R v Valera

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

Thursday 21 December 2000 030035/99 REGINA v MARK MALA VALERA @ VAN KREVEL

1 HIS HONOUR: The prisoner, Mark Mala Valera, stood trial in Wollongong charged with two counts of murder to which, upon the presentation of the indictment on 12 July 2000, he pleaded not guilty to murder but guilty to manslaughter. Those pleas were not accepted by the Crown and the trial proceeded. 2 On 8 August 2000 the jury found the prisoner guilty as charged on both counts, so the prisoner is convicted of the murder of David John O'Hearn on 12 June 1998 and of the murder of Francis Neville Arkell on 26 June 1998. 3 It is now my responsibility to sentence the prisoner for these two crimes having heard submissions on sentence from the Crown on 1 September 2000 and from Mr Nicholson on 6 October 2000. 4 Victim impact statements have been placed before the Court from relatives of each of the deceased, but it is well settled that I cannot be influenced by their content in determining what sentences are appropriate: see R v Previtera 94 A Crim R 76; R v Bollen 99 A Crim R 510; and R v Dang [1999] NSWCCA 42. 5 The deceased, David John O'Hearn, was a fifty-nine year old man who lived alone in a townhouse at 54 Bateman Avenue, Albion Park. His body, horribly mutilated, was discovered on the floor of the living room in his townhouse on the morning of Saturday 13 June 1998. I am satisfied that he met his death on the previous evening. The scene that presented itself to those who entered the deceased's premises on that Saturday morning can only be described as gruesome in the extreme. It was a scene that was captured on the photographs then taken and tendered in evidence at the trial. These photographs comprehensively depict what was described in oral evidence and they are acutely disturbing. 6 The body of the deceased was found to be decapitated and the head had been deposited in the kitchen sink. The body was otherwise mutilated: the left hand was severed and it was found resting on a sofa in the lounge room; there were deep incisions to the abdomen, and wounding extended from just above the sternum down to the mid point of the abdomen. Dr Cala, who conducted the post mortem examination, observed five intersecting and parallel incised wounds on the lower chest affecting both right and left sides and the wounding of the abdomen exposed the shaft of a hammer which had been inserted through the anus. The head of this hammer was visible between the buttocks of the deceased and the deceased was lying with his jeans and underpants lowered to a point about the knees. The deceased's penis had been mutilated and intestinal material had been disturbed. Indeed, near the foot of the deceased was found a silver coloured tray on which a section of bowel was resting. On the breakfast bar in the kitchen a number of sections of intestine were found lying. 7 There were found on the floor near the deceased a number of knives and implements either used to mutilate the body or put there in contemplation of such intended use. These items included a small metal saw, four knives, a razor blade and a corkscrew. There was much bloodstaining on the carpet near the body and there was blood spatter on items of furniture and curtains. There was blood smearing on a table on which liquor decanters were located and the word Satan had been written on a mirror suspended above that table. The word Satan had also been written in blood on the wall above the lounge upon which the severed hand was resting and immediately above that word, and also written in blood, was a pentagram. On the wall beside the television set an inverted cross had been drawn in blood. 8 I do not propose to record more here by way of describing the crime scene. The house had been searched and possessions of the deceased lay scattered on the living room floor and in the master bedroom upstairs. 9 Dr Cala expressed the opinion, which I accept, that the mutilation of the body occurred after death and that the trauma to the head was inflicted first. There were numerous lacerations to the scalp and there was gross fracturing of the skull. The many injuries to the head affected the left ear, the left cheek, the left side of the mouth, the nose, the left side of the forehead, across the forehead, above the left eyebrow, the right side of the forehead, above the right ear, the back of the head and the very top of the head. There was a Y shaped full thickness laceration on the right side of the head with grossly fractured skull underneath, and the doctor found that the left eyeball had been depressed because the globe had been punctured by a sharp object. 10 In Dr Cala's opinion, ten to twelve blows would have been required to produce the lacerations he observed and there may well have been more blows that did not produce identifiable injuries. Dr Cala considered that extreme to severe force would have been needed to produce the head wounds. Not only were there numerous separate skull fragments caused by the trauma but there were gross lacerations to the brain and these lacerations were caused either by direct penetration by an implement or by bony fracturing or by the brain moving around by reason of concussive effect. 11 It was the head injuries I have described which, in the doctor's opinion, caused death, and I so find. 12 I pass to the discovery of the body of the deceased Francis Neville Arkell two weeks later on 27 June 1998. Like David John O'Hearn, this deceased lived alone at his residence at 1 Reserve Street, Wollongong. This victim, who was the former Mayor of Wollongong, was sixty-eight years of age. His residence comprised a weatherboard house with an adjoining garage that had been converted into a granny flat. 13 The body of the deceased was found lying on the floor beside the bed in the granny flat. The crime scene evidenced that this victim had been the subject of a savage attack. The deceased was found lying on his back with his legs outstretched, wearing tracksuit pants and a white singlet. The face of the deceased was heavily bloodstained and his head had been very extensively traumatised and was resting in a large pool of blood. Three tie pins had been placed in his person, one in the left cheek, one in the corner of the left eye and one in the right eyelid and there was a splinter of timber found on post mortem examination to have been embedded in the neck of the deceased. This plainly enough had broken off a timber peg, most of which was found on the bed. There was a leather belt lying partially around the neck of the deceased as well as the electrical cord of a lamp. Beside the bed was a broken timber lamp stand, which the evidence revealed had been used to attack the head of the deceased. Also used in the attack was a glass ashtray. 14 There was a large quantity of blood on the tiled floor in the bathroom and in the doorway to that bathroom, indicating that the deceased had been in that vicinity during the course of the attack and a pair of bloodstained boots and tracksuit pants (which the evidence proved had been left there by the prisoner) were found lying on the floor near the foot of the bed. 15 I will not describe the crime scene evidence in further detail but there were many photos introduced into evidence which depict what was seen when the body was discovered. 16 Again, it was Dr Cala who examined the body at the scene and who conducted the subsequent post mortem examination. Dr Cala said that there were thirty-four injuries to the head region. The many lacerations affected the back of the head, the top of the head, the left side of the head, the right upper ear, where cartilage and muscle was exposed, and, indeed, the doctor described the right ear as crushed and severely haematosed. Other lacerations implicated the left eyebrow, the area below the left ear, the bridge of the nose, the right forehead, the area above the right eyebrow, the area around the eye, both lips, the left side of the mouth and the left side of the cheek and the chin. The deceased had fractured teeth and fractures of the right maxilla and zygoma. There was also a fracture of the hyoid bone and of the sixth rib on the right side. The left jugular vein was punctured. 17 In Dr Cala's opinion, which I accept, the deceased died from the combined effect of blunt and sharp force trauma to the head and neck and ligature strangulation. 18 Some three months after the body of Francis Neville Arkell was discovered the prisoner surrendered himself on the night of 30 September 1998 at the Wollongong Police Station where he admitted he had killed both deceased and explained his conduct in making such admissions by saying that to surrender himself "seemed like the right thing to do". In very extensive ERISPs, followed by a walkaround at each crime scene, the prisoner, between 12.55 am and 7.50 am on 1 October 1998, admitted being the person who attacked each of the deceased. His presentation on video was, in my opinion, that of a person who was coherent and cooperative. 19 What the prisoner told the police in the ERISPs included the following:

(a) In relation to the death of David John O'Hearn: The prisoner told the police that he did not know this deceased as a person but on the day of the killing he just wanted to kill someone and went to his house "just random" . He said that there was no forward planning, that he just felt really angry and felt "I could kill someone" . In the walkaround the prisoner explained using a pretext to gain entry to the deceased's townhouse: "I stayed at the door and asked if there was any, like accommodation around," and the deceased invited him in "Come in and we'll talk about it." He described the killing as "just random" more than once and he had so described this killing in the same way to Mr Day, his martial arts instructor, on the evening that he gave himself up and shortly before doing so. The prisoner also told the police in the ERISP that he counted the number of times that he struck the deceased with the decanter. He told the police he did this ten times and that after that he concluded that the deceased was dead because there was no pulse. It was then, according to his version, that the prisoner went upstairs looking for valuables, and it was after his search upstairs that he went back downstairs and collected the items used subsequently to mutilate the body. He also described to police the manner of mutilation of the body and using the severed hand to draw a pentagram and the inverted cross which I described.

