1 HIS HONOUR: On 19 July 1999, the prisoner pleaded guilty before me to one count of the murder of Ian Hagarty at Lurnea on 26 October 1997. It was common ground that that count embraced a crime of attempted robbery being armed with a dangerous weapon.
2 The Crown accepted that the plea was made on the basis of felony murder as is referred to in s.18 of the Crimes Act 1900 and conceded that on the facts it did not seek to rely on any of the intentional states necessary for murder referred to in that section.
3 On the hearing of the plea, I was provided by consent with the following statement of facts:-
"At about 5.30 pm on Sunday 26 October 1997, the prisoner, Frank Petrinovic, and a co-offender, Mandie Jancek, drove to the vicinity of the Liquorland Bottle Shop, located at the corner of Hill Road and Reilly Street, Lurnea. Both the prisoner and Jancek travelled there in vehicle MOW-739, a 1983 Holden Commodore sedan owned by the prisoner.
The prisoner got out of the vehicle in Reilly Street. He put on a black balaclava and surgical gloves and armed himself with a loaded .32 calibre Argentina brand revolver. At the time he was also carrying a red plastic Grace Bros. shopping bag.
The prisoner walked into the Liquorland Bottle Shop through the Reilly Street entrance. He walked towards the cash register and confronted the two employees on duty, Ian Hagarty and Troy Stephens.
The prisoner ordered the two employees to the ground. Both complied. The prisoner stood over both employees and pointed the loaded revolver in their direction. The prisoner threw the Grace Bros. bag he was carrying behind the counter and said, 'fill up the bag'. Mr. Hagarty stood up and said, 'alright mate, I'll do it'.
At that point a struggle started between the prisoner and Mr. Hagarty. During the struggle, two shots were discharged from the revolver by the prisoner. One of the bullets struck Mr. Hagarty in the right side of the neck. The bullet partially severed the left pulmonary artery of the left lung and travelled through the left posterior rib cage. In the opinion of the forensic pathologist who carried out the post-mortem examination on Mr. Hagarty, the death of Mr. Hagarty was caused by this gun shot wound. The second bullet did not enter Mr. Hagarty's body. It created a combined entry/exit wound.
Mr. Hagarty continued to struggle with the prisoner after the shots were fired, eventually taking the revolver off the prisoner and staggering away. He later collapsed in the driveway area.
Around this time, a number of the customers in the shop came to the aid of Mr. Hagarty. The prisoner was restrained by the customers in the driveway area.
At that point the co-offender Jancek entered the shop on foot and attempted to pull away the customers who were restraining the prisoner. She was unsuccessful and she left the shop. Jancek then returned a short time later driving vehicle MOW-739. She drove the vehicle into the bottle shop, and drove at the prisoner and the customers, narrowly missing a number of people.
This resulted in the prisoner breaking free of the customers for a short time. The prisoner attempted to get into the vehicle driven by Jancek, but was unable to do so. The prisoner then picked up a house brick and threatened the witnesses who were trying to detain him.
The prisoner ran out onto the footpath of Reilly Street where he was again restrained by customers until police arrived. The prisoner was taken into custody by police, together with the co-offender Jancek who was restrained by witnesses in the motor vehicle she was driving.
Mr. Hagarty was taken by ambulance to Liverpool Hospital, but soon after died of his injuries.
Located at the scene was the loaded revolver used by the prisoner, the balaclava worn by the prisoner which was removed by one of the witnesses who tried to detain him, surgical gloves worn by the prisoner, and the Grace Bros. shopping bag.
A search was made of the vehicle owned by the prisoner. Located in the vehicle was a radio scanner which was set on the police channel for the Liverpool area, and a box of surgical gloves.
The prisoner was taken by police to Liverpool Police Station. Later he was taken to Liverpool Hospital where he was treated for injuries sustained by him at the scene. The prisoner was later returned to Liverpool Police Station where he was interviewed. The prisoner stated that he did not wish to comment about what had occurred."
4 The detail of that statement was not in contest before me and I was provided with statements from the various witnesses to support it. I accept that statement as setting out the immediate factual context of the offence.
