R v Matthew James Harris

She describes him as having begun what he knows will be the difficult task of understanding himself. 64 As I have noted, the Crown submitted that I would approach this matter upon the basis that the killing of Mr Wennerbom was in a different category to the killings of Yvonne Ford and Ronald Galvin. The Crown submitted that I would not conclude beyond reasonable doubt that the prisoner had set out with the intention of killing Mr Wennerbom. The Crown accepted, having regard to the whole of the material, that a reasonably possible view of the facts was that the prisoner had intended to rob Mr Wennerbom, and that, having done so, he determined to kill him in order to avoid later identification. 65 There are, as I have observed, a number of passages in the interview between Detective Sergeant Spence and the prisoner in which it appears the prisoner clearly acknowledges that his sole intention in visiting Mr Wennerbom that night was to kill him. This is against a background of the prisoner's admissions that, for a number of years, he had entertained thoughts of killing people in order to get back at the world. I note that, in his sessions with Ms Matsuo, the prisoner has asserted his belief that it was his intention on the evening he called upon Mr Wennerbom to rob and not to kill. The prisoner has not sought to put a complexion on the killings of Yvonne Ford or Ronald Galvin other than that they were killings for the sake of it. Nor in his sessions with Ms Matsuo has he sought to feign remorse for the killings of either Peter Wennerbom or Ronald Galvin. This inclines me to accept that the prisoner has endeavoured to be frank with Ms Matsuo. 66 The interview concerning the killing of Peter Wennerbom was the final interview conducted on 1 December 1998. It is apparent that the prisoner was exhibiting considerable confusion on that day. In the course of his interviews concerning the killing of Yvonne Ford and Ronald Galvin, he had repeatedly spoken of his ruminations about killing people generally. At an early stage in the interview concerning the murder of Peter Wennerbom, he said, "I intended to rob I think". Subsequently, as I have already detailed, he moved from this as his intention asserting emphatically that he had gone to Peter Wennerbom's home in order to kill him. 67 I consider that, in the light of his state on 1 December and having regard to the sequence with which he was interviewed concerning the three deaths, that I would not conclude beyond reasonable doubt that his intention was to kill Peter Wennerbom at the time when he knocked on Mr Wennerbom's front door. 68 I approach the matter of sentence upon this basis. Around the time of his 30th birthday, the prisoner started to become overwhelmed by feelings of depression associated with his view that he had achieved nothing in his life. He was at the time associating with Kenneth Frazier, a person with a lengthy criminal record. The association was a bad one from the prisoner's point of view. 69 Kellie Oxford, a young girl living in the Frazier's home gives an account of the lead up to the armed robbery of Trang Nguyen. She says that it was Mr Frazier who proposed the robbery. She recalls the prisoner as initially declining to be involved. The following night, both Mr Frazier and the prisoner were drunk when Ms Oxford says, Frazier said, "What about that armed robbery?" to which the prisoner replied, "Why not". 70 Both the prisoner and Ken Frazier were suspects in relation to the robbery of Trang Nguyen. They were asked to attend an identification parade at the Wagga Wagga Police Station. It would appear that there was insufficient evidence to charge either of them at that time. 71 After getting away with the robbery of Ms Nguyen, the prisoner, when again affected by alcohol, was emboldened to rob Peter Wennerbom. Having forced his way into Mr Wennerbom's house, he killed him to avoid detection. He was a person who for years had entertained thoughts of killing people. Having killed Mr Wennerbom, and having avoided detection, the prisoner became confident enough to commence killing people for the satisfaction of it. 72 The Crown submits that the killings of Yvonne Ford and Ronald Galvin call for the imposition of the maximum penalty. 73 As I have noted, these proceedings were before me on 24 March 2000. On that day the Sentencing Act 1989 was still in force. On 3 April 2000, Schedule 1 of the Crimes Legislation Amendment (Sentencing) Act 1999 commenced. The Sentencing Act 1989 was thereby repealed. The Crimes (Sentencing Procedure) Act 1999 ("the Procedure Act") commenced on that day. The savings and transitional provisions are contained in Schedule 2 of the Procedure Act. Relevantly cl 37(a) is in these terms: "anything begun before the appointed day under a provision of the old legislation for which there is a corresponding provision in this Act may be continued and completed under the old legislation as if the Crimes Legislation Amendment (Sentencing) Act 1999 had not been enacted". 