(b) In relation to the death of Francis Neville Arkell: The prisoner told the police in the ERISP that he knew of this man who he described as "a very, very horrible man" . The prisoner told the police that he went to the deceased's home because he had made up his mind that he wanted to kill him. He explained that he went there under a subterfuge: he just pretended to be gay and communicated this to the deceased by ringing him up, telling him he was gay and inviting himself down. The prisoner repeated more than once that he went to the deceased's house to kill the deceased and he said that he attacked him, having spoken to him for a couple of minutes. He said that he picked up the lamp and brought it down on the head of the deceased more than forty times. He described the deceased's attempts to protect himself, crawling away on the floor. He told the police that he used a lamp cord to try to strangle the deceased. He told the police how he kicked him a few times in the face but this, he said, was after the deceased was already dead. Then he said he grabbed two tie pins, putting one in the left cheek and one in his eye. He also told the police he had tried to push the fork into the neck of the deceased but he said that the wood broke. He left his Colorado boots and his tracksuit pants behind, wearing a pair of the deceased's tracksuit pants away instead of his own. Returning to the reason for his action, he said that he did not like the deceased "all the nasty things he has done to kids. Read about him. Heard about him in the papers and the media." 20 The prisoner, in the course of his evidence, told the jury that he had no intention of killing either deceased, but nevertheless the prisoner's case was presented upon the basis that the prisoner did cause the death of each of the deceased but that he ought only be convicted of manslaughter in each case on the following grounds:

(i) that the Crown had failed to negative provocation;

(ii) by reason of substantial impairment by abnormality of mind. 21 Central to the issues which the case that the prisoner raised was the assertion that the prisoner attacked each of his victims at a time when he had lost his self control. What triggered this loss, according to his evidence and to what he had earlier told Dr Jolly and Mr Taylor, who gave evidence in the case for the prisoner, was the request of each victim that the prisoner should be the active partner in penile-anal intercourse. The prisoner, who revealed such alleged abuse to Mr Taylor in July this year, told him then, and this Court in his evidence, that his father had sexually abused him in his childhood from about the age of seven and that his father had submitted the prisoner to acts of anal penetration some five times between the age of twelve and the age of fifteen. Further, the prisoner said he had been asked by his father to reverse those roles. 22 It is clear from the verdicts of the jury that the jury was satisfied that the Crown had negatived provocation in each case. It also follows from the verdicts that the defence of substantial impairment was rejected by the jury in the case of each killing. 23 The description of the killings which I have already given suffices to emphasise the extreme objective gravity of each of these crimes. 24 Were there facts which mitigated the seriousness of these crimes, or either of them? The verdicts of the jury do not relieve me of the responsibility of considering the evidence with a view to making findings of fact left open by the verdicts, and necessary for the purposes of determining appropriate sentences. 25 Whilst the jury has been satisfied beyond reasonable doubt that the Crown has negatived provocation, they may have done so for a number of reasons in accordance with directions the jury was given:

(i) because the Crown had proved beyond reasonable doubt that the deceased did not engage in conduct or utter words directed to or affecting the prisoner before the acts causing death, which conduct or words was or were provocative; or

(ii) because the Crown had proved beyond reasonable doubt that if the deceased did engage in conduct or utter words directed towards or affecting the prisoner which were provocative, that the prisoner did not lose his self control because of such conduct or words; or

(iii) that the Crown had proved beyond reasonable doubt that if the prisoner did lose his self control because of such conduct or words that his acts causing death were not acts that occurred whilst he was in loss of self control; or

(iv) that the Crown had proved beyond reasonable doubt if the prisoner caused the death of the deceased by acts whilst in loss of self control because of the provocative conduct or words of the deceased, that conduct or those words were not such as could have caused an ordinary person in the position of the prisoner to so lose his self control as to form an intent to kill or to cause grievous bodily harm. 26 I must assess the relevant evidence to make such findings as appear to me to be appropriate on the evidence (as to each of the crimes), giving the prisoner the benefit of any reasonable doubt: see the judgment of Badgery-Parker J in R v Leonard, approved by the Court of Criminal Appeal in its unreported judgment of 7 December 1998, and in particular in the judgment of McInerney J at p 4. 27 Likewise, on the issue of substantial impairment, it does not follow that the rejection of this defence necessarily means that the factual basis upon which that defence was raised is to be ignored. 28 In R v Bell (1985) 2 NSWLR 466 at 485 Lee J said in relation to the situation where a defence of provocation or self defence had been raised before the jury and rejected: "Had provocation been accepted by the jury, it would have entitled the accused to a verdict of not guilty of murder, but guilty of manslaughter (Crimes Act, s 23) and if self-defence had been accepted it would have entitled him to an acquittal or a verdict of guilty of manslaughter if the case was one of excessive force in self-defence: Viro v The Queen (1978) 141 CLR 88. The rejection of these (or any other defences) does not necessarily mean that the accused cannot get the benefit, as a mitigating factor, at least to some extent, of the factual basis upon which they rested. If the sentencing judge is satisfied from the credible evidence in the case that there was a degree of provocation, he may take it into account as a mitigating factor; likewise, if the judge is satisfied from credible evidence that there was an element of self-defence involved in the killing. But every case must be judged according to its own circumstances and the question for the court in every case will be whether on the evidence the factor being put forward as a mitigating factor has a relevant connection with the crime in its full sense as I have explained earlier." 29 It is appropriate that I consider the factual basis upon which the prisoner relied on the issue of provocation and in his defence of substantial impairment to assess whether the evidence established that there were circumstances which reduced the seriousness of the crimes, or either of them. 30 For the above reasons I must therefore closely consider the evidence given by the prisoner at this trial, together with the other evidence that bears upon the objective gravity of each crime. 31 The evidence satisfies me that the prisoner had a very unhappy upbringing. He was born on 24 April 1979, so at the time of the killings he was only nineteen years of age and he is presently only twenty-one years old. The prisoner said that his mother left home when he was two or three years of age and his earliest memory of his father being violent to him was at about the age of six or seven when he was thrown into a toy box. Other acts of physical abuse were instanced. The prisoner said that his father threatened him with a rifle, which he placed close to his head and told his son that he would blow his brains out. The prisoner wet himself on that and many other occasions through fear of what his father was going to do to him. 32 The prisoner said that his father frequently punched him and kicked him. This happened a few times a week until he was fifteen years of age. Thereafter the frequency of any physical violence diminished and the last time his father was violent to him was at the age of seventeen when he punched him in the face and on this occasion the prisoner had to go to hospital. There was a time when the father threw a spanner at him. 33 In addition to the physical cruelty, he said that his father called him names. He said that he had a stutter and his father used to tease him about this. There were occasions that his father used to threaten to kill them both when he was driving the prisoner to the railway station. 34 The prisoner's father gave evidence in which he acknowledged that he had been guilty of physical attacks. Mr Van Krevel said that he had a bad temper and he admitted assaults which he explained by reason of his wife having left. Not only did he hit and punch the prisoner but he said he kicked him both when he was standing and when he was on the ground. He admitted having thrown a spanner at his son on one occasion, intending to hit him with it, and he admitted to having teased his son about his slow speech and to having abused him verbally. 35 I find on the evidence I have reviewed that the prisoner was physically ill- treated by his father, and also that he was teased by him. Such ill-treatment, serious as it was, was frankly acknowledged by the prisoner's father in the witness box. 36 Whilst he freely admitted to physical abuse of the prisoner, Mr Van Krevel continued to deny throughout a testing cross examination that he had ever sexually abused his son. 37 The prisoner gave evidence that this form of abuse began when he was seven years of age. The abuse took the form of fondling the prisoner's penis and his father put his finger in the prisoner's anus. The prisoner said that each engaged in oral sex and the father had the prisoner masturbate him. He said that there were five acts of anal intercourse which the prisoner's father committed on the prisoner but the prisoner declined to reciprocate in this regard when his father asked him to do so. 38 The prisoner's sister, who was approximately eighteen months younger than the prisoner, gave evidence which bore upon the allegation of sexual abuse. Ms Van Krevel did not assert that she observed any act of sexual abuse of her brother but she said that when she was approximately thirteen years of age her father would read to her in her bed, wearing nothing but his dressing gown, and that he would then go down the hall to the prisoner's bedroom and she said that she heard him close the door. The witness said that the events thus described happened frequently from the time Ms Van Krevel was thirteen years of age. 39 The evidence of sexual abuse by his father, as given by the prisoner at the trial, contained inconsistencies. It also differed from the histories given when the allegation of sexual abuse by the father was belatedly raised with Mr Taylor in July 2000. In his final submissions, Mr Nicholson adverted to there being some earlier complaint of sexual abuse in the prison records, but these records were not introduced into evidence. To record chronologically the various assertions the prisoner made on the subject of sexual abuse by his father:

