R v Harris - [2000] NSWCCA 469 - NSWCCA 2000 case summary — Zoe

NSWNSWCCA

R v Harris

[2000] NSWCCA 469

Court of Criminal Appeal (NSW)|2000-11-03|Before: Giles JA, Wood CJ, James J, Bell J, Hunt CJ, Badgery-Parker J, Levine J, Finlay J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2000-11-03

Before

Giles JA, Wood CJ, James J, Bell J, Hunt CJ

Source

Original judgment source is linked above.

Judgment (39 paragraphs)

[1]

BACKGROUND 3 This is an appeal pursuant to section 5D of the Criminal Appeal Act 1912, by the Director of Public Prosecutions, against the sentences imposed upon the respondent by Justice Bell in the Supreme Court on 7 April 2000. 4 On 3 December 1999, the Crown presented an indictment against the respondent containing three counts of murder pursuant to S 19A Crimes Act 1900. The respondent pleaded guilty to all counts and the matter was stood over for sentence. When the matter was next listed before her Honour, on 24 March 2000, the Crown presented a second indictment containing one count of armed robbery in company pursuant to s 97(1) Crimes Act 1900. The respondent also pleaded guilty to that count. 5 The maximum penalty for an offence under s 19A Crimes 1900 is life imprisonment. The maximum penalty for an offence under s 97(1) Crimes Act 1900 is twenty years imprisonment. 6 On 7 April 2000, the respondent was sentenced on all counts. On each of the three counts of murder he was sentenced to 40 years imprisonment. Those sentences were directed to be served concurrently. On each count a non parole period of 25 years was set, commencing on 1 December 1998. As a consequence, the respondent will be eligible to be released on parole on 30 November 2023. On the count of armed robbery, he was sentenced to three years imprisonment. That sentence was also fixed to commence on 1 December 1998, and is due to expire on 30 December 2001. As it was to be served concurrently with the sentences for the three counts of murder, Bell J declined to set a non parole period in respect of it. 7 Notice of appeal against the adequacy of the sentences was signed by the Deputy Director of Public Prosecutions on 13 April 2000, and served on the respondent on 19 April 2000. The appeal is confined to the sentences imposed in relation to the three counts of murder.

[2]

[4]

Murder of Peter Wennerbom - Indictment 1 Count 1 13 Between 7.00pm and 7.30pm on 4 October 1998, Geoffrey George Hall was on his way to 2/2 Jack avenue, Wagga Wagga where his son lived. Hall was aware that the deceased, Peter Wennerbom, a man 62 years of age with some residual difficulties due to a stroke, lived in the building next door to his son. As he approached the flats he noticed that Mr. Wennerbom's front door was open and that his television sounded as if it was on. Believing this to be unusual, Mr. Hall entered the flat. Inside he found Mr. Wennerbom lying on the floor. He telephoned for an ambulance. 14 Senior Constable Joseph Christie responded to the call that was placed by the ambulance officers who attended the scene. On inspecting the body he noticed a bruise on the side of the deceased's throat which he regarded as suspicious. Mr. Paul Bottrill, a pathologist, conducted an autopsy on 8 October 1998. In his report, dated 16 December 1998, he gave the opinion that the cause of death was consistent with strangulation. 15 On 1 December 1998 police arrested the respondent for the offences referred to in counts 2 and 3 of the indictment. He was interviewed about those matters. Subsequently he agreed to be interviewed in connection with the death of Mr. Wennerbom, which, it is alleged, occurred on 1 October of that year. That interview was conducted by Detective Sergeant Peter Mark Spence at Sydney Police Centre. The respondent stated that he knew Mr. Wennerbom through that man's sister, Elaine de Jong, and that he had visited him at his home on a couple of occasions. He stated that on the occasion of Mr. Wennerbom's death he knocked on his door under the pretext of asking for a drink of water. He was invited in. Once inside he strangled him. He displayed poor recollection of the exact sequence of events and he was inconsistent in his answers regarding his motive. At question 139 he was asked: "Q. Did you intend to go to the premises to kill him? A. I don't, no,… intended to do that, no, I intended to rob, I think."

[5]

The respondent was asked to explain that admission: "Q. You said, 'I think I went to rob him', why do you think you went to rob him? A. I don't know, I just, I don't know if I went to rob him, I'm not sure, that's what I'm trying to say, I think, I just went there to kill him". 16 In the course of his discussions with investigating police, the respondent also said that Mr. Wennerbom: "… was an old man, there was no resistance at all. I had total, you know, control over the situation, he, he couldn't do anything." 17 It was known that Mr. Wennerbom was accustomed to keeping relatively large sums of cash at home. No money was found in the unit following the discovery of his body. 18 On 7 December 1998, the respondent was re-interviewed, in the presence of his solicitor. During that interview the respondent repeated his confession that he had strangled Mr. Wennerbom. As in the previous interview he made contradictory statements regarding his motive. In reply to one question, he suggested that he had visited Mr. Wennerbom with the intention of obtaining money or cigarettes. In reply to another question, he said: "I, at the time I wasn't interested in robbing him, the only thing I wanted to do was to kill, that was my sole purpose." 19 This interview also included the following exchange: "Q. Now when you, earlier you said you came here, you were going to ask for some money. Do you remember if you actually got any money from him? A. Oh, no, no, I don't think, I might have, that, that might have been the reason to come here, but like I said, I ended up asking for water instead. I don't, didn't come here to ask him for money, I didn't, I don't, I I I might have said that but I don't think I came here to ask for money. The only reason I came here was because I knew the, I knew him, I knew he lived on his own and I knew I could kill him." 20 Mrs. De Jong recalled that following Mr. Wennerbom's death, the respondent appeared particularly solicitous, helping to clear out his unit and attending his funeral, although without entering the church. He also appeared to be depressed.