74 I do not know what is embraced by the words "anything begun … under a provision of the old legislation". The proceedings were on foot prior to the appointed day at a time when the Sentencing Act 1989 was in force. They had been commenced, on one view, not later than the date on which the prisoner was arraigned. It is not clear to me that anything had begun under a provision of the old legislation for which there is a corresponding provision under the Procedure Act. The proceedings had begun by virtue of the presentation of the indictment. For this reason, I consider the Procedure Act and not the Sentencing Act to apply to any determinate sentence imposed. 75 Section 19A(1) of the Crimes Act 1900 ("the Act") provides that a person who commits the crime of murder is liable to imprisonment for life. A person sentenced to imprisonment for life is to serve that sentence for the term of the person's natural life. Section 19A does not affect the operation of s 21 of the Procedure Act which admits of the passing of a lesser sentence than imprisonment for life in respect of a person's conviction for murder. 76 Section 61 of the Procedure Act provides: "A court is to impose a sentence of imprisonment for life on a person who is convicted of murder, if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence." 77 Section 61 of the Procedure Act is in identical terms to s 431B of the Act. The latter was inserted into the Act by the Crimes Amendment (Mandatory Life Sentences) Act 1996. It commenced on 30 June 1996. I was not referred to any authority concerning the construction of this provision. Hunt CJ at CL referred to it in passing in R v Kalajzich (1997) 94 A Crim R 41 at 49, a case dealing with an application for the determination of a minimum and additional terms pursuant to s 13A of the Sentencing Act 1989. In that case, the Crown submitted that his Honour should decline the application and direct pursuant to s 13(8) that the applicant never re-apply to the Court for such a determination. The effect of such a direction being to leave the unsuccessful applicant serving a term of imprisonment for the remainder of his or her natural life. In this context, his Honour said: "For completeness, reference should be made to the terms of s 431B(1), inserted in the Crimes Act last year, which purports to provide a mandatory life sentence for murder where 'the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met by the imposition of [a life] sentence'. The subheading to that particular provision is 'Mandatory life sentences for certain offences' but, so far as the offence of murder is concerned, it has no effect as a mandatory sentence, because it permits (by subs 3) a sentence less than the maximum to be imposed even where its conditions have been fulfilled. It 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". 78 Greg James J gave detailed consideration to the history and effect of s 431(B) in Regina v Petrinovic [1999] NSWSC 1131. His Honour, having noted that s 431B(3) appears to preserve a discretion to impose a lesser sentence (in that it provides that nothing in subs (1) affects the operation of s 442), went on to observe that if the Court is of the opinion set out in s 431B(1) there is, having regard to the language of the section, no discretion to impose a sentence other than life (para 25). It is difficult to reconcile s 431B(3) (now s 61(1) of the Procedure Act) with the terms of s 431B(1) (now s 61(3) of the Procedure Act). I see the force of Greg James J's view. 79 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). 80 In Petrinovic, Greg James J, after referring to the Attorney General's second reading speech of the Crimes Amendment (Mandatory Life Sentences) Bill in the Legislative Council on 17 April 1996, said this: "Considering what was said by the Attorney-General and the language used in s 431B(1), it appears that the section is meant to apply to the culpability involved in the commission of the crimes and that is not to be limited as defined merely by the immediate factual circumstances. Even as to those, there is some doubt as to whether the relevant test requires the culpability of the factual circumstances of the individual offence, standing alone, to justify the imposition of penal servitude for life (see Regina v Street (CCA, unreported 17 December 1996)). It is not necessary to resolve that matter here." (paras 33/34) 81 The language of the provision appears to be drawn from the observations of the Court in Garforth. In that case, it was submitted on behalf of the appellant, that the maximum sentence ought to be reserved to cases in which the offender was likely to remain a continuing danger to society for the rest of his life or, alternatively, to those cases where there was no reasonable prospect of rehabilitation. The Court rejected that submission and in the course of so doing observed, "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". 82 What matters are to be taken into account in determining whether the prisoner's level of culpability is so extreme as to require the imposition of a life sentence? Mr Webb, who appears on behalf of the prisoner, submitted that I would have regard the prisoner's frank admissions as to his guilt, in particular his voluntary disclosure of the offences involving Peter Wennerbom and Yvonne Ford (in respect of which he was not a suspect), his troubled background and the emotional deprivation of his youth, and the contents of Ms Matsuo's report. These matters in combination, so it was submitted, would lead me to the view that the prisoner's culpability for the crimes is not so extreme as to demand the life sentence. 