5 Subsequent to the entry of the plea, the sentencing proceedings were stood over to enable preparation of appropriate material by the Crown and preparation of relevant written submissions. When the matter came back before me, in addition to the two victim impact statements, which were provided to me during the plea and which I treated in accordance with s.23C of the Criminal Procedure Act 1986 and the principles set out in Regina v. Previtera (1998) 94 A. Crim. R. 76, I was provided with two documents summarising the prisoner's appalling prior criminal record and also his gaol movements. Those documents are annexed to this judgment. They refer to the numerous previous armed robbery and other serious offences committed while the prisoner was on parole or while an escapee. The present offence was committed some four and a half months after the prisoner's release from custody and whilst he was on parole.
6 Although the documentation including the document provided to me setting out in extenso the prisoner's prior record refers to various different birth dates, I have been informed that the prisoner was born on 15 March 1960 and is thus presently 39 years old and will proceed on that basis.
7 I have been further informed that prior to his entry into an adult gaol at the age of 18, the prisoner had spent a considerable period of his life from the age of 10 onwards in institutions.
8 The annexed document headed "Gaol movements" calculates the prisoner's total time in custody not including the time in juvenile detention centres or institutions and their equivalents, as 17 years, 18 days, ie., the prisoner has been in gaol for almost all of his adult life and in institutions for the greater part of his life. His time at liberty has been almost entirely as an escapee or whilst on parole.
9 In addition to the material with which I was provided concerning the prisoner's prior record, I was referred to the decision of the Court of Criminal Appeal of 18 September 1990 in respect of three applications by him for leave to appeal against sentence, which applications were refused. In the judgment is set out at some length and in some detail the circumstances of the 12 offences of armed robbery, one offence of larceny of a motor vehicle, two offences of escape lawful custody, two of assaulting police in the execution of their duty, in respect of which the prisoner had been sentenced to a total head sentence of 14 years and a total non-parole period which expired only shortly prior to the commission of the present offence.
10 Although the prisoner pleaded guilty and is therefore entitled to the benefit of s.439 of the Crimes Act, that plea was entered but a week before trial in circumstances in which the prisoner was arrested at the scene of the crime which was witnessed by numerous persons, immediately after its commission. The case against him, in those circumstances, was entirely overwhelming. However, the Crown had sought to proceed on the basis the prisoner had an intent to kill or to cause grievous bodily harm or was recklessly indifferent to human life up until shortly before the plea.
11 As soon as the Crown indicated its willingness to rely on felony murder to the exclusion of any intentional basis for the killing, the plea was offered. It is thus of significance as negating a deliberate killing and some, but very limited significance as reflecting in itself an element of contrition or remorse. Nonetheless, the trial itself would have involved some weeks of court time and the attendance of numerous witnesses had it proceeded. In that sense, there has been a saving to the community which at least reflects on the prisoner's part some consciousness for others from which he might benefit by way of showing some prospect of conformity with the requirements of society.
12 The prisoner gave evidence on his own behalf during which he expressed sorrow and contrition. I have no doubt that his expression of that before me in the witness box was genuinely felt. It accords with what he said to Dr. Westmore whose report of 19 August 1999 was in evidence and with the observations of Sue Jefferies, Clinical Nurse Consultant and Rhonda Danylenko, Department of Community Services, AOD Worker, both from the Corrections Health Service in their report dated 30 July 1999. I accept from that evidence rather than the plea that he has some degree of remorse for what he has done and some sorrow for the harm that he has caused.
13 I turn to the role in this offence of the prisoner's use of and addiction to drugs and his previous offences.
14 The reports to which I have referred and the prisoner's own evidence disclose that he had first started using heroin at the age of 18 at the time of his first gaol sentence. He has apparently been addicted to heroin or using methadone, except for some intervals whilst in gaol, over a period of 20 years. His evidence, which was in this regard corroborated by the observations of the authors of the Corrections Health Service report was, that at the time of his release from custody he had been advised to maintain a dosage of 80 mgs of methadone (having been maintaining a dosage of 50 mgs in gaol) but had, contrary to advice, restricted his dosage to 40 mgs, asserting an attempt to fight his addiction, but notwithstanding the advice he had received from AOD workers that a return to heroin use would mean a return to gaol and the provision to him of assistance by way of professional support and counselling, found himself unable to cope, returned to heroin and to his course of violent criminality.
