REGINA v. CARR [1999] NSWSC 396

CARR -10- IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

JUDGMENT HIS HONOUR: 1 The applicant Paul James Carr makes application pursuant to s.13A of the Sentencing Act for the determination of a minimum term and an additional term in lieu of the sentence of penal servitude for life imposed upon him by Mathews, J. on 29 July 1988 in this court at Newcastle. 2 That sentence was imposed upon him by her Honour for the murder of Frederick Schmidt on 21 September 1987. 3 The sentence was imposed following a trial at which the applicant pleaded not guilty. He was convicted following the jury's verdict of guilty. 4 He had, in an unsworn statement, asserted that he was not present at the time of the killing. Her Honour held, and I quote from her remarks on sentence:- "It was a brutal, savage and unprovoked attack upon this man. He took some steps, it seems, in the earlier stages of the confrontation with you to defend himself but the injury which was finally inflicted which led to the death of this man, namely the cutting of his throat, was done at a time when he was either unconscious or approaching unconsciousness. As such it was a vindictive and savage attack, and there are no circumstances at all which can in any way diminish your culpability for this offence". 5 Her Honour held that the killing was brutal and unprovoked. A completely unnecessary tragedy for which the applicant bore the entire responsibility with no mitigating features whatsoever. 6 Her Honour referred to the motive for the killing, having been a grudge nursed by the applicant as a consequence of an earlier dispute with Mr. Schmidt, which had led to the applicant being charged with the offence of maliciously wounding Mr. Schmidt and being sentenced by a magistrate to 12 months imprisonment, of which he served a minimum term of six months. 7 That malicious wounding, her Honour noted, had involved a stabbing of Mr. Schmidt which she described as, "not particularly serious(ly)". The learned magistrate had described the wounding as, "in a manner which showed a reckless disregard by you". 8 Mathews, J. adverted to the applicant's not particularly long criminal record. That record, as well as the malicious wounding offence I have referred to, also referred to some minor matters of dishonesty as a child in Victoria and the ACT, and traffic offences in Western Australia, as well as the offence of cultivate cannabis. 9 Her Honour pointed out that, "albeit that you are still only very young, being only 21 years old, nevertheless my hands are tied". Her Honour was adverting to s.19A of the Crimes Act as it then stood which required that in the absence of mitigatory circumstances found by her she was to pass the penalty of penal servitude for life, which penalty she did pass. 10 The sentence dated from 1 October 1987. 11 It is common ground before me that that date was both the applicant's arrest date, first day in custody, and the first date on which the applicant was remanded in custody. 12 Any minimum term and additional term will comprise a sentence which, pursuant to s.13A, shall commence on that date. 13 The application is not itself opposed by the Crown. It is accepted that a minimum term should be imposed to date from that date together with an additional term, and it is further accepted that in this case the additional term should be less than life, an additional term which, peculiarly to such applications, is available. 14 The sentence of penal servitude for life will be replaced by a minimum term and additional term which I impose pursuant to s.13A. 15 I am required, in considering this application, to have regard to all of the circumstances surrounding the offence for which the life sentence was imposed and all offences wherever committed of which the person has been convicted at any time, so far as this information is reasonably available to the Supreme Court. 16 In this regard there has been tendered to me the prisoner's Corrective Services record which includes, as well as disciplinary offences within the gaol system, offences of assault on 6 July 1990 dealt with at the Maitland Local Court for which he received four months hard labour, and malicious damage to property on 27 March 1995 at the Cootamundra Local Court for which he received one months hard labour. I have regard to those matters and I have regard to his conduct and behaviour whilst in custody, which conduct and behaviour has included, on occasions, a conscientious refusal to submit himself for urinalysis, the possession of equipment for the administering of drugs, the detection of the use of cannabis, and on two occasions the possession of sharpened pieces of metal as well as other contraband. Those two sharpened pieces of metal being described as "shivs". The evidence before me is that he had those last items for his protection in a difficult gaol environment. That evidence is not assailed by the Crown, although regard to it is urged upon me on the topic of rehabilitation. 