Regina v Robert Charles VEEN

Supreme Court of NSW|2000-07-07|Before: Sully J, Wood CJ, Badgery-Parker J, Wood J, Grove J, Carruthers J, Newman J, Abadee J, Hunt J

Introduction 1 The applicant, Mr. Robert Charles Veen, seeks to have re-determined a sentence of life imprisonment that was passed upon him by Hunt J of this Court on 17 December 1985. The sentence was passed consequent upon the conviction of the applicant of the manslaughter by stabbing of one Paul Hoson, that crime having been committed on 27 October 1983. The Crown opposes outright any present re-determination. 2 The applicant, when he stood for that sentence, did so with significant criminal antecedents. Two in particular of those antecedent matters have a special relevance to the present application. The first of them occurred on 8 October 1971 and involved the non-fatal stabbing by the applicant of his then landlady. The second of them occurred on 16 February 1975 and involved the fatal stabbing by the applicant of one Terry Ward. 3 What has been said, albeit briefly, thus far will make plain that there is nothing routine about the present application. All to the contrary, the application raises difficult issues of public policy, and difficult questions of law and of fact. Dr. W. E. Lucas, who gave evidence in support of the present application, puts those difficulties, if I may so, very neatly in a report dated 14 January 1997, in which Dr. Lucas says: "Mr. Veen will be a difficult prospect for release, due to his history, his personality, impaired functioning due to brain damage and his long period of institutionalisation. It is important that we are in a position to present extensive and well-organised information to the court when his application is heard. It is difficult to get a broad view of Mr. Veen and all too easy to seize upon one or other of the many aspects of his case." 4 I propose therefore to structure the present judgment as follows: first, to examine the applicant's personal and social history up to the date of the offence of 8 October 1971; secondly, to examine that offence and its aftermath up to the date of the offence of 16 February 1975; thirdly, to examine that offence and its aftermath up to the date of the offence of 27 October 1983; fourthly, to examine that offence and its aftermath up to the present time; fifthly, to identify the relevant law, an exercise which the course of relevant legislation has made unhelpfully technical; and sixthly and finally, to apply the law as so identified to the present application.

The Applicant's History to 8 October 1971 5 The applicant was born on 13 February 1955. Piecing together accurately his early life is not altogether a straightforward exercise. For example, the applicant said in a record of interview on 6 November 1983 that he had been born in Sydney. He appears to have told Professor G. A. Broe, a Consultant Neurologist who saw him in 1997, that he believed that he had been born "in the Bourke district", He is said by Dr. E. Fischer, a Senior Psychiatrist with the Prison Medical Service, who saw him in September 1975, to have said that he does not know where he was born. 6 What I have done for present purposes, therefore, has been to rely generally upon Professor Broe's report. It reads as a careful and thorough document; and it was put into evidence by the applicant as part of the material constituting his supplementary notice of reply to the Crown's statement of facts tendered in connection with the present application. 7 It is convenient to begin with a direct quotation from the history recorded by Professor Broe: "Robert Veen told me that he was born to an Aboriginal mother, he believes in the Bourke district, and was taken from this mother at 1 year of age and placed in the Aboriginal Welfare System, presumably in an institution until he was adopted or fostered by the Veen family in Victoria at 2 years of age. He was one of a total of 5 children in that family and was raised in that family over the subsequent 15 years with a number of problems and absences occurring between 11 and 17 years of age. His oldest sibling was Bernice now aged 47 years of age who lives at Bronte and sees him regularly in gaol. His next oldest sibling was Peter aged 45 years whom he does not see regularly and his younger sister was Marianne now aged 41 years with whom he maintains contact. His youngest brother was Nicholas born some time later now aged 26 years who lives at Albury with 3 children and is a council worker. His stepmother Mrs. Betty Veen is now in her late 60s and his stepfather Ben Veen in his late 80s and he also maintains contact with them. His initial schooling, commencing at about 7 years of age, was at St. Anne's Catholic Primary School in Albury then going to the Christian Brothers at around 10 years of age. After 1 year with the Christian Brothers he was to repeat 6th grade however he was transferred to Wodonga Technical College and remained there for 1 ½ years. He told me that he liked school however he commonly truanted and was returned to Kinchilla's Aboriginal Boys Home at Kempsey at the age of 11 years and subsequently to a Boys Home at Royalston during the next few years. He told me that his truanting and severe behavioural problems commenced following a serious incident of sexual abuse in Wodonga at 11 years of age. Although Robert Veen initially told me this "off the record" he referred to this incident of sexual abuse and subsequent incidents in boys homes between 12 and 17 years of age, on a number of other occasions during the interview. Robert Veen also referred to these incidents in very similar words and descriptions in his interview outlined in the report of Dr. Hugh Jolly of 27/01/1993 and again outlined by Kevin Sherack Psychologist in his report of 15/04/1994 and the incidents are therefore on record. Between 11 and 13 ½ years of age when he left Wodonga Technical School Robert Veen therefore had an extremely disturbed schooling and no subsequent secondary or further education until his time in gaol. When he was 11 years of age he was, as previously noted, sufficiently disturbed to be sent back to Kinchilla Boys Home by his parents, with petrol sniffing on at least one occasion, and truanting from school. It was around this time that he was transferred to Wodonga Technical School where his pattern of truanting and rebellion continued. Robert states that he was sexually assaulted in both Kinchilla and Royalston and that his final sexual assault was by the Superintendent on the day of his discharge back to his parents." 8 It is possible to refine certain of those details; and it is necessary to supplement them with additional material. 9 The better view on the available material seems to me to be that the applicant was fostered rather than adopted by Mr. and Mrs. Veen for the reason that his natural mother would not consent to any formal adoption. That is what the applicant is recorded as having told Mr. Gray, a Probation and Parole Officer, who interviewed him in connection with the preparation of a report in October 1976 for the Life Sentences Review Committee. 10 The sexual assaults to which Professor Broe refers were the subject of sworn evidence from the applicant. It is, sadly, necessary to accept that there is nothing inherently incredible about such allegations. Even so, it is still a question whether the applicant's particular allegations ought to be accepted. I can see no good reason not to accept them. I accept that they occurred; and I accept, therefore, that they explain, at least to some extent, the steady deterioration in the applicant's social behaviour as he entered, and progressed towards, his mid-teenage years. 11 That steady deterioration seems to have combined a number of features with which the Courts are sadly familiar in cases with the applicant's particular type of background: grossly excessive drinking; unstable employment; the bad example and influence of unsavoury friends and associates; and a generalised social disorientation deriving from a lack of any stable sense of social identity. 12 This unhappy pattern of the applicant's existence continued until 1971. It is likely, - although the relevant dating is not able to be fixed precisely, - that by this time the applicant had experienced some paid homosexual encounters. Insofar as that did in fact occur, I accept that it occurred, essentially, because of considerations which the applicant himself put poignantly, and as follows, in his evidence: "Q. When you were drunk or when you were drinking did you think about or did you find relief from thinking about the sexual experiences that you had had? A. I was a street kid at that time, surviving off the streets, and what it was is whether you get cold, are you going to stay out that night or - you know, it all depends how much you can drink or wherever you can get a roof over your head but at that stage I was still - I was still contemplating on murder myself, suicide. ……………… Q. Was any part of your shame related to the lifestyle, by that I mean male prostitution, you were then engaging in? A. I don't think I did male prostitution - like surviving off the street is one thing, trying to cope with the living on that street without anything. I mean, if somebody offers you something, you know, I wasn't going to knock it back." 13 In January 1971 there occurred an incident which is described sufficiently for present purposes in the following passage from the remarks on sentence of Hunt J on 17 December 1985: "Early in 1971, at the age of almost sixteen, the prisoner was living in a boarding house in Sydney and working for an elevator service company. On 14 January 1971, he failed to go to work and spent most of the day wandering around the city. Later in the day he drank four schooners of beer. That evening he was apprehended by police in Hyde Park. The reason for that apprehension is not stated in any of the records but the later reference to a proposed charge against the plaintiff of being exposed to moral danger leads me to infer that he was even then offering his services as a homosexual prostitute. (He recently told one of the psychiatrists who examined him that he had, as he put it, "gone commercial" from the age of fifteen or sixteen.) When he was in the dock at Darlinghurst Police Station the prisoner pulled a knife out of his pocket and stabbed himself, puncturing a lung. Whilst in hospital, where he spent a week as a result of his injury, the prisoner was psychiatrically examined and found not to have any psychiatric condition other than a mild depression. No charge was in fact laid against him." 14 In due course, and in or about September 1971, the applicant returned to Albury. He became one of four boarders lodging in a boarding house run by a Mrs. Byrne, a lady then aged some 65 years. On 8 October 1971 the applicant attacked Mrs. Byrne with a knife. In due course he was charged with, and admitted before a Magistrate, the offence of malicious wounding.

