REGINA v Leslie Arthur Davidson PETTY

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

JUDGMENT 1 BELL J: This is an application brought pursuant to Sch 1 of the Crimes (Sentencing Procedure) Act 1999 ("the Act") by Leslie Arthur Davidson Petty for the determination of a term and a non-parole period for the sentence of life imprisonment that was imposed on him by Hunt J following his conviction for the murder of Mark Gerald White at Glenreagh on 25 November 1987. 2 The applicant was jointly tried with a co-offender, Steven Arthur Maiden ("Maiden") for the murder of Mark White. Both were convicted. Both were sentenced to terms of penal servitude for life. Those sentences were expressed to commence on the day they were imposed, 22 September 1988. 3 On 8 April 1999 Dunford J re-sentenced Maiden to a term of penal servitude for a minimum of eighteen and a half years commencing on 21 September 1988. An additional term of six years was imposed. The earliest date upon which Maiden will be eligible for release on parole is 20 March 2007. Maiden appealed against the severity of the redetermined sentence. On 13 December 2000 that appeal was dismissed: Regina v Maiden [2000] NSWCCA 519. I will return to the significance of the redetermined sentence imposed upon Maiden in due course. 4 The applicant and Maiden escaped from Cooma Jail on 11 October 1987. They travelled to South Australia where they remained for several weeks. 5 On or about 21 November 1987 they left South Australia and drove to Sydney in a stolen car. They were accompanied by two men, Thomas Patterson and Ronald Crawley on this trip. After a brief stopover the four continued their journey north arriving in the Nambucca River area on 24 November 1987. 6 The deceased, Mark White, was aged seventeen years. He and his fifteen-year-old girlfriend, Danielle Curry, left Sydney on 23 November 1987 intending to hitchhike north to visit a friend who was believed to be living in the Coffs Harbour area. On the morning of 25 November the applicant and his companion picked up Mark White and Danielle Curry on the Pacific Highway, near Macksville. The group travelled to Coffs Harbour where they spent some time before driving to Grafton via Glenreagh. 7 During the course of the trip they stopped at a swimming hole in the Glenreagh area. Sometime after this the applicant and Maiden killed the deceased. 8 The applicant gave an account of his knowledge of the killing in an interview conducted by the police on 17 February 1988. He said that Maiden and the deceased had been involved in a fight that had been initiated by the deceased. The deceased had met his death at Maiden's hands. The applicant had assisted Maiden to bury the deceased. 9 At the trial the applicant gave an unsworn statement which was described by Hunt J as being unbelievable and characterised by a deal of extravagant irrelevance. Hunt J was not in a position to determine the role played by either of the offenders in the killing of the deceased.

