R v Norrie [2002] VSCA 232

Court of Appeal (Vic)|2002-12-12|Before: PHILLIPS, C.J. and CHERNOV and EAMES, JJ.A.

Criminal law - Sentencing - Murder in Victoria - Minimum period of imprisonment - Manifest excess - Course of criminal conduct in two States - Two murders and other serious shooting offences - Imprisonment for life upon conviction in first State - Plea of guilty to murder in Victoria after 16 years' imprisonment in first State - Power to increase sentence where sole ground is manifest excess - Totality principle - Application of totality principle as explained in Mill v. R. (1988) 166 C.L.R. 59 - Two sentences including life imprisonment - Crimes Act 1958, s.568(4).

On 19 July 2001 the appellant, Andrew Mark Norrie who is now aged 40, pleaded guilty to a presentment that charged him with the murder of Mark John Lynch ("Lynch") near Orbost in Victoria on 4 March 1986. This was the second murder he committed after he and his young companion left Brisbane on 28 February 1986 and drove south on a random shooting spree, targeting people, cars and houses. Thus, between 1 and 3 March 1986 the appellant committed a series of offences in New South Wales, including the murder to which I have briefly referred. Lynch was killed, as I have noted, on 4 March. I will describe later in a little more detail the appellant's murderous rampage during the first four days of March 1986, but for present purposes, it is sufficient to note that, on 7 March 1986 he was apprehended and on 31 July 1987, he was sentenced by Finlay, J. in the Supreme Court of New South Wales to life imprisonment in respect of the New South Wales murder and to other periods of imprisonment in respect of other offences committed by him in that State during his rampage. According to the law of New South Wales as it then stood, the life sentence that was imposed on the appellant was one without a minimum term, although he was at liberty to apply to have it converted to a fixed term of years. It was not until 1995, however, that he applied to have a minimum term fixed, although it seems that he has not yet prosecuted the application.

Thus, the appellant has been in custody in New South Wales from early 1986 until he was transferred to the Victorian prison system in July 2000 as will be explained presently. It is convenient to mention now that his lust for killing did not cease when he was taken into custody. Whilst he was on remand in New South Wales, waiting to be dealt with for the New South Wales offences referred to earlier, he attempted to cut the throat of another inmate with a steak knife for no other purpose than to get satisfaction from such a killing. On 17 November 1988 the

appellant was sentenced for that offence to 10 years' imprisonment cumulative upon the fixed terms of imprisonment imposed on him on 31 March 1987. The sentencing judge described the attack as vicious and unpremeditated and as being without justification or motive other than the appellant's own pleasure in killing. Further, on a number of occasions in 1993, the appellant told the prison authorities that he was subject to an uncontrollable urge to kill, including on one occasion when he watched on television a film called "The Silence of the Lambs". He sought on those occasions to be confined to his cell.

As I have said, on 17 July 2000, the appellant was transferred to Victoria under the Prisoners (Interstate Transfer) Act 1983 for the purpose of being arraigned on a presentment which charged him with the murder of Lynch and to which he pleaded guilty.

On 19 July and 17 October 2001, the learned sentencing judge heard lengthy and complex submissions from the prosecutor and the appellant's counsel in the course of the plea for leniency that was made on the appellant's behalf. In the course of that hearing, a significant amount of material was tendered which related to, inter alia, the appellant's medical and psychological condition, his personal circumstances, the circumstances in which he served his sentence in the New South Wales prison system and the statement of facts which had been prepared for the proceedings in that State. His Honour also heard evidence from Dr Lester Walton, a psychiatrist, on behalf of the appellant. On 17 December 2001 the learned sentencing judge sentenced the appellant to be imprisoned for the term of his natural life and ordered that a minimum of 14 years and 6 months be served before he became eligible for parole. His Honour did not make a declaration as to pre-sentence detention.

On 19 December 2001 the appellant filed a notice of application for leave to appeal against sentence which was amended by leave of the Registrar on 22 November 2002. Before that occurred, he was given leave to appeal against the sentence by a judge of this Court pursuant to s.582 of the Crimes Act 1958 on the basis of the original two grounds contained in the filed notice of application, namely, that the sentence was manifestly excessive and that the learned sentencing judge had failed to give sufficient weight to the delay in the matter coming on for hearing. The ground that was added pursuant to the leave of the Registrar was:

"3. The learned sentencing judge erred in the way he applied the principle of totality expressed in ... Mill v. R. (1988) 166 C.L.R. 59."

