REGINA v. BARAC [1999] NSWSC 61

HIS HONOUR: 1 On 3 August 1998, the prisoner, David Samuel Barac, pleaded guilty before me to a charge that he, on or about 3 April 1995 near Goulburn in the State of New South Wales, did murder Helen Cusack. The deceased was his wife. 2 At the time of the killing, the prisoner and his wife had been married a little over two months. The relationship had ruptured and objectively, reconciliation seemed improbable. The deceased was the prisoner's second wife, the first marriage having also broken down resulting in the events I will refer to later. 3 By his plea, not only did the prisoner admit the voluntary killing of the deceased and an intention to kill or do really serious injury to her which injury occasioned her death, but also that the killing occurred in New South Wales. This last matter was a matter of some little importance since, in the absence of that admission, an issue might well have arisen as to the place of death and the applicability of s.3A of the Crimes Act (1900). 4 The plea was entered at the very eve of trial and indeed after the matter had been listed for pre-trial applications to precede the empanelling of a jury on 10 August 1998. The trial that would have ensued in the absence of such a plea, I was informed, could have been expected to take some five weeks. (I have taken these matters into account for the purposes of s.439 of the Crimes Act (1900). In the context of the sentence I have determined I should pass and the matters regarding contrition and rehabilitation I refer to below, I regard the plea, notwithstanding the case against the prisoner was very strong, as of some, but limited significance, primarily for its pragmatic value in avoiding a trial, and have as required by the section, reduced the sentence to the requisite extent.) 5 Thereafter the matter came before me for sentence but in the circumstances referred to in my judgment of 23 October 1998, the matter was stood over to enable material to be obtained for presentation on the plea by the prisoner. On 23 October, the Crown Prosecutor provided me with a bundle of victim impact statements which I received as set out in the judgment I delivered that day in respect of those statements and which I have treated as I am required to in accordance with s.23C of the Criminal Procedure Act (1986). 6 There had been considerable doubt about the appropriate trial jurisdiction arising from the lack, originally, of sufficient evidence to identify precisely the location of the killing as in New South Wales rather than the ACT. The prisoner had been charged with the murder on 2 May 1995 in the Australian Capital Territory pursuant to a first instance warrant for murder issued there. On 26 October 1995 at Lithgow Police Station, he was charged with the murder under s.19A of the New South Wales Crimes Act. On 21 October 1996, the prisoner was committed for trial to the Supreme Court of New South Wales following a committal of some 13 hearing days. On 26 May 1997, the prisoner finished serving a sentence of four and a half years imprisonment that had been imposed upon him on 22 September 1992 for the malicious wounding with intent of his first wife which sentence had comprised a minimum term of two years and an additional term expiring on 26 May 1997. The prisoner had been returned to custody to serve out that minimum term for breaches of parole shortly after his wife's death. He has therefore been in custody since 26 May 1997 for a period solely referrable to this charge. His sentence should therefore date from that date. 7 Following his release at the conclusion of that minimum term of imprisonment on 21 September 1994 the prisoner had commenced to live with the deceased in Sydney. They had met in 1993 when the deceased then 23 years of age, was employed by the Correctional Centre's Educational Department as a librarian and whilst the prisoner was in custody. The relationship was therefore of comparatively short duration. 8 The background to this charge is set out in a statement of facts which has been admitted into evidence and from which I quote:- "In early March 1995 the prisoner and the deceased travelled to the family home of the deceased, a property called 'Corio' at Eurongilly via Junee. On 2 March 1995, the prisoner left for Newcastle while the deceased remained at Corio with her mother, Mrs. Celsa Cusack. On 4 March 1995, the deceased telephoned the prisoner from Corio and told him that she wanted a month or so to think things over. On 13 March 1995, the prisoner obtained temporary work with the National Training Board and started work there on 21 March. The prisoner was to begin an alcohol rehabilitation course at Kedesh House at Wollongong. The prisoner did commence that course but left Kedesh House on Thursday 30 March 1995 and did not return. On Saturday 1 April 1995, the prisoner telephoned the deceased's mother at Corio asking her to ask the deceased to contact him, which she did. The deceased attempted on a number of occasions to contact the prisoner, who was by now staying with friends at 9 Lilyfield Road Rozelle, and eventually spoke to him at about 8.00 am on Sunday 2 April 1995. In this telephone call the prisoner apparently conveyed to the deceased that he had to appear before the Administrative Appeals Tribunal in Canberra on Monday 3 April over an application for deportation which was then pending against him. The prisoner and the deceased arranged that he would take the bus from Sydney to Canberra and that the deceased would then meet him that evening at the Joliment Bus Terminal in Canberra City. In fact there was no hearing scheduled for 3 April or any other day. The deceased had on 7 March contacted the Department of Immigration indicating that she wished to support the deportation application. The prisoner left Rozelle at about 6.00 pm to travel by bus to Canberra and the deceased left her flat at about 9.45 pm, having first prepared a letter at the prisoner's request for use before the AAT indicating that she had separated from him on 2 March 1995 but that they were on amicable terms. The deceased also ironed a white shirt for the prisoner to wear at the hearing and hung this and a grey suit over a coat hanger and took it with her in the car. The deceased drove her car, a silver Mazda 626 hatchback, registration number MTD-377, to the Joliment bus terminal, met the accused and drove to the Carotel Hotel in Watson ACT, arriving at around 11.30 pm. They registered under the name of Barac and were allocated room 32. At 12.45 pm on Monday 3 April 1995, the deceased telephoned Erica Stevens in Canberra and advised that she would be spending the night in a hotel with the prisoner. The deceased was not seen alive or heard from again. The deceased did not attend at work at the National Training Board on Monday 3 April or Tuesday 4 April 1995. On Tuesday 4 April 1995, the deceased's mother contacted the Major Crime Squad of the Australian Federal Police expressing concerns for her daughter's welfare. At about 10.00 am on Monday 3 April, the prisoner arrived at Lilyfield Road in the deceased's car. He spoke to Douglas Kuhl, his first words being, 'All hell's broken loose'. He showed Mr. Kuhl a large open wound on the palm of his right hand which was bleeding. The prisoner also had a three centimetre circular blood stain on the front of his T-shirt. Kuhl said to the prisoner, 'Where's Helen?' to which he replied, 'She's in hospital'. The prisoner asked Kuhl if he could wash the car and without waiting for an answer immediately commenced to do so in the back courtyard of the house. A short time later Mr. Gus Laviano arrived at Lilyfield Road and spoke to the accused. Laviano asked 'What happened?' to which the prisoner replied that he had got into a fight and been stabbed by a man who was with the deceased when she picked him up from the Joliment bus terminal. Robert Longbottom, a security guard at the bus terminal who was on duty on the evening of 2 April, says there were no fights at the terminal that evening. When Laviano asked him about the car the prisoner said that the deceased had thrown him the keys to the car when he had the fight with the man. The prisoner gave the keys to Laviano who kept them in the glovebox of his own car. The keys, in an Oroton leather case, belonged to the deceased. The prisoner then asked Laviano to drive him to the home of some friends of the prisoner at Wallsend near Newcastle, which he did. On the way to Newcastle they stopped at the medical practice of Dr. Chew in North Strathfield where the wound in the prisoner's right palm was stitched. The consultation was at about 11.45 am. Dr. Chew was of the opinion that the wound (consisting of two lacerations) was a few hours old and that it was inflicted by a knife. The prisoner told Dr. Chew that he had arrived home at 8.00 am to find his wife in bed with another man and that he punched the man and was stabbed by him. Laviano drove the prisoner to Wallsend, arriving at the home of the prisoner's friends, Kim and Angela Maybury, at about 2.30 pm. The prisoner spent the afternoon at the Mayburys. Kim Maybury drove the prisoner to Broadmeadow Railway Station around 7.30-8.00 pm. At about 10.00 pm the prisoner arrived at the home of his friend Troy Power in Mayfield and asked to stay the night. The prisoner left Power's house for the train station at about noon the next day, with the stated intention of catching a train to Sydney. About 3.30 pm on Tuesday 4 