The present application
23 Two more recent reports of the Serious Offenders Review Council, together with their accompanying documents, establish that the applicant's industry and general behaviour in prison have continued to be good. He has developed trade skills, which would enhance his prospect of employment if he were eventually to be released into the community. There have been two further breaches of prison discipline, again of no present significance. Given the length of time he has been incarcerated, a record of only four breaches of discipline does not reflect badly on him.
24 More importantly, in early 2000 he entered the CUBIT program, completing it in January 2001. It led to a most significant development. In the course of the program, he revealed that his sexual offences were anything but opportunistic. He provided a long history of sexual fantasies, some with a violent theme, not only about adult women but also about under age girls. He admitted having fantasized about Deborah and, indeed, having had thoughts of abducting her. He acknowledged that he had got into her bedroom on the night in question with the intention of sexually assaulting her.
25 CUBIT, which stands for "Custody Based Intensive Treatment", is a residential treatment program within the prison system for moderate and high risk sexual offenders. Its approach and aims appear to be similar to those of the SORT program but, as I understand it, it is considerably more demanding. The applicant embarked upon it early in 2000 and completed it in January 2001. In April of that year he entered the sexual offenders maintenance program at Kirkconnell Correctional Centre, where he came under the care of Ms Anne Young, psychologist, the statewide clinical co-ordinator of sex offender programs.
26 Another psychologist involved in the CUBIT program prepared a final treatment report on the applicant in March 2001. That report is not encouraging, noting that he had made some gains but concluding that, overall, his progress had been "slight". I find it unnecessary to recite the detail of that report. It may be that it is unduly critical of the applicant, particularly given his intellectual limitations. That was the view of Dr Lucas in a report of 5 December 2003, to which I shall return. On his progress generally in sex offender programs in recent years I have been more assisted by the thorough and insightful report of Ms Young, prepared on 3 August 2004. She also gave evidence before me.
27 In her report Ms Young noted that, while in CUBIT, the applicant developed his "offence cycle". That expression, she explained, "describes an individual's sequence of thoughts, feelings and behaviours which have led or could in the future lead to a sexual offence". The offence cycle recognised by the applicant was described in the final treatment report to which I have referred. Put shortly, the cycle was triggered by a stressful situation (loss of his employment) which affected his self-esteem. He considered himself a failure, became resentful, isolated himself, and sought to cope by resort to alcohol, drugs and sexual fantasies. Those fantasies were characterised by resentment and hostility towards women, whom he saw as unattainable. They became more violent and increasingly involved under aged girls. This set him on the path which led to his sexual fantasies about Deborah.
28 The author of that final treatment report described the applicant's efforts in developing his offence cycle as "positive". However, his progress was seen to be deficient in developing empathy for his victim and strategies to address the risk of re-offending by dealing with stressful situations in an appropriate manner. He had difficulty managing a number of the tasks required of him in the program, exacerbated by a lack of self-esteem. This is a very brief summary of that lengthy report which, with due respect to its author, was expressed in technical jargon which I found somewhat impenetrable. In her evidence Ms Young did not challenge those findings, but she did acknowledge that CUBIT is "a very difficult program to undertake" and that there is a drop out rate of about thirty percent. The applicant, to his credit, completed the program and was able to proceed to the custodial maintenance program with which she was involved.
29 Moreover, he does appear to have made some further progress in that maintenance program. It involved his attending a weekly group session and was much less intensive than CUBIT. As Ms Young put it in her report, it "focuses on relapse prevention issues specific to the needs of each individual and reinforces the gains made in intensive treatment programs".
30 In her report and in her evidence, Ms Young said that that the applicant's attendance at the group sessions had been intermittent and that he often delayed completing "homework tasks" set for him. She noted a "pattern of avoidance", whereby he felt that he was not up to a task and, rather than asking for help, would isolate himself and not attend the next group session. Nevertheless, she said that, when he did attend, he was "capable of good work - active participation, disclosure of relevant personal information, and appropriate feedback to other members". Generally, she said that in his second year in the program he had become "a very valuable group member". On the other hand, while accepting that he "takes responsibility for his offence", she described "a tendency to think that he does not need to continue to work on his risk factors."