(i) on 3 July 2000 the prisoner told Mr Taylor that his father had never sexually assaulted him;

(ii) on 8 July 2000 the prisoner told Mr Taylor that his father had sexually assaulted him and that this began when he was about seven years of age when his father forced the prisoner's penis into his anus. The prisoner told Mr Taylor that when he was about twelve years of age he put his penis in his father's anus, albeit unwillingly. He also said that his father used to make the prisoner masturbate him and suck him off;

(iii) on 19 July the prisoner confirmed for Dr Jolly what he had told Mr Taylor about his father's sexual abuse and he told Dr Jolly that his father had anal intercourse with him twenty times in four years;

(iv) when the prisoner gave evidence at the trial, he gave evidence that his father had inserted his penis in the prisoner's anus on a few occasions and when pressed he said that it happened five times over a period of a few years. This was a significantly different account from that to Dr Jolly;

(v) in evidence before the jury, the prisoner said that when he was about twelve his father asked him to put his penis in his father's anus. The prisoner gave conflicting evidence about what followed this request. He said that when asked by his father he did not do so. Later he said that he did what his father asked him to do. Later still he said that he did not do it. I refer to the transcript: In evidence in chief (after the prisoner gave evidence that his father had penetrated him) at T429-430: "Q. Was there any occasion when he asked you to do something that you had not done before? A. Yeah. Q. What was that? A. He wanted me to insert myself into him. Q. And what happened? A. I didn't…I didn't." Later, still in the prisoner's evidence in chief, T462: "Q. Yesterday, just before the Court adjourned, I was asking you a number of questions about the last occasion that you saw Mr Arkell; do you recall that? A. Yes. Q. And I had asked you what it was that brought on the attack on Mr Arkell, and you said that there was a point when you felt put on the spot, and you felt put on the spot because he asked you to put your penis into him. Do you recall those questions? A. Yes. Q. And then I asked you whether - putting Mr O'Hearn to one side - you had been asked to do that on any other occasion, and you told us that your father had told you to do that. He didn't ask you, he told you to do that; do you remember that? A. Yes. Q. When your father told you to do that, what did you do? A. I did what he told me to do. I didn't really resist. I couldn't because I was scared." Subsequently, in cross examination, T497: "Q. You have also said that when you were about 12 there was an occasion, as I understand your evidence yesterday, yesterday, the first occasion when your father asked you to place your penis in his backside, is that correct? A. Yes. Q. You see yesterday when my learned friend asked you how old you were when you first did that you answered 'I didn't', remember saying that yesterday? A. Yes. Q. Yet today when my learned friend has gone back to that same question I understand you to say you did. Is that right? Q. Well, no I didn't, no. Q. You didn't? A. No. Q. So what you said yesterday was correct, is that right? A. Yes. Q. Why did you say this morning that you did? A. I don't know." 40 That the prisoner had complied with his father's request to place his penis in his father's anus was a significant matter of history from the point of view of both Dr Jolly and Mr Taylor, and this is because of the account which the prisoner gave to those witnesses as to the circumstances in which he attacked firstly the deceased O'Hearn and later the deceased Arkell. 41 The prisoner, in his evidence, offered as some explanation of the failure of disclosure of his father's sexual abuse his embarrassment to raise the matter earlier. In assessing the evidence given by the prisoner of his alleged sexual abuse I recognise, as indeed Dr Jolly opined, that embarrassment and/or shame frequently affords an explanation for a child not disclosing the occurrence of abuse of such a nature. I also recognise that experience in the courts indicates that a person in a parental position will be slow to face up to responsibility for crimes of the nature here alleged by the prisoner against his father, and I do not overlook this in evaluating the evidence of denial given by Mr Van Krevel. However, I did not find the prisoner's evidence at his trial to be satisfactory, and assessing all the evidence in point, including, of course, the evidence of Ms Van Krevel, I am not persuaded that the prisoner has proved on the balance of probabilities that his father did sexually assault him, or that the prisoner sexually penetrated his father. Mr Nicholson properly acknowledged that since the prisoner relied upon the assertion that he had been sexually abused in the manner above considered as a matter going to mitigation, the prisoner bore the onus of proof of this assertion, and he has failed to discharge that onus. Such failure inevitably impacts upon the issue of provocation and the defence of diminished responsibility. 42 The version given by the prisoner to the police in the ERISPs in relation to each of these killings of course differs considerably from the various later accounts expressed to the psychiatrists and to the psychologist called to give evidence. It also differs from the prisoner's evidence at the trial. The Crown submitted that the later versions were fabrications advanced to support the prisoner on the issue of provocation and on the defence of substantial impairment by abnormality of mind. Mr Nicholson on the other hand submitted, consistently with his address to the jury on this issue, that the ERISPs did not present a true account and that the prisoner's evidence did. The reliability of the ERISPs is in issue as to both killings and I now propose to address this issue. 43 In the ERISP account of events which the prisoner gave in relation to the killing of Mr O'Hearn, he described himself as being "straight, heterosexual" (Q & A 244). He was later asked: "Q. 316 …so do you know whether David was hetero- or homosexual? A. No, I don't know at all. Q. 317 You don't know? A. No." 44 By way of contrast with the ERISP account as to the circumstances in which he entered the O'Hearn home, the prisoner's final account was that he first met Mr O'Hearn when he went to his shop at Dapto to buy some drinks in company with some friends in February 1998. According to him, on that occasion Mr O'Hearn stared straight at him in an unusual way and when the prisoner was paying for the drinks the deceased said "Something what you like and something what I like." 45 The prisoner said he returned to that shop on the morning that he killed the deceased. He did so on his way back from Unanderra. On this occasion he said that the deceased motioned him into a closet in the shop and masturbated him. Having done this he invited the prisoner to his house that evening and the prisoner accepted the invitation. The prisoner said that the deceased provided him with a drink and sat beside him on a lounge, from which position the prisoner and the deceased watched a pornographic video. 46 After that was over the prisoner said that the deceased asked him to give the deceased a back massage and to have sex, that the deceased then lowered his trousers and underpants, exposing his backside and getting down on his hands and knees. The prisoner said that he "whacked" the deceased on the head with a wine decanter. He said that he did this because he was "put on the spot" and there was no way out of it and he said he just went out of control and "started to do what happened to him" (the deceased). He said that the deceased's pants were down around his knees when the attack began and that it was a frenzied attack. 