Criminal Law - Crown appeal against sentence - parity of sentence imposed upon co-offender - findings of fact by sentencing judge after jury's verdict - relevant principles

Sentencing - effect of abolition of remissions on head sentences and non-parole periods in New South Wales - need for well-balanced and duly proportionate sentence

Sentencing Act 1989 (NSW)

Probation and Parole Regulations 1984 (NSW), reg.18,

Removal of Prisoners (Australian Capital Territory) Act 1968, s.5(3)

Nuttal (1968) Crim LR 173

Warner (1967) 1 WLR 1209

Harris [1961] VicRp 36; (1961) VR 236

Kane [1974] VicRp 90; (1974) VR 759

Boyd [1975] VicRp 16; (1975) VR 168

Haselich (1967) Qd R 183

The Queen v. Paivinen [1985] HCA 39; (1985) 158 CLR 489

Paivinen v. The Queen [1985] FCA 12; (1985) 59 ALR 368

Reg. v. Assa Singh (1965) 2 QB 312

Reg. v. Breckenridge (1966) Qd R 189

Menz and Royce v. The Queen (1967) SASR 329

Reg. v. Gisbourne (1977) Crim LR 490

Jacobson v. Piepers; Ex parte Piepers (1980) Qd R 448

Reg. v. Brennan (1984) 36 SASR 78

Reg. v. Yates [1985] VicRp 3; (1985) VR 41

Regina v. Combo (1971) 1 NSWLR 703

R. v. Humphries (1971) 1 NSWLR 781

Solicitor for the respondent: Director of Public Prossecutions

The sentence imposed be varied by amending the non-parole period of 16 years to date from 5 July 1989 and substituting a non-parole period expiring on 25 May 2000.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

Craig Kenneth Skillin appeals against a sentence imposed by the Supreme Court of the Australian Capital Territory (Miles C.J.) on 30 August 1990. Skillin was charged under an indictment containing four counts. He was convicted of the offences alleged in counts two and four: that on 21 October 1988 he maliciously inflicted grievous bodily harm on Terry Hayes with intent to do grievous bodily harm to him and that, on the same day, he stole Mr Hayes' wallet and its contents, using force. In relation to the first matter, Skillin was sentenced to 12 years' imprisonment; six years of which were to be served concurrently with, and six years of which were to be served cumulatively upon, a sentence which he was then serving. In respect of the robbery, he was sentenced to two years' imprisonment concurrent. The learned sentencing judge fixed a non-parole period of 16 years to date from 5 July 1989.

2. The significance of 5 July 1989 is that this was the day upon which Skillin was sentenced by another judge (Gallop J.) in connection with another offence, which had also occurred during the night of 20-21 October 1988. In company with a man named Cadona, Skillin had taken a man named Wilburs to an isolated spot in the suburb of Lyons. There Wilburs was bashed and robbed. He was left to die. The two men returned to Civic where they found Hayes asleep in his car. They forced him to hand over the keys of his car and drove with him to a place on the Barton Highway near Hall. Hayes was bashed with a hardwood stake or post, robbed and left. He survived but the injuries which he sustained in the bashing have left significant permanent mental and physical disabilities.

3. Cadona was charged with the manslaughter of Wilburs and with being knowingly concerned in the commission of an offence by Skillin in that Skillin inflicted grievous bodily harm on Hayes. On 27 April 1989 he pleaded guilty to both counts. He was sentenced by Gallop J. to five years' imprisonment on each count with a non-parole period of two years and six months.

4. On the same day Skillin was arraigned on an indictment charging him with the murder of Wilburs. He pleaded not guilty but was convicted at the ensuing trial. Gallop J. sought a psychiatric report, which was provided by Dr Hugh Veness. On 5 July 1989 Gallop J. sentenced Skillin to 20 years' imprisonment with a non-parole period of 12 years. His Honour ordered that both the sentence and the non-parole period date from the day upon which Skillin was taken into custody, 22 October 1988.

5. The only matter put in issue by Skillin's appeal against the sentence imposed by Miles C.J. is whether or not it was manifestly excessive. No point was taken that the judge was unable lawfully to direct that part of the sentence which he imposed should be cumulative upon, and part concurrent with, the sentence imposed by Gallop J. Rather, attention was directed at the length of the sentence and, particularly, the non-parole period.

