REGINA v ROBINSON

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADAMS J THURSDAY 19 OCTOBER 2000 70051/99 REGINA v Christopher Andrew ROBINSON JUDGMENT ON SENTENCE

1 HIS HONOUR: On 10 July 2000 the offender, Christopher Andrew Robinson, pleaded guilty to the murder of Trevor John Parkin on 27 December 1997 at Glebe. When he murdered Mr Parkin, the offender was seventeen years of age. 2 Mr Parkin's body was found by police on 29 December 1997 in his unit in Glebe Point Road, Glebe. He had been killed by massive blunt injuries to his head involving large fractures to the skull and extensive fracturing of the facial bones. Mr Parkin's body had been extensively mutilated with a knife. The chest cavity had been cut open and the body partially disembowelled. There were multiple cut and stab wounds to the trunk, including about ten stab wounds in the left lung and well over this number in the small bowel mesentery and the attached small bowel, which had been partially torn from its mesentery in a number of locations. The left testis had been amputated and was found in the kitchen sink. Mr Parkin's hands were tightly tied with an electric power cord which had also been wrapped around his neck. The pathologist was of the opinion this, as well as the mutilation, was done after death. 3 The conclusion that this crime was committed by an extremely dangerous and disturbed individual is both obvious and inevitable and requires no psychiatric training to be discerned. 4 The person with whom the deceased shared his unit reported to police that, amongst other items missing from the unit was a "Laser" brand partly-serrated, black-handled kitchen knife. There can be no doubt that this had used to cause some, if not all, of the knife wounds inflicted on Mr Parkin. 5 Andrew John Newman told police that on 26 December 1997 he had spent the night in the house then occupied by the offender and his then girlfriend, Summer Morris, and that on the following evening he and the offender had gone to a hotel in the city. They had been drinking for some hours and walked over to the Central Railway Station when Newman was arrested by police and taken to Surrey Hills police station where he was charged with drinking at the train station. Police reported that, when spoken to, the offender appeared to be moderately affected by alcohol. Newman spent about three hours at the police station and then went back to the offender's residence. No one was at home but a few hours later the offender returned. It was still dark. 6 The offender was carrying a bag which contained a stereo which he said he had stolen from "where the coaches go". The offender also removed from the bag a bowling pin wrapped in a blue plastic bag. He told Newman that he had met a man whilst he was walking around and had gone to his place. He said, "I was having a joint with him. He needed to go to the toilet so I looked around to see what I could rort". The offender took a knife with a black handle out of the bag wrapped in a clear plastic bag which seemed to be stained with blood. Newman said that the offender told him that whilst he was waiting for the man to come out of the bathroom, he was standing behind the door holding a bowling pin which he had found on the floor whilst he was looking around. He said that when the man came out of the bathroom, he hit him on the head "a couple of times" with the bowling pin. He told Newman, "He dropped to the floor and was gasping for air. I got the knife and gave him a good going over. It took him a while to die. I cut him down the stomach." Newman thought that the offender added that he had cut the man in the back, but he was not sure about this. The offender told him, "There was heaps of blood and it stunk." Newman did not believe what the offender had told him because, as he said to the police, the offender seemed too calm. He was not upset and was very casual. Newman said that "it was as if he hadn't done anything". He did not appear to be affected by drugs or alcohol. The offender also told Newman that he had looked around for the man's money because he said he had some but could not find any. The offender repeatedly commented that Newman did not believe him, although he pointed to his shoes and to the bottom of his pants which showed drops of blood. However, Newman noticed that the offender had a black eye and thought that he had been bashed and that the blood had come from his nose. During the conversation the offender said several times, "killing someone is liberating". He threatened to kill Newman if he told the police. Shortly