Manifest excess
31 While there was some reference to the non-parole period, the submissions concentrated on the sentence to imprisonment for 45 years. What follows is in the first instance directed to that sentence. We will go separately to the non-parole period of 35 years.
32 As we have indicated, Adams J accepted that having regard to the applicant's age the offence was not in the worst category of murder. For that reason, he did not sentence the applicant to life imprisonment. But early in his remarks on sentence he said that "[t]he conclusion that this crime was committed by an extremely dangerous and disturbed individual is both obvious and inevitable and requires no psychiatric training to be discerned". He accepted the opinion of Dr Milton which we have already set out. He referred more than once, including when he declined to reduce the sentence by reason of the plea of guilty, to the applicant presenting a serious danger, as we have said apparently having in mind the protection of the public in circumstances such as those in R v Stabler. The danger represented by the applicant and the need to protect society was prominent in his Honour's sentencing.
33 His Honour noted that all the doctors agreed, in substance, that there was no evidence of developmental disability, brain damage, psychotic illness or mood disorder, although the applicant's intelligence was estimated in the low average range. He continued -
"As Dr Milton, however, concluded -
'In any event, and regardless of the cause, Mr Robinson showed restless, aggressive, anti-social behaviour prior to the killing and such a pattern does not as a rule change much over time'."
34 His Honour said -
"26. In this case, Dr Wilcox does not suggest that this offender has any real prospect of rehabilitation, although her report appears mainly directed to the issue of his fitness to plead and the possible existence of a defence of either mental illness or diminished responsibility. However, certain aspects of the case led her to suggest that the offender, 'may have a vulnerability for a psychotic illness and it is possible that at a later time he may develop a mental illness such as schizophrenia'. Dr Nielssen also did not deal with the issue of rehabilitation in terms but stated that, although the offender 'denied having any sadistic or sexually deviant interests, the pattern of behaviour reported is strongly suggestive of a serious psycho-sexual disturbance that warrants extensive exploration in a counselling relationship' and recommended treatment including intensive counselling and further education and vocational training. Dr Milton considered that, whilst Dr Nielssen's suggested approach could be supported on humanitarian grounds, from a clinical point of view, counselling or psychotherapy was not likely to produce significant change. Dr Milton concluded that the offender could be 'contained by a consistent, closely structured environment' and thought that perhaps over time this, combined with education and medication, might have some positive effect but warned that, 'the depth of his problems as demonstrated in his history, the murder and mutilation, suggest entrenched and self-rewarding patterns of violent and bizarre thought, with a risk of repetition'."
35 After further reference to the circumstances in which the offence was committed, his Honour noted -
"It is obvious from the nature of this offence and the character of the offender that protection of society is a very material factor in fixing an appropriate sentence although, of course, the sentence which is otherwise appropriate by virtue of the gravity of the crime cannot be extended 'merely to protect society': see Veen v The Queen (No 2) (1988) 164 CLR 465 per Mason CJ, Brennan, Dawson and Toohey JJ (at 476) … ".
36 After citing from Veen v The Queen (No 2), his Honour said -
"29. Here, it cannot be said that the applicant suffered from a medical abnormality in the medical or psychiatric sense, still less from an abnormality which diminished his moral culpability for Mr Parkin's murder. Accordingly, not only is the offender dangerous but there is no factor, with the exception of his youth at the time of the crime, which reduces the extent of his criminality. In saying this I do not overlook his family and childhood history which, in a number of respects, was most unfortunate".