April police from Ashfield police station attended the house at Lilyfield Road and observed the deceased's car to be parked in the rear courtyard. Police observed some damage to the vehicle and blood stains on the bonnet. They did not search inside the car (which was locked) but observed a handbag (the deceased's) on the front passenger seat and a dark coloured suit and white shirt on a hanger. Police had conversations with other occupants of the house, Paul Bocska and John Devitt, asking them to have the prisoner contact Ashfield police. At about 4.30 pm the prisoner returned to Lilyfield Road. Bocska told him that the police had been at the house enquiring who had a key for the car. When the prisoner asked if the police had looked inside the car and Bocska replied in the affirmative the prisoner appeared to panic, got in the car, backed it out of the driveway, hitting the gate post in the process, and drove away. About 4.00 am on Thursday 6 April the prisoner went to Ashfield police station in the deceased's car. He was interviewed by Detective Sergeant Mennilli regarding his wife's disappearance. He said that he left her at the hotel room in Watson after an argument and drove away in her car. When questioned about the cut to this (sic) hand he said that he injured it in a park in Rozelle by smashing a beer bottle, and that this had taken place after the deceased had left him. On the same day he was arrested on a first instance warrant for breach of parole (the breach being failure to totally abstain from intoxicating liquor) and was remanded in custody and sent to Maitland Correctional Centre. On 13 April a listening device warrant was obtained by Australian Federal Police. On 23 April a listening device was installed in Cell 41 Wing B of Maitland Correctional Centre which the prisoner was sharing with another inmate. The listening device was monitored between 23 and 29 April. On 26 April the prisoner was interviewed by Detective Sergeant Brian McDonald of the Australian Federal Police at Maitland Correctional Centre, but again said that he did not have any knowledge of his wife's whereabouts. Between 23 and 28 April the prisoner made admissions to his cellmate that he had killed the deceased and dumped her body at Mooney Mooney. An arrangement was made that the cellmate, when he was released from custody, would arrange to properly dispose of the body so that it would not be located. The prisoner drew a map for the cellmate indicating the location of the body. A code was devised between them so that the cellmate could write to the prisoner letting him know when the body had been disposed of. The code was found to have been in the prisoner's handwriting. … On 3 May the cellmate attended Blacktown Court and passed a note to escorting police indicating that he had information about the deceased.. He also handed to police a document containing the handwritten code that he and the prisoner had devised. On 28 April, following information received from the listening device, police located the body of the deceased in bushland off the Old Pacific Highway at Mooney Mooney, approximately four kilometres north of the Brooklyn Bridge. The white shirt and grey suit coat that the deceased had taken to the bus terminal were found 35 metres from the deceased's body. The deceased's blood was found on both these items. A post mortem conducted on 29 April by Dr. Paul Botterill revealed the direct cause of death to be knife wounds to the chest and/or neck region. There were three holes in the upper chest area of the long sleeved T-shirt and jumper which the deceased had been wearing. Only one of the holes in the jumper could be said to have been caused by cutting but the position of the holes in the jumper corresponded with that in the garment underneath, the T-shirt. The prisoner had told Becerivic on 26 April that he had a knife with him in the hotel room, having brought it from home. Douglas Kuhl, in whose home the prisoner had stayed on the night of Saturday 1 April, noticed on 6 April that a kitchen knife with a nine inch long blade was missing from his kitchen. It had last been seen on 30 or 31 March when Kuhl sharpened it. None of the other occupants of the house had taken the knife. The deceased's blood was found in the interior of her car and in the boot and her hair was found in the spare tyre well and surrounding area, on the rear parcel shelf and in the hinge of the rear parcel shelf." 9 That material was admitted by consent and its content was unchallenged. It is however largely silent on the circumstances immediately surrounding the killing which I am left to derive by inference from the other material admitted into evidence. There are a number of matters in addition which need to be examined and certain of the matters referred to in the statement of facts merit examination in more detail. 10 Following the charge, the prisoner declined to be interviewed by the police. He has not given evidence before me as to the circumstances of the killing. The evidence of what happened is greatly dependent on his accounts to others which were admitted by consent. I will consider those accounts in the context of what independent proof there is affecting their acceptability. 11 The listening device which has already been referred to enabled the recording of the conversations between the prisoner and his cellmate. The dry recital of the effect of those conversations already set out does little justice to the full gravity of the prisoner's conduct. Extracts of the transcript of what was recorded have also been admitted in evidence before me. Those extracts evidence a chilling request by the prisoner to his cellmate to dispose of the body of the deceased. The prisoner refers to the body and the death in a dramatically callous fashion, whilst urging the cellmate to undertake the gruesome task of disposition of the remains. He asserted in one of the conversations that the deceased was his wife; that she was very cross; that she had abused him over money; that she wanted money and that he was very sorry the next day. The prisoner is recorded as having put the deceased in the boot of the car whilst she was still alive and had some degree of awareness; that as a result he stabbed her again and then said he was sorry. Some of the matters to which he referred are independently corroborated. Some are most unlikely, eg., that his wife had abused him over money. There is no corroboration in respect of the deceased being aware and stabbed again on being returned to the car boot. 12 The location of the body as revealed in those conversations accorded with what was noted by Detective Senior Sergeant Llewellyn when he observed its location in the vicinity of Mooney Mooney off the verge of the Old Pacific Highway. The injuries to the body, considering the lapse of time between death and post-mortem, offer little assistance as to what had happened. 13 When Detective Senior Sergeant Llewellyn spoke to the prisoner at the Maitland Police Station on 2 May 1995, the prisoner asserted to the officer that he had really loved his wife but that her family had caused it, her brother had turned her against him telling her things that he asserted were not true to stop her from seeing him and that if he, the prisoner, did not keep away from her the brother had threatened to kill him. Following legal advice, the prisoner declined however to be further interviewed. 14 When the prisoner had earlier been interviewed on 6 April 1995 at Ashfield, he had lied to the police as to his lack of awareness as to what had happened to his wife and although an interview was commenced, it did not continue when the prisoner appeared to become ill and said, "You just want me to say that I killed and buried her". The officer replied, "No-one's mentioned anything about killing and burying Helen". The prisoner was later taken to hospital. However prior to terminating the interview, the prisoner had informed the police during the interview that it was his wife who had arranged the meeting in Canberra; he having travelled by bus to the meeting which was to be at the Greyhound bus stop in Canberra, using a ticket booked and paid for by his wife; that the purpose of the meeting was to discuss his situation with her; for him to get some papers from the Department of Immigration; to receive a resume and to receive his drug and alcohol certificate. They met, talked and in due course, he said, they went to a motel from which his wife rang a friend, Erica. (His account in this respect is corroborated by the statement of Erica Mary Stevens which has been tendered in evidence by the Crown.) He went on to assert that he and his wife made love but subsequently there was an argument about her family which caused him to leave her; that he took her car and drove away and that he felt sorry that he had left her and was worried. 15 The deceased had told Erica Stevens that the prisoner actually had a meeting with the Immigration Tribunal in Canberra appointed for Monday 3 April 1995 and that on Sunday 2 April at the flat which Ms. Stevens and the deceased shared, the deceased had retrieved some property from a storeroom which belonged to the prisoner, typed a letter for the Tribunal that the prisoner had apparently requested and ironed a white shirt and pair of trousers for the prisoner to wear. The evidence discloses that there was no Tribunal hearing listed for that Monday involving the prisoner. There were, however proceedings which had last been before the Administrative Appeals Tribunal on 22 February 1995 in respect of the deportation of Mr. Barac. The evidence does not disclose that there was no possible occasion for Mr. Barac to attend the Department on that Monday. 