A. An M1, its Daryl LAMBS gun."
9 When sentencing the applicant, I accepted the account given to the police as a reliable account of what the applicant did and the circumstances in which he acted. I was satisfied beyond reasonable doubt that the applicant fired deliberately at the deceased.
10 The issue of provocation and the defence of diminished responsibility arose for the consideration of the jury, but the jury did not find that the applicant acted under provocation and the defence of diminished responsibility was rejected. I did not find for the purposes of the relevant inquiry under s 19 of the Crimes Act that the culpability of the applicant was significantly diminished by mitigating circumstances.
11 Objectively, the criminality of the applicant in committing the two murders to which the present application relates has to be assessed to be extremely grave.
12 The applicant was before the events of 7 November 1989 a person with no criminal record. I found that he was a person of previously unblemished character who came from a highly respected family in the Bairnsdale area of Victoria. His father enjoyed the reputation of being a champion shearer and the applicant enjoyed the support of his parents. He left school in Year 11 and commenced an apprenticeship in panel beating before taking up work as a shearer, in which work he appeared to be progressing quite well before the shootings.
13 On 2 November 1990 I sentenced the applicant to penal servitude for life for each of the crimes of murder. In respect of the crime of wounding with intent to murder Daryl Alexander Lamb, I sentenced the applicant to imprisonment for a term of ten years, and in respect of the crime of maliciously wounding Deborah Lorraine Astill with intent thereby to do grievous bodily harm, I sentenced the applicant to a term of imprisonment of five years. I directed that all sentences be served concurrently and that they should date from 8 November 1989.
14 In considering this application I must have regard to the reports on the applicant from the Serious Offenders' Review Council which have become available since he was sentenced. The first of these reports is dated 9 June 1998, by which time the applicant had been in custody for some eight years seven months. The applicant served time at Long Bay, Lithgow and then Grafton Correctional Centres. The first report disclosed that the applicant had been generally well behaved in custody. Before his transfer to Grafton Correctional Centre in March 1998 a Visiting Committee interviewed him at Lithgow Correctional Centre. It noted excellent reports and that the applicant was having regular contact with the psychologist and the welfare officer. Following that assessment the applicant was reduced to a B classification and transferred to Grafton.
15 A later report of the Serious Offenders' Review Council dated 9 May 2000 addresses the period that the applicant has been in Grafton Correctional Centre since March 1998. Reports on his conduct there have been consistently favourable.
16 A psychological appraisal has been undertaken by Ms Clifford and her detailed report of 16 May 2000 has been placed before the Court. Ms Clifford had available to her the reports of the experts whose evidence was before me in 1990, namely Dr Barclay, Dr Walker, Dr Jolly and Dr Lucire and her summary of their views is useful:
"Dr Barclay saw no evidence that indicated a diagnosable psychiatric disorder, Dr Walker stated Geoffrey suffered from a highly disturbed mental state with a paranoid component for years prior to the crime. Dr Jolly found him to be emotionally disturbed. Dr Lucire assessed reactive depression with an overlay of anxiety and obsessional pre-occupation."
17 I accept that the applicant was sexually abused by a teacher in his school days and that this had an adverse influence in his psychological development. Ms Clifford considered what had motivated the applicant's criminal behaviour and wrote:
"It seems possible that many factors were the motivation for this crime and perhaps it was a juxtaposition of all that had gone before, his moral upbringing, his vulnerability to criticism, his horror at being laughed at, his values, his relationships with women, his sexual identity, his longing for nurturing, his desire to be accepted, his alcohol and marijuana consumption and his paranoia. It seems that all of these factors came to a head at this point in time. In Dr Jolly's report Geoffrey explained 'I was angry and the boil burst' and recently he stated that, he felt that 'they were no longer a problem', because he'd ripped out a page of life'. It's as if he was trying to wipe away the past and start again. Given the inconsistency in the test profiles and his reactions to belittlement it is unclear how he might react in similar situations."