37 In the course of a discussion of sentencing for life his Honour noted, as one of the reasons for restricting a life sentence to the most serious kind of case, the experience of reform of young offenders of which Allen J had spoken in R v Crump (CCA, 30 May 1993, unreported). When arriving at the length of the term of imprisonment his Honour said -
"42. Whilst I consider it right to be sceptical concerning the offender's prospects of rehabilitation, it cannot be confidently stated that it will never be safe to release him. The real motives of the offender and what was actually his state of mind when he committed this terrible crime must remain matters for speculation. The psychiatrists can describe but are unable to explain his behaviour. However, he was an immature young man at the time. It is common human experience that with age comes change. Whether that change will be for the better is not sure but, as Allen J observed in the passage cited above, it often is. In accordance with accepted authority (see, for example, R v Crump , per Hunt CJ at CL at 20) the most reliable and appropriate way of assessing this change is to rely on the informed judgment of the Parole Board in due course as to whether the offender can be released without danger. This is the function given by the legislature to the Board, upon which each Division must sit, not only a judicial member but also three non-judicial members, one of whom must be a police officer or an officer of the Probation and Parole Service and another must be a representative of the community. The Parole Board must have regard to the principle that the public interest is of primary importance.
43. Having regard to the gravity of the crime and the requirements of the protection of the public, both the sentence and the non- parole period must be lengthy."
38 His Honour then pronounced the applicant's sentence.
39 In relation to the plea of guilty, and generally, his Honour had regarded the applicant as presenting a serious danger from which society should be protected, and he specifically stated that the requirements of the protection of the public (together with the gravity of the crime) called for a lengthy sentence. Yet he said that he could not confidently state that it will never be safe to release the applicant, and referred to the experience of reform of young offenders and to the part played by the Parole Board. The sentencing purpose of protection of the public is, of course, served by a sentence marking retribution, providing deterrence and assisting rehabilitation as well as by incarceration to prevent repetition, but his Honour seems to have focussed on incarceration to prevent repetition. The need for protection of society, in that sense, informed the sentence to be imposed, and that the Parole Board could assess any change in the applicant in 35 years time did not assist in determining whether the 45 years was appropriate because of the need for protection of society. What was the finding as to prospects of rehabilitation?
40 Counsel for the applicant submitted that factors other than the applicant's age took his case out of the worst category of murder. It was the murder of a single victim, it had been unpremeditated, and it was not the product of enduring hostility or specific motive. Further, it was said, his Honour in reality found, and wrongly found, that there were no or no appreciable chances of rehabilitation, which was unwarranted. The emphasis in the submissions was on this last matter.
41 His Honour was conscious that a sentence otherwise appropriate by virtue of the gravity of the crime can not be extended merely to protect society. On the other hand, where the offender would be a danger to the public if at liberty the protection of society is a matter to be considered in imposing sentence, see Veen v The Queen (No 2) at 475-6 (a case such as R v Stabler reflects that principle). As was said in Veen v The Queen (No 2) at 474, the practical observance of a distinction between extending a sentence merely to protect society and properly looking to society's protection in determining the sentence "calls for a judgment of experience and discernment". That judgment is necessarily founded on a finding as to the offender's future conduct.
42 In the present case the difficulty thus presented was manifest. Given the gravity of the offence, satisfaction of other sentencing purposes demanded a lengthy term of imprisonment - it was said by the applicant's counsel that a term of imprisonment of the order of 25 to 30 years represented the appropriate range. Protection of society, in the sense abovementioned, therefore looked to the danger which the applicant would present and his state of rehabilitation very many years in the future. The medical evidence fell short of a permanent personality disorder, and the applicant was young at the time of the offence with the possibility of beneficial change with maturity. On the other hand, the offence was horrific, was medically unexplained but probably sourced in "factors … deeply established in [the applicant's] being" (Dr Milton), and the consequences of repetition in the future would be grave. The gravity of those consequences was undoubtedly material to the exercise of the judgment spoken of in Veen v The Queen (No 2).
43 The applicant's counsel submitted that his Honour "determined that this applicant was likely to reoffend" and so imposed very close to a life sentence. That was then the basis for a further submission to the effect that the psychiatric and other material before his Honour was insufficient for such a positive finding, and the ultimate submission that his Honour "should have found that he was unable, on the material available to him, to confidently hold that the applicant presented a real danger to the community in that there was a real likelihood of his reoffending" and that there was error in concluding "that there was that degree of dangerousness, that degree of community protection necessary as [it] was reflected in this sentence".