15 The prisoner had used heroin three times on the day of the offence, on the last occasion about 15 minutes before going to Liquorland and had used that day a total of a gram to a gram and a half of heroin. In addition, he had told Ms. Jefferies and Ms. Danylenko, Dr. Westmore and Professor Starmer, with whose report as to the effects of the drugs I was also provided, that he had used about 100 to 120 milligrams of methadone syrup, had taken two Rohypnols and had drunk about half a bottle of Bourbon. The effects of these, according to Professor Starmer, would have been such that it was likely that his ability for clear logical reasoning would have been greatly reduced and his appreciation of the possible consequences of his actions also reduced. Professor Starmer stated that all those drugs have central nervous system depressant activity and therefore the cognitive and information processing functions would be expected to have been impaired.
16 Although on an issue of criminal liability intoxication might go to negate the formation of a specific criminal intent, in sentencing the question of whether it is a mitigating or aggravating feature depends upon the circumstances (see Regina v. Coleman (1990) 47 A. Crim. R. 306 at 327).
17 It is quite apparent that this offence was committed whilst under the influence of drugs in order to obtain money for drugs. It was committed as the culmination of a long history of violent crime committed in the context of drug involvement just as had been the offences dealt with by this court on the applications for leave to appeal against sentence to which I have referred (see Regina v. Petrinovic (CCA, unreported 18 September 1990). Hunt, J. (as he then was), with whom Wood, J. (as he then was) and McInerney, J. agreed, said, at p.9:-
"The citizens of this community are sick and tired of armed robberies conducted by criminals in order to feed their drug habits. The cost of the precautions which must be taken by banks and by other businesses dealing with cash is enormous, and that cost has necessarily been passed on to the whole community. More seriously, the violence so often involved and the fear inevitably engendered in staffs (sic) and in customers alike has aggravated the epidemic-like proportions of this crime wave engulfing the community. So far as I am concerned, this court will continue to support judges who recognise these serious crimes and who impose heavy sentences for them. The community expects it of the courts, and it is bitterly disappointed when undue leniency is shown by the courts because some thug cries that he has had an unhappy upbringing and promises that he will get rid of his drug habit, as has this applicant."
18 Notwithstanding that the Crown did not seek to show that the prisoner deliberately became intoxicated to facilitate the commission of the offence, nonetheless I see no basis on which his crime is mitigated by the effects of the drugs on him. Nor do I see any basis on which his long term drug addiction could be regarded as mitigatory where, whenever he has been at liberty, in order to feed that addiction, he has resorted again and again to crimes of deliberately terrorising others, the appalling consequences of which, even if nothing went wrong, were likely to involve permanent effects on the victims. Importantly as here, such crimes in themselves, even if not committed in circumstances of drug intoxication, have the all too great potential to result in someone's death. Their fatal potential is reflected in the retention of the felony murder provision in s.18 of the Crimes Act. The whole purpose of the conduct involved in the offence of armed robbery with a dangerous weapon is to pose a real threat of death to compel victims to hand over property. Where that death has been so caused there is little room to find the offence is any less culpable and good reason to consider it as at least as culpable as murder committed intentionally.
19 Having regard to these considerations and to the matters referred to by the Court of Criminal Appeal in Regina v. Henry & Ors [1999] NSWCCA 111 by the Chief Justice at 194 and 202, by Wood, CJ. at CL. at 273 and Simpson, J. at 344, I see no basis on which the prisoner's general involvement with drugs or his intoxication on this occasion should in the circumstances of this case be treated as mitigatory. They certainly do not render the objective circumstances of this offence less culpable.
20 The Crown submitted that the case called for the imposition of the maximum penalty.
21 The statutory scheme prescribing the maximum penalty has become complex. By virtue of s.19A, the maximum penalty for the crime of murder is penal servitude for life. Section 19A(2) provides that a person sentenced to penal servitude for life is to serve that sentence for the term of the person's natural life. Part 11 of the Sentencing Act 1989 does not apply (s.13(c)) so that the provision under that Part of minimum and additional terms is unavailable. Section 19A(3) preserves the operation of s.442 which authorises the passing of a lesser sentence than a statutory maximum.
