Regina v Robert Theo Sievers

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

1 HIS HONOUR: On 21 October 2002, the prisoner, Mr Robert Theo Sievers, was presented in this Court for trial upon an indictment charging him with having murdered, on 4 July 2000, Michelle Campbell, a young woman with whom he had been living in an intimate relationship. 2 The prisoner pleaded that he was not guilty of murder, but that he was guilty of manslaughter. The Crown declined to accept the manslaughter plea. A jury was thereupon empanelled. The prisoner, upon arraignment before the jury, pleaded not guilty and he stood thereupon, trial by jury. On 31 October 2002, the jury found the prisoner guilty of murder. I formally convicted him and remanded him until 6 December instant for the hearing of evidence and submissions on sentence. Those proceedings on sentence concluded on Friday last, 13 December instant. 3 The relevant facts can be shortly stated, not least because they were at trial, and are, largely, uncontroversial. On the material evening, the prisoner and the victim had an argument. According to the prisoner, the victim approached him holding a small kitchen knife. He took the knife from her; folded his arms about her in order to quieten her down; struggled with her; "totally lost it", to use his own words; and stabbed her fatally with the knife.

4 In the immediate aftermath of the stabbing, and again using his own words, the prisoner sat down "basically staring at the wall". He stirred himself eventually, and wrapped the dead body in a sheet of black plastic. He placed the body, thus concealed, into the boot of his motorcar, where it remained for the remainder of 4 July and most of 5 July. 5 On 5 July, the prisoner drew an amount of money out of the victim's bank account, and then drove to his brother's home at Kurri Kurri. From there, he went to Raymond Terrace or Maitland, bought a mobile phone and then, in his own words, "just started riding up the coast". He drove to a lay-by on the side of the road at a lonely and deserted point on a back road. He said in evidence that he had been talking to the victim while driving to this spot; and that upon arrival at the spot he asked her to get out of the car. He removed the body from the boot of the car, sat or propped it up on the rim of a decline and sloped away from the carriageway and then pushed the body so that it rolled down that decline into bush where it was later found.

6 The prisoner, having done all of those things, then went, effectively, to ground. He stayed briefly at various places in Sydney; then travelled to South Australia where he remained for some 9 or 10 months; and finally travelled to Western Australia, having adopted a false name and having altered his appearance. He gave, in evidence, this explanation for that sequence of movements: "I wanted to get as far from Sydney as I possibly could ... because I started to get a guilt complex and just wanted to get away from the police and I didn't want to get locked up."

7 The defence case at trial concentrated upon the issue of provocation allegedly offered by the victim to the prisoner. The evidence given at trial by the prisoner made a day-by-day canvass of his interactions with the victim from 29 June to 4 July. The picture that emerged was one of a domestic situation that was volatile, essentially dysfunctional, and not infrequently violent. According to the prisoner, the victim, during these few days, abused him verbally, assaulted him with a hammer on one occasion and a shoe on another occasion, and threw over him wine and cordial. 8 On one occasion, according to the prisoner, he ejected the victim from the home, only to have her break back in by smashing the window with a piece of firewood. The overall situation cannot have been improved by the tendency of both the prisoner and the victim to drink alcohol to excess. There seems to have been a heightened tension by reason of suspicions harboured by the victim that the prisoner was having affairs with other women. 9 The foregoing history as given by the prisoner in his evidence, and his alleged reaction to the accumulated effect of those events, clearly raised in the sense contemplated by s 23F(4) of the Crimes Act 1900 (NSW): "evidence that the act causing death was an act done ... under provocation as provided by sub-section (2)". It became, thereupon, the burden of the prosecution to prove beyond reasonable doubt, "that the act ... was not an act ... done under provocation". 10 That latter reference to provocation calls into operation sub-sections (1) and (2) of s 23. Those sub-sections provide: "(1) Where, on the trial of a person for murder, it appears that the act or omission causing death was an act done or omitted under provocation and, but for this subsection and the provocation, the jury would have found the accused guilty of murder, the jury shall acquit the accused of murder and find the accused guilty of manslaughter. (2) For the purposes of subsection (1), an act or omission causing death is an act done or omitted under provocation where: (a) the act or omission is the result of a loss of self-control on the part of the accused that was induced by any conduct of the deceased (including grossly insulting words or gestures) towards or affecting the accused, and (b) that conduct of the deceased was such as could have induced an ordinary person in the position of the accused to have so far lost self-control as to have formed an intent to kill, or to inflict grievous bodily harm upon, the deceased, whether that conduct of the deceased occurred immediately before the act or omission causing death or at any previous time." 11 Clearly enough the jury was persuaded beyond reasonable doubt that the prisoner's criminal liability should not be reduced by reason of provocation. There is, however, no way of knowing at what stage of the relevant process of reasoning the jury reached that conclusion. There are several possibilities. 12 First, the jury might have been satisfied beyond reasonable doubt that the continuum of the victim's conduct, as described by the prisoner in his evidence, was not in fact provocative. This seems to me to be unlikely, given the nature of the relevant evidence. In so far as I have now to make my own findings of fact, I would not be satisfied beyond reasonable doubt that the acts of the victim were not provocative in fact. 13 Secondly, it is possible that the jury was satisfied beyond reasonable doubt that there had not been in fact a loss of self control as contemplated by s 23(2)(a). This, too, I would think a highly unlikely conclusion on the part of the jury. I, as fact finder for present purposes, am not satisfied beyond reasonable doubt of this possibility. 14 Thirdly, it is possible that the jury was satisfied beyond reasonable doubt that the conduct of the victim, even were the prisoner's version of it to be accepted, did not meet the test that is contemplated by s 23(2)(b). Of all the available possibilities, it is this one that seems to me to provide the likeliest key of the ultimate reasoning of the jury. I at any rate am satisfied beyond reasonable doubt that it is the s 23(2)(b) factor which defeats the prisoner's claim at trial that his criminal culpability should be limited to culpability for manslaughter rather than murder. 15 The Crown's submissions on sentence argued for a finding, for the purpose of sentencing, that the prisoner had stabbed the victim with an intent to kill, rather than with an intent to do grievous bodily harm. The Crown contended that the overall cast of the trial evidence suggested that the prisoner wanted the victim out of his life; and that he was so set upon accomplishing that end that he deliberately stabbed her to death. 16 In this connection, as indeed in connection generally with the issue of provocation, it is relevant and useful to have regard to the nature and evocation of the stab wounds to the victim's body. 17 There were four such wounds. Two of them were at locations on the victim's back. They were consistent with body movements of the kind described in the prisoner's evidence. A third wound was located on the side of the victim's neck. Dr Lawrence, who did the post mortem examination, thought that this particular wound was perhaps consistent with those same body movements. I myself consider that to be highly unlikely given the nature and location of the wound when compared with the "bear hug" movements described by the prisoner. The fourth wound was located on the front of the victim's torso. There is, in my opinion, no way of reconciling that wound with "bear hug" movements, a view endorsed by Dr Lawrence. 18 The Crown's hypothesis cannot be simply dismissed as fanciful, but I do not accept it as having been established beyond reasonable doubt. I am satisfied, however, and beyond reasonable doubt, that the prisoner, when he stabbed the victim, intended to cause her really serious bodily harm; and was, in truth, uncaring whether what he might do in fact was not injure the victim, but kill her. 19 It seems to me that, at the end of the day, the prisoner's culpability for the death of the victim is not to be measured by a minute, and necessarily imprecise, dissection of theoretical possibilities as between an intent to kill and an intent to do grievous bodily harm. The true measure of objective culpability seems to me to derive from the simple and common-sense proposition that a person who, while struggling with another in a situation of volatility and violence, stabs that other four times in, variously, the back, the neck and the front torso, cannot be heard to say that he did not understand that what he was doing raised a real risk of death rather than of injury. 20 The murder of which the prisoner has been convicted is, in my opinion, objectively culpable, on any reasonable reckoning, in very high degree. It is timely to say, yet again, that a civilised society cannot, and does not, tolerate the notion that violence, using an offensive and obviously dangerous weapon, is in any way acceptable as a method of resolving domestic disputes. 21 It is necessary to turn, next, to a consideration of relevant subjective matters. 22 The prisoner was born on 17 February 1942. He is aged therefore, 60 years and some 10 months. He has been in continuous custody since 7 June 2001. On 13 June 2001, he applied to be placed in protective custody: " ... after discussion with senior officers & re threats against my life, and as I don't want any troubles". I infer, although there is no precise evidence about the topic, that the prisoner will remain in some form of protective custody into the foreseeable future. 23 The prisoner seems to have, and to have had, some health problems while in prison. There is some discussion of these matters in a Corrections Health Service report dated 26 November last; but it is a discussion based upon an examination of medical records and not upon a personal examination. The evidence is imprecise and inconclusive. I think that all that can be done now is to take into account, in a broad-brush sort of way, the apparent existence of ailments as described in the report. The report is exhibit P3 on sentence.