47 It seems to me there are a number of reasons why this final account of events cannot be accepted. 48 The deceased was wearing jeans and there was blood deposit at the back of these jeans up near the top of them. I accept the evidence of Det. Doherty and of Dr Cala to the effect that the jeans must have been up at the time that staining occurred. The prisoner's account of events cannot be reconciled with the significance of this blood deposit. 49 There is a further problem about this final account. According to the prisoner, he removed the pornographic video and took it away with him but he did not put anything in its place. Evidence in the prosecution case, which I accept, was to the effect that when the body was discovered the television set was on at normal volume and there was a video in the machine which had a segment involving Her Majesty the Queen and other material, none of which was of a pornographic nature. 50 Mr Nicholson submitted that the ERISP account which the prisoner gave in relation to the killing of Mr O'Hearn was frequently untruthful and that this submission was supported by crime scene evidence. This was a submission developed in considerable detail before the jury at the trial, and I have had regard to this submission in considering and reconsidering the ERISP account upon which the Crown has relied. By reason of the nature of the evidence, I have, of course, had the opportunity of hearing and observing the prisoner as he was questioned both on the interview and on the subsequent walkaround. I remarked earlier upon my assessment of his presentation as seen on video (at para 18). I am also mindful of what Dr Milton said as to the significance of this evidence (T782) and I accept Dr Milton's evidence in point. 51 I have concluded that the Crown's submissions as to the reliability of the ERISP and of the walkaround evidence are to be preferred to Mr Nicholson's contrary submission. 52 I find the ERISP account of the killing of Mr O'Hearn to be substantially and essentially reliable. It is consistent with the jury's verdict that the jury rejected the prisoner's contrary account as to the circumstances in which he killed Mr O'Hearn and I reject that later account which simply cannot stand with the ERISP account. It follows that I also reject as untruthful the final accounts to Dr Jolly and Mr Taylor to the extent that they were inconsistent with what the prisoner told the police on the ERISP. 53 I reject the prisoner's assertion that he was sexually propositioned by the deceased Mr O'Hearn immediately before the killing occurred. I reject the prisoner's evidence that he did what he did because he lost control. I find that the prisoner's description of his behaviour at and after the killing indicated not only an awareness of what he had done but also that he was in control of his actions. He was able to recall the number of blows he had inflicted - this tallied with Dr Cala's evidence. Having killed the deceased he searched for valuables and selected a particular item of jewellery to take away with him. He then returned to the body for the purpose of the extensive mutilation of it. 54 I turn to the reliability of the ERISP version of the circumstances of the killing of Mr Arkell. 55 Contrary to that ERISP, the prisoner told Dr Jolly and Mr Taylor that he had had a sexual relationship with Mr Arkell that developed in 1997. It began with masturbation but proceeded to what the prisoner described as oral sex and anal intercourse, with the deceased as the active partner. According to the prisoner, the deceased wanted the prisoner to be the active partner on the occasion that the fatal attack took place. Again, as he had felt with the deceased O'Hearn, the prisoner said he felt "put on the spot" and he described the attack which followed as a frenzied one with no self control. 56 In the ERISP relating to the Arkell death, the prisoner was asked about his sexual preference: "Q646 O.K. What about yourself, have you got, what's your sexual preference … A I'm hetero - - - Q647 Heterosexual. A. - - - sexual. Q648 Have you got a current girlfriend or? A No, not now. Q649 Ah hmm. A I did, but we broke up Q650 Have you ever got involved in any homosexual relationships or? A No, no." 57 Mr Nicholson submitted that at the time of the ERISP the prisoner was seeking to deflect his questioners from exploring the topic of any sexual relationship with his victim and that the above responses are to be considered in that light because this would lead to exposure of the prisoner's earlier sexual abuse by his father. I do not find this submission attractive. The prisoner has not proved that he was sexually abused by his father and since the prisoner was in the course of admitting to the police that he had committed the most serious of crimes, an acknowledgment that he had engaged in homosexual activities with his victim would not have made his criminality any the worse. Indeed, had the prisoner killed his victim in the circumstances later claimed by him, one might have expected the prisoner to have told the police of such circumstances in an endeavour to reduce the level of his culpability. 58 Further, the crime scene evidence does not support the prisoner's later accounts. The deceased's body was found to be clothed. As the photographic evidence shows, the deceased was found wearing tracksuit pants and a singlet. Moreover, when the prisoner attacked the deceased he was obviously wearing his tracksuit pants and boots which became so heavily bloodstained in the course of the attack. The state of dress of the victim and of the prisoner is inconsistent with what the prisoner claimed had occurred and what he claimed the deceased requested him to do. 59 My assessment generally of the prisoner was that he was not a credible witness as he gave his evidence at the trial. 60 As with the O'Hearn ERISP, I accept the submission advanced by the Crown and I find the Arkell ERISP to be essentially reliable. Here again the ERISP account cannot be reconciled with the prisoner's later versions. I reject the prisoner's later contrary accounts of the circumstances of the killing of Mr Arkell. I reject the prisoner's evidence that he was called upon by Mr Arkell to engage in sexual activity and that this prompted a loss of self control. I reject the prisoner's assertion that he lost control when he attacked this victim, and I accept Dr Milton's analysis that this was on the contrary a purposeful killing. 61 Before making the findings I have expressed, I have closely considered the evidence of the psychiatrist Dr Jolly and the psychologist Mr Taylor, who were called in the prisoner's case, and also the evidence of Dr Milton called by the Crown. 62 Dr Jolly saw the prisoner for assessment purposes on five occasions, the first of which was 6 May 1999 and the last of which was during the course of the trial. Dr Jolly had access for assessment purposes to the police statements, to Mr Taylor's reports, and to Dr Milton's report. Dr Jolly alerted himself from the outset to the complications on assessment because of the different histories the prisoner had given. Dr Jolly said that he also found interview difficult because of the wide ranging moods and demeanours of the prisoner. Dr Jolly said that he was able to rule out schizophrenia, manic depressive psychosis and major depression. By 22 December 1999 there were three issues that stood out in Dr Jolly's mind:

