R v Slater

• 1 -1 SPIGELMAN CJ: I will ask Carruthers AJ to deliver the first judgment. 2 CARRUTHERS AJ: Darren Alan Slater seeks leave to appeal against a sentence imposed upon him on 26 November 1999 by Sully J. The sentence was imposed by his Honour in determining an application by the applicant for re-determination of a life sentence he was serving, pursuant to the provisions of s13A of the Sentencing Act 1989, (since repealed). 3 The applicant was found guilty of murder pursuant to s19A(1) of the Crimes Act 1900, following trial before Loveday J and a jury of twelve at the Central Criminal Court. On 12 October 1990 Loveday J sentenced the applicant to penal servitude for life. When sentencing the applicant Loveday J said: "The circumstances indicate a tragedy of monumental proportions, not only to the victim but to the victim's relatives, family and friends, also to you and your family and friends. You are a young man, you were only eighteen at the time, and you became involved in a series of events that may well have overwhelmed you. But the fact is that you are found guilty, on evidence that seemed to me to be completely convincing of this most terrible crime." 4 On 5 November 1999 Sully J heard concurrently two applications, one by the present applicant Slater and the other by his co-offender Nathan Isaac Michael. Mr Michael had been tried separately and sentenced to life imprisonment by Finlay J. 5 Sully J delivered judgment on 26 November 1999 granting both applications. In the case of the applicant Slater, in lieu of the sentence of penal servitude for life, Sully J sentenced him to penal servitude for twenty four years to comprise a minimum term of eighteen years and an additional term of six years. The minimum term was directed to commence on 12 September 1989 (the date upon which he was taken into custody) and to expire on 11 September 2007. The additional term will commence on 12 September 2007. 6 In the case of Mr Michael, his Honour re-sentenced him to penal servitude for twenty one years, to comprise a minimum term of sixteen years and an additional term of five years. This Court is presently concerned only with the appeal by Mr Slater. 7 At the time of the subject offence the applicant and Mr Michael were both eighteen years of age. The applicant was married with a child. 8 Sully J had before him, as is customary on matters of this nature, a comprehensive report submitted by the Serious Offenders Review Council which briefly summarised the relevant factual background as follows: "The circumstances of the offence were that on 9 September 1989 MICHAEL and SLATER (both eighteen years of age) met the young female victim outside a night club and drove her to a deserted area. They put her out of the car when she declined to have sex with MICHAEL. SLATER punched her and requested MICHAEL to hand him a baseball bat out of the vehicle. SLATER used the baseball bat to strike the victim across the back of the head. SLATER removed the victim's jeans and boots with MICHAEL'S assistance. MICHAEL and SLATER then drove away with some of the victim's clothes. After driving a short distance they returned, fearing that the victim may be able to identify their vehicle and report the matter to the police. They drove the victim to a deserted area near Flat Rock Creek Dam. While still alive, they dragged her to the edge of the dam and pushed her over an observation deck where she fell more than 8-1/2 metres, falling onto a concrete pump house, valve house. She sustained gross head and brain injuries and a broken neck dying almost immediately." 9 The victim, Ms McIlwain, was aged twenty five years at the time of the offence. Prior to the commission of the offence she was not known to the offenders. However, they all apparently resided in the Nowra District. Ms McIlwain's body was located some nine hours after the offence had occurred. In addition to the substantial head injuries which were the immediate cause of death, post mortem examination revealed: "(a) Injuries above the right eyebrow and to the lip area of the upper jaw, each of which was consistent with a blow or possibly a punch.

(b) A wound to the back of the head which was consistent with a blow from a baseball bat. (c) Deep bruising to the front of the throat which was consistent with attempted strangulation or throttling."

