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[2004] NTSC 59
Supreme Court of the NT
2004-11-12
Original judgment source is linked above.
Sentencing - murder - life imprisonment - Sentencing (Crime of Murder) Parole Reform Act 2003 - Part 5 Transitional Provisions - application by the Director of Public Prosecutions pursuant to s 19(5) - whether to refuse to fix a non-parole period.
Sentencing (Crime of Murder) Parole Reform Act 2003, s 18 and s 19
Veen v The Queen [No 1] [1979] HCA 7; ; ; , pp 473, 475; considered.
The Queen v Albury [2004] NTSC 59
[1]
This is an application by the Director of Public Prosecutions ("the Director") pursuant to the provisions of the Sentencing (Crime of Murder) and Parole Reform Act 2003 ("the Act"). The respondent is serving a sentence of life imprisonment for the crime of murder. In substance the Director seeks an order revoking the non-parole period of 20 years fixed by the Act together with an order refusing to fix a non-parole period in respect of the sentence.
[2]
This application was heard together with an identical application in the matter of R v Martin Leach [2004] NTSC 60. The Act commenced operation on 11 February 2004 and these applications are the first of their type.
[3]
By indictment dated 2 July 1984 the respondent was charged that on about 25 November 1983 he murdered Gloria Pindan. On 5 July 1984 the respondent was convicted by a jury. As required by the legislation, the learned sentencing Judge sentenced the respondent to imprisonment for life.
[4]
The history of the relevant legislation is set out in the reasons for judgment in Leach. At the time the respondent was sentenced the legislation did not permit the court to fix a non-parole period. Imprisonment for life meant imprisonment for the term of the respondent's natural life without any possibility of release other than by way of Executive clemency.
[5]
The relevant provisions of the Act, including the transitional provisions, are set out in the reasons for judgment in Leach. By the operation of s 18, a non-parole period of 20 years has been fixed in respect of the sentence of life imprisonment currently being served by the respondent. The Director having made an application in respect of that non-parole period pursuant to s 19, the court may dismiss the application or set aside the non-parole period of 20 years fixed by s 18 and either fix a longer non-parole period or refuse to fix a non-parole period.
[6]
Section 19(4) of the Act provides that the court may fix a non-parole period longer than the period of 20 years:
"if satisfied that, because of any objective or subjective factors affecting the relative seriousness of the offence, a longer non-parole period is warranted."
[7]
The power to refuse to fix a non-parole period is found in s 19(5) of the Act. That subsection provides that the court may refuse to fix a non-parole period:
"if satisfied the level of culpability in the commission of the offence is so extreme the community interest in retribution, punishment, protection and deterrence can only be met if the offender is imprisoned for the term of his or her natural life without the possibility of release on parole."
[8]
A detailed discussion of the principles governing a Director's application pursuant to s 19 of the Act appears in Leach. I will not repeat that discussion. In brief, the Director having made the application, the burden rests upon the Director to satisfy the court that a particular order should be made. Subject to the provisions of the Act, the general principles of sentencing and those principles set out in the Sentencing Act apply. This includes the principles enunciated by the High Court in The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270. Facts adverse to the interests of the respondent may only be taken into account if they are agreed or proved beyond reasonable doubt. If the respondent seeks to establish facts in mitigation, the respondent bears the burden of establishing those facts on the balance of probabilities.
[9]
Evidence of matters occurring or emerging since the imposition of sentence is admissible if relevant to the seriousness of the offence or to the respondent's culpability or to an assessment of the community interest in retribution, punishment, protection and deterrence as at the date of the hearing of the Director's application. Primary amongst material that is likely to be relevant to the specified community interest will be evidence of the progress or otherwise of the prisoner towards rehabilitation and reflecting upon the likelihood that an offender will, if released, re-offend.