10 No evidence was led on this application touching on the circumstances of the commission of the offence. I approach my task by reference to the facts as found by Hunt J. I extract the relevant portion from his Honour's reasons for sentence: "The facts of this present case do not need any lengthy exposition in these remarks on sentence. The two prisoners, who were escaped convicts on a spree of criminal activity from Adelaide through Sydney to the Queensland border, lured Mark White, a young seventeen year old, into the bush and there killed him for no apparent logical reason. They buried his body in a shallow grave in order to avoid detection. The jury's verdict that Petty was guilty of murder necessarily indicates that the jury accepted the Crown case (which was common to both prisoners) that the murder was the result of a prior agreement between the prisoners to kill Mark White, whom they had met only that day. The existence of such an agreement was essential to the case against Petty. The absence of any reasonable motive only made that agreement and its execution the more bizarre. I am myself satisfied beyond reasonable doubt in relation to the Crown case against each prisoner that such an agreement existed. In those circumstances, it is really unnecessary to determine which of the prisoners actually carried it out. There was no evidence against Petty that it was his act which caused Mark White's death, but I am not for that reason prepared to assume that it must therefore have been Maiden's act. Nor am I allowed to act upon my very strong suspicion that the real situation was that described by Maiden in the version of those events given to the witness James Crawley, which implicated both of the prisoners in that death but which is not evidence against Petty." 11 At the time this applicant stood for sentence s 19 of the Crimes Act provided that the penalty for murder was one of penal servitude for life, unless it appeared that the prisoner's culpability for the crime was significantly diminished by mitigating circumstances. Hunt J embarked on an examination of the offender's culpability for the offence. He concluded: "As both prisoners had agreed in advance that they should kill Mark White, I propose to proceed upon the basis that they are equally guilty in the murder which was carried out in accordance with that agreement." 12 I have the benefit of victim impact statements prepared by the deceased's mother and brother, Paul. Mrs White observes that her husband, Gerald, finds it too upsetting to write anything about the murder of their son. Mrs White describes herself as having lived a horrible nightmare since the death of her son. Mark had just finished year ten at school, he had passed his Junior Certificate, but did not live long enough to learn of that fact. Mark was the eldest of Mrs White's sons. She says that despite her attempts to adjust to life over the years since his murder she has never been able to come to terms with her loss. She tends to worry when her other sons go out, even though they are grown men. 13 In his victim impact statement Paul White speaks of the difficulty he has had in being able to place trust in people since his brother's murder. He remembers Mark as a gentle and loving brother. 14 The contents of the two victim impact statements serve as a reminder, if it were needed, of the devastating impact that a senseless crime, such as this one, wreaks on the family of the victim. It is apparent that the interval of fourteen years has not their lessened the loss. 15 Section 28(2) of the Act provides that a victim impact statement may be received and considered by a court when determining an application under Sch 1 for the re-determination of an existing life sentence. 16 The use that may be made of the contents of a victim impact statement in a case involving the death of a primary victim was explained by Hunt CJ at CL in R v Previtera (1997) 94 A Crim R 76 at 85-86. I approach the determination of this matter applying those principles.

17 The sentencing judge did not recommend that the applicant should never be released from imprisonment. 18 The stance taken by the Crown with respect to Maiden was neither to support nor oppose his application for the re-determination of his sentence. It has adopted the same stance in relation to the present applicant. 19 I may deal with this application by: (i) setting a specified term for the sentence together with a non-parole period; (ii) declining to specify a term for the sentence, but setting a non-parole period; or (iii) declining to specify either a term for the sentence or a non-parole period.

In this latter event I may order that the applicant may never reapply for a determination or that he not reapply for a specified period.

The matters which I am to take into account in determining the application are set out in cl 3(1) of Sch 1 namely: (a) all of the circumstances surrounding the offence for which the sentence was imposed and (b) all offences, wherever and whenever committed, of which the offender has been convicted, so far as this information is reasonably available.