10 Sully J noted in his remarks on sentence the following paragraph from a statement given by Mr Michael to the authorities on 3 August 1990. After Mr Michael had himself been tried, convicted and sentenced, he gave evidence in the applicant's trial. The relevant paragraph cited by Sully J is in the following terms: "I don't know how Darren got her into the car, but when I got back there she was already on the back seat. So I threw her clothes in the back with her and we took off. I then asked Darren 'Where are we going?' He said, 'To the river, just keep driving, I'll give you directions'. He then told me to turn here, turn there. Then he said, 'Turn around here, we've already past it'. It was just a dead end where we were at the time, so I turned around and drove back and he said, 'It's the dirt road here on the right'. I said, 'Are you sure this is it?' He said, 'Yeah, I used to ride my motor bike in here'. So I turned down the road and started to follow the track up, but it got too bumpy and I said, 'I'm going no further'. He said, 'That's all right, we'll here (sic). It's far enough'. So I stopped the car and Darren jumped out and put the seat forward and dragged her out by the arms. He dragged her along the dirt in front of the car and started to head down this track. While he was still in the range of my lights, he stopped and called out, 'Come on cunt you were in it too'. When I just stayed there for a minute he called it out again so I got out and went over to where he was and grabbed her by the legs. By this time she wasn't moving or saying anything. I picked her legs up, Darren had hold of her under the arms and by the shoulders. He was walking backwards and we headed down along the track. As we were carrying her along, Darren was pulling and saying, 'Come on' Trying to get me to hurry. It was very dark at the time and I couldn't see where I was going and I remember stumbling once and dropping her feet. Darren then said, 'Come on, pick her up'. So I did and we keep going along. When we got up to the walkway a bit, Darren said, 'This will do, put her down here'. So I let her legs go and he put her top half down. He then said, 'Come on give us a hand to roll her over'. I said, 'What is it down there?' He said, 'It's all rock down there'. I put my hands on about her thigh area and pushed had (sic) her by the shoulder and pushed also. At the time she was on her back. I don't remember exactly how far we pushed her, but the next thing she just went over the side and that was it. The next thing I heard was a splat sound and I panicked and ran back up to the car." 11 Sully J concluded that although the conduct of both offenders was criminally culpable to a high degree, and although there was not a great deal of difference between their respective particular criminal culpability, it was nevertheless the applicant who was the instigator of the plan to dispose of Ms McIlwain. Similarly, it was the applicant who chose the Flat Rock Creek Dam as the place where, to quote Sully J's words, "the evil deed might be done". 12 After considering the material before him Sully J was satisfied beyond reasonable doubt that Ms McIlwain was alive when she was on the walkway. This conclusion was clearly supported by evidence that as the men dragged her to the walkway she was partly walking and then stumbling. However, his Honour was not able to conclude, to the same high degree of satisfaction, that she was conscious as she fell to her death. 13 Having considered all the circumstances surrounding the offence for which the life sentence was imposed, as his Honour was required to do by sub-s 4(A) of s13A of the Act, his Honour concluded that the murder of Ms McIlwain was properly to be characterised as, to use his Honour's words, "in the worst case category". His Honour made it clear, however, that he was not intending to use that phrase as requiring a sentence of imprisonment for the term of the applicant's natural life without any recourse to parole, and his Honour also made it clear that the Crown conceded that this was not such a case and that it was appropriate for his Honour to fix a determinate sentence. 14 The applicant had six matters noted on his prior criminal record, which were either drink driving offences or other motor vehicle related offences. They demonstrated to his Honour that these offences were confirmatory of the other evidence to the effect that the applicant was at the time of the murder, to use his Honour's words, a young man with a severe alcohol problem. 15 His Honour then turned to the provisions of sub-s (9) of s13A. Subsection (9) provided as follows: "(9) The Supreme Court, in exercising its functions under this section, is to have regard to: (a) the knowledge of the original sentencing court that a person sentenced to imprisonment for life was eligible to be released on license under section 463 of the Crimes Act 1900 and of the practice relating to the issue of such license; and (b) any report on the person made by the Review Council and any other relevant reports prepared after sentence (including for example reports on the person's rehabilitation), being in either case reports made available to the Supreme Court: and (c) the need to preserve the safety of the community, and (d) the age of the person (at the time the person committed the offence and also at the time the Supreme Court deals with the application) and may have regard to any other relevant matter."

