Regina v Miles

IN THE COURT OF CRIMINAL APPEAL 60102/02

STEIN JA BERGIN J CARRUTHERS AJ

Date REGINA v Daniel Leslie MILES Judgment 1 STEIN JA: Introduction 2 I have had the benefit of reading the draft judgment of Carruthers AJ. Because his Honour sets forth the material facts, I am able to state my conclusions without undue elaboration. 3 I am unable to share his Honour's opinion that the Crown appeal should be upheld and that a sentence of life imprisonment should be imposed on the respondent in lieu of the determinate sentence imposed by Hidden J. 4 The question for the court is whether the level of the respondent's 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 a life sentence (s 61(1) of the Crimes (Sentencing Procedure) Act 1999). 5 From the observations of Wood CJ at CL in R v Harris (2000) 50 NSWLR 409 at [87] it seems that the common law concept of the 'worst case category' is really little different from that postulated by s 61(1). 6 This requires features of 'very great heinousness' and the absence of facts mitigating the seriousness of the crime, R v Twala (Unreported, Court of Criminal Appeal, 4 November 1994). 7 While I agree with Carruthers AJ that there is no disharmony between the 'worst case' concept and s 61(1), the latter does include reference to 'community protection' which can only to be met through the imposition of a life sentence. This may impose an extra gloss on the Twala test.

(a) The significance of the escape 8 The Crown submitted that his Honour made a number of errors in the sentencing of the respondent. First, that he failed to adequately take into account the significance of the respondent escaping from custody and then committing the murder of Ms Michael. There is no doubt that this was a substantial aggravating factor in the offence. 9 However, it is clear that Hidden J did take account of the respondent's escape, and of his commission of the murder while he was at large, see in particular paras [27] and [32] of his reasons on sentence. 10 His Honour also had to sentence the respondent for the separate offence of escaping from lawful custody. He noted that that offence was of itself serious. Further, it was an abuse of the respondent's privileged classification for an offender who was serving a lengthy term of imprisonment for a very serious crime. For the escape his Honour imposed a cumulative sentence of 2 years imprisonment to commence upon the expiry of the remaining minimum term that he was subject to, and further ordered that the two years be served prior to the commencement of the determinate sentence for the subject murder of Ms Michael. 11 I do not accept that his Honour attached inadequate significance to the aggravating circumstance of the respondent's escape and commission of the murder whilst at large. One thing is plain and conceded by the Crown, that the escape was not for the purpose of committing murder. Rather, it was for the purpose of being with Ms Michael and hopefully starting a new life interstate together. 12 Hidden J accepted that the escape was a feature of substantial aggravation in the offence and I do not see that he erred in the manner contended for by the Crown. (b) Prisoner's awareness of his capacity to kill 13 The second error submitted by the Crown was his Honour's alleged failure to take into account, as a matter of aggravation, the respondent's awareness of his capacity to kill. In this respect it was submitted that his Honour made an error in fact finding. In particular, it was contended that his Honour erred in his assessment of a particular passage in a letter from the respondent to Ms Michael, which the respondent commenced to write on 19 January 1999. 14 The particular passage of the letter is set out in Hidden J's judgment and is as follows: I know you have a lot of confusion, but for fuck sake would you just turn to me, tell me everything and trust me. I do things babe, I am not a talker. Just ask Donna when I told her to stop playing games with my heart or I would put a hole in her heart. If I say I'll do something, then believe I'll do it. 15 The reference to 'Donna' was to the respondent's first murder victim, Ms Newland. It seems that Ms Michael had been made aware by the respondent of the crime for which he was serving his sentence. 16 It was this passage in particular that his Honour had in mind when he said: Disturbing as to those passages in the letters are, I incline to the view that they were rhetorical. In any event, I doubt that the offender had sufficient self awareness at that time to have the insight for which the Crown contended. 17 As Carruthers AJ says, the word 'rhetorical' has a number of meanings and like his Honour I am also uncertain as to how Hidden J was using it. I tend to accept that his Honour used the word in the sense of using words in an artificial or extravagant manner so as to make a point, as opposed to a calm or sober statement. 18 Because of the centrality of this passage to the Crown's submission, and Carruthers AJ's acceptance of the submission, it is important to examine the letter more closely. In addition, the court should not lose sight of the evidence given by the respondent and his cross-examination on the contents of some of his letters. 19 The letter dated Tuesday, 19 January 1999 is a very long one - 17 foolscap pages. The respondent started to write it on the date it bears but continued writing from time to time over several days. The passage in question was written on Thursday, 21 January 1999 and is part of 6 pages. Either later that same day, or the next, the respondent wrote two further pages. These were apologetic, conciliatory and loving in tone. In part the letter says: Im sorry baby for carrying on in the early pages of this letter, actually it was only the page before this one. 20 One of the reasons why I believe that too great an emphasis should not be placed on the particular passage in the letter (which I have set out above in para 14) is that it was written 6 months before the respondent's escape. In the ensuing months there was no repetition of the 'threat' in similar words, notwithstanding the apparent deterioration of the relationship and the respondent's suspicions with regard to Ms Michael's association with other men. 21 The respondent escaped on 27 July 1999. The letter closest in time to his escape is a letter dated 9 June 1999, viz 7 weeks beforehand. Although it should be mentioned that there are several undated letters which may have been written in June 1999. 22 In the letter of 9 June the respondent is obviously concerned that his relationship with Ms Michael may be over. The letter includes an acceptance that Ms Michael might be with someone else, but expresses the hope that they will still see each other one day. 23 Notwithstanding the respondent's fears regarding the relationship, there is not one word of anger or reproach at Ms Michael in this letter for her failing to visit or write, nor about her likely taking up with another man. Certainly nothing which can be interpreted as a threat. 24 Important as it is, I would hesitate to place too much significance upon the passage in the lengthy letter dated 19 January 1999, amongst many letters written by the respondent, particularly since it was sent 6 ½ months before the murder. 25 The respondent gave evidence at his sentencing on 7 December 2001. From the transcript it appears that his testimony took up the morning, more or less equally divided between examination in chief and cross-examination. His Honour, an experienced judge, had the opportunity to make an assessment of the respondent and of his evidence. The respondent said that he and Ms Michael had earlier discussed his plan to escape in July. He also said that when he saw Ms Michael at her home, she was very happy to see him. He stayed the night and the next day, before he left for Brisbane to investigate the possibility of moving there. The respondent then explained what occurred when he returned to Ms Michael's home in the early hours of 1 August 1999 and saw the man on the bed. The respondent said that he had become consumed by uncontrollable anger. He was overwhelmed by anger and rage. 26 During a thorough cross-examination by the Crown Prosecutor, Mr Maxwell QC, the respondent denied that he killed both Donna Newland and Ms Michael because he believed that if he could not have them, no one could. 27 The respondent said that at times he suspected that Ms Michael was with another man but that she had denied it. The difficulties in their relationship had been discussed and resolved, and, as at the time of his escape the respondent believed the relationship was still on foot. 28 The respondent was closely cross-examined about two of the letters that he had written to Ms Michael from gaol, particularly the letter dated 19 January 1999 and the portion submitted by the Crown to constitute the 'threat'. The respondent denied that he was threatening Ms Michael and attempted to explain the passage away partly by being under the influence of sleeping pills. The respondent said that the analogy with Donna Newland was 'an indefensible one' and 'disgusting'. He maintained that the passage meant no more than that he kept his promises. 29 It is important to record that the respondent was not cross-examined about any of the numerous other letters which he wrote to Ms Michael from gaol. His Honour considered the two letters the subject of the cross-examination of the respondent, see paras [18] to [21] and [25]. Apart from a brief reference to other letters in para [19], his Honour did not specifically deal with any of them. This is understandable since it is apparent that they were not the subject of any Crown submissions, except in a general way. 30 With regard to the cross-examination of the respondent his Honour said: The offender's evidence was the subject of searching cross-examination and, while he clearly had a motive to put his actions in the best possible light, he did not impress me unfavourably as a witness. His account appears to be broadly consistent with what he told police on the day of his arrest. He acknowledged that, at the time he escaped, he feared that Ms Michael might have formed another relationship. However, I would not conclude that that was his reason for escaping. I accept that he and Ms Michael discussed his plan to escape, and that he did so out of concern for her welfare and in the hope that he and she could start a new life in another state. Equally, I accept his account of his interaction with Ms Michael in the days following his escape. Certainly, I would not prefer the hearsay material in her sister-in-law's statement to his sworn evidence about the matter. 31 This court does not have the advantage of the sentencing judge. It is apparent that his Honour used that advantage and that his factual conclusions regarding the respondent's evidence were ones which were open to him. I am certainly not persuaded that this court should interfere with his Honour's factual findings, particularly where the basis is a question of weight. 32 It follows that I do not conclude that his Honour was in error in the manner in which he dealt with the 'critical passage' in the letter dated 19 January 1999 and the respondent's awareness of his capacity to kill. I am certainly not inclined to place the same importance on that passage as does Carruthers AJ, given the context of the correspondence, the time gap from January to the end of July 1999, his Honour's concession of the respondent's evidence and the Crown's acceptance that the killing was not premeditated. I do not see how it may be concluded that the dreadful events which transpired on 1 August 1999 demonstrated that the respondent meant what he said in the passage of the 19 January 1999 letter. What must be kept in the forefront of one's mind is that the Crown accepted that the murder of Ms Michael was unpremeditated. If it had contended otherwise, one would expect a more vigorous and comprehensive cross-examination of the respondent with emphasis on the content of letters other than the two which were squarely put to the respondent. (c) Role of respondent's personality 33 The next error of his Honour maintained by the Crown is his failure to adequately reflect the extent to which the respondent's dominating and possessive personality played in the murder. However, his Honour did find that the respondent's violent reaction was the product of his dominating and possessive personality [para 26]. Nonetheless, his Honour rejected the Crown's argument that the murder of Ms Michael, as with Ms Newland, was purely the result of the respondent's inability to accept rejection. That is, that he killed Ms Michael because he decided that if he could not have her, no one could. 34 In my opinion, his Honour was entitled to conclude that the respondent's emotional response was, as he put it, 'more complex'. While accepting that the respondent's violence was indeed a product of his domineering and possessive personality, his Honour also found that the respondent was moved by a sense of betrayal and that he had squandered everything he had gained during his imprisonment. 35 Again, it seems to me that this additional finding was open to his Honour to make on the material which was before him, his assessment of it and of the offender. I do not accept that his Honour saw this factor as a mitigating one, rather he was entitled to take the 'betrayal' into account as a factor contributing to the offence. 36 I am unpersuaded that his Honour erred in the manner submitted by the Crown. Hidden J did not make an erroneous distinction between the two murders in 1990 and 1999. (d) Community protection and dangerousness 37 Fourthly, the Crown argued that his Honour failed to adequately take into account the aspect of community protection. This is because his Honour, so it was contended, wrongly concluded that with maturation over the lengthy sentence the respondent must serve, and continuing counselling, his Honour had 'some hope that he will not re-offend upon his release'. Involved in this submission is the Crown's assertion of the respondent's dangerousness and the content of the medical evidence before the court. 38 Also involved in this submission is the Crown's argument that his Honour erred in accepting the respondent's evidence of his belief at the time he escaped that the relationship was still on foot and that he and Ms Michael had discussed moving interstate and starting a new life. Reliance is placed upon the contents of the respondent's letter to Ms Michael of 9 June 1999, said to be the last letter that the respondent wrote to her before his escape. 39 However, in accepting the respondent's evidence, his Honour noted that it received some support from other sources, see para [22]. In particular, that Ms Michael was aware of the respondent's intention to escape once he became reclassified in July. Also, the respondent's account of his interaction with Ms Michael in the days following his escape. For the same reasons as I have given earlier, I do not believe that this court should intervene and reject his Honour's factual findings, which were findings I see as open to him to make on the evidence. 40 The evidence about the respondent's future dangerousness needs to be considered because it goes directly to the element in s 61(1) concerned with community protection. This is putting aside for the moment the question of whether the offence qualifies within the section as to its extreme level of culpability. This is an issue to which I will return later in these reasons. 