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Murder of Yvonne Jean Ford - Indictment 1, Count 2 21 On 18 October 1998, at 9.15am, Janice Karen Lowing arrived at Yvonne Jean Ford's home, at 26 Phillip Avenue Wagga Wagga, with the intention of driving her to the boarding kennels where she worked on a part-time basis as a dog walker. 22 Mrs. Lowing knocked on the front door but nobody answered. She became concerned and returned to Ms Ford's home at about 11.00am. On this occasion she heard Ms Ford's dog inside the building but she again failed to make contact with her. She went to Wagga Wagga police station and reported her concerns. 23 Senior Constable Christopher Jason Hall responded to the report. He conducted a search of the premises and located Ms Ford sitting in the bath. She was dead and in a state of nudity. 24 Cherryl Holmes, who employed Ms Ford at her dog kennels, said that she had a mild intellectual disability although this did not impair her ability to care for herself and to live an independent life. She was aged thirty-three years at the time of her death, the time of which was fixed as occurring on 17 October 1998, sixteen days after the murder of Mr. Wennerbom. It was not initially treated as a case of murder, the post mortem examination having been inconclusive. 25 Mrs De Jong, the sister of Peter Wennerbom, first met the respondent through her involvement in the Adoption Triangle Organisation. She helped him trace his birth parents who had given him up for adoption. Ms De Jong knew that he was a heroin addict. Shortly after their first meeting he moved into her family home as she wanted to support him in his efforts to withdraw from heroin. After six or seven months of living there, he was admitted to a residential rehabilitation program. Eventually he rented his own apartment. Ms De Jong maintained daily contact with the respondent and developed a very deep friendship with him. 26 The respondent was not engaged in paid employment but he performed voluntary work as a driver with the Community Transport service, an organisation which provides transport for elderly and disabled persons in the Wagga Wagga community. It was through this work that the respondent came into contact with Ms Ford. 27 On 11 November 1998, the respondent informed Ms De Jong that he had attempted to commit suicide with a heroin overdose. He added that he needed to tell her something. They arranged to meet the next day to discuss the matter further, but he went to Sydney without speaking to her. On 15 November 1998, she located him at his flat, where she spoke with him briefly. 28 At about 3.00am. on 30 November 1998, she received two telephone calls from the respondent. In the second conversation he confessed to having killed the male person who was missing from next door (Mr. Galvin, the victim mentioned in the third count). She went to Wagga Wagga police station and reported the confession. At about 9.30am, on the same day, she received a further telephone call from the respondent. During that conversation he disclosed that he was in Sydney. He confessed to having also killed a lady (Ms Ford) in Phillip Avenue on Caulfield Cup day. He said that it had happened in the bath. He said that he knew the victim as a client of the Community Transport Group. At about 2.05pm, he again telephoned Ms De Jong and announced that he had some heroin, and thought it best to "end it all". 29 Later that evening, the respondent overdosed as threatened, and was taken to hospital from Embarkation Park in Potts Point. 30 On 1 December 1998, at approximately 3.00 am, Senior Constable Peter Hugh Clarke attended St Vincent's Hospital where he spoke to the respondent. On his discharge he was arrested and taken into custody. Throughout the day at Sydney Police Centre he was interviewed about his role in the murders, to which he had confessed, commencing with that of Mr. Galvin (count 3 in the first indictment). 31 At 5.02pm Detective Sergeant Spence commenced a recorded interview with him in relation to the death of Ms Ford. During the course of the interview, the respondent confessed to having strangled Ms Ford while she was in the bath. He denied having committed a robbery. He said that he had targeted her and that he went to her flat with the intention of killing her. 32 On 7 December 1998, Detective Sergeant Spence conducted a 'walk around' interview with the respondent, at 26 Phillip Avenue Wagga Wagga. During the course of that interview, the respondent admitted that he had made a pretence of a sexual advance towards Ms Ford prior to killing her and that he had suggested that they have a bath together. He said "I just wanted her to get in the bath so that I could strangle her". He said that she rejected his feigned sexual advances but disclosed that he was in the bath with her at the time when he strangled her. He admitted to having taken advantage of her intellectual disability. He also admitted having held her under the water while strangling her. According to him, it took three to four minutes to kill her. 33 Among the other admissions made to police concerning this killing the respondent said: "I just went there. I was probably out on one of me walks and I probably had a few drinks, in the area so I just went went to the house ended up there. … We struck up a bit of a friendship, as, just, just driving her around, and I obviously could tell she was lonely, she was slightly handicapped. I didn't come, I didn't come around here for sex, I didn't come around here for anything, I just came around to say Hello, I live nearby, but then these thoughts started entering my head that I wanted to kill her. …. It could have been her, it could've been anybody. She was just unlucky. … I just thought she would be easy, to target, she wouldn't put up a fight or … she would be relatively easy to kill." 34 When asked how he had felt at the time he was strangling Ms Ford, he replied: "Powerful, angry, just anger, pure anger. Not, not that she, there was no sex or anything, I was angry at the world. This is why this whole thing has happened, has started, and it was just my total anger building up from, I don't know, from the day I was adopted, it's just all built and built and, something has set, set me off and I, I killed her." 35 Paul Botterill, a pathologist, was asked to review the case. In his report of 26 January 1999, he stated that the direct cause of death was consistent with manual strangulation.

