R v Pickford [2000] VSCA 179

By the time of the passing of the sentence of life imprisonment the applicant had been in pre-sentence custody for more than a year, from his arrest on 3 January 1985 until the sentence on 28 February 1986. It seems that by a slip Cummins J. referred to this period as one of 354 days, but this was in a passage which showed clearly that he was aware of the actual period, since he stated correctly the two dates marking its beginning and its end. Cummins, J. had regard to pre-sentence detention in fixing the non-parole period, consistently with the approach endorsed by the Court of Criminal Appeal in Hayden (unreported, 9 March 1989) and Jolly[1]. When I say that Cummins, J. had regard to the pre-sentence custody in fixing the non-parole period, I mean that he reduced what used to be called the minimum term which he would otherwise have fixed by a period which broadly reflected the period of pre-sentence detention. The judge's reference to Hayden makes it clear that this is what he did, and that if it had not been for the pre-sentence detention a non-parole period of 23 years or thereabouts would have been fixed in place of the 22-year period actually adopted. The applicant did, I think, at one stage suggest to us that the correctional authorities did not intend to give effect to the judge's determination, because the judge intended to fix a non-parole period of 22 years, whereas they contemplated that he would not be eligible for parole until early in the year 2008, by which time he would have served a total of 23 years or thereabouts in pre- and post-sentence detention. The applicant's complaint here is not that the order is wrong but that it has been misunderstood. I have no doubt that the judge intended him to serve a minimum term of 22 years as a sentenced prisoner, the judge having allowed for the pre-sentence detention in fixing upon 22 years.

Court of Appeal (Vic)|2000-09-14|Before: BROOKING, ORMISTON and CHERNOV, JJ.A.

The applicant was born on 15 March 1959 and was 25 at the date of the murders, which were committed on or about 28 December 1984. At the time of the killings he and his de facto wife were returning by car from Frankston to Ingleburn in New South Wales. The victims, a young man and young woman named David Jones and Ondine Leith, both in their early 20s, were travelling from Victoria to Bateman's Bay in New South Wales, in a Holden utility which they evidently used as a caravan. In the small hours of 2 January 1985 the utility was found abandoned in Macleay Street, Kings Cross, with the bodies of Jones and Leith under the cover in the rear of the utility. Jones had one bullet hole in his head and numerous lacerations to the head and neck caused by a blunt instrument, while Leith had five bullet holes in her head and upper body. They had been dead for several days. The Crown case was that the applicant had shot them both with his .22 calibre rifle when he encountered them at Wangaratta in the course of their journey, and probably on 28 December, when they were lying in the back of the utility in a place where they had camped. Shots had gone down through the tarpaulin covering them. The Crown alleged that after the double murder the applicant and his de facto wife (who was charged with but acquitted of murder) continued their journey, she driving the applicant's car, while he drove the victims' utility. Evidence showed that the utility had been driven to the applicant's home at Ingleburn on 28 December and used by him on the following days before it was abandoned on about 31 December in Macleay Street. There was evidence that personal possessions of the two victims of small value, including toiletries and articles of clothing, were found in the applicant's home at Ingleburn. The murders were committed only a day or so after the applicant had committed the armed robbery, the weapon used in it being the applicant's rifle with which the victims were killed. Cummins, J. found that at the time of the offences the applicant had a limited heroin problem, short of addiction.

By the time of the passing of the sentence of life imprisonment the applicant had been in pre-sentence custody for more than a year, from his arrest on 3 January 1985 until the sentence on 28 February 1986. It seems that by a slip Cummins J. referred to this period as one of 354 days, but this was in a passage which showed clearly that he was aware of the actual period, since he stated correctly the two dates marking its beginning and its end. Cummins, J. had regard to pre-sentence detention in fixing the non-parole period, consistently with the approach endorsed by the Court of Criminal Appeal in Hayden (unreported, 9 March 1989) and Jolly[1]. When I say that Cummins, J. had regard to the pre-sentence custody in fixing the non-parole period, I mean that he reduced what used to be called the minimum term which he would otherwise have fixed by a period which broadly reflected the period of pre-sentence detention. The judge's reference to Hayden makes it clear that this is what he did, and that if it had not been for the pre-sentence detention a non-parole period of 23 years or thereabouts would have been fixed in place of the 22-year period actually adopted. The applicant did, I think, at one stage suggest to us that the correctional authorities did not intend to give effect to the judge's determination, because the judge intended to fix a non-parole period of 22 years, whereas they contemplated that he would not be eligible for parole until early in the year 2008, by which time he would have served a total of 23 years or thereabouts in pre- and post-sentence detention. The applicant's complaint here is not that the order is wrong but that it has been misunderstood. I have no doubt that the judge intended him to serve a minimum term of 22 years as a sentenced prisoner, the judge having allowed for the pre-sentence detention in fixing upon 22 years.

Hayden and Jolly and a number of other decisions of the Court of Criminal Appeal show that judges dealing with applications to have a minimum term fixed under s.18A of the Penalties and Sentences Act 1985 came to act on the basis, and that the Office of Corrections was given to understand that it too should act on the basis, that pre-sentence detention should be allowed for by the judge in fixing the minimum term and should not be credited administratively against the minimum term that was fixed. But the present application was of course made under s.13(2) of the Sentencing Act 1991, and the section of that Act dealing with pre-sentence detention, s.18, was markedly different from the corresponding section of the Penalties and Sentences Act 1985, s.16. The reasons which led me to conclude in R. v. Buttigieg and Caruana (unreported, 8 August 1988) that in fixing a minimum term on an application under s.18A of the 1985 Act a judge should himself make allowance for pre-sentence detention in the exercise of his or her general discretion may not exist where application is made under s.13(2) of the Act of 1991. The relevant provisions of the latter Act are substantially different. The present s.18, dealing with pre-sentence detention, differs greatly from s.16 of the 1985 Act. Many things might be mentioned, but I refer only to the circumstance that the present s.18(1) expressly refers to the court fixing a non-parole period.