22 Section 431A of the Crimes Act provides that a person is not liable to the punishment of penal servitude for life for any offence except for the offences of murder or certain offences under the Drugs Misuse and Trafficking Act 1985. By s.431A(3) it is provided that where no penalty is otherwise provided for an offence that was formerly punishable by penal servitude for life, that offence is now to be punishable by penal servitude for 25 years. The section also refers to amendments made by the Crimes (Life Sentences) Amendment Act 1989 altering penalties for offences under the Act from penal servitude for life to penal servitude for 25 years.
23 In the event that a trial judge does not pass a sentence of life imprisonment for murder, the maximum sentence that might be passed in the exercise of discretion is at large and is not restricted by the greatest maximum now prescribed for other offences of 25 years.
24 The offence of attempted armed robbery being armed with a dangerous weapon, the foundational felony for the murder felony here is the aggravated form of the offence provided for by s.97 and is punishable by penal servitude for 25 years.
25 At the time of the commission of the present offence s.431B, which came into operation on 30 June 1996, applied. Section 431B, the history and nature of which is reviewed by the New South Wales Law Reform Commission in "Sentencing" Report 79, provides for the mandatory life sentence to be passed by the court on a person 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" (emphasis added). Section 431B(3) provides that nothing in s.431B(1) affects s.442, apparently preserving the discretion. But in the circumstances referred to in s.431B(1), there is no discretion but to impose the life sentence when one has regard to the language of the provision. The criteria appearing in s.431B(1) are those to which regard must be paid not whether the offence was in "the worst class of case" for which maximum penalties were reserved at common law (Ibbs v. The Queen (1987) 163 CLR 447). The statutory criteria in s.431B were developed in the light of previous judicial pronouncements.
26 Prior to the enactment of s.431B and the provision of statutory criteria, the relevant test for the identification of a crime warranty the imposition of a life sentence under s.19A was expressed in Regina v. Twala (CCA, unreported 4 November 1994) in the judgment of Badgery-Parker, J. at 7:-
"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)."
27 In Regina v. Garforth (CCA, unreported 31 March 1994), it was submitted that even absent continuing dangerousness as referred to in The Queen v. Veen (No. 1) (1979) 143 CLR 458, and where there may be prospects of rehabilitation, nevertheless, a life sentence can be appropriate and in that regard the court referred to:-
"… those cases where the level of culpability was so extreme that the community interest in retribution and punishment can only be met through the imposition of the maximum penalty."
28 In the Second Reading Speech on the Crimes Amendment (Mandatory Life Sentences) Bill in 1995, the Attorney-General referred to that statement and described the provision as requiring the imposition of a sentence of penal servitude for life 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 be met "only" through the imposition of that sentence. Otherwise he said s.442 provided for the exercise of a discretion to impose less than a life sentence. The Attorney-General and the drafting of the provision appear to have envisaged that it is the form the murder takes (ie., its factual circumstances) which is relevant. The Attorney-General said:-
"It is appropriate to observe here that the offence of murder takes many and varied forms. It is difficult, if not impossible, to foresee every factual circumstance capable of constituting a murder which, on its face, demonstrates an extreme degree of criminality. We are not so prescient that we can confidently assert that there will never come a time when such a crime calls for something less than life imprisonment. It may well do so when the offender is a juvenile. For this reason the discretion to impose less than life remains, although it is a discretion which cannot be lightly exercised in the face of the principle expressed in the Bill."
29 He had already said that the provision "will mandate a life sentence for those offences to which the legislation applies and leave the community in no doubt of this Government's intention to remain tough on crime".
30 When the successor to the Bill as originally introduced came before the Legislative Council on 17 April 1996, the Attorney-General reiterated his earlier observations, but added in the light of the report of the standing Committee on Law and Justice, a reference to an exemption for juveniles and a greater clarity to the role to be performed by s.442:-
"Section 442 allows a sentencing judge to impose less than a life sentence in the exercise of his or her discretion.
The preservation of that discretion does no more than recognise the possibility that a murder, which, on its face, demonstrates an extreme degree of criminality, may nevertheless call for something less than life imprisonment. For this reason the discretion to impose less than life remains …"
31 The provision plainly is intended to alter the common law applicable to sentencing for crimes for which a mere maximum is prescribed by the legislature.
32 Although the imposition of the sentence is described as lying in discretion, s.431B(1) on its face requires the imposition of the sentence in the event that the court is satisfied of the level of culpability therein expressed.
