R v MAIN

The jury accepted the evidence of the informers and the applicant was convicted. 9 On 28 May 1987 Enderby J sentenced the applicant to penal servitude for life.

Reports 10 I do not intend to refer, except in passing, to the matters that were tendered before me on the applicant's earlier application. They are sufficiently set out in my judgment on that application and it is unnecessary to repeat them. I dismissed the application and directed that the applicant not reapply to the Court for a determination under s 13A for a period of two years from 9 July 1999. Of course, a much greater period than that has since ensued. 11 The evidentiary material placed before me is somewhat, and I think significantly, different to that which was before either Allen J or before me on the earlier occasion. Two additional supplementary reports of the Serious Offender's Review Council, dated 16 September 2003 and 17 July 2007, have been tendered. The first report noted that the applicant had two recorded offences in custody since the previous report (of 20 April 1998, tendered in the earlier application before me), which were the damaging of clothes or bedding on 20 February 1999 and the detection of a non-prescribed drug in his urine on 23 September 2000. The last report showed that the applicant had incurred only one internal charge since 23 September 2000, which involved "fighting". The SORC detected a significant improvement in the applicant's attitude and conduct and, on 19 June 2001, recommended his classification be reduced to C1 from B. With the exception that I have mentioned, the applicant was stable on methadone and there was no sign of any significant relapse. It was recommended, however, that he should be on a relapse prevention programme. On 27 January 2002, the applicant suffered from an acute psychotic episode of significant severity. He was transferred to the Metropolitan Medical Transient Centre where he stayed until 14 August 2004. The applicant has been taking prescribed anti-psychotic medication which has been effective. 12 On 20 May 2003, the SORC received a psychiatric report in which it was concluded - "Mr Main did not appear to be experiencing any symptoms or demonstrating any signs suggestive of ongoing psychosis. It would appear, based on Mr Main's clinical presentation, that he has made a complete recovery from an acute psychotic episode, the aetiological nature of which could not be determined. I would consider Mr Main's prognosis at this stage to be favourable, as there does not appear to be any biological pre-disposing factor and/or identifiable precipitating/perpetuating risk factors. In terms of treatment recommendations, it would be appropriate for Mr Main's anti-psychotic medication to be gradually reduced under psychiatric supervision and monitoring." 13 The SORC supplementary report of 17 July 2007 takes up the account of the applicant's history in gaol. I do not intend to set out all that material here but, generally speaking, a significant change for the better in his attitude and conduct was noted. 14 The Council noted and, I think, accepted a psychological report of 1 June 2007 by Ms Dianna Ebzery co-signed by the Regional Senior Specialist Psychologist, which contained the following material - "The LSI-R is an instrument that attempts to identify predictors of criminal conduct in relation to other offenders … Mr Main's score was 31, which places him at the 72.8th percentile. This means that his risk/needs level is higher than approximately 73% of a sample of inmates, and places him in the range described as 'moderate risk'. The PCL:SV is a screening version of the Psychopathy Checklist (PCL-R). This [?his] total scores on the PCL-SV place him in the 20.1st percentile for male prison inmates, which is not regarded as high when compared to others in this population, and therefore not suggestive of psychopathy. The VRAG…provides a probability rating of the inmate violently recidivating within a specific time period…Mr Main's scores falling in the middle of the moderate group for violent recidivism (the 5th highest of nine categories) when compared to a sample of inmates. Summary and Recommendation Mr Main has spent most of his adult life incarcerated, and many of his views have been normalised within an institutionalised culture and the limitations imposed by this 'life' sentence. His propensity for violence as a means of having his needs met remains a relatively untested risk factor outside of the gaol environment, but would appear to be moderated by his present stability and compliance. Behavioural indicators in recent years are indicative of a man who can maintain adequate controls over his anger and aggression when he so chooses. Similarly, he has been better able to control impulsive tendencies associated with drug use, and has maintained favourable urinalysis results. Although Mr Main does have some difficulties in discussing the wider effects of his crimes, this does not appear to be unusual given the disassociation of time since their occurrence, and drug intoxication around that time. He appears more genuine in accepting greater responsibility for his actions and demonstrates an understanding of remorse. His agreeance to participate in voluntary programmes such as the Phoenix and those of greater intensity such as the Violent Offenders Therapeutic Program (VOTP), if suitable, appear supportive of this also. Further contact with Education and exploration of vocational interests is encouraged. It is hoped this would allow for early graded exposure to organisations and opportunities which may strengthen his outside supports whilst building confidence in mixing with others outside of custodial settings. In this regard, referral to transitional programmes such as that run by the Community Restorative Programmes (CRC) and Justice Health would be appropriate in providing pre-release planning and support (should Mr Main be given a determined sentence). Strengthening ties with family and increasing social networks and supports are emphasised as a further moderating factor in his overall picture of risk."