41 The Crown case on the issue of dangerousness relies on a number of factors. The principal ones are the 'chilling similarity' between the two murders; the respondent's absence of any psychiatric condition and Dr Neilson's evidence that there was no guarantee that counselling will reduce the respondent's risk of further offending. 42 While there are clearly 'chilling similarities' in the two murders committed by the respondent 9 years apart, there are, as his Honour found, substantial differences. Foremost among the differences is the absence of premeditation in the murder of Ms Michael, accepted by the Crown, as compared to the murder in 1990 of Ms Newland, which was premeditated over an extended period. 43 Another major difference is with regard to the murder weapon. In the murder of Ms Newland the respondent prepared himself with a knife, whereas with Ms Michael he did not. 44 These differences were significant notwithstanding the strong similarities in the two murders, ie killing one's girlfriend with a knife. Thus, although the similarities assumed significance for the respondent's sentencing, the significance was diminished by the differences, particularly the absence of premeditation for the second killing. 45 In my opinion, the central question on the issue of community protection is whether the evidence was such as to lead the court to the conclusion that the only way that the community can be protected from the respondent is by the imposition of a life sentence. Again, this is setting aside the issue of the respondent's level of culpability required by s 61(1), to which I will come. 46 The effect of the determinate sentences imposed by his Honour is that the respondent will not commence his sentence for the murder of Ms Michael until 25 April 2005. That sentence will expire on 24 April 2030. The respondent is not eligible to be considered for parole until 25 April 2024. 47 The respondent was 18 years old when he was imprisoned for the murder of Ms Newland. Apart from 5 days when he was at large, he will have spent 40 years in gaol by the time he completes his current sentences. By then he will be 58 years of age. By the time he is eligible to be considered for parole, he will have spent 34 years in prison and will be 52 years of age. 48 Thus there is plenty of time for the maturation which Dr Neilson referred to in his evidence, as well as continuous counselling. True it is that Dr Neilson could give no guarantees, but that is hardly surprising. Hidden J also summarised the report of Professor Susan Hayes, an eminent clinical psychologist, whom his Honour said was more optimistic than Dr Neilson. Psychometric testing was undertaken and Professor Hayes reported that: The personality test indicates that Mr Miles would be a good candidate for treatment and he himself says that he has benefited greatly from 18 months' counselling with a prison psychologist. 49 It strikes me that some credit must be given to the Parole Board and to the parole system. I cannot accept that a Parole Board, acting reasonably, would grant the respondent parole unless it was satisfied, on appropriate expert evidence, that the respondent did not pose a threat to the community, viz that the community would be adequately protected. 50 In my view, Hidden J was entitled to conclude as he did on the prospects of the respondent's rehabilitation. Crucial as it is, the need for protection of the community can be adequately met by the sentence imposed by his Honour. It is a falsity to conclude that community protection can only be met through the imposition of a life sentence.

The extent of culpability 51 I turn to the issue of defining the extent of the respondent's culpability. Is it so extreme as to require a life sentence to be imposed? I am not persuaded by the Crown's submission that condign punishment is demanded. 52 Before proceeding further I should say that I agree with what Carruthers AJ has written concerning the Crown submission that if the criteria in s 61(1) are satisfied, the subjective circumstances have no relevance. The submission should be rejected, see Harris at 425. Of course, there is no doubt that there will be cases where the objective gravity will overwhelm any subjective circumstances, but a two-stage process, as Carruthers AJ makes plain, is required. The first question is whether the level of culpability is so extreme as to warrant the imposition of a life term? Secondly, whether the subjective features are capable of displacing the need to impose the maximum term? 53 I do not accept that this murder, appalling as it was, and in the context of the second killing within a decade in chillingly similar circumstances, qualifies within s 61(1). I am unable to see that it is so extreme in its heinousness as to demand a life sentence as the only way to meet the community interest in retribution, punishment, deterrence and community protection. 54 The facts, inordinately disturbing as they are, do not to my mind qualify within the category of the worst class of case. I say this primarily, but not entirely, because of the lack of premeditation in the killing of Ms Michael. 55 The killing by the respondent is doubtless an offence of great heinousness but it cannot be concluded that there are absent any facts mitigating the seriousness of the crime. 56 The court was referred to 21 cases of natural life sentences imposed for murder in NSW since 1990. I agree with Carruthers AJ that limited assistance can be derived from a comparison. Nonetheless, as with his Honour, I think that they do provide some limited help. When one examines the cases, what is apparent is that, for the very most part, the offences exceed the level of culpability of the present case. My concern if this case is to be regarded as within the criteria in s 61(1), is that the imposition of a life sentence will be devalued. Such a decision will impermissibly stretch the category of the worst class of case. I accept that there will always be borderline cases, and this may be thought to be one such example, but I am unable to conclude that the level of the respondent's culpability is so extreme as to demand a life term as the only way of meeting the community interest in punishment, deterrence and protection. 57 But even if the offence was to qualify within s 61(1), it is my opinion that the subjective circumstances displace the need for the maximum penalty. The particular features are the relative youth of the respondent (he was 28 years of age at the time of sentence by Hidden J); the respondent's prospects of rehabilitation as found by his Honour and the plea of guilty entered by the respondent. 58 Finally, if contrary to my conclusions, the respondent qualifies for a life sentence under s 61(1), this court should not intervene and substitute such a sentence because of the principle of double jeopardy and the discretion reposing in the court on Crown appeals, see R v Allpass (1994) 72 A Crim R 561 at 562 - 563. 59 The principle of double jeopardy is particularly important to consider where a determinate sentence with parole is sought to be replaced by a life sentence without parole. In this regard, I agree with the remarks of Wood CJ at CL in Harris at [131] to [134]. 60 In my opinion, the sentence imposed by Hidden J is not a manifestly inadequate one and the appeal should be dismissed. 61 BERGIN J: I have had the benefit of reading the draft judgments of Stein JA and Carruthers AJ. I agree with the orders proposed by Carruthers AJ and with the reasons given by his Honour. In addition to those reasons I add the following in respect of the respondent's extreme culpability in the commission of the offence for which, in my view, the community interest in retribution, punishment, community protection and deterrence can only be met by the imposition of a life sentence. 62 The respondent explained the circumstances of the killing of Ms Michael in a conversation with Detective Senior Constable Peddle on 2 August 1999 in the following terms: I wasn't supposed to come home for a week but just caught the bus back. I was tired and when I got to her house I knocked on the door for about 20 minutes and she wouldn't answer so I forced the glass doors and they smashed. I think everyone freaked out. I did too and she was just inside with another bloke and I just lost it. The only trouble I have been (sic) was because of sheilas lying to me. 63 The explanation that the respondent gave for the killing of Ms Newland nine years earlier was provided to the investigating police in a record of interview as follows: She was talking about her boyfriend and I was becoming very jealous and angry. I told Donna to use the toilets and inside the toilets I kept telling her how much I loved her then she just kept talking about her boyfriend. My anger was so strong I pulled a knife from the back of my jeans and used it on her. 64 After a period of apparent emotional closeness to the respondent, both Ms Newland and Ms Michael had decided to distance themselves from him. The respondent reacted identically to each of them. He wrote a barrage of letters and made numerous phone calls to each of them. In each case he claimed he spent an affectionate time with Ms Newland and Ms Michael, just prior to the murder. In each case he used a knife to kill them. In each case he claimed that jealousy and anger led to the killing. 65 Hidden J expressed the view that the differences between the two murders were significant. His Honour said that the Crown Prosecutor acknowledged that: "this killing was not premeditated" (par 25). It is important to note precisely what the learned Crown Prosecutor said in this regard. At page 60 of the transcript before Hidden J on 7/12/01 the following exchange occurred: His Honour: Just so I can be clear on this. Justice Mathews found that the first killing was premeditated. I take it you don't submit that about this one. Maxwell: Well, no your Honour. What I do submit is that it can't be viewed as a plan to escape in order to kill Nadine, but it can be viewed as a plan to escape with the possibility that if she is doing something behind his back, if she is, in his view, two timing him, the possibility is that he will exercise the capacity that he knows he has and he has stated in the letter, that he put a hole in Donna's heart and that's exactly what he did to Nadine. 66 The Crown maintained that the respondent had an awareness of his propensity for violence and must have foreseen the possibility of inflicting violence upon Ms Michael. In the second murder, the subject of these proceedings, it is true that the number of wounds inflicted upon the deceased were greater than the single wound inflicted in the first murder. It is also true that in the first murder the respondent was a young man of apparently good character. At the time of the second murder the respondent was an escaped convicted murderer. The second murder was committed in the presence of the deceased's young children. It also involved the assault of one of them as an attempt was made by that child to intervene. The child was kicked out of the way by the respondent. In my view, any differences between the two murders do not assist the respondent in these proceedings. 67 Hidden J referred to the "disturbing" letters the respondent wrote to Ms Michael and said: "in any event, I doubt that the offender had sufficient self-awareness at that time to have the insight for which the Crown contended". The contention to which Hidden J was referring was that the respondent "must have been aware of his propensity to react violently to rejection and must have foreseen the possibility of his inflicting violence upon Ms Michael if his worst fears were realised" (par 25). 68 His Honour did not give any reasons for his doubt that the respondent lacked sufficient self-awareness of his propensity to react violently or to foresee the possibility of inflicting violence upon Ms Michael. The letters in evidence before Hidden J were those written by the respondent between October 1998 and mid 1999. The respondent claimed that he had destroyed Ms Michaels' letters. From the letters it is apparent that Ms Michael and the respondent grew emotionally close between October 1998 and January 1999. It is also apparent that the respondent reacted extremely angrily towards a correctional officer during one of Ms Michael's visits to him in December 1998. It was not long after this event that Ms Michael commenced attempts to distance herself from the respondent. 69 From the contents of the letters it appears from about February 1999 that Ms Michael gave the respondent a series of excuses for her failure to visit him. She informed him that she was a prostitute and that he would not therefore have any desire to continue the relationship. She also informed him that she had a serious illness. Neither of these explanations deflected the respondent's letter writing or telephone calls. At one stage Ms Michael had the telephone cut-off and the respondent wrote complaining bitterly that this had happened. Ms Michael also informed the respondent that she had commenced a relationship with another man. 70 The letters that the respondent wrote to Ms Michael were lengthy and repetitive. In quoting from them I have extracted the portions relevant to the matters upon which I am making comment. In doing so I have taken care to ensure that the sense of the statements is accurate and that the statements are not taken unfairly out of context. The respondent wrote on 20 March 1999: I find no letters from you at all and no visit. Now I'm stuck with a girl's name on my chest that doesn't even care about me let alone love me…I can't believe you are throwing our love away just because you are a worker, what a poor excuse…But you have made it clear to me Nadine you do not want to be with me anymore… Obviously you have found someone else… Just fuckin wake up to yourself babe, do you really want to cause me this much pain. If you've got something else I don't give a fuck about that. If you think some other guy is better than me then think that, but I know he's not, so at least if you stay my friend, when you get sick of him you can pick up the pieces of this second best man and have me back… So what if you have another boyfriend, does that mean you have to be so cold to the man who has shown you so much of his love… Please baby stop this selfishness be my friend and for fucks sake just make the effort to come and see me… I have begged you to please come and see me you know how much hurt you cause when you don't bother to show… Look at me 3 am in the morning while you are tucked in with your new boyfriend you won't even give me the time of day …you've really enjoyed destroying my life. 71 On 5 May 1999 the respondent wrote: I've been lied to so much Nadine, now you've come clean that you were with Angelo, how could you do that to me babe…..and this other skunk Angelo, their days will come, every dog really does have its day, you can count on that. 72 On 13 May 1999 the respondent wrote again: Well I guess you're probably just happy with the fact you don't have to be in my life anymore… I'm probably long forgotten by now but my sweetie, and someone has replaced me… It's hard for me to let go Nadine... Only 18 months and we could have been together. Me a free man legally and you as my girl.