83 Prior to the introduction of s 19A of the Act when the penalty upon conviction for murder was a mandatory life sentence (at a time when persons sentenced to life had the expectation of eventual release on licence under s 463 of the Act) the Crimes (Homicide) Amendment Act 1982 inserted a proviso to s 19 permitting a judge to impose a determinate sentence in cases in which it appeared to the Judge "that the person's culpability for the crime is significantly diminished by mitigating circumstances whether disclosed by the evidence in the trial or otherwise". The construction of that proviso was the subject of a division of opinion within the Court. The controversy was resolved in R v Bell (1985) 2 NSWLR 466, a case in which the majority determined that the expression "culpability for the crime" requires that material totally unconnected with the commission of the crime be excluded (per Samuels JA at 479, Lee J at 482). Thus, circumstances arising after the commission of the murder, being matters ordinarily referable to the exercise of the sentencing discretion such as remorse, assistance to the authorities, a plea of guilty and favourable prospects for rehabilitation, were not to be taken into account for the purpose of determining whether the prisoner's culpability for the crime was significantly diminished. 84 The proviso to s 19 as it then stood was in different terms to the formulation in s 61(1) of the Procedure Act. Further, the proviso operated to confer a discretion where otherwise there was none. Section 61(1) operates (accepting for present purposes the force of Greg James J's view in Petrinovic) to take away a discretion and to require a judge to impose the maximum sentence if he or she is of the specified opinion. Such a provision should be construed restrictively. Nonetheless, having regard to the language of the provision, it seems to me that the assessment of the prisoner's culpability required by the section is directed to circumstances surrounding or causally connected to the offence. Again, I consider this to be consonant with the position at common law having regard to Garforth. 85 Thus, I put to one side for present purposes consideration of such evidence as there is of the prisoner's remorse, his confessions, pleas of guilty and prospects of rehabilitation and I consider whether the prisoner's culpability for his crimes is so extreme that the community interest in the various stated objectives of sentencing requires the imposition of a life sentence. 86 In Bell, the majority observed that culpability means "blameworthiness" as distinct from "deserving of punishment" (per Samuels JA at p 479, Lee J at p 482). In R v Burke [1983] 2 NSWLR 93 at 101, Nagle CJ at CL observed (again in the context of the proviso to s 19 introduced by the Crimes (Homicide) Amendment Act 1982) "the deprived life and upbringing of a prisoner may, in some cases, have contributed to the committal of the murder and so may reflect on his culpability". That such a consideration may be relevant to the assessment of the prisoner's culpability for his crime in the sense of being a causative influence upon it was accepted by each of the judges in Bell. 87 I turn now to the evidence concerning the prisoner's troubled background. In the course of his interviews with the police and in discussions with the two psychologists the prisoner described a childhood characterised by rejection and emotional deprivation. I have summarised the effect of this material above. 88 A statement was obtained from the prisoner's father which does not describe any difficulties in his son's early years. Mr Harris does report that he and his wife started to identify problems with the prisoner's school work and behaviour when the prisoner was in the last year of primary school. Mr Harris says that the prisoner did not fit in well at high school and left both school and home aged fourteen years. He says that he is not able to give any reason why he left home at this age. 89 Mr Mullany's report, to which I have referred, describes a very different picture. It is a contemporary document. It is expressed in the strongest of terms. In this respect it is sufficient to note the opinion set out in paragraph 7 of the report. Mr Mullany goes on to summarise the report of a psychologist prepared around May 1983 when the prisoner was aged fourteen years. The psychologist was of the opinion that the prisoner's behaviour was consistent with children who have not come to grips with adoption and have lost their bonds to their substitute family. Mr Mullany considered the lack of contact between the prisoner and his family (in respect of which he was not critical of the prisoner) was likely to have "an ongoing adverse effect on his emotional development which in all probability will mean he will become involved in anti-social and criminal behaviour". 90 I approach this matter upon the basis that the prisoner did experience a significant level of emotional deprivation and rejection in childhood and that this led to him leaving home and living the life of a 'street kid'. In his teenage years he prostituted himself with men and experienced the feelings of debasement and worthlessness that almost inevitably flow from that lifestyle. 