17 Section 13A(9) requires me to have regard to the report and the supplementary report made by the Serious Offenders Review Council. They have been tendered and are Exhibit B. I have had regard to them as I must. 18 The additional material to that report from the Council which is contained as part of the documentation in Exhibit C and is digested on the one page document headed "Supplementary Documentation from Serious Offenders Review Council". 19 The report discloses, in the various other matters to which it adverts, reference to the early years of the inmate's imprisonment which were characterised by unruly and abusive behaviour and difficulty in conforming with the institutional regime. 20 It comments that for much of his time in custody the applicant has not been a generally serious management problem. It refers to the recent drug offences and matters that have precluded his classification advancing further than it has. It refers to a necessity for monitoring management and progression, perseverance with drug and alcohol counselling and development, a management plan for progressive reduction to classifications leading eventually to the applicant's inclusion in unsupervised temporary leave. 21 Nonetheless, it is clear that any such temporary leave will not occur for a substantial time and that there is a doubt, or question mark, to some extent, cast upon the applicant's prospects for complete rehabilitation, as submitted by the Crown, by his continued insistence on his innocence of the offence. 22 In my view that is of most limited significance overall in the context of this applicant's present application, since he had, in an interview with Dr. Lucas, whose report is Exhibit 2, expressed the view that although he had been angry about his conviction initially that was over and done with. He did not believe the evidence against him proved his guilt beyond reasonable doubt. He expressed some dissatisfaction with some facets of that evidence. 23 It is sufficient for the purpose of dealing with this aspect to say that on a reading of the crucial answer in the unsigned record of interview where he allegedly confessed his guilt to a police officer, and considering some of the matters contained in the statement of facts, which is Exhibit A, concerning the evidence of one of the witnesses at the trial, whatever be the fact of the applicant's guilt, one could understand some dissatisfaction of that sort with the evidence. However, he told Dr. Lucas that his sentence left him with two choices; to do his time and get out of prison to begin work; or to hang himself. He chose the former option. 24 He discussed the matter in a way which led Dr. Lucas to accept that suggested he had come to terms with what he saw as his situation and although unhappy about it he was not noticeably bitter. 25 He expressed remorse that Mr. Schmidt had died, albeit he did not express remorse at his having killed Mr. Schmidt. 26 He gave evidence before me. As he had before Dr. Lucas he expressed the view he wished to work towards eventual release from prison so he might join his family, or such of them as remain, in Queensland. 27 His upbringing, detailed by Dr. Lucas, and as appears from the other documentary material, indicates that he had had a childhood without the benefit of some of the advantages others had received. Dr. Lucas concluded that he comes from a disrupted and emotionally deprived background, and was in a fair amount of minor trouble at a young age. He has realistic plans with regard to the future in prison, and on the face of it Dr. Lucas concludes:- "One would think that with support from his family and a parole officer he should be able to make a successful return to the community. He has expressed willingness to seek and accept help and resume work satisfactorily. There is evidence he has settled down over the years." 28 The Crown Prosecutor does not assert that there is an aggravating feature to the offence of the accused having deliberately brought the knife to the scene. The Crown does assert that the accused deliberately went to the scene and sought to carry out an intent formed prior to attack on the deceased. 29 The killing, on its face, clearly involved an intent to kill. One can only say that that intent seems to have been formed at some time during the assault and that the knife appears to have come to hand at some time during the assault. 30 It was a brutal and horrible killing, as her Honour has said, and there is, in terms of objective culpability, no matter with which one would disagree, in what her Honour has said about it. 31 But before her Honour there was little as to the subjective circumstances because of the legal parameters of the task she was then undertaking. Before me there is the material from Dr. Lucas, and the material provided by the Crown as to his circumstances in custody, and the material provided in Exhibit 1 by way of certificates of his attainment and skills acquired whilst in gaol. These have included, reading, completing the alcohol and other drugs peer education programme, the peer counselling programme, ceramics-building programme, oral communication programme, basic food skills TAFE programme. And the applicant has shown himself whilst in gaol to be a multi-faceted gaol tradesman, working in many skilled jobs and in positions of trust, including, on occasion, as a head cook and as a plumber. 