The applicant then said to her, "You know what we are going to do to you" and her head was pulled back by the hair and her throat was deeply slashed almost from ear to ear. She collapsed on the bed gurgling and trying to breath. Kenneally said, "She is not dead." Lawson then plunged a knife into her back twice in the area of her spine. One wound penetrated the lung causing it to collapse. She pretended that she was dead and they both then left. Although she was having great difficulty breathing she managed to get off the bed and go next door for help. She survived after some days of treatment and being in hospital. The two offenders split the money and went different ways. They were apprehended by the police some hours later and taken into custody. The applicant admitted in general terms what he had done, although his Honour considered that he was not entirely truthful.

His Honour said that the totality of the criminal conduct could only be described as at the highest level of cold blooded brutality. He said it was accompanied by the sexual degradation of the female victim in a disgusting and demeaning manner over a prolonged period of time. He considered that Lawson played the greater role in the sexual offence. He said that the attempted murder of the female victim was to avoid identification and apprehension and that her survival was both remarkable and fortuitous. His Honour said that the only appropriate sentence for the wilful murder was strict security life imprisonment and set the non-parole period at 25 years. His Honour said in respect of his decision to refuse to make a parole order for each of the term of years he imposed for the other offences:

"Having regard to the nature of these offences, the circumstances of the commission of the same, your antecedents, the need to protect the community and your poor prognosis for the future I decline to exercise my discretion to order eligibility for parole in respect to the finite sentences imposed on you both."

His Honour had earlier referred at length to a probation report, a pre-sentence report and psychiatric assessments. This supported the poor prognosis.

The grounds of appeal are that his Honour failed to give proper consideration to the possibility of the applicant's rehabilitation. It is claimed that the non-parole period was manifestly excessive, having regard to the age and criminal record of the applicant and the relationship between the offences and his drug abuse. There is a further ground referring to his guilty plea and co-operation and remorse. This relates to those offences to which he did plead guilty. This did not include the counts of wilful murder and aggravated sexual penetration.

The general argument in support of the ground was that the learned sentencing judge, when considering the question of parole, gave too much weight to those factors which govern the head sentence. The argument was that these were the sole factors which were taken into account to the exclusion of a prognosis as to what might be the position in 20 or 25 years. It was agreed that it is proper for his Honour, in determining the non parole period, to have regard to the facts relating to the offence but the question of possible rehabilitation should have played a greater part than that considered by his Honour. The argument reached the stage that there should have been clearer evidence that rehabilitation could not have been achieved after 20 years before a decision was made to prolong the term to 25 years. The general argument is that his Honour did not pay sufficient attention to rehabilitation.

The Criminal Code gives the Judge a discretion to impose either a term of strict security life imprisonment or life imprisonment. If either of these is imposed, s91 of the Sentencing Act requires an order to be made in respect of parole or a specific order that there be no parole. Neither Act sets out specific guidelines in respect of these particular powers and this is understandable and possibly desirable. For some centuries the legislature in respect of offences other than murder has done no more than, in most cases, of specifying the maximum penalty leaving it to the courts to decide the principles on which the discretion is to be exercised. Murder and wilful murder have normally carried mandatory sentences. When the death sentence was abolished the court was empowered to impose for wilful murder a sentence of strict security life imprisonment or life imprisonment, but again, consistent with earlier policy Parliament did not attempt to set out guidelines. The principles to apply were left to the courts as circumstances can change from time to time. The Sentencing Act provided some general guidelines, but beyond that, it was left to the Court with the Court of Criminal Appeal having authority to pronounce guideline judgments.

The Court was originally given the power to fix minimum terms in respect of most sentences by virtue of s37 of the Offenders' Probation and Parole Act 1963, a power which has since been repealed so far as it relates to sentences generally. Burt CJ in R v Haabjoern and Chester, unreported; CCA SCt of WA; Library No 1953; 18 March 1977 said that there is but one sentence and the non-parole period is a term of it. He said that the provisions of the enactment then relating to parole clearly recognised the importance of rehabilitation as one object to be achieved within the general idea of punishment. He said it was an object of great importance but that it had not elbowed out other considerations. Sir Francis said that the just punishment for some offences required the idea of deterrence and the idea of retribution, although to a lesser extent, to find some expression. He said that the length of a non-parole period in so far as deterrence is an object of imprisonment is within that objective and to the extent to which the sentence is simply punishment the length of the non-parole period is relevant to that as well. His Honour quoted the following passage from the reasons of Barwick CJ, Menzies, Stephen and Mason JJ in Power v The Queen [1974] HCA 26; (1974) 131 CLR 623 at 628:

"Confinement in a prison serves the same purposes whether before or after the expiration of a non-parole period and, throughout, it is punishment, but punishment directed towards reformation. The only difference between the two periods is that during the former the prisoner cannot be released on the ground that the punishment has served its purpose sufficiently to warrant release from confinement, whereas in the latter he can. In a true sense the non-parole period is a minimum period of imprisonment to be served because the sentencing judge considers that the crime committed calls for such detention.