It seems to me that the Council considered that this report was a reasonable assessment of the applicant's situation. 15 The applicant also relies on the reports of Dr William Lucas and Dr Stephen Allnutt, both highly experienced psychiatrists. They were tendered without objection and the Crown did not seek to suggest that I should not rely on them. Again, I do not propose to set out these documents in detail. The advantage of Dr Lucas' assessment is that he first assessed the applicant on 27 July 1998, so that he had a basis for considering whether he found any significant changes in the applicant's condition and attitude. In respect of the offences he said - "About the shooting of Mr Mitchell on 17 June 1983 he said it was terrible and he wished he could change it but 'there is not much you can do'. For a long time he preferred to think of the shooting as an accident, he did not go to the premises to kill anyone but he had taken a loaded gun. Having done this was murder and he was 'not proud for sure'. He remarked that there was 'not much I can do in my position, just hope people just forgive you. I am the bad guy, I know that. For a long time I thought I was the victim, I wasn't'. About the death of Mr Cameron at Long Bay he said he did not have much to say but felt responsible. For a long time he had denied the offence. He spent a while discussing the event, indicating it had been a complex situation. However, he ended by saying, 'He still died as a direct result of what I did'. He felt a lot of guilt. Mr Main finished the discussion of deaths of Mr Mitchell and Mr Cameron saying, 'I was so arrogant to think I could get away with all of that shit. It's easy to be a fuck up. You don't need brains to do something stupid, just to say, "I did that"'. He says that when he sees young men in prison he thinks, 'Was I that ridiculous?'" 16 Amongst other comments, Dr Lucas observed - "I thought him considerably changed as he was no longer as talkative and outgoing and there was no hint that he was uninhibited as previously noted. In 1998 I thought his presentation was consistent with a personality disorder but that was not the case recently. I noted his presentation was consistent with that observed by [the psychologist's report to which the Council referred and which is mentioned above] and probably Dr Carne who saw him in May 2004 … He spoke about his offences in a straightforward fashion and I thought his remorse was genuine." 17 The Doctor's opinion was as follows - "I believe there is good evidence that Mr Main has changed in the nearly ten years since our first interview. The psychological report by Ms Ebzery strongly supports this. I note in particular a report by Senior Custodial Officer D McLachlan dated 1 November 2000 that he had known Mr Main for twenty years and found him a completely different inmate than when they first met. Mr Main's self report of improvement in attitude and behaviour and his presentation at interview convinced me he has changed significantly for the better. Mr Main has had his psychiatric difficulties, as described, but is currently stable and well motivated to continue rehabilitation by attending appropriate recommended programmes. I believe he is capable of completing and benefiting from these programmes. I think the evidence suggests that Mr Main is now at much less risk of re-offending and, based on the psychological assessment and my knowledge of him, I believe risk of serious re-offending is probably low. It is essential that he does not return to drug use at any time and that if released receives support while under supervision, has good contact with his family, and continues on methadone and whatever other medication is considered necessary. Mr Main has now served twenty-four years of his life sentences. From the psychiatric point of view I support the setting of a minimum sentence which will enable correctional authorities and Mr Main to proceed with rehabilitation programmes to assist with his eventual consideration for release." 