[10]
The body of the deceased, 29 year old Gloria Pindan, was found in a flower bed area adjacent to the ground floor of Lameroo Lodge in Darwin. The deceased's dress was pulled over her head covering her head completely and her torn panties were around her left ankle. The deceased's torn bra was around her right upper arm. There was muddy smearing to the buttocks, the back of the thigh and calves and the back of the shoulders. Heavy blood staining existed under the deceased's head and blood spots were present on a nearby wall of the Lodge to a height of approximately one metre. The deceased's right eyeball was in grass approximately four metres from the body.
[11]
The pathologist noted 28 fresh external injuries. He reported those injuries in the following terms:
1. A 6.5cm irregular laceration with a surrounding rim of abrasion was present in the right posterior parietal area running almost vertically. This terminated at a 5cm oblique laceration situated above and behind the right ear.
2. A horizontal 1.8cm laceration surrounded by an irregular wide rim of abrasion present just above and in front of the upper right ear.
3. An almost vertical laceration with surrounding abrasion was situated in the region just lateral to the right rim of the eye running upwards and slightly backwards.
4. A 4.5cm laceration running obliquely forwards and laterally situated on the left crown of the head.
5. A 2.3cm parallel laceration of similar appearance was situated approximately 2cm lateral to this.
6. A 5cm laceration with surrounding irregular abrasion started almost at the external occipital protuberance and ran upwards and to the left.
7. A similar 3.3cm laceration and abrasion ran parallel to this and approximately 1.5cm to the right of it.
8. A 5cm almost horizontal laceration and abrasion was situated approximately 1cm below the external occipital protuberance and ran to the left.
9. There was an irregular deep laceration with central tissue loss involving the outer half of the left eyebrow region.
10. There was an irregular laceration and abrasion of bursting type situated just above the midpart of the right eyebrow, extending to a point lateral to this.
11. There were diffuse abrasions with deep crushing injury involving the left temple and the area between this and the outer left eyebrow.
12. There was light abrasion scuffing of much of the rim of the left ear.
13. There was downward scuffing abrasion of the inner right cheek and similar injury just below the eye.
14. There was a 3.0 x 0.6cm deep incised wound extending from the region of the left nostril almost to the left angle of the mouth.
15. The tip of the nose and the lower part of the right bridge of the nose were absent showing signs of having been cut off.
16. There was abrasion and bruising of the entire area of the upper and lower lips.
17. There was an area of heavy roughly transverse bruising involving the entire area of the lower front of the throat with a contained shallow incised wound on the lower left side. This tapered up towards the midline.
18. There was diffuse ill-defined bruising in a wide band surrounding the abraded area extending down to the level of the collar bones and up as far as the underside of the jaw bone.
19. There were an irregular series of shallow incised parallel injuries extending from the region of the sternal notch approx two thirds of the way down the sternal body.
20. There was a heavy vertically scuffed abrasion involving the front of the left shoulder from the inner part of the lower clavicle area almost as far as the point of the shoulder. The front prominence of the shoulder had totally lost its skin cover.
21. There was a long curved shallow incised wound which ran across the chest from the right side into the region of the left armpit.
22. There were a series of vertical patterned abrasions and lacerations involving the upper part of the right breast and extending down on to the nipple region. The nipple had been excised.
23. There were a series of criss-cross shallow incised wounds, some running almost vertically and others running almost horizontally, involving the upper half of the left breast. The nipple was cut but still present.
24. A series of small injuries of similar appearance to the previous ones were present in the area between the breasts.
25. There was a 3cm deep incised injury approximately 7cm long and gaping to 2.5cm present in the left inguinal area. This was associated with an irregular series of shallow almost parallel incised wounds. Some of these ran transversely across the lower abdomen and the other major series ran almost vertically or obliquely down the left thigh. These extended almost to knee level and totalled approx 22 injuries.
26. There was a shallow laceration which had undergone postmortem change due to ant-biting present on the back of the left upper thigh.