[7]

Murder of Ronald Edward Galvin - Indictment 1, Count 3 36 On 1 December 1998, Robert Allan Simpkin discovered a body between 6 to 8 metres off Church Plains Road, Uranquinty. He returned home and notified police. Later he accompanied an ambulance crew to the location of the body. Detective Senior Constable Scott Lawrence Coleman attended the scene and recovered a number of documents from the body that carried the name of Ronald Edward Galvin. 37 Mr. Galvin's father, Cecil Galvin, last saw his son on 1 November 1998. His son then failed to meet him on 4 November 1998 as had been planned. After the passing of some weeks he telephoned the Credit Union with which he banked and learned that his pension had not been drawn. He then reported him missing. 38 Mr. Botterill conducted an autopsy on 8 December 1998. In his report of 22 January 1999, he stated that the direct cause of death was consistent with strangulation. Mr. Galvin's death was fixed as having occurred on 3 November 1998, ie within 17 days of the murder of Ms Ford. 39 Mr. Galvin had resided at 9/1 Joyes Place. On 24 November 1998, Detective Sergeant Spence and another officer went to that address in the course of their investigation of his apparent disappearance. On the following day they returned to those premises and spoke with the respondent who lived next door. While in the respondent's flat they noticed a collection of books dealing with the subject of non-fictional murders. The respondent said that he had last seen Mr. Galvin on the evening of Melbourne Cup day, sitting on the stairway with a number of persons, including someone he described as " bloke I've never seen before". 40 Detective Sergeant Spence attended Sydney Central Police Station on 1 December, after the respondent's arrest, and interviewed him in relation to the disappearance of Mr. Galvin. During the interview the respondent admitted killing Mr. Galvin by means of strangulation. He could not recall a great deal of detail about the killing or even where it had occurred. He agreed that he had disposed of the body at Uranquinty. 41 On 7 December 1998 the respondent participated in a 'walk around' interview. The interview was conducted by Detective Sergeant Spence. The respondent again found it difficult to recall the detail of the killing but suggested that there had been no ulterior motive. To the best of his recollection Mr. Galvin had invited him in when he went to his flat and asked for a beer. Once inside he stood behind Mr. Galvin, put him on his knees and strangled him. He observed that Mr. Galvin was "only a little bloke". 42 His only explanation for the killing was "I think it was just of lot of anger, I was getting rid of and it was being projected on him", but he said that having "got away with" the earlier murders he "thought well, why not go again?" and repeated this kind of observation more than once. He agreed that he used Ms De Jong's car the following evening to move the body to the place where it was ultimately found.

[8]

Subjective Features 43 The respondent was born on 30 June 1968 and was aged 31 years when he appeared for sentence. He had been adopted at the age of about ten months, a fact which he learned at the age of ten years. He became unsettled by that discovery and began to exhibit behavioural problems in his early teens. 44 Bell J, accepted that the respondent had experienced a significant level of emotional deprivation and rejection in his childhood that led to him leaving home and living life as a 'street kid' and as a prostitute. This commenced at about the age of fifteen years, and followed a period of failed attempts to settle him with foster parents. In 1991, he was sentenced to a minimum term of penal servitude for 2.5 years for the armed robbery of a sex customer. It was while serving this sentence that he came to meet Ms De Jong. While living with her he remained almost conviction free but used heroin on a recreational basis. 45 Bell J, found that this background was causally related to the respondent's commission of the offences. She also noted that in his adult life, the respondent had tracked down his natural mother with Ms De Jong's assistance, only to be rejected by her. This rejection Bell J concluded, was "a significant blow" to him. In the interview with police, the respondent reported having experienced nightmares about his adoptive mother. He went on to tell Detective Sergeant Smith : "… just the thoughts, you know, I've always, its on record, I've always thought of I've wanted to kill my mother and my family and stuff like that. Just being dirty on the world, you know, being dirty on the fact that I was adopted and I was taken in by this family and then rejected by them. … in the shit with the prostitution and having to lower meself and all that, just all the thoughts." 46 He went on to describe the murderous thoughts which he had also entertained about killing people during the period that he was prostituting himself: "I went with so many blokes I could have killed a number of them, but I didn't, I didn't, didn't go through with it, but even then I had the thoughts, you know, these blokes that the, that I was, that I was sleeping with were using me and I using them or whatever, I thought, I wanted to kill them, of course." 47 Two psychologists, Ms Matsuo and Ms Barrier, examined the respondent and prepared reports. Both came to broadly consistent conclusions. 48 Ms Barrier's testing revealed a schizotypal personality disorder and/or an avoidant personality disorder with prominent depressive schizoid traits. She stated: "Personality test results describe someone who is 'unable to overcome the feelings that life is empty and meaningless, and unable to master the skills to overcome the deficits he sees within himself, he is likely at times to become cranky if not explosive'."

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She added that the respondent demonstrated little empathy for the victims and had only a limited understanding of the enormity of his behaviour. 49 Ms Matsuo concluded that the respondent had a schizoid personality disorder. She said that he had begun the difficult task of understanding himself, and noted: 'Mr. Harris is cognisant of his psychological shortcomings and his lengthy problems with drugs and alcohol. He has already shown himself to be highly motivated to work on his offending issues with psychological programs and his substance abuse issues with AOD counsellors". 50 She also stated: "Taken in context based on his day to day behaviour, Mr. Harris displays few pervasively antisocial traits. He prefers to be alone rather than in large groups but this stems from his feeling of inadequacy and worthlessness. He often denigrates himself in front of the author and has a low self-image. Mr. Harris' history does indicate he has often failed to comply with social norms especially in terms of his drug use, prostitution and his criminal history, however, he does not lack remorse altogether. He has demonstrated significant levels of compassion both in and out of gaol, helping others in need and in particular taking care of young children at his home in Wagga. Mr. Harris' transient disregard for others has occurred as a very specific end to a certain set of psychological circumstances. He believes the reason he felt indifference to the human life that he destroyed may be the indifference he feels towards his own existence. He is not, in terms of his enduring personality type an irritable, aggressive or violent person as assessed by the MCMI-3 - and he is not a person who pervasively shows indifference or contempt for the feelings and suffering of others or explosive anger." 51 Somewhat disturbingly, in my view, she noted that he had expressed genuine remorse in relation to the death of Ms Ford, but not in relation to the two other victims. He had, however, expressed distress and confusion as to why this was so.