16 With regard to paragraph (a) his Honour indicated that he would proceed upon the basis that the Judge who sentenced the applicant would have understood that the murder in question was so dreadful a crime that it was likely that the applicant, if released on licence or at all under the previous licence release scheme, would not be so released until after he had served a sentence that was well towards the upper end of the generally accepted practical range. 17 As to paragraph (b) his Honour considered the report made available by the Serious Offenders Review Council and with regard to the matter of rehabilitation came to the following conclusions: "(i) The applicant could be described as a model prisoner with a C1 classification which entails confinement 'by a physical barrier unless in the company of an officer'. (ii) The applicant has benefited from psychological and the like support and counselling so as to have come to a proper appreciation of the terrible responsibility that he bears for what happened to Ms McIlwain. (iii) The applicant appears to have made continuing and significantly successful attempts to acquire improved educational skills, together with a range of practical skills of a kind that are likely to assist in a real way in the obtaining by the applicant of lawful and gainful employment if and when he is released on parole back into the general community."

18 With regard to paragraph (c), which requires the court to have regard to "the need to preserve the safety of the community", it is appropriate to quote in full, for present purposes, his Honour's remarks: "17. There is, first, a need to ensure in a general sense that the present applications, if granted, do not lead in time to a state of affairs in which either applicant is at large in the community in circumstances likely to endanger the life, or the physical safety otherwise, of any member of the community. 18. There is, of course, an obvious need to be careful in that respect. That need does not entail, however, a need to refuse outright either of the present applications. Even if the Court accedes to the applications and fixes for each applicant a determinate sentence, the Serious Offenders Review Council will monitor constantly the implementation of the terms of that sentence. If, at the completion of any minimum term set for either of the applicants, the Review Council is of the opinion that the applicant is not yet ready to be released on parole back into the community, then the Review Council has, and will no doubt exercise, the necessary powers to ensure that the applicant is not in fact so released. Even if the applicants are released to parole at the expiration of minimum terms set for them by this Court, their conduct on parole will be the subject of constant monitoring by the proper authorities. 19. Secondly, there is a need in the present particular cases to have regard to something that is said by Mrs Hazel McIlwain, the mother of the late Miss McIlwain who has made a Victim Impact Statement which has been admitted into evidence as Exhibit H. It will be necessary to refer later to this document, but for the present it is sufficient to note the following particular things said by Mrs McIlwain: 'I would be frightened if they were let out. As it is, I can't have anyone walking behind me. I can't go on holidays, as I feel something might happen to me. I am very frightened of the dark and will only drive my car in town because if it broke down in the country I might get murdered...' Mrs McIlwain is a lady aged some seventy two years. She is in practical terms, alone in the world. It is a terrible thing that such a person should be spending the twilight of her life under such shadows as she describes. I do not find it in the least surprising that Mrs McIlwain has the apprehensions of which she speaks in her statement. Her entire statement will be sent, by direction of this Court which direction I now formally give, to the Commissioner of Corrective Services and to the Serious Offenders Review Council with a request that a copy of the statement be kept at all times as part of the respective official files of the two applicants. The Court's intention in giving such a direction is that if, in due course, the applicants are released to parole, then the conditions of their parole should be particular and explicit in requiring that the applicants not contact in any way whatsoever or cause anybody else to contact in any such way, either Mrs McIlwain herself or any other surviving member of her family". 19 Counsel for the applicant has submitted that his Honour fell into error by having regard to the Victim Impact Statement when considering the need to protect the safety of the community, as he is required to do under sub-s(9). 20 S23C(3) of the Criminal Procedure Act 1986 provided: - "The Supreme Court...must receive a Victim Impact Statement given by a family victim under this section and acknowledge its receipt and may make any comment on it that the court considers appropriate. However, the court must not consider the statement in connection with the determination of the punishment for the offence unless the court considers that it is appropriate to do so." 21 Later in his remarks on sentence Sully J again referred to the Victim Impact Statement and on that occasion referred to the well-known authority of R v Previtera (1997) 94 A Crim R 76 at 85, where Hunt CJ at CL expressed the view that it could never be appropriate to take a Victim Impact Statement into account in determining the actual sentence which should be passed upon the offender whose crime has caused the loss to which the particular Victim Impact Statement is addressed. 22 Sully J referred to the principle thus enunciated in Previtera and he noted that the stance adopted by Hunt CJ at CL has been consistently followed in subsequent decisions dealing with the point. 23 Sully J then said: "The Court would wish, however, not merely to receive and acknowledge Mrs McIlwain's statement; but to assure her that the Court has read and considered the contents of the statement; is moved by them; and hopes that the opportunity which Mrs McIlwain has had to express her feelings of grief and loss, and to have a proper respect paid to what she has had to say, will at least do something to relieve, to however small an extent, the burdens that her daughter's cruel death have imposed upon her".