27. There was a heavily abraded injury of the back of the left elbow.
28. There was an irregular scuffed abrasion at the junction of the middle and lower thirds of the left shin."
[12]
On internal examination, the pathologist found moderately heavy bruising underneath the external scalp injuries together with a small bone flake related to the laceration of the right supra-orbital rim. The bone flake was not significantly displaced. He found both subarachnoid and subdural haemorrhages. The haemorrhages were light and of generalised distribution.
[13]
The left side of the deceased's jaw was fractured and the inner aspect of both upper and lower lips were heavily lacerated and bruised. The hyoid larynx area was bruised as was the thyroid gland. There was extensive local haemorrhage of the anterior neck musculature.
[14]
The right eye had been removed from its socket. There was extensive local haemorrhage in that region. There was no evidence of the use of a sharp instrument in connection with the removal of the eye.
[15]
The deceased's left lung was bruised as was her liver.
[16]
The pathologist found abrasions on the right and left of the labia minora which he described as tearing type injuries not associated with any bruising or haemorrhage. The pathologist expressed the view that any hard blunt object could produce such an injury.
[17]
The deceased's anus was lacerated both anteriorly and posteriorly. The lacerations were not associated with any evidence of haemorrhage or the presence of seminal fluid. The pathologist expressed the view that any hard blunt object could have produced such injuries.
[18]
The absence of swelling or haemorrhage associated with the vaginal and anal injuries suggested very strongly to the pathologist that circulation had ceased at the time the injuries were inflicted. In his view, the deceased was either in the process of dying or already dead when those injuries were inflicted.
[19]
The deceased's left fourth to eighth ribs were fractured on the outer side more or less from the region of the left armpit downwards. The fractures were not associated with any external injury such as bruising or abrasion.
[20]
There were no signs of any defence injuries.
[21]
The pathologist expressed the view that multiple injuries were the cause of death. In his view no particular injury was a fatal injury. He described the assault which caused the injuries as a "fairly long one" and expressed the opinion that the deceased had probably died towards the very end of the assault.
[22]
In the context of injuries caused either when the deceased was dying or after death, the pathologist identified the slash wounds, particularly those on the breasts and legs. The pathologist expressed the view that these injuries had occurred fairly late in the assault. By way of contrast, the head, face and neck injuries, including the injury to the right eye, were associated with a considerable amount of bruising and swelling and were, in the opinion of the pathologist, inflicted fairly early in the assault.
[23]
The respondent murdered the deceased late in the evening of Friday 25 November 1982. It appears that he was heavily intoxicated. When interviewed by police on 26 November 1983 the respondent made full admissions.
[24]
The respondent told police that he approached the deceased in Mitchell Street and that he and the deceased walked to the vacant lot next to Lameroo Lodge. They had a conversation, the details of which the respondent was unable to recall. According to the respondent, after about five or ten minutes he "stood up and killed her".
[25]
The respondent referred to the deceased as a "gin". He said he did not know why he went with the deceased to the vacant lot.
[26]
The respondent described kicking the deceased in the body, neck and head. He said he kicked her as hard as he could, but it was not very hard because he kept falling over. He kicked her all over the body and then punched her a few times.
[27]
The respondent then described grabbing a broken stubby bottle and slashing the deceased with the jagged edges. It is unnecessary to canvass the details of those particular admissions.
[28]
The respondent said he "ripped" the deceased's eye out and "took off". He said he put his finger in the eye socket. He threw the eye away.
[29]
The respondent was asked about his reason for removing the deceased's eye:
"Q. What was your reason for taking the eye out?
A. No reason, I enjoyed the killing.
Q. Did you enjoy taking the eye out?
A. I didn't think about it."
[30]
The respondent was asked again about what he had in mind:
"Q. When you first spoke to this girl what did you have in your mind?
A. Sort of hard to explain I really didn't want to kill her like when I'm out shooting it's alright but when I knock off or finish for a while I feel like killing again.