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"21 (1) If by any provision of an Act an offender is made liable to imprisonment for life, a court may nevertheless impose a sentence of imprisonment for a specified term. 57 That section (S 21) further provides: "(4) The power conferred on a court by this section is not limited by any other provision of this Part. (5) This section does not limit any discretion that the court has, apart from this section, in relation to the imposition of penalties." 58 In the light of her consideration of these provisions, Bell J held: I approach this matter upon the basis that if I am of the view that the prisoner's level of culpability in the commission of the offences is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of a life sentence I am required by s 61(1) of the Procedure Act to impose such a sentence. I consider that if I am of that view I would, in any event, be required to impose a life sentence having regard to the principles governing the sentencing of offenders at common law; Regina v Garforth (NSWCCA unreported, 23 May 1994)." 59 Bell J next noted that S 61(1) of the Procedure Act had taken away the discretion that had been reserved under the proviso to the former S 19 of the Crimes Act, which, prior to the enactment of S 19A, had permitted the imposition of a determinate sentence, in lieu of the mandatory life sentence that was otherwise then required. 60 Having regard to the terms of S 61 of the Procedure Act, and having regard also to the interpretation that had been given to the expression "culpability for the crime" (used in the proviso) in Bell (1985) 2 NSWLR 466, Bell J concluded, correctly in my view, that the assessment of the culpability of the prisoner, that was required, had to be directed "to the circumstances surrounding or causally connected with the offence", leaving aside matters such as remorse, pleas of guilty, prospects of rehabilitation and the like. In substance, this required attention to be given to the "blameworthiness" of the person standing for sentence, although that did not preclude consideration being given, for example, to the extent to which "the deprived life and upbringing of the accused" may have contributed to the commission of the offence. 61 It was by reference to these matters that her Honour paid regard first to the prisoner's culpability and then to the objective seriousness of the offences. Having concluded that S 61(1) of the Procedure Act did not, in the light of the findings made, mandate a life sentence, she went on to consider the appellant's potential for dangerousness, his prospects of rehabilitation and any other matter potentially attracting leniency. The findings in relation to those four issues may be briefly stated:

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(ii) his voluntary admissions to the three killings, and his early pleas of guilty, matters that would also attract mitigation of sentence, in accordance with S22 of the Procedure Act. 72 In undertaking the sentencing exercise that then befell her, Bell J had regard to the terrible significance of a sentence of life imprisonment with no hope of release, (save for the prerogative of mercy preserved under S 19A(6) of the Crimes Act) regardless of any progress which the prisoner may make towards reform, noted in decisions such as Petroff (NSWSC per Hunt CJ at CL 12 November 1999); as well as to the circumstance that such a sentence could see the respondent serving something in the order of fifty years in custody. 73 She noted that the life sentence redetermination procedure (formerly S 13A Sentencing Act 1989, but now provided for in S 44 and Schedule 1 of the Procedure Act, had produced cases of offenders who, over the course of long terms of imprisonment, had shown themselves rehabilitated to such a degree that their release into the community, under supervision, could be contemplated, and facilitated by the imposition of a determinate sentence in lieu of the original life sentence (if appropriate, with provision for a period of potential release on parole for the remainder of the offender's natural life). 74 She also noted that in Bugmy (1990) 169 CLR 525 the majority (Dawson, Toohey and Gaudron JJ at 537) spoke of the difficulty of forecasting the likelihood of a prisoner re-offending over the course of a lengthy term. Unlike the position in Victoria ( S11 Sentencing Act 1991 ) she concluded that, in New South Wales, there was no legislative authority for fixing a non parole period in a case where a life sentence had been imposed. 75 It was by reference to those considerations that Bell J imposed the determinate sentences previously mentioned. 76 Special circumstances were found justifying a non-parole period which was less than the minimum three-quarters of the term of the sentence otherwise required pursuant to S 44(2) of the Procedure Act (resulting in a reduction of that period from 30 years to one of 25 years). Although those special circumstances were not defined, Bell J noted that the sentencing order proposed would provide for an extended period of supervision post release, and would carry with it the sanction of a return to custody, in order to reinforce the respondent's rehabilitation, should he re-offend. It may safely be assumed that this is what her Honour had in mind by way of special circumstances.

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Ground 1 - residual common law life sentence 79 The totality of the respondent's criminality, involved in the three murders, it was submitted was such as would place the case into the "worst category" of case referred to in Ibbs (1987) 163 CLR 447 at 451-452, thereby attracting a life sentence at common law. 80 Although it was accepted that those cases that would attract a life sentence under S 61(1) of the Procedure Act would inevitably satisfy the Ibbs criterion, it was submitted that the reverse was not necessarily true. Section 61(1), it was argued, called for a consideration of the culpability of the person standing for sentence in relation to an individual offence, or if more than one offence, then in relation to each offence individually. While a particular offence may not satisfy the worst case category calling for a S 61(1) life sentence, so it was put, a combination or series of offences may yet take the matter into the worst category and attract a life sentence at common law. 81 The submission accordingly contemplated the continued existence of two avenues for a life sentence - one arising at common law (although not entirely at large because of S 19A Crimes Act) and one arising under S 61 of the Procedure Act. 82 Some support for the proposition that the common law had continuing work to do in the case of multiple offences was sought from the decision of this Court in Edwin Thomas Street NSWCCA 17 December 1996, where McInerney J said: "In my view, each murder (standing alone) would not justify the imposition of penal servitude for life, even allowing for the serious nature of the offence, the appellant's lack of remorse, and his bad criminal background. The question is whether his Honour was justified in imposing the sentence of penal servitude for life when considering the totality of punishment for these offences. His Honour concluded that the two murders, committed some twelve weeks apart, were amongst the worst category of case. Despite the cogent submissions made by Mr. Norrish on the appellant's behalf, I am not convinced that his Honour's sentencing discretion miscarried. His Honour, in my view, was entitled to conclude that these two murders, twelve weeks apart, placed these offences in the worst category of case. Both offences were committed against defenceless women, and, in my view, it was clearly within his Honour's sentencing discretion to impose sentences for the term of the appellant's natural life." 83 The offender in that case was sentenced, and the appeal determined, prior to enactment of the predecessor to S 61 of the Procedure Act. However, it was submitted, the decision showed that the totality principle was available, at common law, in determining whether a case fell into the worst category. In Leonard, NSWSC 10 November 1997, Badgery-Parker J, similarly endorsed the totality principle when assessing whether a case, involving more than one murder, fell into the worst case category; as did Levine J in Rose NSWSC 3 September 1998. 84 The features required for qualification in the "worst case category" were defined in Twala NSWCCA 4 November 1994, where it was said: "in order to characterise any case as being in the worst case category, it must be possible to point to particular features which are of very great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime (as distinct from the subjective features mitigating the penalty to be imposed)…"