24 The matters to which I have referred on the topics of age, conditions of incarceration and health would justify normally, some appropriate mitigation of sentence. 25 The prisoner is not entitled to any leniency in consideration of a willingness to facilitate the course of justice, save only for some fair recognition of his willingness to co-operate in keeping his trial focused on real issues. In the nature of things, that consideration could not fairly attract in the present case, all other things being normal, more than a modest mitigation of sentence. 26 In the present prisoner's particular case all of the foregoing subjective considerations are overshadowed by the prisoner's criminal antecedents. Those antecedent offences, and the inferences which are fairly open to be drawn from them, have been the focus of all of the submissions that have been put to the Court on the matter of sentence. The competing submissions have crystallised into a fundamental contest as to whether or not the just sentence in the present particular case is one of imprisonment for the term of the offender's natural life. 27 It is convenient to discuss those contending submissions: first, by noting the contents of some victim impact statements and some associated considerations; secondly, by looking at the detail of the antecedent offences; thirdly, by considering certain psychiatric evidence; fourthly, and finally, by considering the relevant legislation and case law. 28 As to the victim impact statements, it is useful to begin by noting the relevant provisions of s 28 of the Crimes (Sentencing Procedure) Act 1999 (NSW). They are: "(1) If it considers it appropriate to do so, the Supreme Court …… may receive and consider a victim impact statement at any time after it convicts, but before it sentences, an offender. ………………………………………………………………. (3) If the primary victim has died as a direct result of the offence, the Supreme Court …… must receive a victim impact statement given by a family victim and acknowledge its receipt, and may make any comment on it that the court considers appropriate . (4) Despite subsections (1), (2) and (3), the Supreme Court ……. (a) must not consider a victim impact statement unless it has been filed by or on behalf of the victim to whom it relates or by or on behalf of the prosecutor, and (b) must not consider a victim impact statement given by a family victim in connection with the determination of the punishment for the offence unless it considers that it is appropriate to do so." 29 In the present case two such statements have been received by the Court and marked exhibit C3 on Sentence. One is from the victim's father, and the other is from the victim's daughter. The two statements make sad reading. I will not risk causing further distress to those concerned by reading out the contents of the two statements; but I wish to assure the makers of the statements that I have read what they have written. It is important in that context that I explain to the makers of the statements that the Court cannot treat the statements in a way that virtually allows those who have suffered so much from the crime to dictate the penalty that is to be imposed in connection with the crime. All that the Court can do is to acknowledge the contents of the statements, and hope that the acknowledgment will do at least something to soften the grief and sense of loss that are expressed in the statements. 30 I wish to make briefly an additional and related point. 31 The victim had not only a daughter, but two young sons. They have not made victim impact statements, but they both gave evidence in the Crown case at trial. It was distressing to witness that ordeal, especially in the case of the younger boy. The Court has not overlooked that the two sons, although they have not made victim impact statements, have had their own lives affected fully as much as their sister and grandfather. 32 As to the prisoner's criminal antecedents, they encompass matters dating back to June 1956. I have disregarded for present purposes some comparatively minor matters; and I will concentrate in what follows upon some matters that are of the gravest import in connection with the prisoner's sentencing. First, the prisoner stood for sentence on 7 June 2000 at the District Court in Sydney. He had pleaded guilty to the supply of cannabis in a quantity not less than the prescribed traffickable quantity. For reasons, the detail of which is not now important, the prisoner was sentenced to imprisonment for 18 months to date from 6 June 2000 ..The sentence was wholly suspended upon the prisoner's entering into a bond for a term of 18 months, which the prisoner duly did. This bond was still current at the date of the murder of Miss Campbell. It is trite that this is an aggravating feature of that crime of murder. 33 Secondly, the prisoner was sentenced in 1969 to imprisonment for common assault. There is not much evidence about the relevant facts and circumstances; and what there is comes from a very brief newspaper report reading, relevantly: " Detective Sergeant M Lamond, of Wallsend, said the woman was asleep when Sievers entered her home and pulled a blanket off her. After a struggle, Sievers left and the woman ran from the house carrying her baby, he said. Police found three feet of nylon rope on the bed, Detective Lamond added."

34 Two things are noteworthy about this offence. One is that this involved an act of violence towards a woman. The other is that alcoholic intoxication was said to have been a factor. 35 Thirdly, the prisoner was sentenced in October 1967 to imprisonment for 2 years with a non-parole period of 6 months for the malicious wounding of his brother. The relevant facts were summarised as follows in the remarks on sentence: "Sievers, I do not propose to review the facts which you can remember quite well. They were thoroughly canvassed when the matter was before the Court. It is sufficient to say that it was a very serious assault and the picture in evidence of the wounds that were inflicted with the knives that were used is horrifying. It has the character of great seriousness because of the fact that not only one knife, but two knives were brought out during the progress of the affray which took place. It is true that only one was used and it is also true, as I see it, that both of the knives were there, not by reason of a preconceived idea that you would inflict injury with them, but they happened to be accidentally available at the time when you had an affray with your brother. You were gravely provoked at the time. You had this quarrel in which the fight resulted; but the spectacle of the two participants circling each other, as it were, on a mountainside in Sicily awaiting an opportunity to engage in warfare of the kind that one reads about as taking place there, is not very attractive. You went to the premises undoubtedly to clean up, as it were, a condition of affairs in relation to your mother which caused you to become very angry, and you were aggravated, I think, by over-indulgence in liquor. With the best of intentions, you went to clean up a state of affairs where your relatives had, in your view been "sponging" on your mother who had done so much for them, as also for yourself during your life. It is a serious crime to use knives in those circumstances..."