73 It is clear from these letters and the letter of 9 June 1999 set out in full in Carruthers AJ's judgment, that prior to his escape the respondent believed that Ms Michael had commenced a relationship with another man. 74 There are also references throughout the respondent's letters in which he compares his then present predicament of rejection by Ms Michael to his rejection by Ms Newland. On 21/22 December 1998 he wrote: I will be interested to hear your response as this feeling of badness is quite strong. The horrible thing is I've only had this feeling once before and it turned out to be true, my worst nightmare. Just like what you'd see on a video. 75 By 7 February 1999 the respondent had formed the view that he should perceive his relationship with Ms Michael to be that of husband and wife. On that date he wrote: You were in the wrong for not showing up and I was in the wrong for carrying on the way I did. Let's both be sorry. I truly am. I was just so devastated, every girl I've ever known has lied to me but you're my wife and you're not allowed to lie to me. 76 On 8 March 1999 the respondent wrote:

But I haven't had a letter for so long from you, cause you have probably just about had enough of me. This is why I must explain some things to you babe, to hope that I can re-gain your full love, which I treasure. Babe it's happened to me before. I lost Donna because of my own stupidity. She loved me more than anything just like you but after two years of being with me she couldn't take my demanding ways and being that young babe I didn't see that it was my fault. I don't want it to happen again with you Nadine, I love you dearly, so I want you to know that I am aware of this problem I have with my personality. As far as everything else goes but babe, you will be happy. I would never hurt you with betrayal, I am 100% loyal, I would protect you with my life and I would love you till I die but you would probably just have to help me improve on this particular problem. I don't mean it babe, this is only the 2nd time I've given my heart to a girl and I don't want to fail again, otherwise I'll be going from girl to girl for the rest of my life and I don't want this. 77 On 13 March 1999 the respondent wrote: I know I'm not very good at relationships Nadine, so I'm having regular fortnightly sessions with the psychologist, in direct regards to our relationship and how I must be in order to treat you like the angel you are. You see Nadine I haven't had a proper relationship in 9 years…and I tried too hard and didn't know how to act. I have only associated with males for the past decade and the way you get respect from them is so simple, it's just a matter of putting fear into them. They have brainwashed me baby, I used to be such a holy man and I will be again with your guidance and God's help.

78 It is apparent that Ms Michael wrote some letters to the respondent in March 1999 but did not write again until May 1999. On 13 May 1999 the respondent wrote: But again my dreams of love have vanished right before my eyes. 79 In an undated letter, from its context probably written in May/June 1999, the respondent wrote: If you…leave me…I'm staying alone for the rest of my life I will never trust another girl. It happened to me once, I get a girl, we are getting married and shit a guy with half my looks and style but a heap of money comes and steals her away from me. Anyway you know the story but I was 18 then and didn't really know how to handle them situations. Today I would simply go over take his money flog him senseless and take my girl back. But I can't fucking take it again, I really thought you would be my wife, you already said yes fuck ya. You can't go Indian giving on marriage, well I hope you won't baby, this is my last shot to get Nadine back in my arms where she bloody well belongs.

80 In another undated letter, from its context probably also written in mid 1999, the respondent wrote: Stop comparing me to the pathetic excuses of men you've had in the past. I am Danny Miles. You understand me I would crush your ex-boyfriends like cockroaches….yes I can be an extremely violent man babe and I am dangerous but one thing I know I would never hurt you but I need your fucking respect. I have so much respect in here and that's no lie, anyone who has got something bad to say about me is a coward cause they know if they say it my face it's a war they won't win. I'm one prick of a guy to have as an enemy. That's not directed at you in any way I hope you know baby, I could never hurt you even though you fucked my head up and I've knocked two guys out in the last two weeks. My anger is not against you its against our situation. 81 These letters demonstrate the respondent's awareness of his capacity for violence and that he knew he could be "dangerous". The continued comparison of the relationship with that of the relationship with Ms Newland and the claimed attendance upon the psychologist, whether true or not, demonstrates an awareness of his propensity to react violently to rejection and the possibility of inflicting violence upon Ms Michael. He stated clearly in his letter of 8 March 1999 that he had a problem with his personality. All of these matters lead to the irresistible conclusion that was contended for by the Crown. 82 The "disturbing" passage in the January 1999 letter to which Hidden J referred in which the respondent referred to putting a "hole" in Ms Newland's heart is in my view inappropriately referred to as "rhetoric" when all of the letters are taken into account. This respondent, in no uncertain terms, informed Ms Michael that he was an extremely violent and dangerous man. On one view, notwithstanding the respondent's protestations to the contrary, the statement: "but one thing I know I would never hurt you but I need your fucking respect" conveys the position that if Ms Michael did not pay to the respondent the respect to which he thought he was entitled, then he may hurt her. That is exactly what happened.

83 Although Stein JA has said that he finds it understandable that Hidden J did not specifically deal with any of these letters because it was apparent that the Crown had not referred to them except in a general way, I must disagree. The Crown had clearly called into question the version of events given by the respondent in his evidence before Hidden J. Mr Maxwell QC said at tr. 58: So, in effect, the proposition he puts is that it was really agreed between them that there wouldn't be contact or much contact. That really is at complete odds with the letters that he is writing. For instance, the letter of 9 June 1999…The Crown submits it is very obvious, not through just that letter, but a number of references to the letters that were extracted in the schedule, that he is most concerned about her not visiting, about her not ringing, about him having no contact and it smacks much more of the reason for escape-he denies it-but being about him wanting to determine what is happening, what Nadine is doing in her life and the Crown doesn't and can't put it as high as him intending to break out to kill her because she is with another man, but certainly there's evidence in the letters of his great concern that she is with another man… 84 It is apparent from this extract of the Crown's submissions before Hidden J that the Crown had provided a schedule of extracts from the letters and specifically referred to them. Hidden J referred only to the two letters extracted or referred to in Carruthers AJ's judgment but as to the balance said only: "I have copies of a large number of letters from the offender to Ms Michael, and in some of them his displeasure about difficulties in their relationship was expressed in no uncertain terms" (par 19). There was no analysis of the letters in relation to whether the respondent had any self-awareness. I am of the view that his Honour erred in concluding that the respondent lacked self-awareness of his propensity as contended for by the Crown. This finding was against the evidence and the weight of the evidence before his Honour. Additionally the fact that the respondent was "moved by his sense of betrayal" as Hidden J accepted (par 26) could hardly be seen as a mitigating factor either in the seriousness of this crime or in the sentence to be imposed upon the respondent. 85 The respondent is a violent and extremely dangerous person. Even imprisonment did not prevent the second senseless murder of another defenceless woman. His antecedent criminal history, the murder of Ms Newland, does illuminate his culpability in the murder of Ms Michael. He was given an extremely good chance to rehabilitate himself after the first murder. In my view it is misconceived to view his sense of betrayal as some lessening of his culpability. It seems to me that such an explanation demonstrates how very dangerous he is. He has killed two people when they, to use his words, did not give him the "respect" he thought he needed. In other words if he feels betrayed, as he did in both cases, he murders the betrayer. Just prior to his escape the education officers within the prison system thought the respondent was "dependable". Within weeks he had escaped and killed for a second time in circumstances so chillingly similar to the first murder. 86 The respondent's culpability in the present offence was indeed extreme. Whilst an escaped convicted murderer, the murder of a woman by bashing her and stabbing her numerous times after kicking a child who was desperately trying to intervene and in the presence of that child, in my view, fits easily into the description "atrocious, detestable, hateful, gravely reprehensible and extremely wicked": the dictionary meanings of the term 'heinous' referred to in R v Arthurell, (Hunt CJ at CL, 3 October 1997 unreported), as referred to in R v Harris (2000) 50 NSWLR 409 at 423. I am satisfied that this murder falls within the "worst category case". 87 It is this Court's responsibility to fix a sentence commensurate with the respondent's culpability. In this case I am of the view that the respondent's culpability is so extreme that he should not have the benefit of the parole system to which Stein JA refers in his draft judgment. He has already had that opportunity and has proved beyond any doubt that he should not be a candidate for such a system. I am of the view that the only way that the community interest in the relevant matters referred to in s 61(1) of the Crimes (Sentencing Procedure) Act 1999 can be met in this case is a sentence of imprisonment for life. 88 CARRUTHERS AJ: This is an appeal pursuant to s 5D of the Criminal Appeal Act 1912 by the Director of Public Prosecutions against the sentence imposed for murder on the respondent by his Honour Justice Hidden in the Supreme Court, Sydney, on 26 February 2002. 89 On 2 February 2001 the respondent pleaded guilty to one count of escape lawful custody on 27 July 1999, pursuant to s 310D of the Crimes Act 1900 (the Act) which offence carries a maximum penalty of imprisonment for ten years and on 2 June 2001 to one count of murder on 1 August 1999, pursuant to s 18 and s 19A of the Act. 90 His Honour sentenced the respondent to a fixed term of imprisonment for two years with respect to the escape lawful custody, to be served at the expiration of the minimum term of his sentence for a previous offence of murder. This sentence is to date from 25 April 2003 and to expire on 24 April 2005. 91 With respect to the murder he was sentenced to imprisonment for a term of twenty-five years to commence on 25 April 2005 and to expire on 24 April 2030. A non-parole period was fixed for nineteen years to commence on 25 April 2005 and to expire on 24 April 2024. 92 A Notice of Appeal asserting inadequacy of the sentence for murder was signed by the Deputy Director of Public Prosecutions on 5 March 2002 and served on the respondent on 8 March 2002. 93 The respondent was born on 13 May 1972. He was brought up in the Concord area. He generally had a satisfactory family life albeit he claimed that he was excessively punished by his father for trivial misdemeanours. 94 His performance at school was average and as a child he learned the piano. 95 On 20 October 1990 the respondent stabbed to death a sixteen year old girl named Donna Newland, he himself being only eighteen at the time. He was tried for the murder of Ms Newland in 1982 before Mathews J and, while he did not deny the killing, he raised issues of voluntariness, provocation and diminished responsibility. Those issues were resolved by the jury against the respondent and he was found guilty of murder. Mathews J sentenced him to imprisonment for eighteen years to commence on 20 October 1990 (the date of his arrest) comprising a minimum term of twelve and a half years and an additional term of five and a half years. Her Honour found that special circumstances existed which permitted her to vary the proportion set out in s 5 of the then Sentencing Act. 96 The minimum term set by her Honour was to expire on 19 April 2003. The additional term of five and a half years to commence on 20 April 2003 was to expire on 19 October 2008. 