concurred, addressed the issue as to the appropriate approach when sentencing in the absence of acceptable statistical material. His Honour said (at 510-511): " [66] Where there has been a change in the policy of the legislature to a particular type of criminal conduct, judicial attitudes to that conduct must respect the change of policy and reflect it in the sentences imposed on those who commit offences under the new statutory regime: Peel [1971] 1 NSWLR 247. But, notwithstanding changes in the structure and nature of offences over time, the fundamental approach adopted by the courts in determining the appropriate sentence that will reflect the legislature's policy remains the same. [67] First, the court must have regard to the maximum penalty for the offence at the time when the crime was committed. This will indicate the policy of the legislature at the time the offence was committed: Oliver (1980) 7 ACrimR 174. It will prescribe the limit of the court's discretion, as the maximum penalty is intended for cases falling within the worst category of cases for which the penalty is prescribed: Veen (No 2) (1988) 164 CLR 465 at 478; 33 ACrimR 230 at 240; Ibbs (1987) 163 CLR 447 at 451; 27 ACrimR 465 at 468. Prima facie the maximum penalty indicates the seriousness of the offence: Gilson (1991) 172 CLR 353 at 364; 53 ACrimR 344 at 351. [68] Secondly, the court must consider where in the range of the conduct covered by the statutory offence, the particular criminal conduct committed by the offender falls: Baumer (1988) 166 CLR 51 at 57; 35 ACrimR 340 at 344-345; Ibbs at 452; 469. This will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed and set the limits within which a sentence proportional to the criminality of the offender will lie. [69] A pattern of sentencing, if available, will also indicate the range of appropriate sentence for the type of conduct under consideration. But this pattern will reflect 'the collective wisdom of other sentencing judges in interpreting and carrying into effect the policy of the legislature': Oliver at 177. [70] The nature of the criminal conduct proscribed by an offence and the maximum penalty applicable to the offence are crucially important factors in the synthesis which leads to the determination of the sentence to be imposed upon the particular offender for the particular crime committed. Even after taking into account the subjective features of the offender and all the other matters relevant to sentencing, such as individual and general deterrence, the sentence imposed should reflect the objective seriousness of the offence: Dodd (1991) 57 ACrimR 349, and be proportional to the criminality involved in the offence committed: Veen (1979) 143 CLR 458. Whether the sentence to be imposed meets these criteria will be determined principally by a consideration of the nature of the criminal conduct as viewed against the maximum penalty prescribed for the offence. [71] When sentencing an offender for offences committed many years earlier and where no sentencing range current at the time of offending can be established, the court will by approaching the sentencing task in this way effectively sentence the offender in accordance with the policy of the legislature current at the time of offending and consistently with the approach adopted by sentencing courts at that time." 52 What his Honour said in the above passage as to the central principles identified was cited with approval by Sully J in his Honour's judgment in MJR (at [107]). 53 The above dicta in Moon express most helpful statements of principle, but I have been able to ascertain a sentencing pattern here looking at earlier cases before the court over the period I will proceed to identify. 54 It is apparent from the historical review I have recorded, that had the offender here been sentenced in 1984 he would then have been sentenced to penal servitude for life because the provisions of s 19 would then have given the sentencing judge no discretion in the matter. Prior to 1989 his opportunity for release would then have depended upon license being granted. Then, after the introduction of s 19A of the Crimes (Life Sentences) Amendment Act, this offender, if sentenced before then, would have been able to make an application under s 13A of the Sentencing Act, but only after he had served eight years in prison. Indeed, it may be that the offender would not have made an application under s 13A as early as 1992 having regard to the circumstance that at that time the court would have been faced with the subject crime having been committed within a relatively short time after the offender's release from prison for the sentence for rape referred to earlier. The issue of reoffending in a determinant sentence being sought early in 1992 would have been a real consideration. Moreover, had a determination been sought in 1992 or thereabouts the court may have declined the application (s 13A(4)(b)). Where an application is refused, no further application could be made for a period of two years after that refusal unless the court ordered a lesser period: s 13A(8). I conclude, however, that the offender's application would probably have been considered somewhere between 1992 and 1996. It is