16 There is in evidence confirmation of the couple arriving at the motel. The subsequent events including those surrounding the killing, the disposal of the body and the prisoner's journey to Newcastle remain extremely shady. The prisoner's accounts are inconsistent. His account of his wife's abuse of him is unacceptable. For the existence of some events there is only the prisoner's unsupported word. For some there is confirmation to a greater or lesser degree. As will appear the expert witnesses describe the prisoner's background and psychological conditions from which, in addition to the problem of his accounts, I am left with the gravest doubts as to the prisoner's credibility and of the reliability in general and in detail of his accounts. There are clear lies and inconsistencies internally and between the various accounts and between his accounts and those of other witnesses. There are so many inconsistencies on so many matters that it is appropriate to illustrate the extent of the unreliability and inconsistency of the prisoner's accounts. I set out various of the accounts from the reports and documents which were in evidence by consent and which were unchallenged. 17 The prisoner's accounts had principally been given to Dr. Lucas and Dr. Carne, psychiatrists and Ms. Anita Duffy, psychologist during the investigation of the prisoner's mental condition prior to entry of the plea of guilty, to the cellmate and the police in the conversations I have earlier described. 18 Oral evidence was not called from these witnesses before me on these matters, the various reports being tendered without objection and the views expressed were left untested by cross-examination. 19 To Ms. Duffy on 22 July 1998, the prisoner asserted that he and his wife had left Canberra and were travelling to Sydney when "a huge argument developed between them". He did not, Ms. Duffy says, elaborate on the details of the argument. She says:- "He said that he stopped the car and slashed his wrists with a knife which he had in the boot of the car. Helen apparently then tried to grab the knife from him and in doing so he was cut along the right palm of his hand. He wrestled the knife back and it was at this stage that he stabbed her twice. David then embarked on a very confused account of what he did with the body. He said his first reaction was to try and find a hospital but there was none in the vicinity. He then ascertained that she was dead, put her in the boot and drove her to Sydney. He left her in the car parked at Rozelle and took the train to Newcastle. At this stage he told a friend, Troy Palmer, what he had done, who said he 'did not want to hear about it'. He returned to Sydney, presumably by train, returned to the car with the body still in the boot, drove to Newcastle and dumped the body on the way, at Mooney Mooney. He then continued his journey to Newcastle and spoke to Peter Hillman, another friend, and the next day returned to Sydney where he handed himself in at the Ashfield police station." 20 On 26 July 1998, the prisoner informed Dr. Lucas:- "I asked him what had happened on the trip to Wollongong. He said that they had started arguing an hour and a half out of Canberra. In reply to a question about the subject matter of the argument, he said that 'she wanted a baby …'. In reply to my question about who began the argument he said, 'both went the same way - I was suicidal …'. A further question received the response, 'she wanted a child but she wanted to die too'. He said that she had wanted to die 'when we were making love in Canberra'. Apparently he did not know why she wanted to but 'I said to her the same'. They were 'sick of the family interrupting, only six weeks after marrying'. Mr. Barac spoke of the argument occurring an hour or an hour and 20 minutes from Canberra. (He told Ms. Duffy it had occurred 20 minutes after leaving Canberra.) The argument went for a good 15 minutes 'till I decided, okay now is finished'. She said 'yeah'. Mr. Barac said that's when he stopped the car at the side of the highway. At this point in the interview he said, 'I was, this is what I can't remember, drink and cocaine and all that'. I asked for more information and he said he could not remember from that point. I told him that without further information I would be unable to form an opinion with regard to his defence. He then went on to say, 'I think I want - the voices started calling me'. He told me it was 'Satan's voice'. He went to the boot of the car, 'I had to pull the knife from there'. He said this was because 'I want to kill me'. He told me the knife was always in the car as he worked as a cook and always had to have cutlery. I could get no other information at why knives would have been in his wife's car. He said he started to slash himself. He showed me a very small scar on his left wrist and also one which was scarcely obvious in his right cubital fossa. His wife told him not to. Apparently this action with the knife had occurred in the front of the car with Mr. Barac occupying the drivers seat. Mr. Barac said he had the knife in his hand, the left one, when 'she pushed my hand'. He showed me how the point of the knife had been pushed towards his throat by his wife and he had placed the palm of his right hand in front of it. He showed me an irregular scar on the palm of the right hand. He then told me that she had the knife which he had put down after slashing his wrists. He had done this as he wanted to show her he loved her so much. When I asked why she had picked up the knife he said, 'I think she was going to do to herself'. He also said that she was going to stab his neck, the reason for this being, 'I wanted to die still'. Mr. Barac then demonstrated how he had stabbed her with what appeared to be a backhand blow with the knife held in his left hand pointing downwards. He had done this as 'she wanted to die too'. He said that she was dead when he stopped. He had stabbed her in the chest or neck region, he had learned from the autopsy report. I asked what happened next. He said she was still in the passengers seat of the Mazda. He decided to try and look for a hospital as she had 'lost her voice' and was not breathing. However he only saw a petrol station. He was hoping to see a sign for Goulburn Hospital. However he drove to Lilyfield Road in Rozelle. The body of his wife was in the boot of the car where he had placed it half an hour after looking for someone to help. He saw friends and said he had had a fight with someone. He said one friend took him to Newcastle. I said that he should have been going to Wollongong but he said he had been told he would be 'sacked' from the programme and police were looking for him. He said he telephoned the rehabilitation programme in Wollongong. In Newcastle he went to friends who did not know what to do. His car had been left in Rozelle with the body in the boot. He said he wanted the police to find it there. In Newcastle he told a friend what he had done but the friend said he did not want to be involved. I asked what had happened to the body. He said when going from Sydney to Newcastle he had dumped the body at Mooney Mooney. I asked if the friend had helped, he said he had not. I remarked that the friend would have been in the car, according to the account he had already given me and he said that he had gone to Newcastle and returned to Sydney by train, looked at the car finding it was still there and had then gone to Mooney Mooney. In Newcastle he stayed for a night, was told the police were looking for him, for breach of parole, and he had then gone to Ashfield Police Station and given himself up. He said the car was left at the police station." 21 Dr. Carne, who had examined the prisoner a number of times in 1995 and 1996 and who was his treating psychiatrist in his role as visiting consultant forensic psychiatrist to the Corrections Health Service, had also had access to prison clinical notes in respect of the prisoner's psychiatric and medical conditions whilst in custody in respect of the sentence he had previously been serving. He also had the reports of Dr. Lucas and Ms. Duffy. 