24 I am quite satisfied, having read and carefully considered the whole of Sully J's remarks on sentence, that the comments by Mrs McIlwain in her Victim Impact Statement had no influence whatsoever upon the sentence which Sully J determined. I am satisfied that when his Honour referred to that part of the Victim Impact Statement concerned with her fears for the future when the offenders were released that it was solely as a basis for his Honour's direction that her statement be forwarded to the Commissioner for Corrective Services and the Serious Offenders Review Committee purely for the purpose of imposing particular conditions on the applicant's parole. This was quite an appropriate use, in the circumstances, of the Victim Impact Statement, and, I repeat, the statement had no effect upon the sentence which his Honour eventually concluded was proper, bearing in mind the objective and subjective circumstances. 25 As to paragraph (d) of sub-s (9), his Honour specifically noted the fact that the applicant was born on 14 April 1971 and was accordingly aged eighteen years and about five months as at the date of the murder. He specifically noted he was aged nineteen years and about six months when he stood for sentence on 12 October 1990 and twenty eight years and about seven months when Sully J heard his application for re-determination. 26 That brings me then to what has proved to be in the hearing of this appeal a crucial aspect. His Honour said in paragraph 22 of his remarks on sentence: "Each applicant has served already a substantial period of full time custody. Mr Michael has spent in continuous custody until today ten years and about three months. Mr Slater has served nine years and about eleven months. Each applicant has spent a not insignificant position of his time in custody to date in some form of protective custody. The best available information suggests that Mr Michael has spent some five years and six and a half months and that Mr Slater has spent some three years and seven months in such protective custody. I think that it must be accepted that the nature of prison life is such that a prisoner who is in any form of protective custody is at far greater risk from other inmates, especially inmates who are in the general prison population."