36 There are some obvious similarities between those facts and the circumstances of the stabbing of Miss Campbell. Once again, alcoholic intoxication is suggested to have been a factor. It is fair to note that the sentencing Judge expressed some sympathy for the prisoner, principally because of what his Honour saw as having been a remarkable rehabilitation of the prisoner from being someone whom an experienced police officer had described some 5 years previously as "one of the most vicious and disorderly hoodlums with whom he had come in contact". 37 Fourthly, and very importantly, for present purposes, the prisoner was convicted on 19 September 1980 of the murder of his wife. He was sentenced to penal servitude for life. On 21 August 1992, Wood J,( as he then was), re-determined that life sentence. His Honour fixed a minimum term of 12-1/2 years and an additional term of 5 years. The minimum term was dated to commence on 10 April 1980 and to expire on 9 October 1992. 38 The relevant facts of this murder are summarised as follows by Wood J: "The offence occurred on 10 April 1980 and the victim was the estranged wife of the applicant. He surrendered himself to police immediately after the killing, and his subsequent plea of guilty to manslaughter, on the basis of lack of the specific intent required for murder, was not accepted by the Crown..……. Following a history of disharmony and difficulty within the marriage, the applicant separated from his wife who had formed a new relationship. He experienced some difficulty in recovering his own property from the home, and this was an occasion of annoyance on his part. Additionally, about the time of the incident there had been deaths on both sides of the family, and regrettably the applicant turned to alcohol for relief from that stress. This was a substance which he was not well able to handle, and it may well have been a factor in his earlier record of criminality. In any event, on the afternoon of 10 April he broke into his wife's premises after she had refused to permit him to collect some of his belongings, and he there shot her eight times. He immediately went to the place of work of his brother and they drove together to the police station. On the way, a passing police vehicle was stopped by them and the applicant surrendered both himself and the rifle he had used in the shooting."

39 The full horror of that killing appears from the following extracts from the Statement of Facts that was lodged in connection with the application for a redetermined sentence: "(10) At the police station the following conversation took place between the applicant and Detective Sergeant Thompson after the Detective asked the applicant whether he wished to say anything. Applicant: "I shot my wife, is she dead?" Detective: "I don't know." Applicant: "She should be. I've got nothing to lose. I hope her mother's happy now." Detective: "Whose mother?" Applicant: "Her mother. I rang her (his wife) from Hamilton RSL and I asked her could I get some of my things. She said I couldn't get my things. I told her I would take out a Court Order. I told her she would pay for it if she didn't give me my things. I got into the Holden panel van and I drove around to the house and I knocked on the door and she wouldn't answer. I went to the van and I got the rifle and I broke a window, a glass panel in the front door and then I went through and she was on the phone ringing up. She said to me "Don't. Don't." I put the rifle up and I shot her in the head. She fell on to the floor and then I kept on pulling the trigger. I don't know how many shots I fired. I then left and got in the van and drove to where my brother works and told him." (11) At 6.00pm that day the applicant took part in a twelve page signed record of interview (exhibit F) in which the shooting incident is described by him in the following terms: "She got up from the phone and started to come towards me. I took the rifle out of the bag and she grabbed the barrel. When she grabbed the barrel she fell back to he floor and I was trying to get the barrel away from her because she wouldn't let go so I cocked the rifle. Something happened and one of the bullets didn't got into the breach, it fell out so I re-cocked it again. She still had hold of the barrel and she was still on the floor, sort of on her side and she pulled to rifle somehow. It then went off. It hit her in the cheek. I then continued just to pull the trigger. I don't know if the rifle still had any bullets left. It just stopped firing after four or five shots went off." (13) Dr Banathy, who carried out the post-mortem examination of the deceased, observed that there was a total of ten entry wounds and one exit wound on the deceased's head. He concluded from his examination that one bullet had struck the base of the deceased's right thumb before striking her right cheek. (14) In response to cross-examination by the applicant's counsel, the doctor deposed that it was impossible to determine in what order the ten wounds were inflicted or to say which of the ten did in fact cause death. (15) At his trial, the applicant made an unsworn statement, the last paragraph of which is reproduced hereunder: "On the day of the shooting, I went over to K-Mart and I done some shopping over there and I went to the Hamilton RSL. I had a few beers. It was there I rang my wife up to ask her about getting some more of my things, because I had money now, after I sold my other car, to set myself up in a flat and get myself somewhere to live. I asked her about some of the things - I never had blankets and things like that, and she said I wasn't getting nothing. I asked her if she was hanging about with this Williams again and she said "I don't have to tell you." I said, "What about the rest of me things, me gear?" She said that her boyfriend was going to get them. And I said - I just sort of saw red. And I just slammed the phone down. I went out and I got into the car and I just drove around there. It probably only took me one or two minutes to go around there. I knocked on the door. She never answered the door. So I went back to the car and the first thing I saw was the duffle bag. It had the rifle in it. I went back and broke the glass in the door and then I went inside and she grabbed hold of the barrel. There was a struggle and the gun went off. I don't know. I just sort of snapped then. And I just kept pulling the trigger. I didn't want anything to turn out the was it did. I certainly didn't mean to kill her. I just didn't want everything to turn out the way it did. That is all I have to say, thank you."

40 Mr Justice Wood noted the following subjective factors: "As indicated, he had acquired a relatively lengthy prior record as a young man over the period between 1956 and 1969 for offences of stealing, break, enter and steal, forgery, steal motor vehicle, malicious injury, malicious damage, malicious wounding, assault police, resist arrest and common assault. In his favour is the fact that the last entry was some 11 years before the offence of murder, and it seems that to a considerable degree, the applicant had overcome that prior period of criminality. He had served terms of imprisonment on five prior occasions varying from two months hard labour for malicious injury in 1961 to two years hard labour in 1967, and again in 1969 for offences of malicious wounding and common assault. The record was no doubt partly the result of the broken family from which he had come and the traumatisation he had received at the hands of a drunken and violent father, a pattern all too familiar to this court. It is one in which the crimes of the father are repeatedly visited on the younger generation who simply follow into a history of violence and anti-social conduct learned from their parents. The applicant, despite his record, had become a member of the Army Reserve and was serving in that capacity at the time of his offence. He had been unemployed for about 18 months, but had previously worked as a turbine driver with BHP. He has been assessed throughout his prison career as a passive and untroublesome man who has progressed steadily through the prison system with a satisfactory record of behaviour. He overcame during his 12 years of custody, the dissolution of a marriage into which he entered while in prison, although in more recent years that relationship has been re-established. He also entered into a third marriage, but that has been terminated."

41 Those considerations, coupled with the details of the prisoner's gaol history, obviously impressed Wood J in the prisoner's favour. That favourable impression was strengthened by the following psychiatric assessment, which his Honour accepted: "An up-to-date psychological report from Miss Tonner who has been working with him on a regular basis for counselling and also preparing him for release, is favourable. She says: "There are no psychological contra-indications to Sievers' release. He is functioning well socially and intellectually. He has insight into his past emotional problems. He has responded to psychological counselling in the area of self esteem and assertiveness. Alcohol had been a factor in his aggressive and anti-social behaviour as a juvenile and young adult, but he was able to moderate his drinking successfully. Although disinhibited by alcohol and medication at the time of the murder, his drinking pattern had not become problematic in response to the deterioration of his marriage until the weeks immediately preceding the offence. His prognosis in this regard is good. Sievers has suffered many set backs, disappointments and personal crises during twelve and a half years' imprisonment. His initial reaction has been to become rather miserable and irritable, but within normal limits appropriate to the situation. For at least the last six years, he has used the professional assistance of psychologists during those times, and has responded well to counselling. There has been no deterioration in behaviour. Sievers should experience little difficulty readjusting to community life and achieving his modest goals. The question of alcohol has been a problem but is one which the applicant seems now to appreciate. He said in evidence this morning that there had been occasions in gaol when alcohol was available, but he has not taken advantage of those opportunities. Additionally, on work release he has not offended and it does seem that he has a proper appreciation of the need for him to abstain from alcohol, other than perhaps on an occasional social basis."