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85 "Heinousness" has been described as follows: "The adjective 'heinous' which gives the noun 'heinousness' its meaning has been variously defined as meaning atrocious, detestable, hateful, odious, gravely reprehensible and extremely wicked. The test to be satisfied is thus a substantial one". R v Reginald Keith Arhurell (Hunt CJ at CL unreported 3 October 1997). 86 It was next submitted that the exercise required at common law differed from an assessment of the level of "culpability" under S 61(1) of the Procedure Act, which required a consideration of the reasons for the offending conduct, ie of the circumstances surrounding or causally connected with the offence, such as the background or mental state of the offender. 87 It is not at all clear to me that the assessment whether a case falls within the "worst case category" at common law is any different from that postulated under S 61(1). The decision in Veen (No2) (1987) 164 CLR 465, permits reference at common law to background material for the purpose of assessing moral culpability, and dangerous propensity and there is long standing precedent for regard to be had to each of the matters specified in S 61(1) when considering sentence. 88 Similarly to the view offered by Hunt CJ at CL in Kalajzich (1997) 94 A Crim R41 in relation to the former S 431B(1) of the Crimes Act, I doubt that its successor (S 61(1) of the Procedure Act) adds anything to the common law. His Honour there observed: "It (S 431 B(1)) adds nothing at all to the common law relating to the imposition of maximum penalties, except the danger that it may eventually be interpreted as replacing the common law by an ill defined code which will eventually become narrower than the common law". 89 So far as the submission advanced by Mr. Berman SC assumes that S 61(1) of the Procedure Act is narrower than the common law, then I am not persuaded that there is authority, or good reason, for such an assumption. 90 That is not, however, to say that the common law has been abrogated, or that those decisions which gave content to the meaning of the expression "worst case" are no longer of relevance. It may be that future development of the common law will embrace a situation calling for a life sentence that would not be justified under S 61(1) of the Procedure Act, which in any event although expressed in mandatory terms, on one view arguably remains subject to a discretion to impose a lesser sentence than life by reason of S 61(3). 91 That sub-section provides that "nothing in sub section (1) affects Section 21(1)"). Section 21(1) in turn provides: "If by any provision of an Act an offender is made liable to imprisonment for life, a court may nevertheless impose a sentence of imprisonment for a specified term". 92 This mirrors the pre-existing position since S 431B(3) of the Crimes Act preserved S 442 of that Act, which authorised the passing of a lesser sentence than the statutory maximum. 93 An obvious tension exists between S 61(1) and 61(3) . Greg James J in Petrinovic (1999) NSWSC 1131 identified that tension in relation to SS 431B(1) and 431B(3), but concluded that where the case for sentence met the criteria specified in S 431B(1) then a life sentence was mandated. This may have been what was intended but that interpretation does not sit very happily with the words of exception contained in the earlier Section 431B(3) and now contained in S 61(3). 94 So far as the present case is concerned, it appears to me to have been permissible for Bell J, without having to depend upon the common law, to have had regard to the other murders when assessing the level of culpability of each in the application of S 61(1) of the Procedure Act and in particular, whether the case was one calling for a life sentence in terms of S 61(1), and then whether, in the exercise of her discretion under S 21(1), a lesser sentence of imprisonment for a specified term could be imposed. 95 Particularly was this so in the context of a case where the three killings occurred in quick proximity, and where the last two were similarly motivated and encouraged by the success of the respondent in carrying out and initially escaping both suspicion and detection for the first of those offences. 96 Whether assessed under the common law, or under S61(1) of the Procedure Act, their objective seriousness, and the culpability of the respondent were particularly extreme. 97 It was the fact that:

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Ground 2 - subjective circumstances 101 So far as it became relevant for Bell J to have had regard to the subjective circumstances of the respondent, it was submitted that undue weight was given to them. 102 The level of heinousness involved in the three killings, and the future dangerousness of the respondent, it was put, meant that the subjective circumstances were of so little weight that they should have been entirely discounted, either as irrelevant or of no weight. 103 So far as this submission depended upon the proposition that, in some cases, the offence or offences for which an offender stands for sentence are so heinous, that the subjective circumstances should be disregarded either wholly or substantially, then it was, in my view, consistent with principle. In particular, there is support for this view in the decisions of Badgery-Parker J in Leonard NSWSC 10 November 1997, confirmed on appeal NSWCCA 7 December 1998; of Levine J in Rose NSWSC 3 September 1998 also affirmed on appeal [1999] NSWCCA 327 December 1998, and of Abadee J in Fernando (1997) 95 A Crim R 533. 104 Relevantly, in Fernando, Abadee J observed, at 544/545: "There are some cases where the level of culpability is so extreme that the community interest in retribution and punishment can only be met through the imposition of the maximum penalty: see Garforth . Next, rehabilitation and the prospect of offering a person some hope from incarceration, whilst being important considerations and are to be taken into account in favour of persons in the position of each of the prisoners, nevertheless, the requirement of retributive judgments involving the objective features of an instant case may amply warrant not only a case being regarded as in the worst category of case but as warranting the imposition of the maximum penalty: see Baker and Garforth . Indeed, as the decision of Hunt CJ at CL in Milat illustrates there may be some cases falling within the category of the worst class of cases, where there is even little utility in considering the prospects of rehabilitation. Indeed, it may be that in such cases the subjective circumstances generally of a prisoner himself cannot play any real decisive part." 105 For the reasons already mentioned, I am of the view that the present case is one that answers this description, with the consequence that the subjective circumstance could not displace the need for life sentences.