18 Ms Clifford concluded her report:
"From the information gained and reading the files there is strong evidence to suggest that Geoffrey was emotionally distressed at the time of the crime. Whether he will be emotionally disturbed to the same degree at another time it is difficult to determine. However the traits that surface when this inmate is under psychological stress and his values and moral standards are affronted seem to make this inmate very vulnerable. As stated previously these are hostility, instability, immaturity and self-centeredness, paranoia and hopelessness. Geoffrey states that he feels most angry when his rights are violated or when he is frustrated or criticized. However he generally does not lose his temper, he turns the anger inwards. As stated he is making every attempt to change his mode of dealing with anger. I have no doubt that he will undertake this task with zeal and courage. However, his basic self worth seems so low that whenever he is placed under psychological stress his emotional being seems to be challenged to such an extent that his psychological survival is at stake. For this inmate, emotions in general are an issue. Geoffrey presented to me on interview as somewhat dispassionate, even when discussing the deaths of the victims. It is obvious that either he has learned to hide his emotions or that he doesn't recognize them. The PAI, a self report conducted in 2000 recorded that he does feel, for it showed that after discussing his crime he was so distressed that he felt suicidal. However, is it that he has difficulty in showing his emotions and that he turns them inwards or is it that he thinks only of his own trauma. On the positive side, Geoffrey has a stoic quality and seems to face his traumas with courage and he has come a long way in personal development. He is now mature enough to say that the crime was his fault, he is learning to become his own person and make his own decisions and to deal with anger as it arises. He presents as motivated to deal with the many psychological issues that have surfaced since our discussions began. It is hoped that in time he will come to realise his self worth and will therefore be less psychologically vulnerable to the many internal and external pressures of life."
19 Dr Walker made a recent psychological assessment on 14 July 1999 pursuant to which the following conclusion was expressed:
"Mr Websdale was assessed in July 1999 and that assessment showed no evidence of psychiatric disorder. As reflected in documentation from the SORC report of 1998, Mr Websdale has matured in prison from a confused, distressed and immature young man to a sensible, compassionate and responsible adult. While he has had the occasional disagreement with other inmates, I understand that there has been no evidence of abnormal dissociation and no evidence of homicidal anger/violence since the tragic shootings of 1989. At the time of the shootings, Mr Websdale, still at the end of adolescence, had not come to terms with the sexual abuse and later ridicule suffered in early high school years, was not aware that he was intelligent and was using cannabis regularly, amphetamines sporadically and binge drinking. I have observed that binge drinking in heavy cannabis users can result in dissociative alterations in consciousness with resulting distortion of reality and vividness of recall of ensuring violence. This is different in origin from a spontaneous dissociative disorder. I believe that this distinction is very important for estimating future risk in an offender. Mr Websdale has not used illegal drugs in prison, is married and has a son. His behaviour in prison has demonstrated consistent motivation to understand and improve himself and to help others. He still needs to be desensitized to his over-reacting when ridiculed or mocked and this should be a focus for further group or individual treatment by a psychologist. It can be added, however, that few of us react well to ridicule.
It is my opinion that Mr Websdale has a good prognosis for later rejoining the community as a law abiding and productive man.
20 It is to be observed that Dr Walker appears to have understood that the applicant was a heavy user of drugs other than alcohol. The applicant acknowledged in his evidence on this application that he regarded himself as an alcoholic, and used drink to excess, but he said he was not a substantial user of cannabis, and I see no reason to disbelieve him about this. Mr Dhanji informed the Court that the applicant does not embrace the possible explanation advanced by Dr Walker for these crimes to the effect that the heavy abuse of alcohol mixed with large amounts of cannabis could have led to some abnormal dissociative condition. Nor do I find this to be a likely explanation for the applicant's criminal behaviour. Nevertheless I am influenced by the opinion ultimately reached by Dr Walker as to the applicant's prognosis.
21 Since he has been in prison the applicant has earned a number of statements of attainment in a variety of areas that reflect status, inter alia, in music, art and ceramics. Photos of artwork, reflective of talent in this area, were introduced into evidence. The applicant is presently pursuing studies in horticulture. He married in 1995 and there is a child of that union. Recently the applicant and his wife have decided to "separate" but the applicant entertains some hope of a reconciliation if and when his future becomes more certain.