I am also to have regard to the matters set out in Cl 7 of Sch 1. 20 The applicant's criminal history prior to his escape from Cooma Jail is contained in an attachment to the Statement of Facts, Ex "C". At the time of his escape he was serving a sentence of eighteen months imprisonment with a non-parole period of six months that had been imposed on him in the Canberra Magistrate's Court on 7 May 1987 following his conviction for offences of (i) supplying a controlled substance and (ii) two counts of committing an act of indecency with a young person. 21 The applicant's criminal history dates back to 3 February 1964 when he was convicted before the Adelaide Supreme Court on a charge of indecent assault and fined ten pounds. In the years that followed he was convicted on a number of occasions of offences including the use of a motor vehicle, receiving, embezzlement, larceny, assault police and resist arrest and carnal knowledge. In respect of these convictions he was either fined or sentenced to short periods of imprisonment of the order of one to three months. His criminal record prior to the killing showed a pattern of persistent offending of a relatively minor nature. 22 Following his conviction for the murder of Mark White the applicant appeared before the Sydney District Court on 27 March 1992 where he pleaded guilty before Gallen DCJ to a number of offences. The sentences imposed in respect of these offences have significance to my task and I set out the details of them: (i) Escape lawful custody - fixed term eighteen months imprisonment to commence on 29/1/88. (ii) Break, enter and steal - minimum term five years to commence on 29/1/88 and to expire 28/1/93 together with an additional term of one year and eight months commencing on 29/1/93. (iii) Possess property stolen from outside the State x 2 - fixed term of three years imprisonment commencing on 29/1/88 and to expire on 28/1/91. (iv) Break, enter and steal - fixed term of three years to commence on 29/1/88 and to expire on 28/1/91. 23 The applicant was arrested following his escape on 29 January 1988. 24 While serving both the life sentence and the sentences fixed by Gallen DCJ the applicant was convicted of two charges of conspiracy to escape lawful custody. On 26 May 1994 he was sentenced by Craigie DCJ on each count to a minimum term of six years imprisonment commencing on 27 March 1997 and to expire on 26 March 2003. An additional term of two years to commence on 27 March 2003 and to expire on 26 March 2005 was specified. The applicant appealed against the severity of these sentences. His appeal was successful and on 1 November 1995 he was re-sentenced on each count to a minimum term of three years and nine months dating from 29 January 1993 and expiring on 28 October 1996. An additional term of one year and three months imprisonment commencing on 29 October 1996 and expiring on 28 January 1998 was imposed. 25 The applicant was aged forty-two years at the date of the murder of Mark White. He is now fifty-seven years of age. In considering this application I have the benefit of reports prepared by the Serious Offender's Review Council ("the SORC"). These detail the course of the applicant's progress within the prison system over the past fourteen years. 26 Because the applicant has had a record of escaping and of conspiring to escape and because of his demonstrated ability to make keys he has been moved regularly between correctional centres. He has been included on the High Security Inmate Management Committee's list of inmates who require a higher level of supervision and vigilance than do ordinary inmates. This has meant that he has spent lengthy periods in segregation. Attached to the SORC's Report are a number of reports from psychologists, custodial staff and others who have been associated with the applicant's management during his long period of incarceration. 27 I do not propose to extract the contents of these reports in any detail. A number of matters emerge from them. Throughout his time spent in prison, including prior to his escape in 1987, the applicant has shown himself to be a good worker and, generally, to be compliant and polite in his dealings with prison staff. 28 The applicant has consistently described a history involving his placement in a boy's home as a child and his claim to have been the victim of physical and sexual abuse while a resident of that home. The history given by the applicant has varied somewhat. However, I accept that he experienced an emotionally deprived childhood, characterised by a level of abuse. He married at the age of nineteen and fathered two children. The marriage failed after about eight years and the applicant did not enjoy continued contact with the children. He is the father of a further child as the result of another long-standing association. Significantly for present purposes the applicant has been in a relationship with a woman for the past ten years. She maintains regular contact with him.

