Regina v Glen [2006] NSWCCA 153 | Case summary

" Existing life sentences 13A (1) In this section: ' existing life sentence ' means a sentence of imprisonment for life imposed before or after the commencement of this section, but does not include a sentence for the term of a person's natural life under section 19A of the Crimes Act 1900 or section 33A of the Drug Misuse and Trafficking Act 1985. (2) A person serving an existing life sentence may apply to the Supreme Court for the determination of a minimum term and an additional term for the sentence. (3) Any such person is not eligible to make an application unless the person has served at least 8 years of the sentence concerned. (4) The Supreme Court may, on application duly made for the determination of a minimum term and an additional term for a sentence: (a) set both: (i) a minimum term of imprisonment that the person must serve for the offence for which the sentence was originally imposed; and (ii) an additional term during which the person may be released on parole (being either an additional term for a specified period or for the remainder of the person's natural life); or (b) decline to determine a minimum term and an additional term. (5) A minimum term set under this section is to commence on the date on which the original sentence commenced or, if the person was remanded in custody for the offence, the date on which the first such remand commenced. (6) If the Supreme Court sets a minimum term and an additional term under this section, the sentence comprising those terms replaces the original sentence of imprisonment for life. (7) A minimum term and an additional term set under this section are to be taken to have been set under this Part but are not required to comply with the other provisions of this Part. (8) If the Supreme Court declines to determine a minimum term and an additional term, the person who made the application may not re-apply to the Court within the period of 2 years from the date of the Court's decision, or such shorter period as the Court specifies when making that decision. (9) The Supreme Court, in setting a minimum term and an additional term under this section, is to have regard to: (a) the knowledge of the original sentencing court that a person sentenced to imprisonment for life was eligible to be released on licence under section 463 of the Crimes Act 1900 and of the practice relating to the issue of such licences; and (b) any report on the person made by the Serious Offenders Review Board and any other relevant reports prepared after sentence (including, for example, reports on the person's rehabilitation), being in either case reports made available to the Supreme Court; and (c) any relevant comments made by the original sentencing court when imposing the sentence, and may have regard to any other relevant matter. (10) The regulations may make provision for or with respect to reports referred to in subsection (9), including provisions relating to matters to be dealt with in reports and the making of reports available to the Supreme Court. (11) The Supreme Court may make a determination for a minimum term and an additional term for a sentence even though the Court was not the sentencing court, or the Court is not constituted in the same way as it was when the applicant was sentenced. (12) An appeal lies to the Court of Criminal Appeal in relation to a determination under this section or a decision to decline to make such a determination. The Criminal Appeal Act 1912 applies to such an appeal in the same way as it applies to an appeal against a sentence." 3 One day after the expiry of a period of eight years specified in s 13A(3), the respondent lodged such an application. However the hearing was adjourned over what became a period of years on the basis that it was "not ready to be listed". Eventually it was listed on 1 October 1999 before Wood CJ at CL in accordance with the practice that such applications be dealt with by the original sentencing judge if that judge remained available. The respondent sought a further adjournment (until about June 2000) to allow him to complete a SORT (Sexual Offenders Redirectional Training) programme. His Honour refused the application for adjournment. He considered it "utterly inappropriate for an application of this kind to remain in limbo for six years". He noted that until March (1999) the respondent was resisting encouragement, which had been offered to him, to engage in psychological counselling and to participate in a sexual offenders diversionary programme. The change in expressed attitude apparently coincided with a callover of the pending application under s 13A. 4 Wood CJ at CL dismissed the application but reduced the two year period within which re-application was prohibited to eighteen months: (s 13A (8)). 5 Pursuant to that order, the respondent filed a further application on 2 April 2001, that is, eighteen months and one day after the dismissal of the earlier application. Formally, the application was said to be made "pursuant to s 13A of the Sentencing Act 1989" but that provision had been repealed and the provisions of Schedule 1 abovementioned had been substituted. Schedule 1 applies to life sentences whether imposed before, on or after 12 January 1990 which was the commencement date of the relevant amendment which introduced s 13A. 6 It is convenient to note that amendments to s 13A were made by the Sentencing (Life Sentences)Amendment Act 1993 (assented to on 18 November 1993 and commencing on 21 November 1993) which included the repeal of the then existing s 13A (8) and the substitution of a new s 13A(8). Since its introduction, Schedule 1 has also been the subject of amendments which it is not necessary to detail at this point. 