I now turn to deal in a little more detail with the circumstances of the offending. The appellant lived in Brisbane, but was born in England and came to Australia at the age of 11 years. His father had deserted his family when the appellant was aged two and, at the time in question, his mother lived in Sydney. For some time before the offending, however, the appellant had little contact with her or with his grandparents who lived in Brisbane. The appellant has no particular work skills and, although he has worked in a number of occupations, his real ambition was to join the Army. He made a number of efforts to do so, but they were all unsuccessful. Eventually, he managed to join the Army Reserve and was bitterly upset when he was discharged not long thereafter because it was discovered that he had a criminal record.

Towards the end of February 1986, the appellant and his 16-year-old companion, with whom he had been living, purchased a Sterling semi-automatic .22 rifle and a large amount of ammunition. On the following day, 28 February 1986, they bought another semi-automatic .22 rifle, rented an Avis car at the Brisbane airport and drove towards the New South Wales border. As the learned sentencing judge said, the car contained a vast amount of ammunition, spare magazines, and camouflage army-type uniforms. Each man had approximately 900 rounds of ammunition. Thus commenced what Finlay, J. described as a planned campaign of murderous violence carried out in a calculated, cold-blooded way, totally devoid of any sensitivity or feeling.

That campaign commenced at approximately 2 a.m. on 1 March 1986, when for no apparent reason, the appellant and his companion commenced shooting at a Nissan van being driven along the Pacific Highway near Ballina, in New South Wales. In the vehicle were its driver, a female passenger and her two infant children. The appellant first discharged a full magazine of 15 shots into the van. His companion also shot at it. The bullets shattered, inter alia, the front passenger side window adjacent to where the female passenger was sitting. She was, understandably, alarmed for the safety of her children. Although the van increased its speed in order to avoid the appellant and his companion, they pursued the vehicle, drew alongside it, and fired more shots into the van. Somehow, none of the vehicle's occupants were injured, notwithstanding the fact that the appellant rammed the van before driving on.

The appellant and his companion then continued to drive south, shooting indiscriminately at various things as they went. Thus, on 2 March 1986, they all but destroyed an unoccupied parked car which had broken down on a road on the New South Wales coast, by repeatedly shooting at it. On the following day, 3 March 1986, before dawn, the appellant fired a fusillade into a dwelling house near Nowra. It was only through good fortune that no one was injured in the two last-mentioned incidents.

Later that day, at approximately 4.30 p.m., a Mr Bruest was about to return home from fishing at the local lake, when the appellant and his companion saw him walking towards his car. From a distance of about 30 feet, the appellant fired at Bruest and encouraged his companion to do the same. The deceased did not die from the first shot but he did after the appellant emptied his magazine of bullets into his body. The learned sentencing judge noted that before Bruest died, the appellant took a wallet from the dying man's pocket. Later, the police were told by the appellant that he and his companion continued on their way and "just went looking for another victim".

Eventually, the appellant and his companion reached Victoria and on 4 March 1986, as they were driving south, they saw, near Orbost, the 35-year-old Lynch, hitch-hiking in the opposite direction. They drove past him, turned around and offered him a lift. They commenced to drive towards Sydney, but stopped a short while later on the pretence of going to smoke a cigarette. When Lynch got out of the car the appellant fired a number of shots at him. Again, he emptied the magazine into the victim, re-loaded the rifle and shot him a few more times. When he was later asked by the police for an explanation for the shooting of Lynch, the appellant's answer was: "Just enjoyment." He also confirmed that it was his intention to kill the hitch-hiker.

After killing Lynch, the two then drove on, through Melbourne, to Mount Gambier in South Australia where the appellant was arrested after he and his companion "fell out" and the latter called the police. Before the appellant was extradited to New South Wales, he was interviewed by Victorian police. As the learned sentencing judge said, he made full admissions to the Orbost murder in a record of interview which was "chilling in its frankness". When asked for an explanation for having shot Lynch, for example, the appellant said: "I was bored, just wanted to shoot someone. We were going to call at houses and I just wanted to shoot people." Later, the appellant said in relation to the killing of Lynch: "We just picked him up, I thought we'd kill him."