6. Although he contended that both the head sentence and non-parole period were excessive, counsel for the appellant did not contend that, considered in isolation, a head sentence of 12 years would be excessive. Nor, we think, could he realistically have done so. The assault on Hayes was an appalling crime, being an unprovoked vicious attack upon a stranger undertaken for gain. Hayes was abandoned at the roadside where he was attacked, with total disregard to the question whether he survived or not. Although he did survive, as we have said he has been left with significant major disabilities.

7. Essentially, there were two main strands to the argument of counsel for the appellant. First, he complained that the sentence imposed on Skillin by Miles C.J. was disproportionately severe when considered alongside that imposed upon Cadona. Secondly, he said that the effect of the aggregation of this sentence and the sentence imposed by Gallop J. was to impose a crushing burden upon the appellant, especially in relation to the date when he would be eligible for parole.

8. In imposing sentence, Miles C.J. gave attention to the roles played by Skillin and Cadona in the assault of Hayes. It was put to him by counsel for the appellant that he should find that it was Cadona, rather than Skillin, who wielded the blows which injured Hayes. Such a finding would not have been inconsistent with the jury's verdict but it would have been inconsistent both with Cadona's evidence at the trial - he was called by the Crown - and with passages in the appellant's record of interview where he said that he hit Hayes.

9. Miles C.J. rejected the invitation to make this finding. He said:

"I am not convinced by those arguments. Although it is consistent

with the jury's verdict that they considered that the offender was

guilty only by operation of the doctrine of common purpose, or as

a principal in the second degree, I think it unlikely the jury

approached the case in that way. I recognize that the jury found

the offender not guilty on another count of attempted murder and

another count of robbery of the victim of his car, but, for

myself, I am quite convinced on the evidence that it was Craig

Skillin who was the principal in the first degree."

10. The Chief Justice was entitled to interpret the jury's verdict as he did. The English Court of Appeal in Nuttal (1968) Crim LR 173 and Warner (1967) 1 WLR 1209 at 1214, the Victorian Full Supreme Court in Harris [1961] VicRp 36; (1961) VR 236, Kane [1974] VicRp 90; (1974) VR 759 at 762 and Boyd [1975] VicRp 16; (1975) VR 168, and the Queensland Supreme Court in Haselich (1967) Qd R 183 have indicated that, while the judge is free to enquire from the jury what they found, or to deduce the same from their volunteered comments, he is under no obligation to take either step and may instead come to his own independent determination of the relevant facts. In Harris, Lowe J. who delivered the judgment of the Court, in referring to the trial judge stated:

"He has to form his own view of the facts and to decide how

serious the crime is that has been committed, and how severely or

how leniently he should deal with the offender. The learned

judge, in forming his view of the facts, must not, of course, form

a view which conflicts with the verdict of the jury, but so long

as he keeps within those limits, it is for him and him alone to

form his judgment of the facts."

11. Counsel for the appellant drew our attention to evidence that Cadona had blood on both his shoes, which blood may have been that of Hayes. He suggested that this is consistent with Cadona's having stood astride Hayes whilst bashing him. So it is; but it is also consistent with many other possibilities. The sentencing judge had the advantage of seeing and hearing both Cadona and Skillin whilst they gave their respective accounts of this attack. He had an opportunity to evaluate those accounts, and the two men themselves, in a way which is not able to be replicated by an appellate court. Under such circumstances, it would require very cogent evidence to justify this Court substituting its own finding on a matter such as this. The matter relied upon by counsel comes nowhere near the required standard of cogency. It is equivocal at best.

12. Once it is accepted that Skillin was the leader in the attack on Hayes, little is to be gained by comparing his sentence with that given to Cadona. Subject to any other relevant matters, the sentence appropriate to Skillin must be greater than that awarded Cadona; how much greater must depend upon the nature of the offence, considered in the light of antecedents and the other usual factors.

13. The second matter raised by counsel is more arguable. Relevant to this argument is the evidence of Dr Veness, and the sentencing judge's treatment of that evidence. In his written report of 18 May 1989 Dr Veness had stated that "Skillin fits the classic definition of anti-social, or sociopathic personality disorder". He had said that the prognosis for this kind of disorder is "very guarded" but he had gone on to say:

"In general, the aberrant behaviour of this kind of personality

continues until about the age of 40 when it seems to burn out. It

should be stressed this is a generalisation and does not apply to

each and every individual."

14. However, when he gave evidence on 30 August 1990 Dr Veness modified his opinion. He made reference to some of the appellant's activities in prison, including his participation in some educational courses and the acceptance by him of some leadership responsibilities. Dr Veness thought that, since his interview of May 1989, "some insight has developed". Having regard to the changes in Skillin's personality which he had noted, Dr Veness had come to "consider that this diagnosis of sociopathic personality is probably not accurate". He preferred to describe the appellant as "an acting out neurotic" and said that he was now more optimistic about substantial change before the age of 40.