not possible to be more precise than that. 55 Because it was not until the offender would have had the opportunity of making an application for a determination under s 13A of the Sentencing Act that the court could have imposed a specific term for his sentence, it follows that I must seek to determine what the sentencing pattern was in the 1990s, and in particular on applications pursuant to s 13A. 56 I have been able to identify nineteen applications that I had occasion to consider and another three applications considered by other judges of this court involving the application of s 13A in the 1990s. I record short details in the schedule below, identifying the applicant, the date of sentence, the date of determination under s 13A and the sentence as determined: OFFENDER OFFENCE DATE OF SENTENCE DATE OF DETER-MINATION SENTENCE

Walter COMAN Murder 1.8.78 26.4.91 NPP 13 yrs. Add. 4 yrs. x 2 Terrence JOHNS Murder 25.2.77 19.4.91 NPP14 yrs 9 mths. Add. 4 yrs 6 mths Dragoljub JOVANOVIC Murder 25.5.79 29.11.91 NPP 12 yrs 9 mths. Add. 4 yrs Helen PERRY Murder 10.5.78 1.11.91 NPP 14 yrs 2 mths. Add. 5 yrs x 3 Michael POTTER Murder 23.10.75 28.10.91 NPP 16 yrs 2 mths. Add. 5 yrs. Wayne SKILLEN Murder 23.5.78 29.11.91 NPP 13 yrs 10 mths. Add. 5 yrs Ian WALKER Murder 3.2.71 1.11.91 NPP 20 yrs 10 mths. Add. 4 yrs Stephen BUSH Murder 18.9.78 25.9.92 NPP 16 yrs. Add. 6 yrs 9 mths John KEADING Murder 1.9.76 8.5.92 NPP 14 yrs 9 mths. Add. 10 yrs Kevin PEACOCK Murder 1.11.79 24.4.92 NPP 13 yrs 3 mths. Add. 5 yrs Garry WALTON Murder 2.11.79 24.4.92 NPP 13 yrs 2 mths. Add. 5 yrs Charles SALES Murder 22.9.89 7.11.97 NPP 14 yrs 6 mths. Add. 5 yrs 6 mths Ngoc NGUYEN Murder 15.12.89 13.8.98 NPP 16 yrs. Add. 5 yrs Keith MARSHALL Murder 14.7.89 20.12.99 NPP 13 yrs 6 mths. Add. 5 yrs 6 mths Raymond ROSEVEAR Murder 27.8.90 21.7.99 NPP 15 yrs. Add. 5 yrs Maurice FRAWLEY Murder 6.12.94 5.12.00 NPP 14 yrs. Add. 6 yrs Geoffrey WEBSDALE Murder 2.11.89 6.11.00 NPP 18 yrs 9 mths. Add. 6 yrs 3 mths x 2 David WHITE Murder 9.7.90 22.6.00 NPP 16 yrs 6 mths. Add. 5 yrs 6 mths Leonard BARKER Murder 15.2.86 24.4.01 NPP 16 yrs 6 mths. Add. 4 yrs 6 mths SORENSON (Wood J) Murder 25.3.69 6.9.90 NPP 21 yrs 6 mths. Add. 7 yrs x 4 MARKHAM Murder 1974 2.10.90 NPP 12 yrs 8 mths. Add. 6 yrs (Wood J) x 2 ELDRIDGE Murder; wnd w/int 10.5.76 21.9.90 NPP 14 yrs 6 mths. Add. 4 yrs (Finlay J)

57 The twenty-two cases referred to above by no means comprise an exhaustive list of applications dealt with by this court pursuant to s 13A. They would represent less than fifty percent of such cases, and it is to be observed that there is a wide range in the determined sentences. They range from seventeen years to twenty-eight years six months, although Sorenson was a matter in which there were four counts of murder. Obviously, the range is broad because of the impact of both the objective and subjective features of the particular case. However, a median total sentence (not a median non parole period), if sought to be drawn from the above sentences, would be approximately twenty years. 58 I have considered also sentences imposed in the 1990s for crimes of murder to which s 19A of the Crimes Act applied in which the operation of s 13A of the Sentencing Act was not enlivened: · In R v Fuller (unreported, 16 August 1990) the offender was sentenced to a minimum term of sixteen years with an additional term of five years four months for the murder of his aunt, during the course of which offence the victim was extensively disembowelled. That offence had been committed on 6 January 1990. · In R v Cannon the offender was sentenced on 29 August 1991 to a sentence of twenty-one years with a minimum term of sixteen years, having slain his victim with a knife and having then deposited her body in a river. · In R v Bossie the offender was sentenced to a minimum term of fourteen years and an additional term of six years for the murder of a young woman. The offender had strangled his victim. There was a discrete sentence to a term of imprisonment for sexual intercourse without consent but the terms were to be served concurrently. That sentence was imposed on 16 April 1992. · In R v Hungerford the Court of Criminal Appeal on 15 December 1993 dismissed an appeal against a sentence comprising a minimum term of eighteen years and an additional term of six years for a crime of murder. The appellant had abducted his victim, committed sexual assaults on her and then struck her on the head repeatedly with a piece of concrete before abandoning the body in an isolated spot. · In R v Chetcuti the appellant abducted his former wife, struck her with a heavy object and drowned her, weighing her body down with rocks. On 17 December 1993, the Court of Criminal Appeal dismissed an appeal against a sentence of twenty-four years with a minimum term of eighteen years. · In R v Liew and Lim, the Court of Criminal Appeal on 24 December 1993 dismissed appeals against sentences imposed for the murder of the surgeon, Dr Chang. One of the sentences was for a minimum term of twenty years and an additional term of six years and in the other a minimum term of eighteen years was imposed with an additional term of six years. 