(i) that the prisoner had experienced lengthy periods of physical and emotional abuse in childhood and that there was some developmental disability;

(ii) that the prisoner had a crisis of sexual identity;

(iii) that he had an interest in Satanism and in this regard he described to Dr Jolly a particular picture in the house where the prisoner was living. This picture had a devil's face on it, which the prisoner said stared at him. The prisoner himself gave no evidence in Court about the picture described by Dr Jolly. 63 At the first consultation in May 1999 the prisoner told Dr Jolly why he killed Mr O'Hearn. He said the devil told him to kill somebody. He said that he did not know Mr O'Hearn; that he rode to Unanderra and then back to his house where he listened to heavy metal music. He said he then walked past where Mr O'Hearn was living, he accepted an invitation into Mr O'Hearn's residence and drank what was possibly a "spiked drink". He explained that he attacked Mr O'Hearn, wishing it was his father. 64 Then in the interview in December 1999 the prisoner gave Dr Jolly a history of having met Mr Arkell and that he was seduced on his third or fourth visit. The sexual activity that followed included masturbation, but no anal intercourse. On the day of the killing the prisoner resisted intercourse, went to massage Mr Arkell, and aggression occurred when the prisoner "was overtaken by something". On this assessment in December 1999, Dr Jolly returned to the O'Hearn killing when the prisoner described visiting Mr O'Hearn's shop with his friends and then the later visit on the day of the killing. He said that on this occasion the prisoner told him he was shown a pornographic video and the prisoner described the prisoner's thinking as being influenced by the picture referred to earlier. Dr Jolly's assessment was interrupted by the prison routine. When he left the prisoner in December 1999, Dr Jolly thought that there had been a loss of control when the killing occurred, but he was not then decided as to why. 65 The next consultation in February 2000 did not assist Dr Jolly, but on 19 July he saw the prisoner equipped with Mr Taylor's report which disclosed the allegation of sexual abuse by the father. 66 In Dr Jolly's opinion, the fact that, on the history the prisoner ultimately gave, each victim adopted a crouching position for sexual intercourse was a destabilising factor that contributed to the prisoner's loss of control. It did this because it induced a re-experience of a scene out of his childhood, acting as a trigger to anger, this because of the prisoner's sexual abuse by his father, according to the history by then available to Dr Jolly. In Dr Jolly's opinion, at the time that he killed Mr O'Hearn the prisoner was suffering from an abnormality of mind in the form of an altered state of consciousness from the impact of the heavy metal music he had been listening to and from alterations of perception that grew as he looked at the picture in the townhouse where he lived. He said this had significant impact on the prisoner's loss of control. The altered state of consciousness was extreme and the loss of control flowed from this. 67 So far as the Arkell killing was concerned, the doctor's opinion ultimately was that there was a degree of loss of consciousness manifested in continued satanic thoughts, but he was less sure of this he said than in the case of the killing of Mr O'Hearn. However, Dr Jolly's opinion was, assuming that there had been sexual abuse by the father, that this was re-experienced by the prisoner when the deceased invited anal intercourse. This operated as the force causing loss of control, with the crouch position operating as the trigger. 68 In short, Dr Jolly considered that on the occasion of each killing, the prisoner was suffering from an abnormality of mind in the form of an altered state of consciousness. He regarded the impairment thus occasioned as more than moderate, at least in the case of the O'Hearn killing, and for brief periods it may be that the prisoner could not "sort out reality". Dr Jolly agreed in the course of his cross examination that the "crouched position" of the victim was an important element in his assessment, especially in the case of the second victim, Mr Arkell. It is also clear from Dr Jolly's evidence that the doctor accepted that the prisoner had attacked each of his victims at a time when he had lost his self control. 69 Mr Taylor first saw the prisoner on 3 July 2000. The prisoner gave a history then of physical abuse by his father, but he told Mr Taylor there had been no sexual abuse. The prisoner gave a history then of what occurred between himself and Mr O'Hearn on the day of the killing that included the assertion of the earlier incident in the shop where the prisoner claimed that Mr O'Hearn had masturbated him in the closet in the shop, that later that night when he visited the victim at his home the prisoner asked him to "do that to him" and that was when the prisoner grabbed a heavy instrument and struck the victim on the head. This, of course, is a somewhat different account than that ultimately given by the prisoner as to the nature of the invitation to him immediately before he embarked upon killing Mr O'Hearn. 70 In relation to Mr Arkell, the prisoner gave a history of sexual relationship over a period of time that included anal penetration of the prisoner by his victim. He told Mr Taylor that the victim had anal and oral sex with the prisoner on the day of the killing and asked the prisoner to do the same to him and that this was when he started to kill this victim. 71 Following this first interview Mr Taylor thought that the possibilities were that the prisoner was a psychopathic killer or alternatively that he had some dissociative identity disorder type of problem. However, on the second interview five days later the prisoner gave the account that his father had sexually assaulted him from the age of seven and that this had progressed to anal intercourse from the age of twelve. The prisoner told Mr Taylor, of course, that he had entered his father. It was on this occasion the prisoner gave a further history in relation to the O'Hearn killing that O'Hearn was on his knees when the loss of control occurred. 72 Mr Taylor decided after the second interview that the prisoner was suffering from a borderline personality disorder and that when he killed Mr O'Hearn he was experiencing dissociation. He said that the borderline personality disorder amounted to abnormality of mind and that the prisoner was suffering from an extreme level of dissociation when he made his attack. In Mr Taylor's opinion the prisoner knew what was happening but his capacity to control himself was affected by a psychotic episode that came from the underlying borderline personality disorder and an extreme level of dissociation. Mr Taylor said that he held the same opinion in relation to the killing of Mr Arkell. 73 Dr Milton saw the prisoner on 17 July 2000. He had access to the statements of various witnesses, the transcripts of the ERISPs and the walkarounds and he also saw the police videos. In this last respect he enjoyed an advantage not shared by either Dr Jolly or Mr Taylor, and I regard this as a significant advantage. 74 Dr Milton assessed the prisoner as being in the upper range of average intelligence and he found no significant abnormalities in mental state examination. The prisoner was suffering no delusions or hallucinations and cognition was good. The history obtained by Dr Milton, later in point of time as it was than that obtained by Mr Taylor on 8 July, included a history of homosexual intercourse by his father. 