22 The account given by the prisoner to Dr. Carne was that the couple had left at about 4.00 am the Canberra motel, that a violent argument continued on the journey. (The account was interrupted at this point for about an hour while the prisoner had treatment for what Dr. Carne described as a frank panic attack.) Dr. Carne, in describing the account, continued:- "After about an hour and a half, they stopped the car. Mr. Barac told me that he wanted to show Helen that he did not want to live without her. He went to the boot of the car, pulled out a knife which he had there, along with some other belongings. Mr. Barac told me he wanted to die and wanted to kill himself. He told me he was very suicidal. He told me 'it was like I was possessed. Everything went black', and demonstrating to me in the interview, told me that he slashed his wrists with a knife. He told me that he wanted to show Helen how much he loved her. Helen apparently panicked at his behaviour, Mr. Barac dropped the knife into the space between the driver's seat and the passenger seat in which she was sitting. Helen then grabbed the knife. Mr. Barac thought she was going to cut herself so then he grabbed the knife, there was a struggle in which the knife lunged toward his face, he put his hand out and was cut on the palm of the hand. Mr. Barac then grabbed the knife in his left hand and swung the knife at her, stabbing her. Mr. Barac told me he was confused and mixed up. He could not believe what he had done. He said that Helen slumped back on the seat, stopped talking and then stopped breathing. At this time, Mr. Barac said he could not understand what was going through his head. He said he was not his normal mental state. He panicked and in an apparently disorganised way tried to find a hospital. He ended up driving to Rozelle but before he drove to Rozelle he put his wife's body in the back of the car so, clearly, he realised that she was dead." 23 There is evidence from Detective Sergeant Mennilli of the Ashfield Detectives and from Mr. Gus Laviano of the presence of the deceased's car in the rear yard of the premises at 9 Lilyfield Road, Rozelle. On the prisoner's accounts, when the car was observed there by Mr. Laviano, Mr. Bocska and Mr. Devitt as well as the police, the deceased's body must then have been in the boot. 24 The prisoner also gave accounts to Detective Sergeant Mennilli, Dr. Chew and Mr. Laviano. 25 When the prisoner saw Detective Sergeant Mennilli at the Ashfield Police Station on 6 April 1995, he said that the last time he had seen his wife was when they had had a fight and he took her car and drove back to Sydney. He told Detective Mennilli that he had driven in the car from Canberra and then to Newcastle it having been driven to Rozelle on the Monday. He told Detective Mennilli that the injuries to his hand had occurred in that after he had left his wife he was upset and was at a little park near Rozelle and had smashed a bottle of beer which he had in his hand. He had been examined by Dr. Chew on the morning of 3 April 1995 and had informed Dr. Chew that the injuries had been occasioned in a fight with his wife's boyfriend. He had punched the man, the man took out a knife and stabbed him. He used his hand to fend him off, he said. 26 Mr. Laviano had accompanied the prisoner to Dr. Chew's surgery. He had been told by the prisoner that he (the prisoner) had to go to Canberra to go to court for breach of parole. Mr. Laviano had been informed by Mr. Doug Kuhl who is one of the occupants of the premises at 9 Lilyfield Road, Rozelle that the deceased had rung to say that she had organised the bus transport for the prisoner to get to Canberra on the Sunday evening and that a motel had been booked. 27 Mr. Laviano sets out in his statement the account given to him by the prisoner on the morning of 3 April 1995 explaining his injuries:- "I said, 'What's happened?'. He said, 'I got into a fight and got stabbed in the hand'. He then held out his left hand and I saw wound (sic) that appeared very deep and needed medical attention. I said, 'Why did you get into a fight?'. He said, 'When I got off the bus I was met by Helen and another fella. I said to Helen, Who's this fella" he said "Who are you talking to you piece of shit?'. I said to him "Who are you calling a piece of shit your words are quite tough let's see how tough you are I'll give you a run"'. David said, 'All of sudden this guy put his hand behind his back I was puzzled and the next thing I knew he had a knife'. I didn't get any more details after that." 28 He drove with the prisoner to Newcastle and during the journey was informed by the prisoner that "when I had the fight with the bloke, Helen threw me the keys". 29 There are, despite the other inconsistencies, not all of which are explicable by an intent to deceive or to try to put things in the most favourable light, some important consistencies including that the killing occurred at a time in which the stresses of the relationship had engendered great emotion in the prisoner but beyond that it is hard to find a satisfactory basis to piece together a reliable account of these crucial events. 30 The reason for the presence of the knife and the manner of its use can be resolved however. 31 The statement of Mr. Kuhl discloses that on 6 April 1995, a narrow bladed knife was noted as missing from the kitchen drawer where it was usually kept, having been placed there after sharpening on or about 30 or 31 March at a time when the prisoner was staying at the house. Thus there was corroboration for the assertion that the prisoner had armed himself with the knife before journeying to Canberra. 32 It was the opinion of Dr. Paul Botterill, the forensic pathologist, following the post mortem that the deceased had died in circumstances consistent with death having been caused by knife wounds to the chest and/or neck region. There were four notable bodily injuries consistent with knife wounds noted by the doctor and a number of defects, as he described them, in the deceased's clothing which could be consistent with knife wounds. 33 The prisoner had clearly taken the knife with him and used it to kill the deceased. 34 It is on that material and in the light of the psychiatric and psychological opinion expressed by Drs. Lucas and Carne and Ms. Duffy respectively concerning the prisoner and having regard to the prisoner's prior criminal record of violence against his former spouse that the Crown submits that the maximum sentence for this crime should be imposed on the basis that this murder can be characterised as falling within the worst category of such cases. In particular it is asserted that I should find that the killing was premeditated and that the prisoner, having taken with him from Sydney the knife that was in fact used to kill the deceased, I should at least find that the prisoner had a pre-determined intent to inflict upon the deceased at least serious bodily harm if she refused to reconcile with him. 35 Further it is submitted that notwithstanding the psychological evidence as to the unreliability of the prisoner's accounts that I should be satisfied that the prisoner placed the deceased in the boot of the car whist she was alive and later stopped the car and again stabbed her, to silence her, killing the deceased. 36 It is further submitted that the killing was callous and unmitigated by any suggestion of provocation. 37 The plea of guilty, it is put, was unaccompanied by any real contrition, made late and in the face of a Crown case to which the prisoner had no answer and thus attracting little weight when considering the matters required by s.439 of the Crimes Act 1900. (I have already dealt with this submission and have accepted it to a great extent.) 38 It is also contended that the psychiatric evidence and the circumstances of the prior offence are such as to show that the prisoner has such a dangerous propensity that the need to protect the community requires that the sentence provided by s.19A of the Crimes Act 1900 of penal servitude for life should be passed. 39 Although s.19A(1) prescribes that the maximum penalty for murder is penal servitude for life, s.442 of the Act authorises the passing of a lesser sentence. However, by s.19A(2), a person sentenced to penal servitude for life for the crime of murder is to serve that sentence for the term of the person's natural life. 40 Section 431B(1) of the Crimes Act 1900 was not in operation at the time of this offence. It provides:- "A court is to impose a sentence of penal servitude 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.". 41 Section 431B(7) provides:- "This section does not apply to offences committed before the commencement of this section. 42 Therefore it will be necessary to examine the case law which applied prior to the commencing in operation of s.431B and that case law particularly required the examination of the heinous features of the crime: Regina v. Garforth (CCA, unreported 23 May 1994) and the dangerousness of the prisoner: Veen v. The Queen (No. 2) (1987-1988) 164 CLR 465. The Crown submits those matters can only be properly considered in the context of the attack on the prisoner's first wife. I therefore turn to the circumstances of the prior offence and to the other evidence concerning the prisoner's background, make up and to assess his dangerousness. 43 The prisoner was born on 20 August 1966 and in New South Wales has a conviction for stealing on 14 July 1989 for which he was fined $300. On 3 December 1992, he was fined $400 for a domestic violence assault and on 26 March 1993, on his plea of guilty, he was convicted on one count that he did maliciously wound his then wife Joanne Barac with intent to inflict grievous bodily harm upon her and had taken into account an associated offence which the sentencing judge categorised as "what might be described in short terms at least as the kidnapping of his estranged wife, the said Joanne Barac, at the same date and place". He had been, the previous day, dealt with by the Newcastle Local Court for breach of a domestic violence order in respect of which he received a fixed term of imprisonment of 14 days. For the malicious wounding and taking into account the kidnapping, the learned District Court judge sentenced the prisoner to penal servitude for four and a half years to date from 22 September 1992, being the day on which the prisoner had gone into custody, and specified as a minimum period two years, expiring on 21 September 1994. 