27 As no transcript is available to this Court of what transpired during the course of argument before Sully J on the re-determination application, it is not apparent how it came about that his Honour was informed that the applicant Slater had spent some three years and seven months in protective custody as at the date of application. At the hearing of this appeal Ms Burgess, counsel for the applicant, informed the Court that her information was that as at the date of the application the applicant had in fact spent some eight years in protective custody. Mr Marien, counsel representing the Crown indicated, after having inquiries made, that the Crown agreed with this figure. 28 It is common ground that the appellant's youth would, of itself, have justified, if not required, that he be taken into protective custody when he entered the Corrective Services system. Thereafter, the evidence is not clear as to how he came to remain in protective custody for so long, but it is also common ground that he is presently in protective custody and is likely to remain so for the remainder of his sentence. 29 This Court is faced with a situation where there was a very significant respect in which his Honour had - and I do not use this expression in a pejorative sense - been misled. It is of such a significant nature that, bearing in mind the existing authorities, it requires the intervention of this Court, giving full consideration to the submissions made by Mr Marien for the Crown in that regard. 30 During the course of their written submissions, counsel for the applicant and counsel for the Crown referred to some of the well-known authorities, particularly those dealing with youthful offenders. It is now well established that in the case of a young offender considerations of punishment and general deterrence are generally regarded as subordinate to the need for rehabilitation: see R v GDP (1991) 53 A Crim R 112. However, this is subject to the proviso that this factor is of less importance the nearer the offender is to being an adult, or where he or she behaves in a way an adult might and commits a serious crime: see R v Tran [1999] NSW CCA 109. There is no doubt, from his Honour's remarks on sentence that he had regard to these principles when considering paragraph (d) of sub-s (9). 31 In R v Hearne [2001] NSW CCA 37, this Court (Powell JA, Hulme and Dowd JJ) reviewed a number of authorities pertaining to the relevance of an offender's youth in sentencing. That case involved the stabbing of a police officer. The court held that in the circumstances of that case, where the applicant acted in a stressful situation, it was not possible to postulate that his reaction in stabbing the police officer was not influenced by the immaturity of youth. The conduct of the applicant Hearne in stabbing the police officer was found to be impulsive and not premeditated. From a factual point of view, Hearne may, in my view, be distinguished from the subject case. 32 I agree with the submissions on behalf of the Crown that, having compared the factual situation in the instant case with the factual situation in Hearne, that the applicant's conduct in killing Ms McIlwain was a premeditated crime of considerable gravity and certainly not an impulsive act. One could also conveniently note at this point that there was a plea of guilty in Hearne, a factor which was absent in the subject case. For present purposes the judgment of this Court in Hearne may safely be put to one side. 33 The findings which his Honour made as to the rehabilitation of the applicant were very favourable. His Honour expressly stated in re-sentencing the applicant that he had endeavoured to give proper weight to the rehabilitation already achieved and to the need to encourage the steady continuation of that process. 34 With regard to the statistics made available by the Judicial Commission, they demonstrate with respect to offenders sentenced for murder aged less than twenty one years (in forty cases) the overall term imposed by Sully J on the applicant falls within the top fifteen percent of those cases and the minimum term imposed falls within the top five percent. 35 Counsel for the applicant and counsel for the Crown have referred, as one would anticipate, to a number of cases dealing with sentences either at first instance or on appeal including, of course, re-determination cases. The Crown referred to each case seeking to either rely upon it or distinguish it. For the sake of good order, the cases which received particular consideration should be noted. Twala (Unreported CCA 4 November 1994); Gieselmann (Unreported CCA 13 July 1998); Stephens [1999] NSW CCA 80; Maiden (1999) NSW SC 311; Barry [2000] NSW CCA 138 and Websdale (2000) NSW SC 636. 36 These cases have each been carefully considered. One must bear in mind, of course, that when dealing with the high level of criminality and wickedness involved in the instant case, and cases said to have comparative features, it is difficult to comfortably compare the factual and subjective circumstances in one case with another. Additional material has been supplied to the Court (in the event that it decides that it should intervene), which includes a report by a welfare worker with the Department of Corrective Services attached to the Alcohol and Other Drugs Service, Kirkconnel Correctional Centre. This report establishes that during the period he has been involved with that Service, the applicant's urine analysis has always tested negative. 37 The conclusion by the author of the report is that the applicant has made effective and positive use of the Service while he was at the centre. It also records that he has very strong family support and has expressed remorse at the damage done to the lives of the victim's family and to his own family. 38 Further, that he has during incarceration completed many courses in an attempt to address his offending behaviour. There is also evidence before the Court that upon his release, employment will be available to him of a full time nature. 39 I have already referred to the favourable findings which his Honour made as to rehabilitation. As I have already indicated, it would appear to be common ground that the appellant will continue to serve the remainder of his sentence in restricted custody. 40 I would propose in the light of the cases which the court has considered, together with the statistics to the extent that they can provide some form of assistance, the following orders: 1. That leave to appeal should be granted. 2. That the appeal should be upheld. 3. That the sentence, both by way of minimum term and additional term imposed by Sully J, be set aside. 41 A new sentence must of course follow the new sentencing laws. I would propose therefore that in lieu of the sentence imposed by Sully J that this Court should impose an overall sentence of twenty one years, which would commence on 12 September 1989 and expire on 11 September 2010. I would propose a non-parole period of sixteen years which would commence on 12 September 1989 and expire on 11 September 2005, upon which date the appellant will by eligible to apply for parole.