The Offence of 8 October 1971 and its Aftermath to 16 February 1975 15 The following facts were placed before the Court when the applicant was dealt with on 15 October 1971: "The complainant a 65 year old woman runs a boarding house at 542 Thurgoona Street, Albury and resides at these premises herself. The young person, Veen, has resided there for the past two weeks, there is also another male boarder and two female boarders. The young person returned to the house about 11.30 pm on the night of the 8.10.71, he had been drinking and was in a state of intoxication. He went to his room where he continued to drink from a bottle of sherry that he had bought earlier in the night, he also had some beer with him which he drank. About 12.30 am he went to the room of one of the female boarders, he drank some beer there and threw all the clothing, and personal property, about the room in an apparent frenzied search for something. He then went to the room occupied by the other female boarder where he did exactly the same thing and also opened, by breaking a hole in it, a piggy bank in the room, he took about one dollar in change and also removed some jewellery from the room. This he took to his own room and left it in the pocket of a pair of overalls in the room. He then went to the male boarder's room and found he wasn't there, neither of the two female boarders were present in the house at the time. The young person then knocked on the door of the complainant's room and told her he wanted to speak to her, Mrs. Byrne came to the door and saw that the youth was obviously affected by intoxicating liquor. The complainant went into the kitchen with the young person and asked him did he want a cup of coffee, he declined this offer and Mrs. Byrne attempted to talk him into going to bed. Veen was rambling on about his various troubles and appeared to be in an upset state of mind. They were both seated at the kitchen table and the young person pulled from his pocket either three or four kitchen knives, that he had taken from the kitchen drawer earlier. He commenced to stab these into the kitchen table and continued his rambling speech. Mrs. Byrne told him to go back to bed and commenced to walk to her room, he menaced her with one of the knives and told the woman to 'Get in your room and get undressed'. Mrs Byrne then grabbed one of the knives and attempted to defend herself with this, Veen lunged at her and cut her lip with one of the knives that he was holding. By this time they were both in Mrs. Byrne's bedroom and the complainant offered Veen her money and told him to get out, he told her he did not want money and continued rambling on. Mrs. Byrne managed to force Veen from the room by menacing him with the knife that she held. When the young person had left the room the complainant locked the door. Veen commenced to knock on the door and kept yelling out. Mrs. Byrne opened her window and climbed out and commenced to run towards the front gate of the premises. Veen evidently heard her do this and ran out the back door, he caught up with Mrs. Byrne at the side of the house and stabbed her, three times in the back and once in the chest. He then went inside and changed his clothes and went back out with Mrs. Byrne, he then acted as if he was greatly concerned for the woman's welfare and attempted to convince her, and people nearby, that some person had entered the house and attacked the woman. Mrs. Byrne was admitted to Albury Base Hospital, the wounds inflicted required stitches in all and were not of a serious nature. Other than his one reference about getting undressed there was nothing of a sexual nature in this attack. He was interviewed and readily admitted committing the attack. Two records of interview were obtained. He was unable to give any reason for taking the money and jewellery from the girls room and it is apparent that there was no intention to steal this property." 16 The hearing before the Magistrate appears, judging from the transcript of the proceedings, to have been fairly brief. It was put for the applicant that the offence had resulted from the effect upon him of high-level drunkenness, which was said to have been getting steadily worse. It was put that Mr. and Mrs. Veen were sympathetic, and supportive up to a point, but that they felt that they could not do what the situation required. The applicant was committed to an institution. In making that order of committal, the Magistrate said this to the applicant: "( I am going) ………….to give you the opportunity to find out when you can take your place outside. And it looks as if you will have to decide not to drink when you do come out. And you are lucky, that you have plenty of people who will help you when you do come out. And you realise, this time, the people in charge will have to be careful, and sure, before you come out again that you don't do any harm to anyone when you do come out." 17 Two aspects of the foregoing narrative are deserving of particular mention: first, the obvious, and obviously serious, drinking problem of the applicant was, even at that early age, having such an effect on him as made him potentially dangerous to others; and, secondly, it was obvious, even then, that "the people in charge" would need to be very much on their guard to ensure that the applicant was not released at large into the general community before it was possible to be reasonably confident that he would not continue to be, so to speak, a violent assault waiting to happen. 18 Also worthy of particular note are the following answers of the applicant given during the course of a record of interview conducted with him by investigating police on 9 October 1971: "Q. Would you tell me where you got the knife from? A. In the kitchen it was. Q. At what stage did you get the knife? A. Before I even woke her up. Because I knew I was going to do something. Kill myself or kill somebody else. Q. Are you prepared to tell me whether it was your intention to kill Mrs. Byrne when you stabbed her with the knife? A. No I didn't. I wish it was me. I tried once before you know. Q. Do you mean that you tried to kill yourself once before? A. Yes I did. I got myself drunk and then when the Police came to take me to the Station I drew my knife out and stabbed myself. Q. Whereabouts in your body did you stab yourself? A. Just here (indicates upper chest). Q. What was your reason for doing this? A. I want to die, I don't belong to this world. Q. What makes you think that Robert? A. Cos I don't everything goes wrong. ………………………

Q. You told me that you knew you were going to kill yourself or somebody else, would you tell me when you first felt this? A. When I got home. Q. What do you think made you have these thoughts? A. It happened six years ago. Q. Did Mrs. Byrne ever give you any reason to harm her? A. No I didn't want to hurt her particularly just stab someone or myself." 19 The institution to which the applicant was committed was at Mount Penang. There is not much evidence, either of the actual duration of, or of the course of events during, that detention. Professor Broe says in his report of December 1997 that the applicant: "………..escaped twice and at 18 years of age he returned to Albury. At this time he left Albury travelling north to Townsville". A criminal antecedents report dated 20 November 1985, and being a report tendered without objection to Hunt J in connection with the 1985 sentence, does not bear out Professor Broe's history. The 1985 report notes stealing offences, and some few associated offences, committed in Albury in May 1973; in Wodonga in June 1973; in Mackay in September 1973; and again in Albury in August and in December 1974. 20 Some brief additional information about this phase of the applicant's life can be gleaned from evidence given in 1975 during the proceedings on sentence in connection with the offence committed by the applicant on 16 February 1975. That evidence can better be considered in the context of the following examination of the 1975 offence.