Q. What do you mean by out shooting?
A. Buffalo and horses for meat.
Q. When was the last time you went shooting?
A. Last time was out Meneling, about three weeks ago.
Q. Why kill this girl?
A. It doesn't worry me what I kill they're all blood and guts inside."
[31]
The following day the respondent participated in a re-enactment of the crime. He repeated the substance of the admissions made the previous day. At the conclusion of the re-enactment and interview, the following conversation occurred:
"Q. Righto, Andy, is there anything further you'd like to say about this matter at all?
A. I think I'd do it again. I get enjoyment out of it, don't know why. Alright when I'm out fucking shooting, I don't want to kill anyone, but when I knocked off shooting when I went on holidays in September, I had to kill something."
[32]
Viewed objectively, the respondent's crime is in the worse category of murder. The respondent intended to kill the deceased. He enjoyed perpetrating the extreme violence. He enjoyed killing the deceased.
[33]
The nature of the injuries sustained by the deceased demonstrates vividly that the respondent perpetrated a violent and prolonged assault upon the deceased. It was an assault of a particularly vicious nature and it involved the application of considerable force to various parts of the deceased's body. The respondent kicked and beat the deceased with his fists and repeatedly slashed her face and body with a broken bottle. In addition, the respondent mutilated the deceased's body at about the time of death.
[34]
As to matters personal to the respondent, he was born on 20 November 1961 and was, therefore, aged 22 years at the time of the murder. He had limited education reaching only grade 7 at a primary school in Darwin. According to information provided by the respondent's mother to the investigating officer, at the age of about 15 or 16 years the respondent became uncontrollable and was placed in a boy's home for nearly a year.
[35]
In 1979 the respondent was employed as a contract pet meat shooter for nine months. Before and after that employment he spent periods on the dole. In 1981 he joined the army. The respondent told the investigating officer that he could not accept the discipline and faced a number of disciplinary charges. According to the respondent, in October 1981 he threatened to shoot one of his officers. He was discharged on 7 December 1981.
[36]
The respondent also told the investigating officer that he had a hatred of persons of Aboriginal descent. He said he believed in the ideals of the Ku Klux Klan.
[37]
On 17 June 1984 the respondent was examined by a psychiatrist. The report of the psychiatrist sets out the respondent's personal history in some detail and it is unnecessary to canvass that history.
[38]
As to the respondent's attitude to Aboriginal persons, the respondent told the psychiatrist that when younger he and his friends often pursued Aboriginal persons with sticks and beat them. The respondent spoke in disparaging terms about persons of Asian descent. He expressed a dislike for Aboriginal persons and for persons he described as "wogs and homosexuals".
[39]
The respondent professed little interest in sex. He told the psychiatrist "you go out and fuck a woman, I go and have a fight". The psychiatrist described the respondent as becoming restless and looking uncomfortable when asked about specific sexual aspects of the incisions upon the deceased's body. The psychiatrist reported that the respondent eventually evaded the issue and dismissed it as accidental, rather than a deliberate occurrence.
[40]
The respondent told the psychiatrist that he viewed killing people as "about the same as thumping on a cockroach". Asked about his wish to commit aggressive acts, he dismissed the question by saying "I don't particularly want to kill people - if it happens, it happens." When asked about one of the answers in his interview suggesting there might have been a thought of killing the deceased when he saw her, the respondent replied:
"I had the feeling again the other day. Had a razor blade and wanted to slice one of the officer's up ... didn't do it because I wanted to get out and watch television."
[41]
The respondent told the psychiatrist that he enjoyed killing the deceased.
[42]
The psychiatrist expressed the view that violence and aggression are everyday events for the respondent and appear to serve a cathartic function for him. He said the respondent impressed as an "extraordinarily aggressive and violent young man without wish to change." He went on to describe some "positive" features such as emotional warmth during the interview and of interaction at an emotional level with the psychiatrist and others who were present at the time of the examination. The psychiatrist described the respondent as capable of humour.