75 The history of the O'Hearn killing taken by Dr Milton was similar to that taken by Mr Taylor on his latter assessment. The prisoner denied to Dr Milton that he had selected Mr O'Hearn at random. He described Mr O'Hearn's request to have sex and said that he had only had sex with his father before Mr O'Hearn got down on his hands and knees asking to massage him and to touch his penis. It was then, according to the prisoner, that he hit the victim with the decanter. He maintained to Dr Milton that he had no intention of killing Mr O'Hearn when he went there but he exploded into a rage. 76 Turning to Mr Arkell, the prisoner said that on the day of the killing there was "some sexual stuff and he wanted me to do it to him. I exploded again". He told Dr Milton that he killed Mr Arkell "because of the rage, I didn't plan to kill him that day." Dr Milton, having considered the prisoner's responses and presentation at the ERISPs, considered that the prisoner displayed in the ERISPs awareness of events and self control in the killing of both victims, and that his conduct showed an awareness that what he was doing was wrong. Based upon the prisoner's account to the police in the ERISPs, and in the walkarounds and on his manner during such, Dr Milton considered it unlikely that the prisoner was in a state of uncontrolled rage, psychosis or dissociation at the time of either killing and that a further feature of the prisoner's behaviour when describing what he had done to the police was that he showed no feelings for the suffering of his victims. 77 Dr Milton did not agree with the assessment of Dr Jolly or the assessment of Mr Taylor. Dr Milton rejected Mr Taylor's opinion that the prisoner was suffering from a borderline personality disorder and, indeed, he considered that none of the criteria of DSM-IV in relation to that disorder was satisfied. 78 Dr Milton was of the opinion that what motivated these killings was "a general feeling of anger, perhaps arising from loneliness, shyness, teasing at school, and unhappiness in a family situation." 79 However as to both killings, Dr Milton did not consider that there was any substantial impairment by abnormality of mind, that the prisoner was capable of understanding what he was doing, and of knowing what he was doing was wrong and that he was capable of controlling himself. 80 Both Dr Jolly and Mr Taylor acknowledged that the validity of the opinions expressed by them depended upon an acceptance of the histories upon which their opinions were based. The findings which I have recorded impact upon the significance of their evidence. I have not found that the prisoner was sexually abused by his father and I have not found that either victim was attacked in the circumstances claimed by the prisoner in his evidence. I have rejected the prisoner's account that the deceased O'Hearn placed himself on his hands and knees, with his trousers down, inviting anal intercourse. I have rejected the prisoner's account that the attack upon Mr Arkell was at a time when there was a loss of self control because Mr Arkell invited the prisoner to penetrate him. 81 The opinions expressed by Dr Milton are not based upon the acceptance of histories ultimately not proved to be the fact. Moreover, as I have already observed, Dr Milton had the opportunity of seeing the videos. In my opinion, the evidence of Dr Milton is to be preferred to that of Dr Jolly and to that of Mr Taylor. 82 With this conclusion in mind, I return to the issues of provocation and substantial impairment by abnormality of mind. 83 I find that the Crown proved beyond reasonable doubt, in relation to the killings of both Mr O'Hearn and Mr Arkell, that the deceased did not engage in conduct or utter words directed to or affecting the prisoner before the acts causing the death of the deceased, which conduct and/or words were provocative. I am also satisfied beyond reasonable doubt that the prisoner did not lose his self control before or during the attack on either of his victims. 84 In re-visiting the issue of impairment by abnormality of mind to determine whether there was some impairment by abnormality of mind such as might mitigate the seriousness of these crimes or either of them, I have decided that there was not. Accepting for present purposes, as Dr Milton opined, that these killings were motivated by anger from the sources identified by Dr Milton and to which I referred earlier (para 78), such did not constitute any abnormality of mind. I do not consider that there was any abnormality of mind arising from an underlying condition such as impacted upon the prisoner's ability to control himself at the time when he attacked either victim or that there was any loss of control in either case. I would add that I do not find that the prisoner's capacity to understand events or to judge whether what he was doing was right or wrong was impaired in any way at the time of committing either crime. 85 I bear in mind that the prisoner surrendered himself to the police. Before doing so he had acknowledged to his girlfriend "that he had done some really bad things" (T327), and before going to the police he confessed to his tae-kwon-do instructor that he had killed both Mr O'Hearn and Mr Arkell. In the course of the ERISP concerning the killing of Mr O'Hearn the prisoner said that he had spoken to Mr Day because he had "a real guilty conscience" (Q585) and in the course of the ERISP concerning the killing of Mr Arkell, the prisoner said that he came forward because it was "the right thing to do and I had to get the shit off my chest" (Q616). The prisoner did tell Dr Milton that he thought he was a suspect for the killings before he surrendered (T730); the prisoner had left at the scene of the Arkell killing his tracksuit pants and boots; and he had subsequently seen these displayed in photos in the newspaper, presumably in conjunction with news items about the Arkell killing. Further, the police had interviewed the prisoner concerning these killings prior to his surrender. However, whether the prisoner was close to arrest, or whether indeed he was under suspicion as at 30 September 1998 I am unable to determine. I consider it is a circumstance to be weighed in the prisoner's favour that he did surrender himself and that he did cooperate with the police in the ERISPs and on the walkarounds. 86 Whatever his motive may have been in surrendering himself however, I do not find the prisoner to be contrite for these crimes. Whilst the prisoner acknowledged responsibility for the killings when he surrendered and subsequently, and whilst he did say in the course of his evidence that since he has been in gaol he had had a few nightmares about what he had done (T552), the prisoner neither displayed in his demeanour nor did he express in his testimony during the trial any remorse for these killings. He gave no evidence subsequent to the trial in the course of the hearing on sentence. 87 Whilst I do not have the benefit of any medical evidence directed to this issue, common sense dictates, having regard to the manner and the circumstances in which the prisoner re-offended in the space of fourteen days, that the risk that the prisoner would offend again is a very real one. 88 The prisoner was seen by other occupants in the townhouse where he was living in June 1998 to have and to read a book, "The A to Z of Serial Killers" which, as its title suggests, considers the misdeeds of a number of serial killers. I am satisfied beyond reasonable doubt, having assessed the evidence of Adam Brauer and Annette Schreiber, that the prisoner had this book and that he was seen to read from it before these killings. The book contained many entries in the prisoner's handwriting. Dr Jolly did not consider what the prisoner wrote in the book afforded any insight into the prisoner's state of mind at the time of the killings (T706) and Mr Taylor considered it was hard to place any particular meaning on what was written there. Mr Taylor thought what was written might have been written as fantasy or to get rid of very angry feelings (T695). 89 However Dr Milton took a different view of this book and what the prisoner wrote in it. Dr Milton considered that the writings in the book were relevant to indicate the state of mind of the prisoner at the time of the killings (T748). Of particular relevance in the present context though, is the significance Dr Milton considered was to be attached to a number of entries. Inside the flyleaf the prisoner had written at some time after the killings: "My List Who will be my No. 3. The possibilities are endless including [there then follows a large number of names, in excess of 40, and then some categories] Some Satanic faggot Some horny faggot Some sexy prostitute male or female."

