R v M J Alexander

THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

1 HIS HONOUR: On 14 September 1993 the prisoner, Michael John Alexander, made application under s 13A of the Sentencing Act 1989. He sought a redetermination of the two life sentences imposed by Slattery J on 28 July 1987. The sentences were imposed after a jury had found Mr Alexander guilty of the murders of Mrs Susan Kirk, and her three year old daughter, Stephanie. The Circumstances of the Crime 2 The applicant was born on 25 March 1961. Mrs Kirk and her daughter were murdered on Tuesday 20 August 1985. The applicant was then twenty four years old. 3 Mr Alexander came to Sydney from the country. Through a church organisation, he was introduced in February 1985 to Mrs Kirk. She was then a woman aged forty two years. She had recently separated from her husband, and had the custody of her daughter, Stephanie, aged three years. 4 Mr Alexander reached an arrangement with Mrs Kirk whereby they would share premises, and the rent. On 20 August 1985, there was an argument between Mr Alexander and Mrs Kirk concerning the rent, which was then in arrears. Mr Alexander then went to the garage. He obtained a length of electrical cord. He returned to the kitchen. He approached Mrs Kirk from behind, and placed the cord around her neck, pulling it tight. He thereby strangled her. 5 Having done that, the applicant then carried or dragged the body to the garage. He was in the process of covering the body with a curtain when Stephanie, the three year old daughter, entered the garage. He struck her with a piece of wood. He also stabbed her, and stabbed Mrs Kirk. 6 A post mortem examination of Mrs Kirk identified strangulation as the primary cause of death, and a knife wound to the lung and the aorta as secondary causes. 7 The post mortem in respect of Stephanie revealed that she had died as a result of a knife wound to the heart. She also had a fractured skull, and brain damage, as well as other stab wounds to her body. 8 Mr Alexander thereafter concealed the knife, and the piece of wood, in a septic tank near the garage. He then went to work. He arrived at 10.25 am. He appeared calm and collected. He disclosed to a woman at work, Ms Christine White, what he had done. 9 As it happened, the police came to the factory that morning to investigate an unrelated matter. They were informed of Mr Alexander's disclosures to Ms White. The police confronted Mr Alexander. He endeavoured to laugh it off, stating that his comments were a joke. The police, nonetheless, took Mr Alexander to the premises. They were unable to gain entry because Mr Alexander claimed not to have the keys. He was permitted to return to work. 10 The applicant later returned home. The bodies were removed from the garage. They were placed under the house, and covered with a curtain. Mr Alexander once more returned to work. 11 Meanwhile, the police obtained a duplicate key from the real estate agents who managed the premises. They entered the premises, and found nothing untoward. They nonetheless returned to the factory, and arrested the prisoner. He was to be charged with having caused a public mischief. 12 Whilst in custody in respect of that charge, Mr Alexander disclosed to the police what he had done. The police then returned to the premises with the applicant. The bodies, covered by a curtain, were then found. Mr Alexander was taken back to the police station and interviewed. He signed a record of interview, which included the following questions and answers: "Q29. Would you care to tell me where Susan Kirk was when you strangled her? A. In the kitchen near the phone.

Q30. Would you care to tell me how you strangled Susan Kirk? A. I grabbed her and put the cord around her neck.

Q31. Can you tell me where the young girl, Stephanie Kirk, was when you strangled her mother Susan? A. I did not see her.

Q32. Was she dead when you carried her to the garage? A. I don't know I just assumed so.

Q33. How long after this did the girl follow you in there? A. She came in behind me straight away.

Q34. What made you realise the girl had come into the garage? A. I saw her.

Q35. What did you do when you saw the girl? A. I grabbed the nearest thing and hit her. I didn't know I was doing it.

Q36. What did you strike the girl with? A. I think it was a piece of wood."