33 Considering what was said by the Attorney-General and the language used in s.431B(1), it appears that the section is meant to apply to the culpability involved in the commission of the crimes and that is not to be limited as defined merely by the immediate factual circumstances.
34 Even as to those, there is some doubt as to whether the relevant test requires the culpability of the factual circumstances of the individual offence, standing alone, to justify the imposition of penal servitude for life (see Regina v. Street (CCA, unreported 17 December 1996)). It is not necessary to resolve that matter here.
35 To ascertain the relevant culpability, in my view regard must be had to the criteria expressed in the section and the expression of them in Veen v. The Queen (No. 2) (1987-1988) 164 CLR 465 by the High Court when it dealt with the principle of proportionality and the appropriateness of a sentence passed to protect the community against recidivism where the prior record manifests a continuing attitude of disobedience to the law. The court held that in those circumstances a more severe penalty may be warranted to serve the ends of retribution, deterrence and protection of society. It was held that it was legitimate to utilise the previous history to illuminate the moral culpability of the offender or as showing a dangerous propensity or a need to impose condign punishment to deter him and other offenders from committing similar offences.
36 Similarly, the purpose of sentencing has been expressed by Badgery-Parker, AJ. in Regina v. Dean Anthony & Michael Privett [1999] NSWSC 1076 when adopting what had been said by Allen, J. in Regina v. Camilleri (CCA, unreported 8 February 1990). His Honour quoted the following passage from that judgment:-
"In seeking to determine in any case the sentence appropriate to a particular crime it is always of importance to have regard to the gravity of the offence viewed objectively. Unless that is done the other facts requiring consideration in order to arrive at the proper sentence cannot be given their rightful place. A sentence imposed must be commensurate with the seriousness of the crime in the sense that it should, having regard to the all the proved circumstances, accord with the general moral sense of the community. It should also serve as a sufficient deterrent both to the offender and to others. The purpose of that deterrence is to prevent the commission of such offences, and whilst justice and humanity require that the previous character and conduct and the probable future life and conduct of the individual offender should be given most careful consideration, those are factors which are necessarily subsidiary to the main consideration which determines the appropriate amount of punishment, that is the protection of the public. The fundamental purpose of punishment is the protection of society. Unless those basic principles of sentencing are adhered to, errors will occur."
37 I consider that when regard is had to those principles on an evaluation of the particular facts and surrounding circumstances of the crime (in which I include other related crime or criminal record relevant in the sense referred to in Veen (No. 2) (supra)) and the conclusion reached that the level of culpability is such that the community's interests as so identified can only be met by the permanent deprivation of liberty then the maximum sentence is called for.
38 Here the Crown in the context of what had been said in Veen (No. 2) (supra) submitted that the very great heinousness to which Badgery-Parker, J. referred in Twala (supra) must be taken to include not only the actual manner in which the crime was committed, but also the antecedent criminal history of the offender. I accept that submission as applicable to s.431B criteria.
39 Some guidance may be gained from previous decisions for whether in these circumstances this case satisfies the statutory criteria even though they may have been given under the previous statutory or common law regime.
40 The offence of murder by reason of felony murder arising out of the use of a firearm in the course of an armed robbery is treated most seriously by the courts (see Regina v. Mills (Wood, J., unreported 2 June 1994). Here, as in Mills (supra), the prisoner had deliberately and consciously brought to the scene of the crime and presented to the deceased a weapon in a loaded state to commit an armed robbery and in circumstances where resistance or spontaneous or unwilled discharge of the weapon must, or should, have been in contemplation even in the prisoner's intoxicated state. Here the prisoner's record illustrates his familiarity with how the courts regard such conduct even without the fatal consequence. His crime was very grave indeed.
41 The suggestion that cases of felony murder such as this involve a lower level of culpability than cases of murder involving intention to kill and therefore should receive a lower level of sentence, has been rejected by the Court of Criminal Appeal in Regina v. Mills (CCA, unreported 3 April 1995). That rejection occurred in facts not unlike those in the present case. The court was of the view that in such circumstances such a case of murder involved a very high degree of seriousness. It did not, however, hold that such was the worst class of case.
42 But it is clear that there may be differing degrees of objective culpability even within felony murder (see Regina v. JB, Regina v. RJH [1999] NSWCCA 93).