15. Skillin was born on 2 July 1969, so he was only 19 when the offences were committed and 21 when sentenced by Miles C.J.

16. In his remarks on sentencing, Miles C.J. commented on Dr Veness's evidence:

"For myself, I think that the original diagnosis is more likely to

be appropriate and I am not sure whether Dr Veness's change of

approach has taken into account sufficiently the whole of the

events as they transpired on that dreadful night of 21 October

1988. However, I do accept that Craig Skillin, at the age of 21,

facing a long term in prison and already showing signs of

institutionalisation, may also be showing some signs of insight

and of responsibility for his actions. There is no question

that the offence under s.33 was horrific and calls for a very

stern sentence."

17. Counsel for the appellant submitted that, in considering the totality of the sentence appropriate to be imposed, Miles C.J. wrongly rejected Dr Veness' opinion. We do not think that there is anything in this submission. It is true that his Honour was unpersuaded that the first diagnosis was wrong, principally because of the horrific nature of the events of 21 October 1988. But he was not bound to accept Dr Veness' later view, which, in any case, was only a tentative one revolving about the name of the abnormality afflicting the appellant. What was much more important was the question whether there was any change in the appellant's attitude, and Miles C.J. did accept Dr Veness' evidence that he "may also be showing some signs of insight and of responsibility for his actions."

18. Turning to the issue of totality generally, it cannot be said that the head sentence imposed by Miles C.J. was excessive, particularly when it is recalled that half of that sentence was to be served concurrently with the existing 20 year sentence. The real problem arises out of the non-parole period. During the course of argument we were furnished with a calculation prepared by the New South Wales Department of Corrective Services relating to Skillin's release date.

19. As we understand the position, until the enactment of the Sentencing Act 1989 (NSW) the relevant legislation in that State allowed for remissions from both head sentence and non-parole periods. In the Australian Capital Territory there was no provision for remissions from head sentences or non-parole periods.

20. By ss.19 and 20 of the Probation and Parole Act 1983 (NSW) a judge, stipendiary magistrate or justice was obliged on sentencing a person in the circumstances mentioned in those sections to specify "a period before the expiration of which the person shall not be released on parole pursuant to this Act except as may be provided otherwise by this Act". Section 25 of that Act provided that a reference to a non-parole period was a reference to the non-parole period reduced by the period, if any, by which the non-parole period was required to be reduced in relation to the prisoner by or in accordance with the Regulations.

21. Regulation 18 of the Probation and Parole Regulations 1984 (NSW) provided that the period, if any, by which a non-parole period was required to be reduced in relation to a prisoner pursuant to s.25 of that Act was to be determined in accordance with a formulation. Remissions of sentences, on the other hand, were provided for in s.41(3) of the Prisons Act 1952 (NSW) and Regulations made thereunder. It is unnecessary to set out the terms of the Regulations. Their effect was to reduce the sentence of a convicted prisoner by one quarter of the sentence period or, if the prisoner had not been previously convicted, by one third of the sentence period. Other Regulations made provision for certain other remissions and the forfeiture of remissions in certain cases.

22. The effect of reg.18 of the Probation and Parole Regulations was to reduce the non-parole period in a way that corresponded to the reduction of the head sentence by way of remissions. Its effect was explained by Street C.J. in Regina v. O'Brien (1984) 10 A Crim R 390 at 395. He referred to the regulation as providing for an entitlement to a reduction of a non-parole period calculated on a basis proportionately equivalent to the prisoner's entitlement to remissions under the head sentence. He said that under the legislation the non-parole period "marched in a proportionate sense precisely in step with the head sentence".

23. Prior to the decision of the High Court in The Queen v. Paivinen [1985] HCA 39; (1985) 158 CLR 489 courts in the Australian Capital Territory always assumed that prisoners sentenced in the courts of the Territory would, in relation to remissions on head sentences and non-parole periods, be treated identically to prisoners serving sentences in the State of New South Wales because of s.5(3) of the Removal of Prisoners (Australian Capital Territory) Act 1968 which, in its original form, read as follows:

"(3) Subject to the succeeding provisions of this Act, the

person may, while so in custody, be dealt with in the like manner,

and is subject to the like laws, including laws relating to the

reduction or remission of sentences, as if the order or sentence

of the magistrate or court by reason of which the warrant was

issued had been a like order or sentence made or pronounced under

a law in force in the State."

