The evidence on the application
38 I now turn to the material and evidence before me on the application.
39 In the report of the Serious Offenders' Review Council dated 7 April 1998, the applicant's gaol history is revealed in detail. He had initially attempted self-harm and had, for a long time, been at risk of attack and kept for years under an onerous regime of protection. Various psychological reports on him showed and show no indication of his presenting a risk to the safety of the community such that the need to preserve that safety would mitigate against the application being granted (s.13A(9)). Except for reference to the applicant's attitude of denial, ie., being "unwilling or unable to fully accept his actions or his reasons for them" (Crown submissions, p.4), the Review Council's report is favourable. The Council comments:-
"Towner has not been a problem in custody. He has had no punishments recorded against him. He has received consistently good reports and has begun to show a willingness to work on his personal problems. His initial attitude of denial together with his fear of being part of the mainstream inmate community are issues which, on the Council's opinion, are to be resolved if he is to make further progress.
If and when Towner's life sentence is determined, the Council will encourage him to participate in specialised sex offender programmes. It will use this as a basis for assessing his suitability for progressing, eventually, to unsupervised external leave.
40 By supplementary report of 20 November 2001, the Council informed the court that the applicant continued to receive excellent custodial and work reports. He was maintaining appropriate contact with rehabilitative services and counselling. His reports and assessments were positive. His progress was satisfactory and should his sentence be re-determined and he receive a minimum security classification he would commence the CUBIT (Custody Based Intensive Treatment) programme, he having successfully completed the psycho-educational sex-offender programme and undertaken individual counselling with the psychologist.
41 The applicant relied on a number of certificates confirming his attendance at and completion of various courses and certain reference. He also provided reports from Dr. W.E. Lucas, psychiatrist, dated 25 January 1999, 12 December 2000 and 6 November 2001.
42 In the 1999 report, Dr. Lucas referred to the applicant being depressed, taking anti-depressants and the history of alcohol and drug abuse. He referred to the applicant being troubled about his lack of complete memory of the crime and his work with counsellors to attempt to recall it. The applicant claimed that, notwithstanding he understood the enormity of what he had done he had, because of that, blocked out the memory of the detail during his eight years in maximum security. He had no problem accepting responsibility. His abused childhood was referred to. Dr. Lucas said at that time:-
"Mr. Towner was convicted of two very serious offences including murder of a girl aged four. His current life sentence dates from 18 May 1989 and in addition he has a 10 year sentence with an additional term of five years for the less serious offence. Mr. Towner appreciates the seriousness of his offences and of course anticipates the court hearing his application will take a serious view of them.
Although he now accepts responsibility for what he did he is unable to talk about it in detail and, I suspect, has at best limited memories of the day in question. He has had a difficult time in prison and for this and other reasons, probably including his friendship with the girl and her family and the emotional unacceptability of his conduct, he has actively sought to forget it. He is anxious to receive further help and willing to attend another programme for sexual offenders. The sentencing judge did not consider he was predisposed to offences of this type and there is no evidence in reports and other documents to contradict this view. His history suggests that it is important he continue to have counselling so that he can avoid the abuse of alcohol when he is at last released.
Despite the uncertainties about the reason for the offences, I believe it would be useful at this stage to have a minimum and additional term determined to enable Mr. Towner to benefit from the management programmes available in prison. He is now in a prison where he feels safe and able to participate in treatment. Although it would be useful to have more information at the time of the hearing of his application I think it might not be unreasonable to take the attitude that such information is likely to emerge only gradually and that knowledge of it will be necessary before the releasing authorities can look favourably on Mr. Towner returning to the community.
I understand Mr. Towner is ambivalent about proceeding with the application at this stage. A delay to allow more time for counselling would not be a disadvantage. I wonder if his depression is a factor in his ambivalence and his probable pessimism."
43 In his further report of 12 December 2000, Dr. Lucas said:-
"Little has changed since I last saw Mr. Towner but it is possible that he has made some progress in his discussion with the psychologist. He is will motivated to undertake treatment and counselling courses for sex offenders.