97 Hidden J summarised the circumstances of Ms Newland's murder as follows. The respondent and Ms Newland had met in Sydney in May 1989 when she was fourteen and he was seventeen. They fell passionately in love and believed that their devotion to each other would last for ever. At the end of that year Ms Newland moved with her parents to the Central Coast of New South Wales, and in January 1990 the respondent moved to Perth. Over the ensuing few months there was correspondence between them which, as Mathews J observed in her remarks on sentence, demonstrated "The continued closeness and intensity of their relationship". 98 However, over time Ms Newland established a new group of friends on the Central Coast and formed a relationship with another young man. The respondent returned to Sydney from Perth and, it seems, that Ms Newland told him that she wanted to live her own life. She reiterated this when he visited her on the Central Coast and she told him about her new relationship. Thereafter he wrote her what Mathews J described as "a barrage of letters", from which it was clear that he was obsessed with her and by the idea that theirs was an eternal love, and that he could not accept that the relationship had come to an end. He telephoned her regularly, the calls being affectionate at times, but abusive on other occasions. 99 There was a body of evidence from former friends of the respondent and Ms Newland, which her Honour accepted, that the respondent told them of his intention to kill her. Ms Newland travelled to Sydney to see the respondent on the day before the murder, and they were observed to be very affectionate. Nevertheless, that night he told a friend of his, whose evidence Mathews J accepted, that he no longer loved Ms Newland and that he was going to "pay her back" by stabbing her. 100 At that time the respondent normally carried with him a large knife, and it was with this weapon that he killed Ms Newland the following day. In the light of the evidence and given the manner in which the issues had been left to the jury, her Honour was driven to the conclusion that the killing was premeditated. 101 Mathews J summarised the circumstances of Ms Newland's murder. She said that it was beyond dispute that the respondent, with a single blow, thrust his knife some eleven and a half centimetres into Ms Newland's chest, almost severing the third rib and entering the ventricle of the heart. Immediately afterwards he helped her across the park nearby where she collapsed. She was lying on her back with the respondent leaning over her when two young men arrived on the scene. The respondent immediately went to an adjacent house to telephone the police and the ambulance. He returned to Ms Newland and prepared her for resuscitation. However, by the time the ambulance arrived, resuscitative measures proved to be too late and she died shortly thereafter. 102 When asked shortly afterwards why he had committed the murder he said, "Because she was cheating on me". 103 In a record of interview with police officers the respondent said that when she was talking to him about her boyfriend he became very jealous and angry. He said, "My anger was so strong I pulled the knife from the back of my jeans and used it on her". Later, he said, "It was a sudden burst of anger and it was totally without thought. It was a reaction that I just did, I just pulled the knife and put it wherever it went. I stabbed her". 104 Ultimately Mathews J was satisfied that the overwhelming likelihood, on the issues as presented at the trial, that the conviction for murder represented a finding that it was a deliberate and premeditated killing. 105 I turn then to the circumstances leading up to the subject murder. 106 Whilst the respondent was in gaol he developed into an accomplished instrumentalist, singer and songwriter. At the correctional centre where he was housed he was involved with education officers in setting up a recording studio, where he recorded some of his songs. According to Hidden J, testimonials from educational staff prior to his escape spoke most highly of his capacity, dependability and commitment. His Honour found much of this to be apparent from some SBS video footage featuring the respondent and one of his teachers which was in evidence before his Honour. 107 Thus it appeared to his Honour that the respondent had made significant progress towards rehabilitation, with the possibility of a musical career upon his release into the community. Tragically, however, it was, according to his Honour, these very achievements which led to his association with the victim of the murder for which he stood for sentence. The victim of the subject murder, Ms Yolande Adivira Michael, had a mutual friend to whom he provided a recording of some of his music. Ms Michael having heard it, became interested in the respondent and in the latter part of 1998 she wrote to him. After they had corresponded for a time she visited him. She became a regular visitor, as well as communicating with him by phone. Although, according to Hidden J, she was aware of the crime for which he had been imprisoned, a loving relationship developed between the respondent and Ms Michael and they discussed marriage. 108 Ms Michael was the mother of two children from a prior relationship. According to the respondent, she told him of circumstances in her life which he later found to be untrue: for example, that her family had been involved in criminal activity and that they had been cruel to her and forced her to use illicit drugs, and she had been raped. The relationship was not without its difficulties. There was a time when her letters and visits became less frequent and the respondent suspected that there was another man in her life. However, the respondent said that they discussed these difficulties and resolved them and that, at the time of his escape he believed the relationship to be still on foot. 109 Hidden J remarked further that it was the respondent's account that in March 1999, Ms Michael told him that she had been diagnosed with a life threatening illness and also that she had been forced into prostitution. It is clear that she had been a sex worker, but it may not have been true that she was forced into that occupation or that she suffered such an illness. Nevertheless, the respondent said that he accepted what she told him at face value and it was this information which led him to contemplate escape. He discussed this with Ms Michael, explaining that he would have the opportunity to escape in July 1999, as he expected then to achieve a C2 classification, which would entitle him to work outside the gaol. His Honour accepted that they discussed moving interstate with the two children and starting a new life. 110 The respondent did attain a C2 classification and he escaped from the John Moroney Correctional Centre on 27 July 1999. By reason of his C2 classification the escape was without difficulty. The respondent made his way to the house at Sefton where Ms Michael was living. She was not at home but he got into the house, the respondent said, by climbing through a window. In the early evening Ms Michael arrived at the house with her two children to whom the respondent was introduced. 111 It was the respondent's evidence, which Hidden J accepted, that Ms Michael was happy to see him and there was no hostility between them. They spent that night and the following day together, and on the following night it was decided, the respondent claimed, that he would travel to Queensland to see if he could arrange accommodation for them there. He intended to make enquiries in that regard through a friend in Brisbane. The respondent said that on 29 July he travelled by coach to Brisbane and saw his friend who believed that she could help him. The respondent returned to Sydney on 31 July, arriving around midnight. By the time he got to Ms Michael's house it was early morning of 1 August. 112 The respondent said that he knocked on several windows of the house, only to hear Ms Michael demanding that he leave or she would call the police. He thought, however, that she might not have realised that it was he. He looked through a curtain on one of the windows, to see a man next to Ms Michael on a bed. That was a man, Hidden J found, with whom Ms Michael had had an intimate relationship for a "few months, although it appears to have been a casual one". 113 The respondent said in evidence which the judge accepted, that he had a patchy memory of what then occurred. However, his Honour was satisfied from the evidence that the respondent entered the house by smashing through glass doors leading on to a verandah. He said to Ms Michael: "Why are you running away from me?". He dragged her towards the kitchen where he obtained a knife. The children emerged from their room, crying and screaming. Ms Michael, the children and the other man fled from the house, but the respondent chased her and stabbed her in the shoulder. He kicked her daughter when she tried to assist her mother. He stabbed Ms Michael several more times, the major injuries being a wound to the neck which perforated the right jugular vein and a deep wound to the chest which penetrated the lung. She died at the scene, the knife still lodged in her chest with the handle snapped off. 114 The respondent ran to a nearby house, where he asked for medical assistance for a gash to his hand and a broken finger. He also asked that the police be called, saying that there had been "an accident". An occupant of the house called the ambulance and the police, and the respondent waited at the house. He was arrested and was taken under police guard to Bankstown Hospital, where he underwent surgery for the injury to his hand. He was discharged later in the morning and taken to Bankstown Police Station, where he was interviewed. 115 Hidden J referred to evidence given before him by the respondent that when he killed Ms Michael he was consumed by uncontrollable anger. He saw her rejection of him as a betrayal. He believed that by escaping he had turned his back on all that he had achieved during his years in prison, and it seemed to him that he had taken that dire step for nothing. 116 At the sentencing hearing, the learned Crown Prosecutor challenged the respondent's account of his reason for escaping and what occurred after he arrived at Ms Michael's home. Reference was made to the fact that Ms Michael had not visited him in prison after April 1999, some months prior to his escape, and he acknowledged that her last letter to him was received in either late May or early June. Thus the Crown contended that, in truth, he escaped because he feared for the future of the relationship and wanted to find out whether she was with another man. This, the Crown argued, demonstrated an abnormal possessiveness similar to that which had led to the killing of Ms Newland years before. 117 Hidden J referred to evidence tending to support that contention. In particular he referred to copies of a large number of letters from the respondent to Ms Michael and commented that in some of them the respondent's displeasure about difficulties in their relationship was expressed in no uncertain terms. His Honour referred to an undated letter in which the respondent wrote: "… you know I'm good enough so why are you continuing to treat (sic) with utter disrespect. Honestly Babe, you're lucky you're not a bloke or I would have broke your jaw. In fact I've broke blokes' jaws for less than that …" 118 In a letter of January 1999 the respondent wrote: "I know you have a lot of confusion, but for fucks' sake, would you just turn to me, tell me everything and trust me. I do things Babe, I'm not a talker. Just ask Donna when I told her to stop playing games with my heart or I would put a hole in her heart. If I say I'll do something, then believe I'll do it." 119 Hidden J referred to the fact that when the respondent was confronted by these passages in cross-examination, he said that he was affected by sleeping pills when he wrote them and that on neither occasion was he suggesting that he would in fact inflict violence upon Ms Michael. 120 The passage from the letter of January 1999 was of course a reference to his killing of Ms Newland. In evidence, he described it as "an indefensible analogy, and … a disgusting one at that". 121 The respondent said that it was written out of frustration and meant no more than that when he made a promise he always kept it. He believed that people had treated Ms Michael badly in the past and he was intending to assure her that he would not let her down. 122 Hidden J referred to the fact that the respondent's evidence was the subject of searching cross-examination, and while he clearly had a motive to put his actions in the best possible light, he did not impress his Honour unfavourably as a witness. His Honour said that his account appeared to be broadly consistent with what he told police on the day of his arrest. He acknowledged that, at the time he escaped, he feared that Ms Michael might have formed another relationship. However, his Honour would not conclude that that was his reason for escaping. His Honour accepted that the respondent and Ms Michael discussed his plan to escape, and that he did so out of concern for her welfare and in the hope that he and she could start a new life in another state. Equally, his Honour accepted his account of his interaction with Ms Michael in the days following his escape. 