43 In Regina v. Salameh [1999] NSWCCA 300, the Court of Criminal Appeal on an appeal against a re-determination of a life sentence to a sentence comprising a minimum term of 23 years and an additional term of the prisoner's natural life, considered the sentence in the context of circumstances not unlike the present. That offender had a prior record almost as appalling as that of the present prisoner and his circumstances had been assessed by the trial judge as follows:-
"The applicant's shocking criminal history and present background cause uncertainty in relation to the question of his rehabilitation. I believe there is a serious question as to the extent to which he would represent a danger to the community on being released to parole. On present indications there is a substantial basis for concluding that he will commit further crimes if he is released. This is not case of an uncharacteristic aberration. It is a case of an offender who has manifested a complete contempt of the courts and procedures of law in this country. In such a case retribution, deterrence and protection of society require that a more severe penalty is warranted than would ordinarily be the case."
44 The Court of Criminal Appeal upheld the sentence imposed by the trial judge applying the totality principle in accordance with what the High Court had said in The Queen v. Pearce (1998) 156 ALR 684. It was not suggested that that record was such that by application to the re-determination situation of the principles which now are expressed in s.431B, the appellant should be denied a determinate minimum term.
45 I have particular regard for the terrible significance of a sentence of life imprisonment as provided for by s.19A, which removes forever the prospect of release, and what has been said in regard to that sentence in such cases as Garforth (supra); Regina v. Petrov (Hunt, CJ. at CL., unreported 12 November 1991); Regina v. Baker (CCA, unreported 20 September 1995) and Regina v. Rose (Levine, J., unreported 3 September 1998).
46 I have compared the circumstance of the present offence with those set out in the schedule of life sentences under s.19A with which I had been provided. The cases are not exhaustive but do embrace most of those where such a sentence has been passed. They include the sentences passed on John Wayne Glover, Rodney Francis Cameron, Malcolm George Baker, Maxwell Harold Trotter, Robert Mark Steele, Ivan Milat, Edwin Thomas Street, Richard William Leonard, Earl Heatley, Arthur Stanley Smith, Garry Zane Glasby and Lindsay Robert Rose. Most of these crimes involved multiple murders with a common factor or connection between the crimes such as would aggravate each (see Street (supra)).
47 Alternatively, they were crimes committed in circumstances of extreme callousness and depravity. They are to be contrasted with the crimes of murder for which sentences other than life imprisonment have been passed, an extensive schedule of which was also provided to me. I have also considered the sentence statistics from the Judicial Commission for what limited assistance they can give.
48 Even where, as here, the commission of the offence is attended by the circumstances and the appalling record I have referred to, and the position is such that, when considered in conjunction with the prisoner's drug addiction, the prospect of the prisoner ever being rehabilitated or, at least, being rehabilitated prior to, as Dr. Westmore put it, "advancing years in and of themselves being … likely to reduce his overall risks of re-offending" is limited, nonetheless, after considering in the way I have described the kinds of case for which the life penalty has been imposed, I am not satisfied , even before turning to the prisoner's subjective circumstances, that the prisoner's present crime meets the statutory criteria.
49 I accept that the life penalty is not reserved for those crimes where there is no possibility of rehabilitation (Garforth (supra)).
50 Having evaluated all relevant matters, I have concluded that this is not a case where the circumstances require the imposition of the sentence under s.431B(1). I am of the view that the community interest in retribution, punishment, community protection and deterrence can be met otherwise than by the imposition of that sentence in the context of the discretion that remains with me. I am therefore not satisfied of the matters of which I must be satisfied before passing the mandatory sentence.
51 I am of the view that the sentence that I will pass will be of such length that, even in the context of Dr. Westmore's observations, the purposes of sentencing referred to in the section and by the High Court in Veen (No. 2) (supra) will be served and that the statutory criteria can be met by a determinate sentence.
52 However, having regard to the prisoner's prior record in the sense referred to in Veen (No. 2) (supra), together with the fact that the armed robbery offence he was committing was itself an offence which approached the worst class of case for such offences, even putting aside its fatal consequences, and to the fact that a life has been taken in this way make it necessary, notwithstanding the prisoner's subjective circumstances to which I will turn in a moment, to pass on the prisoner a sentence of great severity.