44 In Veen v The Queen (No 1) (1979) 143 CLR 458 Stephen J asked (at 462) whether the evidence justified the conclusion that the offender "was, and would probably always remain, a source of danger to the community". His Honour thought the evidence unsatisfactory. He said (at 464) -
"No doubt the whole question of prediction of behaviour in the future is a most difficult one. Its very difficulty is in itself a potent reason against undue weight in sentencing being given to the protection of the community from what is predicted as the likely future violence of the convicted person."
45 Mason J, with whom Aickin J relevantly agreed, said (at 468) that the court must, in sentencing a person who has been convicted of a very serious offence involving violence, if his record and expert evidence plainly demonstrate that there is a real likelihood of his committing that kind of offence again if he is restored to liberty", ensure that by the order which it makes that he will not be released whilst that likelihood continues. His Honour said (at 472) -
"The conclusion that an offender suffers from a disordered or unstable mind and that he will commit serious crimes of violence if released with the consequence that he should be imprisoned for life to protect the community is not a conclusion to be reached lightly. It will only be established, if at all, by compelling evidence."
46 Jacobs J referred to the unsatisfactory nature of the evidence in that case, and said (at 489) that "the court itself must be satisfied that the prisoner has a mental disorder which will lead him to kill or seriously injure in the future before proceeding to sentence on that basis".
47 Veen did offend again after his release. In Veen v The Queen (No 2) what had been said about establishing likelihood of reoffending was not modified. The sentencing judge, Hunt J, had found that the offender "is potentially - or, indeed, certainly - a continuing danger to society when released, in that he is likely to kill again or to inflict serious injury upon his release … " (see at 469). In the High Court it was said (at 470) -
"The obvious difference between Veen [No 1] and the present case is that it was then uncertain but is now known that the applicant has a propensity to kill when he is under the influence of alcohol and under stress. In Veen [No 1] , the majority thought that the trial judge's view that the prisoner was "likely sooner or later to kill or seriously injure one or more other human beings" was not justified by the evidence; in the present case, the killing of Hoson adds to the earlier acts of violence which, together with the medical evidence, amply support Hunt J.'s conclusion that the applicant is a continuing danger to society."
48 The imprisonment in Veen v The Queen (No 1) was for life, and the offence was manslaughter but by reason of diminished responsibility. What was said about likelihood of reoffending is relevant in the present case, where the imprisonment is for a very long time and the offence is murder. But certainty is not required, as indeed it could not be.
49 Giving weight in sentencing to protection of society against future reoffending must involve an assessment of both degree of likelihood and gravity of consequences. The likelihood must be a real likelihood, but certainty of reoffending can never be found. In looking to society's protection in determining the sentence the probability of the offender remaining a source of danger to the community and the gravity of the danger as a probability interact. Thus in R v Harrison (1997) 93 A Crim R 314 it was emphasised (at 319) -
" … that a sentencing judge is not required to be satisfied beyond reasonable doubt that a prisoner will in fact re-offend in the future. It is sufficient if a risk of re-offending be established by the Crown."
50 In the present case the nature of the offence and the circumstances in which it was committed of themselves called for serious concern as to future reoffending. His Honour summarised the medical opinions, but some further reference is appropriate.
51 Dr Wilcox examined the applicant in relation to fitness to plead, and did not specifically address reoffending. So far as may be relevant, she said -
"Mr Robinson has had a repetitive history of behavioural disturbance characterised by aggression to people, theft and violation of rules. As a result of his behavioural disturbance he has experienced an impairment in academic and occupational functioning. He would therefore fulfil the criteria of a Conduct Disorder of Childhood and it is probable that unless there is a dramatic change in his behaviour his Conduct Disorder will progress to an Antisocial Personality Disorder. He may have also had ADHD but this is less evident now. In association with the Conduct Disorder he has the additional diagnosis of poly substance abuse/dependence involving alcohol, cannabis, amphetamine and in the past heroin.