The Offence of 16 February 1975 and its Aftermath to 27 October 1983 21 The bare facts of this offence can be adopted from their summary by Rath J in his Honour's remarks on sentence on 1 August 1975: "The prisoner met Terry Ward at the El Alemein Fountain in Kings Cross on Saturday, 15th February this year. After some conversation Ward invited the prisoner to his flat at Croydon. The prisoner accepted, and the two men spent the rest of the weekend together. Some homosexual activities took place, and for his part in them the prisoner expected Ward to pay him. On Sunday night, after the two men had been drinking heavily, the prisoner asked for payment, but Ward refused. According to the prisoner, Ward's refusal was in these words: "No, you black bastards are all the same, always wanting hand-outs". The prisoner is an aborigine, and the jury was instructed that they might, if they thought it proper to do so, treat Ward's reference to the prisoner's race in the circumstances such provocation as would reduce murder to manslaughter. The answer made by the foreman to the question put to him, however, shows that the jury did not regard the case as one of provocation. In this I think the jury was clearly right, and indeed I was in doubt as to whether in law I should leave the issue of provocation to the jury. What inflamed the prisoner seems plainly to have been the refusal of payment, not the reference to his race or colour, derogatory thought it was. This incident occurred in the kitchen of the flat. The prisoner then took a sharp, pointed knife from a rack, and stabbed Ward in the arm. He then ordered Ward into the living room, where he stabbed Ward three times in the arms and chest. Then the prisoner ordered Ward into the bedroom, where he stabbed him repeatedly until he collapsed and died. The prisoner covered the body, ransacked the room, stole money of the deceased, and left the flat dressed in the clothing of the deceased. During the stabbing it appeared that the prisoner's hand, through the violence of his own blows, slipped on the blade of the knife, thereby causing to himself a wound which severed the tendon of a finger. Next day he went to Royal Prince Alfred Hospital to have treatment for this wound, and another minor one. Later in the day he was interviewed by the police. He initially gave them a false account of the cause of his wounds, but shortly afterwards made a full confession, and co-operated with the police in their inquiries into the circumstances of the crime." 22 The applicant was charged with the murder of Mr. Ward. The jury at trial found him not guilty of murder but guilty of manslaughter by reason of diminished responsibility. Rath J sentenced the applicant to imprisonment for life. 23 The essence of the relevant diminished responsibility was described as follows by Rath J: "This then is not a case of an abnormality of mind which might cause a person to fail to appreciate what he was doing. In fact, the prisoner was well aware of what he was doing, and was aware of his intention to kill. What he lacked was the power to control his desire to kill." 24 Rath J took account of the evidence to which I referred briefly at the conclusion of the preceding section of the present judgment. 25 One of the two relevant witnesses thought that the 1971 stabbing had a common feature with the 1975 stabbing, namely: "the prisoner's problem when the question of his race and colour was brought up". This witness was of the opinion that the applicant was in need of psychiatric assistance; but that he was capable of rehabilitation, albeit with a great deal of persevering effort. 26 The other witness, too, expressed the opinion that the applicant had developed, as he reached his mid-teenage years, a real crisis of personal identity as between the black community into which he had been born, and the white community within which he had been reared. This witness gave evidence that in 1973, when he had most recently seen the applicant, the latter had been so depressed that the witness, who had been the applicant's headmaster in secondary school, had arranged for him to be seen by a doctor. 27 Rath J was very influenced in his Honour's approach to sentence by the fact, which his Honour found, that the applicant was suffering from a form of brain damage "the cause of which is not known". His Honour took the view that this brain damage had given rise in the applicant's case to diminished responsibility of the very unusual kind to which I have earlier referred. Rath J expressed as follows the conclusions that his Honour saw as flowing from that particular form of diminished responsibility: "There can be little doubt that the prisoner, if and when released, will, whilst he suffers from this brain damage, be likely sooner or later to kill or seriously injure one or more other human beings. There is no suggestion that his condition is curable, or in any way responsive to treatment. In his case the deterrence theory of punishment expounded in Radaich's case has no application. Punishment will not deter him, or like minded people, for in certain circumstances they have no control over their impulses to kill. The only principle of sentencing that I can apply is that the community is entitled to be protected from violence. No matter when the prisoner is released, whether it be in a few years or many years, there is the probability that he will again commit a crime of serious violence. Thus the case presents the problem that there is no basis for fixing a term of imprisonment or a non-parole period. The crime of manslaughter admits of many degrees, and the penalty ranges from nominal punishment to penal servitude for life. Normally an acquittal for murder, and a finding of guilty of manslaughter, would carry a lesser punishment than life imprisonment, even where the acquittal is based on diminished responsibility. In that case, the mental responsibility has been substantially impaired, and punishment would normally therefore be less than life imprisonment. But in this case I do not think the ordinary principles of punishment apply. Indeed I do not think it can be properly said, as I interpret the jury's verdict, that the prisoner should undergo punishment. He has to be imprisoned for the protection of the community from his own uncontrollable urges. There is no institution I can send him to; the only alternatives open to me are to release the prisoner or imprison him. The first alternative is of course an impossible one.: 28 All of the foregoing considerations led his Honour to impose the sentence of life imprisonment. 29 An appeal to the Court of Criminal Appeal was dismissed, and the applicant sought leave to appeal to the High Court of Australia. He was granted that leave; his substantive appeal was allowed; the life sentence was set aside; and in its place the applicant was sentenced to imprisonment for 12 years, no non-parole period being specified. 30 The decision of the High Court of Australia is reported at 143 CLR 458. All five of the Justices who decided the case were of the opinion that the life sentence could not be supported by proper principle. Three of the five Justices favoured the substitution of a sentence of 12 years with no specified non-parole period. The remaining two Justices would have remitted the matter of re-sentencing to the Supreme Court, because of a perceived insufficiency of existing evidence on that topic. 31 All five Justices published individual judgments, and it is not possible to compress into a couple of sentences the reasoning particular to each such judgment. All of the judgments question the sufficiency of the evidence before Rath J to justify his Honour's conclusion, earlier quoted, concerning the likelihood of further crimes of violence. There was, as well, substantial criticism of a question which had been put to the jury at trial in an attempt to establish the precise basis of the verdict of manslaughter rather than murder; and there was similar criticism of the conclusion reached by Rath J that the answer returned to that question excluded comprehensively all consideration of provocation. 32 In the light of subsequent events, there are, however, some significant observations by three, in particular, of the Justices. 33 Stephen J said, at 143 CLR 464, 465: "No doubt the whole question of prediction of behaviour in the future is a most difficult one. Its very difficulty is in itself a potent reason against undue weight in sentencing being given to the protection of the community from what is predicted as the likely future violence of the convicted person. Predictions as to future violence, even when based upon extensive clinical investigation by teams of experienced psychiatrists, have recently been condemned as prone to very significant degrees of error when matched against actuality; Professor Norval Morris provided striking instances in 'The Future of Imprisonment: Towards a Punitive Philosophy' Michigan Law Review, Vol. 72 (1974) 1161, at pp. 1164-1173. A later study, …………………… reaffirms Professor Morris' scepticism concerning psychiatrists as predictors of future violent behaviour. However if such, perhaps uncertain, predictions are nevertheless to be employed as aids in sentencing, they should at least be the result of thorough psychiatric investigation and assessment by experts possessing undoubted qualifications for the task." 34 Mason J, (as he then was), said at 143 CLR, 467, 468: "The protection of the community from violent crime, it has always been recognised, is a very important factor to be taken into account in sentencing. It would be surprising if it were otherwise. The court must, in sentencing a person who has been convicted of a very serious offence involving violence, if his record and the expert evidence plainly demonstrate that there is a real likelihood of his committing that kind of offence again if he is restored to liberty, ensure by the order which it makes that he will not be released whilst that likelihood continues.If it should appear that the propensities or predilections of the person convicted are such that the imposition of life imprisonment is necessary to protect the community from violent harm, then the court should impose that penalty. In the case of a very serious offence involving violence, it will rarely transpire, if at all, that a sentence of life imprisonment is disproportionate to the offence of which the prisoner has been convicted, given that he has a prior record of conviction for that class of offence and that he has a propensity, because he is unstable or disordered, to commit violent crime. In saying this it is not my intention to deny, or derogate from, the principle that the punishment to be inflicted must be proportionate to the crime. Rather it is my purpose to say that the conflict between that principle and the object of protecting the community arises in relation to less serious offences where the proportionality principle inhibits the imposition of a long term sentence which might otherwise be thought necessary to protect the community." 35 Jacobs J, who gave what was in substance the principal judgment, said at page 489: "I wish to make it clear that I do not say that there are not cases, many cases, of manslaughter which warrant such a sentence. In particular there are no doubt very many cases where the success of a defence of diminished responsibility will lead to a sentence of life imprisonment, even though that is the same sentence as in the case of a verdict for murder." 36 The aftermath of this decision of the High Court of Australia can be summarised as follows, using for the purpose the materials comprising Exhibits 10 and 11 in the present application. 37 As earlier noted, Rath J sentenced the appellant on 1 August 1975. The decision of the High Court of Australia was handed down on 28 February 1979. Between those two dates the applicant made two applications for release on licence. They were made on 13 June 1978, and on 9 October 1979. 38 Both applications were refused. I cannot locate any precise report and recommendation on the first application; but there is such documentation respecting the 1979 application. It takes the form of a formal submission dated 6 November 1979 made to the Minister for Corrective Services. The submission is very terse. It notes that the applicant's 12 year sentence is due to expire, allowing for eligible remissions, on 22 March 1984; it observes that the applicant "has been rated a very good prisoner on the vocational and general progress scale"; but recommends that the Minister approve the refusal of the application upon the basis that "in the absence of compelling reasons it is premature to consider the prisoner's release at this time". The Minister did in fact so decide. 39 The applicant refused to accept this ruling; and on 11 March 1980 he wrote to both the Minister and to the Chairman of the Corrective Services Commission saying that he was "quite unable to comprehend the reasons for this refusal"; and that he felt that he had been "unfairly treated in this matter". The applicant pointed out that he had the support of a named friend; accommodation; and employment. These representations were fruitless; the authorities taking the view that it was premature to consider a release on licence as soon as a year or so after the decision of the High Court of Australia. 40 In April or May of 1980 the applicant was granted day release for 1 day on the sponsorship of a male nurse at the relevant Correctional Centre. The relevant report noted that the applicant's "conduct and industry" were "satisfactory". At about the same time the applicant was given approval in general terms for his participation in sporting or other leisure activities outside the precincts of his then place of detention. 41 In July 1980, according to papers in Exhibit 10, the applicant was seen at Cessnock Correctional Centre by a psychiatrist. The report diagnoses "an element of depression, hopelessness and low self-esteem"; and notes an attitude of sullenness and of aggression, observing: "……………. .he feels that if he were released from prison now he would probably hit the first person who 'stepped onto my toes' ". 42 In that very same month, and on 21 July according to Exhibit 10, the applicant was involved in an escape from his then custody. This event notwithstanding, he was again approved, on 28 July, for day leave on 9 August. A report dated 29 October 1981 from Mr. G. Coates, a Probation and Parole Officer, says of this escape from custody: "He escaped on 21 July 1980 whilst on a run outside the perimeter of the centre, but was apprehended the same day. Veen claims that he made no attempt to avoid apprehension and that he only escaped as a token gesture to prove his point. The prisoner said that he wished to leave gaol as a free man, rather than 'on the run' and that he was unable to cope with the temptation to escape at Cessnock. On 1st October 1980 at Cessnock District Court Veen was sentenced on the escape to six months accumulative, which makes his present date of release by remission the 5th September 1985. A ramification of the escape is that Veen is not eligible for minimum security placement until mid-1983, which makes adequate preparation for eventual release more difficult." 43 On 27 April 1982 the applicant made a further application for release on licence. Once again he stressed the availability of domestic support "within a family environment", and "excellent prospects of employment". 44 Comprehensive reports were made in connection with this application. Mr. Hart, the relevant Probation and Parole Officer, reported on 16 July 1982 as follows: "It would now appear that Mr. Veen's release back into the community could be optimistically considered. In view of the length of sentence served, his present positive attitudes, his need for community supervision and the present availability of relevant community supports, release to licence is recommended." 45 On the same day the officer in charge of the relevant Parole Unit supported that recommendation, commenting that "(t)he release arrangements made probably could not be better……………..". 46 The foregoing reports were supplemented by an earlier report made on 29 October 1981 by a different Probation and Parole Officer; and by a report of 27 May 1982 from Dr. Fischer of the Prison Medical Service. 47 The 1981 Probation and Parole report concluded: "However, Veen has always displayed a willingness to discuss his problems with both parole officers and psychologists. Earlier in his sentence, he attended G.R.O.W. groups at Long Bay and appeared to derive some benefit from these. He also had discussions with Mr. Harold Hunt, an aboriginal alcohol counsellor. The prisoner has stated that he would like to become involved with G.R.O.W. groups and Young Men's Christian Association activities in the future, and that he would rely heavily on Mr. Jack Walker of Prisoners Aid, in Sydney. Veen reportedly causes no problems at Maitland Gaol and is said to be quiet in his general demeanour. He does not present as a hostile person and it would seem that he is willing to co-operate and respond to interest shown in him. Whether he would be able to sufficiently moderate his drinking in the future is a matter of concern. It is considered that he would need considerable support in this regard. In discussion he appears to exhibit some social values, which were lacking during his teenage years and he does express some concern for others. However, he has few social contacts, apart from Jack Walker who is currently overseas and it is difficult to establish other personal contacts whilst Veen remains at Maitland. It has been arranged that the prisoner will appear before the Maitland Programme Review Committee on 3rd November, 1981, regarding the possibility of his return to a suitable gaol at Long Bay, or preferably the special care unit. If steps could be taken towards formulating acceptable and supportive plans to assist Veen to cope emotionally, it is considered that, if a reasonable response was forthcoming, then he could be realistically considered for conditional liberty." 48 Dr. Fischer's report gave a notably cautious approval to the proposed release. He said: "4. As he presents today, I would suggest that Mr. Veen is still suffering from a personality disorder and under pressure, could well resort to alcohol. Nevertheless, since he has served a period of 7 years and the time will come when he will have to be released, I would recommend that his case be favourably considered and perhaps he should be tried to release on licence, with the provision that he remain under the strict supervision of the Probation and Parole Service and as far as possible, an attempt be made that he obtains a job. I understand that his sister and her husband are willing to accommodate him at Leeton. 5. I would also suggest, that if release to licence is granted, that he should be involved at one of the local Community Health Centres and remain under some form of medical and perhaps psychiatric supervision." 49 The principal evaluation of the licence application came from Mr. C. G. Holmes, a Probation and Parole Officer who said in his report that he had been in contact with the applicant since 1981. Recommending release on licence, Mr. Coates made on 14 December 1982 the following evaluation: "I consider that the prisoner is showing more insight and awareness of his situation than he had demonstrated in the past. Given that if released he will receive support from members of his family, his chances of successfully completing licensed supervision are improved. It would be both in the community's interest and of benefit to the prisoner that he be released to supervision as opposed to released by way of remission. Such a course would accord with the sentencing judge's views. Considering all the circumstances release to licence at this stage is appropriate" 50 This evaluation was supported by the Senior Probation and Parole Officer who expressly adopted the proposition earlier herein noted, that the available release arrangements "probably could not be better". 51 Exhibit 10 contains a handwritten minute from the Chairman of the Corrective Services Commission. It is dated 19 August 1982, and it reads: "What about escape in 1980? Is he being advantaged?" 52 Somebody whose signature I cannot decipher has responded on the following day: "Track record is not good and post-release plans do not provide much ground for optimism. Suggest review mid-'83." 53 It is not clear from Exhibit 10 what happened in the wake of that latter recommendation; but on 5 January 1983 the Chairman submitted to the Minister a minute recommending the release on licence as "not necesssarily……… premature at this time". 54 The Minister duly approved the applicant's release on licence; and on 11 January 1983 the formal approval of his Excellency the Governor was given to such release on licence, the licence to contain certain particular stipulated terms. The licence itself was signed on 14 January 1983, and the applicant appears to have been released on 17 January 1983. 55 On 17 August 1983 his Excellency the Governor approved a recommendation that the licence be revoked. Exhibit 11 brings together such papers as are available to explain the revocation. It thus appears that as soon after his release as mid-March 1983 the applicant had left the family environment in which he had said he would be living; had left the employment that had been found for him under the auspices of the National Employment Strategy for Aboriginals Scheme; and had travelled interstate without the prior knowledge of his supervising Probation and Parole Officer, failing thereafter to maintain the required contact with that officer. 56 These breaches notwithstanding, no action was then taken to revoke the licence. It seems to have been felt by those responsible that these breaches were regrettable but remediable. 57 By July 1983 even this extraordinary administrative forbearance had been exhausted by reason of continuing breaches by the applicant of the supervision and reporting conditions of his licence. As noted, the licence was formally revoked; and the relevant administrative wheels began to turn to the end of bringing the applicant back into custody. 58 The applicant was not in fact arrested until his apprehension in Brisbane on 6 November 1983. By then he had again stabbed another person to death. This slaying was that of Paul Hoson on 27 October 1983. 59 Before proceeding to examine that crime and its aftermath, it is, I think, useful to pause in the present narrative and to reflect upon some features, relevant obviously to the present application, of the events described in this section of the present judgment. 60 It is fair to acknowledge at once that the present application is supported by a body of professional psychiatric evidence that is much more precise than that available in connection with the release on licence application made almost 20 years ago. It is equally fair to acknowledge that the applicant himself is now older and, no doubt, somewhat more mature. 61 It is nonetheless the case that then, as now, the applicant put forward a forceful and articulate case for his release back into the general community. Then, as now, the applicant pointed to accommodation that was in fact available and that, in principle, did in fact offer him a chance of domestic stability. Then, as now, the applicant had in fact good prospects of lawful employment. Then, as now, the applicant protested that he had come to understand the error of his past offending conduct, was repentant of it, and had a firm purpose of amendment. Then, as now, the applicant had the sympathetic support of all those who had been charged with his custody and supervision. 62 And yet, as will presently appear, within a few days more than 9 months after his release to licence, he had committed a second killing in circumstances that were chillingly similar to those of the 1975 stabbing of Mr. Ward. 63 Obvious questions then arise. How, it might well be asked by any sensible member of the community, could such a thing have happened? Or been allowed to happen? And what is different now? 64 It is not yet time to attempt answers to these questions; but the Court would be, in my own opinion, at fault were it not to bring the questions into the plain light of day, and then to acknowledge that they cannot but cast an obvious shadow over the present application.