after this, the offender changed his clothes and took the jeans and shoes he had been wearing to the laundry. Sometime later, he picked up the knife which he had shown to Newman and walked out of the house, saying when he returned that he had buried it. This was just before dawn. (The knife was discovered by police following the offender's arrest.) The offender then took the bowling pin out of the plastic bag and washed it in the laundry, returning to the lounge room where Newman was and, after drying it, placed the bowling pin next to the television. It seems that, at some later stage, he put it back in the plastic bag. The offender told other persons in Newman's presence on a number of later occasions that he had killed someone and, on one other occasion that he had waited behind the door, hit the victim with a bowling pin and "cut him up". 7 As I have mentioned, the offender's girlfriend at the time of Parkin's murder was Summer Morris. She told police that she recalled a conversation with the offender shortly after Christmas 1997, shortly after they had had an argument and he threatened to kill her, that he had done it before and would do it again, adding, "I don't give a fuck". Ms Morris said that, at this point, the offender walked out of the room and returned a short time later carrying a transparent blue plastic shopping bag in which was a white bowling pin with red stripes which he showed her. She said that the offender said that he had killed someone with it and told her to clean it up. She took the bowling pin to the kitchen, threw the bag into the garbage bin, and noticed what she thought was dry blood on the bowling pin and the inside of the bag. She rinsed the bowling pin and left it on the side of the sink. I accept as reliable Mr Newman's account of his conversations with the offender. I note that his statement was admitted without objection and no application was made by Mr Molomby, appearing for the offender, to cross-examine Mr Newman to suggest that his account was not true. 8 The offender gave Ms Morris some details of the murder, but at no stage suggested that he had been provoked by his victim or had in any sense been attempting to defend himself from an attack of any description. 9 A Ms Arnautovich, who had commenced a relationship with the offender just after his eighteenth birthday in June 1998, made a statement to police in January 1999 in connection with the investigation. The offender had told Ms Arnautovich about the murder of Mr Parkin, although he suggested he had been provoked by a sexual approach and had also acted in self defence. I have no doubt that this explanation was false, although the offender made statements to the same effect to a number of acquaintances. So far as any suggested attack is concerned, this was not even so much as hinted at in his first account to Mr Newman, nor did Ms Morris recollect any such explanation and it would have been inconsistent with what she did remember of his account to her. In addition, the offender told Ms Arnautovich that he had been a heroin addict (his use of drugs was confirmed by other witnesses) and that he paid for his addiction by prostitution, saying that he was bisexual. It is unnecessary to set out this evidence in detail for the purposes of these reasons, but I consider that the only reasonable conclusion from what the offender told Ms Arnautovich (which, in the circumstances, I accept to be truthful) is that it would be most unlikely, considering the whole of the circumstances, that a sexual advance by Mr Parkin of the kind suggested by the offender would have provoked a violent response from him. 10 The offender, when arrested, told police that he had acted in self defence and that Mr Parkin had tried to rape him with a knife. He made a similar suggestion to both Dr Wilcox and Dr Nielssen. I have no doubt that these explanations are false. Although, at one stage, the offender told Ms Arnautovich that he hit the victim with the bowling pin after the victim had walked into the kitchen and come out with a knife (an account starkly contrasting with what he told Newman, Dr Wilcox and Dr Nielssen), he had also said to her - "You know, I saw him at Central Station and the moment I looked into his eyes I knew I was going to kill him and he knew I was going to kill him and I knew he was a paedophile and he knew that I knew. It's like he wanted me to do it...I knew I was going to kill him, something told me I was going to do it and he knew it too...we both just knew. I just walked into the kitchen and got the knife and I slashed him up."