Although Mr Robinson does not currently present as having a mental illness, that is, he does not suffer from either a serious disturbance in mood or have schizophrenia there have been periods in the past where he has experienced paranoia. However as he was using both cannabis and amphetamines when he experienced the paranois it is highly probable that he had a drug induced psychosis. The fact that he experienced of a loss of contact with reality (psychosis) while using these drugs suggests that he may have a vulnerability for a psychotic illness and it is possible that at a later time he may develop a mental illness such as schizophrenia.
…
In conclusion, it is my opinion that on the balance of probabilities Mr Robinson is fit to plead. As I believe he was not suffering from a disease of the mind at the time of the alleged offence he does not fulfil the M'Naughten criteria and does not have a defence of a mental illness. However it is possible that a case could be made for a defence of diminished responsibility as Mr Robinson has a disturbance in his personality which is an abnormality of mind that is due to an inherent cause. As a result of having a disturbed personality (Conduct Disorder) he easily loses his temper and has markedly reduced impulse control as evidenced by his past history of violent behaviour. The drugs that he took that evening would have further reduced his ability to resist an impulse and substantially impaired his mental responsibility for his actions."
52 Dr Nielssen also did not specifically address reoffending; again so far as may be relevant, he said -
"A particularly troubling aspect of the case was the mutilation of the body of the victim, which occurred after he believed the victim was already dead. Mr Robinson did not offer any explanation for his behaviour, and said that he was also puzzled by having done it. I did not elicit a history from Mr Robinson of fetishistic sexual interest, sadistic impulses or any confusion about his sexual identity, which might explain the mutilation of the victim's body.
Mr Robinson's behaviour was in keeping with a pattern of revulsion towards homosexuals and people he met whilst posing as a male prostitute, whom he claimed to have robbed. His behaviour was also consistent with the reported history of an interest in weapons and previous mutilation of animals, although Mr Robinson angrily denied both allegations. Keeping the weapon and later boasting about the offence to several people is perhaps consistent with a wish to get caught, but is more likely to be due to pride in his achievement.
I did not establish the presence of any condition likely to have resulted from an abnormality of mind being present at the time of the offence, apart from intoxication with a combination of drugs, particularly alcohol. Intoxication with drugs known to reduce inhibitions may partly explain Mr Robinson's subsequent mutilation of the body. Impulsive behaviour is a feature of both ADHD from conduct disorder, although a tendency to act impulsively is not of itself and abnormality of mind.
Treatment should be intensive counselling as well as further education and vocation training. Although Mr Robinson denied having any sadistic of [sic: or] sexual deviant interests, the pattern of behaviour reported is strongly suggestive of a serious psychosexual disturbance that warrants extensive exploration in a counselling relationship."
53 Adams J indicated at one point that Dr Nielssen had not had the episodes with the cats as part of his history. The Crown accepted that this was partly incorrect, in that Dr Nielssen had had this history. We do not think that materially assists the applicant.
54 Dr Milton's report was much more extensive. It was without the benefit of an examination of the applicant, but Dr Milton had the reports of Dr Wilcox and Dr Nielssen and witness statements, apparently all those which were put before Adams J. Dr Milton said that he preferred to provide an opinion after interviewing a person, but did not suggest that his opinion was of less weight in the absence of an interview; nor was that put to him in cross-examination.
55 We have earlier set out extracts from the report accepted by Adams J. In his summary Dr Milton said -
"Mr Robinson has a long history of antisocial behaviour culminating in a very violent calculated attack, followed by prolonged mutilation of Mr Parkin's body. His long history of personality problems, criminal acts, including pretending to be a homosexual prostitute and robbing his would-be clients, widespread illicit drug use, rebelliousness and aggression raise obvious doubts about his future behaviour and suggest it will be a very long time before a psychiatrist could reliably say there is no risk of him carrying out a similar violent attack.