[43]
There are aspects of the respondent's background which are capable of giving rise to some sympathy. However, viewed in the context of the respondent's offending, they are not capable of amounting to mitigation of any significance. The respondent was a violent and aggressive person who succumbed to his desire to kill. He enjoyed killing the deceased.
[44]
In 1989 the respondent was charged with attempted murder. He was eventually acquitted on the grounds of insanity. When asked why the psychiatrist why he had attacked the other prisoner who was the victim, the respondent replied:
"Because Jim told me to. He talks to me. He tells me to do things. I'm pretty happy for the moment - he's letting me sleep on the bed for a while. Usually, he makes me sleep on the floor."
[45]
The respondent told the psychiatrist that Jim was a voice in his head. When it was put to him that some of the police documents suggested he had attacked the prisoner because the prisoner was a child molester, the respondent replied:
"Sure I knew. Sure I didn't like him because he was a child molester but that's not the reason for it. I had to get him for Jim. Jim's getting old - he wanted some blood to preserve his youth. When I did it I was really happy but Jim wasn't all that happy - he was happy a lot of blood had been spilt but not because I hadn't killed him. If he'd moved again I'd have whacked him again."
[46]
The psychiatrist concluded that the respondent was suffering from schizophrenia which resulted in delusions and hallucinations. In summary, the psychiatrist concluded as follows:
"Albury is an extremely dangerous man. His mental disorder is such that he has a casual disregard for the act of killing. ... He still fantasizes about killing people. He has a fantasy about terrorising a town by committing casual, motiveless murder for the purpose of making people frightened that they may be the next to be killed. He is not seeking publicity or notoriety. He simply gets pleasure out of the thought of having that degree of control over people. There is also a sadistic element to his killing. He derives pleasure from the mutilation of the body of the victim. He finds that pleasure hard to describe. He says that it 'makes it interesting'. He makes it clear that given his casual attitude to murder he would kill again given the opportunity."
[47]
In connection with the application under consideration, the Director of Correctional Services has provided a report giving an overview of the respondent's behaviour over the last 21 years. The report notes that there has been debate amongst the professionals who have attempted to arrive at a definitive diagnosis of the respondent's mental disorder. A conclusion has been drawn that the respondent is dangerous, not because of a psychotic illness, but because of a psychopathic (dissocial) personality disorder.
[48]
The report states that in 1985 the respondent confessed to committing a murder in Mount Isa. An investigation concluded that he might have committed it. In 1990, however, the respondent confessed to committing eleven other murders. An investigation concluded that the confession was fictional.
[49]
The respondent is a very difficult prisoner to manage. He is a danger to himself and to other prisoners. He has been involved in an extraordinarily large number of incidents over the 21 years.
[50]
In addition to serving the sentence of life imprisonment under consideration, the respondent is detained at the Administrator's pleasure for the attempted murder of another prisoner in 1989. By reason of that detention, a progress report was provided in December 2002 which was co-signed by two psychiatrists. On that occasion the respondent told the psychiatrists he would never harm anyone and, although he acknowledged a belief that he had a mental illness, he did not acknowledge that he was dangerous. The report expressed the following conclusion about the respondent's mental state:
"We agreed that he suffers from a severe personality disorder such as psychopathic personality disorder with no psychosis at present. This is evidenced by his past history of extremely dangerous behaviour to self and others, the lack of ability to modify these behaviours. The lack of remorse or empathy, his shallow affect, manipulativeness, glib and superficial charm, poor behaviour controls, juvenile delinquency and the antisocial letters written to staff are strong indicators of his severe personality disorder.
It is our opinion that Mr Albury is an extremely dangerous man that needs constant supervision."
[51]
In August 2003 a psychiatrist, Dr Walton, examined the respondent. Dr Walton was inclined to the view that the respondent had been correctly diagnosed as suffering from schizophrenia and remarked that it seemed that the condition had attenuated in severity, perhaps partly attributable to many years of treatment with antipsychotic medication.