31 In her report Ms Young expressed her conclusions as follows:
Mr. Clarke has certainly become more open about his offence since undertaking the CUBIT and custodial maintenance program. At the time of his first re-determination hearing he was denying any attraction to young girls and any intention to sexually assault the victim prior to breaking into the house. Mr. Clarke is now admitting to a history of sexually deviant behaviour over a number of years - abusive sexual fantasies that commenced in his mid-teens, use of pornography, being around areas where he could observe female minors, voyeurism, masturbation to deviant images, fantasizing about abducting a future victim.
Mr. Clarke needs to make a consistent commitment to working on issues to do with his offending. He has a pattern of avoidance coping. This has been demonstrated throughout CUBIT and custodial maintenance. Mr. Clarke tends to miss groups, avoid doing homework tasks that are difficult. Mr. Clarke is aware of this tendency and at times actively implements strategies to overcome it but when he is feeling stressed or overwhelmed he avoids rather than deals with problems. This tendency is very much part of his offence cycle and is an issue Mr. Clarke needs to demonstrate he is actively dealing with prior to release. Mr. Clarke needs to demonstrate he is taking active steps to reduce his risk and that he remains continuously aware of his ongoing risk. …having a determinant date of release and a period of parole supervision is likely to help Mr. Clarke set goals for release and work towards them. A period of external leave prior to release would help him re-integrate into the community and allow him to demonstrate his ability to manage his risk factors prior to release. Should Mr. Clarke be given a determinant sentence it would be important for him to have a relatively lengthy period of parole supervision and it would be important for Mr. Clarke to attend the weekly community maintenance program in Sydney run by the Department's Sex Offender Programs.
32 Dr Lucas' second report followed his consultation with the applicant at Kirkconnell at the end of September 2003. He found him "much more open than when first interviewed". He wrote of the applicant:
He was able to speak at some length and in reasonable detail about his earlier fantasy life and how the offence came about. He did this without embarrassment. Given his borderline intellectual functioning I thought Mr Clarke had done quite well - he had certainly made good progress in the five years since I last saw him.
33 Dr Lucas noted that, at the time of Newman J's judgment on the first application, the applicant had not disclosed to him "or those caring for him in the correctional system the essential background to his offences". He referred to the final treatment report from the CUBIT program, acknowledging that the applicant appeared to have made limited gains during that program. However, he observed that "due allowance" should be made for the applicant's "intellectual limitations", and expressed the view that he had "clearly moved a long way from the position he maintained" before undertaking the program. He added that, taking into account the applicant's "borderline intellectual disability", his progress at CUBIT should be considered "rather better than slight".
34 Dr Lucas concluded:
At this stage it is not possible to give a definite estimate of what risks Mr Clarke might present if released. However the main areas of concern have been identified, he has cooperated with assessment and treatment and there are good indications that he will be amenable to supervision and further treatment on release and should have prospects of employment. He has family support.
I support his application for determination of his life sentence. The nature of his offence means that the correctional authorities will move carefully on further assessments and placements and in planning towards his release on parole.
35 The Crown prosecutor before me submitted that this application should be refused and the applicant should be directed never to re-apply to the Court. The effect of that order would be that he would never become eligible for parole and would remain in prison for the rest of his life. The Crown prosecutor argued that this is a case falling into the worst category of murder, for which that disposition would be appropriate. He referred to R v Garforth (CCA, unrep, 23 May 1994) and R v Fernando [1999] NSWCCA 66, both cases in which the offenders had been sentenced to life imprisonment under s19A of the Crimes Act. It is unnecessary to restate the principles to be derived from those notorious cases, or from more recent decisions in which the approach to the imposition of the maximum sentence for murder has been examined: R v Harris (2000) 50 NSWLR 409, R v Merritt (2004) 59 NSWLR 557.
36 Dreadful as this murder is, I am not persuaded that it is such as to demand that the applicant should never have the prospect of release. True it is that the sexual offences themselves were of the utmost gravity. They were the subject of very heavy sentences passed by Cole J and are not before me for the purpose of this application. Nevertheless, they form the context in which the unfortunate little girl met her death and bear directly upon the applicant's culpability for her murder. This is so whether the killing was intended, for the purpose of avoiding detection, or was the product of reckless indifference to human life.
37 That said, the distinction remains of significance. In written submissions the Crown prosecutor advanced as one of the reasons for placing the matter in the "worst case" category the proposition that the applicant had killed the girl "to conceal his sexual gratification." In oral argument, he submitted that it remained a worst case even if that were not so and the killing had been the unintended result of the sexual assaults. However, my conclusion that the applicant ought to have the opportunity for release in due course is fortified by my view that the case cannot fairly be approached as one of intended killing. That remains my view notwithstanding his revelation in recent years that the purpose of breaking into Deborah's home was to sexually assault her.