42 His Honour came to the following conclusions overall and they are: "In all, there is every indication available that the applicant has both work and a suitable domestic environment in which to settle and there seems to be no reason to fear that he will re-offend. Again, he is one of the life sentence prisoners who has taken advantage of the opportunities within the prison system and has responded well to it. In my view, the case is appropriate for redetermination of the life sentence imposed by Carmichael J on 19 September 1980."

43 The foregoing survey of the 1980 murder must entail, even if it stood unaccompanied by the other offences to which I have referred, that the framing of the sentence now to be passed must focus, urgently and predominantly, upon the nature and extent of any continuing risk posed by the prisoner to members of the general public, and especially to any woman upon whom he might become emotionally dependent, or even, to whom he might become emotionally attached. That consideration raises for analysis the psychiatric evidence that has been placed before the Court in connection with the present sentencing.

44 As to the relevant psychiatric evidence, three reports were prepared for use in connection with the present sentence proceedings. Dr Stephen Allnutt and Mr W John Taylor prepared reports, and gave oral evidence, in the Crown case on sentence. Dr Olav Nielssen did the same in the prisoner's case on sentence. 45 Mr Taylor saw the prisoner on 3 December instant. He took a detailed history, part of which is this. "He then began to discuss his relationship with the deceased. He said he had commenced a relationship with her before the offence occurred. He said that she was alcoholic and used drugs. He said he had only been out of gaol for a couple of months prior to the offence and said when he was released from gaol, he had no money and no-one to turn to. He said he lived in a boarding house where he met the deceased. He said she had been there for 8 to 10 days but he had not initially seen her. After they met, she proposed to live together in a de facto relationship. He said that when they moved together, he had paid the bond on the residence. However, after a short period of time, he realised that the relationship was not going to work as she was constantly engaging in substance abuse. He said she also began to become abusive of him and said "I was sick of being hit - my property being smashed - him and her drinking - then she wanted to find this other girl - just the total destruction of everything and the abuse." He said that she had left but then she came back to the home. He said that she had another man but he had no money and so she had nothing with which to buy alcohol. He said he had considered leaving the home but did not. He then said, "I don't know why I didn't go. I didn't have the money to go anywhere and I had nowhere to go - I didn't know anyone I could stay with."

46 Because of what is now at stake for the prisoner, I quote in full the final opinions expressed by Mr Taylor in his report: "Opinions: The purpose of the consultation with Mr Sievers on this occasion was to provide a report in relation to his hearing for sentence for his recent murder conviction. Information has been available including the history taken from Mr Sievers both on the present occasion as well as the time of the previous consultation with him on 4 April 2000, and from documents made available prior to preparing this report. There seems little doubt that Mr Sievers had a very disturbed life during his formative years. His father was assaultive and abusive particularly towards his mother which led to their separation when he was about 4 years of age. At that time, he was placed into an orphanage for a couple of years before returning home after his parents had reconciled their relationship. However, his father continued to be abusive and he ended up by assaulting his father when he was 14 or 15 years of age in an attempt to protect his mother. His criminal record indicates that his first conviction occurred when he was 14 years of age. He then had a number of convictions including some resulting from his aggressive behaviour. It is frequently the case that children who have been exposed to violence and aggression in their early lives themselves become aggressive during their adulthood. Present personality profile indicates that he is presently seen as having a personality disorder with passive-aggressive and schizoid characteristics. His personality profile demonstrates a considerable degree of deterioration in his functioning since he was previously assessed on 4 April 2000. From the Millon Clinical Multiaxial Inventory-III (MCMI-III), the Clinical Personality Patterns Scales of Schizoid Personality, Passive-Aggressive Personality and Self-Defeating are much more highly elevated. An actuarial analysis of his potential for recidivism indicates that this is higher. Among offenders who scored in the range obtained by Mr Sievers on this scale, only about 50 per cent would not be likely to commit an indictable offence following release. This result is higher than obtained at the time of the previous assessment conducted with him on 4 April 2000. In the previous assessment, among offenders who obtained a score similar to his, some two-thirds would be unlikely to commit an indictable offence in the future. However, at the time of the present analysis, a copy of Mr Sievers' criminal record was available and this allowed for more accurate estimation of his potential to reoffend. In considering the issue of his future dangerousness, a number of factors need to be considered. Firstly, there have been a number of prior offences which have involved aggression and which did cause physical injury. Secondly, the nature of the offence with which he has been convicted being murder and this is the second time that he has been convicted of such an offence. Thirdly, his history demonstrates that he has had difficulty in controlling aggressive impulses to the point of endangering the safety of others. Fourthly, he has on this occasion, as well as the time of the previous murder conviction, used a weapon in the commission of the offence. A further factor involves his present personality profile where he does score very highly on the Passive-Aggressive Clinical Personality Patterns Scale of MCMI-III. The balance against this is his chronological age at the present time and his likely age when he is released from prison. He is presently 60 years of age and it is likely that at the time of his release, he will be physically not very strong. The question does remain, however, whether or not he will continue to experience strong aggressive impulses at times and which appears to have been the case in his offending behaviour where acts of aggression have been involved. Based on these indicators then, it would appear that Mr Sievers does have a potential for dangerousness at the present time. He would need to be assessed whilst he is in prison in order to determine the extent to which this is likely to continue to be the case in the future. He would also benefit from courses in prison such as anger management courses and counselling to assist him in gaining insight into his aggressive impulses. He did exhibit some remorse in relation to his present offence. I feel that it is likely that some of the factors which contributed to him committing the offence would include his lack of personal resources and lack of support in the community. However, he is not able to offer an explanation as to why the offence occurred and said that it still bothers him that he cannot understand why he committed the offence. He said he also cannot recall what he was thinking at the time the offence occurred."