91 I consider that this unfortunate background was causally related to the commission of the present offences. It is the burden of everything the prisoner had to say to the investigating police in a series of interviews notable for their frank admissions. It finds support in the report of Ms Matsuo. This view causes me to refrain from concluding that the prisoner's culpability for his offences is so extreme that the community interest in the various objects of sentencing may only be met by the imposition of a sentence of life imprisonment. 92 I consider that I have a discretion to impose a lesser sentence than one of life imprisonment. It does not flow that I would necessarily do so. Among the various objects of sentencing I must consider the protection of the community. 93 No psychiatric evidence has been placed before me to assist with a consideration of the prisoner's potential for dangerousness in the future. In Garforth the Court observed that a judge is not in a position to require the defence to tender psychiatric reports nor can a person facing sentence be required to submit to a psychiatric examination at the request of the Director of Public Prosecutions. In those cases where no psychiatric material is available, the sentencing Judge is required to make his or her own determination on such material as is available. The Court said: "There are some cases in which the circumstances of an offence on their own suggest the possibility of dangerousness". 94 The prisoner is a person who has killed people whom he perceived to be vulnerable and, therefore, easy to kill because it made him feel powerful to do so. He told Detective Sergeant Spence in the course of the "walk-through" interview relating to the death of Peter Wennerbom that, "He had been living a straight life in Wagga" and "over months thoughts about killing people came into my head - they were powerful thoughts". In that same interview, he said, "I've always expressed the desire to kill people ever since I was a kid and it made, and it, it sought of excited me. It wasn't like I was getting off on it or anything but it was very powerful and it was revenge on society. It's you know, the whole shit." 95 Having regard to the crimes committed by the prisoner, together with the statements made by him to the investigating police, I have no difficulty in concluding that the prisoner represents a danger to the community. This is a proper matter for me to take into account in determining the appropriate sentence, consistent with the observations of the majority in Veen v The Queen (No. 2) (1987-1988) 164 CLR 465. Considerations of the protection of the community cannot allow of the imposition of a sentence which is disproportionate to the gravity of the offence. Having regard to the gravity of these offences I do not feel constrained on that account. 96 The prisoner is thirty-one years of age. A life sentence may see him serve something of the order of fifty years in custody with no prospect of release regardless of any progress which he makes towards reform. In Garforth, the Court observed, "We should emphasise that we do not intend to diminish the terrible significance of a sentence of life imprisonment". The Court quoted, with approval, the observations 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 as sentence deprives a prisoner of any fixed goal to aim for. It robs him of any incentive and it is personally destructive of his moral. 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." 97 It is to be borne in mind that Hunt CJ an CL was speaking of life sentences as they stood prior to the introduction of s 19A into the Act at a time when life sentence prisoners had the expectation of ultimate release on licence. 98 As I read Ms Matsuo's report, there exists some possibility that the prisoner may develop an understanding of his psychological difficulties. Ms Matsuo paints a somewhat more optimistic picture of the prisoner's prospects in this regard than emerges from the report of Ms Barrier. Ms Matsuo has had continuing contact with the prisoner over a relatively lengthy period. I accept her opinion in preference to Ms Barrier's for that reason. 99 I consider that the prisoner's admissions both to Mrs de Jong and to the police are significant to my view that he is not entirely without hope of rehabilitation. His crimes speak of a callous unconcern for human feelings. At the time he was committing them there are some indications that he was himself disturbed by his behaviour. 100 In the course of his interview with Detective Sergeant Spence concerning the murder of Ronald Galvin, the prisoner said that he had gone to see a doctor in Wagga Wagga for depression. He was asked why he was depressed and he replied, "'cause I killed the bloke". He went on to say, "There wasn't any other problem, it was just, you know, living with it". 101 In the period following the murder of Mr Galvin, I accept that the prisoner, on two occasions, endeavoured to kill himself. When he telephoned Mrs de Jong on 30 November 1998, it seems to me he was exhibiting some signs of concern about his aberrant behaviour. There are passages in his lengthy interviews with the investigating police which tend to confirm that view. 102 I consider that the prisoner has some prospect that, with appropriate psychological counselling over a lengthy period, he may one day come not to present a danger to the community. The experience of this Court in making determinations pursuant to s 13A of the Sentencing Act 1989 shows that, on occasions, over the course of long terms of imprisonment some offenders (despite the commission of terrible offences) do rehabilitate themselves to such a degree that their release into the community under supervision may be contemplated; Regina v McCafferty, unreported, NSWSC Wood J, 15 October 1991. 