32 He is now 31 years of age. His age at the time of the commission of the offence was described by her Honour as 21. 33 As pointed out by his counsel, the material establishes that although there were prior offences of violence there has been no offence of violence in gaol since 1990. 34 The reports of the Serious Offenders Review Council indicate that albeit there may be some question relating to rehabilitation, nonetheless, it can not be said that there are not materially good prospects for rehabilitation, at least eventually. 35 All of these are matters to which s.13A requires me to have regard. 36 Both counsel submit that this is a matter in which an additional term might properly be extended beyond that which might otherwise have been appropriate and both submit in the context of the statistics and other matters that an additional term of six years would be appropriate. That is a term to which regard should be had in the light of what will happen in the future. The principles in relation to re-determination under s.13A of the Sentencing Act require the court to fix a sentence that would be appropriate if the mandatory life penalty had not applied at the time of the commission of the offence. 37 As well as taking into account those factors which indicate that rehabilitation has occurred since the original sentence was passed, all the relevant considerations normally appropriate to be considered on sentence, such as retribution and deterrence, must be considered. Those considerations include the culpability of the crime in question. 38 On re-determination of sentence, the court has the advantage of being able to see the effects of the lengthy period of confinement and the conduct of the applicant whilst in custody, ie., the effect on him of punishment and the degree of personal deterrence. 39 This is valuable material for the assessment of what is an appropriate course to take for the future and, of course, the statutory requirement of the provision to the court of the relevant reports from the Council ensures that the court has much more information for that aspect of the sentence which will be served in the future then a sentencing court would normally have. 40 I accept the submissions made by both counsel, that an additional term of six years is appropriate in this case. I turn now to the minimum term. 41 The applicant's counsel has submitted in the light of the statistics, and looking at culpability, that a minimum term of 13 years to commence, as I said, from 1 October 1987 would be appropriate. 42 To answer the culpability and to take into account the subjective matters, Mr. Thompson, who appears for the Director, has submitted that in the light of the range of sentences imposed on re-determinations under s.13A, and in the light of sentences imposed for this crime otherwise, an appropriate range of sentence would be 13 to 14 years, with consideration to be given to the matter of aggravation arising from the offence having been committed in consequence of the grudge nursed as a result of the previous altercation. 43 The applicant's counsel refers to the age of the applicant at the time and points to the requirement under s.13A(9)(d), that the section requires that age specially be considered. 44 The applicant remains a young man. He has taken a human life and committed the most serious crime in the calendar. That is a crime for which a judge redetermining a sentence, as much as a sentencing judge, is required to visit with a most severe sentence. It is a crime that was, in this case, aggravated by the grudge that has been referred to. Nonetheless, it is a crime committed by a young man who came from circumstances that were not to his advantage, who appears to have committed that crime whilst in the heat of passions generated in the course of his committing another crime, but without prior intent or planning. He has not been a model prisoner, but of late he appears to have been a most useful prisoner with real prospects within the community. 45 In my view the appropriate sentence to be passed by way of minimum term is a sentence of 13 years and six months penal servitude to date from 1 October 1987 and to expire on 31 March 2001. The additional term should therefore date from 1 April 2001 and expire on 31 March 2007. 46 Mr. Carr, I grant your application and I set both a minimum term of imprisonment that you must serve for the offence for which the sentence was originally imposed and an additional term during which you may be released on parole. The minimum term is a sentence of 13 years and six months penal servitude to date from 1 October 1987 and expiring on 31 March 2001. The additional term of six years shoud therefore date from 1 April 2001 and expire on 31 March 2007.

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