The State of Mind of Mr Alexander 13 It was evident from Mr Alexander's past, and from his description of his state of mind at the time of these offences, that he had a problem with both alcohol and drugs. In 1979, whilst living with his parents at Narrabri, he had been convicted of various offences, including possession of Indian hemp. He was disqualified from driving for a period of twelve months by reason of alcohol. He was placed on a recognisance for an offence of larceny. 14 In 1982 custodial sentences totalling nine months were imposed for driving whilst intoxicated, and breaching the recognisance. In February 1984 Mr Alexander was sentenced to twelve months imprisonment for break enter and steal, with a minimum term of six months. At the same time he was convicted of two offences of assault occasioning actual bodily harm. The person assaulted was, in each case, a Mrs Baker, with whom he was then living in a defacto relationship. Mrs Baker sustained a fractured jaw as a result of the first assault. Her ribs were fractured as a consequence of the second. 15 The applicant pleaded not guilty to charges of murder before Slattery J and a jury. However, he did not contest that he had been responsible for the deaths of Mrs Kirk and Stephanie. He sought, rather, to raise the partial defence of diminished responsibility (s 23A Crimes Act). 16 Slattery J, in his remarks on sentence, summarised the psychiatric evidence in these words: "Dr Jolly referred in his evidence to a delay in the prisoner's development. He thought the prisoner had no gross brain damage. He thought, however, that he had a mental state which he described as depersonalisation which he regarded as an abnormality of mind. Dr Jolly expressed the opinion that the prisoner was in such an abnormal emotional state that he could not exercise proper control over his emotions. He also said, and this is relied upon by Mr Martin in his submissions, that the prisoner became so angry and anxious that his usual control mechanism broke down. Dr Jolly, who described the prisoner as having an abnormal personality, said that in his opinion a defence of diminished responsibility was open to him. This was rejected by the jury. Dr Wong, who examined the prisoner on 16 October 1986, was of (the) opinion that he was not suffering any mental illness. He said, however, he had an immature personality. He was unrealistic in his outlook and was prone to indulge in fantasy and to make grossly exaggerated claims. Dr Wong said more than once that the prisoner had a fairly grossly immature personality." 17 Mr Alexander described the pattern of his drinking and drug taking. He started drinking heavily at the age of seventeen years. By the age of eighteen, he was drunk almost every day. Thereafter, he appears to have moderated his drinking. However, he began to take drugs, including heroin. By the time of the murders, he was taking heroin daily. 18 In the days immediately preceding the murders, Mr Alexander drank a very considerable quantity of alcohol. He was also injecting heroin. He slept only a short time before the argument with Mrs Kirk which culminated in her death, and that of Stephanie. 19 The jury, having heard this evidence, rejected the defence of diminished responsibility. Mr Alexander was convicted of each murder. The Remarks on Sentence by Slattery J 20 By s 13A(9)(c) a Judge concerned, as I am, with the redetermination of a life sentence, is obliged to have regard to relevant comments by the sentencing Judge at the time the sentence was imposed. His Honour, Slattery J, made a number of remarks which are important, and relevant, to my task. First, he dealt with alcohol and drugs. He said this, referring to counsel for Mr Alexander: "Mr Martin did not place any reliance on the prisoner's consumption of alcohol, as given in the evidence. It is only fair to say it was not relied on at the trial either. The evidence regarding his consumption of alcohol was most unsatisfactory and undoubtedly rejected by the jury, as I too would have rejected it if I had been called upon to make a finding." 21 Counsel for the applicant in the present proceedings, does not suggest otherwise. His Honour's finding, therefore, is appropriate in the present context. 22 Secondly, his Honour dealt with the issue of premeditation. The applicant worked in a factory which produced electrical goods. Ms White was also employed in the same factory. She gave evidence of a number of conversations with Mr Alexander before the murders. She did not take the conversations seriously at the time they took place. Mr Alexander described his problems with Mrs Kirk, and her daughter. He described the daughter as "a brat". He announced that he planned to kill them. When Ms White suggested that he should move out, the applicant insisted that it would be easier to kill them. He even indicated the way in which he could dispose of the bodies. It could be made to appear as though Mrs Kirk and her daughter had met with an accident. 