29 The applicant has a number of significant health problems. In September 1990 he suffered a myocardial infarct. He suffers from angina. 30 On 5 November 1998 the applicant attempted suicide by hanging from a bed end in his cell. He was taken to Grafton Base Hospital for treatment. He suffered left-side hemiplegia as a result of cerebral hypoxia and nerve compression in association with this suicide attempt. He was admitted to "D" Ward at the Long Bay Prison Hospital for psychiatric and medical assessment. Following his discharge from hospital medical staff attached to the Corrections Health Service noted a marked improvement in his functioning. The majority of this was attributed to the applicant's perseverance and determination to regain as close to normal functioning in his affected side as was possible. Nonetheless, he suffered from considerable unsteadiness and was only able to walk with the aid of a stick. 31 While he was a patient in "D" Ward staff noted that the applicant was depressed. Dr Farago assessed him in June 1999 as suffering from major depression. He was placed on medication and a marked improvement in his mood and outlook was noted. 32 Despite his difficulties, on 6 November 1999 the applicant was found to be missing from his assigned work area. Following a search he was located in the ceiling of an office adjacent to the perimeter wall. He was transferred to the Lithgow Correctional Centre following this incident and, again, placed on the high security list. 33 Throughout his imprisonment the applicant has been regularly interviewed by members of the SORC Assessment Committee. During the course of an interview on 1 March 2000 the applicant acknowledged his awareness that he had psychological problems that he needed to address. The applicant has made endeavours to do so. He is making some progress in this regard as the report of Bianca Spaccavento, a psychologist, dated 3 December 2002 attests. 34 The applicant continues to suffer from heart problems and remains significantly disabled as the result of his suicide attempt. He is still unable to walk without the aid of sticks. He is housed in a section of the prison set aside for frail, aged prisoners. 35 In a report dated 13 March 2001 the Chairperson of the SORC, the Hon P.J. Moss QC, observed that despite the decline in the applicant's health he continued to be seen as a potential security risk by supervising officers. This was attributed in large part to the applicant's record of past escapes, attempted escapes and involvement in the manufacture of prison keys. 36 On 25 March 2001 the High Security Inmate Management Committee revoked the applicant's designation as a Moderate High Security inmate. He was reviewed by an assessment committee of the SORC on 8 August 2001. It was noted that his reports were excellent. 37 The applicant has undertaken a number of courses during his period in custody. I accept that he has made progress towards rehabilitation. He is a skilled leather-worker whose work is of an impressive standard. 38 A report of Dr William Lucas, a psychiatrist, dated 19 February 2002 was tendered on the applicant's behalf. It provides a helpful summary of the applicant's troubled childhood and of his medical status. Dr Lucas obtained a history from the applicant concerning the offence. Significantly the applicant told Dr Lucas that it would "pay me to bullshit - the truth isn't as good as a good story". He went on to tell Dr Lucas that the murder was "a bloody accident". When referring to the deceased he said, "this guy's family think two men murdered their son." Generally Dr Lucas noted that the account given to him in the course of his consultation with the applicant bore some relationship to the version given by the applicant to the investigating police. 39 Dr Lucas concluded that the principal psychiatric diagnosis to be made of the applicant was of anti-social personality disorder. Dr Lucas observed: "Mr Petty suffers the diagnostic criteria for anti-social personality disorder. There is a long history of anti-social conduct, unstable employment and failed relationships. His truthfulness has been questioned. Unfortunately his attitudes appear not to have ameliorated with age to the extent often seen in anti-social personality disorder. His prison conduct and the security risk he presents have continued to concern correctional authorities. Mr Petty's principal medical conditions are cardiac disease, the effects of the hemiplegia suffered in 1988. He is physically strong, on his good side, but walks with some difficulty especially on soft or broken surfaces. Mr Petty has applied for determination of his life sentence for murder. From the psychiatric point of view the main factors which may be of relevance in determining his sentence are his long-standing anti-social personality disorder, which has ameliorated less with age than one would hope, his history of a major depressive episode and a serious suicide attempt. From the medical point of view Mr Petty has an important disability, largely affecting his gait and mobility arising from the hemiplegia. There may be some cognitive changes but these are not striking and I am not aware of any evidence of personality change due to brain damage. Planning for Mr Petty's release would be assisted by determination of his sentence. Due to his institutional history, the correctional authorities will be cautious in changing his classification and management program. Mr Petty will require close supervision when he is released. He will need psychiatric treatment only if depression recurs or he develops another psychiatric illness. Given his age, I believe that his personality disorder is unlikely to change greatly so when he returns to the community his personal situation and relationships will need to be monitored carefully. His past offending behaviour and his personality disorder are the main factors to be considered when assessing the possibility of recidivism. It could be noted that the murder was his first conviction for a serious violent offence." 40 In the Crown's submission while the offence did not fall within the worst category of case it was not far from it. There were a number of features that aggravated the offence: (i) it was a premeditated killing; (ii) it was without motive; (iii) the applicant and Maiden exhibited a callous disregard for their victim leaving his body in a shallow bush grave where it remained undiscovered for a number of weeks; (iv) the applicant was an escapee at the time of the offence. My attention was drawn to the decision of the Court of Criminal Appeal in R v Miles [2002] NSWCCA 276 at [8] in which Stein JA observed that the commission of a murder by an escapee to be a "a substantial aggravating factor".

41 Notwithstanding the objective seriousness of this offence and the matters to which the Crown drew my attention, I consider that this is an appropriate case in which I should set a specified term for the sentence, together with a non-parole period; s 4(1)(a) of the Act.