123 Before Hidden J, the Crown did not suggest that the respondent had escaped with the intention of killing Ms Michael if he found her with another man. On the other hand, the Crown argued that the respondent must have been aware of his propensity to react violently to rejection and must have foreseen the possibility of his inflicting violence upon Ms Michael if his worst fears were realised. 124 Hidden J said that he could see force in that argument, particularly in the light of the passages from the letters to which his Honour referred but would hesitate to make that finding. His Honour said: "Disturbing as those passages and the letters are, I incline to the view that they were rhetorical. In any event, I doubt that the offender had sufficient self awareness at that time to have the insight for which the Crown contended." 125 In response to a submission by the Crown that the subject murder, like that of the murdered Ms Newland, was purely the result of the respondent's inability to accept rejection: in effect, that the respondent killed Ms Michael because he had decided that, if he could not have her, no-one else would, his Honour said: "However, I considered that his emotional response at the time was more complex than that. No doubt his violent reaction was the product of his dominating and possessive personality, but I accept that he was also moved by his sense of betrayal and his belief that he had squandered everything which he had gained during his imprisonment." 126 His Honour rejected a submission by the Crown that the murder of Ms Michael required the imposition of a life sentence. Reliance was placed by the Crown upon the judgment of this Court in R v Harris (2000) 50 NSWLR 409, which carefully considered s 61 of the Crimes (Sentencing Procedure) Act 1999 and the common law principles governing the imposition of a maximum sentence. (On 5 March 2002, the High Court refused leave to Mr Harris to appeal from this judgment.) 127 In considering this submission by the Crown Hidden J referred to the reports before him of Dr Olav Nielssen, forensic psychiatrist, dated 4 June 2001 and that of Associate Professor Susan Hayes, clinical psychologist, dated 14 June 2001. 128 His Honour noted that Dr Nielssen did not diagnose any psychiatric illness and concluded that the respondent did not meet the diagnostic criteria for any recognised personality disorder although he added that he could be described "as having borderline, narcissistic and paranoid personality traits". In particular Dr Nielssen considered that both murders arose from the respondent's inability to cope with rejection and to control his emotional reactions. He saw intensive counselling as the only appropriate method of treatment, but was guarded about the value of counselling as a means of modifying behaviour of that kind. In addition, he said that it is difficult to maintain a long term counselling relationship within the prison system. The best hope he saw for the respondent was normal maturation. 129 His Honour referred to the fact that Associate Professor Hayes noted that the respondent expressed remorse and showed a measure of insight into the effect of the killing on the family of Ms Michael, as well as upon his own family and himself. She thought it possible that his inability to control his anger and disappointment was partly the result of the fact that he had not received appropriate treatment whilst in prison prior to his escape. She concluded that he "needs to deal with both offences in counselling, and learn anger management and inter/relationship skills … It is only after lengthy future counselling and assessment that an opinion could be provided as to his long term risk." 130 His Honour commented that Associate Professor Hayes seemed more optimistic than Dr Nielssen about the benefit of counselling. 131 His Honour noted that the respondent has been undergoing regular psychological counselling since his return to custody. 132 Ultimately, his Honour recognised that the case presented as "a most difficult sentencing exercise". His Honour concluded that it was not a case calling for the imposition of the maximum sentence. His Honour said: "While the similarities between the murders of Ms Michael and Ms Newland are chilling, the differences between them are significant. Unlike Ms Newland, the killing of Ms Michael was spontaneous and was the product of the complex of emotions to which I have referred. Even though it was perpetrated by a man who had killed before and was an escapee from prison, it does not share the heinousness of the crimes with which the Court of Criminal Appeal was dealing in Harris or the cases to which reference was made in that decision." 133 His Honour thus concluded that justice would best be served by the imposition of a lengthy determinate sentence. His Honour considered that the respondent has a reasonable prospect of rehabilitation. His Honour accepted that the respondent is now remorseful and "disturbed and ashamed" by his crime. He pleaded guilty to murder after his legal advisers had considered possible defences, and tendered him appropriate advice. 134 His Honour noted that it was not an early plea of guilty, but nevertheless the circumstances required a discount for the plea of guilty which his Honour assessed at about ten per cent. 135 Taking all relevant matters into account, apart from the utilitarian value of the respondent's plea of guilty, his Honour considered that the murder called for a sentence in the order of twenty-eight years. Allowing a discount for the plea of guilty his Honour reduced that sentence to twenty-five years. 136 His Honour found special circumstances arising from the accumulation of sentences and the need for the respondent to be subject to the sanction of parole for an extended period and thus set a non-parole period of nineteen years. 137 I turn then to the submissions on this appeal by Mr Maxwell QC for the Crown, in support of the Crown case that a sentence of life imprisonment should have been imposed. 138 The statutory basis upon which a court can sentence for life imprisonment is to be found in s 61(1) of the Crimes (Sentencing Procedure) Act 1999, which provides: "(1) A court is to impose a sentence of imprisonment 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." 139 In Harris (at par 87) this Court doubted whether the test under s 61 is effectively any different from the common law concept the "worst case category" which was explained in Regina v Twala (unreported, NSWCCA 4 November 1994) as follows: "In order to characterise any case as being in the worst case category, it must be possible to point to particular features which are of very great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime (as distinct from subjective features mitigating the penalty to be imposed)." 140 Certainly there is no disharmony between the concepts. In any event, the Crown submitted that this case falls within s 61(1) and can also be categorised pursuant to the common law as a "worst category" case. 141 It was argued by the Crown that Hidden J erred in a number of respects. Firstly it was contended that he failed adequately to take into account the significance of the respondent escaping from custody and then committing murder. Although his Honour referred to the fact that the respondent had committed the subject murder, as an escapee whilst serving the term of imprisonment imposed for the first murder, it was argued that his Honour erroneously failed to view it as a feature of substantial aggravation in the murder. 142 It was submitted that the essence of sentencing philosophy is that after the application of proper principles a court may impose a term of imprisonment for a particular offence. The expectation of the community is that such sentence will be served. The reason the respondent was in gaol is because of that particular offence. To escape and commit the same offence really defeats the whole basis of sentencing. It is a complete breach of community expectations of sentencing. As this Court said in R v Camilleri (unreported, 8 February 1990) the fundamental purpose of punishment is the protection of society. 143 It was further submitted that to escape and kill in circumstances "chillingly similar", to the murder for which the respondent was serving his sentence should be reflected with substantial retribution and deterrence as part of the sentence. The second murder has very great significance in the light of the first murder. Even if the second murder had no similarities to the first it would be a matter of extreme aggravation but where there are similarities, as here, it assumes even more significance. The second murder emphasised the inability on the part of the respondent to accept rejection. 144 Next it was argued that his Honour failed to take into account as a matter of aggravation the respondent's awareness of his capacity to kill, when assessing the objective criminality involved in the subject murder. 145 The Crown accepted that his Honour did advert to this factor, but in a context differently, it was argued, to viewing it simply as a feature of aggravation. His Honour referred to this suggested awareness in terms of an argument by the Crown that the respondent knew that if confronted by a situation where Ms Michael was with another man, he would kill her. His Honour found against that argument. 146 Accepting that it was very unusual for this Court to accept error in fact finding by the sentencing judge, it was submitted that this Court should nevertheless conclude that Hidden J erred in rejecting such argument. 147 It was submitted that the passage from the letter written by the respondent to Ms Michael on 19 January 1999, to which Hidden J referred, was cogent evidence supporting the Crown case. I shall refer to this passage as "the critical passage". 148 Next it was argued that his Honour failed adequately to reflect the extent to which the respondent's "dominating and possessive personality" played a part in the murder, in terms both of objective criminality and future dangerousness. 149 It was argued that whilst his Honour adverted to this, his Honour appeared to find that the "betrayal" by the deceased could be seen as a mitigating factor. Thus his Honour appears to have found that the rationale for the murder was that the respondent had been tricked into escaping because of lies told by the deceased and then confronted with this betrayal upon his early return from Queensland. Thus it was said his Honour erroneously distinguished the second murder from the first. 150 The Crown submitted, however, that in both murders it was the "dominating and possessive personalty" that operated to cause the respondent to kill the person he viewed as his possession, when that person had "betrayed him". 151 This is the real similarity between the two cases, the Crown argued, and his Honour had erred when he reduced the significance of the second murder by virtue of this asserted distinction. 152 For the above reasons it was contended that his Honour failed adequately to reflect the "chilling similarity", of the second murder to the first, in terms of objective seriousness and future dangerousness. 153 Finally, it was argued that his Honour failed adequately to take into account community protection. Although his Honour addressed the question of community protection when he noted that, along with retribution and deterrence, the question of the protection of society loomed large in this case. This led his Honour to consider the expert evidence about the respondent's prognosis. His Honour ultimately concluded (wrongly, it was argued) that the respondent had a reasonable prospect of rehabilitation. His Honour said in that regard, "With maturation over the period which he must now serve in prison, together with continued counselling and the pursuit of his artistic endeavours, I have some hope that he will not re-offend upon his release." 154 His Honour appears to have accepted the evidence of the respondent that at the time of the escape the respondent believed that the relationship was still on foot. Further that the respondent and Ms Michael had discussed moving interstate with the children and starting a new life. 155 The Crown argued that the evidence did not support that conclusion and relied heavily upon a letter dated 9 June 1999, which was the last communication between them prior to the escape. 156 The letter is self-explanatory, and I quote it in full: "9th June 99