7 This second application (Wood CJ at CL being no longer available) was heard by Barr J on 16 September and 14 October 2005. On 28 October 2005 his Honour granted the application and substituted for the existing life sentence, an imposition consisting of a total term of thirty six years imprisonment with a non parole period of twenty four years dating from 10 October 1985. It follows that the earliest date of eligibility for release pursuant to that sentence will be 9 October 2009. 8 The ground expressed in the Crown notice of appeal is that the sentence so imposed was manifestly inadequate. Ms Woodburne of counsel who appeared for the Crown in the appeal specified that, in the event of the appeal being allowed, the order sought in lieu of that made by Barr J was that the respondent's application be dismissed and a direction given that the respondent may never reapply to the Court. Such a direction can be made pursuant to cl 6 (1)(a) of Schedule 1 and, if made, would have the consequence that the sentence would extend for the term of the respondent's natural life. In the alternative, it was sought that the application be dismissed and the respondent be prohibited from making further application for a period exceeding the three years specified as an "automatic" bar in cl 6 (3); as a second alternative that the application be dismissed and the inhibition against reapplication for three years be permitted to take effect; or as a third alternative that a non parole period be set but the Court decline to set a specified term of sentence, the consequence of which would be that, if the respondent were in fact released, he would be subject to parole for the remainder of his life. 9 The implementation of the order principally sought by the Crown (and the first alternative) is subject to the provisions of cl 6 (4) namely: "(4) A direction under this clause that an offender may never re-apply to the Court or may not re-apply to the Court for a period exceeding 3 years may be given only if: (a) the offender was sentenced for the crime of murder, and (b) it is a most serious case of murder and it is in the public interest that such a direction be made." 10 It is self evident that cl 6 (4)(a) is fulfilled. So far as the first requirement in cl 6 (4)(b), Barr J described the murder as " callous and brutal and a most serious one of its kind" and Wood CJ at CL (in 1999) referred to it as "a worst case of murder" and also observed that he regarded it as "the worst case of murder" over which he had presided since coming to the Bench in 1984. 11 The validity of these descriptions can scarcely be doubted having regard to the sketch of the facts to which I will turn. The crime patently lies within the classification of "a most serious case of murder". How far the respondent has progressed, if at all, towards rehabilitation and the assessment of the risk of his re-offending are significant considerations germane to the public interest requirement of cl 6 (4)(b) and I will turn to those issues in due course. 12 In opening the appeal Ms Woodburne observed that in 1986 no matter in mitigation of criminality had been advanced nor was it now being advanced. She stated that it "remains an episode of sustained, deliberate and sadistic violation of an innocent young girl for which no rational explanation exists". Those remarks were confirmed by her following summation of some of the salient facts. It is useful to quote them: "(the)…murder occurred on 10 October 1985, when the respondent took his ten year old cousin, Kylie Corbett, to his flat, where, over a period of some six hours, he held her against her will, he restrained her by tying her to the bed with rope, he repeatedly threatened her with a hunting style knife, telling her, 'If you scream or cry I'll kill you'. He repeatedly and violently sexually assaulted Kylie with such force that she suffered extensive injuries to her vagina and anus. At one point the respondent left her tied up and bleeding in the flat, while he popped out to play the pinball machines and while he purchased some chicken and chips for himself at McDonalds. Upon his return to the flat, he subjected her to further sexual assault. He washed blood off her, but wouldn't allow her to get dressed. Instead he demanded she read to him. He tied her up again and later he killed Kylie in a most cruel way, by picking her up, lying her down on the bed. He then sat astride her and held a military style baton at either end and placed the baton against her neck underneath her chin. Despite Kylie's struggles, he choked her at least to the point of unconsciousness. He then strung her up by her neck in a wardrobe in the flat. He placed a belt around her neck by means of a slip knot. He placed her in a seated position on a chair, and he left her there to die by asphyxiation. Clearly, this was a most cruel murder, attended by a number of aggravating features of the worst kind. This offence, had it been committed on anyone, would be a terrible offence, but of course it was committed on a ten year old child. It was further aggravated by the violent sexual assaults committed on her during the period of her detention. It must have been a terrifying and excruciating experience for Kylie. The respondent was apprehended by police when he returned to his flat to dispose of the body. The body had been found by the police in the flat, and the victim's mother was present when the body was found." 