18 Dr Allnutt evaluated the applicant on 29 January 2008. Amongst other things, the applicant told Dr Allnutt about the murder of Mr Cameron. He said - "With regard to the second homicide, he stated 'He had a bag of gear and I had a syringe because I was involved in the drug scene. I lent him a syringe. He had a shot. I should have pushed the button but didn't because I thought he'd be all right. I feel terrible … As I result of what I didn't do someone died. I should have raised the alarm straight away.' I asked him why he believed he should have raised the alarm and he replied, 'I haven't got an answer'." 19 Dr Allnutt noted again the gradually dawning understanding about the destructiveness and unacceptability of his previous behaviour. 20 Dr Allnutt's report includes a detailed analysis of all the material available from psychiatric and prison sources. Broadly speaking, it may be said that he came to the same conclusion as Dr Lucas, though emphasising the importance of a stepped release process, and ongoing involvement in treatment programmes. With reasonable and appropriate qualifications, the substance of Dr Allnutt's opinion is, I think, that the applicant had progressed sufficiently to justify his being able to work towards release. 21 On the last occasion, I was troubled by suggestions that the applicant had used illicit drugs whilst in custody and in this context saw it as significant that he required a daily dose of 100-110 mgs of methadone and expected to need this for the foreseeable future. My attitude to this question has changed. First, it appears that the applicant has been free of illicit drug use for a considerable time, as evidenced by the fact that he has only returned a positive sample to a non-prescribed drug on one occasion since 1999 (that to which I have already referred and it was not heroin), despite frequent random urine analysis tests. Further medical evidence also establishes, I think, that in respect of the applicant his maintaining a stable dose of methadone is an important aspect of his rehabilitation and should not be regarded as a negative feature. I accept this evidence and have concluded that I placed rather too much weight on this aspect of the matter on the last occasion. 22 The applicant also gave evidence before me on the present application. In particular, he told me about involvement in the Phoenix programme, which is a drug abstinence and behaviour modification programme lasting about seven and a half months. It is an intensive programme of rehabilitation and would usually not be available to a prisoner who does not have a known date of possible release. The fact that the applicant has been chosen as suitable to undertake it and is still in the programme is a very positive sign. He also disclosed that his methadone dose has increased slightly in consultation with the relevant prison staff. The applicant also gave evidence about his change of attitude towards his earlier criminal lifestyle. The applicant also gave some brief evidence about his involvement in Mr Cameron's death, saying that he shared his syringe with him and that this was the direct cause of his death. He said that he accepted his responsibility for Mr Cameron's death but it had taken him twenty years to do so. He agreed that for many years he had thought that the shooting of Mr Mitchell was an accident but that now he understood that he was guilty of murdering Mr Mitchell. He said that he knew the gun was loaded and he should not have taken it to the property. 23 Also produced were the Victim Impact Statements from Ms Christine Power, the de facto wife of Mr Mitchell and Mrs Frances Sloss, the mother of Mr Cameron. Ms Power briefly but eloquently discloses the feelings of grief, loss, anxiety, fear and anger that she and her daughter experienced when Mr Mitchell was murdered and which continue up to the present time. Mrs Sloss discusses the circumstances in which her son was killed and rightly describes it as "a terrible thing to do". She also describes the profound and long-lasting impact on her that resulted from the death of her son, her continuing distress, grief and depression. Her feelings of sadness and loneliness have not diminished. Mrs Sloss also speaks of the impact of her son's death on other members of her family.