The list ends "Not anyone in particular" . 90 Dr Milton considered that the above writing and the long list indicated that at the time when the prisoner wrote, the prospect of killing was pleasing to him. 91 On the next sheet in the book the prisoner wrote: "I'll kill anyone who gets in my way even…" In Dr Milton's view this indicated a homicidal intention towards those who might block the prisoner in what he wanted to do. 92 On a later sheet in the book the prisoner wrote: "Who will be my No. 3. David O'Hearn, Frank Arkell the first, who else? One is the best, you always remember your first, who's next." 93 This writing, in Dr Milton's view, indicates that reflection on killing, as well as killing itself, were pleasurable to the prisoner. 94 Although the prisoner, when asked about the book in his evidence, dismissed what he had written as "just angry writing", and notwithstanding what Dr Jolly and Mr Taylor opined about this exhibit, I accept the opinions expressed by Dr Milton about it. 95 Those opinions, of course, bear upon the risk of the prisoner further offending, at least as at the time when the prisoner wrote what he wrote. However, in considering the long term risk of the prisoner re-offending, I have no medical evidence to guide me and it is not appropriate for me to speculate on the extent of such risk. I recognise that any attempt to predict long term future dangerousness is notoriously inaccurate: see Bugmy v The Queen (1990) 169 CLR 625. 96 In any event I remind myself that a sentence should not be increased beyond what is proportionate to the crime or crimes to be punished, simply to extend the period of protection that society might thereby enjoy against the risk of a further offence or offences being committed: see Veen v The Queen (No. 1) (1979) 143 CLR 458 at 467, 482-483 and 495; and Veen v The Queen (No. 2) (1988) 164 CLR 465 at 472 and 476-477. 97 I complete my review now of the prisoner's background. Returning to his childhood, his mother played no part in his upbringing from the time he was three years of age or even younger, and his father ill-treated him most seriously. The prisoner demonstrated an interest in Satanism from school days and the evidence satisfies me that his friend, Keith Schrieber, influenced him in this regard. The prisoner did not do well at school but after leaving there was a period of some twelve months when he had regular employment in the kitchen at Planet Hollywood. The prisoner also pursued an interest in tae-kwon-do and attended regularly at his classes for this. Mr Nicholson has submitted that the prisoner's work record and his healthy interest in tae-kwon-do are favourable pointers to the prisoner's eventual rehabilitation prospects, but the evidence does not permit me to make a favourable finding on this issue. The risk of re-offending I have already addressed. 98 This prisoner has no previous convictions. He was only nineteen years of age when he committed these crimes, and that he was so young then impacts generally upon my task, not only in determining the extent of the long term risk that he may re-offend but also upon the possibility of the prisoner's rehabilitation, in the event that he was eventually to be readmitted to society. 99 The maximum penalty provided for in the Crimes Act for the crime of murder is imprisonment for life: s 19A(1) of the Crimes Act. Such a sentence, if imposed, means precisely that: s 19A(2). The Court, of course, may impose a lesser sentence where appropriate and, indeed, since the introduction of life imprisonment meaning life imprisonment in 1990, there have been only sixteen prisoners who have been given life sentences, and plainly such penalty is to be reserved for the worst category of cases. As Badgery-Parker J said in R v Twala (unreported, NSWCCA, 4 November 1994), and with his judgment the other members of the court agreed: "…in order to characterise any case as being in the worst case category, it must be possible to point to particular features which are of very great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime (as distinct from subjective features mitigating the penalty to be imposed)." 100 See also R v Street (unreported, NSWCCA, 17 December 1996) and in particular the judgment of McInerney J at 18 where the dicta of Badgery-Parker J in Twala was cited with apparent approval; and R v Fernando [1999] NSWCCA 66 at para 344. 101 The Crown has submitted that each of these crimes ought to be regarded as falling within the worst category of case, and the Crown has submitted that this Court should impose sentences of life imprisonment. 102 There are, in my opinion, features of each of these crimes of very great heinousness, as are manifest from what I have already said. Without exhaustively repeating the findings I have already expressed, David O'Hearn was subjected to a most savage attack, and I am satisfied beyond reasonable doubt that the prisoner acted in such attack with intent to kill and that it was a random and utterly senseless killing. The way in which the prisoner mutilated the body of this victim showed his utter contempt for his victim and so too did his use of the severed hand and his writings on the wall and on the mirror. Indeed, this first crime scene exuded evil of the prisoner's making. Francis Arkell was likewise subjected to a most brutal attack, and again I am satisfied beyond reasonable doubt that the prisoner conducted the attack with intent to kill. The prisoner sought to explain, and indeed to justify, his attack upon an adverse judgment he had formed of his second victim. Once again he demonstrated his utter contempt for his victim after inflicting the savage injuries which inevitably would have led to death by inserting into the head of the body the three tie pins he found. He also endeavoured to force into the victim's neck the timber peg earlier described. I find a complete absence of any facts such as might mitigate the seriousness of either crime. 103 I have, of course, to consider the question of totality for sentencing purposes. This requires an evaluation of the totality of the criminality in the offences and to determine whether that level of criminality was in the worst category: see R v Street (unreported, NSWCCA, 17 December 1996) and in particular the judgment of McInerney J at p 20; and R v Leonard (unreported, NSWCCA, 7 December 1998) and in particular the judgment of McInerney J at pp 7-8 where his Honour said, in a case involving two murders: "The principle of totality required, in combination with the principles regulating the application of a maximum penalty, that the judge evaluate the totality of the criminality involved in both offences that were before him for sentence and to determine whether that level of criminality was in the worst category so as to attract the maximum sentence."