The Offence of 27 October 1983 and its Aftermath to Date 65 The bare facts of this offence can be stated conveniently by reference to the following extract from the remarks on sentence of Hunt J: "The prisoner had casually known the victim Paul Edmund Hoson previously. The victim was a homosexual and the prisoner himself had some years earlier been a male prostitute in the Kings Cross area. They met near the Kings Cross Rex Hotel in Macleay Street, Potts Point, and drank some beer together at that hotel. The victim propositioned the prisoner to have sex with him in his nearby apartment. The prisoner told the victim that he would think about it. He had some more beer to drink and ultimately accepted the victim's proposition, returning with the victim to his apartment in Elizabeth Bay. The extent to which the prisoner was or was not affected by alcohol at this stage is an issue to which I will return later. When they arrived at the apartment, the victim apparently proposed certain sado-masochistic acts, to which the prisoner demurred. The prisoner went to the kitchen of the apartment and started to make some coffee. Whilst he was at the sink, the prisoner says in his record of interview, his mind "sort of went" and he started "thinking about the past". He saw a bread knife in the sink and he grabbed it in one hand and a cup of coffee in the other. He then saw the victim standing naked at the doorway of the kitchen and he threw the coffee at him. As the victim jumped back, the prisoner moved in and stabbed him a number of times in the stomach and the heart. The victim managed to hit the prisoner over the head with a glass vase, but the prisoner continued to stab him. He told the police that he intended to kill the victim - indeed, that he had decided to kill him when they first entered the apartment - but he could offer no reason why he did so. There had been no dispute or fight between them before he stabbed the victim. He left the knife in the bathroom, where he had a shower, and he gathered up some of the victim's clothes and his wallet and left the building by climbing down some scaffolding. He left the wallet in a hotel lavatory and travelled north to Queensland. He was arrested in Brisbane some days later. According to the medical evidence, the victim received two stab wounds through the same chest opening which went right through the heart and into the upper lobe of the left lung, and two further stab wounds through the same chest opening downwards, causing lacerations to the liver. The deepest of these four wounds was nineteen centimetres. All four wounds were apparently inflicted in rapid succession. There were also two stab wounds through the abdomen which went right through the liver and into the stomach, one five centimetres and the other six centimetres deep. There was as well a stab wound which went from the right side of the victim's neck through into the left side, puncturing the membrane at the top of the lung on the way. This was fifteen centimetres deep. Finally, there were some small lacerations to the victim's hand which were caused by him attempting to defend himself. Death was caused rapidly by the stab wounds to the heart and stomach. Some wounds were probably inflicted just after the victim had died." 66 The applicant was charged originally with the murder of Mr. Hoson. On the second day of the trial the Crown accepted a plea to manslaughter. It was made clear both by the Crown and by the applicant that the basis of the plea was diminished responsibility. 67 Hunt J's remarks on sentence are lengthy and detailed. They contain a careful review of the applicant's relevant history; and it is not necessary to repeat the detail of that review. 68 More to the point is the following paraphrase of the essential process of reasoning that led Hunt J to impose upon the applicant a sentence of penal servitude for life:

1] The applicant suffers brain damage due to alcohol abuse.

2] The balance of available medical opinion supports the conclusion that the prospect of violent reactions by the applicant is related, by reason of his brain damage, "to a mixture of alcohol and some form of stress" .

3] Those situations of potential violence are not confined to situations triggered by incidents of male prostitution.

4] The killing of Mr. Hoson was an example of the effect of alcohol as a cause of the applicant's losing control of his aggressions and reacting "violently in a destructive rage" .

5] The whole of the applicant's history justifies a finding "that the only supervision which will ensure that (the applicant) will not re-offend in this way is that which is available when he is in custody" .

6] It was a proper approach in principle to have regard to the applicant's criminal record when considering, independently of any question of mitigation arising from mental condition, what sentence might be warranted in the instant case.

7] The sentence so warranted "for a person who, disregarding his abnormal mental condition, has now committed for the second time a vicious killing unmitigated by any extenuating circumstances, and who has previously committed a third similarly unprovoked attack but with less serious consequences" , is penal servitude for life.

8] The applicant "is - potentially, - indeed certainly - a continuing danger to society when released, in that he is likely to kill again or to inflict serious injury upon his release, by reason of his brain damage should he be under the influence of alcohol and find himself in any situation of stress" .

9] It is therefore not possible to mitigate, by reason of mental abnormality, the putative life sentence. 69 Hunt J concluded his remarks on sentence by making the following observations with which I entirely agree: "Before any further licence is contemplated, it should be necessary for far greater certainty on the part of the psychiatrists that this man is fit to lead a life outside gaol, when he will be only partially supervised, without danger to the community." 70 I shall return in the final section of the present judgment to this proposition. 71 An appeal against the sentence so passed by Hunt J was rejected by the Court of Criminal Appeal in a judgment delivered on 5 December 1986. Once again, the High Court of Australia granted special leave to appeal; but on this occasion the substantive appeal was dismissed by a majority of four out of a Bench of seven Justices. The decision was handed down on 29 March 1988 and is reported as Veen and The Queen (No. 2) at 164 CLR 465. The majority published a joint judgment; and it will be necessary to consider later in the present judgment some of the things said by their Honours. 72 The applicant's progress since he entered custody on 6 November 1983 is amply chronicled in three reports from the Serious Offenders Review Council, - (Exhibits C, D and E); by various certificates and documents personal to the applicant, - (Exhibits 1, 4, 5 and 9, and parts of Exhibit 3); by various medical reports, (the balance of Exhibit 3); and by the oral evidence given at the hearing of the application. 73 The earliest Serious Offenders Review Council, (or Serious Offenders Review Board as it then was), Report is dated 3 March 1993. It notes that the applicant had been classified A2 on 18 February 1986, and B on 12 December 1990. It notes that the applicant has been "a quiet, well-behaved prisoner", but it expresses continuing concerns about his sexual orientation and predilections. It notes a developing interest on the applicant's part in his Aboriginal culture; commenting particularly about his perceived "talent with his pencil and ink drawings of which he is justifiably proud". It draws attention to the "highly visible signs of his positive personal attributes"; but balances this comment with some very guarded observations of various "profound indicators of the complexity of (the applicant's) personality". 74 The concluding observations of the report are: "At first sight it is difficult to disagree with the view expressed by the sentencing judge in 1985 that the only way to ensure that the prisoner does not kill again is to hold him in custody. This view would seem to be based on the premise that the prisoner is so brain-damaged and his desire for alcohol is so overpowering that he is unable to control his own behaviour. When affected by alcohol he becomes aggressive. Such aggression however has never been observed in Veen's day to day performance within the prison system, where gaolmade liquor although forbidden has been available at times as contraband. In addition to the problems mentioned by the Honourable Justice Hunt there is also the problem of continuing inner conflict arising from the discord between the traits inherited from his natural parents and the structures imposed in childhood by his adoptive parents making him a person with two cultures. Whether Veen's release can ever be viewed with optimism will ultimately depend on his own preparedness to accept responsibility for his behaviour. Not only must he accept responsibility, he must be prepared to take determined action to alter his attitudes and to acquire the motivation to lead a different lifestyle. He may be finding peace and satisfaction in developing his artistic talent." 75 A second report, this time by the re-named Serious Offenders Review Council, is dated 20 February 1997. This report traces in the usual way the applicant's prison history, detailing his classifications, prison transfers, periodic psychiatric and alcohol counselling reviews, and, generally, his ongoing personal development in prison. This report concludes: "Although his conduct and attitude in prison continue to be satisfactory, psychiatric and psychological opinions support the view that VEEN will remain a potential danger if he indulges in alcohol at some time in the future. When VEEN'S sentence has been re-determined by the Supreme Court, the Serious Offenders Review Council will develop a plan for his management during the remainder of his sentence. Hopefully he will progressively be reduced in security classification as and when appropriate, leading ultimately to his inclusion in unsupervised Day Leave and Work Release programmes in preparation and testing for his eventual return into the community." 76 At the time this report was written, the applicant had lodged an application pursuant to the then section 13A of the Sentencing Act 1989. There had been either no, or not much, apparent progress in that application, largely due, as it would seem, to changes in the applicant's relevant legal representation. 77 Various medical reports are attached to the Serious Offenders Review Council Report. They seem to me to highlight the following three propositions:

1] That the applicant appears to have a normal, and not an organically damaged, brain.