23 On Sunday 18 August 1985, two days before the murder, Ms White saw Mr Alexander at the factory fashioning a noose out of wire. He wrote the word "Sue" (being the Christian name of Mrs Kirk) on the end of the twisted wire. 24 The next day Mr Alexander said to Ms White: "I've got to do it tonight." He referred to Mrs Kirk as "PV", meaning "potential victim". 25 His Honour concluded, not surprisingly, that the offence was "obviously premeditated". I see no reason to depart from that finding. 26 His Honour rejected the submission that the circumstances significantly diminished the culpability of the applicant. He, therefore, imposed life sentences in respect of each charge of murder. When doing so, he said these words, referring to the murder of Mrs Kirk, which were amply justified: "The post mortem reports and the photographs in evidence disclose the ferocity of his acts. Not content with this sneaky, cool and calmly executed act, he stabbed her with considerable force in the chest, puncturing her lung and aorta. His attack upon her was vicious and probably executed with all the feelings of frustration and anger that had been brewing within him for days, if not weeks." 27 In respect of the death of Stephanie Kirk, his Honour made these remarks, which I adopt: "Next, when three year old Stephanie Kirk innocently came upon him in the garage where he had taken her mother, he bashed her twice in a savage and brutal manner on the forehead and the back of the head. He also stabbed her in the heart. This treatment of the young child was uncaring and brutal. It was a revolting and horrifying assault upon a young, innocent child. Undoubtedly the reason for her death was because she stood in his way. She was a person who could identify him. He regarded her a brat who had to be killed along with her mother." 28 I have read the victim's impact statement furnished by Mr Kirk (Ex F). He poignantly describes his anguish as a result of his wife's death and that of his beloved daughter. Their deaths, naturally, turned his life upside down. He resorted to alcohol. He lost his friends. He ultimately found work so troublesome that he resigned. He felt impelled to leave the State in order to escape the torment which he was suffering. His health deteriorated. I am constrained, as a matter of law, in the use to which I can put this material (R v Previtera (1997) 94 A Crim R 76 at 85). It is not appropriate to take this material into account in the present redetermination, and I do not do so. The Worst Class of Case 29 The terrible significance of a sentence of life imprisonment has been recognised. Hunt CJ at CL in R v Petroff (unreported, 12 November 1991), said this: "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 gaol 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." 30 That notwithstanding, there are cases where such a sentence is appropriate. They are characterised as the "worst class" of case. In R v Twala (CCA, unreported, 4 November 1994), Badgery-Parker J (with whom Carruthers and Finlay JJ agreed), stated the principle in these terms: "The argument that was put to us involved the proposition that because it is possible to envisage, and indeed to find in the court files, cases which are worse than the present case, it necessarily follows that the present case is not one appropriate to the imposition of the maximum sentence. I reject that approach. However, 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 subjective features mitigating the penalty to be imposed)." 31 In R v Garforth (CCA, unreported, 23 May 1994), the Court (Gleeson CJ, McInerney and Mathews JJ) referred to an argument put on behalf of the applicant, which was as follows: "It was urged that the maximum sentence of life imprisonment, bearing, as it inevitably does, no determinate minimum term, must be reserved for those cases where the offender is likely to remain a continuing danger to society for the rest of his or her life, or alternatively for cases where there is no reasonable prospect of rehabilitation." 32 However, the Court rejected that argument, it said this: "We reject the applicant's submission that it is only where there is no chance of rehabilitation that the maximum penalty of life imprisonment can be imposed. 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. As we have indicated, we believe that this is such a case." 33 The Crown did not urge that Mr Alexander's crimes should be characterised as being in the worst class of case. It, nonetheless, said this: "If this Court determined the case was not 'worst case category' it is submitted that it is very close to it, and would require a very substantial minimum term coupled with an additional term for life." 34 I have been referred to a number of authorities where the Court, upon redetermination, has decided that a life sentence should be reimposed. Although unquestionably the crimes of the applicant were callous and horrifying, I do not believe that it is appropriate to categorise them as being within the worst class of case. The applicant was guilty of multiple murders. However, they arose out of a single act. They were not sequential, or serial murders. Nor were they cold blooded contract killings, or killings for financial gain, which have been characterised as being in the worst class of case. There was no element of torture, or sexual gratification, which are recurring elements in those cases which have been characterised by the Courts as especially heinous. 