He is not of high intelligence, is not very co-operative with counsellors, has difficulty trusting others, is often highly suspicious, and has a strong sense of entitlement. These factors mitigate against successful counselling. On the other hand, containment in the relatively stable environment of prison, with its limited opportunity to express his aggression and in which he could receive education, medication as required, and be prevented from having ready access to drugs, might have some positive effect over a prolonged period.
Dr Nielssen considered there was a serious psychosexual disturbance that warranted extensive exploration in a counselling relationship. He said at page 7 of his report, that treatment should include intensive counselling, further education and vocational training. I support that approach on humanitarian grounds; but from a clinical point of view I am doubtful that counselling or psychotherapy is likely to produce significant change.
Mr Robinson can be contained by a consistent, closely structured environment. Perhaps over time that, combined with education and medication, might have some positive effect, although the depth of his problems as demonstrated in his history, the murder and mutilation, suggest entrenched and self-rewarding patterns of violent and bizarre thought, with risk of repetition."
56 Dr Milton gave oral evidence. He was asked why he doubted whether counselling or psychotherapy was likely to produce significant (mistranscribed as negative) change, and said -
"A. The behaviour of the kind shown in the offence is rewarding to the person and, therefore, thoughts about it and thoughts of that kind tend to be repeated because they provide satisfaction. The intervention of therapists, education and the like, has that barrier to face before it can effect changes in behaviour. While I think it's essential that prison, medical and other services provide all possible help by way of changing behaviour, such deeply entrenched behaviour is, in my view, unlikely to be changed by these measures."
57 Dr Milton said that multiple killings were indicated where a person found satisfaction in killing for its own sake, or killed as a result of a condition of being quick to anger and show violence, or exhibited cruelty to animals.
58 There was the cross-examination earlier considered as to Dr Milton's opinion concerning the applicant's remorse. At the conclusion of the cross-examination he was invited to revise that opinion in the light of that "what you have said earlier today orally about his prospects of responding usefully to counselling and therapy and such matters", and he said -
"A. Let me look at the issues. One is an expression of guilt and haunting and - and if we assume that is genuine, that is a positive factor. One is, I think, his unawareness of himself. And that is something to be taken into account generally as him not understanding being able to express remorse and so on. Yes, I think there is a positive thing, but I would feel, in the absence of anything more that you have said, that I adhere to what I've already stated".
59 In re-examination Dr Milton was taken to what the applicant had said to Dr Wilcox -
"Q. His statement to Dr Wilcox is he knew that he would never do that again. Did you see anything in the material or in the histories taken by the doctors that could have supported that statement by the prisoner; that is, his opinion that he would never do it again?
A. I thought the material generally suggested there was a risk of him doing it again, rather than just being able to say 'No, I'll never do it again'."
60 In our opinion Adams J was entitled to conclude, from the nature of the offence and the circumstances in which it was committed and from the medical evidence, that whatever caused the applicant to murder the victim in the way he did was likely to remain affecting his conduct, and that there was a significant risk of like violence in the future, even very many years in the future.
61 We do not think that his Honour simply made a positive finding that the applicant was likely to reoffend. His Honour was sceptical of rehabilitation. But he could not be confident that it would never be safe to release the applicant. He thought the applicant's motives and state of mind when offending were speculative. The applicant was an immature young man at the time, and change for the better could come with age. In our opinion his Honour was satisfied that there was such risk of the applicant reoffending that it was appropriate to regard the applicant as presenting a serious danger, so that protection of society should be looked to in determining the sentence: the likelihood was such that, in combination with the grave consequences of reoffending, protection of society by a lengthy term of imprisonment should be part of the sentencing. When he said that it could not confidently be stated that it would never be safe to release the applicant, and recognised that change for the better might come with age, his Honour was doing no more than acknowledge that there could be no certainty.