44 The background to that sentence and the facts of the offence were dealt with by the sentencing judge in some detail. The offence had arisen out of the breakdown of the prisoner's marriage and that was, at least, in part due to, and certainly exacerbated by, the prisoner's compulsive over-indulgence in alcohol. The couple had previously separated and the prisoner's wife was driven to live in a refuge. The marriage had been attended by a degree of violence and indeed, although a domestic violence order had been made, on the very day that the order had been made and acknowledged by the prisoner, he breached it making life threatening statements to his wife. 45 Upon receiving bail for that breach, he breached the order again. His Honour considered that the prisoner was a compulsive character on the subject of communicating with his wife, not willing to be bound by the shackles of orders preventing him from approaching her. The prisoner had given evidence in the District Court that he was in the habit of going and spying upon his wife and child and had gone to their home on 21 September equipped with a knife with "revenge in his heart" because he was angry about not being given access pursuant to some arrangement. He had prepared by dressing in black and had been drinking. When he saw the gentleman who was then living in the house with his wife, as a boarder, he lost any vestige of control. He circled the house seeking a way to do harm to this man. When his wife and 18 month old child arrived at the home he attacked her, striking her blows to the head, knocking her to the ground and stabbing her with such force as to break the blade of the knife from the handle. She feigned unconsciousness and death but he forced her to her feet, bound her, forced her into the car, allowing her from time to time to tend to the child and took her back to another house there detaining her. 46 These events occupied a period of some hours during which time he was continually displaying and menacing his wife with knives. The learned District Court judge categorised the offence as one of extreme gravity. It is punishable by a maximum penalty of 25 years penal servitude and was committed not only whilst the prisoner was the subject of a domestic violence order but on conditional liberty for having breached that. It was an offence committed with more than one knife. His Honour, however, was of the view that the seriousness of the offence was mitigated by the subjective elements. He accepted complete and utter contrition and co-operation, the willingness of the prisoner to endeavour to come to terms with alcohol but was of the view that the sentence necessitated a component to mark the seriousness of the offence and to deter the offender personally. 47 How effective the orders of the courts including his Honour's order have been in this man's case can be gauged not only from the circumstances in which the prisoner committed that offence but from the short period of time following his release before the commission of this offence and the fact that he was again the subject of conditional liberty at the time of the commission of the offence. 48 Again, to me and also to the deceased's family, the prisoner expressed contrition. Tendered in evidence at the plea were undated letters addressed to the deceased's family referring to the prisoner's suicidal intent and the hearing of voices. His mental condition, as I later relate, is such that whilst I accept that he is genuinely protesting his contrition, I do not accept that what he feels is the emotion of contrition as normally understood. 49 Whilst in custody the prisoner was considered to be a serious suicide risk and was detained in the Long Bay Prison Hospital. He was diagnosed as having an adjustment disorder with histrionic and anti-social personality traits by the Corrections Health Service who furnished psychotropic medication to him after a serious suicide attempt on or about 14 July 1998. 50 Whilst in custody the prisoner has attended various alcohol and drugs programmes including Alcoholics Anonymous and Narcotics Anonymous meetings. He had participated in peer support network, anger management programme, HIV and health promotion information workshop, drink drive prevention programme and stress management, receiving in each case an appropriate certificate. He had attended church services and had obtained a head sweepers job being courteous and respectful to the Chaplain. 51 The assessment by the alcohol and other drug workers report of 17 July 1996 to the Offenders Review Board based on a history given by the prisoner notes that he commenced use of cocaine, cannabis and tranquillisers during his teenage years at school in Peru and heroin and hallucinogenic use in 1986 when in Israel. He has a history of extensive abuse of those drugs and alcohol. He was a product of a family where the father was an abuser of drugs and alcohol and quite often physically assaulted his mother. The prisoner had informed the Service that his utilisation of drugs produced episodes of aggressive and violent behaviour, blackouts, indiscriminate drinking, relationship and financial problems and criminal activity. 52 As at the commission of the offence for which he was dealt with by Judge Freeman, he had apparently that day consumed two 750 ml bottles of spirits as well as smoking pot and snorting cocaine. 53 It would appear that with the effects of alcoholism and drug misuse, the prisoner produces violent and aggressive behaviour as a totally inappropriate reaction to conflict situations. 54 The report of 17 July 1996 was prepared to assess the prospect of the release of the prisoner to parole. Even without the benefit of the psychiatric and psychological opinions now tendered and the circumstances of the offence before me, it recommended a structured long term rehabilitation programme and particularly a need for long term intervention in regard to cognitive and behavioural change, whether in the community or in gaol. It is quite apparent that that assessment and the mechanisms suggested in the recommendation were of little utility to modify the reaction of the prisoner to the stresses experienced by him arising from his emotional attachment to his wives. 55 The views of Dr. Lucas and Dr. Carne and Ms. Duffy are of assistance to ascertaining the prisoner's subjective circumstances and potential dangerousness. 56 Ms. Duffy in her report of 30 July 1998 set out in considerable detail the prisoner's prior history and in particular refers to his meeting his second wife at Junee Gaol in 1993 where she was an English teacher and had taught him English as he taught her Spanish. What follows is taken from her report. 57 Following his release on 21 September 1994, they lived at Potts Point as she by then was working with Coopers & Lybrand. Following the marriage, he worked as a chef at the Messaluna Restaurant for some six months until they moved to Adelaide in February 1995 to live together whilst he applied to study as a minister of religion in the Wesley Mission in Adelaide. It was on the way to Adelaide that, according to the prisoner, the family sought to disrupt their married life and it was as a consequence of the family's lack of acceptance of him that he decided to leave his wife and return to Newcastle to stay with friends. He went on 6 March 1995 to an alcohol rehabilitation programme at Wollongong at Kedesh House and was required to participate in an appropriate programme whilst on release as a condition of his parole. 58 He had attempted suicide on three occasions whilst in custody following his arrest for the present offence and over the years asserted he had suffered with chronic depression in concert with long term alcoholism turning to religious communities including in particular the Pentacostal Church. He had asserted that he had been hearing voices from the age of 13 or 14, having been placed in a psychiatric hospital in Peru after he had heard voices telling him to shoot people. He had heard voices in Israel telling him to destroy a disco and spent six months in a psychiatric hospital as a consequence. 59 His Corrective Services medical file refers to symptoms of depression, anxiety and borderline personality disorder, together with references to hearing voices. But these are often accompanied by notes indicating he may be manipulative and attention seeking. There are references in the papers to assertions of his mother's death, notwithstanding it may well be that she is alive, though not well and living in Israel. 60 The general tenor of those notes, according to Ms. Duffy, indicates demanding, impulsive, attention seeking behaviour often accompanied by requests for medication, 'with growing agitation he faces his court appearances'. All the psychiatrist's notes seem to indicate no evidence of psychosis, rather a personality disorder, reactive depression and anxiety. 61 The prisoner had spoken to Ms. Duffy of voices in his head prompting him to kill the deceased before he himself was killed. Ms. Duffy, however, points out that his hearing voices has been referred to frequently in his prison medical file but little credence has been made of them apart from manipulative or attention seeking motivations. The notes, according to Ms. Duffy, make much of the prisoner's tendency to get very angry when things do not go his way. She concludes:- "He is certainly a very dependent personality, who, since his separation from Helen, appears to have been attempting many strategies to be reunited with her." 62 Ms. Duffy concludes that he is a person who is highly jealous, possessive and insecure, the subject of a pattern of self-pity, dejection and stubbornness punctuated periodically by angry outbursts. She does not accept his instances of hearing voices or assertions of being led by Satan and that his personality disorder makes him extremely susceptible to rejection and thus to feelings of depression, fear and anger. 