35 A redetermination is therefore appropriate. It is necessary, therefore, to identify those matters relevant to an appropriate minimum, and the additional term. The prospects of rehabilitation, and the potential for further harm, are obviously important considerations. The Applicant's Incarceration 36 Whilst awaiting trial, the applicant was incarcerated. He wrote a letter which was intercepted. Upon the basis of that letter, he was suspected of having been involved in an attempt to escape. He was, for a time, segregated. After the period of segregation, which was short, he was placed on protection. One gathers that the nature of his crime, involving, as it did, a child, created certain difficulties with other inmates. 37 Mr Alexander has remained on protection for most of his sentence. It is recognised that incarceration is the more harsh for those on protection. They are restricted in their movements throughout the system. Their access to privileges is curtailed. These, and other matters, are relevant to the length of sentence, including the minimum term (R v Davies (1978) 68 Cr App R 319; R v McCafferty (Wood J, unreported, 15 October 1991); R v Potter (Studdert J, unreported, 28 October 1991); R v Hitchins (Grove J, unreported, 3 June 1993). 38 The applicant lodged an appeal against his conviction and sentence. He was seen by a psychiatrist on 24 September 1997. He told that person that Mr Kirk, the husband of the deceased, was responsible for the offences. 39 Ultimately the applicant abandoned his appeal. He nonetheless continued to deny responsibility for the murders for almost a decade after they had occurred. From the viewpoint of his rehabilitation, this was not promising. 40 On 17 September 1995, whilst incarcerated at Grafton gaol, he escaped with another inmate. They stole a motor vehicle. They, thereafter, broke into a shop from which they stole food, and other items to assist in their escape. The next day they stole a boat and trailer, and various items from a dwelling. Whilst washing themselves beside a river, they were rearrested. They had been at liberty for less than two days. 41 Mr Alexander gave, as his explanation for escaping, that he wished to obtain publicity for what he perceived to be "wrongful convictions" on the two charges of murder. The Crown, somewhat charitably, said, in the course of submissions before me, that such a claim did not necessarily represent a continuing denial of responsibility. It was consistent with a feeling of grievance at the rejection by the jury of the defence of diminished responsibility. 42 After his rearrest, the applicant spent a period in segregation. He was then charged with various offences. He pleaded guilty before his Honour, Job DCJ. Applying the principal of totality, a sentence of five years and four months was imposed, consisting of a minimum term of four years, and an additional term of one year and four months. The sentence was dated from 26 September 1996, being the date of the hearing before the District Court. An appeal against that sentence was dismissed by the Court of Criminal Appeal on 11 June 1997. 43 The escape, and the sentence imposed as a consequence of it, are obviously important matters to which I am obliged to have regard (s 13A(4) Sentencing Act 1989). Barr J in R v Fenech (unreported, 4 September 1997) referred to the authorities before the amending Act in 1997 which added sub-section 4A. He said this: "I think in view of these authorities that the proper approach in redetermining a life sentence is to take into account subsequent offences and sentences not only for the purpose of ascertaining the applicant's stage of rehabilitation but in order to fashion a redetermined sentence which will ensure that the applicant does not go unpunished or insufficiently punished for offences for which he is sentenced after the life sentence. I think that the principle enunciated by Hunt CJ at CL in R v Purdey (1982) 65 A Crim R 441 applies to cases like this one just as it applies to life sentences which are imposed on prisoners already serving sentences." 44 His Honour remarked that, if the principle was open to doubt, the doubt was removed by the ss 4A which was added to the Act in 1997, and which was retrospective, applying to all applications, including the present application. 45 However, this aspect aside, there are a number of matters which have emerged since the applicant was sentenced, which are favourable to his application. He is described as intelligent. He did not give evidence on the redetermination. Nonetheless, the prison file contains many of his letters. The text rather suggests they were written by him, rather than on his behalf. He certainly emerges from the correspondence as intelligent and articulate, although occasionally manipulative (see, for instance, his letter of 12 June 1994), and occasionally untruthful (for example, his claims to have married in 1982, which claims are rebutted by a considerable body of evidence in the prison file). 