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Ground 3 - Life sentence and non parole period 106 The assumed absence of any prospect of release in the case of a life sentence was mentioned in passing by Bell J. This arose in the context of her overall consideration of the discretion, which she concluded was available in view of her findings in relation to S 61(1) of the Procedure Act, whether to pass a life sentence or a determinate sentence. It is not entirely clear that her Honour would have imposed a life sentence had she been of the view that the option of fixing a non parole period was open. There are some indications in the reasons for sentence to suggest that this may have been the case, but it is not safe to speculate in this regard, or to conclude that the assumption made led to error. 107 Having regard to the conclusion which I have reached in relation to the other grounds, the permissibility or not of the imposition of a non parole period is now a live issue. 108 Mr. Berman SC drew attention to the fact that the option to redetermine life sentences, in a way permitting release after a period of years, and preserving an additional term or possibility of release on parole for the remainder of an offender's life, has existed for some years and continues. A precedent for the imposition of a minimum term with an additional term for the remainder of the offender's life, it was pointed out, can be seen in the decision of Finlay J in Richardson NSWSC 28 February 1994, for an offender who was found to have fallen into the worst case category, and who was sentenced after the commencement of S 19A of the Crimes Act. It may, however, be noted that Finlay J did say, in the course of his reasons, that a sentence of life imprisonment under the law, as it then stood, meant a sentence for the term of the offender's natural life, and left no hope of release. It may be that in taking the course which, his Honour did, that S13(c) of the Sentencing Act 1989, was overlooked. Whatever the explanation the sentencing approach was, in my respectful view, anomalous and not followed elsewhere. 109 In Robinson [2000] NSWSC 972, Adams J held that it was not possible to set a non parole period against a life sentence. His Honour there noted, contrary to the position taken by the DPP, in this case, that S 19A of the Crimes Act stood in the way of such an order. 110 S 19A(2), which provides that a person sentenced to life imprisonment for murder "is to serve the sentence for the term of that person's natural life", provides some support for a legislative intention that would exclude release on parole. However, it needs to be borne in mind that a sentence can be served on parole. Section 132 of the Crimes (Administration of Sentences) Act 1999, provides that an offender who is released on parole, "is taken to continue serving the sentence during the period" beginning with the date of release and ending when the sentence expires: see also Reading NSWCCA 23 June 1998 in relation to the parallel position of those offenders sentenced to life under the old regime, and released on licence - a matter dealt with under the transitional provisions of the Sentencing Act 1989. 111 To the extent that a possible ambiguity arises in this respect, it is appropriate to refer to the Second Reading Speech: Legislative Assembly 30 November 1989 14052 to 14057. That speech unequivocally discloses that the intention of S 19A was to ensure that an offender, sentenced to imprisonment for life for murder, or for the most serious cocaine and heroin trafficking offence, was to be physically incarcerated for the term of his or her natural life. 112 The position of prisoners in this category, who obtained a redetermination, under current law, is secured by S 44(5) and clause 4 of Schedule 1 of the Procedure Act, which permits the setting of a non-parole period in respect of a life sentence imposed before S 19A of the Crimes Act came into effect. 113 Adams J, however, in Robinson saw an additional problem in the way of setting a non parole period, for an offender sentenced for the first time, under the law as it presently stands. This arises from S 44 of the Procedure Act which provides, relevantly: "44 (1) When sentencing an offender to imprisonment for an offence, a court is required: (a) firstly, to set the term of the sentence, and (b) secondly, to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence). (2) The non parole period must not be less than three-quarters of the term of the sentence, unless the court decides there are special circumstances for it being less, in which case the court must make a record of its reasons for that decision." 114 His Honour observed: "The calculation, which is mandatory, cannot be made where a life sentence is imposed. Although it seems strange that so fundamental a matter as the ability of a court to make a parole order when imposing a term of life imprisonment is determined by a procedural provision directed to the method of calculating a non-parole period, I have concluded that s 44(2) is decisive. The result is that, where a life sentence is imposed on an offender, a non-parole order cannot be made." 115 The DPP now submits that the obstacle, seen to arise by his Honour, is not in fact an obstacle, since S 54 of the Procedure Act provides that Division 1 of Part IV of the Act: "does not apply to the sentence of any offender (a) to imprisonment for life or for any other indeterminate period" 116 Accordingly, so it was submitted, S 44(2) which is contained within Division 1 of Part 4 could not require a calculation that could not be made, or for that reason preclude the fixing of a non-parole period. 117 The exclusion contained in S 54 applies to the whole of Division 1 of Part 4, headed "Setting Terms of Imprisonment". Its clear effect is to make S 44, and S 45 for that matter, inapplicable to the sentencing of an offender to imprisonment for life. The question which then arises is whether that Division is the sole source of power for the fixing of a non-parole period, or whether the power exists independently of it. 118 Division 1 of Part 4, on its face, provides a comprehensive regime for setting terms of imprisonment, including non parole orders. No other legislation has been identified as expressly conferring a power, in a sentencing Judge, to fix a non parole period. In particular, the Crimes (Administration of Sentences) Act 1999, confers no such power. Rather it assumes that a non parole has been set, and regulates release pursuant to it. That is clear from S 126, which provides: "126 (1) Offenders may be released on parole in accordance with this Part. (2) An offender is eligible for release on parole only if: (a) the offender is subject to at least one sentence for which a non-parole period has been set, and (b) the offender has served the non-parole period of each such sentence and is not subject to any other sentence." 