See also R v Harris NSWCCA 469 at para 94. 104 If my task was to assess only the criminality of either one of these crimes, I would categorise it as being in the worst category of case; however these two murders were committed two weeks apart and the evaluation of the totality of the criminality involved even more compellingly places the level of criminality of the prisoner as being in the worst category. 105 Before reaching the conclusions I have expressed as to the level of heinousness, I have considered each of the earlier cases in which a sentence of life imprisonment has been imposed since s 19A of the Crimes Act took its present form. I do not consider that it would be useful to record my review of those cases in these remarks on sentence. In Veen (No. 2) (supra), Mason CJ and Brennan, Dawson and Toohey JJ said in their joint judgment at 478: "…the maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which that penalty is prescribed: Ibbs v The Queen (1987) 163 CLR 447. That does not mean that a lesser penalty must be imposed if it is possible to envisage a worse case; ingenuity can always conjure up a case of greater heinousness. A sentence which imposes the maximum penalty offends this principle only if the case is recognisably outside the category." 106 Recognition of what was said by their Honours in Veen (No. 2) does not render consideration of the sixteen cases to which I have referred a meaningless exercise, and, indeed, having considered those cases, I am fortified in the conclusion reached that I am dealing here with criminality in the worst category of case. 107 I should add that before so concluding I have considered many cases in which a prisoner to be sentenced for multiple killings was given determinate sentences. I instance recent sentences imposed by Grove J in De Gruchy (unreported, 17 December 1998); and by Sperling J in Park (unreported, 3 August 2000). Once again, I do not consider it would be useful to record here any review of such decisions since it is my responsibility to determine what sentences I ought to impose in the particular circumstances with which I am concerned. Bell J also set a determinate sentence in Harris (2000) 111 A Crim R 415 but that has now been reversed by the Court of Criminal Appeal (supra). I shall return to the significance of this decision of the Court of Criminal Appeal in Harris presently. 108 Section 61 of the Crimes (Sentencing Procedure) Act which came into effect on 3 April 2000 provides relevantly: " (1) A court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence… (3) Nothing in subsection (1) affects section 21 (1)…" 109 Section 21(1) provides: " (1) If by any provision of an Act an offender is made liable to imprisonment for life, a court may nevertheless impose a sentence of imprisonment for a specified term." 110 Section 61 had its counterpart in s 431B of the Crimes Act (now repealed) and s 21(1) is the successor to s 442 of the Crimes Act. 111 In Kalajzich (1997) 94 A Crim R 41 Hunt CJ at CL observed in relation to the former s 431B(1): "It [s 431B(1)] adds nothing at all to the common law relating to the imposition of maximum penalties, except the danger that it may eventually be interpreted as replacing the common law by an ill defined code which will eventually become narrower than the common law." 112 In Harris (supra) Wood CJ at CL made a like assessment of s 61(1) of the Crimes (Sentencing Procedure) Act, saying (at para 88): "Similarly to the view offered by Hunt CJ at CL in Kalajzich…in relation to the former s 431B(1) of the Crimes Act, I doubt that its successor (s 61(1) of the Procedure Act) adds anything to the common law." 113 The submission advanced in the Court of Criminal Appeal in Harris that s 61(1) of the Procedure Act introduced a narrower code than the common law was rejected. Wood CJ at CL said at paras 89-90: "89. So far as the submission advanced by Mr. Berman SC assumes that S 61(1) of the Procedure Act is narrower than the common law, then I am not persuaded that there is authority, or good reason, for such an assumption. 90. That is not, however, to say that the common law has been abrogated, or that those decisions which gave content to the meaning of the expression 'worst case' are no longer of relevance. It may be that future development of the common law will embrace a situation calling for a life sentence that would not be justified under S 61(1) of the Procedure Act, which in any event although expressed in mandatory terms, on one view arguably remains subject to a discretion to impose a lesser sentence than life by reason of S 61(3)." 114 Returning to the present case, Mr Nicholson submitted that even if I found, as I have found, that these crimes are in the worst category of case, I ought to have regard to the subjective features of the case which I have earlier reviewed. Certainly such features were considered in other cases categorised as being in the worst case category: see Garforth (unreported, NSWCCA, 23 May 1994); Trotter (unreported, Hunt CJ at CL, 10 August 1993); Street (supra); and Leonard (supra). Save for Leonard the sentences in those cases were passed before s 431B was introduced into the Crimes Act, commencing 30 June 1996. Leonard was sentenced on 10 November 1997 and the judgment on appeal was delivered on 7 December 1998. The sentencing judge plainly considered subjective circumstances in that case and that he did so attracted no criticism in the Court of Criminal Appeal. 115 I am satisfied following yesterday's decision in Harris that I may have regard to the subjective features in this case and I have done so. Indeed, I have given lengthy consideration to the subjective circumstances in this case. In the course of that consideration, I have taken into account not only the evidence which I have reviewed and the submissions advanced by Mr Nicholson but also the handwritten submission of the prisoner himself, dated 16 November 2000, which Mr Nicholson forwarded to me with the concurrence of the Crown and which I have caused to be marked for identification purposes as mfi: 31 and to be placed with the Court file. I have found of particular concern in deciding what sentence to impose the fact that this prisoner is still only twenty-one years of age. As Mr Nicholson pointed out, if sentenced to imprisonment for life he will have the unhappy distinction of being the youngest prisoner to have been so sentenced. Steel (unreported, Hunt CJ at CL, 12 May 1994) was twenty-two years old when he was taken into custody and twenty-three years old when sentenced to penal servitude for life, and Leonard (supra) was twenty-four years of age when the sentence of life imprisonment was imposed upon him. 116 In Garforth (supra) the court, having remarked upon "the terrible significance of a sentence of life imprisonment", proceeded to cite with approval this passage from the judgment of Hunt CJ at CL in R v Petroff (unreported, 12 November 1991): "The indeterminate nature of a life sentence has long been the subject of criticism by penologists and others concerned with the prison system and the punishment of offenders generally. Such a sentence deprives a prisoner of any fixed goal to aim for, it robs him of any incentive and it is personally destructive of his morale. The life sentence imposes intolerable burdens upon most prisoners because of their incarceration for an indeterminate period, and the result of that imposition has been an increased difficulty in their management by the prison authorities." 117 In Garforth the court acknowledged "the force of these sentiments". So, of course, do I, and the recognition of the significance of imposing a life sentence on a man as young as this prisoner renders my present task extraordinarily burdensome. 118 However, the legislature has nevertheless seen fit to pass the legislation which I have to consider and to which I must give effect. 119 In Garforth the Court of Criminal Appeal rejected the submission that it was only in a case where there was no chance of rehabilitation that the maximum penalty of imprisonment for life should be imposed. The court went on to say: "There are some cases where the level of culpability is so extreme that the community interest in retribution and punishment can only be met through the imposition of the maximum penalty. As we have indicated, we believe that this is such a case." 120 In Fernando (1997) 95 A Crim R 533 Abadee J cited the above passage from Garforth and went on to say (at p 544-545): "There are some cases where the level of culpability is so extreme that the community interest in retribution and punishment can only be met through the imposition of the maximum penalty: see Garforth . Next, rehabilitation and the prospect of offering a person some hope from incarceration, whilst being important considerations and are to be taken into account in favour of persons in the position of each of the prisoners, nevertheless, the requirement of retributive judgments involving the objective features of an instant case may amply warrant not only a case being regarded as in the worst category of case but as warranting the imposition of the maximum penalty: see Baker and Garforth . Indeed, as the decision of Hunt CJ at CL in Milat illustrates there may be some cases falling within the category of the worst class of cases, where there is even little utility in considering the prospects of rehabilitation. Indeed, it may be that in such cases the subjective circumstances generally of a prisoner himself cannot play any real decisive part." 121 Those statements of principle from Garforth and Fernando were cited with approval in the recent decision of Harris in the Court of Criminal Appeal. 122 I find myself similarly placed in the present case to the courts in Garforth and Fernando. The level of heinousness involved in these two killings does not allow for the imposition of anything less than imprisonment for life. 123 As I understand the position, Mr Nicholson did not seek to argue that this Court has power to make an order permitting consideration to be given to the ultimate release of the prisoner upon parole in the event of a sentence of life imprisonment. This appears to have been the view of Bell J at first instance in Harris, and in Robinson [2000] NSWSC 972 Adams J determined it was not possible to set a non parole period in respect of a life sentence. The contrary was, however, argued by the Crown on appeal in Harris (supra) and it was for this reason that I delayed passing sentence on the prisoner now before the Court until the judgment of the Court of Criminal Appeal was delivered in Harris. The decision of the appellate court in Harris yesterday delivered settles the issue unequivocally. This Court does not have the power under the present legislation to fix a non parole period in respect of a sentence of life imprisonment for murder. 124 I consider it proper that I record that had I been empowered to provide for the possibility of the prisoner's ultimate release upon parole, I would have done so. 125 In Harris Wood CJ at CL observed that in all other States of Australia there is either a power or a duty for the court to set a non parole period in respect of a life sentence. Moreover, the Commonwealth Crimes Act makes express provision for the fixing of non parole periods for persons serving federal life sentences. The legislation in the ACT permits the fixing of a non parole period. It is only in the Northern Territory and in New South Wales that the court is denied the power to set a non parole period when imposing a sentence of life imprisonment for murder. 126 In the course of his judgment (at para 123) Wood CJ at CL made the observation that there would be merit in either providing authority for a judge sentencing a prisoner to life imprisonment for murder to set a non parole period or in extending the life sentence redetermination procedure to such cases. His Honour later said (at para 134): "Whether New South Wales should retain the harsh and discriminatory regime that exists for those now sentenced to life is a matter suitable, in my view for review." 127 His Honour's observations in Harris had the concurrence of the other members of the court. 128 I unhesitatingly agree with what his Honour said in the above respects. However, I must now sentence the prisoner in accordance with the present law. 129 The prisoner has been in custody since 30 September 1998 and the concurrent sentences I am about to impose are to commence on that date.

Orders 130 Mark Mala Valera for the murder of David John O'Hearn I sentence you to imprisonment for life, such sentence to commence on 30 September 1998. For the murder of Francis Neville Arkell, I also sentence you to imprisonment for life, with such sentence also to commence on 30 September 1998. I do not set a non parole period for either sentence for the reason only that I do not have the jurisdiction to do so.

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