38 Even if the case were approached as one of intended killing, it would not necessarily follow that the applicant should never be released. That, however, is not a matter which I need to decide. This is a very serious crime of murder perpetrated by a twenty-one year old man of limited intellect and with no significant criminal history. In determining how it should be treated little assistance can be gained from an examination of other cases. Nevertheless, reference might be made to two cases which have some similarity to the present.
39 In Garforth, the offender sexually assaulted a nine year old girl and then consigned her to death by drowning by throwing her, with her hands and feet bound, into a dam. A natural life sentence was upheld on appeal. That killing demonstrated a callousness which could not fairly be ascribed to this applicant.
40 On the other hand, Slattery AJ, formerly the Chief Judge at Common Law, allowed an offender a prospect of release on parole in a redetermination application in another notorious case: R v Lewthwaite (unrep, 31 July 1992). Some eighteen years earlier, his Honour had sentenced that offender to penal servitude for life for the murder of a girl who was not quite six years old. The offender had broken into the family home, intending to abduct and sexually assault her brother. He armed himself with a knife from the kitchen. The little girl awoke and disturbed him. He tried to keep her quiet by putting his hand over her mouth, but then became angry and stabbed her a number of times. He was on parole at the time of the offence. Psychiatric assessment at the time of his trial was bleak, describing an obsessive sexual preoccupation, with homicidal overtones, with young boys, for which no effective treatment appeared then to be available. However, over the lengthy period in custody leading up to the hearing of his application for redetermination he had made remarkable progress in treatment and counselling, such that Slattery AJ concluded that he ought to have the opportunity of conditional liberty. The application was under s13A of the Sentencing Act and, in accordance with the procedure then in place, his Honour set a minimum term of twenty years with an additional term of life.
41 The fact that the killing of Deborah was the product of the applicant's sexual fantasy about her, and that that fantasy itself was part of a wider pattern of sexual fantasies with a violent component, is disturbing. That background obviously poses the question whether he would be a danger to members of the community if he were released. On the other hand, it is encouraging that it was he who brought this pattern of fantasy into the open and that he has begun to take steps, however faltering, to address it. A fair reading of the reports in evidence before me is that, given his limitations, he is to be commended for his progress so far, although much remains to be done.
42 The Crown prosecutor's alternative submission was that I should take the same course as Newman J, that is, to refuse the present application but allow the applicant the opportunity to make a further application after some years, when his progress towards rehabilitation might better be assessed. I do not think that any purpose would be served by taking that course. The time has come to set a date on which he has a prospect of release on parole, providing him with an added incentive to come to terms with the aspects of his personality and background which led to his offences and to work towards a law abiding lifestyle in the community. With continued counselling and therapy, and with the support that would be available to him in the event of his release, that goal could not be said to be unattainable.
43 The interests of the community are best protected by specifying a non-parole period in association with the existing life sentence, a course which is still available under the legislation governing this application. At the end of that period he would be eligible for release on parole, but whether and, if so, when he were to be released would be a matter for the appropriate authority. If he were released, he would remain subject to the sanction of parole indefinitely.
44 In accordance with ordinary sentencing principles, the non-parole period must be such as itself to reflect the gravity of the applicant's crime of murder. In addition, it must embrace the criminality of the sexual offences because it must date from the day on which the life sentence commenced. Much of the time the applicant has served in prison is referable to the concurrent sentences passed in respect of the sexual offences. In the aggregate, they amounted to a term of twenty years imprisonment with a non-parole period of eighteen years. At the time sentence was passed those terms were subject to reduction by remission, so that the aggregate head sentence expired on 14 January 2000 and the effective non-parole period on 13 October 1998.
45 This is not to say that the non-parole period I fix should be assessed in a mathematical way. What I must do is set a non-parole period which marks the criminality of all four offences. In doing so, I take into account the applicant's subjective case, including his progress within the prison system. I also take into account the fact that, because of the nature of his offences, he has served his sentence so far on protection and it is likely that he will continue to do so. Nevertheless, the non-parole period which I set must be a lengthy one.
46 Accordingly, the application is granted. I decline to set a specified term for the life sentence imposed by Cole J. However, in respect of that sentence, I set a non-parole period of twenty-eight years, to date from the day on which the sentence was passed, 22 July 1987. The applicant will be eligible for release on parole on 21 July 2015.
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