63 The clinical notes from the Prison Medical Service, the Newcastle Mater Misericordiea Hospital and Ms. Duffy's report were made available to Dr. William Lucas who, after interviewing the prisoner, concluded that he did not have any psychiatric defence and after having regard to the statement of facts, the transcript of the conversations with the cellmate, type-written notes by Mr. Barac about his background, the offence and related matters provided to his solicitor, and the alcohol and other drug workers report referred to above, shared the view of Ms. Duffy that:- "As much objective verification as possible is needed in David's case as he tends to be rather histrionic, manipulative and over-embellish." 64 There were clear inconsistencies between what the prisoner gave to Dr. Lucas by way of psychiatric and medical background and that which he had given to Ms. Duffy. However, once again, he asserted prior psychiatric conditions in Peru and Israel, the abusive family background and the hearing of voices. It is notable that he informed Dr. Lucas that the knife he used in the killing was used as the voices were calling to him and had been obtained from the boot of the car where the knife was always kept as he worked as a cook. As I have set out above, he told Dr. Lucas he started to slash himself and showed Dr. Lucas a very small scar on the left wrist and one which was scarcely obvious in the right cubital fossa. He said that his wife had pushed his hand pushing the point of the knife towards his throat causing him to jab the knife into the palm of his right hand and that that was how the injury seen by Dr. Chew was occasioned, that she had obtained the knife and he further gave Dr. Lucas a confused account of a belief that she was going to attempt suicide or was going to kill him and that he had stabbed her as "she wanted to die too". He said to Dr. Lucas that she was dead when he stopped stabbing her. He said he had tried to look for a hospital but saw only a petrol station and was hoping to see a sign for Goulburn Hospital but drove from Goulburn to Rozelle. The inconsistency of his account concerning how the body came to be placed at Mooney Mooney was noted by Dr. Lucas. His accounts of his background to Dr. Lucas include assertions of his brother having committed suicide, his father committing suicide, his sister attempting suicide, his mother being, variously dead, in Colombia or in Israel. His presentation to Dr. Lucas at interview led to Dr. Lucas observing"- "It was at least possible he was attempting to simulate a major psychiatric disorder." 65 Dr. Lucas did not accept the assertions of psychotic symptoms and in particular command hallucinations at the time of the stabbing. Dr. Lucas concluded that the prisoner was suffering from a relatively severe personality disorder, probably borderline in type but with anti-social and histrionic traits accompanied by a considerable degree of lability of mood and vulnerability to reacting adversely to life events. Dr. Lucas concluded that the prisoner had now accepted the reality of his legal situation and that during the lengthy period of imprisonment that was inevitable it would be necessary for the prisoner to continue with appropriate drug and alcohol programmes and psychological counselling; that his personality is such that there will be difficult periods during imprisonment and a need for psychiatric assessment and treatment. 66 For the future, Dr. Lucas said:- "His psychiatric prognosis is guarded but the manifestations of personality disorder often ameliorate with time. I am not in a position to predict how Mr. Barac will progress over the years and there are indications that his prognosis must be guarded. When he finally returns to the community he will require supervision and he will need to adhere to conditions which almost certainly would be imposed with regard to his use of alcohol and drugs. His prognosis with regard to future violent conduct will depend not only on the degree to which his personality resolves but also his ability to abstain from alcohol and drugs and his ability to handle future personal relationships. The possibility of violence towards women is likely to be a continuing concern." 67 Dr. Lucas was asked by the prosecution in consequence of being furnished a copy of the sentencing remarks on the charge of malicious wounding I referred to above, whether that material affected the views he had expressed as to the prisoner's prognosis. Dr. Lucas noted that the account of the circumstances leading to the offence given to him by the prisoner was inaccurate in a number of respects and that the facts of that 1992 offence contained a number of disturbing elements of relevance when related to the facts underlying the murder of his second wife. In both cases the prisoner had been abusing alcohol, notwithstanding supervision and a rehabilitation programme after release in 1994. In both cases the marriage had broken down. In both cases the offences involved the use of a knife and premeditation to the extent of having available a knife. In both cases the prisoner was not obeying the lawful restrictions placed on him. The contrition expressed after the first offence did not apparently lead to insight such as to avoid the second offence. As a consequence, Dr. Lucas re-evaluated his former conclusion saying:- "In my opinion, Mr. Barac's psychiatric prognosis with respect to his severe personality disorder, marked by antisocial and borderline traits, and his abuse of alcohol and possibly drugs, must be considered at best very guarded and may be poor. His history of violence to his first wife, the murder of his second and his non-compliance with conditions placed on him is of great concern. Measures aimed at controlling his use of alcohol and drugs after his 1992 offence ended in failure. The problems experienced by myself and others in obtaining accurate and consistent information about his background suggest further efforts at treatment and rehabilitation will be difficult. With this constellation of problems, it is difficult to predict if the passage of time will have a favourable effect on Mr. Barac's personality and his ability to behave responsibly in relationships and avoid abuse of alcohol and drugs. A central issue is his propensity to react with violence when feelings of rejection and perhaps jealousy arise during relationships with women. Independent or well corroborated information about his background should be sought by those caring for him so a better assessment of his problems can be gained." 68 Further, there was on behalf of the prisoner in evidence, a detailed report from Dr. Carne, psychiatrist, who was also of the view that the prisoner had a severe personality disorder and a substantial substance dependence involving the turning to violence and the suffering of pathological jealousy accompanied by panic attacks and possible brief psychotic episodes. He too expressed the view that personality disorders do tend to ameliorate with age, particularly at middle age and that the prisoner's problems with alcohol and substance abuse require he remain abstinent and receive appropriate drug and alcohol psychological counselling and psychiatric treatment. He expressed the view that there is considerable rehabilitative potential but that without an extended period of rehabilitation there is a serious risk that the prisoner would return to drug and alcohol abuse, relationship problems and during periods of intoxication would suffer similar episodes of pathological jealousy and violence. He contends that a period of custody during which the prisoner abstains, is counselled and, if necessary, treated is probably an important component of any rehabilitation. He was further of the view that an extended period of parole with close monitoring is essential together with an appropriate condition of abstinence from substance use. He concluded by pointing out that there is evidence that newer medication and abstinence from substance abuse over several years of treatment can offer prospects. I accept the views of Dr. Carne and Dr. Lucas. 