47 Mr Taylor's oral evidence was fairly lengthy, and canvassed in various ways and from differing points of view, various of the testing details mentioned in the written report. After counsel had finished their respective questioning of Mr Taylor, I took him to the psychiatric material earlier herein quoted that had been before Wood J in 1992. There ensued the following: "Q. I'm not clear as I speak whether the prisoner was actually released to parole in October 1992 or whether the Parole Board required him to remain in custody for some part at least of the 5 year parole period that had been set as part of the redetermination, but it doesn't make much difference from the point of view of the matter I want to explore with you. We start with the proposition then that in September 1980 a Judge of this Court was persuaded upon the basis of psychiatric or psychological expert evidence that a point had been reached in which the prisoner was fit to be released back into society as soon as 4 or 5 months, whatever it is, after the date of the determination? A. Not 1980, you said 1980 your Honour. Q. I'm sorry, 1992. What the record then tells us, as I understand it, is that until 1999 he seems not to have got into any other trouble. In 1999, he got into trouble in a drug related matter, he was sentenced to imprisonment for 18 months and that was suspended upon his entering into a bond under the relevant provisions of the Act. He can't have got the bond at all without having given some proper assurance that he understood what it entailed and that he was willing to undertake its obligations. The bond looks to have been given to him, it's not always easy to tell from these print-outs, on 7 June 2000. That's barely a month before the date of the murder which is now the subject of these proceedings. A. Yes. Q. Does the combination of those facts, an extremely favourable report in 1992, so favourable that he is almost immediately released, a supervening period of some years without any problem, a drug offence thought serious enough to warrant a sentence of imprisonment but personal circumstances thought sufficient to warrant suspending it, the entry into a bond and a bare month after the entry into the bond the committing of this other murder, does that combination of circumstances shed any light in the particular case on the question which is after all the overarching question for me and that is, what is required on a prudent assessment of the need of the public to be protected against future crime. Not necessarily another murder in those stark terms, but certainly future serious crime? A. Well that's right. Q. The answer might be that it tells the expert mind nothing at all but I'd be interested to know whether it does? A. It doesn't tell you anything in itself because I think the ingredient that's not there is his state of mind at the time and the various environments, physical and emotional, that he's been in. So that given what appears to me to have been an inappropriate relationship or link, together with his inability to express his feelings and being subjected to what appears to have been a considerable degree of abuse that it's just - it's those ingredients that have caused this to happen. Now he may, if you like, not get into any other relationships for the rest of his life in which case possibly - or any other situations where those factors would accrue and he may be as stable as he's been in prison, the way he presented to Mr Justice Wood previously, but it's the other factors, that if they arise and have arisen that gave rise to this offence I believe. Q. That leads me on to another question I'd like to raise with you which is this. Is it a correct understanding of his profile, as you've been able to judge it, that he has what I suppose one might call personal and social deficits that have to do in part at least with his background and history, abusive and difficult as it was? A. Yes. Q. That has left him - am I following you correctly - emotionally fragile in the sense that it has produced in him an acute need to have the company and the support, the nurturing and the affection, if he can get them, of somebody else? A. Yes. Q. Sharing his life with him in a real sense? A. Yes. Q. Twice now that situation has come to terrible grief. Is it or not a fair assessment that as matters stand, all one can say is that whatever else the prison system does or does not do for him, it's not likely to get him to a stage where he has absolutely no continuing need for that kind of personal support and emotional support in his own life outside the prison environment? A. It won't switch those off, no your Honour, because we all have them. Q. Quite. So that he goes back into the community, if that is what happens, as vulnerable as he was in 1980 and in 2000? A. There's every chance. Q. In the sense that if it so happens that yet once again his need for personal nurture and emotional support lands him in a relationship which proves to be as dysfunctional as the two earlier ones, it is not far fetched or fanciful to suppose that having snapped twice, he might in fact, snap a third time? A. Yes. Q. Please, Mr Taylor, don't let me put those words into your mouth? A. No. Q. I put the thing in that way because that's the shape of the question which it seems to me I'm going to have to grapple with eventually and if there's anything useful that your expertise can put to me on that I'd be glad to have that assistance? A. Yes your Honour. I mean, that's the very issue that I've briefly touched on in the last page, second last page of my report and I think that the issue that would arise would be at his age and with counselling et cetera, that he's had, what is the likelihood that he could respond to further counselling in the future and would he be motivated to anyway so that if he were ever released or when ever released, he could avoid forming a relationship which was dysfunctional. Don't forget that one of the problems has been that he himself has not been psychologically very well equipped to establish the relationships, but yet, he's had needs like we all have and that's one of the things that's made him vulnerable, so it is possible that it could happen again. I'm afraid the answer has to be yes, based on the fact that it's already happened twice. Q. And assuming that he can't himself in fact, in a situation which the said antecedent history suggests he has indeed found himself in, not once but twice? A. Yes. Q. And on occasions themselves, as these things go, widely separated so that even apparent improvement in a general sense, as attested for example in the report that I put to you when I began this exchange, has turned out to be not a reliable predictor of what might happen in those bruising, emotional encounters that he seems to have had so frequently? A. That's right, because they're two entirely different physical and emotional environments."

48 Dr Allnutt's report is dated 5 December instant. Dr Allnutt prepared the report without having had the opportunity of a face-to-face consultation with the prisoner; although he did have an opportunity to speak with Mr Taylor about the prisoner's case. 49 Dr Allnutt examines, in his report, the question whether the prisoner suffers from a psychiatric disorder; and expresses the following opinions on the topic: "Any comments that I may have on his personality traits are inferred. He has been described as a "loner". He appears to have limited ability to communicate his emotions. He appears to be the kind of person that does not assert himself verbally in the face of interpersonal frustrations. He bottles up his feelings only to have them erupt at certain times. The materials that I have reviewed causes me to have concerns in relation to a number of other personality traits. There is not significant evidence of concern on his part for the effect that his behaviours and their consequences may have had on others. He has manifested ongoing tendencies to behave in a deceitful way, as manifested by fraud charges in adulthood and childhood, use of aliases, his failure to inform his second wife of the nature of his charges and conflicting reports given to police. The three intra-familial assaults suggest a tendency to reaction to circumstance in a relatively spontaneous manner without weighing up the future consequences of his actions, either to himself or to his victims. He has an underlying tendency to serious aggression in certain circumstances. He has a tendency to blame his victims and appears to have difficulty accepting responsibility for his behaviour. He has been able to engage in a number of intimate relationships but also has had a number of AVO's against him. The relationships have been of relatively short duration. He has been married approximately three times. He has, at times, been able to pursue gainful employment. His employment history has been variable. While he manifested employability during the last few years of incarceration, he has essentially remained unemployed since release, which he attributes to his bad back. He has relied on social welfare assistance. At the time the second murder occurred, he was not involved in any particular organised activity. There is little evidence that, other than his wife, he had many associates or companions. I am of the view that he has antisocial personality disorder."

50 Dr Allnutt next examines, in some detail, the two murders committed by the prisoner, and offers this opinion: "In my view, the parallels between the two murders particularly suggest a vulnerability to extreme aggression towards family members or individuals in close relationship with Sievers, in the context of prior conflict, external stressors, sleep deprivation and substance abuse, justified by perceived provocation and insult, and strong feelings of rage toward and frustration with the victim".

51 Dr Allnutt examines finally the relevant risk factors. Once again, I prefer to quote rather than to paraphrase: "Risk Factors: In developing this report, I utilised the revised statistical information on recidivism scale (SIRS-R1). The SIRS-R1 is a tool utilised when considering the risk for recidivism in an offender who is due for parole. This is an actuarial risk assessment tool that provides probability scores in relation to future re-offending for indictable offences. While actuarial scores only provide information relevant to groups of offenders rather than individuals, the actuarial risk assessment tool anchors the risk assessment to an objective base to be modified subjectively. Factors that were present in cases that relate to increased risk included: Homicide as current offence, being over 40 years of age, having served a sentence in a penal institution on five or more previous occasions, forfeiture of statutory release, under 18 at the time of the first adult conviction, history of two or more convictions for assault, an aggregate sentence of 6 years or more, at least one previous conviction for break and enter, being unemployed at the time of arrest, having no dependents, and not being married at the time of incarceration. Factors that were absent according to the SIRS-R1 included: An absence of any previous attempted escapes, not being in a maximum security environment at the time of the assessment, having spent more than 2 years in the community since his release from prison, and an absence of two or more previous convictions for sexual offending. Sievers thus scores-2, which means that he falls into a group of violent offenders, 50 per cent of whom will commit an indictable offence within 5 years of release from prison. This is not to be interpreted as meaning that Sievers himself has a 50 per cent probability of offending. He may well be one of the other 50 per cent in this risk group who would not re-offend. There are a number of other factors that are associated with increased risk of violence, against intimate partners and spouses particularly, that also need to be considered, that are manifested by Sievers. These include: Past assaults that involve family members; an unstable work history; having been a witness of family violence as a child; offending in the context of substances; antisocial personality disorder; previous assault on an intimate partner; prior use of weapons, past violation of a non-contact order; and evidence for substance abuse or dependence, although this may be arguable. Factors that predict violence to intimate partners or spouses particularly, that are absent in this case include: The absence of symptoms of serious mental illness; the absence of extreme minimisation or denial of spousal assault history; and the absence of evidence of attitudes that support or condone spousal assault. Age is usually regarded as a risk-reducing factor, i.e. habitual offenders tend to re-offend less as they age. However, unfortunately in this case, given the nature of his offending history and the recency of the conviction of murder, age must be regarded as having limited value as a protective factor at this stage, although there are many predictable and unpredictable contingencies that can come into play over time, which can alter a person's propensity to violence. Re: Progress during Imprisonment. Throughout the course of his life, criminal justice officers have been optimistic about apparent reform or a change in his behaviour and reduction in offending. This was notable after his first marriage and later during the course of his incarceration for the first murder after he began a training program, and then again in the sentencing judge's remarks just prior to the second murder. This suggests a fluctuating yet consistent history of periodic offending and possibly an ability to conform his behaviour when required, to achieve certain goals that are in his interest. It also suggests a guarded prognosis. Significantly, I was unable to find evidence of any therapeutic interventions that specifically addressed his tendency to interpersonal aggression towards intimate partners, which I believe to be, amongst other factors, the core vulnerability in this man. Summary: Having regard to all the above, in my view there is cause for significant concern in relation to the risk that Sievers may pose to future intimate partners."