The mutual telepathy, of course, is invention, but I consider that this statement gives some support for the inference that the offender thought of killing, or at least attacking, Mr Parkin well before the event and that this was the motive for accompanying him home. It is also inconsistent with the offender's assertions that he acted to any degree in self defence. 11 In the accounts given by the offender to Newman, Morris and Arnautovich he did not suggest that he was adversely affected by either drugs or alcohol. On the other hand, he said to Dr Nielssen (and the doctor accepted) that he was intoxicated with a combination of heroin and alcohol at the time of the offence, assertions which he repeated to Dr Wilcox. Whilst I accept that the offender may well have been to some extent affected by alcohol and perhaps by marijuana, at the time of his attack on the victim, I do not accept that he was so affected as to significantly reduce his culpability for the crime. The details in his accounts to Newman, Morris and Arnautovich belie any substantial level of intoxication. Nor do I accept that his varying accounts of the occasion arise from confusion or confabulation. His later accounts merely reflect attempts at justification. 12 As it happened, the victim had been convicted in December 1995 of six offences of sexual assault involving young persons (both male and female) between May 1985 and July 1988. However, the offender's statement that he was unaware at the date of the crime that the victim had been a paedophile is almost certainly true although it seems reasonably possible that Mr Parkin had expressed a sexual interest in the offender when they met. The offender told Dr Wilcox and Dr Nielssen that when he needed money for heroin he had posed as a male prostitute in order to assault and rob potential customers, although he denied any homosexual desires or activities. When this statement is considered together with the accounts of his homosexual activities given to Ms Arnautovich (and, in general terms, to the psychologist at Kariong Juvenile Justice Centre after his arrest) and his statement to Newman to the effect that he had formed the intention to steal from the victim before he attacked him, I think it virtually certain that, either explicitly or implicitly, the offender had encouraged the victim to think that he would be willing to engage in sexual activity with him and that he went to the victim's house intending, at least, to assault him and steal what he could. I am unable to say at what stage the offender formed the intention to kill the victim but I have no doubt that he had contemplated a serious assault well before it actually occurred. I accept the submission of Mr Molomby, counsel for the offender, that I could not conclude that the intention to kill Mr Parkin was formed an appreciable time before the attack in the sense that it could properly be described as premeditated. 13 As I have already said, it is clear that Mr Parkin's murderer must be an extremely dangerous and disturbed person. I will advert in due course to the opinions of Drs Wilcox and Nielssen concerning the offender's psychiatric state and also to the evidence of Dr Milton called by the Crown. In order to evaluate those opinions, however, it is necessary that I refer to what I regard as a most significant aspect of the offender's history but which was not (for understandable reasons) taken into account by either Dr Nielssen or Dr Wilcox. 14 Ms Morris, who commenced dating the offender in about February 1997, described two incidents involving cats which she had witnessed. Although the circumstances are shocking, I think that it is necessary to set out her description of them in detail, however distasteful, for reasons which will become obvious. Ms Morris said - "During the time I was going out with Chris I was aware of a number of incidents involving Chris being cruel to animals. Not long after we started going out I bumped into Chris in a Park at Mascot near my home, I think it is called Mascot Park, it is near the Council building. The Park has a war memorial in it. When I saw Chris it was about dusk. Chris was holding a cat. He had a plastic bag over the cat's head and was burning the cat's tail with a cigarette lighter. When I saw him half of the cat's tail was already burnt and he was still burning more of it. When he saw me he threw the cat and it ran away. I was too scared to say anything to Chris about this. "On another occasion about a month later I was with Chris at a different Park, in the City somewhere. I caught a cat and was patting it. Me and Chris got into a fight but I can't recall what it was about. Chris grabbed the cat and was looking at it. He then got a knife out of his pocket, I think it was a flick pocket knife and started cutting the cat's ears off, he cut its tail off and then he cut the cat's toes off. The cat was still alive and then he cut it straight down the stomach. I could tell that it was a mother cat and was breast feeding. My mother breeds cats and I know a lot about them. When he cut the stomach open he started pulling its stomach contents out. I was in shock from the time he first started to cut the cat and was frozen scared. I then ran away and Chris chased me yelling out, "Stop, I'm going to fuck you up." 15 Ms Morris was required for cross-examination upon