24 He was 25 years of age at the date of the offence, 14 January 2001 and is now 27. He has had a troubled childhood according to the pre-sentence report and his pattern of resultant misbehaviour tended to intensify when he was told the man he thought was his father was not his father. He claims to have been sexually assaulted as a child and the assertion was borne out by the fact that the culprit was convicted of this and of other offences. The prisoner has received an award under the Victims Compensation Legislation.
25 Whilst he has above average intelligence, his work record seems to have been almost nonexistent. According to the pre-sentence report he has smoked marijuana since the age of thirteen. He has experimented with amphetamines and used them since the age of 19 but ceased after an 11 week rehabilitative programme. Following this, however, it seems he became addicted to heroin.
26 As I have indicated there was evidence before the jury of drug consumption but not so as to prevent the jury from finding beyond reasonable doubt that he had the knowledge and foresight necessary for the crime. I reject the contention, if indeed it was the contention of Mr O'Loughlin that any drug consumption which he had shortly prior to the Commission of this offence is to be taken into consideration in his favour in assessing the appropriate sentence to be imposed.
27 There is also in evidence a psychologist's report which canvasses the disrupted childhood of the prisoner, his strained family relationships, his being sent to a school for disorderly children and other aspects of his childhood and youth which I find it unnecessary to canvas in detail here, but which include being expelled from a number of schools including the school for disorderly children. The psychologist states he was diagnosed with an attention deficit disorder in his early teens and was prescribed medication for it. The report appears to accept the proposition that the prisoner's mental health became adversely affected after he had been the victim of the sexual assault at the age of fourteen to which I have already referred.
28 The prisoner claimed that he suffered from depression for a number of years and attempted suicide. It is also reported that he described current symptoms consistent with major depressive disorder and also post traumatic stress disorder which, however, appear to be traceable to his present custodial position. The report also canvasses his drug consumption history.
29 The report places his intellectual function at greater than eighty-seven per cent of the population. It concludes that the prisoner had exaggerated his psychological symptoms but nevertheless currently suffers from a significant level of psychological stress.
30 The prisoner has an extensive conviction record. These are principally in the Local Court for offences of dishonesty, driving offences and a small number of offences of violence. There is nothing, however, in his record in any way approaching the seriousness of the conviction for which he now stands to be sentenced. His criminal history is consistent with the history of a disrupted childhood and early youth and his almost nonexistent employment record.
31 There is in evidence a family victim impact statement completed by the widow of the deceased. I have received this document and consider it in determining the sentence to be imposed. For this purpose, before doing so, in order to comply with section 28 of the Crimes (Sentencing Procedure) Act, if I have not previously formally entered a conviction, I do so now.
32 It is a moving document and attests to the destructive consequent effects which serious criminal activity such as this may have on the lives of many others than the immediate victim. In this case, the deceased was an experienced capable and courageous police officer whose life was taken whilst endeavoring to the best of his considerable ability and capacity to do his duty and serve the community. But the consequences of the offence are visited painfully and specifically on those family members who survive him.
33 The prisoner has sought to express his remorse by writing to the widow of the deceased. Mr O'Loughlin submits that a further indication of his remorse is that from the time of his committal for trial, he expressed a willingness to plead guilty to manslaughter and, of course, in fact did so on presentation of the indictment in the presence of the jury.
34 S 22 of the Crimes (Sentencing Procedure) Act requires me to take into account a plea of guilty to "the offence". The offence, in my view, is the one for which the prisoner is before the court for sentence today, that is to say, in this case, murder. The accused pleaded guilty to manslaughter which of course was not accepted by the Crown and is not "the offence" for which he is being presently sentenced. However, I accept that the plea is fairly to be regarded as an expression of the prisoner's contrition, together with the letter which he forwarded to the deceased's widow.
35 The Crown accepts that the plea ought to be so regarded but submits that the prisoner, not having pleaded guilty to the main charge in the indictment of which he was subsequently convicted by the jury, should receive a discount proportionally less than if he had pleaded guilty to the murder charge. This too I accept and I propose to apply a discount to the head sentence of two years which it will be seen is just over 11 per cent of the head sentence.
36 In sentencing the prisoner I accept the proposition that there is no prima facie presumption that murder on the basis of reckless indifference to human life is less culpable than murder done with intent. I proceed on the basis submitted by Mr O'Loughlin that the motivation of the prisoner at all times, but more particularly in driving this vehicle from the time that he saw the road spikes until it overturned and he departed from the vehicle leaving the unrestrained child within it, was to avoid his own apprehension for complicity in the bag-snatching offence, the theft of the motor vehicle and his manner of driving the Prado.
37 I take the view that the killing of a police officer whilst in the execution of his duty is a serious, aggravating factor in the offence.
38 Although s 21A of the Crimes (Sentencing Procedure) Act (1999) does not, as I understand it, apply to this sentencing proceeding, the principles enacted therein are in any event those which the court in sentencing would apply with appropriate emphasis depending on the circumstances of the particular case.
39 The particular circumstances of this case require that both aspects of the deterrent element in the sentence should be apparent. This is also a need to demonstrate in the sentence imposed that the community must be protected from behaviour of this kind. There is also the need to demonstrate that the lawful endeavour of the police in seeking to minimise the effect of criminal behaviour on the roads by ending grossly unlawful and dangerous driving, as occurred in this case, are appropriately supported by the courts.
40 I have come to the conclusion that, having regard to the objective circumstances of the case and matters personal to the prisoner, an appropriate head sentence of 18 years imprisonment is called for, taking into consideration five matters on a Form 1 which have been handed up. I would reduce that sentence, as I have already indicated, by two years to give effect to the discount for the limited plea of guilty.
41 The sentence, of course, will date from 15 January 2001. In my view the statutory formula if applied to the resulting head sentence of sixteen years should ensure an adequate period available for supervision on parole if and when it is granted and contrary to the submissions put to me by Mr O'Loughlin of counsel this afternoon, I make no finding of special circumstances.
42 Accordingly the sentence of the court is that you are to be imprisoned for a period of sixteen years to date from 15th of January 2001. I fix a non-parole period of 12 years. The effect of that sentence is that you will become eligible for parole on 14 January 2013 and the whole of the sentence will come to an end on 14 January 2017.
43 In imposing sentence I have taken into consideration, as I have already indicated, the five additional charges as listed in the Form 1 in accordance with sections 32 and 33 of the Crimes (Sentencing Procedure) Act.
44 Pursuant to section 25(2)(d)(ii) of the Road Transport (General) Act 1999, you are disqualified from holding a driver's licence for a period of twenty years. Remove the prisoner.