13 Fuller descriptions of the respondent's crime appear in the original remarks on sentence of Wood J, substantial extracts from which were quoted by Barr J in his reasons for redetermination. These reasons should be examined. 14 As his Honour observed, there are special provisions in Schedule 1 relating to non release recommendation. Such is defined to include observation or opinion expressed by a sentencing judge that an offender should never be released from imprisonment. Where such has been made, special reasons are required to justify the substitution of a determinate sentence (cl 2 (3)) and the offender is inhibited from making an application for a specified period. As at the date of the lodgement of this application by the respondent (2 April 2001) the inhibitory period was twenty years. By amendment with effect from 20 July 2001 this period was extended to thirty years. 15 Neither provision came into effect as Wood J had made no observation that would amount to a relevant non release recommendation, however Barr J commented: "Special provisions appear in the Schedule to deal with cases the subject of what is called a non-release recommendation. They are cases in which a recommendation or observation was made at the time of sentencing to the effect that the offender should never be released from imprisonment. It should be noted that notwithstanding his Honour's strong observations about the serious nature of the applicant's crime and the poor case that he personally presented, his Honour stopped short of making any recommendation or observation of that kind. On the contrary, it appears from the closing passages of his Honour's judgment, extracted above, that his Honour held out the hope that the applicant's personality might change and that he might modify his behaviour and accept his criminality. Implicit in his Honour's remarks was an acceptance that in those circumstances the applicant ought to have an opportunity to earn his release from custody on parole or licence." 16 The relevant content of the remarks by Wood J included: "….I wish to have recorded that the sentence I regard as appropriate for the prisoner is such as to require very careful consideration by the authorities in relation to his future custody and in particular as to whether he should be, at any time in the future, returned back to the community. My assessment in this regard is based upon the most careful and dispassionate analysis of the crime charged and the prisoner's personal profile. There are matters in this case which I regard as of very great concern. They include the total lack of contrition expressed by the prisoner, his callous attitude towards the parents of his victim and his obvious lack of insight into and acceptance of his wrongdoing. Additionally, there is his refusal to discuss with the psychologists and psychiatrists the matters concerning his sexual attitudes and his state of mind in that regard, when carrying out the sexual violation of his victim. The material available leaves me with the view that this prisoner at this time presents a very grave danger to the community, in particular to young children. While once again I do not mean by these remarks to fetter the discretion of any relevant Board entrusted with a decision as to the future release of him back to the community, I would be remiss in my duty not to have these observations recorded, since I have had the special opportunity to assess the prisoner at the time he comes up for sentence. It may be that after a lengthy period of imprisonment and counselling a fundamental change in his personality and ability to modify his behaviour, together with an acceptance of his criminality, may emerge. Hopefully, that will be the case and it is proper that he be given the advantage of further psychiatric counselling and assistance while he serves his sentence." 17 It is well known that prior to the Sentencing Act 1989, judges from time to time expressed opinion that a particular prisoner should never be released. Whether couched in language of recommendation or otherwise, such expressions were, at the time and until the legislation of Schedule 1, without any legal effect. It can also be recognized that whatever the circumstances, some judges considered it inappropriate to include any such expression in their sentencing remarks. This practice was later supported in R v Jamieson & Ors 1992 60 A Crim R 68 where Gleeson CJ (Hope AJA and Lee AJ concurring) said: "…where the offender is a young person, and there are so many possibilities as to what might happen in the future, it is normally not appropriate for a sentencing judge to seek to anticipate decisions that might fall to be made by other persons, and in other proceedings, or under other legislation, over the ensuing decades. For that reason, I should indicate that I do not support the recommendation made by Newman J. This is not intended to be a recommendation by me that either appellant should be released at some time in the future. It is simply intended as an expression of my view that the making of any recommendation on that subject in these circumstances is not appropriate." 