[52]
Dr Wake, the Medical Director of Northern Territory Prisons, has recently reported that the respondent's first five years imprisonment "were characterised by general conditions of total isolation and extremely poor living conditions and what in my opinion bordered on institutional maltreatment." Dr Wake has expressed the opinion that the respondent is not mentally ill and that the initial diagnosis of schizophrenia was wrong. Dr Wake continued:
"Mr Albury does in my opinion suffer from severe psychopathic personality disorder, he is of above average intelligence and is a very dangerous man. We treat him with great respect in that regard in the prison system. The most recent attempt to move him into a community setting resulted in him severely injuring an inmate with a cricket bat.
...
Albury enjoys his reputation of being a "monster" and cleverly invokes voices, the written word and behaviour patterns to perpetuate the idea that he is quite mad. This is in contrast to the quiet individual in my office who will tell me that of course he is not mad but has to do something to occupy his days. He is in essence bored silly.
...
Summary: Mr Albury is not and has never been mentally ill. He has a severe psychopathic personality disorder and should be regarded as dangerous. Mr Albury literally "enjoys" a reputation as a psychopath and he cleverly manipulates this situation especially with those who do not know him well. Medication has no relevance in his case except to produce behavioural quietness as required. Mr Albury has in fact been compromised by the initial wrong diagnosis and by suboptimal care over the early years in the NT prison system."
[53]
The psychiatrist to whom Dr Wake reported was Dr Robertson. He examined the respondent on 22 September 2003. He concluded that the respondent has a "psychopathic personality disorder". Dr Robertson expressed the following views:
"It should be noted that a psychopath cannot be explained in terms of antisocial rearing or development. They are simply morally depraved individuals who are unstoppable and untreatable. Their violence is often planned, purposeful and emotionless. Frequently the violence continues until it reaches a plateau at the age of 50 or so and then tapers off. ... Psychopathy is not a mental illness. It is not treatable although there is much evidence in the literature to show that antipsychotic medications can modify their antisocial behaviour.
Mr Albury also shows some traits of borderline personality disorder, which overlaps somewhat with antisocial personality disorder. These traits have demonstrated themselves in the form of self-mutilation to Mr Albury's left arm, uncontrollable displays of anger, manipulative and threatening behaviour."
[54]
Dr Robertson expressed the view that there are serious problems with the previous diagnosis of chronic schizophrenia. He expressed the view that this was a misdiagnosis in 1988 and that the diagnosis is clearly one of psychopathic disorder. The prognosis is that the condition will remain unchanged with possibly some reduction in aggression after the age of 50. In Dr Robertson's opinion:
"Both Mr Albury's past history of violence and offending as well as his diagnosis are both high predictors of future violence. From all I have read about Mr Albury I would have to conclude that his risk of future reoffending, particularly in a violent manner is extremely high.
[55]
There is no challenge to the views expressed that the diagnosis of schizophrenia was incorrect. Based on all the material before me, I am satisfied that at the time the respondent committed the murder he was suffering from a severe personality disorder such as a psychopathic personality disorder. He intended to kill the deceased and enjoyed the infliction of violence and the killing. There are no subjective factors which mitigate the seriousness of the offence or the level of culpability in the commission of the offence.
[56]
I do not regard the respondent's relative youth as amounting to a circumstance of mitigation in either respect. The respondent's youth was not causally linked to the commission of the crime. Nor do I regard the respondent's intoxication as a circumstance of mitigating either the seriousness of the offence or the respondent's culpability.
[57]
The hearing of the Director's application commenced on 26 July 2004. At the conclusion of submissions by counsel for the respondent, counsel conveyed a request from the respondent that the respondent be permitted to address the court directly. The respondent was connected to the court by video link and through that medium spoke for some minutes in a calm and rational manner.
[58]
In substance, the respondent said that if he was released from prison he would kill again. He said that everybody knows that he will never be released and that he will be a risk forever.