46 He has also made good use of his time in prison. He has undertaken a number of courses, including Spanish and computer studies. He appears to have recognised the importance of education to his rehabilitation. 47 He has also carved various wood sculptures. He has won awards for his work. Some of the sculptures were displayed before me in court. They were truly remarkable. 48 The former head of the Serious Offenders Review Board, Torrington DCJ, had a policy of not reclassifying prisoners on life sentences before the redetermination of their sentence. Torrington DCJ's period in office concluded in June 1997. He was replaced by Enderby J. Enderby J had a different policy, although the applicant, having escaped in the meantime, was not in a position to claim reclassification at that time. 49 The result has been that the applicant has spent his term in prison, not only on protection, but classified Maximum Security A2. For a time, when at Grafton before his escape, he was classified B. Since his escape, he has been classified E1, signifying the maximum restraint under the classification system, he now being a person with a history of escape. 50 Nonetheless, the commentary of those responsible for his supervision in gaol has been almost universally favourable. He is co-operative. He is described as a good worker. He has been given positions of trust. Indeed, his gaol record, in terms of discipline, is remarkable, given his background, the length of his incarceration (fourteen years thus far), and his classification. On two occasions only, on 19 and 20 October 1996, he refused to comply with the gaol routine. He was given a reprimand and caution in respect of the first occasion, and deprived of amenities in respect of the second. 51 There is only one other offence on his record, although it is important. On 18 January 1999, as a result of a random urine test, he was found to have drugs (cannabis) in his urine. Drugs and Counselling 52 A fundamental aspect of the applicant's rehabilitation, and his potential for harm, is his attitude to drugs and alcohol. 53 The applicant, to his credit, appears to have avoided drugs whilst in gaol. He told a psychologist in September 1987 that he had stopped using drugs in the remand centre, "when he decided that he didn't want to have to 'rort' around looking for enough heroin to maintain a habit". On 12 June 1994 he wrote a long letter which included the following statement: "I have long ago realised that alcohol (and) drugs … are not to be mixed, no matter how small the doses. I have learned the hard way, so has society …" 54 He repeated that statement to Dr Westmore whom he saw in February 1999. 55 The transgression in January this year was explained upon the basis of exceptional circumstances, created by the deaths of inmates who were his friends. 56 What is perhaps more disturbing is the failure by Mr Alexander to seek drug and alcohol counselling, notwithstanding repeated suggestions that he should do so. He has had some counselling. However, his attitude is a worrying feature of his application. He appears to regard such counselling as having no relevance to him, he having resolved to have nothing to do with either alcohol or drugs. His recent relapse in circumstances of stress demonstrates the folly of that approach. 57 It is important to his progression through the classifications, following this redetermination, that Mr Alexander should have drug and alcohol counselling, and counselling generally. Should he falter in his resolve to remain drug and alcohol free after release, his past would suggest that there is danger. It is fundamental, therefore, that he addresses that danger. 58 Dr Westmore, speaking of Mr Alexander's progression to a lower gaol classification, said this: "Q. What sort of timetable would you see as desirable in terms of that progression, are you able to say? A. Not really clearly. I mean he has been institutionalised for 14 years. There will be a degree of institutionalisation, the world has changed a great deal in that time. From a psychological perspective it is better if it is done gradually than if it is done quickly and what I mean by gradually is over a period of months or years." 