24. By Act No. 96 of 1983, s.5(3) was amended into the following form:

"(3) Subject to the succeeding provisions of this Act, the

person may, while so in custody, be dealt with in the like manner,

and is subject to the like laws, including laws relating to the

reduction or remission of sentences, as if the order or sentence

by virtue of which the person became liable to undergo

imprisonment or other detention in custody had been a like order

or sentence made or pronounced under a law in force in the State."

25. In Paivinen the High Court examined the correctness of the fundamental assumption previously made by all the judges of the Supreme Court of the Australian Capital Territory, and the majority of the Full Court of this Court in Paivinen v. The Queen [1985] FCA 12; (1985) 59 ALR 368, that the non-parole period of a Territory offender serving a sentence of imprisonment in New South Wales was reduced by the operation of the Probation and Parole Act 1983 (NSW) by virtue of the provisions of s.5(3) of the Removal of Prisoners (Australian Capital Territory) Act, and likewise head sentences similarly imposed were reduced by the operation of the New South Wales law.

26. The High Court held that such view of s.5(3) in its contemporary form was erroneous. The Court (Gibbs C.J., Mason, Brennan, Deane and Dawson JJ.) at p 497 said that the words 'be dealt with in the like manner, and is subject to the like laws, including laws relating to the reduction or remission of sentences' did not in themselves render applicable the provisions of any New South Wales statute which effected a reduction of the period of imprisonment which a New South Wales offender was required to serve. The words were inapt to import provisions which affect the length of the period for which the Territorial offender remained in custody. They relate rather to the manner in which the offender may be dealt with while in custody, e.g. in relation to prison discipline. The High Court expressly said that s.5(3) (in the form it was then in) did not relate to the reduction of sentences or non-parole periods imposed by Territory courts.

27. It was no doubt in the light of the High Court's decision that s.5 was further amended by Act No. 168 of 1986 so as to add at the end the following sub-sections:

"(4) Without limiting the generality of sub-section (3),

where -

(a) the order or sentence includes the imposition of a

non-parole period; and

(b) a like order or sentence made or pronounced under a law in

force in the State could include the imposition of a

non-probation period and not a non-parole period,

the non-parole period is subject to the same reduction or

remission as if it were a non-probation period.

(5) A reference in this section to a non-parole period or a

non-probation period is a reference to a period before the end of

which a person shall not be released on parole or probation, as

the case may be."

28. Between that amendment and the enactment of the Sentencing Act 1989 (NSW) it was in accordance with s.5(3) that a Territory prisoner sentenced to a term of imprisonment and serving the sentence in the State of New South Wales became eligible for release by the operation of the remissions system prior to the expiration of the non-parole period fixed by Territory courts. In the interests of parity, it was the practice of the Commonwealth Attorney-General to recommend release on licence at about the same time when a State prisoner in a like situation would have been eligible for parole, notwithstanding that the non-parole period fixed in respect of the Territory offender had not expired. The Parole Board of the Australian Capital Territory could not release on parole because the non-parole period had not expired (Parole Act 1976, s.20(1)).

29. The Sentencing Act 1989 significantly changed the New South Wales system. The concept of a non-parole period was abolished and replaced by a "minimum term" from which remissions are not allowed. At the expiration of the minimum term a prisoner becomes entitled to be considered for parole.

30. The statutory provisions in New South Wales providing for remissions on head sentences and non-parole periods were repealed by the Sentencing Act. The effect of this change has been to abolish remissions on sentences and non-parole periods imposed by courts in the Australian Capital Territory by virtue of the operation of s.5(3) of the Removal of Prisoners (Australian Capital Territory) Act. Where a court in the Australian Capital Territory sentences a person to a term of imprisonment of not less than 12 months, or to terms of imprisonment that in the aggregate are not less than 12 months, the court is still required to fix a period as the period during which the person is not eligible to be released on parole (Parole Act 1976 (ACT), s.7(1)).

31. Section 5(3) will continue to apply to prisoners sentenced before the commencement of the Sentencing Act and ensure parity between Territory prisoners and New South Wales prisoners in like situations.

32. The information supplied by the New South Wales Department of Corrective Services shows that a New South Wales prisoner in Skillin's position would become eligible for release on parole, if faced only with the sentence imposed by Gallop J., on 25 May 1996. This would remain true, notwithstanding the Sentencing Act, because that Act does not apply to prisoners sentenced prior to its commencement. If nothing further had happened, Skillin would have been likely to be recommended by the Commonwealth Attorney-General for licence in about May 1996.