When sentencing the appellant, his Honour fully recognised that almost 17 years had passed since he had murdered Lynch and that he had spent nearly all of that time in the New South Wales prison system. The learned sentencing judge said: "As I explain below, the long period which has elapsed since that offence renders your conduct in the intervening period relevant to the question of your prospects of effective rehabilitation." This aspect of his Honour's sentencing remarks, as well as others, make it clear that his Honour accepted the Crown's submission that the totality principle as explained in Mill should be applied to the sentencing disposition in this case.

It is also plain from the sentencing remarks that the learned sentencing judge had regard to the appellant's experience whilst he was in the New South Wales prison system. Thus, for example, his Honour noted that the appellant was regarded as a security risk and was treated as such for most of the period of his incarceration which necessarily involved a high degree of his separation from other prisoners, leading to an exacerbation of his already severely introverted personality. During his early days in prison, his Honour noted, some medical practitioners suspected that the appellant may have suffered from some form of psychosis; perhaps paranoid schizophrenia. His Honour said that the appellant was even treated with psychotropic drugs and hospitalised for a period. The judge concluded, however, on the basis of the expert opinion of the majority of the psychiatrists who have examined the appellant, that the better view was, that his condition could not be described as a mental illness but rather as a personality disorder with perhaps paranoid and/or schizoid traits. I should say that the material confirms his Honour's view in that regard and shows that the appellant's personality disorder is extreme and seems to be incapable of treatment. In the circumstances, it seems to me, the appellant could be properly described as being an ongoing danger to the community.

In determining the appellant's sentence and in particular, the minimum period of imprisonment, his Honour had regard to such mitigating factors as were present, including the appellant's plea of guilty at the outset and his personal circumstances. Further, on the basis of Dr. Walton's view that, as the appellant matured, his disposition to violence might, of its own accord, begin to dissipate, his Honour considered that some time in the future it might be appropriate for him to be released on parole. The learned sentencing judge also considered that he should fix a minimum term "... having regard to the 15 years you have already served since your arrest in 1986". In this context, it should be noted that the Crown submitted to his Honour that it might not be inappropriate if a non-parole period in the order of 15 years were fixed.

Before argument commenced on the appeal, the Court reminded Mr. Holdenson, who appeared for the appellant, of its power under s.568(4) of the Crimes Act 1958 to increase the sentence that was imposed below. Following a short adjournment to enable him to obtain instructions, counsel informed us that he abandoned grounds 2 and 3 but his instructions were to press ground 1, namely, the sentence is manifestly excessive. In response to questions from the Bench, counsel submitted that, in light of the sole ground now to be argued, it would be impermissible for this Court to consider if a higher sentence should be imposed. It was said that, if the Court concluded that the sentence imposed is manifestly excessive, it could only impose a lower sentence in the exercise of its sentencing discretion. On the other hand, if we considered that the sentence is not manifestly excessive, we should merely dismiss the appeal. At first, the Crown did not seek to argue to the contrary to what was put by Mr. Holdenson in that regard. Over the luncheon adjournment, however, Mr Burke for the Director was good enough, with the consent of Mr Holdenson, to draw our attention to R. v. Flannery[1]. In that case Callaway, J.A. said[2]:

"If on appeal against sentence we think that a different sentence should have been passed or a different order made, it is our obligation in an appropriate case to quash the sentence and pass a more severe sentence or make a more severe order warranted in law."

Winneke, P. agreed and endorsed[3] these observations of Callaway, J.A. [4]. In light of this, I cannot accept Mr. Holdenson's submission on this point. Be that as it may, I consider it unnecessary to decide whether the sentence should be increased. For the reasons that I give, I have concluded that it is quite moderate in all the circumstances and thus, is not manifestly excessive.