42 SPIGELMAN CJ: I agree with the orders proposed by Carruthers AJ and with his reasons. For the reasons outlined by his Honour, I reject the submission that the sentence imposed by Sully J was in itself manifestly excessive. This Court does not uphold that submission.

43 However, with respect to a matter material to the exercise of the sentencing discretion, the exercise of that discretion by his Honour miscarried by reason of the fact his Honour was provided with incorrect information i.e. about the period in protective custody.

44 The effect of the judgment of this Court will be to reduce the head sentence by three years and the non-parole period by two years. This decision is not to be regarded as if that reduction was in any way due to the now revealed increased period in protective custody and the additional hardships involved in serving a sentence in that manner. Rather, it is the exercise by this Court of a fresh discretion, taking into account not only the factors which were before his Honour, but also additional evidence of further acts of rehabilitation and, in this case, further evidence of family support, both from the sister and brother-in-law of the applicant and also from his parents.

45 It is always difficult with respect to this particular crime to compare cases because they vary so much in their objective circumstances. Nevertheless, the various cases referred to by Carruthers AJ, which were derived from the submissions for the applicant and the Crown in this case, are decisions which suggest that his Honour's sentence was within the range, although at the very top of the range. The fact that this Court, when exercising the discretion afresh, comes to a slightly different view, does not affect the proposition that his Honour was entitled, on the material before him, to impose the sentence his Honour did impose.

46 One other case that has not been referred to in the submissions, of somewhat greater gravity, is nonetheless of significance because it was a successful Crown appeal. I refer to R v Short [2000] NSWCCA 462, in which this Court increased a sentence of sixteen years minimum term with a four year additional term, to a total sentence of twenty-four years, being eighteen years and six years additional. That case involved an older offender, almost twenty-two years. It involved a more vicious and more prolonged assault: ligature strangulation was the culmination of a series of assaults which involved multiple traumatic injuries, both abrasions and incisions. There was also the further factor in that case of two other women having been assaulted during the course of the same escapade on that evening.

47 Nevertheless, it was a Crown appeal and one would infer that the Court imposed the minimum sentence appropriate and that, if a longer sentence had been imposed at first instance, it would not have been overturned on a severity appeal.

48 I refer to that case only because it is not one of those to which the Court's attention was directed or to which Carruthers AJ has referred.

49 His Honour also referred to the recent decision in this Court in R v Hearne [2001] NSWCCA 37. For the reasons his Honour gives, that case is distinguishable from the present case in a number of different respects to which his Honour has referred.

50 Attached to that case is a schedule of various sentences imposed for this offence. That schedule must be used with some care. It is a mixture of Court of Criminal Appeal decisions and first instance decisions. It does not purport to be comprehensive and it is not clear on what basis the particular cases were selected.

51 It does not, for example, refer to the case of Short which I have just mentioned. Nor does it refer to a number of authorities in this Court to some of which submissions were directed, including: R v Twala (NSWCCA, 4 November 1994, unreported); R v Gieselmann (NSWCCA, 13 July 1998, unreported); R v Spinks (NSWCCA, 7 August 1997, unreported); R v Herring (NSWCCA, 24 November 1998, unreported); R v Stephens [1999] NSWCCA 80; R v Lees [1999] NSWCCA 301; R v Maiden [2000] NSWCCA 519; R v Boreland (NSWCCA, 2 August 1994, unreported); R v White (NSWCCA, 23 June 1998, unreported) and R v Lett (NSWCCA, 27 March 1995, unreported). In addition, of course, there would be many first instance decisions to which I have not referred. The schedule ought to be used with care.

52 In this area, prior cases of this character are a guide and are likely to be a more useful guide than the Judicial Commission's sentencing statistics. However, murder is a crime which can be committed in a wide range of gravity and objective circumstances. There is also a significant range of differences in the subjective circumstances. This is a context where the maximum penalty is life and, accordingly, the range over which the sentencing discretion can be exercised is the largest open to a judge in our justice system.

53 I agree with the orders proposed by Carruthers AJ. 54 SPERLING J: I also agree, for the reasons given by their Honours. 55 SPIGELMAN CJ: The orders of the court are as indicated by Carruthers AJ.

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