…
I have an impression which I am unable to fully confirm that he has significant post-traumatic symptoms. Mr. Towner committed a violent and most serious crime which involved the sexual assault and murder of the young daughter of friends. At the time he spoke to the police he had sufficient memory of the event to describe it to them but now he cannot talk about it and there is a strong air that his avoidance is a protective symptom and not simply self-serving in terms of his assessment. He also thinks about his victim regularly and he can have disturbing dreams and panic attacks which wake him. There are problems with social relationships due to anxiety and avoidance - an exaggeration of a longstanding personality difficulty. As well he has chronic insomnia, difficulties with concentration and tends to startle, all symptoms of increased arousal.
The symptoms he suffers are of the type seen in depressive, anxiety and post-traumatic stress disorders which are often difficult to disentangle for diagnostic purposes. A case could be made for Mr. Towner suffering from a post-traumatic stress disorder as a result of his crime but further assessment is required in a different setting. While this is not an urgent matter, it certainly should be done before he enters a demanding sexual offender programme as there is a risk that some symptoms could be exacerbated rather than controlled. The fact that he perpetrated the crime does not exclude the possibility that he suffered a post-traumatic stress disorder as a result.
I believe Mr. Towner should proceed with his application and that he setting of a minimum and an additional term could assist him and the prison authorities in planning his future management so that he can be included in treatment and rehabilitation programmes to fit him for eventual release. Mr. Towner has longstanding problems some of which will make the treatment process difficult for him - for example group treatment - but he is willing to go through necessary steps. He will require careful assessment during rehabilitation and prior to release."
44 In his report of 6 November 2001, Dr. Lucas concluded:-
"It appears that Mr. Towner has made progress in the last 12 months. Apart from his social withdrawal and continuing poor sleep he has done well in Berrima and received excellent work reports. I thought he was somewhat less nervous and more forward looking as well as anxious to make progress in terms of his classification and becoming eligible for a sex offenders course.
Mr. Towner would be considerably assisted by having his sentence determined. When a minimum sentence is known both he and the Department of Corrective Services can plan for further rehabilitation with a view to eventual release.
Mr. Towner has important psychological problems going back to childhood and these need to be addressed along with the specific ones associated with his offence. Mr. Towner is motivated to accept assistance but he will require considerable supporting view of his fears for his safety, realistic fears but exacerbated by personality traits. There will need to be careful planning in the pre-release phase and, when he is released, supervision and support will be essential. Mr. Towner is not currently seeing a psychiatrist but if the need arises he can be referred to a psychiatrist in prison and eventually followed up after release."
45 Dr. Lucas gave oral evidence before me and in addition a reference in highly favourable terms was also provided by the Gaol Governor.
46 In his oral evidence, Dr. Lucas said that he believed the applicant accepted the responsibility for his crime and its enormity. The applicant had described the crime as horrific. He referred to the difficulty the applicant had in talking about it and the distress he exhibited. Dr. Lucas referred to the absence of any evidence of the applicant otherwise having a history of violence or having any sexual interests in young children. He referred to the applicant having committed the killing in panic, on the spur of the moment and without premeditation. Particularly, having regard to the applicant's age and the absence of any instance of violence in prison, he saw little risk of future violence. He said:-
"Q. Does that have any bearing on the assessment of likelihood of a repeat offence? A. Yes. He is motivated to accept treatment and to explore the matter further. This is despite his problems with recalling everything. He has, as you will see in my reports, he is a man who has also had difficulty in dealing with people from childhood on. He has tendered (sic) to keep to himself. He has a lot of social anxiety close to social phobia at times. He is extremely conscious of what other people think of him. All this continues in prison. He had difficulty being in groups of people but he is willing to undergo a sexual offender's course, an intense course of eight to 10 months which involves group treatment and exposure to the questioning of others and the opinions of others. I think these are important steps. He has also enquired about restorative justice which if it went ahead would mean the willingness of confronting the parents of his victim and these are quite big steps for a man of his personality."
47 In cross-examination, Dr. Lucas expressed the view that further years in custody would be needed for the applicant to achieve, through counselling and such measures as the CUBIT course, appropriate psychological resolution and that, if at liberty in the community, lengthy and close supervision would be appropriate. It is clear to me, however, from all the material and Dr. Lucas' evidence, that I am at present in as good position to determine the application now as I am ever likely to be.