62 In our opinion the approach his Honour took was properly founded in the evidence, and has not been shown to be erroneous.
63 To return then to the plea of guilty, it follows that his Honour did not err in declining to reduce the sentence otherwise appropriate so far as he had regard to "the serious danger which [the applicant] represents".
64 We were referred to the sentences imposed in a number of other cases. The sentences on redetermination are of little assistance, as they were imposed with the benefit of knowledge of the offender's progress in custody, but in R v Glen [1999] NSWSC 1018 an offender who was 19 when he murdered a young girl in shocking circumstances was left with a life sentence, albeit with the possibility of a further application if recent signs of change in his attitude from one of denial and resistance to rehabilitation bore fruit. For all cases the circumstances of offending of course vary widely. Relatively young offenders have received life sentences (R v Fernando; R v Fernando (1977) 95 A Crim R 533; worst category murder, ages 24 and 23; R v Leonard (CCA, 7 December 1998, unreported), two separate worst category murders, age 24). The principle considered in a slightly different context in cases such as R v Tran [1999] NSWCCA 109 at [9] - [12] must be remembered, that although in sentencing young offenders rehabilitation is of particular importance the court must protect society and give effect to the retributive and deterrent elements of sentencing where the offender conducts himself as an adult and commits a crime of violence or considerable gravity.
65 As we have said, counsel for the applicant relied also on the factors that the murder was of a single victim, that it had been unpremeditated, and that it was not the product of enduring hostility or specific motive. It is equally important to consider that the victim was a random object of extreme violence. It was a worst category murder save for the applicant's age, and had the applicant been older a life sentence could have been anticipated. His was an adult offence, and a grave one. There was no remorse and a need to protect society in determining the sentence.
66 It must be firmly borne in mind that sentencing is inescapably judgmental, and that there is no such thing as one "correct" sentence. That is why appellate decisions speak of manifest excess (or manifest inadequacy) and attribute a discretionary character to the sentencing judge's decision. And that is why this Court does not intervene simply because its judges would have imposed a different sentence, but only when error in exercising the discretion has been shown or the result is so unreasonable or unjust (the manifest excess or inadequacy) that error is inferred (see for example Dinsdale v The Queen (2000) 202 CLR 321 at 324-5). As was said by Sully J in R v Elemes [2000] NSWCCA 235 at [23], the question is "whether the disproportion relied upon is so manifest on its face as to be indicative of, not a mere difference of idiosyncratic opinions, but, rather, of substantive error of law". While the sentence imposed on the applicant was a lengthy sentence, according to these principles we are unable to conclude that it was outside the bounds of his Honour's sentencing discretion.
67 We go to the non-parole period. We do so separately because, as we shortly explain more fully, while the considerations applicable to the setting of the non-parole period are generally the same as those applicable to the setting of the head sentence, the weight to be attached to the material factors and the way in which they are relevant differs according to the different purposes behind each function: Bugmy v The Queen (1990) 169 CLR 525 at 531.
68 Section 44 (1) of the Crimes (Sentencing Procedure) Act requires that the court first set the term of the sentence and secondly set a non-parole period for the sentence. The non-parole period is described as "the minimum period for which the offender must be kept in detention in relation to the offence". By s 44(2), the non-parole period must be not less than three-quarters of the term of the sentence "unless the court decides there are special circumstances for it being less, in which case the court must make a record of its reasons for that decision".
69 This does not constrain the discretion of the sentencing judge in relation to setting a non-parole period more than three-quarters of the term of the sentence, nor subject to the statutory fetter in s 44(2) does it create a "statutory norm" for the relationship between the term of the sentence and the non-parole period or make ordinary sentencing principles inapplicable (R v GDR (1994) 35 NSWLR 376, in relation to the differently structured predecessor to s 44 but holding good for s 44).