18 Of course, Wood J sentenced the respondent prior to that decision but the fact that he refrained from making a recommendation that the respondent never be released, which he might be taken to appreciate was devoid of legal effect does not, in my view, imply a finding that, if the respondent could change and accept his criminality, he should necessarily have the prospect of release held out to him. 19 Insofar as his Honour made findings they were, as stated, lack of contrition, callous attitude to the parents of the victim, lack of insight into and acceptance of wrongdoing. As the first extract from his Honour's remarks on sentence articulates, change for the better was assessed as a hope based upon a possibility. There is nothing that I perceive in the remarks by Wood J which indicated a view that the respondent ought to have the opportunity to earn release on licence or parole, rather than that these were matters to be assessed by others. 20 It is apt, in any event, to consider whether the respondent has "earned" the opportunity postulated by Barr J. His Honour has cited lengthy extracts from the reports from psychiatrists and psychologists, and referred to the giving of evidence by some of them. There is no need to repeat the recitation and it will suffice to recount the findings which his Honour made which were significantly derived therefrom: "11. This body of evidence establishes that since his first application the applicant has made progress towards an acknowledgement of his wrongdoing. Wood J's concern about the applicant's lack of frankness in his discussions about the offence has been met to a considerable extent. 12. From an uncertain beginning in 1995 has emerged a frank acknowledgement that the applicant's crime had a serious sexual side to it. It is correct to point out, as the Crown does, that the applicant still does not acknowledge the full horrific extent of his attack on Kylie, and that that is an indicator that the applicant has some way to go before achieving full remorse for his crime. I do think, however, that there is a process going on in the applicant's mind and that, given participation in the intensive course of which I shall speak, he will probably come to a full acknowledgement of his criminality. 13. The applicant has completed a preliminary course of low intensity, designed for sexual offenders, and wishes to enter into the CUBIT program, a ten-month intensive course conducted in Sydney. That course identifies for each offender the things which give rise to the risk of reoffending and teaches the offender how to recognise those risks and guard against them. 14. The applicant is now aged 40 years. He is of average intelligence. Dr Lucas, Dr Wong and Ms Robilliard agree that he is willing to enter the CUBIT program and that he has the capacity to see it through. They agree that his continued rehabilitation would be promoted by his participation in the program. In fact they all think it necessary. 15. The applicant has the support of his daughter, with whom he has regular contact, and of certain other members of his family. 16. In my view, if he is to be granted a determinate sentence and a non-parole period, the public's best interests will be served if he enters the CUBIT program at the earliest possible opportunity. 17. I accept the opinions of Drs Lucas and Wong that the applicant's risk of reoffending is significantly lower than at any time hitherto. I accept that if the applicant completes the CUBIT program the risk of his reoffending will continue to lessen. I think that the stage is achievable at which the applicant will be able to be released into the community under supervision without unacceptable risk to the community. 18. The Crown submitted that the offence fell into the worst category of offences and that on that account this application should be dismissed. It would follow, if that were the correct view of the matter, that the applicant ought to be ordered never to reapply for a determinate sentence or a non-parole period. I do not accept the Crown submission. I am bound to take into account his Honour's remarks in sentencing, delivered almost nineteen years ago, which even then held out the hope of a change in the applicant's personality, a modification of his behaviour and an acceptance of his criminality. His Honour's hopes, it seems to me, are on the way towards being realised. 19. I am bound to take into account his Honour's awareness at the time of sentence of the applicant's eligibility for release on parole and the practice that then existed in the issue of licences. In that connection, I note his Honour's express desire not to fetter the discretion of those who would decide such things. I note also the implication in his Honour's order shortening the time for a further application that a determinate sentence was likely to result if the applicant made satisfactory progress. The applicant has accepted the opportunity he was offered. 20. Like his Honour, I do not think that the offence fell into the worst category, so as to require the imposition of a sentence of imprisonment for the rest of the applicant's life. Although the offence was a very grave one, it was a single offence and it was committed by a young and immature man in response to a major stressor in his life. However, the offence was callous and brutal and a most serious one of its kind and merits an unusually long head sentence." 21 CUBIT is an acronym for Custody Based Intensive Treatment. The therapeutic manager of the programmes, David Bright, gave evidence before Barr J. He testified that different programmes are run for "different levels of risks and needs of offenders", high, moderate and lower intensity. A high intensity programme lasts about ten months "depending on progress". 22 It should be noted that Wood CJ at CL, when refusing the application in 1999 referred to the "yet to be tested change in the applicant from an attitude of denial and resistance, in a worst case of murder, to one of possible hope for the future." 