119 So far as I can see, there is no source other than Div 1 of Part 4 of the Procedure Act, and specifically S 44 whereby the Court derives authority to set a non parole period. In particular it appears to me that S 21(1) cannot be invoked as a source of power. The reference in that provision to the imposition of a "sentence of imprisonment for a specified "term" is clearly a reference to what is commonly understood as the "head sentence". The distinction between the concepts of "the term of the sentence" and of the "non parole period for the sentence" is preserved in S 44(1) (a) and (b). 120 Moreover, the existence of a legislative intent to ensure that life sentences imposed under S 19A of the Crimes Act, and under S 33A of the Drug Misuse and Trafficking Act 1985, are sentences that will see the offender remain in custody for the remainder of his or her natural life is suggested by the circumstance that such sentences are expressly exempted from the provisions contained in Schedule 1 to the Procedure Act. That Schedule permits a person subject to an existing life sentence to apply for the determination of a term and a non parole period in the place of such sentence. The exclusion of life sentences for murder or for serious heroin or cocaine trafficking offences, flows from the definition of "existing life sentence" contained in Para 1 of the Schedule. 121 Additionally, as Abadee J observed in Fernando at 535: "Part 2 of the Sentencing Act 1989 (NSW) which relates to the setting of minimum and additional terms when sentencing a person to imprisonment for an offence does not apply to the sentencing of a person "to imprisonment for life or any other indeterminate period" (Sentencing Act s 13(c)). As was said by the Court of Criminal Appeal in Boyd (1995) 81 A Crim R 260 (referred to in Baker unreported, Court of Appeal, NSW No 60547 of 1993, 20 September 1995)): 'It is to be borne in mind that the Parliament of New South Wales in enacting s 19A of the Crimes Act has recently declared that it is consistent with current community standards in this State for a person convicted of murder to be sentenced to serve the remainder of his life in prison.'" 122 I am accordingly of the view that no authority exists to fix a non parole period where an offender is now sentenced to life imprisonment for murder, or for serious heroin or cocaine trafficking. 123 I do, however, observe that there would be merit in either permitting that to be done, or in extending the life sentence redetermination procedure to such cases. 124 The concerns which exist, in relation to the imposition of indeterminate life sentences, without any option of release on licence or parole, are well known. Such a sentence can be crushing, particularly for a young offender, whose life expectancy, on current tables, may well exceed the fifty-odd years that would apply in the case of the present respondent. They were noted in Garforth NSWCCA 23 May 1994, where the Court said: "But first we should emphasise that we do not intend to diminish the terrible significance of a sentence of life imprisonment. Nor did Newman J. His Honour quoted the following passage from the judgment of Hunt CJ at CL in R v Petroff (unreported, 12 November 1991): 'The indeterminate nature of a life sentence has long been the subject of criticism by penologists and others concerned with the prison system and the punishment of offenders generally. Such a sentence deprives a prisoner of any fixed goal to aim for, it robs him of any incentive and it is personally destructive of his morale. The life sentence imposes intolerable burdens upon most prisoners because of their incarceration for an indeterminate period, and the result of that imposition has been an increased difficulty in their management by the prison authorities. We acknowledge the force of these sentiments. That is why life imprisonment is to be imposed only in the worst type of case. Nevertheless, there are cases in which such a severe punishment fits the crime. This is one such case." 125 The effect of the current law is to continue and to reinforce a division between different categories of persons imprisoned for life, and to condemn those sentenced under S 19A of the Crimes Act, or under S 33A of the Drug Misuse & Trafficking Act 1985, to an even harsher form of punishment than an indeterminate sentence that was terminable by the Executive. Such an offender has no prospect of release, save for the prerogative of mercy. 126 The decisions in Bugmy (1990) 169 CLR 525 (at 537) and Mitchell (1996) 70 ALJR 313 at 320, confirm the notorious inaccuracy of predictions of future dangerousness, yet in a case such as the present that is precisely what is required. It may be that after a lengthy period of imprisonment, counselling and simple maturing, that an offender sentenced to life ceases to be dangerous. 127 Lengthy experience with the life sentence redetermination procedure has graphically demonstrated that to be the case, and has seen a controlled and safe return to society of offenders once considered hopelessly violent and dangerous. See the observations of Allen J, in Crump NSWCCA 30 May 1993: "It is the common experience of judges who have had to consider section 13A applications to note the remarkable effect which imprisonment for a decade or more so often has upon young offenders - notwithstanding how brutally and callously they acted when they committed the crime or crimes. Time and again one wonders: 'how could this apparently well adjusted applicant be the person who committed such a crime?' Gone is the brashness. Gone is the bravado. Spent is the passion. Young offenders can change so much during a very long time in gaol as to present almost as an entirely different sort of person."