53 I note also that it would appear likely, because of the prisoner's record of escapes and breaches of parole, that whilst in custody he will be detained in circumstances of strict security for a substantial portion of his sentence. Whilst this may be onerous for him, nonetheless, it arises because of his own actions and although regard must be had to that matter, it cannot itself or in combination with the other subjective circumstances, reduce the length of the sentence that must be passed to such a point that the sentence would become unduly disproportionate to the extreme gravity of his crime.
54 I turn to matters personal to the prisoner. His incarceration history as summarised by Ms. Jefferies and Ms. Danylenko commenced with his entry to a boys' home at the age of 10½, the Juvenile Justice System at age 14 and to adult gaols at age 18 when he acquired his heroin dependence. He has had very little experience with any other community life or with personal relationships.
55 He had told Dr. Westmore that during the 10 years prior to his release from custody shortly before committing this offence, he had been on methadone and about four to six weeks after his release started re-using heroin, having formed his association with the prisoner Jancek.
56 I take the following material from the unchallenged recitation of the prisoner's prior circumstances in the report of Dr. Westmore.
57 He had initially turned to cannabis at 15 and heroin at 18. He had also tried numerous other illegal substances. He has been unable, despite a number of attempts, to achieve any degree of rehabilitation, notwithstanding his attending the WHO's Programme and having been involved in gaol programmes for many years.
58 He was born in Yugoslavia and came to Australia with his family at the age of one year. His parents separated when he was aged 10 or 11 years. His father took him back to Yugoslavia against his mother's wishes and she had disappeared when he and his father returned to Australia. He lived at that time with his father but his father did not send him to school. His mother, with whom he has lately resumed some contact, lives in Newcastle and he has siblings with whom he has a poor relationship except with his younger brother.
59 Dr. Westmore, after referring to the prisoner's father not sending him to school, continues:-
"Welfare agencies became involved and Mr. Petrinovic was initially placed into the care of family friends who were unkind and possibly abused him. He ran away from that home and was then cared for by a prostitute and her boyfriend. The police caught him and he was put into a boys' home for two years. At that time he could not return to his father because the welfare authorities would not allow this and his mother did not want him.
He was then placed into another institution for two years because there was nowhere else for him to go. He ran away to Kings Cross where he met another young person and they went to Tamworth where the young person had lived.
In Tamworth Mr. Petrinovic and the young person broke into garages, they were caught and Mr. Petrinovic was placed back into a boys' home for nine months. He was aged 14½ at this time.
His mother than agreed to take him back provided he got a job and he then worked with a carpenter until the age of 18. He lived at some stage in Bathurst with the carpenter and his family and he worked successfully there until work ran out and he returned to Sydney.
Back in Sydney he engaged in a break and enter matter and was sent to prison for 12 months and it was at that time that he started using heroin.
On his release he was breaking and entering homes to get money to provide for his heroin habit and he then served another nine months in prison, being released in April 1982.
He returned to prison in January 1983 for two armed robberies, he did four years and escaped from custody once during that sentence. He was then out of prison for four and a half months before being detained again for a series of armed robberies, he received a sentence of 10 years. He was then out of prison again for four and a half months before the current matter occurred.
I asked him about education and he said he attended first form and possibly second form, he is literate. I enquired about employment and he said he worked with the carpenter between the ages of 14½ and 18 but he has held no other employment. He has held some short term relationships and he has some prison tattoos."
60 Dr. Westmore detected no psychosis but concluded his report:-
"This 39 year old man has, from the history, clearly led a life of extreme deprivation. He has been institutionalised for most of his life, this occurred after his parents separated when he was aged 10 or 11 years. The initial disappearance of his mother and later her rejection of him would have been extremely traumatic for this man when he was a child. Mr. Petrinovic's father also appears to have had some difficulties and that man failed to make Mr. Petrinovic attend school which attracted the attention of the welfare authorities.
Mr. Petrinovic has had a severely restricted education and a very limited work history. The most stable period of his life appears to have occurred between the ages of 14½ and 18 when he was working with a carpenter and living for a period with that man and his family.