this aspect of the evidence. It is unnecessary to set out that cross-examination. It is both shocking and baffling that, following these events, Ms Morris continued to have a relationship with the offender. This bespeaks a disturbing degree of moral numbness. Mr Molomby submitted that it was most unlikely that, if Ms Morris had in fact witnessed these horrific acts, she would have remained in the relationship. On a number of material occasions, also, she was affected to some degree (though I consider, slight) by drugs of one kind or another. However, I found her evidence convincing and I am persuaded beyond reasonable doubt that what she said to the police and, in essence, repeated to the Court, was substantially true, although I think that some of the details may have been confused. Ms Morris also said that the offender was obsessed with knives. Even so, it is clear that the offender was not carrying a knife at the time of the crime. 16 The offender told Dr Wilcox that during his childhood he had a number of dogs and cats as pets. He told her that there were occasions when he would get angry with the cat and throw it off the balcony and he once threw his dog off a second floor balcony. However, he adamantly denied having ever cut up cats and said to Dr Wilcox, in effect, that Ms Morris had fabricated her statements about his doing so. The offender told Dr Nielssen that he had never committed any acts of cruelty towards animals. These were lies. 17 Tendered before me by consent were statements made by the persons I have already mentioned and other acquaintances of the offender. Those statements refer to many comments made by the offender about Mr Parkin's murder. It is unnecessary to set these out in detail. It is fair, I think, to characterise them as defiant, self-justificatory and boastful. Indeed, it seems to me that they display a distinct tone of relish. 18 The offender told Dr Wilcox that when he was younger he had a lot of anger and then went on to say, "After I killed that guy, after I got him back, I did not feel much anger, it made a lot of my anger go away". Dr Wilcox asked him if he had ever thought of killing anyone else. She said that he replied that he would sometimes think about how he would like to kill someone but knew that he would never do it again and expressed considerable regret for his past actions. On the other hand, although, as I have mentioned, the offender buried the knife he had used to mutilate the body in the back yard of his premises, he kept the bowling pin and would produce it from time to time, describing it in a threatening way as having been used to kill someone. As Dr Nielssen opined, his behaviour was likely, as the doctor put it, "to be due to pride in his achievement". I accept the opinion expressed by Dr Milton - "An attack of this level of violence on minimal or no provocation, followed by bizarre mutilation of the body, raises the question of why the offender did it. I do not believe it can be explained on the basis of drug intoxication but is more likely to be a reflection of longstanding extreme aggression and bizarre fantasies and unusual tastes, including pleasure in killing. "The most probable explanation of the murder is that it was deliberate and provided an outlet for feelings of inadequacy, the particular act of killing causing Mr Robinson to feel powerful and effective. That is in accord with his keeping the murder weapon and boasting about his act. "His evisceration and other mutilation of the body is consistent with a liking for extreme morbid stimulation, with unusual curiosity, and with the cruelty described by Ms Morris in regard to Mr Robinson's callousness and sadism to animals (including evisceration similar to that carried out on Mr Parkin). He told Dr Wilcox of having thrown animals from a height. "The killing of Mr Parkin is consistent with Mr Robinson's poor self-concept, past history of violence, interest in weapons, antisocial behaviour and lack of concern for the feelings of others. The offence cannot in my view be explained as a sudden angry reaction to homosexual advances, even if one accepts he was affected by drugs or alcohol at the time. The factors causing the offence are likely to be deeply established in Mr Robinson's being. Thinking about the offence is pleasurable to him, and such behaviour that is rewarding to him is likely to be repeated." 19 All doctors agreed, in substance, that there was no evidence of developmental disability, brain damage, psychotic illness or mood disorder although the offender's intelligence was estimated as in the low average range. There was also a history of substance abuse. As Dr Milton, however, concluded - "In any event, and regardless of the cause, Mr Robinson showed restless, aggressive, anti-social behaviour prior to the killing and such a pattern does not as a rule change much over time." 20 It is important, I think, to state that whilst psychiatric assessments in cases of this kind are undoubtedly useful and require careful consideration by the sentencing judge, in the end the judge is obliged to exercise his or her own insight, knowledge and experience in assessing the relevant character of an offender and the true extent of his or her culpability for the crime. 