[35]

His Honour later added: "I appreciate that the legislation in its present form empowers the Supreme Court to throw away the key, to deny to the prisoner any prospect of ever again being free to live a normal life. But in a civilised country only the most extraordinary circumstances would justify that course being taken - and what was said in the Parliament when the legislation was being enacted evinces a recognition of that." 128 In suitable cases, it is possible by an appropriately framed sentence, to preserve the possibility of a return to prison to complete the original life sentence, in the event of serious reoffending. Persons now sentenced to life under S 19A of the Crimes Act or under S 33A of the Drug Misuse and Trafficking Act are, however, denied all opportunity of release even if wholly rehabilitated. 129 On the other hand, if an offender is sentenced to a term of years with a non parole period, and remains unsettled, unrehabilitated and dangerous, he or she can be denied parole, yet the time will come, at the expiration of the head sentence, when release must occur, with all the undesirable consequences that this entails. An attempt to deal with that problem by legislation failed in Kable (1996) 189 CLR 51. 130 As Adams J observed in Robinson at para 35 the grant of power to fix a non parole period in a case such as the present, and I would add, the extension of the redetermination procedure to life sentences under S 19A Crimes Act and S 33A Drug Misuse and Trafficking Act, would not offend against the so-called doctrine of "truth in sentencing". Neither would involve any form of remissions or an exercise of executive clemency. Moreover, the imposition of a non parole period and a head sentence, either at the time of the original sentencing or upon a redetermination, involves a determination by the Court of the minimum and maximum periods that the prisoner must or could serve. Each is stated at the time of sentence or redetermination, and the later release of the prisoner can be decided by the Parole Board, which is in a position to act in the light of its accumulated experience and current information concerning the prisoner's mental state and progress towards rehabilitation. Moreover, it is to have regard to the principle that the public interest is of primary importance. 131 The concerns that exists in this regard, particularly for those persons who may face potential life sentences in their twenties or early thirties, with the problems of institutionalisation, and the risk of the establishment of a significant population of geriatric prisoners, are such that this area of sentencing, in my view, warrants reconsideration. 132 The desirability of a review is, in my view reinforced by the circumstance that, depending on the relevant legislation, a specific power or duty to set a non parole period for life sentences exists in Victoria (S11 Sentencing Act 1991), in Tasmania (S 18 Sentencing Act 1997), in Western Australia (S 90 Sentencing Act 1995), and in South Australia (S 32 Criminal Law (Sentencing Act) 1998. A similar power is implicit in Queensland (S 157 Penalties & Sentences Act 1992) although the period set for release is governed pursuant to S 166(1) of the Corrective Services Act 1988 and S 305(1) Criminal Code Act 1899). 133 The Northern Territory (S 53 Sentencing Act 1995) does preserve a similar exemption to that in New South Wales in the case of life sentences for murder. The ACT legislation (S 7 of the Parole Act 1976) does not require a non parole period in the case of a life sentence; nor, it seems, does it expressly exclude it. The Crimes Act 1914 (Cth) however, makes express provision for the fixing of non parole periods for persons serving "federal life sentences" (S 19AB(1)(d)). One consequence of this is that an offender sentenced to life for the most serious form of drug offence charged under the Customs Act (1901) may have a non parole period, while an offender sentenced to life for the most serious form of drug trafficking under the Drug Misuse & Trafficking Act 1985 (NSW) cannot. 134 New South Wales and the Northern Territory alone, it would therefore appear, deny the Court the power to fix a non parole period for a person serving a life sentence for murder, or for serious heroin and cocaine trafficking. Whether New South Wales should retain the harsh and discriminatory regime that exists for those now sentenced to life is a matter suitable, in my view, for review. I would add that had this Court the power, I would have regarded the present case as one where a possibility of ultimate release on parole, even though for the remainder of the respondent's life, would have been appropriate.

Parties

Applicant/Plaintiff:

Respondent/Defendant:

Harris

Legislation Cited (12)

Criminal Appeal Act 1912(NSW)

Crimes Act 1900(NSW)

Crimes (Sentencing Procedure) Act 1999(NSW)s 21, 44, 45, 54, 61, schedule

Crimes Act 1914(Cth)

Customs Act 1901(Cth)

Sentencing Act 1991(Vic)

Sentencing Act 1997(Tas)

Sentencing Act 1995(WA)

ACTS CITED Criminal Appeal Act 1912(NSW)

NSW) Crimes Act 1914(Cth)

Sentencing Act 1989(NSW)

Trafficking Act 1985(NSW)

Cases Cited (14)

CITATION : R v Harris [2000] NSWCCA 469 FILE NUMBER(S) : CCA 60211/00 HEARING DATE(S) : 3 November 2000 JUDGMENT DATE : 20 December 2000

COUNSEL : P G Berman SC G P Craddock SOLICITORS : S E O'Connor T E Murphy CATCHWORDS : CRIMINAL LAW - Crown appeal against sentence - life sentence - sentencing under s19A Crimes Act - operation of common law principle of "worst case" and s61 Criminal Procedure Act - heinousness - non parole period for life sentence - non parole period for life sentence in other jurisdictions - truth in sentencing principle - consideration of subjective circumstances when sentencing Criminal Appeal Act 1912 (NSW) s5(D) Crimes Act 1900 (NSW) s19A, s97(1), s431B, 442 Crimes (Sentencing Procedure) Act 1999 (NSW) s 21, 44, 45, 54, 61, schedule 1 Sentencing Act 1989 s13A Crimes Administration of Sentencing Act 1999 s132 Drugs Misuse and Trafficking Act ( NSW) LEGISLATION CITED : Crimes Act 1914 (Cth) s19AB(1)(d) Customs Act 1901 (Cth) Sentencing Act 1991 (Vic) s11 Sentencing Act 1997 (Tas) s18 Sentencing Act 1995 (WA) s90 Criminal Law 1998(Sentencing Act) s32 Parole Act (ACT) 1976 (s7) Penalties and Sentences Act (Qld) 1992 s157 R v Bell (1985) 2 NSWLR 466 Veen v The Queen (No. 2) (1988) 164 CLR 465 R v Garforth (unreported, NSWCCA, 23 May 1994) R v Ellis (1986) 6 NSWLR 603 R v Petroff (unreported, Hunt CJ at CL, 12 November 1999) Bugmy v The Queen (1990) 169 CLR 625 Ibbs v The Queen (1987) 163 CLR 447 R v Street (unreported, NSWCCA, 17 December 1996) R v Leonard (unreported, Badgery-Parker J, 10 November 1997) R v Rose (unreported, Levine J, 3 September 1998) R v Twala (unreported, NSWCCA, 4 November 1994) CASES CITED: R v Arhurell (unreported, Hunt CJ at CL, 3 October 1997) R v Kalajzich (1997) 94 A Crim R 41 R v Petrinovic [1999] NSWSC 1131 Wilson v The Queen (1992) 174 CLR 313 R v Fernando (1997) 95 A Crim R 533 R v Richardson (unreported, Finlay J, 28 February 1994) R v Robinson [2000] NSWSC 972 R v Reading (unreported, NSWCCA, 23 June 1998) R v Mitchell (1996) 70 ALJR 313 R v Crump (unreported, NSWCCA, 30 May 1993) R v Allpass (1993) 72 A Crim R 561 Kable v DPP (1996) 189 CLR 51 DECISION : (1) Appeal allowed; (2) Sentences for the murders charged in counts 2 and 3 of the indictment quashed, and in lieu thereof the respondent is sentenced to imprisonment for life, no non parole period fixed in respect of those sentences.

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