Mr. Holdenson's principal argument in support of ground 1 was, he said, encapsulated in paragraph 2.9 of his written outline of submissions. As I understood that argument, it was along the following lines. It was first said that the minimum period of imprisonment fixed by his Honour meant that, in reality, the appellant will serve over 30 years' imprisonment in respect of the offences before he becomes eligible for parole. Counsel arrived at this figure by combining the 16 years or so of imprisonment that the appellant had served since March 1986 and the 14 years and 6 months' minimum period of imprisonment fixed by his Honour. It was then claimed that the non-parole period fixed by his Honour was manifestly excessive because, had the appellant been sentenced in Victoria in respect of all the offences that he committed between 1 and 4 March 1986 (disregarding the State boundaries), he would not have been sentenced to be imprisoned for life for the Orbost murder and to a non-parole period which exceeded 30 years. In my view, however, for the reasons I give below, the premise that underlies this submission, namely, that in the circumstances described by counsel the appellant would not have been so sentenced, is wholly without foundation.

I turn first to the head sentence. In my view, an appropriate sentence in respect of the Orbost murder (and the New South Wales murder) would have been life imprisonment. Although such a sentence is the maximum sentence of imprisonment that could have been imposed under our law, it would have been well justified having regard, in the main, to the fact that the murders fell into the worst category of murders[5], the applicable sentencing principles, the complete lack of remorse by the appellant, the lack of any evidence of rehabilitation on his part and his continuing danger to the community. The appellant pursued a "Rambo" style campaign of killings for the sole purpose of gaining sadistic pleasure from the taking of innocent lives. The two murders were, in effect, "thrill kills" as if committed in some sickening, horror movie and, as I have said, the appellant has not shown any remorse or that he has any insight into his criminal wrongdoing. Moreover, as the material indicates, he clearly remains a danger to the community. In those circumstances, the sentencing principles of just punishment, retribution, denunciation and the protection of the community would have been of paramount consideration in the determination of the sentencing disposition.

In the circumstances, therefore, it is difficult to see how any head sentence other than life imprisonment would have been appropriate in respect of the Orbost murder if the appellant came to have been sentenced as is contemplated in counsel's outline of submissions.

I now turn to the non-parole period which needs to be considered separately from the head sentence as was explained in R. v. Grmusa[6]. As the Court of Criminal Appeal said in that case[7], the fixing of the minimum period "represents the sentencing judge's instinctive synthesis of all the various aspects involved in the punishment process". In applying the principles on which a non-parole period is determined it is particularly relevant to bear in mind what Batt, J.A. said in that regard in R. v. V.Z.[8], namely, that "[t]he non-parole period is the period which justice requires that a prisoner must serve having regard to all the circumstances of his offence before there can be mitigation of punishment in favour of his rehabilitation through conditional freedom". It will be remembered that the consideration of whether any, and if so what, non-parole period should be fixed would have been undertaken in the context of, inter alia, two sentences of life imprisonment, the terms of imprisonment imposed on the appellant in respect of the other shooting offences, his lack of remorse, the lack of evidence of his rehabilitation and his continuing danger to society. Given those circumstances and the heinousness of the offending conduct, no sentencing error would have been committed if no minimum period of imprisonment had been fixed. In so concluding, I have assumed in the appellant's favour that general deterrence would have been regarded as of minimum significance and that the appellant's propensity to commit violent crimes is likely materially to diminish when he reaches old age, as was effectively said by Dr. Walton. Consequently, in my view, the non-parole period fixed by his Honour in this case was quite moderate and does not demonstrate the sentencing error contended for by the appellant.

I mention for completeness that, although the appellant abandoned the complaint that his Honour failed to sentence him in accordance with Mill, in my view, to the extent that the principles of totality as explained in Mill could be said to apply to this case, there has been no failure by the learned sentencing judge to have regard to them. Mill was concerned with the operation of the principle of totality in relation to the head sentence that was imposed on the applicant by the Queensland Court for armed robbery committed by him in that State after he had been convicted and sentenced for like offences that were committed by him in Victoria. It was claimed by the applicant in that case that the head sentence did not reflect the principle of totality. The High Court considered that, in deciding what was the appropriate sentence for the Queensland offence, the sentencing judge should have considered what effective head sentence would have been likely to have been imposed if the accused had committed all three offences in the one jurisdiction and had been sentenced at the same time, it would not be correct, their Honours said, for the second sentencing court to determine the head sentence by reference to the normal sentence applicable to the offence for which the offender is then being sentenced, leaving the fixing of a non-parole period alone to reflect the principle of totality. In those circumstances, their Honours explained, the principle of totality would have required that some concurrency should be directed towards the earlier sentences, but since the second sentencing court could not order such concurrency, the only course open to it was to adopt a lower head sentence that reflected "the long deferment that has taken place during which the offender has been in custody". Since the Queensland Court failed to apply those principles, the sentence was set aside.