42 I am required to consider the need to preserve the safety of the community. In this respect I take into account the contents of Dr Lucas' report, which I have extracted. The applicant's personality disorder seems to me to tell against a confident finding that he has rehabilitated himself. However, I am mindful that apart from this offence the applicant's history of antisocial conduct and his related criminal offending has not been characterised by significant violence. He is aged fifty-seven and will be over sixty before consideration might be given by the Parole Board to his release on conditional liberty. In addition to his heart problems he suffers severe limitations on his mobility. It seems to me that considerations of the safety of the community are not acutely raised by this application. 43 It is necessary for me to take into account the sentences to which the applicant has been subject during the course of his life sentence. It is appropriate that any re-determined sentence commence on the date on which the applicant was originally sentenced. In fixing the appropriate sentence for the murder of Mark White I take into account that the applicant has served a considerable period since 22 September 1988 by reason of his convictions for other offences; R v Purdey (1992) 65 A Crim R 441. In Maiden the Court of Criminal Appeal rejected a challenge to the reasoning in Purdey. Mr Stratton accepted that I would approach the re-sentencing in conformity with Purdey. The only submission made touching on this aspect was that in carrying out this exercise I would bear in mind considerations of totality in sentencing in accordance with the principles in Mill v The Queen (1988) 166 CLR 59. 44 The applicant's custody was referable to a sentence imposed for offences apart from the murder of Mark White until 28 October 1996 45 In the Crown's submission considerations of parity do not require that this applicant should be sentenced to a term that exhibits the same degree of leniency as that imposed on Maiden. Dunford J found that Maiden was not the instigator of the killing and that at the time he had been under the influence of the applicant who was a considerably older man. 46 Mr Stratton, who appeared for the applicant, submitted that acceptance of the Crown's submission involved me taking into account Dunford J's finding as to the respective roles of the two offenders. To do so would work unfairness to the applicant since the trial judge had found them to be equally culpable. In his submission I should approach the re-sentencing of the applicant upon the footing that the two were equally guilty of the murder. In Mr Stratton's submission that would lead me to a starting point not greater than the sentence imposed on Maiden although it was conceded that the differences in the subjective circumstances of the two might lead to a different result. 47 I approach this matter upon the basis that this applicant's culpability for the commission of the offence is not to be distinguished from the culpability of Maiden. It does not seem to me that finding necessarily leads to the adoption, as a starting point, of a sentence of the length of that imposed on Maiden. Dunford J determined Maiden's application on the basis of the material that was before him and mitigated the sentence to take into account a number of favourable findings.

48 The task of re-determining an existing life sentence requires the Court to take into account the various considerations that are set out in cl 3 & 7 of Sch 1. This is not to say that considerations of parity have no relevance. I consider that the principles enunciated by the High Court in Lowe v the Queen (1984) 154 CLR 606 to have application to the task of re-sentencing. In this regard I note the observations of Gibbs CJ at 609: "It I obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and matters such as age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence have to be taken into account". 49 Maiden was twenty-one years of age at the time of the offence. Dunford J re-sentenced Maiden taking into account that he had accepted responsibility for the killing. The applicant was a mature man of forty two when he committed this senseless crime. He has not accepted responsibility for it, so much is evident from the self-serving account of the offence that he gave to Dr Lucas. 50 Maiden's criminal record at the time of the escape was a more extensive and serious one than the applicant's criminal history. I accept Mr Stratton's submission that this consideration mitigates against placing as much significance as might otherwise be the case to the difference in age between the two. 51 The Crown submitted that the applicant's progress towards rehabilitation was to be measured against the fact that until quite recently he had presented as a security risk and that he had been convicted of the further offences of conspiring to escape. As to that latter the applicant has been sentenced for those offences. I will reflect that fact in the re-determined sentence but he should not be doubly punished for them. 52 In re-sentencing the applicant I take into account as a significant consideration the applicant's medical condition and the circumstance that by reason of his continuing disability the experience of prison in the years since the suicide attempt has been, and will continue, to be more difficult for him.

53 I accept the Crown's submission that I am not constrained to impose a sentence on this applicant in the same terms as that imposed on Maiden in order to reflect parity. However taking into account the applicant's medical condition and considerations of totality, which require me to moderate the sentence that I might otherwise have impose, I have determined on a sentence of twenty-five years. I do not find special circumstances. I specify a non-parole period that (after allowance is made to the differing custodial histories) will provide an effective minimum term to be served by this applicant that is marginally longer than that imposed on Maiden.

Leslie Davidson Petty is re-sentenced to imprisonment for twenty-five years to date from 22 September 1988. That sentence will expire on 21 September 2013. I specify a non-parole period of twenty years and six months. The first date upon which the applicant will be eligible for consideration for release to parole is 21 March 2009.

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