103 I note that the prisoner managed to form a relationship of sorts with Mrs de Jong and with her daughter, Jane Pope, and Mrs Pope's family. Despite Mrs de Jong's love for her brother, she continues to offer support to the prisoner. So does Mrs Pope. Mrs de Jong in a letter dated 16 March 2000, speaks of the prisoner's apparent caring relationship with a young child then being looked after by Mrs de Jong. She refers to occasions when the prisoner exhibited initiative and kindness in dealing with the clients of the Community Transport Service. Given his crimes and, in this context, particularly the murder of Yvonne Ford, I feel I can place little weight on considerations of the latter sort. 104 In Bugmy v The Queen (1990) 169 CLR 525, the majority spoke of the difficulty of forecasting the likelihood of a prisoner re-offending over the course of a lengthy term. This was in the context of the determination of a minimum term in respect of a prisoner sentenced to life imprisonment. The sentencing judge in that case had imposed a minimum term of 18½ years. In so doing he had placed particular weight on considerations of the protection of the community. The majority found this minimum term to be excessive. The applicant was twenty-seven years of age at the date of sentence and would be over forty-five before the likelihood of his re-offending became a matter for the proper authorities to assess. 105 In Bugmy, the applicant's sentence was that fixed by the legislature, namely, life imprisonment. There exists in Victoria provision for the imposition of a life sentence together with the specification of a minimum term before the expiration of which the prisoner may not be considered for parole. Such a sentence provides for greater flexibility than is open to a judge in this State. The protection of the community is assured by the life sentence. A prisoner who continues to pose a threat to society will not be granted conditional release on parole. The specification of a minimum term provides an incentive for rehabilitation. 106 I may either impose a life sentence which deprives the prisoner of any hope or motive for rehabilitation or fix a determinate sentence. I have determined to impose a determinate sentence. Any determinate sentence must, having regard to the facts of this case, accord primacy to the protection of the community. Of necessity, this dictates a sentence of great severity. 107 I now turn to a consideration of the other features of the case which it was submitted would favour the exercise of some leniency. As I have noted the death of Yvonne Ford was not treated as an unlawful killing in the light of the inconclusive findings on autopsy. Although police entertained suspicions concerning the death of Peter Wennerbom, the matter does not appear to have been the subject of active investigation. 108 The prisoner's disclosure of his otherwise unknown guilt of two of these murders, together with his admission as to the murder of Ronald Galvin at a time when Mr Galvin's body had not been located, would in the ordinary course entitle the prisoner to a significant measure of leniency; R v Ellis (1986) 6 NSWLR 603. As I have noted, this consideration would not stand in the way of the imposition of the maximum sentence if I were of the view that such a sentence was required. Since I am not of that view, I consider that I should reduce the sentence I would otherwise impose in order to reflect the prisoner's voluntary disclosure of his guilt with respect to the murders of Yvonne Ford and Peter Wennerbom. However, I bear in mind that I must not reduce the sentences I impose such that they become unreasonably disproportionate to the nature and circumstances of the offences. This latter consideration is to the fore in the approach I adopt. 109 I have regard to the prisoner's pleas of guilty entered at the first opportunity. This is a matter which, pursuant to s 22 of the Procedure Act, permits a court to reduce the sentence which would otherwise be imposed. I take this into account in the same way I have indicated with respect to the prisoner's voluntary disclosure of guilt. 110 As I have noted I have regard to the protection of the community consistent with the observations of the majority in Veen (No. 2) in determining the appropriate sentence. In Petrinovic, Greg James J dealing with sentencing pursuant to s 5 of the Sentencing Act 1989 observed that the additional term did not exist solely for the purpose of the provision of supervision. His Honour said: "An additional term should reflect those elements referred to by the High Court in Regina v Bugmy (1990) 169 CLR 525 and may well include, in addition to a period for which supervision is prescribed, a further period during which the offender remains subject to the sanction of return to custody so as to reinforce rehabilitation and to provide protection, albeit of a more limited kind than that provided for by custody, to the community."

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