48 Certain additional affidavits, the contents of which I suppressed from publication unless the court should otherwise order, were read. They were filed and contained evidence indicative of the applicant's conduct such as to show a willingness to conform, suggestive of a likelihood to abide by the terms of any parole.
49 Two statements were provided to me from the deceased's parents. Both statements demonstrate the agonising loss each of the writers has suffered and still suffer as a consequence of the applicant's crime.
50 Those statements are received and considered under s.28(2) and (3) of the Crimes (Sentencing Procedure) Act 1999. At the time of their reception, I commented then and re-iterate now that the court is cognisant of the immense grief and is cognisant of the loss experienced by the parents and the compassion that everyone would feel for them.
51 I noted, however, that I was bound in law to treat those statements in accordance with the direction of the Court of Criminal Appeal in Regina v. Previtera (1997) 94 A. Crim. R. 76 and I do so.
52 The Crown submitted in its two written submissions and at least initially in its oral submissions that I should refuse the application and give a direction the applicant never re-apply or alternatively, direct the applicant not to re-apply for a specified period or at least merely refuse the application giving no direction. Absent such a direction, in the event of a refusal s.13A(8B) prevents re-application for three years. It was submitted that the application was premature, considering the applicant did not display a full memory of the detail of his crime. That submission, however, cannot stand in the light of Dr. Lucas' evidence.
53 It would not, however, be appropriate to refuse to consider the application or refuse the application if the information on which the court should act is as it is here, all now available or give a direction the applicant never re-apply unless the appropriate order is that the applicant remain in custody for the whole of his nature life (see Regina v. Cribb, CCA, unreported 4 November 1994 per Badgery-Paker, J.).
54 I must consider all the circumstances of the offences (s.13A(4A)) and may decline to determine a minimum term and an additional term. Should I do so, I may direct that the applicant never re-apply (s.13A(8)) and in such case the applicant is to serve the sentence for the term of his natural life (s.13A(8A)). But I may only give such a direction if (s.13A(8C)(b)) it is a most serious case of murder and it is in the public interest that the direction be given. I have reviewed in Baker (supra) and in Regina v. Petrinovic [1999] NSWSC 1131 the various expressions of the test to be applied when considering whether the "life means life" sentence should be imposed. Presently, the test requires the consideration of whether the crime is such that a sentence of life imprisonment for the whole of the offender's life without prospect of release is, even with the present knowledge of matters relevant to sentence, appropriate.
55 Were the applicant to come forward for sentencing under the present statutory regime, such a sentence could only be passed if I were satisfied that the level of culpability in the commission of the offence were so extreme that the community interest in retribution, punishment, community protection and deterrence could only be met through the imposition of that sentence (s.61, Crimes (Sentencing Procedure) Act 1999).
56 I was referred to such cases as Regina v. Fernando (CCA, unreported 21 August 1997) and Regina v. Garforth (CCA, unreported 23 May 1994) and to various expressions of the test as it has been enunciated under the various differing sentencing regimes from time to time. It was submitted that the applicant's asserted inability now to recall the detail of what he did and "to fully accept his actions and the reasons for them" means that there was not a full acknowledgment of guilt. It was submitted (although without evidence in support) that without such full acknowledgement, rehabilitation could not commence so that, as it was submitted, the community could not be satisfied that the applicant will not offend in a similar manner again. In the absence of evidence on this question, I am unable to conclude, having regard to the applicant's evidence, the reports and the psychiatric evidence, that on that ground, all other considerations being favourable to granting it, that the application should be refused. The relevant considerations are referred to in Regina v. Purdy (1992) 65 A. Crim. R. 441; Regina v. Johnstone (Badgery-Parker, J., unreported 20 November 1992).