22 The applicant gave evidence to support his application. He does not now seek to attribute what he did solely to his childhood sexual abuse nor does he blame his criminality on drugs or alcohol. Indeed, it is not clear that the applicant appreciates why he embarked on his criminal activity. He agreed in cross examination that he was "struggling" to find an explanation as to why he did what he did. The absence of a clear explanation for these crimes I regard as a worrying feature of this case when considering the applicant's rehabilitation prospects and the safety of the community. I am unable to determine precisely why the applicant committed these crimes.
23 The applicant does recognise a need to address his anger and is desirous of pursuing a violence prevention course within the prison system. There will be offered to the applicant what was described in evidence as an anger management course to be pursued in four stages, and this course will probably become available by the end of this year. The course will take approximately twelve months, divided into four stages. I accept that the applicant is genuine in his wish to undertake the course and it is to be hoped that he will benefit from it.
24 I accept that the applicant is contrite about these crimes.
25 Grave as these crimes were, the Crown does not submit and I do not consider that the applicant should be required to remain in prison for the rest of his life. Indeed, I am persuaded that it is appropriate to set a specified term for these sentences, together with a non parole period, but in proceeding to do so I must have regard to considerations of deterrence and retribution, as well as the protection of the community. In considering the last of these important matters, I must not increase the sentence beyond what is proportionate to these crimes, simply to extend the period of protection of the community from the risk that the applicant might re-offend: see Veen v The Queen (No. 1) (1979) 143 CLR 458 at 467-468 and 495; and Veen v The Queen (No. 2) (1988) 164 CLR 465 at 472.
26 In the period remaining before the applicant becomes eligible for release upon parole, he should undergo further counselling against alcohol and drug abuse, and he must undertake the violence prevention course identified in her evidence by Ms Cullen, the Acting Secretary of the Serious Offenders' Review Council.
27 Mr Dhanji provided, in the course of his submissions, a table of sentences on applications under s 13A of the Sentencing Act 1989 relating to applicants who had committed multiple murders. I have considered that table. Indeed, I have considered it very closely, but of course each case is to be determined according to its own particular set of facts, giving due weight to the relevant objective and subjective features. The time served to date has not been served exclusively for these two murders. The prisoner has been serving sentences referable to the victims who survived as well. However, I must, and I do, have regard to the principle of totality.
28 Because of the gravity of these crimes, and notwithstanding those favourable subjective features I have reviewed, I consider that I must set a lengthy specified term. I consider that I should set a term of imprisonment of twenty-five years. The sentences should be backdated to 8 November 1989 since which date the applicant has been in custody.
29 It is appropriate that I fix a non parole period. Recently in R v White [2000] NSWSC 555 I had occasion to remark upon the language of cl 5(3) of Schedule 1 to the Crimes (Sentencing Procedure) Act 1999. It provides:
"The term of the sentence, and any non parole period, are to be taken to have been set under section 44, but are not required to comply with the other provisions of Division 1 of Part 4."
30 As in White, there was no argument as to how cl 5(3) should be construed, but again, as in White, on the view I take of this application, it is unnecessary to decide whether I am required, pursuant to s 44(2) of the statute, to set a non parole period "not less than three-quarters of the term of the sentence, unless the court decides there are special circumstances for it being less." As in White, I am prepared to assume, without deciding, that s 44(2) does not fetter the approach that I take to my present task. However, in my opinion, acting on that assumption, I nevertheless consider that I ought to set a non parole period which is indeed three-quarters of the specified term. This is because I consider that the applicant should not become eligible for release upon parole any earlier than the expiration of the non parole period I am about to set. Whilst recognising that this applicant will need a considerable period of supervision when eventually he is released upon parole, the full term of the sentence which I otherwise consider as appropriate to the applicant's crimes will provide sufficient opportunity to address the eventual supervisory need.
31 I now pass sentence as follows: in respect of each of the crimes of murder I sentence the applicant to imprisonment for twenty-five years, with the sentences to be served concurrently and to date from 8 November 1989 and to expire on 7 November 2014. In respect of each sentence I fix a non parole period of eighteen years nine months, and I therefore specify 7 August 2008 as the first date upon which the applicant will become eligible for release on parole.
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