21 Drs Wilcox and Nielssen naturally sought from the offender an explanation for his mutilation of the body. Although he had a clear memory of this, he could not, or would not, give any explanation, saying to Dr Wilcox, "Maybe I wanted to see what it looked like, maybe I felt that this is what I had to do to make sure he was dead". He told Dr Nielssen that he was "puzzled by having done it". On the other hand, he told Ms Arnautovich that the reason that he had mutilated his victim's body was, "because I wanted the police to think they were dealing with someone who really meant business, like a complete psycho who was out to get him, like a real mental case". This may partly have been true. It raises the question, however, as to why he wished the police to think this. 22 I should mention that in about August 1998, when with Ms Arnautovich and under the effect of LSD the following occurred - "Chris was very overwhelmed. He went silent and started to cry. I kept asking him what was wrong and he said, 'You don't want to know. How can I tell you what I've done. I can't just come out and tell you.' I said, 'Yes you can, just tell me.' He said, 'I've done a lot of bad things in my life and I did something very bad that I can't take back. I've done something I shouldn't have done.' I said, 'What did you do.' He said, 'I can't just tell you, even though the guy was a bad person and even though I knew he was scum and I thought by getting rid of him, it was getting rid of just another piece of scum off the streets, but that makes me just as bad as him.' I said, 'Didn't you say he tried to rape you.' He said, 'Yeah, but I should have let the Courts deal with him. I should have let the Police deal with him and by doing what I did, which I can't take back, I'm just as bad as he is. I'm just as much as a scum as he is.'" 23 From time to time he also had conversations with Ms Arnautovich which suggested that he was haunted by the events of that night and appeared to be frightened and panicked when he referred to the bowling pin. 24 Whilst I think that these conversations and, perhaps, his fears may, to some extent, demonstrate an acknowledgment of wrongful behaviour and a degree of contrition, a consideration of the whole of the evidence compels the conclusion that this was only slight and short-lived. In light especially of the offender's other statements about the crime to which I have referred, I have regretfully come to the conclusion that, to the present time, there is no evidence capable of acceptance that he feels any remorse for what he has done. 25 In dealing with a young person such as this offender, the prospect of, and public interest in, rehabilitation is a very material factor in sentencing and will, in most cases, lead to the imposition of a lighter sentence than would ordinarily be imposed. The other material consideration is that such an offender's culpability may be lessened by his or her relative immaturity, which might lead to the conclusion that he or she did not appreciate the full extent of the criminality of the offence being committed and lacked the personal resources to control his or her violent behaviour which, with maturity, might develop. 26 In this case, Dr Wilcox does not suggest that this offender has any real prospect of rehabilitation, although her report appears mainly directed to the issue of his fitness to plead and the possible existence of a defence of either mental illness or diminished responsibility. However, certain aspects of the case led her to suggest that the offender, "may have a vulnerability for a psychotic illness and it is possible that at a later time he may develop a mental illness such as schizophrenia". Dr Nielssen also did not deal with the issue of rehabilitation in terms but stated that, although the offender "denied having any sadistic or sexually deviant interests, the pattern of behaviour reported is strongly suggestive of a serious psycho-sexual disturbance that warrants extensive exploration in a counselling relationship" and recommended treatment including intensive counselling and further education and vocational training. Dr Milton considered that, whilst Dr Nielssen's suggested approach could be supported on humanitarian grounds, from a clinical point of view, counselling or psychotherapy was not likely to produce significant change. Dr Milton concluded that the offender could be "contained by a consistent, closely structured environment" and thought that perhaps over time this, combined with education and medication, might have some positive effect but warned that, "the depth of his problems as demonstrated in his history, the murder and mutilation, suggest entrenched and self-rewarding patterns of violent and bizarre thought, with a risk of repetition". 27 I have, with some reluctance, come to the conclusion that the murder of Mr Parkin was deliberate and unprovoked. The blows to the head were extremely violent. The offender intended to kill, not merely to disable. The mutilation of the body must have extended over a considerable period of time and required a great deal of physical effort. The offender told Ms Arnautovich, when describing the mutilation - "Do you know how strong those tubes and things inside you are. I do not how doctors operate, they must have some really sharp knives. Do you know how long it takes to cut all those organs and those tubes that connect everything together. I couldn't believe it, man."