2] That the better view of his sexual identity is that he is heterosexual rather than truly homosexual.

3] That the danger of alcohol abuse, given any opportunity for it, continues to be a live one. 78 A third Serious Offenders Review Council Report, and the most recent one, is dated 14 March 2000. 79 This report notes that the applicant's classification was relaxed from a B to a C1 classification on 9 April 1997. A C1 classification entails that the particular prisoner so classified should be confined by a physical barrier unless in the company of an officer. It is convenient to observe that there are two further relaxations in classification available under the relevant Regulation. They are: C2, which entails that the prisoner so classified need not be confined at all times by a physical barrier but does require some level of supervision; and C3, which entails that the prisoner so classified need not be confined at all times by a physical barrier and need not be supervised. 80 This report concludes: "Since the Council's report of 20 February 1997, VEEN has continued to receive good custodial reports and has applied himself in counselling with the Alcohol and Other Drugs Worker and the Psychologist. He is not a management problem. The Council will continue to monitor and guide VEEN's counselling and program participation, and if his life sentence is re-determined it will develop a management plan aimed at preparing him for return into the community." 81 The supporting materials which are attached to this report show that the applicant has continued to make progress towards eventual consideration for release back into the general community. The materials detail worthy works undertaken by the applicant, albeit under supervision, outside the prison proper. It was clear from the applicant's oral evidence how much these opportunities mean to him. I accept that such is the case. 82 The March 2000 report highlights the following matters which I consider to be relevant for present purposes: 83 1] There has been as yet a consistent refusal on the part of the Serious Offenders Review Council to relax further the applicant's current C1 classification. Decisions in that behalf were taken on 5 June 1997, 19 November 1997, 1 June 1998, 3 December 1998, 9 February 1999 and 30 December 1999. 84 2] On 9 February 1999 the Serious Offenders Review Council recommended to the Commissioner for Corrective Services that the applicant be allowed to participate in work at the La Perouse Project, Yarra Bay, with his existing C1 classification.

The Commissioner, on 12 February 1999, refused to approve that recommendation. The Commissioner minuted his decision in the following terms: "While noting (and to some extent supporting) the views of the Chairperson, and other members of the SORC and ITC staff, I believe it would be premature to commence what amounts to a work release program without going through normal classification procedures and steps."

3] The Serious Offenders Review Council minute paper, (annexure C to exhibit E), notes that the Serious Offenders Review Council recommendation of 9 February 1999 was decided on the casting vote of the Council's Chairperson, the other Council members having been evenly divided in opinion: "due to the conflicting issues involved" . It is not clear from the available evidence how, precisely, these "conflicting issues" were defined by the Council members. 85 In bringing the relevant history up to date, sight must not be lost of the oral evidence given at the hearing. I think, however, that it is more useful to deal with that evidence in the concluding section of this judgment, and after having considered the correct definition of the applicable law.

The Relevant Law 86 It is necessary to consider: first, the relevant statute law; and secondly, the relevant case law. The relevant statute law can be summarised as follows:

1] The present application was made on 26 November 1991. At that time the Sentencing Act 1989 was in force. In force as part of that legislation was a section 13A providing relevantly as follows: " 13A Existing life sentences 1) In this section: "existing life sentence" means a sentence of imprisonment for life imposed before or after the commencement of this section, but does not include a sentence for the term of a person's natural life under section 19A of the Crimes Act 1900 or section 33A of the Drug Misuse and Trafficking Act 1985. (2) A person serving an existing life sentence may apply to the Supreme Court for the determination of a minimum term and an additional term for the sentence. (3) Any such person is not eligible to make an application unless the person has served at least 8 years of the sentence concerned. (4) The Supreme Court may, on application duly made for the determination of a minimum term and an additional term for a sentence: (a) set both: (i) a minimum term of imprisonment that the person must serve for the offence for which the sentence was originally imposed; and (ii) an additional term during which the person may be released on parole (being either an additional term for a specified period or for the remainder of the person's natural life); or (b) decline to determine a minimum term and an additional term. (5) A minimum term set under this section is to commence on the date on which the original sentence commenced or, if the person was remanded in custody for the offence, the date on which the first such remand commenced. (6) If the Supreme Court sets a minimum term and an additional term under this section, the sentence comprising those terms replaces the original sentence of imprisonment for life. (7) A minimum term and an additional term set under this section are to be taken to have been set under this Part but are not required to comply with the other provisions of this Part. (8) If the Supreme Court declines to determine a minimum term and an additional term, the person who made the application may not re-apply to the Court within the period of 2 years from the date of the Court's decision, or such shorter period as the Court specifies when making that decision. (9) The Supreme Court, in setting a minimum term and an additional term under this section, is to have regard to: (a) the knowledge of the original sentencing court that a person sentenced to imprisonment for life was eligible to be released on licence under section 463 of the Crimes Act 1900 and of the practice relating to the issue of such licences; and (b) any report on the person made by the Serious Offenders Review Board and any other relevant reports prepared after sentence (including, for example, reports on the person's rehabilitation), being in either case reports made available to the Supreme Court; and (c) any relevant comments made by the original sentencing court when imposing the sentence, and may have regard to any other relevant matter." 87 In 1993 section 13A was amended by the Sentencing (Life Sentences) Amendment Act 1993. The Act came into operation on 21 November 1993. Transitional provisions in the Act provided that the amendments made by the Act would not be applicable to any section 13A application made before the date of commencement of the amending Act, that is to say before 21 November 1993. The present application having been made on 26 November 1991, the 1993 amendments to section 13A did not apply to that particular application. 88 Section 13A was further amended in 1997 by the Sentencing Legislation Further Amendment Act 1997. The amendments thus effected entailed a substantial re-fashioning of section 13A; but the only such amendments that are relevant to the present particular case are amendments which inserted a new sub-section (4A); a new sub-section (9)(c); and a new sub-section 10A.

The newly inserted sub-section (4A) was in the following terms: "In considering such an application, the Supreme Court is to have regard to all the circumstances surrounding the offence for which the life sentence was imposed, and all offences, wherever committed, of which the person has been convicted at any time (so far as this information is reasonably available to the Supreme Court).:

The new sub-section (9)(c) was in the following terms: "the need to preserve the safety of the community" 89 The new sub-section (10A) was in the following terms: "The Supreme Court, in exercising its functions under this section: "(a) must have regard to and give substantial weight to any relevant recommendations, observations and comments made by the original sentencing court when imposing the sentence concerned, and (b) must give consideration to adopting or giving effect to their substance and the intention of the original sentencing court when making them, and (c) must, to the extent that it declines to adopt or give effect to those matters, state its reasons for doing so." 90 "The 1997 amendments, as thus noted, were given retrospective effect by the Sentencing Amendment (Transitional) Act 1997. That statute inserted into the relevant Schedule of the Sentencing Act 1989 a clause which, if expressed intelligibly, would read as follows: "The amendments made by the Sentencing Legislation Further Amendment Act 1997 to section 13A apply in relation to an application made by any person under that section before 8 May 1997 (as well as in relation to applications made on or after that date), unless the application had been fully dealt with or had been fully heard, with judgment reserved before 13 May 1997." 91 The present application falls within the provisions of that clause in the relevant Schedule to the Sentencing Act. 92 The Sentencing Act 1989 was repealed by the Crimes (Sentencing Procedure) Act 1999 which came into operation on 3 April 2000. Schedule 2 to that Act deals with various savings, transitional and other provisions. Part 2 of Schedule 2 brings together a number of consequential provisions in order to take account of the effect upon other sentencing legislation of the 1999 Act. Division 4 of Part 2 of Schedule 2 makes such provision in connection with the Sentencing Act 1989. Clause 21(1) of Division 4 provides that an application under section 13A of the 1989 Act that had been made, but not determined, before 3 April 2000 is to be determined in accordance with Schedule 1 to the 1999 Act. Clause 21(2) provides, however, that clause 21(1) does not apply to an application referred to in that clause which I have quoted in paragraph 89 above, as in force immediately before 3 April 2000. 93 This tortuous, not to say tangled, legislative path leads to the conclusion that section 13A of the Sentencing Act 1989, in the form in which it stood after the insertion of sub-sections (4A), (9)(c) and (10A), is the statute law governing the present application. 94 It is important to note, also, that the Serious Offenders Review Council has a distinct, independent and critical function to perform in the case of any prisoner who is sentenced to imprisonment for more than 3 years, the sentence having a minimum term and an additional term. I shall say later something more particular on this topic. 95 The relevant case law falls into two categories: first, cases dealing with the general discretion of the Court to refuse to set a determinate sentence at all, and with the principles properly governing the exercise of that discretion; and secondly, cases where a determinate sentence has been set by the Court, but where the additional term set by the Court has been the whole of the offender's post-minimum-term life. 96 As to the discretion to refuse to set a determinate sentence at all, I have had regard to the discussions of principle that are to be found in the following decisions: R v Boyd, unreported, NSW CCA 18 September 1995, R v Cribb, unreported, NSW CCA 4 November 1994, R v Dennis, unreported, NSW CCA 28 October 1992, R v Lannigan, unreported, NSW CCA 31 August 1992, R v Glen [1999] NSW SC 1018 (Wood CJ at CL); R v Lawson, unreported, Badgery-Parker J, 31 May 1994. 97 The following excerpt from the judgment of Badgery-Parker J in Cribb is fairly representative of the way in which the relevant principles have been expressed: "When a judge dealing with an application under section 13A (and carrying out, as the authorities hold, a sentencing exercise which differs from an original sentencing only because of the resort to hindsight which the statute authorises) declines to fix a minimum term and an additional term, that judge makes an order which has the effect of confirming the sentence of penal servitude for life originally imposed. That sentence, by reason of the substitution of the provisions of section 13A for the former provisions of the Crimes Act relating to release on licence, is a sentence which has the same incidents as a sentence of life imprisonment imposed pursuant to section 19A - that is to say, it is a sentence which the person must serve for the rest of his or her natural life, without any eligibility for release on parole (but subject to the possibility of a subsequent successful application under section 13A). In effect, the refusal of an application under section 13A is tantamount to the imposition upon the applicant, as the consequence of the new sentencing exercise carried out by the judge, of the maximum sentence available for the offence. That this is so is reflected in the authorities to date, which clearly establish that, as has been submitted on behalf of the applicant, an application should not normally be refused unless the appropriate sentence is one for the remainder of the applicant's natural life." 98 There is ample case law from which it is possible to glean at least a broad pattern of principle concerning the circumstances in which a sentence redetermined in accordance with section 13A of the 1989 Act may properly fix an additional term for the whole of the offender's natural life. Attached to this judgment for ease of reference is a schedule of 16 cases of that kind. No one of them is identical in its facts and circumstances with the present particular case. I have in no way used them, or any of them, as determinative of any aspect of the present application. I have used them for two purposes only, namely: first, in order to get some indicative idea of the kind of circumstances that might be thought sufficient to justify a whole-of-life additional term; and secondly, in order to get a similarly broad indicative idea of the kinds of minimum terms that have accompanied whole-of-life additional terms. 99 I have found particularly helpful the following examples of judicial approach to the appropriateness in a particular case of a whole-of-life additional term as part of a re-determined life sentence. 100 In Leaver, the sentencing Judge said: "However, in view of the somewhat pessimistic nature of the psychiatric evidence as a whole and in particular the most recent report, …………….., I consider that an additional term of life is required. Bearing in mind the serious nature of the subject offence and the applicant's prior criminal record I do not consider that there would be any element of purely preventive detention in such a sentence." 101 In Schneidas the point was discussed more discursively as follows: "There is however a special element which I propose to reflect in my assessment which is peculiar to this applicant. In general principle it is apt to take into account that a period of imprisonment is likely to be served in particularly arduous and/or isolated circumstances: cf R v Burchell 1987 34 A. Crim R. 148; Regina v Rogerson Court of Criminal Appeal, unreported 16 December 1992. For a period approaching four years the applicant was so detained in the Goulburn High Security Unit and I consider that objective justice requires that circumstances which would justify a discount from time to be served in the future must, in a resentencing exercise such as this attract a like weighting in respect of arduous and isolated custody already undergone. It is not my task primarily to determine just when the applicant will be ready for release into the community and to set a minimum term accordingly. Actual release is the entrusted function of the Offenders Review Board. I cannot fail to recognize the difficulties which the task implies in the case of the applicant. Subject to what amounts to minimal spans of the enjoyment of liberty the applicant has since childhood been confined to institutions of one kind or another. Assuming the earnestness of the reports of the applicant's conduct - whether reported as good or bad - it is obvious that the applicant's behaviour on parole will remain predictive until he faces the tests and challenges implicit in liberty. I apprehend that it was the legislative intent in empowering the ordering of a life additional term and excluding these proceedings from requirements as to proportion between minimum and additional term to add assurance to the community if required by the conditioning of freedom by persons who had shown propensity for repeated serious offence: Sentencing Act s 13A(4)(a)(ii) and (7). It is understandable that a notion of preventive detention would not be countenanced and that the opportunity of an offender for conditional liberty should be provided. As remarked in the Application of McCafferty (unreported, Wood J 15 October 1991) a combination of nature of initial offence and turbulent background of offender will combine to have the consequence that there should be indefinite supervision. I expressly sought submissions from counsel in connection with the contingency of setting a life additional term. Senior counsel for the Crown had of course opposed the fixing of a minimum term at all and it was consistent with that stance that, if one was to be fixed, it should be accompanied by an indeterminate additional term. Senior counsel for the applicant - obviously alert to the reality that minimum term fixes date for eligibility for and not of release - contended that such an order exposed the applicant to possible lifetime custody. It would and I presume that the legislature intended that some offenders should be exposed to such a risk. I am not prepared to infer that the Offenders Review Board will not discharge its function according to law with understanding and insight - the risk of which seems implicit in counsel's submission. The risk to the applicant is avoidable and he would not need me to point out that conduct reflecting an acknowledgment that detention involves retribution as well as rehabilitation and a tempering of his demands accordingly would be likely to operate to his own benefit. I have concluded that the applicant should have an indeterminate additional term imposed. In so doing I accumulate as reasons the circumstances of the offence, the risk of recurrence of anti-social behaviour and the community interest. Incidentally it gives some account to the view expressed by the original sentencing judge." 102 In Lyttle the relevant reasoning was: "However, I believe that the objective facts of the crime itself involving as it did multiple loss of life and the risk of recidivism are such that the applicant should be subject to supervision for the balance of his remaining years" 103 In Cox the reasoning was: "I am persuaded that the additional term ought be a term for the balance of the prisoner's natural life. In that regard I pay considerable attention to the opinion of Mr. Justice Taylor that a life sentence was appropriate. It is to be remembered that this was not a situation where the imposition of such a sentence was mandatory. The determination that that was the appropriate sentence resulted from his Honour's consideration of all the circumstances of the case including, as I would take it, his perception at that time of the need for deterrence." 104 In Robinson, the sentencing Judge said: "Having concluded that he should be re-sentenced, I am of the view that the applicant will nevertheless need extensive supervision when he is eventually released on parole. I also again note the applicant's age (Now 63) and that his process of rehabilitation has already shown commendable signs of having commenced. However, it still has a long way to go. In relation to this applicant much still remains to be done in management and progress through the gaol system. He has not yet been classified C1 for reasons which, as I have indicated, are explicable. The applicant needs to accept change, difficult though that may be. He will need to progress through various stages, before release from within the system. By the time the applicant is released into society he will have been in custody for many years, he will be an elderly man and have a need for considerable support and supervision. Indeed, in my view in the circumstances of this case it is not only in the interests of the applicant, but also in the interests of the community, that his supervision should continue as long as he lives." 105 In Picknell, Wood CJ at CL explained as follows the fixing of a whole-of-life additional term: "This is to reflect the interest of the protection of the community, since I am of the view that long term supervision of the applicant is called for, as well as the interest of personal deterrence. In that latter regard, the applicant should be in no doubt that he risks spending the remainder of his life in prison should he offend in any significant way again." 106 If, as the foregoing authorities make plain, the present exercise is the same, in all essential respects, as a normal sentencing exercise, then there are three remaining important matters to be taken into account. 107 The first matter can be stated in the form of the following excerpt from the judgment of Hunt J in Reg v Beavan CCA NSW, unreported, 22 August 1991: "Sentencing is largely an intuitive process. It does not lend itself to the application of rigid formulas. The influences of the different factors to be taken into account in each case are infinitely various. In many cases, the different factors overlap, and it would be almost impossible for a judge to identify the precise influence which any one factor has had upon the sentence ultimately imposed." 108 The second matter can be established most simply by quoting from the decision of the Court of Criminal Appeal in Reg v Camilleri, CCA NSW, unreported, 8 July 1990: "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 factors 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 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 of the individual offender should be given the 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." 109 The third matter concerns the principles established by the decision, earlier referred to herein, of the High Court of Australia in Veen v The Queen (No. 2). In Reg v Turner NSWSC, Wood J, unreported, 20 August 1992, the principles now relevant were summarised conveniently as follows: "[The decision of the High Court] establishes that a sentence cannot be increased beyond that which is proportionate to the crime, for the purposes of extending a period of protection to society from the risk of recidivism by an offender standing for sentence. It remains permissible for the sentencing discretion to be exercised having regard to the protection of the society, but only within the limits which I have outlined. Where the criminal history of the offender throws light on his moral culpability, or reveals a continuing attitude of disobeyance for the law, or shows a dangerous propensity, for example, because of mental illness, to re-offend and cause serious harm, then those matters may be taken into account but only for the purposes of determining a sentence proportionate to the crime in question."