23 None of the evidence before Barr J revealed that such a change had been achieved. As above quoted, his Honour considered that the respondent would "probably come to a full acknowledgement of his criminality". The respondent has not entered the CUBIT programme and any beneficial effect of it on him remains speculative. What were categorized as "hopes" for changes in personality, modification of behaviour and acceptance of criminality have reached the stage of being "on the way" to being realised. (My emphasis.) 24 I interpolate that I acknowledge the claimed existence of a practical hurdle confronting the respondent concerning entry into a CUBIT programme as it is apparently administered by the Corrective Services authorities, and as advanced by senior counsel on his behalf. Even assuming that such administration would exclude the respondent from the programme unless he has achieved a determinate sentence, I do not consider that that handicap is a matter which can be determinative that such a sentence should be imposed in lieu of a life term. 25 I return to his Honour's findings. Obviously they are in a large part necessarily based upon prediction. The taking into account of such considerations does not lie outside the bounds of his Honour's discretion. 26 In terms of clause 6(4)(b) to Schedule 1, this was unquestionably a most serious case of murder, but it was, as above quoted, his Honour's view that the public interest would be best served by the entry of the respondent into a CUBIT programme at the earliest opportunity, and this would imply an opinion that it was not in the public interest that either of the directions contemplated by the clause (never to re-apply or not to re-apply for over three years) should be given. 27 The evidence of the psychologist Ms Robilliard in her report of 15 March 2005 postulated a sequence of completion of the programme before consideration of determination of sentence. She wrote: "Before this man can be considered for determination of sentence he should have the opportunity to do the CUBIT programme and his response would be a major factor in any future consideration. As Roger Blake pointed out in his last report (22.3.02), on static measures (the respondent) is still 'a high risk individual' and those measures by their nature will never change. What must be taken into consideration alongside those factors are the dynamic factors that can and do change an individual's prognosis. 1. Over the past four to five years in particular (the respondent) has moved toward a more realistic and insightful view of himself and his behaviour in the offence in question. He accepts it was a sexual offence not just a violent/angry offence and he seems to be deeply distressed about the sadistic nature of his behaviour. This may point toward a more realistic understanding of his offence and his behaviour. 2. (The respondent) is making attempts to be in contact with people from the outside community and tries to keep himself informed and up to date. He attends men's groups and church fellowship meetings weekly particularly for this purpose. 3. (The respondent) has welcomed and built upon supports offered by his immediate family, notably his daughter Vanessa, his ex-wife, his sister Jennifer and his brother Peter. He also appears to have dealt appropriately with the recent death of his father in 2003 and of his mother in 1995. Nor have the tragic suicides of his half brothers Gary in 2002 and Robert in 2003 seriously destabilised him. Thank you for inviting me to comment on (the respondent's) progress at this point. His current condition and presentation suggest that he is now moving in a positive direction. Whether or not he can ultimately be considered for release back into the community will largely depend on his response to intensive treatment in the CUBIT programme at Long Bay Gaol." 28 However, given the content of opinion, it would provide a basis for present non determination but not for a direction that the respondent may never reapply. I do not conclude that error has been demonstrated by his Honour's declining to make orders which would, in their effect, impose a life sentence on the respondent without prospect of parole. 29 The alternatives pressed by the Crown involved dismissal of the instant application and deferral of the ability of the respondent to apply again for longer than for three years prescribed in Schedule 1 or for that period. The respondent has been in actual custody for over twenty years. If deferral were to be considered, it can be appropriate to take into account the likely non parole period: see Wood CJ at CL 1 October 1999 @ par 66 and R v Kluska NSWSC unreported 18 December 1998. In turn, such a matter would need to be looked at in the light of any variation by this Court of the non parole period set by Barr J. 30 An extension of the period of inhibition against re-application beyond three years is subject to the same requirements as a direction that the respondent never re-apply (cl. 6(4)). The absence of error by Barr J in declining a direction of the latter character should produce a co-ordinate finding of absence of error in declining to direct the former. 