Dear Nadine, Well I haven't had a letter from you in a couple of weeks, so I thought I'd write and ask why. Not wanting to visit me is one thing, but now with you not writing, does this mean you don't want to know me at all? I hope this is not the case. From day one I was on your side, I have thrown away a friendship with Steve and Trish whom I have known for 8 years, and this does not phase me provided, your still going to be by my side one day. I'm against them because they are against you, but I'm sure you've never doubted my sincerity or loyalty for you. Anyway, what I'm saying is, it would be nice to hear from you. I know you feel bad because you haven't kept any promises, but it's ok, no-one ever has kept their promises to me. I'm no longer going to ask you to visit, I will just get along without seeing you, but I would still like you to write, all the time. It's not going to hurt you to write me a few lines to let me know you care. Who do I always seem to be sitting down writing to, let me tell you it's you alone. I don't even know if you got my last letter 2 weeks ago when I put one if for Geoff as well. I understand if you've just been busy, but even a small one I'll be happy with. By the way, do you have the phone on there, I won't ring myself as I know you wouldn't want me to, but it would be good to be able to get a message through to you, via my mum or someone, if I needed to. Why have you turned away from me Nadine? Anyway like I say, I'm not going to ask in vain any longer for you to come and be with me as it's obvious whoever you are with at the moment is better because they are not in gaol and I can appreciate that, so I'm not expecting you to visit any more I don't want to spoil the relationship you have at the moment, but at least leave some doors open for us, in case things don't work out. It's not going to hurt for you to write to me, it just leaves the opportunity open for you to one day think to yourself 'Danny is out now, I might go and see him'. So this is all I ask of you, don't let us drift apart forever, just write to me every now and then and tell me you're thinking of me, I'll be happy with that. And regardless of what you do and say, my words I told you will remain true, now and forever. And they are that I love you. Danny." 157 For the above reasons, the Crown submitted that the sentence which his Honour imposed was manifestly inadequate and the second murder was one of a kind contemplated by s 61(1). Thus by not giving life imprisonment his Honour imposed a sentence which was manifestly inadequate. Alternatively, it was argued, but not with the same emphasis, that a longer determinate sentence should have been imposed. 158 These submissions were resolutely faced by Mr Bodor QC for the respondent. 159 In considering the Crown submissions it is pertinent to refer to certain parts of the report by Dr Nielssen, other than those to which reference has already been made. Dr Nielssen asked the respondent about his reaction to seeing Ms Michael with another man on the bed. The respondent's response was: "I had been awake for five nights and I was excited to be back. It was not jealousy, it was betrayal. I realised it was all lies and that I had been manipulated to escape. It was more than anger … the realisation hit me with enormous impact." 160 When asked why he did not just walk away the respondent replied, "I couldn't access rational thought … it was gone". 161 The respondent said he remembered "an overwhelming emotion of rage … I had absolutely no control". 162 I quote further from Dr Nielssen's report: "He said that his memory of the events that followed remains unclear. He said 'I walked straight through the glass door cutting tendons in my right hand … I didn't even realise it until I had trouble getting my hand to work when I was knocking on a door afterwards'. He said that he remembered hearing the man yelling at him to stop. He said he (sic) that he assumed that he attacked Nadine inside the house, and could not remember chasing her into the street. He said that he had no recollection of actually killing her, and could only recalled (sic) fragments of his movements until he knocked on the door a few minutes later. He said that he could not remember if any words were exchanged, although he believes that she did not say anything to him and instead ran away. He said that he could not remember Mr Suna or Nadine's children shouting at him.

Mr Miles said that he was not affected by any kind of drug. He said that the crime was not identical to the previous offence, as he said the circumstances and reasons for the offences were very different. He said that he had full recollection of the previous offence, and remembered stabbing and attempting to resuscitate his then girlfriend. He said that prior to that offence he had thought about killing her and himself. However, he said on this occasion he lost his temper and the offence occurred on the spur of the moment, in response to his perception of the situation." 163 Dr Nielssen could find no evidence of any kind of thought disorder and no psychiatric condition was detected. He found no objective signs of mental illness or any form of brain damage. He estimated the respondent's intelligence to be in the average range from his verbal and written expression and his educational attainment. "He showed little concern for Ms Michael, and instead focussed on how she had betrayed him". 164 Under the paragraph headed "Opinion" Dr Nielssen said: "Mr Miles reported mild excitement in the days before the offence, during which he had little sleep. The offence was described as occurring during an uncontrollable rage in response to the sudden realisation that he had been betrayed." 165 The report concluded: "It is very troubling to consider that Mr Miles has killed a second woman in similar circumstances, in the absence of a major psychiatric disorder or any discernible brain damage, and despite at least average intelligence. Repeating an offence of this nature is very unusual. Mr Miles maintained that the two offences were quite different. However, there were several obvious similarities in both the relationships and the offences themselves. The relationships were marked by intense contact by telephone and letter, and distress when the other person withdrew from the relationship. There were also similarities in the letters to the victims of both offences, supporting Mr Miles' assertion that he did not develop emotionally during the nine years he spent in gaol. Dr Phillip's original remarks about Mr Miles' ability to cope with rejection, and his ability to control his emotional reaction apply just as well to the second offence. Mr Miles did not address the attitudes and personality traits that contributed to the first offence during the nine years he spent in prison between the offences, and there is no guarantee that any form of counselling will change his longstanding personality traits, or reduce his risk of further offences of this nature." 166 The concluding sentence of the passages quoted above is of course a matter of concern. 167 I turn then to the report by Associate Professor Hayes. In addition to the interview generally with the respondent, Associate Professor Hayes conducted psychometric testing. As part of the history she received from the respondent, I note the following passage: "He says that the main emotion that he felt as the rage welled up was that he had thrown away eight years of hard work. He says that although he has been in a bad temper in the past, he has never had this kind of rage. He said that it was a different kind of anger completely, because 'consequences did not matter' and he could not even comprehend the notion of the consequences of his actions. The rage hit when he was looking in the house through the windows. He felt as if his mind and body were not working in unison, because his mind did not warn his body that he might be hurt when he walked through the glass doors. The rage was directed at Ms Michael, not the man. He does not recall seeing the children. He cannot recall picking up the knife and does not know if the knife was on the sink or in a drawer." 168 With regard to "Interpersonal Scales", Associate Professor Hayes noted: "Mr Miles is average is terms of dominance in terms of interpersonal relationships and also average in terms of warmth." 169 Under the heading, "Personality Profile" she notes: "The major elevation was on the scale of Suicidal Ideation and this should be addressed immediately. Apart from that he is calm and effective in dealing with stress. He is currently not showing any symptoms of abnormally raised levels of aggression. In treatment, he would be co-operative and non-manipulative." 170 As to counselling, she reported that the respondent is presently working in the MTTC as a sweeper and wants to remain there because he has built up a professional relationship with the psychologist with whom he is having counselling. He says that over the last eighteen months in counselling, he has dealt with more issues than he did in the previous nine or ten years. He says that he suppressed everything about the first offence but now has opened that door. 171 Under "Summary and Opinion" Associate Professor Hayes reported: "The results of psychometric testing indicate that Mr Miles is of average intelligence. There was no abnormality on his personality profile which was consistent with a psychiatric disorder amounting to an abnormality of mind. The only current symptom he has is an elevation on the scale relating to Suicidal Ideation. The personality test indicates that Mr Miles would be a good candidate for treatment and he himself says that he has benefited greatly from 18 months' counselling with a prison psychologist. It appears that Mr Miles had an episode of explosive anger, which appears to be atypical for him, but which nevertheless had tragic results. His reaction was not simply to the fact that he believed that Ms Michael was in bed with another man, but also to his immediate perception that all of his future plans and goals had been betrayed. Whilst the circumstances appear to be emotionally provoking, it is also the case that Mr Miles seemed not to have access to other ways of controlling anger and disappointment, possibly partly as a result of the fact that he received (according to his own report) no appropriate treatment for anger management during the time he spent in prison. Mr Miles needs to deal with both offences in counselling, and learn anger management and interpersonal/relationship skills. I agree with the report of Dr Lucas, in that it is essential that Mr Miles continue to receive psychological assessment and counselling. It is only after lengthy future counselling and assessment that an opinion could be provided as to his long-term risk." 172 It is well established that this Court will interfere with regard to findings of fact by the sentencing judge only if it is demonstrated that the sentencing judge fell into a material error of law and fact, recognising that sentencing judges have a substantial discretion in relation to the view which may be taken of the facts and circumstances of each individual case: see eg R v Warfield (1994) 34 NSWLR 200. 173 The question for this Court is whether this case reaches the level of culpability so extreme as to require a life sentences in terms of s 61(1) and the common law as explained in Twala. This involves an assessment of the respondent's moral culpability and dangerous propensity. It is pertinent then to consider the following oft-quoted passages from the joint judgment (Mason CJ; Brennan, Dawson and Toohey JJ) in Veen v The Queen [No 2] (1987-1988) 164 CLR 465 at 477-478: "In this case, Hunt took into account the relevant purposes of criminal punishment in determining the sentence to be imposed. He was entitled to attach great weight to the protection of society as a factor in that determination. There are two subsidiary principles which should be mentioned. The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Ottewell [1970] AC 642 at 650. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties. The second subsidiary principle material to this case is that the maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which that penalty is prescribed: Ibbs v The Queen (1987) 163 CLR 447 at 451-452. That does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case; ingenuity can always conjure up a case of greater heinousness. A sentence which imposes the maximum penalty offends this principle only if the case is recognizably outside the worst category." 174 I respectfully find the above passage to be of considerable assistance in the resolution of this case. 175 The particular heinousness of the subject murder has to be assessed in the light of a number of factors. 176 The respondent was at the time of his escape serving a lengthy sentence for the murder of a young woman, which offence contained a number of disturbing aspects. It was a brutal murder of a defenceless young woman, motivated by the respondent's jealousy and desire for revenge for having been rejected by a young woman whose romantic interest at the relevant time reposed elsewhere than in the respondent. It was on the respondent's own admission the consequence of "a sudden burst of anger". 177 Mathews J imposed a relatively lenient sentence in that she fixed a minimum term of twelve and a half years and allowed an additional period of five and a half years for the supervision and rehabilitation of the respondent by the Probation and Parole Service. Thus a considerable degree of trust was imposed by her Honour in the respondent. 178 One must acknowledge, of course, the creditworthy manner in which the respondent behaved during the period he served in custody. On the other hand, it was only after he had served less than nine years that he resolved to escape when he was granted the concession of a minimum security classification. Further, irrespective of how realistic it was, the respondent's intention was clearly to avoid detection and remain at large resident in another State. 