The Application of the Relevant Law to the Facts of the Present Case 110 In this connection it is necessary, first, to consider more carefully than hitherto the oral evidence given at the hearing of the present application. 111 Certain of that evidence can be dealt with readily and briefly. 112 Mr. Carl Jewell and his wife gave evidence of having had extensive contact with the applicant since about 1986. They gave evidence of having established with the applicant such a rapport as has induced them to offer the applicant a home with them whenever he is released back into the general community. 113 Mrs. Joan McIntyre has had a similar sort of on-going contact with the applicant since about 1989. 114 All three of these witnesses I accept without hesitation as genuinely well-intentioned, and as generally supportive of the present applicant. Generally speaking, I accept their evidence. 115 I think, however, that the weight to be attached to this body of evidence must be, in the nature of things, limited. All three witnesses have a necessarily limited ability to judge the fitness of the applicant to be returned into the general community. Mr. Jewell put his finger precisely upon that limitation in his concluding answer in chief when he said: "I think by association you get a feel about whether someone is genuine, whether you can trust them ………………………". 116 The applicant called in his case Dr. William Lucas, a well-recognised forensic psychiatrist with a great breadth and depth of experience in the psychiatric assessment of criminal offenders. Dr. Lucas' evidence was based upon the contents of a report prepared by him on 10 March of this year. I draw together as follows what seem to me to be the salient features of that report. 117 At page 2 of the report Dr. Lucas says: "I think it is reasonable to say that for practical purposes it has been established Mr. Veen does not suffer from brain damage but has a moderate impairment of verbal learning and memory and some difficulty to concept formation, probably for social and educational reasons. Both Professor Broe and Dr. Perdices found no evidence for frontal lobe dysfunction and they excluded alcohol or head injury as causes for the impairment." 118 At page 6 of the report Dr. Lucas says: "In further discussion he said that he knew he did have an alcohol problem. He remarked that he had heard about alcohol problems and observed prisoners with them coming in and out of prison regularly. He said that 'deters me, eases me away from that'. I mentioned that alcohol was involved in both manslaughters and he said he did not use alcohol as an excuse. He went on to say that it does 'induce blood pressure' until he exploded. I asked if this occurred often and he said that he drank socially, played pool for beers, had raving nights and good nights. He had time to walk away from arguments. I asked him how he would control his drinking if released in due course. He told me that one thing he could say was that when he had left prison in 1983 and gone to stay with his sister he had gone to a club one night with her and had soft drinks. However, two months later it was her birthday and he was asked to have a drink with her and 'the next minute …………….'. He said he did not want to drink." 119 Later, and at page 10 of the report, Dr. Lucas returned to this question of alcohol, and said: "Abuse of alcohol has been considered by most assessors as being the most important factor, or at least the most reliably identified one, although obviously it could not have operated alone. It is also the problem which most lends itself to remedial action through counselling, perhaps medication, or simply prohibition. Unfortunately as Mr. Veen has been in prison, removed from significant access to alcohol and apparently not significantly tempted by other substances, he has not had the motivation or perhaps sufficient insight to understand that alcohol is a problem he should be tackling well in advance of any prospect for release. I believe he needs intense counselling and education so he can develop and articulate strategies for dealing with the problem when he is again exposed to alcohol." 120 On the topic of the likelihood of future violence on the part of the applicant, Dr. Lucas expressed at page 8 of his report the following views: "I asked Mr. Veen what he might be able to tell the court hearing his application about steps he would take to prevent a recurrence of serious violence. He began by saying that he would want one-on-one counselling when released. He then went on to say that he would have to stop drinking completely, adding that he could not say he would not drink. When asked what he meant, he indicated it was impossible to tell me that he would not because if he in fact did drink he would feel guilty about having told me he would not. He said he would take 'the pill', in other words, Antabuse. He said he would have to get his mind in focus. He would aim not to return to gaol. He would obey restrictions placed on him." 121 On the same page of his report, Dr. Lucas looks at the question of the applicant's sexual orientation and preferences, commenting as follows: "On the question as to whether he will get into sexual situations with men again, he said he doubted it. When I pushed the issue he said, 'I won't as my whole life has been a merry-go-round. I've got to get off it'. He said he wanted to show the people who had helped him who he was and there is going to be a different person who walked out of prison." 122 On pages 9 to 11 of his report, Dr. Lucas expresses his opinions and conclusions. One of the opinions thus expressed is this: "It must be said that in the absence of a major psychiatric disorder psychiatric treatment has nothing to offer Mr. Veen. Consistent contact with a psychologist and a drug and alcohol counsellor could benefit him but I believe that without a possible release date at which to aim Mr. Veen and those caring for him could have less than optimal motivation for the task." 123 In somewhat the same vein, Dr. Lucas continues on the following page of the report: "Mr. Veen has done well in prison and applied himself to his interests and he has accepted a number of responsibilities which as far as I know he has discharged well. He now needs to work consistently on issues relevant to his release. I believe that without a minimum date Mr. Veen will continue in prison much as before. He is quite institutionalised and has only been at liberty for a matter of months since 1975 and during these slipped back into old practices, alcohol abuse and homosexual prostitution. Although he is somewhat older and one would think, on general principles, more mature, he needs to be carefully prepared and assessed for life in the community. The process suggested by the Serious Offenders Review Council quoted above suggest its has a realistic approach to preparing Mr. Veen for life outside prison. If his sentence is determined then SORC can follow through and in due course there will be adequate information for the Parole Board when considering his case. If he is considered fit for release, a post-release plan could be developed with appropriate conditions and arrangements for supervision. I feel confident that if a minimum date is set that his assessment will be carefully undertaken. Mr. Veen's case has no real public notoriety but its complexities are well known in legal and correctional circles, thus ensuring careful consideration." 124 Dr. Lucas gave extensive oral evidence at the hearing. Subject to one matter to which I shall come presently, I think that it is fair to say in general terms that the thrust of Dr. Lucas' oral evidence did not differ from the substance of what he had said in his report. 125 The one additional matter that warrants some brief further comment is this: during the course of Dr. Lucas' evidence I raised for his consideration the proposition that what really needed to be done in connection with the present application was to make a careful analysis of the basis or bases upon which it had been judged, but wrongly as later events proved, that the applicant had been fit for release into the community in 1983; and then to look carefully at what, if any, difference(s) there might be between the basis or bases advanced in 1983 and the corresponding basis or bases being advanced now in support of the present application. Dr. Lucas, and both counsel, sought to come to grips with the problem thus posed. From my point of view, those attempts, if I may respectfully put the point this way, did not come to any useful fruition. The reason for that is, I think, that the procedures and techniques which were available to be used, and which were in fact used, in 1983 were sketchily documented, at best. This, as I gathered from what Dr. Lucas had to say on the point, made it difficult to draw in any precise terms, or in any precisely focused way, the particular comparison that I had been hoping to have made available for my assistance. 126 It is appropriate now to pause and take stock of the effect of the foregoing evidence, especially the evidence of Dr. Lucas. 127 In my opinion, a number of things militating in favour of the granting, upon some proper conditions, of the present application can be readily identified. They are:

[1] The applicant is now aged 45 years. It seems to me that at that age the time has come for the making of a fundamental decision as to whether or not the applicant should be treated as never likely to be fit to be again at liberty in the general community. Simply to refuse the present application must entail that the applicant will not be considered for progressive re-classification towards eventual release until he is into, and well into, his 50's. That might not nullify his practical prospects of rehabilitation, but it seems to be in the nature of things that those prospects will become progressively more remote in proportion to the length of the time during which the applicant becomes progressively more institutionalised.

[2] Things in fact achieved by the applicant in coming to terms with the need to promote, himself, his rehabilitation are deserving of proper acknowledgment and of a proper weighting in the present sentencing exercise. As I have earlier pointed out, the applicant appears to have responded well and positively to carefully controlled opportunities for activities of one kind and another outside the four walls of the prison. The applicant put into evidence a number of certificates and references of various kinds which support, in my opinion, a finding that he has indeed made some real, and measurable, efforts to improve himself and to make progress towards eventual rehabilitation back into the general community. There is clear evidence, which I accept, that the applicant has a very real natural gift for graphic art.

[3] There are procedural safeguards, which are firmly in place, and which are designed to block any premature release of the applicant to parole at the expiration of any re-determined minimum term. In that connection a document was made available to the Court summarising very helpfully the parole procedure in connection with the case management of any particular prisoner who has achieved the re-determination by the Court of a previous sentence of life imprisonment. I attach a copy of that document to the present judgment for ease of reference. What those safeguards really entail is most easily summarised by reference to some matters given in evidence by Mr. William Hutchins, the solicitor in charge of the Prisoners Legal Service at the Legal Aid Commission of New South Wales. Mr. Hutchins has very extensive practical experience in the handling of section 13A applications. The relevant particulars given in evidence by Mr. Hutchins are as follows: "Q Are you able to make any observation about the progress of applications by former life prisoners who are now 13A prisoners to the Parole Board? A. Yes. Usually what happens is that once the 13A hearing has been determined and the sentence has been set, SORC then work out a case management programme for that inmate. If the 13A has been refused, well, a plan is not worked out. But assuming it's granted, a plan is then worked out which usually covers roughly the next three years. And what SORC try and do is move that inmate through the minimum security C classification. Usually when they come to this hearing, they are either a B or a C1. Once the hearing is over, SORC will try to progress them, subject to the inmate's behaviour, through the C classifications; get them from a C1 to C2, and the ultimate aim to get them up to C3 before going up for parole consideration. The reason for that being the C3 entitles the inmate to unescorted leave from gaol, and that's viewed by the Parole Board as a testing ground. And unescorted leave, it starts off with a day's leave once a month, or two once every two months. That progresses after a couple of months to weekend leave, which I think may be initially once a month and then every weekend. And the inmate is allowed out on weekend leave and sort of woven into it is the ability of the C3 to apply for work release. ……………………

Q. The progress of those applicants who had been given a determinate sentence, is there any pattern of the way in which the Parole Board, to your discernment, treats them? A. Yes. Q. What is that pattern? A. Usually from my experience of the Parole Board, with the lifers or the redetermined lifers, very rarely are they granted parole at the first hearing. In my experience, it's usually taken three or four hearings before parole has been granted, and those three or four hearings have occurred over a similar time span three or four years. The board, if they refuse parole, will direct when the person will be reconsidered; and that's quite often 12 months, sometimes it's six months. It's usually either six or 12 months they are returned and reconsidered. If that inmate has not been able to progress to C3 classification and have the benefits of all the unescorted leave programmes, their chances of getting parole are nil." 128 In that connection I think that it needs to be frankly acknowledged that it is contrary to elementary common sense to expect that any reputable psychiatrist is ever going to give the stamp of expert professional opinion to the simple proposition that there will not ever be any discernible risk entailed in the release of the applicant back into the general community. 129 It should be acknowledged as frankly that the most stern view of the relevant law does not require that the applicant fail in his present application unless and until he can achieve some such standard of artificial perfection. 130 What the law does require in such a case as this one is extreme caution, and a carefully calibrated progression of checks and balances apt to detect any properly identified, and properly particularised, problems suggestive of an unacceptable risk of danger to the public safety in the release of the applicant back into the community. 131 In the light of the foregoing discussion concerning the public interest, I make the following observations:

[1] The applicant was sentenced by Hunt J upon the basis that his stabbing of Mr. Hoson resulted essentially from the interaction of three things: first , brain damage; secondly , homosexuality; and thirdly , chronic alcohol abuse.

[2[ The evidence in the present application establishes, in my opinion, that the applicant does not suffer from brain damage; and probably did not suffer from brain damage at any of the times when he stabbed, variously, Mrs. Byrne, Mr. Ward and Mr. Hoson.

[3] The evidence in the present application establishes, in my opinion, that as best the fact can be judged objectively by any other person than the applicant himself, the applicant is not in truth simply homosexual.

[4] The evidence in the present application establishes, in my opinion, that the applicant has not abused alcohol for a period in excess of 16 years, but has not had any opportunity to do so.

[5] If the relevant evidence of the applicant be accepted, - and I do accept it, - his history of personal sexual abuse by others is more serious than his previously disclosed history ever suggested.

[6] The foregoing propositions give rise to the following difficult and troubling considerations:

6.1 Insofar as the applicant is shown not to be, after all, suffering from brain damage, the gravity of the two manslaughters, as such, becomes, in my opinion, greater than it otherwise might have been. It seems to me that the mitigation of moral and legal responsibility by reason of the interaction of personal sexual turmoil and the disinhibiting effects of chronic alcoholism cannot be thought sensibly to be the same in the case of a non-brain damaged offender, as in that of an offender who is indeed demonstrably brain-damaged.

6.2 Insofar as the applicant is shown not to be, after all, truly homosexual, but at the most bisexual, it is in my opinion a real question whether he will not always be, to some extent, exposed to situations having the potential of provoking some form of violent response to perceived sexual affront. It is all very well to say that the applicant, at age 45, is not likely to have for homosexual men the attraction that he seems to have had 20 years ago. That consideration, even if soundly based, leaves open the possibility that the applicant, if he were to find himself both alone and lonely, might be tempted to seek comfort in some attempted homosexual contact with someone who was attractive to him. The milieu is, after all, one with which the applicant is, undeniably and admittedly, not unfamiliar.

6.3 As to the matter of alcohol abuse, the truth is that nobody can possibly know, as matters stand, whether or not there remains in the applicant some continuing underlying vulnerability to alcohol abuse. For better than 16 years he has not been put, in any real way, to that test. Nor can he be put to it unless and until the testing is done, carefully and sensitively, with the applicant having in a real way some independent functioning in the general community.

