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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