69 None of the psychiatric or psychological evidence refers to the precise or even the general extent of such a period as would be required to have the requisite effect but it is obvious that it would be very long indeed and necessarily to be considered in the context of the natural progress of age in the prisoner and its effects. All of that evidence establishes the prisoner's lack of credibility, indeed because of his condition that lack is probably constitutional. It is clear that the prisoner is entirely vulnerable to the effects of emotion and liable to homicidal violence because of it. 70 It is in that context that the Crown submits that the sentence provided for by s.19A(2) should be passed, submitting that this is one in the worst category of cases: (The Queen v. Baker (CCA, unreported 20 September 1995)), in that it is accompanied by particular features of very great heinousness and it is possible to postulate the absence of facts mitigating the seriousness of the crime: (Regina v. Twala (CCA, unreported 4 November 1994)). It is submitted that the use of the knife was premeditated and the entire occasion in the ACT was staged to permit an attack and that such findings would support the heinousness necessary on the case law to be found for the s.19A(2) sentence to be passed. It is submitted that the facts as found in respect of the 1992 offence should enable similar conclusions as to the circumstances of the present offence to be drawn. In particular it is submitted that I should conclude that the reason for the prisoner arming himself with a knife before meeting the deceased should be seen as akin to the reason he gave in respect of the 1992 offence, ie. "with revenge in his heart"; and that there is a pattern of deliberate disobedience of the law, in particular of orders seeking to prevent the recurrence of violent attacks, such that the moral culpability of the offender in the instant case and a dangerous propensity on his part are demonstrated showing a need to impose condign punishment to deter him and others: Veen v. The Queen (No. 2) (supra) at 477 was cited. 71 It is submitted that the evidence from Dr. Lucas and Dr. Carne is such that the necessary risk of danger, ie. dangerous propensity, in the context of the evidence of the features of the two crimes is established and that the best predictor of future dangerous conduct is past dangerous conduct. It is submitted that Dr. Lucas' "very guarded" prognosis is such that as to mitigate against extending leniency and in favour of a prediction that the offender will remain dangerous. As to the conclusion of Dr. Carne, the Crown cites a passage from the judgment of Mason, J. (as he then was) in Veen v. The Queen (No. 1) (1979) 143 CLR 458 at 469 approving a passage from the judgment of Gibbs, J. (as he then was) in Regina v. Pedder (Queensland, CCA, unreported 29 May 1964). "'Even in cases where it is hoped that mental treatment may so ameliorate the condition of the offender that it would eventually be safe to discharge him, although it is not known how long it would take to achieve this result, it may still be necessary, in the present state of the law, for the court to impose a sentence of life imprisonment, if that is not otherwise inappropriate to the circumstances of the crime, rather than let loose a man whose abnormality of mind may lead him to commit further killings.' His Honour went on to say (at 469):- 'The court imposes a sentence of life imprisonment on taking account of the offender's record, his propensity to commit violent crime, the need to protect the community and the very serious offence of which he stands convicted.'" 72 As to this last, it is to be remembered that his Honour, Gibbs, J. in Pedder (supra) and what their Honours in the High Court were speaking of was, as was made express both in their judgments and that of the sentencing judge, a sentence liable to amelioration by release on licence often at a comparatively early date. They were not speaking about the type of sentence now provided by s.19A of the Crimes Act. The observations cited cannot be understood as referring to a situation where the prisoner is "never to be released" whether his condition might or might not be the subject of amelioration such that it would eventually be safe to discharge him. Even then, Veen (No. 1) (supra) was a decision which concerned that degree of satisfaction necessary to be established on the evidence of the likelihood of further offences before the life sentence as it then existed, might appropriately be passed, (in the context of an offender being deprived of leniency to which he might otherwise have been entitled by reason of future dangerousness). 73 The Crown submission as to the surrounding circumstances of this offence and the submission that I should find premeditation, that is, that the knife was taken for the purpose of killing or inflicting grievous bodily harm unless reconciliation occurred, does not sit well with the corroborated length of time during which the prisoner and the deceased were together apparently without violence in Canberra prior to leaving on the car trip to return to Sydney. 74 There can be no doubt that the knife was taken with a view to some form of violence. Whether by way of suicidal violence or homicidal violence or both, pre-determined, contingent or vaguely both is not at all clear since I consider the other evidence does not establish or support any of the particular scenarios asserted by the prisoner, and I have difficulty in accepting in many respects even the broad details of his various accounts. But even considering that, the prisoner did not give evidence and that this failure may be to some extent explained by his psychiatric condition such that he may not, at least now, know what truth is and what is merely his own histrionic and false account, on the evidence I do not find beyond reasonable doubt that there was an intention, pre-existing the crime, to kill or seriously injure his wife by way of revenge or even contingently unless she reconciled with him. The evidence is not inconsistent with an attempt to act out some dramatic display of suicide or attempted suicide. The evidence does not allow me to conclude that there was premeditation in the sense of a planned killing, or a planned or determined occasion for such a thing, although it is clear enough that the knife was taken to a meeting fraught with emotional explosive potential. It is also clear that the prisoner should have realised the terrible dangers associated with his own psychological make up and predilections including to substance abuse. His is obviously a personality that at present is dangerous in the context of his emotional links with his partners and the apparently irresistible pressures his personality and addictions impose on these links. 75 I am not satisfied beyond reasonable doubt of circumstances of heinousness or aggravation such as are discussed in Garforth (supra) and Twala (supra). On the evidence I am not satisfied that the killing in this case did not occur as a result of an emotional eruption in which the prisoner's psychological condition allowed him limited control. The psychiatric opinion supports such a scenario. 76 I have had regard to what was said by the Court of Criminal Appeal in Baker (supra) and although I am cognisant of what Allen, J. said in his dissent, the judgment of the Chief Justice and Barr, J. dealing with the criteria for offences of murder of the "worst category of case" leads me to the conclusion that this present crime whilst not in that category, approaches it closely, particularly in the context of the previous offence and the matters observed by the psychiatrists. This, however, is not the end of the matter because the very propensity to homicidal rage in the absence of emotional controls and when afflicted by stress leads to considering the very matters dealt with by the High Court in Veen (No. 2) (supra), ie., dangerousness. The prisoner's mental condition and prior circumstances are no doubt the explanation at least in part of his present potential for violence. Thus these matters do not mitigate his culpability. I regard the prisoner as he is as a danger. The evidence does not persuade me that the prisoner will remain a danger forever or remain beyond rehabilitation. The unchallenged psychiatric evidence does cause me to be persuaded that the sentence the Crown submits should be passed is not the appropriate answer to the problem for the following reasons. 77 The courts have remained aware of the terrible significance of a sentence of life imprisonment. The Crown has provided me with a schedule of sentences for murders occurring in highly emotional circumstances and often with preceding offences. The life sentence or indeed sentences of more than 18 years are rarely imposed. Courts have required extreme, eg. worst case culpability or unacceptable dangerousness to be proved for life sentences. 78 Judicial discussions of the life sentence have rarely examined the inflexible sentence requiring the continued custody of the offender for the term of natural life and without prospect of release. More usually, the discussion deals with a life sentence in which the institutional custody may be determined to permit release on supervised conditional liberty for the rest of life. 79 For the passing of the inflexible sentence of life, it has been held it is not necessary that there should be no prospects of rehabilitation or that the crime is in the worst class of cases. Either is sufficient, but in those circumstances, for the crime to be in the latter class, one 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": Garforth (supra), it must (as was submitted by the Crown) in order to categorise any case as being in the worst case category (and so attracting the maximum prescribed penalty) be possible to point to particular features which are of very great heinousness and the absence of facts mitigating the seriousness of the crime: Twala (supra). In the former case, it must be remembered that the law does not permit the imposition of a sentence of preventative detention but the very nature of this crime and a postulated lack of prospects of rehabilitation means one is dealing with an offender with a real and high dangerous potential. However, danger to the community has to be assessed as countervailing other factors (Veen (No. 2) (supra)). It is necessary to look to the danger in the context of protection of the community and thus because of custodial restraints, supervision and treatment, the time of possible release is the time of greatest concern. 