I think it unlikely that the offender had decided to mutilate the body as a sudden, spur of the moment aberration and that it was likely that, before he killed him, he had it in mind to mutilate his victim's body. As I have mentioned, the victim's hands were tied and the mutilations inflicted after his death. However, having regard to a number of statements made by the offender about the killing and the fact that he bound the victim's hands, I consider it virtually certain that, at least when he did so and commenced using the knife, he believed the victim was or may have been still alive. Moreover, having regard to his previous mutilation of the cat, I consider that the offender did not mutilate Mr Parkin's body in order to kill him, although this must have occurred if he were not already dead, but primarily because doing so satisfied some deep-seated need or provided an unimaginable pleasure. 28 The learned Crown prosecutor submitted that, were it not for the fact that the offender was only seventeen and a half years of age at the time of the murder, this offence would fall into the most serious category of murder. It is obvious from the nature of this offence and the character of the offender that protection of society is a very material factor in fixing an appropriate sentence although, of course, the sentence which is otherwise appropriate by virtue of the gravity of the crime cannot be extended "merely to protect society": see Veen v The Queen (No 2) (1988)164 CLR 465 per Mason CJ, Brennan, Dawson and Toohey JJ (at 476) where their Honours go on to say - "...sentencing is not a purely logical exercise and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions. And so a mental abnormality which makes an offender a danger to society when he is at large but which diminishes his moral culpability for a particular crime is a factor which has two countervailing effects: one which tends towards a longer custodial sentence, the other towards a shorter. These effects may balance out, but consideration of the danger to society cannot lead to the imposition of a more severe penalty than would have been imposed if the offender had not been suffering from a mental abnormality." 29 Here, it cannot be said that the offender suffers from a mental abnormality in the medical or psychiatric sense, still less from an abnormality which diminishes his moral culpability for Mr Parkin's murder. Accordingly, not only is the offender dangerous but there is no factor, with the exception of his youth at the time of the crime, which reduces the extent of his criminality. In saying this, I do not overlook his family and childhood history which, in a number of respects, was most unfortunate. 30 As I have indicated, the offender pleaded guilty when he was indicted. I consider that this was, practically speaking, the first opportunity for him to do so. In Siganto v The Queen (1998) 194 CLR 656, the Court said - "A person charged with a criminal offence is entitled to plead not guilty, and defend himself or herself, without thereby attracting the risk of the imposition of a penalty more serious than would otherwise have been imposed. On the other hand, a plea of guilty is ordinarily a matter to be taken into account in mitigation, at first, because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground that the community is spared the expense of a contested trial. The extent of the mitigation may vary depending on the circumstances of the case."

This principle has, in New South Wales, obtained legislative sanction. Section 22 of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Procedure Act ) provides - "(1) In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must taken into account: (a) the fact that the offender has pleaded guilty, and (b) when the offender pleaded guilty or indicated an intention to plead guilty, and may accordingly impose a lesser penalty than it would otherwise have imposed. (2) When passing sentence on such an offender, a court that does not impose a lesser penalty under this section must indicate to the offender, a make a record of, its reasons for not doing so. (3) Subsection (2) does not limit any other requirement than a Court has, apart from that subsection, to record the reasons for its decisions. (4) The failure of a court to comply with this section does not invalidate any sentence imposed by the court." 31 As Hunt CJ at CL said in R v Winchester [1992] 58 A Crim R 345 at 350, the extent to which leniency in sentencing will be afforded because of the contrition demonstrated by a plea of guilty, "will depend to a large degree upon whether or not the plea resulted from a recognition of the inevitable". I consider that the Crown case in this instance was overwhelming and that the offender's plea of guilty was no more than a recognition of the inevitable. There is no other evidence of contrition. Although he expressed what was described as "considerable regret" to Dr Wilcox, yet I consider that he told her a large number of lies, both in connection with particular aspects of his history and, more importantly, about the circumstances of the offence itself. He also lied about the surrounding circumstances of the murder to Dr Nielssen, who does not suggest that the offender demonstrated any remorse to him. 32 In R v Thomson; R v Houlton [2000] NSWCCA 309, the Court of Criminal Appeal considered, in a guideline judgment, the significance of a plea of guilty both as evidencing contrition and independently requiring recognition by way of reduction of sentence for what were said to be utilitarian considerations of public policy. The Court recognised, however, that in some cases "the protection of the public requires a long sentence to be imposed so that no discount is appropriate" ([2000] NSWCCA 309 at [157]). 33 Having regard to the extreme gravity of the crime committed by the offender and the serious danger which he represents, I consider that the sentence otherwise appropriate to be imposed should not be adjusted by virtue of his plea of guilty. 34 As was succinctly stated by the Court of Criminal Appeal in Garforth (unreported, NSWCCA 23 May 1994), at common law, life imprisonment, even for murder, can only be imposed "in the worst type of case" and it is important not to diminish what the Court described as "the terrible significance of a sentence of life imprisonment". This significance is emphasised by the provisions of s 19A of the Crimes Act 1900 which provides that a person sentenced to life imprisonment for murder must "serve that sentence for the term of that person's natural life". Although there is no authority directly on point, it is generally thought, and the Crown prosecutor submitted, that this section prevents the making of an order which would permit consideration to be given to release of a prisoner on parole after an appropriate period of incarceration had been served. Certainly, this was assumed to be so by Bell J in Harris [2000] NSWSC 285. A parole order can only be made, if at all, under statutory authority and, in this State, under s 44 of the Sentencing Procedure Act which (so far as is relevant) provides - "(1) When sentencing an offender to imprisonment for an offence, a court is required... (a) firstly, to set the term of the sentence, and (b) secondly, to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence). (2) The non-parole period must not be less than three-quarters of the term of the sentence, unless the court decides there are special circumstances for it being less, in which case the court must make a record of its reasons for that decision."