Nor do we understand how it is said that the fixing of a non-parole period is not concerned with deterring either the prisoner himself or others from crime. Surely the requirement that a prisoner must stay in confinement for some period seen by a judge to be appropriate in all circumstances, would operate more as a deterrent than to allow the prison gates to be opened almost as soon as they have closed, that is, when the paroling authority has had time to consider whether the sentence should be served in confinement. To the extent to which deterrence is an object of imprisonment, then imprisonment without a chance of release for a longer time, rather than for a shorter time, is within that objective."

Section 91 requires the sentencing Judge to make a judgment as to the length of the minimum term within the range specified. The judgment to be made must be made on the basis of what the justice of the case requires. This is consistent with what was said by the High Court in Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367. What was there said on this point and the principles generally were referred to in Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525 at 536 where Dawson, Toohey and Gaudron JJ said:

"That is not to say that the minimum term should be seen as the shortest time required for a paroling authority to form a proper view of the prisoner's prospects of rehabilitation. That approach was rejected in Power v The Queen ((1974) [1974] HCA 26; 131 CLR 623). Referring to Power, this Court said in Deakin v The Queen ((1984) [1984] HCA 31; 58 ALJR 367; 54 ALR 765, at p766):

'The intention of the legislature in providing for the fixing of minimum terms is to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence.' "

We were referred to the case of Mitchell v The Queen [1996] HCA 45; (1995) 184 CLR 333. The question which the sentencing Judge was required to determine in that case was a different one and was under legislation since repealed. The offender pleaded guilty to wilful murder. The Criminal Code provided a discretion to impose strict security life imprisonment or life imprisonment, but the Judge was not then required to determine a minimum term. The minimum term was governed by other legislation. However, pursuant to s40D (Community Corrections Act 1963 WA) the question was whether it was appropriate to make an order that a person be not eligible for parole, thus excluding the operation of the parole provisions which would otherwise prevail. This is a different question from determining the length of a parole period under the present Act. There was nothing said in that case which would affect the principles to which I have referred.

The sentencing Judge, when making an order under s91 as to the appropriate minimum term, must exercise a discretion and make a judgment as to the appropriate period within the range specified. The sentencing Judge is required to have regard to all factors including the circumstances of the offence as well as the prospects of rehabilitation of the offender to enable him to make a judgment which the justice of the case requires. As was said by Burt CJ in R v Haabjoern and Chester (supra) in an appropriate case deterrence and retribution must be taken into account when making a judgment as to the minimum term. This is to ensure that the ultimate sentence is one that justice requires.

In the present case the facts surrounding the wilful murder were so bad that deterrence and retribution must come more to the fore in determining the just order to be made as to the non parole period. A sentencing judge in order to fix a term higher than 20 years is not required to have evidence that rehabilitation cannot be achieved within that term. It would often and probably in almost all cases it would be asking the impossible to make a prognosis of when a person may achieve rehabilitation. The unknown factor is when and how the offender will start to make a commitment to reform. His Honour, in the present case, had regard to all factors including the future prognosis and referred to them in his sentencing remarks. It has not been shown that his discretion was miscarried.

I agree with the reasons for judgment of Pidgeon J.

I have had the advantage of reading the reasons published by Pidgeon J with which I agree.

As his Honour correctly identifies, s91(1) of the Sentencing Act 1995 required in this case that the learned sentencing Judge "set a minimum period of at least 20 and not more than 30 years that the offender must serve before being eligible for release on parole".

The reasoning in Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367 at 766 is appropriate although their Honours were considering a different provision. The issue is the minimum term which justice requires that the offender must serve having regard to all the circumstances of the offence; save that the legislature has determined that in this case the minimum term must be at least 20 years and not more than 30 years.

The learned sentencing Judge has not been shown in any way to have misunderstood either his function or the circumstances of this extremely grave offence (including the circumstances personal to the applicant).

Given those circumstances and the legislative prescription there is no reason to think that his discretion has miscarried.

I agree that the application for leave should be refused.