[59]
I have no doubt that the respondent was making a calm and rational self assessment of his own condition and of the likelihood that he would kill again if released. When the hearing subsequently resumed, there was no attempt by the respondent to lead evidence or persuade me that his self assessment was inaccurate or exaggerated.
[60]
On 27 July 2004 the applications were adjourned to enable further material to be obtained. On 3 August 2004 the court received a letter from the respondent addressed to me. The respondent wrote that he was rejecting his solicitor's advice in writing the letter and that he was writing it as a "tenderable legal document" which could be used by the court.
[61]
In the letter the respondent stated that he had murdered three people, including the deceased Ms Pindan. He wrote of crimes other than murder that he had committed and said that when he committed the other crimes he intended to kill the victims. The respondent wrote that he accepts full responsibility for what he has done and that he deserves never to be released.
[62]
The respondent wrote of everyday needs which he requires to make his life tolerable. These were the types of matters about which the respondent spoke when addressing the court directly. Both the letter and the respondent's address to the court demonstrate vividly the dreadful consequences of lengthy periods of imprisonment.
[63]
The respondent wrote that he was dealing in reality and not fantasy land. In the respondent's words:
"My chance of re-offending in violent murderous manner is one hundred percent (hopefully soon)".
[64]
Later in the letter the respondent wrote:
"I have no wish to die - but as above I am unstoppable - I love my work.
I do not understand what the meaning of the word kindness is, it's never be shown to me so why in the fuck should I show it - this is not some sort of weird attempt at justification for killing - I do what I do by choice (I think) or urge. Once again I have no rights for any fucking thing - I don't deserve them and I don't need to see another psychiatrist ...".
[65]
The last line of the letter is at follows:
"PS - will kill again - its what I do for an occupation."
[66]
On resumption of the hearing on 26 October 2004, both the Director and the respondent were given an opportunity to lead evidence or make submissions with respect to the letter from the respondent. No evidence was called by the respondent. Counsel for the respondent accepted that the respondent believes he is dangerous and will kill again.
[67]
I am satisfied that the respondent believes he will kill again if he is released. While I have no doubt that the respondent has exaggerated in certain respects, I am satisfied that he is a violent and dangerous person who would almost certainly kill again if released.
[68]
Having drawn the conclusion as to the likelihood that the respondent would kill again if released, it is necessary to make two observations to put that factor in its proper perspective.
[69]
First, as a matter of general sentencing principle, it is well established that a sentence must be proportionate to the gravity of the offence. A sentence cannot be increased beyond what is proportionate to the gravity of the offending solely for the purpose of protecting the public: Veen v The Queen [No 1] [1979] HCA 7; (1979) 143 CLR 458 and Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465. The court does not possess any power to sentence the appellant or any other person to protective type custody.
[70]
In Veen [No 2], the majority, comprised of Mason CJ and Brennan, Dawson and Toohey JJ, held that the principle of proportionality does not exclude consideration of protection of the public as a relevant factor in fixing an appropriate sentence. In a joint judgment, their Honours said (473):
"It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible."
[71]
Later in the judgment, their Honours view as to the proper approach is found in the following passage (475):
"In Veen [No 1], Mason J cited a further passage from the judgment of Gibbs J in Pedder including the following:
"'... In some cases in which it appears that there is no likelihood that the convicted person would be a danger to the public if set at liberty, and that there were mitigating circumstances, a light term of imprisonment or no imprisonment at all may be appropriate. On the other hand there are cases in which the mental condition of the convicted person would make him a danger if he were at large and in some such cases sentences of life imprisonment may have to be imposed to ensure that society is protected.'"
"In my opinion, his Honour's observations express the principle which is to be applied to cases of this kind. They demonstrate that in such a case there is no opposition between the imposition of a sentence of life imprisonment with the object of protecting the community and the proportionality principle. The court imposes a sentence of life imprisonment on taking account of the offender's record, his propensity to commit violent crime, the need to protect the community and the very serious offence of which he stands convicted, imprisonment for life being a penalty appropriate to very serious manslaughter when it is attended by the additional factors to which I have referred."