At the age of 18 while in custody he was introduced to the drug heroin, he developed a habit which extended up until the most recent incident. While serving a term of imprisonment which lasted 10 years he commenced methadone and he continued methadone on his release from custody but he was unable to remain heroin free. The incident before the court at the time occurred as a direct consequence of this man's heroin addiction, his possession of a firearm and perhaps to some extent a degree of polydrug intoxication.
During my meeting with him he appeared to be a subdued, despondent man with a restricted affect. He spoke spontaneously about his feelings of sadness regarding the death of the deceased and he talked about his life in a rather hopeless way.
He no doubt suffers a degree of institutionalisation having been incarcerated for such an extended period of time. He is unskilled and he has had a very limited experience with employment. I am uncertain what 'pre-release support' this man had before his discharge back into the community or what support was available to him in the months leading up to this offence but in many ways looking at his life history one could almost have predicted that this man would have experienced further difficulties when he returned to the community. His deprived background, his lack of education and opportunity, his heroin habit, his history of offending all placed him in the high risk category of being unable to cope, adjust or survive back in the community.
He is resigned to facing an extremely long sentence and he appeared to accept this as being an inevitable part of the sequence of events which followed the death of Mr. Hagarty.
This man obviously is unlikely to be released for a number of years and while it is too early to predict his re-offending risk at this time, one can say that advancing years in and of themselves are likely to reduce his overall risks of re-offending. Hopefully during his incarceration he will receive some drug counselling and eventually become methadone free."
61 Even accepting, as I do, that the prisoner's childhood was deprived, and that in the circumstances his addiction could hardly be described as a considered matter of personal choice, nonetheless it appears to me that at best one can say that the prospect of recidivism is high and that there is little, if any, prospect of rehabilitation except in the sense spoken of by Dr. Westmore. The sentence I intend to impose will involve retribution, deterrence and protection for a period so long that Dr. Westmore's observation cannot, from a view this remote, be predicted as likely to be incorrect.
62 This is a man for whom there is little prospect and against whom, because of the matters to which I have referred, the community is entitled to have protection, in the light of his addiction and the record of the crimes he has committed in feeding that addiction. This is not to say that record is to be used to aggravate the sentence. But it is to say one can find little room for leniency that might otherwise have been compassionately extended where the community is put at such risk and where a crime so grave, as involves the taking of a human life, particularly in circumstances so serious as this armed robbery, has been committed. There is a necessity to deter him and others and to protect the community against his demonstrated dangerous propensity.
63 It would be appropriate since the sentence I will impose already reflects the fact that the offence was committed whilst on parole, that it be dated from the day on which the prisoner returned to custody, 26 October 1997 in accordance with the principle stated in Regina v. Kaiva (CCA, unreported 9 November 1998).
64 I also consider that the length of the sentence and the obvious necessity that the prisoner should be under supervision for a very long while, if on parole after serving such a long custodial period, constitutes special circumstances in that a longer than usual additional term will be required and I am of the view that a lengthy additional term in this case is appropriate as a continuing sanction.
65 Regulation 10A of the Sentencing (General) Regulation 1996 provides that terms or conditions of parole orders must not require the offender to be subject to supervision for a period of more than three years after the date of release but that the Board may, in the case of a serious offender, vary the term or condition so as to extend the period of supervision for a further period of up to three years, once only. Such a condition will become a condition of parole pursuant to Regulation 10 and as a consequence, supervision will be provided pursuant to Regulation 11.
66 Thus up to six years of supervision may be provided, however, the additional term does not exist solely for the purpose of the provision of supervision. Indeed, an additional term should reflect those elements referred to by the High Court in Regina v. Bugmy (1990) 169 CLR 525 and may well include, in addition to a period for which supervision is prescribed, a further period during which the offender remains subject to the sanction of return to custody so as to reinforce rehabilitation and to provide protection, albeit of a more limited kind than that provided for by custody, to the community. At this time I would consider both the availability of that sanction and the extended period of supervision to be most important matters.
67 Having regard to all the above circumstances, I am of the view that a total sentence of 27 years penal servitude with a minimum term of 20 years is called for.
68 Mr. Petrinovic you are sentenced to penal servitude for a minimum term of 20 years to date from 26 October 1997 and to expire on 25 October 2017. There will be an additional term thereafter of seven years to date from 26 October 2017 and to expire on 25 October 2024. The earliest date on which the prisoner will be eligible for release on parole is 25 October 2017.