6.4 The available evidence does not really afford any properly qualified independent assessment of the domestic and other personal support available to the applicant in the general community. I have previously said that I accept the evidence of Mr. and Mrs. Jewell, and so I do. But what happens if the applicant, in his late 40's and being, as I am convinced he is in fact, intelligent, resourceful and opinionated, decides that he wants some independent domestic arrangement? I have, as at present advised, no idea of how that question might be answered. But I have no doubt that the present application cannot be resolved responsibly in any way that simply leaves the question at large in the future.

6.5 There is a further, and singularly difficult, consideration in this case. It arises from the applicant's history, as he now gives it, of prior sexual abuse by others. I have previously said that I accept the applicant's evidence that such things happened in fact. That conclusion leaves open, however, the question whether the use that the applicant now seeks to make of those past events by way of explaining in particular the two manslaughters, ought to be accepted. The available evidence, as I assess it, does not assist in dealing with this question. It is possible that in truth the question cannot be answered in any reliable way, either by the applicant himself, or by properly qualified expert psychiatric evidence. It is, however, the case that I am concerned about the question because it seems to me that most prisoners who have served better than 16 years, and who have been extensively probed by psychiatrists, psychologists and social workers over such a span of time, are likely to develop, - whether by dint of natural intelligence, of natural cunning, or of both of those faculties, - a good, functional grasp of the kinds of questions they are likely to be asked; and of the kinds of answers that their interrogators will be hoping to hear. I think that something needs to be done by appropriately qualified professionals in an attempt to come to grips with this aspect of the present case. 132 How, it has now to be considered, are these concerns most fairly accommodated? I have reasoned as follows:

[1] It would not be just to the applicant simply to dismiss the present application. For one thing, to do that would be to side-step rather than to engage the question whether there is ever going to be some proper opportunity for the carefully supervised release of the applicant back into the general community. For another thing, the likely results would be negative, and probably counter-productive. If the evidence given by Mr. Hutchins be accepted, and I do accept it, then the simple refusal of the present application would effectively close off, for at best a long time, any prospect for the applicant of a proper, and a properly graduated, relaxation of his present C1 classification to a C2, and eventually to a C3, classification. That would entail in turn, as I think, an unacceptable risk that whatever has been achieved thus far for and by the applicant would be neutralised at best, and wasted at worst. Most importantly, I am not prepared to make, upon the basis of such evidence as is now available, a positive finding that the applicant should never be released from prison.

[2] On the other hand, it would not do what the law requires in the matter of community protection simply to grant the application in the form of a set number of years for both a minimum term and an additional term. The concerns which I have previously explained are, in my mind, real and significant. I do not think that the available evidence really engages them; and in my opinion it certainly does not resolve them in what I would regard as an acceptable way. That seems to me to require that the applicant remain forever subject to monitoring by the appropriate parole authorities.

[3] I conclude, therefore, that the present application should be granted in the form of a determined minimum term of years and a whole-of-life additional term. 133 Before dealing with the number of years which should be set as a minimum term, I should advert in terms to those criteria which are set specifically for me by section 13A. 134 As to section 13A( 9)(a), I adopt with respect the following observations of Grove J in the decision earlier herein cited, of Schneidas: "As is customary in applications of this nature I have been supplied with some statistics concerning the practical effects of the system of release by ticket of leave or licence prior to the Sentencing Act. These show that a survey of 161 sentenced prisoners revealed that they served a mean of 11.7 years before first release to licence. This has led to misconceptions - based I consider upon lack of appreciation of the arithmetical nature of averages - that 11.7 years provides some sort of benchmark against which those deserving sterner retribution should get a little more and those meriting lenience a little less. It requires only the observation that the span from which the average was derived stretched from three to thirty four years to demonstrate why such an approach would be erroneous. The utility of these figures is minimal." 135 As to section 13A(9)(b) and (c), I have nothing to add to what I have previously said. 136 As to section 13A(4A), I have nothing to add to what I have earlier said. 137 As to section 13A(10A), I have given effect, as best I can, to the requirements of paragraphs (a) and (b); and paragraph (c) does not arise. 138 As to an appropriate minimum term, I am of the opinion that substantial justice would be done in the present case by fixing a term of 20 years. That minimum term must be dated, by reason of section 13A(5), to commence on 9 November 1983, which date I have taken from paragraph 4 in section A of Exhibit A as the date of first remand in custody in New South Wales. 139 In connection with the minimum term that I propose, I do not think that it is useful to embark upon an abstract philosophical discussion as to whether or not the manslaughter of Mr. Hoson falls within what is conventionally described as the worst class of case of its kind. Hunt J, in his Honour's remarks on sentence in 1985, described and denounced the culpability of that crime in terms with which I respectfully agree and upon which I cannot now improve. In addition to those particular observations of Hunt J, I have noted, and I have attempted to give proper effect to, the fact that his Honour did not see fit to make a non-release recommendation; and that his Honour did see fit to express himself in a way which suggests to me that his Honour did not consider that it was necessarily the case that the applicant ought never to have in any circumstances whatsoever any prospect of release to properly conditioned liberty.

140 Robert Charles Veen, your application is granted. The sentence of life imprisonment passed upon you on 17 December 1985 is re-determined in accordance with the relevant provisions of section 13A of the Sentencing Act 1989. The form of that re-determination is that of a sentence of imprisonment for a minimum term of 20 years to commence on 9 November 1983 and to expire on 8 November 2003; and of an additional term to commence on 9 November 2003 and to continue for the balance of your natural life. 141 The exhibits may be returned. **********

GRANTING OF PAROLE IN RELATION TO DETERMINED LIFE SENTENCES

The Sentencing Act 1989 contained specific provisions in relation to the parole consideration of "serious offenders" (the definition of which includes determined life sentences). Although that Act has been repealed as from 3 April 2000, the provisions have been reproduced in the Crimes (Administration of Sentences) Act 1999 No. 93 sections 142 to 154. In summary, these provisions are: · The Parole Board must give preliminary consideration as to whether or not a serious offender should be released on parole at least 60 days before the day on which the offender becomes eligible (s.143) and must formulate its intention either to make a parole order or not to make a parole order (s.144); · The Board must give notice of its initial intention to the offender and to the victim's relatives whose names are recorded in the Victims Register, inviting them to make submissions at a hearing about the making of a parole order (s.145 & 146); · At the parole hearing, the offender and any victim who lodged a notice of intention to make submissions are entitled to be present and have a reasonable opportunity to make submissions (s.147); · After reviewing all the report's documents, submissions and other information placed before it, the Parole Board must decide whether or not the offender should be released on parole (s.149); · If the Parole Board rejects the advice of the Serious Offenders Review Council (SORC), it is not to make a final decision for 21 days and must give its reasons to SORC for rejecting the advice and invite SORC to make further submissions to the Board (s.152); · The State may appear and make submissions to the Parole Board concerning the release on parole of a serious offender and, the Board is not to make a final decision until it has taken any such submissions into account (s.153); · In relation to a serious offender who has had their life sentence determined, the Parole Board in exercising its functions (s.154):

"(a) must have regard to and give substantial weight to any relevant recommendations, observations, and comments made by the sentencing court, and

(b) must give consideration to adopting or giving effect to any such recommendations, observations and comments and to the intention of the Sentencing Court when making them, and

(c) to the extent that it declines to adopt or give effect to any such recommendations, observations and comments, must state its reasons for doing so, and must, in particular, have regard to the need to preserve the safety of the community." · If the Parole Board decides that a serious offender should be released on parole, and the Attorney General or the Director of Public Prosecutions alleges that the decision has been made on the basis of false, misleading or irrelevant information, the AG or the DPP may apply to the Court of Criminal Appeal for a direction to be given to the Parole Board as to whether the information was false, misleading or irrelevant (s.156).

It is also worth noting the general duty imposed on the Parole Board in relation to the making of parole orders. This is in addition to the abovementioned specific obligations in relation to serious offenders (i.e. determined life sentences). Attached is a copy of s.135 which sets out the general duties of the Parole Board.

A non judicial member of SORC is entitled to be present, and to be heard, but not vote at a meeting of the Parole Board at which a serious offender is being considered. The quorum for a meeting of the Parole Board is three members consisting of at least one judicial member and at least two non judicial members. A decision supported by a majority of the votes cast at a meeting, including the vote cast by the judicial member is the decision of the Parole Board. See clauses 12, 13 and 17 of Schedule 1 of the Crimes (Administration of Sentences) Act 1999 No. 93.

In addition, the Serious Offenders Review Council (SORC) has inter alia, the following functions (s.197): · to provide advice and make recommendations to the Commissioner with respect to the security, placement and developmental programs for serious offenders; · to provide reports and advice to the Parole Board concerning the release on parole of serious offenders; · to appear and submit reports to the Supreme Court with respect to the determination of life sentences; · when exercising its functions, SORC must consider the public interest and any submissions made by the State and/or victims of the serious offender; and, in considering determined life sentences, SORC in exercising its functions (s.199):

"(a) must have regard to and give substantial weight to any relevant recommendations, observations and comments made by the sentencing court, and

(b) must give consideration to adopting or giving effect to any such recommendations, observations, and comments and to the intention of the sentencing Court when making them, and

(c) to the extent that it declines to adopt or give effect to any such recommendations, observations and comments, must state its reasons for doing so, and, must, in particular, have regard to the need to preserve the safety of the community."

135 General duty of Parole Board (1) The Parole Board may not make a parole order for an offender unless it has decided that the release of the offender is appropriate, having regard to the principle that the public interest is of primary importance.

(2) In making a decision under this section, the Parole Board must have regard to the following matters:

(a) any relevant comments made by the sentencing court,

(b) the offender's antecedents, (c) the likely effect on any victim of the offender, and on any such victim's family, of the offender being released on parole,

(d) any report prepared by or on behalf of the Crown in relation to the granting of parole to the offender,

(e) any report required by the regulations to be furnished to the Parole Board in relation to the granting of parole to the offender,

(f) the offender's conduct to date while serving his or her sentence, including: (i) the attitudes expressed by the offender, and (ii) the offender's willingness to participate in rehabilitation programs,

(g) the availability to the offender of family, community or government support

(h) the likelihood that, if granted parole, the offender will be able:

(i) to benefit from participation in a rehabilitation program, and

(j) such other matters as the Parole Board considers relevant.

Last Modified: 01/04/2002 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : Regina v Robert Charles VEEN [2000] NSWSC 656 FILE NUMBER(S) : SC L019/91 HEARING DATE(S) : 31/03/2000, 7/04/2000,14/04/2000, 28/04/2000 and 21/06/2000 JUDGMENT DATE : 7 July 2000

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