31 The power of this Court to intervene is not enlivened by the formation of a view different from that of the first instance judge. The issues of non parole period and/or the prescribed three year deferral should be dealt with in the light of the outcome of the appeal against the fundamental decision to set a determinate sentence in lieu of the life term. 32 In my view, the Crown contentions in support of the appeal have been made good in two allied respects. His Honour's final conclusions were expressed in these terms: "I propose to fix a non-parole period which recognises the very serious nature of the offence and which will allow waiting and preparation time for entry to the next available program, the conduct of the CUBIT program itself and such other steps as are considered necessary to prepare the applicant for release on parole. The application is granted. I set a term of the sentence of thirty-six years, commencing on 10 October 1985 and expiring on 9 October 2021. I set a non-parole period of twenty-four years. The earliest date on which the applicant will be eligible for release on parole will be 9 October 2009." 33 The "serious nature" of the offence required reflection not only in the setting of a non parole period but in the fixing of head sentence. There is no indication that the head sentence of thirty six years reflected a finding that, at its expiry, the respondent would cease to present a risk to the community whose interests it is mandatory to take into account in any sentencing exercise. That this would be the consequence of a fixed term of head sentence was a critical ingredient of sentence assessment. At most, the opinions of experts categorize the risk which the respondent presents to the community as lower than that at the time of the offence. It was not otherwise quantified. 34 There was no evidence from which it could be deduced that the respondent would cease to be a danger to the community and should be able to move freely within it without supervision at the expiry of thirty six years or any other finite term. As recapitulated above, the situation at its highest manifested progress in that hopes for positive change were "on the way" to being realized. 35 The exceptional facility made available by clause 4 (1)(b) of Schedule 1 to decline to set a specified term (of head sentence) but to set a non parole period is patently designed to accommodate such circumstances. His Honour does not appear to have considered this option. It was put by senior counsel for the respondent that his Honour's remark that "like his Honour (Wood CJ at CL), I do not think that the offence fell into the worst category so as to require the imposition of a sentence of imprisonment for the rest of the applicant's life" demonstrated that he had done so. I do not accept that submission. It is clear from context, particularly in the judgment of Wood CJ at CL, that the references are being made to the prospect of actual imprisonment for life and not to any potential of release to parole during the respondent's lifetime. 36 As is the case in an appeal against sentence, this Court can intervene as specified in clause 8 of Schedule 1 and for the above reasons, I am of opinion that it should do so, and, in particular, it should consider the option of setting a non parole period but leaving the life sentence intact. 37 There are so many contingencies operating in connection with the forecasts of the respondent's acceptance of responsibility and future behaviour that it would be unsafe, and contrary to the public interest in terms of safety, to fix a term which will, after the expiry of a finite number of years grant to him unsupervised liberty. Any judgment as to whether he should enjoy such potential liberty would have to be made on an assessment of demonstrated achievement rather than on "hoped for" progress. 38 The imprecisions of the forecasts surrounding the respondent are such that I do not perceive that a rational assessment should now be made that it would be appropriate to dismiss the application and defer the availability to reapply for three years or any other calculable term of years. Such term would be infected by a large measure of speculation. There is no reason to anticipate that this will not continue to be the case. 39 I am of a view that the overall circumstances require that it be concluded that the applicant should always remain subject to parole supervision if he is released. 40 The final issue concerns the setting of a non parole period of twenty four years. I am conscious, of course, that the expiry of the non parole period does not mean an actuality of release. It is received doctrine that "in a true sense the non parole period is a minimum period of imprisonment to be served because the sentencing judge considered that the crime committed calls for such detention": Power v The Queen 1974 131 CLR 623 @ 628 and see also The Queen v Paivinen 1985 158 CLR 489 @ 495; The Queen v Watt 1988 165 CLR 474 @ 481. 41 The importation of the principles applicable to appeals pursuant to the Criminal Appeal Act 1912 by clause 8 of Schedule 1 involves the concepts of restraint in resentence which are applicable to successful Crown appeals generally. Whilst, I would myself probably have set a longer non parole period (whether or not imposing a determinate head sentence) I conclude that a principled application to resentence leads to a result that the order setting a non parole period made by Barr J should not be disturbed. The assessment lay within the bounds of his Honour's discretionary judgment: cf R v Robinson [2002] NSWCCA 359. 42 I propose the following orders:

Regina v Glen

At a glance

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Before

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Judgment (14 paragraphs)

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Cases Cited (2)

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