59 My attention has also been drawn to a decision of Grove J in R v Stone (2004) 144 A Crim R 568. The sentence in this case was imposed on 30 March 2004 on an offender for a crime committed in July 1990. The offender strangled the deceased and, although her body was naked when discovered, there was no positive evidence of sexual interference. Grove J applied himself to the task in that case, having acknowledged, as I have in this case, that he was bound by authority to impose a sentence that reflected the sentencing regime relevant to the time of the offence. His Honour was provided in that case with some published studies of sentenced homicides, one covering the period 1990-1993 and another for the period 1994-2001: see judgment at 574 [49]. His Honour did not recite the content of the studies but noted: "It clearly emerges that in the years immediately following the 1989 statute, and relevant to when this prisoner would have been sentenced, if his responsibility for the crime had then been detected, there was a markedly more lenient pattern of sentencing for murder than in later years." 60 His Honour went on to note, in taking the median sentence derived from the statistics, the increase in the later study to which he had access was of some four to five years compared with the sentences for the earlier study. His Honour went on to say (575 [49]): "I add that the apparently lenient pattern of earlier sentencing is also compatible with observations that can be made of the many moderate sentences consequent upon redetermination of previous life sentences pursuant to the 1989 Act." 61 My own research leads me to the same conclusion. There was an increase in the median sentence for the crime of murder as the past fifteen years progressed and the standard non parole period of twenty years for which provision is made under s 54D of the Crimes (Sentencing Procedure) Act 1999 makes provision for a non parole period which is markedly higher than that in place, say, fifteen years ago. I base this on my own research and on the judgment of Grove J in Stone. The Crown also provided some sentencing schedules, one of which was a schedule prepared by the Public Defenders' Office, scheduling sentences, the earliest of which was imposed on 6 May 1991 and the latest of which was imposed on 11 May 2007. The content of the schedules provided by the Crown do not dissuade me from the conclusion I have expressed. 62 In the case of Stone, Grove J concluded that but for a plea of guilty the appropriate sentence would have been imprisonment for twenty-four years. Having made allowance for a late plea, his Honour imposed a sentence of twenty-one years with a non parole period of fifteen years nine months. 63 Whilst it is relevant to seek out a sentencing pattern from earlier cases and statistics to the extent it can be ascertained, my task now is to set a sentence which is appropriate in the circumstances of the present case as earlier reviewed, recognising and allowing for the trend to higher sentences that has progressed during the 1990s and into this century. The authorities to which I have referred require that I impose a significantly lesser sentence than I would have imposed pursuant to Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999, had the regime under that part been applicable here. I must pay due regard to the objective gravity of the circumstances of this crime whilst imposing a sentence that reflects the earlier sentencing regime in the period I have indicated. 64 As earlier observed, s 5 of the Sentencing Act 1989 required the fixing firstly of a minimum term and then the setting of an additional term which was not to exceed one-third of the minimum term unless there was special circumstances. Section 44 of the Crimes (Sentencing Procedure) Act 1999 required the sentencing judge, having set the term of the sentence, to set a non parole period which was to be not less than three-quarters of the term, absent special circumstances. That provision was later replaced by s 44 in its present form, under which the court is required to set a non parole period with the balance of term not exceeding one-third of the non parole period, absent special circumstances. (Section 44 in its present form applies only to sentencing for offences committed after 1 February 2003.) 65 As to special circumstances, I do not perceive that there will be any requirement in this case for a longer period of supervision than will be available under the sentence I intend to structure, and I consider that the offender should serve no less a period in custody having regard to his criminality than the non parole period I propose to set. 66 I must backdate the sentence to be imposed to 18 January 2005, that being the date from which the offender has been in custody for this offence. 67 Having expressed these reasons, I now pass sentence: David Graham Fleming, for the murder of Johanne Coral Hatty I now sentence you to imprisonment for twenty-one years, to date from 18 January 2005 and to expire on 17 January 2026. I set a non parole period of sixteen years to commence on 18 January 2005 and to expire on 17 January 2021. I specify 17 January 2021 as being the first date of eligibility for parole.

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