80 Recently, the High Court in Mitchell v. The Queen (1995) 184 CLR 333 at 346-347 considered the appropriateness of sentences of "strict security life imprisonment" with the possibility of parole as appropriate under Western Australian legislation. The Court of Criminal Appeal had held that there was an overriding factor of risk to the community and said that it was necessary for the court to act on a footing established in the evidence that there was at least some potential for rehabilitation when assessing the balance to be struck between the circumstances of the offence and the factors militating in favour of the possibility of parole, including whether the more general and objective factors relating to punishment outweighed the potential of the appellant to be rehabilitated through the medium of parole. The High Court, however, considered that the trial judge correctly had regard to the possibility of the later emergence of facts, presently unascertainable, but which might emerge about 20 years or more hence, which might then indicate that the appellant no longer constitutes a danger to the public and is otherwise deserving of release on licence. I bear this in mind. 81 I also bear in mind what the Court of Appeal of the Supreme Court of Victoria in The Queen v. Pickard (1998) VSCA 50 (28 September 1998) in the judgment of the President and Charles, JA., said:- "Almost every day sentencing judges assess and balance risks of re-offending and prospects of reform as part of the intuitive process of sentencing without the need to articulate their findings in terms of standards of proof. But if there is a dispute and the judge resolves it adversely to the interests of the accused by assessing the risk of re-offending to be such as to warrant an aggravation of penalty then the judge must be satisfied of the existence of such an aggravating factor according to the standard of which the majority spoke in R. v. Storey [1998] 1 VR 359 at 371. With great respect, we do not agree with Callaway, JA. that their Honours in the majority in Storey were speaking in their judgment only of what his Honour calls sentencing facts, or that the principles laid down were not intended to apply to such matters as a likelihood of re-offending or prospects of rehabilitation. Both of these matters were in our view clearly adverted to in the majority judgment at 365-366, in a lengthy passage which included reference on three occasions to the sentencing issue, whether the prisoner's condition (or personality) was such that he or she might be a danger to the community. An assessment by the judge of the risk of a prisoner re-offending is not a feat which requires any refinement of thought process. If the judge is satisfied that the accused constitutes such a risk that the penalty to be imposed should reflect an aspect of specific deterrence, it will be because he or she has no doubt that the accused poses such a risk. In our view, it is not a question of distinguishing between degrees of risk. It is simply because the judge perceives that the risk is such that the penalty should be one which will deter the accused from re-offending. The greater the judge perceives the risk to be, the more heavily specific deterrence will weigh in the instinctive decision as to the appropriate sentence. This says no more than the majority decided in Storey's case (supra)." 82 As was the trial judge in Twala (supra), and as I have already noted, I am entirely sceptical of the prisoner objectively being remorseful. He no doubt feels and expresses immense loss and sorrow from time to time but I, cannot escape the impression created in part by his own letters to the deceased's family and in part by the psychiatric evidence, that what he feels is a self-centred sorrow for his self-created lot and loss. I am greatly concerned at the prospect of any early release of this prisoner back into the community where he might repeat the cycle of emotional dependence, grievance and retaliation. 83 This, like the crime in Twala (supra) was a violent and horrible killing, clearly influenced by the prisoner's psychological condition and the dependence by him on his wife. In this matter, unlike Twala (supra), I do not conclude that there was a prior intention determined on to kill or injure the victim. 84 In considering whether to impose the life sentence or a determinate sentence with a lengthy component that must be spent in custody, coupled with a lengthy period within which the prisoner might, if considered suitable, be released under supervision, I have specific regard to what was said (concerning a determinate sentence) by the Court of Criminal Appeal in Twala (supra):- "In determining the sentence it is important also to bear in mind that the setting by the sentencing court of a minimum term does not produce the result that the prisoner will automatically be released at the conclusion of that period. It will then become a question for the Offenders Review Board to determine whether he is fit to be released and on what conditions. In making that determination, many years into the future, the Board will have the advantage of up-to-date psychiatric assessments as well as a great deal of hindsight not presently available to this court." 85 Those observations have particular significance in the light of the observations I refer to above from the High Court in Mitchell (supra) and the Victorian Court of Appeal in Pickard (supra). 86 The evidence before me does satisfy me that the prisoner at present represents a real danger in the community were he to be released and therefore able to have resort to the abuse of substances with which his life has hitherto been accompanied. Were he to be subject to emotional stress arising from a relationship, it seems to me he might represent a real danger to a loved one. However, the sentence that I am minded to pass and the non-parole period is of such duration that it appears to me that consistent with what has been said in those cases an appropriate synthesis of the various principles I have referred to can be achieved. 87 I am unable to conclude that there is an absence of real prospects of eventual rehabilitation. As the prisoner ages, I do conclude that appropriate treatment has a prospect to assist to modify his behaviour and relieve his condition. I accept that the prisoner is prepared whilst in custody to work towards that rehabilitation but I endorse the views expressed by the psychiatrists that he should not be released, without having been subject whilst in custody and whilst on parole, to appropriate mechanisms to minimise any prospect of re-offending. It would, of course, be imperative that if he is to be released on parole it should only be done subject to some such mechanisms. 88 Having regard to the objective circumstances of the crime, the prior offence and the outrage to the community such a crime occasions, further having regard to the necessity to protect the community through ensuring the rehabilitation and deterrence of this offender as well as others, and having regard to the prisoner's age and psychological circumstances, I am of the view that the circumstances of this offence, in which I include the prisoner's vulnerability to stressors inducing violence, a lack of control such as to negate the effects of conditional liberty and any emotional restraint (as evidenced in both this and the prior matter), the susceptibility to substance abuse; and further having regard to the necessity for a lengthy period of time to enable the necessary effects by way of rehabilitation and deterrence to occur, I consider that the prisoner should spend in custody at least the period of 20 years. 89 I am of the view, therefore, that the prisoner should be sentenced to a minimum term of imprisonment of 20 years to date from 26 May 1997. 90 Bearing in mind what I have said concerning the prisoner's addictions, psychological make up, the length of time he will be in custody and what it is envisaged he might need in custody for rehabilitation and for personal deterrent to operate in the context of his personality disorder, I am of the view that there should be an additional term exceeding one-third of the minimum term. I am of that view on the basis that these matters constitute special circumstances. There will be for those reasons an additional term of 10 years during which the prisoner may remain in custody but during which it would be open to the prisoner to be released into the community under supervision. 91 David Samuel Barac, you have pleaded guilty to the murder of Helen Cusack. For that crime you are sentenced to penal servitude for 30 years. That sentence comprises a minimum term of 20 years which, I direct to commence on 26 May 1997 and which will expire on 25 May 2017 together with an additional term thereafter of 10 years, expiring on 25 May 2027. The earliest date upon which you will be eligible for release on parole is 25 May 2017. 92 The effect of this sentence will be that you will remain in custody for at least the 20 years I have referred to but may be allowed to be released during the subsequent 10 years. If so, you will be allowed your liberty only subject to supervision and only in the event that the proper authorities reach the view that your release might appropriately be ordered.

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