33. But the order made by Miles C.J. imposes a new non-parole period. Properly, it is an order which has regard both to the earlier offences and the offences in respect of which his Honour was imposing sentence: see s.8 of the Parole Act 1976. As was envisaged by s.8(4) of that Act, Miles C.J. ordered the new 16 year non-parole period to commence on the date of the imposition of the previous sentence, 5 July 1989. So, pursuant to this order, Skillin would have become eligible for parole on 4 July 2005 (not 4 July 2006 as stated in the document of the New South Wales Department of Corrective Services). The effect of the additional offence, and the non-parole order of Miles C.J., was to postpone the appellant's likely release date by some nine years.

34. We were informed by counsel that his Honour's attention was not drawn to the above matter. There is nothing in his Honour's reasons to indicate that he appreciated that the consequence of his making a new order extending the existing non-parole period by four years would be to expose the appellant to the likelihood of spending an additional nine years in prison.

35. Giving full weight to the enormity of the two offences for which the appellant must be punished, it seems to us that the result which we have just discussed is an injustice to him. Because of this offence, he not only must spend an additional four years in prison, he also loses the substantial remissions to which he had become entitled, although, of course, he has not committed any new offence.

36. Since his sentencing by Gallop J. the appellant had no doubt looked forward to release in 1996. He must have been aware that this release date might be affected by the outcome of the prosecution relating to Hayes; but it is unlikely that he expected the additional term to be greater than the original actual non-parole period, arising as it did out of a conviction for murder. In the unusual circumstances of this case, it is not inaccurate to describe the effect of the more recent sentence as crushing.

37. It seems to us that we should amend the order made by Miles C.J. so as to give effect to what we take to be its underlying intention: that the appellant should be eligible for parole on a date four years later than the date when he might have been expected to be released under the order of Gallop J.; that is 25 May 2000. We emphasise the words "eligible for parole". We do not envisage that parole should be automatic. If Dr Veness' original prognosis is correct, it may not then be prudent to release the appellant. If, on the other hand, the encouraging signs which Dr Veness detected were to ripen into proof of insight into his conduct and an acceptance of responsibility for his actions and future, the Parole Board may feel satisfied that it can properly direct release. By that time the appellant will have been in custody for some 11 and one half years. He will have had ample opportunity to demonstrate the position.

38. Now that remissions on head sentences and non-parole periods have been abolished in New South Wales, it is appropriate to make some general observations about the way in which courts of the Australian Capital Territory should approach the difficult exercise of sentencing. As the High Court observed in Paivinen, it has often been held that a judge in passing sentence should impose the appropriate sentence for the crime and should not impose a longer sentence merely because the offender may possibly earn remissions for good conduct or be released on parole (Reg. v. Maguire (1956) 40 Cr App R 92; Reg. v. Assa Singh (1965) 2 QB 312; Reg. v. Breckenridge (1966) Qd R 189; Menz and Royce v. The Queen (1967) SASR 329; Reg. v. Gisbourne (1977) Crim LR 490; Jacobson v. Piepers; Ex parte Piepers (1980) Qd R 448; Reg. v. Brennan (1984) 36 SASR 78; Reg. v. Yates [1985] VicRp 3; (1985) VR 41).

39. It was held in Regina v. Combo (1971) 1 NSWLR 703, and affirmed in R. v. Humphries (1971) 1 NSWLR 781, that in fixing a non-parole period the court ought to take into consideration the likely length of remissions:-

(a) because, if remissions are not taken into account the

non-parole period may be rendered nugatory by the earlier

unconditional release of the prisoner on account of

remissions; and

(b) because it is the policy of the legislature to confer upon

the Parole Board power to impose conditions on the release

of prisoners and to supervise those conditions.

40. With the abolition of remissions on head sentences and non-parole periods, consideration (a) above does not apply but consideration (b) remains valid. The traditional sentencing exercise of seeking to impose a well-balanced and duly proportionate sentence has been simplified. The sentence should encourage the prisoner to earn parole and qualify for release at the expiration of the non-parole period fixed so as to allow the parole system to work for the benefit of the prisoner and the community. If a well-balanced and duly proportionate head sentence and non-parole period are not fixed, a prisoner might choose to serve his head sentence without seeking parole, which is not the desirable result contemplated by the Parole Act 1976 (ACT).

41. In the result the order made by Miles C.J. is amended by deleting the reference to "a non-parole period of 16 years to date from 5 July 1989" and by substituting "a non-parole period expiring on 25 May 2000".