Determination: the first offence 24 As I have mentioned, the application seeks a redetermination in respect of each of the life sentences the applicant is serving. It is necessary, I think, to deal separately with each offence. Certainly, a life sentence for the offence involving Mr Kitamura was a most unusual sentence. As I have said, this sentence contained a very substantial degree of double punishment, having regard to the fact that the applicant was sentenced to life imprisonment for the murder of Mr Mitchell, whose fatal wound was the corporal violence involved in the robbery offence. Of course, I am not at all sitting in any sense on an appeal in respect of any of these sentences. The question is whether there should be a redetermination by virtue of the provisions of Sch 1 to the Act. 25 In respect of the first offence it is important to note that the maximum penalty at the time was penal servitude for life but the Crimes (Life Sentences) Amendment Act 1989, assented to on 12 January 2000, reduced the maximum penalty for this offence from life to twenty-five years' imprisonment. Although it is material to consider the reduction in maximum penalty now provided, the validity of the earlier sentence is not called into question by that amendment. The Crown conceded that in relation to this sentence a determinate sentence should be imposed though the prosecutor also submitted that this was an example of the worst case. I do not understand what is said to follow from this contention. Since the applicant has already served a little over the 25 years presently prescribed as the maximum, to set a sentence significantly greater than that period seems to me to be wrong. At all events, I am unable to agree that this is the worst type of case. Certainly it was objectively very serious and was committed, as I have mentioned, when the applicant was free on licence, in respect of an earlier armed robbery conviction. It is also true that this was a home invasion but, at the time, offences such as this were not regarded as significantly more serious than, say, armed robberies on banks or other commercial premises. All are serious but necessarily depend upon their own facts. I think that the reason this matter is said to be in the worst category of cases is that Mr Mitchell was killed in the course of it. But in respect of that death he was convicted of murder and should not be double-punished. As Pearce makes clear, mere concurrency does not deal with the double-punishment problem. I do not think that it can be right for me to repeat the error of past days. 26 At the same time, in redetermining the sentence in respect of the first offence it is not, I think, for me to re-sentence the applicant in such a way as to impose a lesser sentence than that which the applicant has already served. As I have said, I am not sitting on appeal. The redermination is directed to dealing with the balance of the sentence remaining. In determining the application in respect of this particular sentence, I also bear in mind what I propose to do in relation to the other sentences. 27 Clause 4 of Sch 1 sets out the modes by which this Court can dispose of an application in relation to an existing life sentence. The Court can set a specified term together with a non-parole period, decline to set a specified term but set a non-parole period or decline to set either a specified term or a non-parole period. It seems to me to follow that a fixed term cannot be set on such an application. At the same time, I do not think it appropriate to impose a sentence which will substantially exceed the period which the applicant has already served as would be required if the statutory relationship between the non-parole period and the overall sentence as specified in s 44 of the Act were applied. Accordingly, I propose to depart from that ratio. The applicant is sentenced to a term of twenty-five years and two months' imprisonment to commence 29 June 1983 and end 28 August 2008 with a non-parole period commencing on 29 June 1983 and ending on 4 July 2008.

Determination: the second charge 28 The Crown prosecutor conceded - rightly in my view - that in all the circumstances this sentence should be redetermined. Of particular importance in assessing the objective seriousness of this crime is the fact that, although wounding may well have been foreseeable, no death or serious injury was contemplated by the applicant. He was convicted of causing the death of Mr Mitchell, not with any intent to cause death or grievous bodily harm or with reckless indifference to human life but, rather, because it occurred during the commission by the applicant of the crime relating to Mr Kitamura, which then carried a sentence of life imprisonment. It cannot be stated without qualification that such an offence will usually be less objectively serious than other forms of murder. But this may well be the case and, in my view, was the case here. I am fortified in this opinion by the rider added by the jury to its verdict of guilty. The jury were well placed, in my view, to assess the criminality of the applicant. 29 In my view, the application should be disposed of in respect of this charge by imposing both a sentence and a non-parole period. Again, this sentence is a redetermination which is in no way a reflection upon the appropriateness of the sentence originally passed. If the applicant's crimes were to be the subject of fresh sentencing proceedings, one would expect that there would be a degree of accumulation, subject to the principle of totality. However, again, I do not think that in the present context I can change the commencement date of the sentences. The applicant's sentence on the second offence must commence on 29 June 1983. Having regard to the overall sentence that I consider to be appropriate it is necessary to depart from the s 44 ratio between non-parole period and the overall sentence. Accordingly, I redetermine the applicant's sentence on the second offence by setting a sentence of twenty-six years ending on 28 June 2009 with a non-parole period commencing on 29 June 1983 and ending on 4 July 2008.