52 Dr Allnutt gave fairly extensive oral evidence, but it does not seem to me to detract from the overall thrust of the quoted material. 53 Dr Nielssen prepared two reports, one dated 18 October 2002, and the other dated 2 December 2002. They are exhibit P1 on Sentence. 54 The earlier report offers this opinion: "Mr Sievers is a 60 year old man charged with the murder of his partner of several months after an argument lasting several days. He reported exposure to violence by his father towards his mother and also physical and emotional abuse by his father. There was a history of admissions to psychiatric hospitals as a teenager and during his early adult life. He reported the onset of symptoms of an anxiety disorder in the period after his release from gaol in 1995, for which he intermittently sought treatment, including in the week before the offence. Mr Sievers reported a buildup of stress in the days before the offence as a result of the irrational behaviour of the deceased arising from her intoxication. He reported difficulty sleeping and increased anxiety including the fear that he would be assaulted or even stabbed by Ms Campbell. Mr Sievers said that he called the police on several occasions in the days before the offence because of Ms Campbell's behaviour. Mr Sievers did not report symptoms of a psychiatric disorder that had a substantial effect on his perception of events, his ability to judge right from wrong or his capacity for self control. Mr Sievers' perception of threat is likely to have been increased by his underlying anxiety disorder and the experience of having been assaulted several times in the days beforehand. Mr Sievers is fit for trial."

55 The later report looks particularly at the topic of "any mental illness or psychosis that might be indicators of future dangerousness". 56 Once again, I propose to quote the opinion in full: first, because it is difficult to paraphrase faithfully; and secondly, because the opinion points up very well, I think, the difficulty of the Court's present task in so far as that task calls for an assessment of future dangerousness: "The issue of future dangerousness is a difficult one for psychiatrists because of the limitations in the scientific research on prediction of violence. A further homicide after serving a sentence for the first offence is a relatively rare occurrence and I am not aware of any publications in the psychiatric literature specifically on that subject. The research that has been performed has identified risk factors in populations that are difficult to apply to individuals. Moreover, violence is usually due to an interaction between an individual's tendencies and their circumstances. Future circumstances are more difficult to influence or predict than the course of psychiatric disorder or personality traits, especially far into the future. Actuarial studies show that the factors that carry the greatest risk of future violence were previous violence, substance abuse and psychiatric disorders that increase the likelihood of impulsive behaviour, including some forms of brain damage, personality disorder, and treatment resistant or unstable psychotic illnesses. Mr Sievers has a history of violence within relationships, although the circumstances of his marriage and his recent relationship were quite different. He also has a history of alcohol abuse. Intoxication with alcohol was a factor in the first offence, but he denied being in any way intoxicated at the time of the second offence. However, he had resumed drinking and alcohol abuse was a feature of his lifestyle and probably affected his mental health in the period leading up to the second offence. Mr Sievers was assessed and treated for an anxiety disorder in the period before the most recent offence. He told me that he had collected prescriptions for anxiety relieving medication for his partner, who abused those medications, rather than for himself. He said that the only treatment he received for an anxiety disorder was an antidepressant by a general practitioner. In general, anxiety disorders are not associated with a high risk of violence, although people with anxiety disorders often abuse alcohol and sedative medication to relieve symptoms of anxiety. Mr Sievers also gave a history of depressed mood during periods of stress and admissions to psychiatric hospitals during adolescence and early adult life after injuring himself or threatening self harm. He did not report being severely depressed in the period leading up to the offence and did not appear clinically depressed at the time of the most recent interview. He did not report receiving psychiatric treatment in custody, and did not appear to require immediate treatment at the time of the most recent interview. Suggesting counselling or participation in therapeutic programmes aimed at improved relationships, containing alcohol abuse and managing anger are somewhat premature, as the effect of any psychological treatment is likely to have diminished by the time he is eligible for release. His mental state and treatment needs should be reassessed prior to release."