That passage remains, in our opinion, an accurate statement of the law."
[72]
The second observation relates to the duty of the court on the current application. Although the court is engaged in a sentencing exercise, it is not sentencing afresh. Nor is it in the position of a sentencing court determining the question of non-parole immediately following the conviction of an offender for murder. The court is considering an application by the Director in respect of a prisoner who has already been sentenced. The court must determine that application in accordance with the directions given by the Legislature in s 19 of the Act.
[73]
In particular, in respect of the question whether the court should refuse to fix a non-parole period, I emphasise that the court does not have the power to decline to fix a non-parole period solely on the basis that the respondent is a violent and dangerous person who would almost certainly kill again if released. As discussed in Leach, the power in s 19(5) to refuse to fix a non-parole period may only be exercised if the crime is properly characterised as fitting within the worst category of cases of murder. In addition, the power to refuse to fix a non-parole period may only be exercised if the court is satisfied that the level of the respondent's culpability in the commission of the crime is "so extreme" that the community interest in retribution, punishment, protection and deterrence can only be met if the respondent is imprisoned for life without the possibility of release on parole.
[74]
The culpability of the respondent in the commission of the crime was of the highest order. It is difficult to envisage more extreme culpability than the culpability of a person who not only intended to kill, but also enjoyed the prolonged infliction of violence and the act of killing.
[75]
In all the circumstances, and bearing in mind my finding that the respondent will almost certainly kill again if released, I am satisfied that the respondent's level of culpability in the commission of the crime of murder was so extreme that the community interest in retribution, punishment, protection and deterrence can only be met if the respondent is imprisoned for the term of his natural life without the possibility of release on parole.
[76]
In view of my decision to refuse to fix a non-parole period, strictly speaking it is unnecessary to determine the question whether, by reason of the circumstances of the crime, should a non-parole be fixed the minimum that could be fixed would be 25 years. However, as this issue was the subject of submissions, I will briefly summarise my view.
[77]
Section 19(3)(b) provides that on application by the Director the Court must fix a non-parole period of at least 25 years if the act that caused the victim's death "was part of a course of conduct by the prisoner that included conduct, either before or after the victim's death, that would have constituted a sexual offence against the victim." The Director submitted that the following facts establish a sexual offence in the respondent's course of conduct which caused the victim's death:
"a) The deceased's dress had been pulled up over her head, her torn bra was found around her right arm and her torn knickers were found around under left ankle
b) There were a number of lacerations to the deceased's sternum and in particular over both breasts
c) The right nipple had been cut off
d) The left nipple had also been cut but remained present
e) There were a number of lacerations and also a gaping wound over the lower abdomen and over the left thigh, extending from the groin area to the knee
f) There was tearing found in the vagina
g) There were lacerations found in the anus
[78]
The Director also relied upon evidence establishing that the injuries to the vaginal and anal areas of the deceased were caused by the penetration of a blunt, probably cylindrical, object.
[79]
"Sexual offence" is defined in Sch 3 of the Sentencing Act. I am satisfied that the act or acts which caused the death of the deceased were part of a course of conduct by the respondent that included conduct, either before or after death, that would have constituted a sexual offence against the deceased. If a non-parole period was to be fixed, the minimum that could be fixed would be 25 years. I should add that if a non-parole period was to be fixed, in all the circumstances to which I have referred, pursuant to s 19(4) a non-parole period substantially longer than 25 years would be warranted.
[80]
By order I revoke the non-parole period of 20 years fixed by s 18 of the Act and refuse to fix a non-parole period.
The Queen
Albury [2004] NTSC 59
(1979) 143 CLR 458
(1988) 164 CLR 465
(1999) 199 CLR 270