59 Dr Westmore described the supervision which should be provided following the applicant's release on parole in these words: "A. I think he initially should see a mental health professional at least once a week to assist in monitoring how he is adjusting and to assist him with the process of adjusting and that should continue for at least twelve months and probably longer in view of the serious difficulties he has had before. I think he should have regular monitoring for drug in urine tests. Alcohol monitoring, that could vary but at least weekly and possibly done on a random basis but maybe up to three times a week if need be. I would think the support and supervision of the Department of Probation and Parole, for example an officer from that service might assist as well and that person should or could liaise with the psychiatrist or the psychologist. So there are two areas of him being covered. Where he lives needs to be supervised. What work he does needs to be supervised. So I can see it being quite intense initially. Q. Would you see it as being finite or indefinite? Again another hard question. A. From this point in his assessment it is difficult to say because a lot depends on how he proceeded. If three years down the track there is no suggestion he is likely to use drugs or alcohol, for example, that is a quite significant thing but does not necessarily mean he won't use drugs or alcohol but it does mean you could lessen this supervision of the drugs and alcohol that might have happened at three or two years if he was showing signs of progress and that he was getting a strong will. So that is probably a decision which needs to be made as to his progress during therapy and rehabilitation." Risk in the Future 60 The material before me, therefore, is both positive and negative. Leaving aside the escape, which is, of course, distinctly negative, his prison record is largely a positive aspect of his application. His thirst for education is likewise positive, as is his willingness to work and his intelligence. 61 The negative aspects include the escape, and the recent positive urine sample. They also include an apparent reluctance to seek psychological counselling, and specifically, drug and alcohol counselling. Mr Alexander appears to have limited insight into his conduct. He does not see himself as a violent man. He does not regard himself as being like other murderers. In some respects he is right. He has not continued in prison the sort of brutal conduct which his crime demonstrates is within his capacity. He appears to have no real understanding as to why he so brutally murdered an innocent child. 62 Dr Westmore did not believe the applicant was suffering from a major depressive illness. He had no psychotic features, such as delusion or hallucination. It is clear from Dr Westmore's report that Mr Alexander was something of a puzzle. The puzzle arises from the contradiction between the reasonableness of his presentation, and conduct in gaol, and the extreme brutality of his crime. In these circumstances Dr Westmore was left with some concerns. He explained those concerns in the following passage taken from his evidence: "Q. You have got some concerns about Mr Alexander? A. I do. Q. Could you first of all tell us what those concerns are? A. The concerns relate to two issues: while there were some anti-social acts and qualities to his personality before this offence I do not believe the extremeness of this offence could have been predicted on his previous personality profile. In particular, I do not believe that the offence involving the child could have been predicted and it is really very much unexplained on the account that we have from him. So that is the first issue. The second issue is that he presents relatively well at this stage from a psychological perspective. By that I mean when you examine him now you cannot easily identify any significant risk factors and that is an issue of concern I have in some ways. It is obviously a positive feature but it also is a feature of uncertainty about him." 63 Dr Westmore's ultimate conclusion, nonetheless, was in these terms: "Q. Having said that there are reasons to be cautious about Mr Alexander, your overall opinion is that the risk of reoffending is low? A. He does not present as being a high risk at this time." Sentence Redetermination 64 Taking account of these matters - the shocking brutal and callous nature of his crime, the aggravating feature that it involved a three year old child, the escape, and the sentence in the District Court for the offences associated with the escape, the positive and negative aspects of the applicant's conduct in the last fourteen years, clearly a significant minimum term is called for, as well as close supervision after the applicant's release on parole. 65 Pursuant to s 13A of the Sentencing Act, in respect of each of the life sentences previously imposed upon the applicant, I set a minimum term of 21 years, to date from the time the applicant went into custody on 20 August 1985, and to expire on 19 August 2006, together with an additional term of 8 years, commencing on 20 August 2006 and expiring on 19 August 2014. 66 The earliest date upon which the applicant will be eligible for parole is 19 August 2006. His reclassification should begin as soon as possible. He should be encouraged, whilst incarcerated, to undertake counselling in respect of drugs and alcohol, and generally. 67 Upon his release, the applicant will obviously require close supervision, incorporating the safeguards outlined by Dr Westmore.

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