Section 44(1) is in general language, apparently applying in terms to all sentences of imprisonment, including one to which s 19A of the Crimes Act 1900 applies. Section 132 of the Crimes (Administration of Sentences) Act 1999 provides, moreover, that an offender who is released on parole "is taken to continue serving the sentence during the period" beginning with the date of release and ending when the sentence expires. On the other hand, s 44(2) of the Sentencing Procedure Act assumes the imposition of a determinate sentence, since otherwise the ratio between the sentence and the non-parole period cannot be calculated. 35 The notion of "truth in sentencing" was offended, in the case of determinate sentences, by the early release of prisoners by provision of remissions for good behaviour, not only on their "head" sentence but also on the non-parole period. Such remissions are now abolished. The issue did not arise in this way in respect of indeterminate sentences of life imprisonment, since no fixed term either of a sentence or a non-parole period gave a starting point for calculation of remissions. Prisoners serving life sentences were released by the exercise of executive clemency. Specific provision is made in clause 4 of Schedule 1 of the Sentencing Procedure Act for the setting of a non-parole period in respect of a life sentence imposed before s 19A of the Crimes Act 1900 applied. Schedule 1 applies to such "existing sentences" and provides a scheme of re-determination. 36 It did not offend the requirement of "truth in sentencing" that a prisoner could be released on parole, providing that the period required to be served in prison, as specified by the sentencing court, was actually served. So much is obvious from the scheme of the Sentencing Act 1989 itself, which provided for both minimum and additional terms. Accordingly, the ability to specify, in an appropriate case, for the release on parole of a prisoner sentenced to a life term, providing, of course, that the Parole Board were satisfied that it was appropriate to do so, would not offend the principle of "truth in sentencing". 37 In Garforth, the Court of Criminal Appeal quoted with approval the observations of Hunt CJ at CL in R v Petroff (unreported, NSWSC, 12 November 1991 - "The indeterminate nature of a life sentence has long been the subject of criticism by penologists and others concerned with the prison system and the punishment of offenders generally. Such a sentence deprives a prisoner of any fixed goal to aim for. It robs him of any incentive and it is personally destructive of his morale. The life sentence imposes intolerable burdens upon most prisoners because of their incarceration for an indeterminate period and the result of that imposition has been an increased difficulty in their management by the prison authorities."