179 A large number of letters written by the respondent to Ms Michael were tendered in evidence. They demonstrate an infatuation both emotional and physical which the respondent had for her. The same obsessive element was present as in his relationship with Ms Newland. However, at times he remonstrated with Ms Michael. The particular aspects of Ms Michael's murder must then be considered. Not surprisingly, a focal point of the Crown's submission is the critical passage quoted above from the letter dated 19 January 1999 in which the respondent adverts to Ms Newland's murder in what can only realistically be looked upon as a threat to Ms Michael. Unhappily that threat came to pass. 180 Ms Michael's murder was associated with the most disturbing aspects. The sight of another man on Ms Michael's bed enraged the respondent so that he violently broke into her home and thereupon, having seized her, possessed himself of the same type of weapon with which he had murdered Ms Newland. Attempts by one of Ms Michael's daughters to restrain him were met with violence and, Ms Michael, having attempted to escape, was pursued and stabbed to death when the respondent was clearly in a state of frenzy. The fact that the murder took place within the sight of the children of Ms Michael certainly adds to its heinousness. 181 When interviewed by police officers in relation to the second murder, the respondent almost replicated his explanation in relation to Ms Newland's death. 182 As has already been indicated, when asked to relate the circumstances surrounding the death of Ms Newland, the respondent replied, "… I kept telling her how much I loved her and she just kept talking about her boyfriend. My anger was so strong I pulled a knife from the back of my jeans and used it on her." 183 He also said in answer to that question "She was talking about her boyfriend and I was becoming very jealous and angry" (Q29). Later he was asked to explain what he meant by the answer, "I pulled a knife from the back of my jeans and used it on her". The respondent replied, "Well it's like I say, it was a sudden burst of anger and it was totally without thought. It was reaction that I just did, I just pulled the knife and put it wherever it went, I stabbed her" (Q49). 184 So far as substantial retribution and deterrence is concerned, I have referred to the submissions of the Crown (with which it is not possible to disagree), that the essence of sentencing philosophy is that after application of proper principles a court may impose a term of imprisonment for a particular offence and the expectation of the community is that such sentence will be served. 185 The conduct of the respondent in this case amounted, therefore, to an affront of the administration of the criminal law and the punishment of offenders. The criminal courts must be seen to protect and preserve the system from affronts of this nature, otherwise there must necessarily be a loss of confidence by the community in the administration of the criminal justice system. The system, includes of course, the punishment and attempted rehabilitation of prisoners through the operation of the Corrective Services Department. 186 I turn then specifically to the asserted dangerousness of the respondent. 187 In the following evidence before the sentencing judge, Dr Nielssen, in chief, amplified aspects of his report: "Q. Did you have any other material on that subject past psychiatric history if any? A. Again the reports listed there relating to the earlier trial, the reports by Dr Clark, Dr Jonathan Philips, and Dr Don Tran, and there's also a psychological report by Dr Roberts who holds a Doctor of Philosophy Degree. Q. And were you able to find any evidence of psychiatric illness at any time in his past or indeed at the present time? A. No. Q. And what you have however indicated on diagnosis is that he could be described as having borderline narcissistic and paranoid personality traits. What in essence does that mean? A. It's - I've used the terms 'traits' rather than the term 'personalities (sic) disorder' in the sense that I did not have enough evidence from the life history and the corroborative history of which there was a large amount of that he would meet the objective criteria for the diagnosis for the diagnosis of any personality disorder. Those traits refer to borderline meaning unstable, feeling rejection, impulsive perhaps self defeating, narcissistic referring perhaps to being grandiose, having reduced capacity for empathy, preoccupation with physical appearance and achievements, and paranoid meaning suspicious, quick to take offence, untrusting. Those were the consolation (sic) of personality traits that emerged largely from the corroborative information rather than from the history but from the examination but confirmed in examination to some degree. Q. On the last page, page 8, you've expressed a view as to future dangerousness in effect have you not? A. Yes. Q. And in that opinion, the original remarks of Dr Philips the psychiatrist have been of importance to you, is that right? A. Yes. Q. Doctor Philips having reported in the early 90's that the first murder reflected an inability of the prisoner to cope with rejection and an inability to control his emotional reaction, do you see those two factors operating pretty much in the same way in relation to this murder? A. Yes, there was a - I thought there was a strong similarity in his emotional response even if some of the circumstances were different. Q. And you say that nothing that was or no attempt was made to address those problems during the nine years that he spent in prison prior to the second murder? A. To be fair to Mr Miles it was - it was not so much no attempt on his part but no attempt on the programme (sic) within Corrective Services to identify him as having a particular need or provide him with treatment. Q. Is it your view that counselling of some type could reduce the risk of him committing a similar offence if ever released again? A. I - yes it is my view that it could change him but I can't promise it. I can't guarantee that it would be any change. There's just no - I was trying to think for a moment of any evidence of the affect [sic] of treatment on people with these sorts of personality abnormal personality traits and the current view is that there is little affect [sic]. Q. That counselling would have little affect [sic] is that - A. No, it's not guaranteed to change those traits over time over and above the natural maceration [maturation] that would take place. HIS HONOUR: Q. Do you distinguish Doctor between treatment and counselling? A. Your Honour I think the only treatment indicated would be intensive counselling." 188 It is of course of significance that Dr Nielssen could see a strong similarity in the respondent's emotional response insofar as the second murder is concerned to the emotional response described by Dr Philips in relation to the first murder. It is acknowledged of course that there were some circumstances which were different but on the other hand there were many circumstances which were similar. The similar circumstances, in my view, predominated. 189 In re-examination, Dr Nielssen confirmed that there was no evidence that counselling programmes work on personalities such as those of the respondent. Dr Nielssen said there was plenty of evidence that certain types of instructional counselling will help symptoms of depression but the conclusions of the literature on the subject were that there was little influence on personality, particularly in anti-social and paranoid personality. The respondent of course falls into the latter personality category. 190 During the course of the respondent's evidence before the sentencing judge, he was cross-examined by the Crown Prosecutor, Mr Maxwell QC, as follows: "Q. I want to show you a copy of a letter and first off can you say whether it is your letter? (Letter shown.) It is marked 'K' in the material, I think it is tab 3. It has a 'K' in the right-hand corner and the page number is 6. Do you have that, Mr Miles? A. Yes, I do, yes. Q. Do you see there, there is a highlighted part: 'So why are you continuing to treat me with utter disrespect? do you have that part? A. Yes. Q. What does that say, the next sentence? 'Here'? After 'disrespect'? A. 'Honestly'. Q. 'Honestly babe, you're lucky you're not a bloke or I would have broke your jaw'. Is that what you said to her? A. Yes, that is what is written there, that I wrote. Q. 'In fact I've broke bloke's jaws for less than that'? A. If I may say on that, that is, you know, obviously she is never going to be a bloke, so -- HIS HONOUR: Please just take each question as it comes. Your counsel will have the opportunity to re-examine you if necessary. MAXWELL: Q. So you say because she is not a bloke, that is not really a threat that is directed to her, is that right? A. Yes. She is never going to be a bloke, it is a hypothetical - Q. So it is not something you think she would worry about? A. No, I don't. Also, if I may say sir, this letter, you can sort out the writing, how messy it is. It is different from the other letters because this was written under the influence of sleeping pills which a number of letters are. I'd like to make that point. You can tell by the messy writing, spelling mistakes, it is just utter rubbish. Q. On this question of threats, you say you never threatened her, right? Do you accept that? A. Yes. Q. Could I take you to a letter apparently written as part of a series of letters written, starting on Tuesday 19 January. That is marked 4, your Honour. (Letter shown.) It is page 14. About a quarter of the way down the page, even less than that, do you see the words 'I know you have a lot of confusion.' Do you see that, about the sixth or eight lines? A. Yes. Q. Now, first of all do you accept that that is your letter? A. Yes. Q. And is that apparently in January of 1999? A. Yes. Q. And you appear to have read these letters recently, is that right? A. I haven't read them all, I've read some. Q. You seem to have a good knowledge of the details of some of them, would you accept that? A. Some of them, yes. Q. You say 'But for fuck's sake, would you just turn to me. Tell me everything and trust me'. See that? A. Yes. Q. Were you having some difficulties in the relationship at that time? A. Yes, I believe so, yes. Q. What, she wasn't contacting you, or you felt she was lying to you, or any of those? A. Yes. I think that was in regards to her expressing that she didn't believe that I really loved her and I wasn't treating her like a wife. Q. Did that upset you? A. It didn't upset me - oh, yes, it upset me but I tried to explain to her that I was serious about her and I was genuine in the promises I make. I was asking her to trust me. Q. So it did upset you? A. Yes. Q. Enough to hurt her? A. No. Q. Enough to do something to her? A. No. Q. Well, you then go on to say 'I do things babe, I'm not a talker/' See that? A. That's right. Q. What did you mean by that? A. That means when I make a promise, it's not words, I will carry it through. When I say I love her and I'll do things for her, that is exactly what I mean I'll do. Q. Could it have meant that if you told your partner what you wanted and she didn't do it, that you would do something to hurt her? A. No, it couldn't mean that. Q. Couldn't have meant that? A. No. not at all. Q. You go on to say 'Just ask Donna'? A. Yes. Q. Who is Donna? A. Donna was my first girlfriend, related to the first offence. Q. You say 'When I told her to stop playing games with my heart or I would put a hole in her heart', right? A. That's right. Q. Do you say that is a threat to Nadine? A. No. Q. Not at all? A. No, if I may -- Q. You are clearly threatening her? A. No I'm not. Q. You are clearing [sic] telling her if she won't stop playing with you, you will do to her what you did to Donna. A. No. If I may explain, it is an indefensible analogy, and it is a disgusting one at that. Q. It is one you used? A. Yes, but it didn't mean what you are suggesting. It simply means when I make a promise, and I say I'm going to do something, I do it. If I said I would marry her and, and made other promises in addition to that, it meant that I would keep them and I would not let her down. People in her past had let her down, they treated her very badly and she had been abused in the past. Or that was my belief, anyway. Q. You see, in that letter, that bit that I've just read to you, I suggest it is as clear as a bell that if Nadine doesn't stop playing games with you, you were threatening to do to her what you did to Donna. Do you deny it? A. I guarantee that is not what it says, I guarantee it is not what it means. Q. It is just unfortunate that you used it? A. No, it is not unfortunate, it is disgusting that I used it. Q. What prompted you to use it, then? A. Probably frustration, and again with this letter here that has been picked out, it's a messy written one which is also under the influence of sleeping pills, which I guess I can't fully put the blame on the sleeping pills but it is a disgusting analogy, as I said, and I never saying anything disrespectful against Donna which I have here, but it doesn't mean what you suggest, sir." 191 In this context it is relevant to consider pars 25 and 26 of his Honour's remarks on sentence (part of which I have already quoted): "25. The Crown Prosecutor acknowledged that this killing was not premeditated. In particular, he did not suggest that the offender had escaped with the intention of killing Ms Michael if he found her with another man. On the other hand, he argued that he must have been aware of his propensity to react violently to rejection and must have foreseen the possibility of his inflicting violence upon Ms Michael if his worst fears were realised. I can see the force of that argument, particularly in the light of the passages from his letters to which I have referred, but I would hesitate to make that finding. Disturbing as to those passages in the letters are, I incline to the view that they were rhetorical. In any event, I doubt that the offender had sufficient self awareness at that time to have the insight for which the Crown contended. 