It is to be borne in mind, however, that the principle of totality operates in a case like Mill where each head sentence is for a fixed period of years, but the principle could be said to have less, or even no, relevance where the head sentences are a combination of life imprisonment and fixed terms. There is similar difficulty, although perhaps not as great, in seeing how the totality principle stated in R. v.

Todd[9], and approved in Mill[10], would apply to the fixing of the minimum period of imprisonment in this case even if one takes into account, as Todd seems to require[11], the unsettling effect on the appellant occasioned by the delay in being sentenced in Victoria and the fact that the crime was committed over 16 years ago. In that context, it is relevant to note that a factor mentioned in Todd as being important to the application of the principle of totality, namely, the appellant's progress in his rehabilitation during the time he served his sentence in the first State, is of little relevance here because, on the material, it seems that there has been no tangible advance by the appellant on that front during his period of incarceration in New South Wales. Given the circumstances of the offences and of the appellant and the applicable sentencing principles, it is difficult to see how the principle of totality would play any or any significant role in determining a non-parole period here.

Having said that, however, the relevance of Mill to this, or a similar, case need not be determined given that the appellant abandoned grounds 2 and 3.

For these reasons, I would reject Mr Holdenson's argument in paragraph 2.9 of his written outline of submissions. Similarly, for the reasons given, I would reject his other bases for claiming that the sentence is manifestly excessive, namely, that the sentence is out of proportion to the appellant's misconduct and that it is outside the range of sentences appropriate for offending of this nature.

It follows that, in my view, this appeal should be dismissed.

I agree with my brother Chernov that this appeal should be dismissed.

In the course of his submissions Mr Holdenson contended that, as he had only argued ground 1 which alleged a manifestly excessive sentence and had abandoned

the other grounds, this Court was constrained from considering whether a different sentence should have been passed and, consequently, constrained from passing a more severe sentence. I am not persuaded, on the sparse argument advanced, that this submission is correct, but, as it happens, that matter does not fall for decision today.

Had I sentenced the appellant at first instance I would have imposed a more severe sentence than that which the appellant received, but that is not to the point in these proceedings. The question here is whether the sentence actually imposed fell inside the range of sentences properly available to the learned judge in all the circumstances. In my opinion it lay inside but close to the bottom of that range, and I must say that I regard the contention that it was manifestly excessive as bordering on the impudent.

The learned sentencing judge gave careful consideration to the detailed submissions made to him by both prosecutor and defence counsel. He also had regard to the voluminous material, including psychiatric reports, which was placed before him and which was supplemented by oral evidence. His Honour's comprehensive reasons reflect the care given to what on any view was a complex sentencing task in this case.

In fixing a non-parole period at all and what period to order, his Honour was influenced by several factors, the plea of guilty being perhaps the most important. But one factor undoubtedly was the submission made to him by the prosecutor that no person in this State who had pleaded guilty to murder had been sentenced to life imprisonment without a minimum term being fixed. Furthermore, the prosecutor submitted to his Honour that if his Honour was minded to fix a non-parole period then a non-parole period in the order of 15 years would be appropriate in this case. Although the non-parole period which his Honour fixed is now contended by counsel for the appellant to render the sentence manifestly excessive, that complaint,

I agree, for the reasons given by Chernov, J.A., that the appellant's appeal against sentence should be dismissed.

The order of the Court is that the appeal stands dismissed.

[1] Court of Appeal, unreported, 19 February 1996 (Winneke, P, Callaway, J.A. and Hampel, A.J.A.).

[4] A like view was also expressed by his Honour in Director of Public Prosecutions v. Bulfin [1998] 4 V.R. 114 at 141.

[5] See Kalajzich (1997) 94 A.Crim.R. 41 at 50-51 per Hunt, C.J. at CL.

[6] [1991] VicRp 54; [1991] 2 V.R. 153 (Crockett, Fullagar and Hampel, JJ.).

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