57 Dr Nielssen, too, gave oral evidence. Once again, counsel having completed their questioning of the witness, I asked for some particular assistance. The complete sequence is: "His Honour: Q. Doctor, you were in Court while Mr Taylor gave his evidence? A. Yes, your Honour. Q. Are you able to recall at least the broad thrust of that block of questions that I put to Mr Taylor based upon some of the contents of the judgment of Justice Wood dealing with the redetermination? A. You might have to remind me, your Honour. Q. Yes, let us go back and do it again. Let us begin with the proposition that the question which is the most significant one in the exercise that I have to do doesn't involve as I see it an exercise in mathematics. It entails looking at a body of established past facts and circumstances and asking what inferences can be safely drawn, if indeed any, as to future risks. Not future certainties, future probabilities if you like to put it that way? A. Yes. Q. Counsel will tell me in due course if that mis-states the law, but that's what I understand to be the practical dimension of the question that the Court has to come to grips with? A. Yes. Q. In 1980, the prisoner was sentenced to imprisonment for life. By 1992, when he made the application for a redetermination, he had reached a stage where expert psychiatric opinion assessed him in that way which is set out relevantly to this discussion at the foot of page 4 and the top of page 5 of the judgment of Justice Wood, where his Honour speaks of Miss Tonner, of whom his Honour says that she has been working with the prisoner on a regular basis for counselling and preparing him for release. A. Yes. Q. Would you take a moment just to glance through that please to remind yourself of what it says? A. Yes. Q. The judge follows on with some observations of his Honour's own of which it is sufficient to say that they build upon the picture which is painted by Miss Tonner in that material, and they conclude first that the case is one in which it would be proper to redetermine the life sentence and, secondly, that the proper level of that redetermination is, as you see on page 6, a minimum term of 12 years and six months to date from 10 April 1980 and to expire on 9 October 1992. In other words, a minimum term qualifying the prisoner for release what, as little as two months give or take after the redetermination itself. As I said to Mr Taylor, I'm not quite clear as I speak whether or not the prisoner was in fact released to parole at the expiration of the minimum term or whether there was some intervention by the Parole Board, but however that may be, it's a safe inference that he was in fact released to parole sooner rather than later in accordance with the redetermination. If one looks only at the police printout of his criminal antecedents, he seems to have kept himself out of trouble until 1999, give or take a few days, 7 years to the day. He was then involved in an offence of supplying a prohibited drug. I don't know, as I speak, anything about the details of it except that the nature of the offence, balanced against all the other subjective considerations proper to the case, was seen by the District Court as justifying a sentence of imprisonment of 18 months but suspended subject to the prisoner's entering into a recognisance in the normal way, which he did. A. Yes. Q. Can I remind you that I asked Mr Taylor to take into account that in the nature of things, the prisoner wouldn't have got the bond at all unless he had acknowledged, and had his acknowledgment vouched for by some credible evidence, that he understood what the bond entailed, was prepared to accept it as an opportunity to conform to the proper requirements of the law, one of which was that he not commit any further offences while at liberty on the bond given to him. The bond was expressed to operate from 6 June - that not quite right. The 18 months imprisonment was fixed to commence on 6 June 2000 and was suspended on his entering into the 18 months bond. The date of the murder, which is my principal concern in these proceedings, was 4 July 2000, that's to say all but a month after. Now that's the first grouping of facts and circumstances that I have before me in a concrete form. What, if anything, does all of that suggest as the drawing of an inference, a rational and a reasonable inference, as to future probabilities and risks? A. I'm not sure as a psychiatrist, I can assist you there, your Honour. I was trying to consider what psychiatric disorder may have influenced that constellation of facts, whether-- Q. Yes, and it would have been fairer had I put the last question to you in the form, does your particular field of professional expertise enable you to say anything on that question of drawing an inference as to the future probabilities and risks? Perhaps it does not, I don't know, but I would be interested to know if there is anything that your professional expertise does enable you to say about the effect of that concatenation of facts and circumstances. A. Yes, well my understanding of the circumstances of the previous offence was that the reason that he had such a light sentence on what was objectively serious charges, was that he had provided some assistance to the police and that may have added to his stress. But apart from that, I can only conclude that it was the circumstances that he found himself in the subsequent months that overcame any good intentions he may have had in entering the bond and that his life history, as pointed out in the other evidence and reports, indicates a tendency to act on impulse which is an enduring trait. Q. Let me put one other discrete set of facts of circumstances to you. I'm taking them from my notes of the trial rather than from the trial transcript, but I believe that what I'm going to put to you is accurate. Would you understand please that at the trial, the prisoner gave evidence and his evidence-in-chief involved a day by day canvass of his interaction with the deceased for the week or so before the actual killing. I'm not going to put all that to you, firstly because of its bulk and secondly, because it follows a pattern which was that the two of them had, to say the very least, a volatile kind of relationship? A. Yes, your Honour. Well he's given me an account which was consistent with the instructions he gave Mr Dickens and hence, I have some familiarity with what he said took place. Q. What I do want to put to you is this sequence as he gave it. He said that having stabbed her, he went to the living room and sat down "basically staring at the wall". He said that he had then wrapped her in a black plastic sheet, that he got some clothes together, got in the car and left. There were some movements in the vicinity, the detail of which is not important for the question that I want to put to you, but ultimately what happened was that he went to visit a brother in Kurri Kurri and then continued up the coast to Raymond Terrace or Maitland and then as he put it, he just started "driving up the coast". He said he was talking to the deceased. He reached the spot, he said, which was a lay-by at the side of the road, a fairly deserted lay-by on a fairly deserted back road stretch of the highway going north. He said he asked her to get out of the car and that he then got the body into a sitting position on the side of the roadway. I paraphrase, but pushed it sufficiently to cause it to roll down to come to rest in the spot where, more or less at any rate, it was subsequently found. I want to tell you again with emphasis that is a paraphrase of the evidence taken from my notes at the time. A. Yes, your Honour. Q. Does a sequence of events of that character tell you anything as a matter of professional expertise about the problem of future probabilities and risks that I've been discussing with you? A. No your Honour. I think it's really describing, and I've heard similar descriptions from other people in the situation of having committed a terrible crime and having to consider the consequences afterwards, and their feelings perhaps towards to - their mixed feelings towards the deceased. It doesn't really help me in terms of - in the sense I don't think I'm able to draw any meaningful inferences regarding future risk from that."

58 I should note that the professional standing and expertise of all three witnesses were undisputed, and I accept the evidence given by the witnesses. I have allowed, in the case of Dr Allnutt, for the fact that he did not have the benefit of a consultation with the prisoner in person. 59 It is trite that the Court, although accepting the expert opinion evidence, is not to be simply overborne by that body of expertise; but is to make it's own findings of fact by the drawing of rational inferences with the assistance of the expert evidence. Any such finding that is adverse to the prisoner may not be made properly unless it is made beyond reasonable doubt. 60 I am satisfied beyond reasonable doubt of the following matters: 1) The prisoner has a personality disorder by whatever technical terms it might be more particularly defined and described. 2) The disorder manifests itself in acts of extreme physical violence committed in situations of great emotional stress, and especially in situations of great domestic emotional stress. 3) The disorder can lie dormant for periods, sometimes quite lengthy periods; but it is a constant reality, and a constant potential danger. 4) That potential danger is particularly acute in the context of any serious personal relationship of the prisoner with a woman; but especially with a woman who is herself emotionally dysfunctional.

61 As to the relevant legislation and case law, it is convenient to commence the discussion by noting the relevant terms of s 19 A of the Crimes Act 1900 (NSW), and of s 61 of the Crimes (Sentencing Procedure) Act 1999 (NSW). 62 S 19 A provides relevantly: "19A(1) A person who commits the crime of murder is liable to imprisonment for life. (2) A person sentenced to imprisonment for life for the crime of murder is to serve that sentence for the term of the person's natural life. (3) Nothing in this section affects the operation of s 21(1) of the Crimes (Sentencing Procedure) Act 1999 (which authorises the passing of a lesser sentence than imprisonment for life)."

63 S 61 provides relevantly: "61 Mandatory life sentences for certain offences: (1) A Court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence."

64 It can be observed at once that a section 19A(1) sentence is a truly dreadful penalty. There is no means of making an application at some appropriate future time to have the sentence redetermined into a head sentence of a term of years and a non-parole period. There is no power in the Court which passes the sentence to set a non-parole period; a legislative lacuna which has attracted in the Court of Criminal Appeal, thus far without legislative response, criticism and proposals for legislative reform with all of which I respectfully agree; Reg v Harris (2000) 50 NSW LR 409 Wood CJ at CL. at paragraphs 125-134 inclusive; Giles JA and James J concurring. 65 The foregoing considerations can be supplemented usefully by recalling the following eloquent and powerful dissent of Allen J in R v Baker (unreported NSW CCA 20 September 1995): "In R v Petroff (unreported 12 November 1991) Hunt CJ at CL said: In the Old Testament, in the second Book of Moses called Exodus, the author laid down the law concerning acts of violence in these terms: "And if any mischief follow, then thou shalt give life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burning for burning, wound for wound, stripe for stripe" (Ch 21 vv 23-25) It is, as I say, an understandable desire on the part of the victim or those whom he or she leaves behind to have the law of Moses applied. But we now live in a civilised community. Winston Churchill, during a debate in the (UK) House of Commons in 1910 said this: "The mood and temper of the public with regard to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country." A civilised country does not act in the way that Moses laid down. Capital punishment has been abolished, and (except in extraordinary circumstances, which do not exist in this case) the law does not regard itself as permitting a slower and more painful death by locking away the murderer and throwing away the key." Those words admirably express the basic approach which a judge in a civilised country must take.