26. The Crown Prosecutor also argued that this killing, like that of Ms Newland, was purely the result of the offender's inability to accept rejection. In effect, said the Crown Prosecutor, he killed Ms Michael because he had decided that, if he could not have her, no-one else would. However, I consider that his emotional response at the time was more complex than that. No doubt his violent reaction was the product of his dominating and possessive personality, but I accept that he was also moved by his sense of betrayal and his belief that he had squandered everything which he had gained during his imprisonment." 192 His Honour was responding in par 25 to a submission to him by the Crown Prosecutor that the respondent's escape could not be viewed as a plan to escape in order to kill Ms Michael but it could be viewed "as a plan to escape with a possibility that if she is doing something behind his back, if she is, in his view, two timing him, the possibility is that he will exercise the capacity that he knows he has, and he has stated in the letter that he put a hole in [Ms Newland's] heart and that's exactly what he did to [Ms Michael]". This submission was at the forefront of the Crown's submission before Hidden J and also before the Court. 193 When his Honour categorised the disturbing passages as "rhetorical", I assume he was using that adjective in the sense of artificial or extravagant language. The word has, of course, more than one meaning. 194 However, with respect, the events which happened demonstrate that the respondent meant what he said. One can only determine what is in a person's mind by what he or she says and does. Here, there was a harmony between what the respondent wrote and what he did. 195 His Honour rejected the Crown's argument that the killing of Ms Michael, like that of Ms Newland, was purely the result of the respondent's inability to accept rejection. His Honour went on to express the view that his violent reaction was the product of his "dominating and possessive personality" and that he was also moved by his sense of betrayal and his belief that he had squandered everything which he had gained during his imprisonment. A question arises as to whether there is any real difference between his Honour's conclusion and the Crown submission that the respondent's conduct was the result of an inability to accept rejection. 196 It is clear from the passages which I have already quoted from Associate Professor Hayes' report that she was more optimistic about the possible benefits of future counselling than Dr Nielssen. She thought that it was only after lengthy future counselling and assessment that an opinion could be provided as to the respondent's long term risk. Thus an element of uncertainty remains. 197 There is no evidence before this Court as to whether either Dr Nielssen or Associate Professor Hayes was aware of the terms of the letter which contains the critical passage upon which the Crown so heavily relies. It would appear that they did not. However, the position is not clear. 198 With the greatest respect to the learned sentencing judge I do not consider that he gave the disturbing passages in the respondent's letters the emphasis to which they were entitled. It did not require much insight on the part of the respondent, in the light of the disturbing passages, to conclude that the he must have been aware of a propensity to react violently to rejection and to have foreseen the possibility of his inflicting violence on Ms Michael if his worst fears were realised. For myself, I thought the respondent's attempts to explain away those passages during the course of his cross-examination were inadequate. 199 When one looks at the totality of the evidence, the circumstances of the first murder, the correspondence with Ms Michael, the planned escape from the Corrective Services system, the circumstances of the second murder and the psychiatric and psychological evidence, one is driven to the conclusion that the second murder was not "an uncharacteristic aberration", but rather a "continuing attitude of disobedience of the law", to apply the expressions in Veen. 200 Thus, as Veen requires, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. Relevantly, the evidence demonstrates a dangerous propensity on the part of the respondent which shows a need to impose condign punishment to deter him and other offenders from committing further offences of a like kind, again to use the words of Veen. The conclusion is unavoidable, in my view, that the respondent was well aware of his capacity to kill if subjected to what he considered to be betrayal. 201 This takes me to a primary legal argument on behalf of the Crown. It was argued that the terms of s 61(1) are such that if the criteria therein set out are satisfied then subjective circumstances can have no relevance. This submission must, in my view be rejected. It is not consistent with well established sentencing principles and cannot stand with the judgment of this Court in Harris. In that case the Court considered the subjective circumstances at pages 425-426 and at par 105 concluded: "For the reasons already mentioned, I am of the view that the present case is one that answers this description with the consequence that the subjective circumstances could not displace the need for life sentences." 202 The reference by Wood CJ at CL to "this description" is a reference to remarks by Abadee J in R v Fernando (1997) 95 A Crim R 533 at 544-545 in which his Honour referred to the fact that in some cases falling within the category of the worst class of cases, there is little utility in considering the prospects of rehabilitation and the subjective circumstances generally. 203 In other words the appalling objective circumstances may completely overwhelm whatever subjective circumstances there may be, which include the prospects of rehabilitation. 204 There is a two stage process involved in determining whether a life sentence is mandated. The Court must first determine whether on the objective facts the level of culpability is so extreme that it warrants the maximum penalty. The Court must then determine whether the subjective factors are capable of displacing the prima facie need for the maximum penalty. 205 There is no convincing evidence in this case of a realistic prospect for the rehabilitation of the respondent. It is true that during his incarceration prior to the second murder he behaved well and applied himself to his musical training and applied it usefully. However, those good works were necessarily diminished by the circumstances of the escape. A subjective factor is, of course, his relative youth. The plea of guilty must also be considered. 206 In considering whether this matter came within the "worst case" principle, reference was made to a number of other cases in which life sentences have been imposed since 1990. One is mindful of course that the test is not whether the subject murder is the "worst case" but whether it can fall within the category of "being in the worst case category". As explained in Twala this requires particular features which are of very great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime as distinct from the subjective features mitigating the penalty to be imposed. 207 Mr Bodor QC for the respondent submitted that the instant case could not be categorised as having the same degree of heinousness as any of the twenty-one cases in which natural life sentences have been imposed since 1990. 208 The comparison of cases of course does have limited assistance. That is nevertheless an exercise worth undertaking. One notes of course that in the table of cases provided some sentences followed a verdict of the jury and others a plea of guilty. The present case, of course, falls within the latter category. Interestingly counsel were unable to refer the Court to any prior case where the offender was guilty of a murder having escaped from gaol serving a sentence for a prior murder. In that regard this case has distinctive features. 209 There is some similarity between the present case and that of R v Garforth (unreported, CCA 23 May 1994) in that in both cases, there was no psychiatric evidence indicative of an abnormality of the mind leading to the relevant murder. However, as the Court (Gleeson CJ, McInerney and Mathews JJ) held there are some cases in which the circumstances of an offence on their own suggest the possibility of dangerousness, and Garforth was, their Honours held, one such case. Their Honours said in this regard: "The nature of the applicant's actions leads to a question whether he might act similarly in the future. In the present state of the evidence, no finding adverse to him can be made on this matter. However, by the same token, he cannot obtain a favourable finding on the issue." 210 That principle is relevant to the instant case. Garforth was, I note, a case where the offender was sentenced to life in respect of only one murder having been committed. Albeit there was a serious sexual assault of his young victim prior to the murder. Fernando, to which I have already referred, involved only one murder but again a sexual assault was involved. There was, however, a lengthy prior criminal history. 211 In my view therefore, whether viewed by reference to s 61(1) or the common law, the instant murder was one which, allowing for the subjective circumstances, nevertheless reached a level of heinousness which mandated a life sentence. It was classically a case where the level of culpability of the respondent in the commission of the offence by reason of the various circumstances to which reference has fully been made, was so extreme that the community interest in retribution, punishment, community protection and deterrence could only be met through the imposition of that sentence. In this regard I have had due regard to the principle of double jeopardy and to the discretion which attaches to Crown appeals against leniency of sentence as explained in R v Allpass (1994) 72 A Crim R 561 at 562-563. However in this case, as in Harris, in my view the criminality of the respondent and the level of dangerousness are such that notwithstanding the principles relating to Crown appeals, it is necessary for the Court to intervene. The only subjective feature of any note, in my view, is the relative youth of the respondent. However, despite his youth he has killed twice in nine years. I note that Harris was about the same age as the respondent. 212 In my view this case is one in which the sentence imposed at first instance displayed a leniency of such a magnitude that error should be assumed. With the greatest respect, his Honour failed, in my view, to give sufficient weight to the factors relied on by the Crown to demonstrate the high level of criminal culpability involved: see Dinsdale v The Queen (2000) 202 CLR 321 at 339-340. 213 There are two final matters to which reference should be made. The first is the fact that the respondent pleaded guilty. In the circumstances of this case no allowance can be made in that regard. The law acknowledges that there are crimes which so offend the public interest that the maximum sentence without any discount for the plea of guilty, is appropriate: see eg R v Kalache [2000] NSWCCA 2, cited in R v Thomson [2000] 49 NSWLR 383 at par 157. 214 The second matter is the principle of double jeopardy. Bearing in mind the criminality of the respondent and the level of his dangerousness, it is, in my view, necessary for this Court to intervene and impose a life sentence, despite the well-established principles relating to Crown appeals: see Harris at par 137. 215 Thus I would propose that the sentence imposed by Hidden J be quashed and in lieu thereof the respondent should be sentenced to imprisonment for life to date from 25 April 2005. The Court does not have jurisdiction to fix a non-parole period. It is necessary to date the life sentence from 25 April 2005 to comply with s 57(2) of the Crimes (Sentencing Procedure) Act 1999: see R v Robinson [2000] NSWCCA 182 at par 49. ***********

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