These views are not controversial, although his Honour was referring to life sentence prisoners who, prior to 19A, had an expectation of ultimate release on licence despite the unqualified imposition of a life sentence. Whilst I sympathise with the considerations that led to the enactment of s 19A of the Crimes Act 1900, I do not think that it would have been inconsistent with them to have permitted the possibility of release on parole to a person serving a sentence to which s 19A applies. 38 The fundamental obstacle to accepting that an order for parole may be made, even where a life sentence is imposed, lies in the specific provisions of s 44(2), which I have set out above. The calculation, which is mandatory, cannot be made where a life sentence is imposed. Although it seems strange that so fundamental a matter as the ability of a court to make a parole order when imposing a term of life imprisonment is determined by a procedural provision directed to the method of calculating a non-parole period, I have concluded that s 44(2) is decisive. The result is that, where a life sentence is imposed on an offender, a non-parole order cannot be made. 39 In R v Petroff (unreported, NSWSC 12 November 1991) Hunt J (as he then was) said, when dealing with a determination under s 13A of the Sentencing Act 1989 - "Capital punishment has been abolished and (except in extraordinary cases...) the law does not regard itself as permitting a slower and more painful death by locking away the murderer and throwing away the key. In addition to retribution - and, of course, deterrence - the purpose of punishment is also to reform the offender as far as possible..." 40 As Allen J said in R v Crump (unreported, NSWCCA, 30 May 1993) - "It is the common experience of judges who have had to consider section 13A applications to note the remarkable effect which imprisonment for a decade or more so often has upon young offenders - notwithstanding how brutally and callously they acted when they committed the crime or crimes. Time and again one wonders: 'how could this apparently well adjusted applicant be the person who committed such a crime?' Gone is the brashness. Gone is the bravado. Spent is the passion. Young offenders can change so much during a very long time in gaol as to present almost as an entirely different sort of person."

His Honour added (at 55) - "I appreciate that the legislation in its present form empowers the Supreme Court to throw away the key, to deny to the prisoner any prospect of ever again being free to live a normal life. But in a civilised country only the most extraordinary circumstances would justify that course being taken - and what was said in the Parliament when the legislation was being enacted evinces a recognition of that."

The considerations which moderate the meting out of punishment, whilst keeping at the forefront the policy objectives of sentencing (to which I have already referred) are not applied because of what is due to the offender but what is due to ourselves as a civilized and humane community. It is not so much because we respect the criminal but because we respect ourselves. The inability to provide eligibility for parole so that a life sentence must be served entirely in prison emphasises the importance of the rule which restricts its imposition to the most serious kind of case. 41 Having regard to the youth of the offender, the Crown prosecutor has not submitted that this case falls into the worst category of murder. I consider this concession to be a proper one. Section 61 of the Sentencing Procedure Act, dealing with the most heinous crimes of murder and mandating a life sentence in such cases, expressly excludes from its operation a person who was less than eighteen years of age at the date of the offence. This is a legislative recognition of the significance that has always been placed by the community and the courts on the youth of an offender who comes to be sentenced, even for very serious crimes. The heaviest penalty is reserved, unless the circumstances are very exceptional, for mature adults. Those circumstances do not apply here. 42 Whilst I consider it right to be sceptical concerning the offender's prospects of rehabilitation, it cannot be confidently stated that it will never be safe to release him. The real motives of the offender and what was actually his state of mind when he committed this terrible crime must remain matters for speculation. The psychiatrists can describe but are unable to explain his behaviour. However, he was an immature young man at the time. It is common human experience that with age comes change. Whether that change will be for the better is not sure but, as Allen J observed in the passage cited above, it often is. In accordance with accepted authority (see, for example, R v Crump, per Hunt CJ at CL at 20) the most reliable and appropriate way of assessing this change is to rely on the informed judgment of the Parole Board in due course as to whether the offender can be released without danger. This is the function given by the legislature to the Board, upon which each Division must sit, not only a judicial member but also three non-judicial members, one of whom must be a police officer or an officer of the Probation and Parole Service and another must be a representative of the community. The Parole Board must have regard to the principle that the public interest is of primary importance. 43 Having regard to the gravity of the crime and the requirements of the protection of the public, both the sentence and the non-parole period must be lengthy. 44 The offender was arrested on 22 January 1999 and has been in custody ever since. It follows that the sentence which I impose will commence on 22 January 1999. 45 Christopher Andrew Robinson, you are sentenced to a term of forty five years imprisonment. I set a non-parole period of thirty five years so that the earliest date upon which you will be eligible for release on parole is 21 January 2034. ADDENDUM

I did not consider the effect of s 54 of the Crimes (Sentencing Procedure) Act 1999. ************

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