Determination: the third offence 30 When I dealt with this applicant previously, I said that, had the applicant appeared before me afresh for sentence at that time I would have imposed a life sentence. However, I pointed out the Court, in exercising its functions to redetermine a life sentence, must consider whether there has been any material change in the applicant's character, especially concerning his or her possible rehabilitation. I concluded, in all the circumstances, that I should at that time decline to redetermine the applicant's sentence in order to permit him to demonstrate a greater degree of rehabilitation and hence possibly establish that he should obtain in due course a redetermination. That conclusion was arrived at somewhat over eight years ago. There has been a significant degree of rehabilitation and a distinct change in attitude on the applicant's part which, had it then been present, would have led me to a different conclusion on the question whether a life sentence under the present legislative prescription would have been justified. 31 Rehabilitation, of course, is far from the only material factor in sentencing. Some crimes are so heinous that, whatever the degree of rehabilitation, the maximum sentence must be imposed. 32 The particular substantial aggravating matters here are that this was the second murder committed by the applicant and that it appeared that the applicant acted at the instance of another criminal to prevent the victim from giving evidence. A complicating feature is that the applicant has now given a sworn account of how Mr Cameron met his death. It will be recalled that the Crown case, which relied on prison informants, was that the applicant had told them that Mr Cameron was killed in order to prevent him from giving evidence on behalf of the Crown in an impending prosecution. The accused's initial denial that he had been in 12 Wing at the relevant time was contradicted by prison officers who placed him there at the material time. If the jury accepted their evidence and concluded that, indeed the accused was present despite his earlier denial, and considered that his later acceptance that he was there was opportunistic they may well have rejected the whole of his account for that reason. Moreover, in accepting that the applicant admitted his involvement in the death of Mr Cameron, as asserted by the informers, it was not necessary for them to have positively accepted the whole of that evidence which, having regard to its character, was inherently unreliable. It is scarcely possible for me to evaluate the applicant's present evidence as against that of those informants. 33 At the same time, the applicant did not explain in his evidence here - although he was not asked either by his own counsel or by the prosecutor - how it was that Mr Cameron died from an overdose or whether he was aware of Lo Surdo's apparent interest in the victim's demise - and one can think of other issues upon which (if this matter were really controversial) the applicant might have been cross-examined. Certainly, he made himself available for that cross-examination. I think it implicit in his evidence, and he was not cross-examined on this aspect, that he provided the syringe but not the heroin. At the same time, this account is far from convincing and, of course, he has a motive for minimising his involvement. Nevertheless, I think I should accept the submission of Mr Haesler SC for the applicant that, without going behind the verdict, there is room for doubt that the death of Mr Cameron was quite the cold, calculated, planned murder of a would-be witness as I had previously thought. I am also minded to accept that the applicant was himself affected by having taken heroin at the time he shared his syringe with Mr Cameron. 34 Although in many cases the committing of two murders would justify, if not necessarily require, a life sentence for one or both, this is far from invariably the case. In this case, the murder of Mr Mitchell, though serious, was not an intentional and deliberate act although, as I have said, it was certainly objectively very grave. So this is not a situation where the offender has committed two deliberate murders. The applicant was twenty-eight years of age when he killed Mr Cameron and he is now fifty-three years old. Moreover, Enderby J (who sentenced the applicant for this offence) had no real choice but to impose another life sentence, since any sentence would necessarily be concurrent with the life sentences he was then serving. 35 Making due allowance for the seriousness of the offence, I have concluded that the applicant should have an opportunity to be released on parole in due course, providing of course that the Parole Board considers that it is appropriate to grant parole. He must serve an additional period in prison before he is eligible to be considered for release on parole and the effect of the redetermination will be to add a significant additional term to that which I have already imposed for the other offences. However, such is the seriousness of the offence, I decline to set a specified term for the sentence, leaving in place the life sentence which he initially received. Accordingly, pursuant to clause 4(1)(b) of Sched 1 to the Act, I decline to set a specified term for the applicant's sentence but I do set a non-parole period of twenty-five years commencing 28 May 1987 and ending 27 May 2012. The applicant will be eligible to be considered for release on parole on that date. **********

08/07/2008 - "Offender" changed to "Applicant" on coversheet - Paragraph(s) Coversheet

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.