57 On an application for re-determination, a judge is in a much more advantageous position than when sentencing at first instance. (See Regina v. Carr (Greg James, J., unreported 23 April 1999 at 37-39). The information about and professional observations of the offender are much more extensive, the years since the offence allowing the opportunity for both. Unlike when sentencing at first instance, there is available the option of imposing a determinate minimum term with an additional term of life imprisonment (see Regina v. Harris [2000] NSWCCA 469 at paras.127-134), so that life time supervision is available coupled with the prospect of an offender spending some of his future life on conditional liberty under supervision if able to satisfy the Parole Board, the Serious Offenders Review Council or such body as may then be charged with the responsibility for such release that release is appropriate. The life sentence so imposed thus differs markedly from that which might be imposed by a judge now sentencing at first instance. Where a life sentence means the offender will spend the whole of his life in prison, a life sentence with the prospect of parole is markedly more lenient in nature having the feature of life time supervision. It seems to me that such a sentence is much preferable to one involving a very lengthy determinate additional term even approximating an offender's life expectancy.
58 Although this crime was horrible, its seriousness, having regard to the views of the trial judges, was not such as to require the applicant never be released, having regard to the principles in Harris (supra) and Regina v. Miles [2002] NSWCCA 276.
59 Having regard to all the applicant's circumstances, as they are now revealed, I consider that he should have the prospect of release in the future. I am therefore required to grant the application and to allow a minimum term.
60 I have come to this conclusion after considering and evaluating the numerous cases in this court in which life sentences, operative for the whole of the offender's life, have been imposed or in which there have been re-determinations. These have been the subject of extensive written and oral submissions by the parties.
61 In particular, I have had regard to the decision of the Court of Criminal Appeal in Regina v. Garforth (supra), where the circumstances superficially resembled those of the present case but where the killing involved planned torture and was committed over a considerable period of time, which distinguished that matter from this.
62 I have also considered the re-determinations of the sentences of Regina v. Hitchins (Grove, J., unreported 3 June 1993), Regina v. Cribb (supra), Regina v. Pearce aka Luckman (James, J., unreported 20 October 1993), Regina v. MBD (CCA, unreported 6 March 1996), Regina v. Gregory (Finlay, J., unreported 7 June 1991), Regina v. Lewthwaite (Slattery, J., unreported 31 July 1992), Regina v. Beatty (Newman, J., unreported 8 November 1991) and Regina v. Jessop (Sharpe, J. unreported 7 February 1992), who were at the time of their offences young or juveniles and in the case of adults, Regina v. Stephens (McInerney, J., unreported 22 December 1987), Regina v. Kalajzich (1997) 94 A. Crim. R. 41 and Regina v. Veen [2000] NSWSC 656.
63 I have had regard to the two sets of written submissions provided by the Crown and the detailed sentence statistics analysing the effect of the decisions of this court and the Court of Criminal Appeal in respect of life sentences and re-determinations.
64 I am conscious that whatever the additional term selected, release only becomes a possibility at the expiry of the determined minimum term. Even should a minimum term be granted, the applicant may be detained in custody for the whole of the re-determined sentence. These are matters to which Sully, J. has adverted when re-determining the sentence in Veen (supra) at 127.
65 I accept the submissions of the applicant concerning the principles to apply on the fixing of a minimum term and set them out here, quoting from the written submissions:-
"24. Section 13A was in Part 2 of the Sentencing Act. Section 13A(7) provided:-
'A minimum term and an additional term set under this section are taken to have been set under this Part but are not required to comply with other sections of this Part.'
25. Section 5(2), also in Part 2 of the Sentencing Act, did not allow a court to set an additional term of greater than one-third of the minimum term unless the court found special circumstances. Thus, when re-determining a sentence under s.13A there is no relationship between the minimum term and additional term set by legislation.
26. In Bugmy v. The Queen (1990) 169 CLR 525, Mason, CJ. and McHugh, J., examined the factors relevant to the setting of a minimum term and said (at 531):-
'… the considerations which the sentencing judge must take into account when fixing a minimum term will be the same as those applicable to the setting of the head sentence. Obviously the weight to be attached to these factors and the way in which they are relevant will differ due to the different purposes behind each function.