S 19A of the Crimes Act 1900 empowers this Court to sentence a person convicted of murder to penal servitude for life. That is what such a sentence, if imposed, means. It means for life. It means that never can there be any hope of release. It means never, no matter how many decades go by, will the prisoner be allowed out again. It matters not whether he is 60, 70 or survives to 80. He is there for life. Such a sentence cannot lightly be imposed in any civilised society. There are of course, circumstances in which in a civilised society such a sentence may be called for. Such cases will be quite exceptional. But clearly they exist. The law so provides. It would be foolish in the extreme to attempt to give a list of the types of cases which would warrant the court taking this, the most extreme measure available to the law. Three, however, stand out in respect of murder. The first is the case of the professional killer, the person who cold-bloodedly assassinates others for gain. That is one category. Another is the case where the killer is so fundamentally psychotic that it could never be safe to release him back into the community. I may say that the evidence that that is so would, as far as I am concerned, need to be quite strong. The third is the case of an offender who embarks on such a course of criminality that nothing short of the knowledge that the most extreme punishment the law can give awaits him."

66 I agree with the general tenor of those statements. Having said that, I at once acknowledge that Parliament has seen fit to provide for an indeterminate life sentence in any case which comes within the terms of s 61; and that a sentencing Judge cannot properly refuse in such a case to apply the law as so stated. 67 In assessing whether the murder for which sentence must now be passed does indeed come within the terms of s 61, there are two further propositions of significance. They are:

1. The enactment of ss 19 A and 61 does not nullify the centuries-old insistence of the common law that a citizen is not to lose his liberty at all, let alone for the term of his natural life, save as punishment for an offence which is known to the law and of which he has been found, by due process of law, guilty beyond reasonable doubt. It cannot be said too often or too plainly that the experience of the common law over centuries of constitutional struggle has shown that merely preventive detention is a weapon of choice for the tyrant. 2) The common law is equally insistent that a citizen is never to be punished more than once for any one offence. This principle is of the greatest practical importance in such a case as the present one.

68 All of the foregoing principles having been set in place, it is necessary to match the present case to the statutory requirements. That entails, in my opinion, the following process of reasoning:

1. The decision of the Court of Criminal Appeal in Harris endorses the following principle which is quoted by the Court from the earlier decision of the Court in R v Twala, unreported, NSW CCA, 4 November 1984: "In order to characterise any case as being in the worst case category, it must be possible to point to particular features which are of very great heinousness, and it must be possible to postulate the absence of facts mitigating the seriousness of the crime as distinct from the subjective features mitigating the penalty to be imposed": (50 NSWLR, 423) 2) The facts in Twala were, briefly, that Mr Twala stabbed his estranged wife to death. He inflicted nine serious stab wounds, one of which virtually disembowelled the victim. There were a further seven cuts and slashes, mostly defensive wounds. The Court of Criminal Appeal was of this view, as expressed in the leading judgment: "There is no doubt that this was, as expressed earlier, a violent and horrible killing, but it was a killing clearly influenced (notwithstanding the jury's rejection of the defence of diminished responsibility) by the mental disturbance of the prisoner resulting from the breakdown of his relationship with his wife upon whom he had become very heavily, even obsessively dependent. The Court found it impossible to characterise this as a case falling within the worst category ... ". 3) If that reasoning be correct, - and I am not aware that it has ever been held to be incorrect, - then by parity of reasoning, the murder of Miss Campbell, serious crime as it undoubtedly was, could not be characterised save for one qualification, as being in the worst case category. 4) The qualification of which I have spoken is that the murder of Miss Campbell, unlike the murder of Mrs Twala, does not stand alone. It stands, rather, in association with antecedent crimes of violence, one of which was another murder having, as the expert psychiatric evidence attests, some significant factual similarities to the facts of Miss Campbell's murder. 5) The decision in Harris is authority for the proposition that in such a case it is permissible to have regard to the antecedent crimes of violence in the course of assessing the "level of culpability" in the prisoner in the killing of Miss Campbell: (50 NSWLR, 424) 6) The prisoner's "level of culpability" when assessed on that basis analyses as follows: a) In October 1967 the prisoner so impressed a sentencing Judge by his apparently successful rehabilitation from antecedent criminal conduct, that he was sentenced with marked leniency for the malicious wounding, by means of a knife, of his brother. b) Some 2 years later, the prisoner was dealt with much more severely for an offence of common assault having, as previously herein explained, some ugly aspects. c) For almost 10 years, the prisoner was free of serious criminal conduct. That break in criminal history came to an appalling end with the murder of his then wife. d) In 1992, having served some 12-1/2 years of imprisonment, the prisoner so impressed both a professional psychiatrist, and a senior and experienced Judge of this Court, that his then current life sentence was redetermined in a way which was very favourable to him. That result rested, in large part, upon acceptance of the proposition that the prisoner had rehabilitated himself to the stage where he could properly and safely be released back into the general community. e) Once again, the prisoner's progress appeared to vindicate that faith in him; but, once again, he re-offended in the form of a significant drug trafficking offence. Yet again, the prisoner so impressed the sentencing Judge that the entirety of his sentence was suspended upon his entering into a good behaviour bond. f) The prisoner had been at liberty on that bond for something like a month when he committed the murder for which he is now to be sentenced. 7) How the prisoner's level of culpability, as so analysed, is to be measured as to its extremity, is a question which has to be answered in the light of the definitive guidance given by the High Court of Australia in Veen v The Queen (No. 2), (1988) 164 CLR 465 . The principles thus stated by the High Court are well settled, and well known to sentencing Courts. I shall cite two passages from the joint judgment of Mason CJ, Brennan, Dawson and Toohey JJ: "It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible." "There are two subsidiary principles which should be mentioned. The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: DPP v Ottewell (35). The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind." "The second subsidiary principle material to this case is that the maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which that penalty is prescribed: Ibbs v The Queen (36). That does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case; ingenuity can always conjure up a case of greater heinousness. A sentence which imposes the maximum penalty offends this principle only if the case is recognisably outside the worst category."

8. I was referred by both counsel to other decisions of other Courts. I have concentrated on the decision of the Court of Criminal Appeal in Miles (2002) NSWCCA 276; and to the decision of Greg James J in Barac (1999) NSWSC 61, both of which I have found of assistance on the question, crucial in the present matter, of future dangerousness. I have come to my ultimate conclusion by the "two-stage process" of which Carruthers AJ speaks in Miles; see at paragraph 204 9) The first stage of that process is to determine "whether on the objective facts, the level of culpability is so extreme that it warrants the maximum penalty": (ibid) I have to say that after anxious reflection, I think that it does. 10) The second stage of the process is to determine "whether the subjective factors are capable of displacing the prima facie need for the maximum penalty". 11) I have found this a very difficult question to resolve. The prisoner's age means that, in the nature of things, his imprisonment, whatever its precise duration, will be very harsh. There is so much unhappiness and deprivation in the prisoner's background that one would wish to keep open at least some responsible option for future rehabilitation and release. If ever there was a case in which Wood CJ at CL's suggested reforms would be a responsibly humane sentencing option, this is the case.

As matters stand however, that option has not been made available by Parliament. In that case, it seems to me that the proper protection of the public entails that the prisoner's subjective features cannot displace the prima facie need for the imposition of the maximum penalty.

ROBERT THEO SIEVERS, for the crime of murder of which you have been convicted and for which you now stand for sentence, you are sentenced to life imprisonment.

Last Modified: 02/06/2003 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.