70 The release of an offender on parole is governed by Pt 6 (ss 125 - 161) of the Crimes (Administration of Sentences) Act 1999. Release at the expiration of the non-parole period is not automatic. An offender can only be released on parole if he has served the non-parole period of each sentence and is not subject to any other sentence (s 126) and the Parole Board has made an order directing his release (s 127). In making a decision whether to order the release of an offender the Parole Board must have regard to the public interest as a consideration of primary importance and to a number of specified matters, including the likelihood that if granted parole the offender will be able to adapt to normal lawful community life (s 135; see R v Purdey (1992) 65 A Crim R 441 at 445-6). In this case it will be the responsibility of the Parole Board not to order the applicant's release on parole until satisfied that it is likely that he can adapt to normal lawful community life.
71 The court does not fix the non-parole period with regard to the time within which the Parole Board should consider the offender's case. Section 44(1) describes it as the minimum period for which the offender must be kept in detention, reinforcing the position established in Power v The Queen (1974) 131 CLR 623 that the non-parole period is a minimum period of imprisonment to be served because the sentencing judge considers that the crime committed calls for such detention (see R v Simpson (2001) 53 NSWLR 704 at 716-7). But, as was said in Bugmy v The Queen at 532 -
"A prisoner's prospects of rehabilitation will be relevant to the fixing of a minimum term, both by way of mitigation and because the community benefits from the reformation of one of its members. Conversely, the community needs to be protected from a violent offender, especially one whose prospects for rehabilitation are bleak. Likewise, the nature of the crime will be relevant because a more serious offence will warrant a greater minimum term due to its deterrent effect upon others. But the nature of the offence does not assume the importance which it has when the head sentence is determined. There, the sentence must be proportionate to the gravity of the offence Veen v The Queen [No 2] , whereas the minimum term represents a portion of the head sentence during which the offender will not be considered for parole. In one sense, that portion must itself bear a proportionate relation to the crime. Generally speaking, the perceived prospects of rehabilitation will make a significant difference. Among other things, those prospects will affect what is required by way of protection of the community. Release on parole is a concession made when the Parole Board decides that the benefits accruing by way of rehabilitation and the recognition of mitigating factors outweigh the danger to the community of relaxing the requirement of imprisonment." (emphasis added)
72 While Adams J said that both the sentence and the non-parole period must be lengthy having regard to the gravity of the crime and the requirements of the protection of the public, it does not seem that his Honour was asked to weigh those matters differently for the purposes of setting the non-parole period. Further, in the particular circumstances of satisfaction that there was such risk of the applicant reoffending that it was appropriate to regard him as presenting a serious danger, but nonetheless reflecting his Honour's recognition that there could be no certainty (" … it cannot be confidently stated that it will never be safe to release him"), there is room for the possibility of earlier rather than later release on parole if, contrary to the position indicated by the evidence at the sentencing hearing, there is rehabilitation and otherwise the Parole Board considers release appropriate at a time in the future. The non-parole period must still bear a proportionate relation to the crime. What can amount to special circumstances is not confined, and the considerations relevant to the determination of special circumstances encompass the full range of issues relevant to the determination of a minimum period of detention (R v Simpson at 717). But in the present case the applicant's youth, the difficulty of predicting the future, the length of the head sentence, the contribution to and by release on parole of rehabilitation if it occurs, and the fact that release on parole is not automatic, in combination seem to us to constitute special circumstances calling for a lesser non-parole period than that stated in s 44(2).
73 The non-parole period fixed by Adams J was almost 78 per cent of the term of the sentence. It is considerably longer than non-parole periods customarily imposed for determinate offences of murder. It appearing that his Honour was not invited to find special circumstances, we consider that we may more comfortably conclude, as we would do in any event, that the non-parole period he set was outside the range of a proper sentencing discretion. In our opinion an appropriate non-parole period which recognises the special circumstances and still bears a proper proportionate relationship to the crime is 27 years, being 60 per cent of the term of the sentence.