A prisoner's prospects of rehabilitation will be relevant to the fixing of a minimum term, both by way of mitigation and because the community benefits from the reformation of one of its members. Conversely, the community needs to be protected from a violent offender, especially one whose prospects of rehabilitation are bleak. Likewise the nature of the crime will be relevant because a more serious offence will warrant a greater minimum term due to its deterrent effect upon others. But the nature of the offence does not assume the importance which it has when the head sentence is determined.'
27. It is submitted that the above remarks must be read in the light of the practical information available in relation to the role and practice of the Parole Board in relation to former life sentence prisoners referred to in paragraph 16 above.
28. It should also be noted that the applicant has spent his entire sentence on strict protection. This is a factor that renders his imprisonment more arduous, and is a matter relevant to the duration of any sentence - Burchell (1987) 34 A. Crim. R. 148, Perez-Vargas (1986) 8 NSWLR 559 at 564-656, Cartwright (1989) 17 NSWLR 243 at 251. It may also be properly regarded as a factor which can have an increased significance in the setting of a minimum term. It's (sic) importance to the minimum term is such that it has been recognised as a 'special circumstance' for the purposes of s.5(2) of the Sentencing Act and s.44(2) of the Crimes (Sentencing Procedure) Act - Astill (No. 2 ) (1992) 64 A. Crim. R. 289, PPB [1999] NSWCCA 360, Wahabzadah [2001] NSWCCA 253."
66 Whilst those principles appear to me correct and applicable, it does not follow that on a re-determination the applicant should receive a minimum term as short as his counsel submitted.
67 The Crown's oral and written submissions conceded the applicant's exemplary conduct in gaol over the past 13 years, notwithstanding the onerous circumstances in which he has, by comparison with other prisoners, been confined. But the Crown submitted that even if the crime was not in all the circumstances to be found to require the applicant to spend the whole of his life in custody, it was nonetheless so appalling that the offender's culpability, even having regard to the circumstances of his confinement and his exemplary conduct, required the imposition of the life sentence, so that he is liable to life long custody, albeit with the prospect of possible, eventual parole only when and if he can demonstrate an ability to avoid any risk to any member of the community. It was pointed out that the imposition of a determinate sentence would have the consequence that he would eventually have to be released whether fit for it or not.
68 Orally, the Crown submitted that if the sentence were to be re-determined, a total sentence of life or at least 35 to 40 years with a minimum term of 20 to 30 years should be imposed. Such a minimum term would require the appellant to serve at least a further 10 to 20 years imprisonment before the prospect of release could arise.
69 Counsel for the applicant submitted that at most a sentence totalling 25 to 30 years including a minimum term of from 15 to 20 years was appropriate.
70 A re-determined sentence must commence from the date the applicant was first remanded in custody. In this case, that is 18 May 1989. The sentence for the murder offence will need to be of such duration as not to deprive the sentence for assault with intent to have sexual intercourse of its importance - Pearce v. The Queen (1989) 194 CLR 610. Consequently, there is much to be said for the Crown's submission that the total sentence should be one of life imprisonment, having regard to the necessity that the whole of the sentence and particularly the minimum term needs to be appropriate to the gravity of the crimes and the totality of criminality for the two offences.
71 The length of sentence submitted by the applicant's counsel as appropriate is much shorter than the authorities would suggest is appropriate for a crime of this gravity. The minimum term submitted by Mr. Dhanji is simply below an acceptable range in my view, even seeking to adapt the application of the principles in Regina v. Bugmy (1990) 169 CLR 525 to the present sentencing regime.
72 I have regard, so far as the evidence is available to enable me to do so, to all the matters to which s.21A of the Crimes (Sentencing Procedure) Act 1999 refers, since, although this is a sentencing exercise of a specialised nature, those principles are applicable to sentencing generally. However, having looked at each of the matters to which that section speaks as might mitigate the sentence, I conclude that the crime, whilst it may not be so awful as to merit the applicant never being released, is so grave that it requires a life sentence, albeit with the prospect of parole.
73 For these reasons, I conclude that the sentence for murder should be re-determined and sentence the applicant to imprisonment for life to date from 18 May 1989, which sentence comprises a minimum term of 20 years to expire 17 May 2009, together with an additional term of life imprisonment.
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