So far as is known, there have been only two successful applications under the present s.13(2), leaving aside this one. One is to be found in Ryrie[2], where a refusal to fix a non-parole period was overturned in the Court of Criminal Appeal. The report shows (at 337) that in that case there had been about six months' pre-sentence detention. In fixing a non-parole period the Court said nothing about that detention. The only other known successful application under s.13(2) was one granted by O'Bryan, J. on 6 April 1994 in R. v. Leverett, where his Honour made a declaration of pre-sentence detention in the terms appropriate to the current legislation. The Crown has submitted that what was done by O'Bryan, J. in Leverett was correct and that Hayden and Jolly are no longer applicable.

In my view we need not decide whether the practice endorsed in Hayden is still appropriate where the application is made under s.13(2) of the Sentencing Act. If the practice was still applicable, the judge has not erred. If it was not applicable, then s.18(1) of that Act empowered him to "order otherwise" in the sense of making an order that the correctional authorities should not give credit for pre-sentence detention since he had himself had regard to it in fixing the non-parole period. In the present case this was clearly the judge's intention, so that, if s.18(1) would but for the judge's order have required the authorities to give credit administratively, the judge must be taken to have "ordered otherwise". And so, one way or another, the result is reached that the judge has himself taken pre-sentence detention into account by reducing the non-parole period he would otherwise have fixed to 22 years and the authorities are to ignore that detention, since the judge has given credit for it, his intention being that 22 years in addition to the pre-sentence detention should be served. It seems that the authorities are, as the applicant contends, acting on that basis, but, lest there be the slightest doubt on the point, I would suggest that the Registrar should in due course send a copy of the reasons for judgment in this matter to the authorities.

While serving his sentence the applicant has consistently refused to be interviewed for the purpose of the provision of reports. He maintained this position when represented by senior counsel before Cummins, J. The judge had before him a good deal of material dealing with the applicant's behaviour while serving his sentence. Since shortly after the power to fix a minimum term for persons serving a sentence of life imprisonment was conferred by s.18A of the Penalties and Sentences Act 1985 - a section added in 1986 - it has been accepted that such material is relevant: Anas[3]; Jolly[4] at 90; Ryrie[5]. I do not think it necessary to summarise the quite lengthy material that was before the judge in this regard, although I shall mention a few features of it. It showed that in July 1988 a senior psychiatrist expressed the view that the applicant had "a psychotic disorder namely delusional disorder previously called paranoid psychosis" and that the applicant was concerned that the authorities were interfering with his food and clothing by subtle drug treatment. The applicant has for some years been anxious to sue that doctor. Other reports indicated that the applicant believed he was being administered drugs via his food or clothing for the purpose of preventing him from appealing against his sentence. There are references to an attempt to escape in 1988 and to the planning of an escape in 1995. He is described as a man who has isolated himself in his current environment. A report of July 1991 said that officers described him as "no problem whatsoever" and as polite and courteous and a model prisoner. Another report, a month later, described him as polite but as upset, disturbed and unpredictable. The most recent report before the judge was one of February 1998. It remarks on the difficulty of providing a report in the absence of an interview. I emphasise that I have selected only a few of the many things to be drawn from the material.

As I have said, the ground of the application is manifest excess. The applicant has, in correspondence with the Registrar, made it clear that his submission then was that the appropriate non-parole period was not 22 but 18 years. But before us his argument was rather that the appropriate period was one of 22 years but only on the footing that this period should run from the time of his arrest. He asked us to make an order that would make him eligible for parole from about the beginning of 2007, 22 years after his arrest. He relied on his mother's evidence on the plea and on the matters emphasised by his counsel then, which are recorded in the transcript at pp.14-15 and need not be repeated. He tells us that his file does not record the courses he has done in prison, but the transcript shows that his counsel was able to and did tell the judge about these courses. He says that the psychiatrist earlier mentioned has since been struck off the medical register for conduct relating to a female patient. He has asked us to look at a number of documents not before the judge, and we have done so. I do not think we should receive them in evidence, but I emphasise that my view of the proper outcome of this application would be the same even if they were to be received.

Cummins, J. described the crimes as "the execution of two innocent young people in the most callous of circumstances - the execution of two innocent young people unknown to the applicant". As Mr McArdle observed, the killings were without motive, except perhaps to steal the victims' property. It could not be said, in favour of the applicant, that remorse had been shown - there was no suggestion whatever of remorse. Rehabilitation has been limited. These were dreadful killings and it was important for the judge to mark the fact that two lives had been taken. Once his Honour determined that the appropriate course was to fix a non-parole period, the fact that not one but two lives had been taken had to be brought to account in a significant way in determining how long that period should be.

Compare what was said by this Court in R. v. Coulston[6]. Despite what has been put to us by the applicant, I am of the view that the non-parole period fixed by the judge was well within the range available to him, and accordingly I think we must dismiss this application.

[3] (unreported, Court of Criminal Appeal, 10 August 1987).

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