Regina v Robert John Hill

SULLY J: Introduction On 8 December 1999 the applicant, Mr. Hill, pleaded guilty upon arraignment to: 1. The murder of one Bradley Watson 2. The murder of one Lawrence O’Shea 3. The malicious discharge of a firearm with intent to do grievous bodily harm to one Michael Rasic 4. The malicious discharge of a firearm with intent to do grievous bodily harm to one Wendy O’Shea

Each offence of murder attracted upon conviction a statutory maximum penalty of imprisonment for life. Each offence of malicious discharge of a firearm with intent, attracted upon conviction a statutory maximum penalty of imprisonment for 14 years.

Proceedings on sentence took place on 20, 21, 22 and 23 March 2000. The presiding Judge was O’Keefe J. The applicant was represented throughout by counsel, not being counsel who appeared for him at the hearing of the present application.

The applicant stood for sentence on 27 March 2000. He was sentenced as follows: [1] For the murder of Mr. Watson: to a minimum term of penal servitude for 30 years and an additional term of penal servitude for life. [2] For the murder of Mr. O’Shea: to a minimum term of penal servitude for 25 years and an additional term of penal servitude for life. [3] For each of the two offences involving, respectively, Mr. Rasic and Mrs. O’Shea, to a minimum term of penal servitude for 9 years, with an additional term of 3 years.

Each of the four sentences was back-dated so as to commence on 24 February 1999, that being the date of the applicant’s arrest, and bail having thereafter been refused.

The applicant seeks leave to appeal against the asserted severity of each of the four sentences. The Grounds of the Application

It was submitted at the hearing of the application “that the whole sentencing exercise miscarried” . Learned Senior Counsel for the applicant, in his submissions, identified the following particular sentencing errors: 1. That the course followed by O’Keefe J in connection with the two sentences for murder was not authorised by section 431B of the Crimes Act 1900 (NSW) . Section 431B has been repealed and replaced by section 61 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ; but was still in force on 27 March 2000. 2. That O’Keefe J made findings of fact that were not reasonably open to his Honour on a fair view of the entirety of the evidence. These erroneous findings embraced: 2.1 An erroneous acceptance without qualification of the evidence of Dr. Westmore. 2.2 A failure to consider properly, if at all, the applicant’s history of major depression; and its proper effect as a factor in sentencing. 2.3 An erroneous finding that the applicant was a man with violent propensities. 3. That O’Keefe J fell into error in the way in which his Honour dealt with the pleas of guilty as matters warranting discounted sentences. 4. That O’Keefe J structured the sentences in a way that failed to comply with the sentencing requirements that are established by the decision of the High Court of Australia in The Queen v Pearce (1998) 194 CLR 610 5. That O’Keefe J erroneously took into account the contents of certain victim impact statements that were in evidence before his Honour. 6. That O’Keefe J erred in his Honour’s approach to the matter of premeditation. 7. That, as an “overriding submission” , O’Keefe J did not deal with “the whole of the subjective case” of the applicant. 8. That O’Keefe J erred in that his Honour failed to consider properly the psychiatric and psychological case that had been made for the applicant. The Relevant Facts

All four offences were committed on 21 February 1999, between 2.00 p.m and 3.00 p.m. They were committed at Berkeley Vale.

The remarks on sentence commence with a careful and detailed survey of the facts of the offences. The survey occupies almost seven pages of transcript, and the detail of the narrative is important for present purposes. A copy of this factual survey made by his Honour, no part of which was challenged as to its accuracy, has been appended, and marked Appendix A , to this judgment.

The survey by his Honour of the basic facts of the offences is followed, in the remarks on sentence, by two sections: one entitled: “The Lead-up” ; and the other entitled: “The Aftermath” . Each of these two sections contains additional, and carefully detailed, factual surveys. Once again, the detail of the narrative is important for present purposes. The relevant material is copied as “ Appendix B” to this judgment.

The findings made by his Honour at the conclusion of the “Lead-up” material have been retained as a matter of practical convenience, in Appendix B ; but it will be necessary to say later herein something more particular to those findings. The Suggested Error in the Structuring of the Two Sentences for Murder

The effect of each of the two sentences as actually passed by O’Keefe J is to pass upon the applicant a sentence of imprisonment for life, with an accompanying non-parole period of 30 years in the one case, and 25 years in the other case.

At the hearing before this Court it was conceded by the Crown that this approach was indeed erroneous: Reg v Harris (2000) 50 NSWLR 409 at 429; and that it would be necessary, therefore, for this Court to re-sentence the applicant.

That concession entails that this Court must now determine for itself whether, applying correct sentencing principles to the whole of the evidence before it, the Court is of the positive opinion that some other sentences, more lenient than those passed by O’Keefe J, are warranted in law and should have been passed: section 6(3), Criminal Appeal Act 1912 (NSW) . Re-Sentencing by this Court: the Applicant’s Objective Criminality

Before O’Keefe J there was a deal of argument about the correctness of characterising the applicant’s offences, but especially the two offences of murder, as being worst case examples of their particular types.

The basic principles are not in doubt. They are stated conveniently by Badgery-Parker J, (Carruthers and Finlay JJ concurring), in Reg v Twala : unreported, 4 November 1994: “…………… In order to characterise any case as being in the worst case category, it must be possible to point to particular features which are of very great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime (as distinct from subjective features mitigating the penalty to be imposed).”

O’Keefe J came to the provisional conclusion that: “……………… it would be within the parameters of previous sentences for the prisoner to have imposed upon him a life sentence having regard to the totality of the events of the day in question including the brutal, callous, deliberate execution-like killing of Mr. Watson.”

With such a provisional conclusion I am wholly in agreement.

It then becomes necessary to consider whether, conformably with what is established by Twala , that provisional conclusion requires substantial revision by reason of factors mitigating the objective criminality of the offences.

It was submitted to O’Keefe J that there were seven such factors. They were identified as follows: [1] That the crimes were not premeditated; [2] That because of the Crown’s acceptance of the plea to the lesser charges concerning Mrs. O’Shea and Mr. Rasic and the possibility that Mr. O’Shea was struck by a bullet intended merely to wound Mr. Rasic, the degree of the prisoner’s culpability was reduced; [3] Alcohol and drugs were a factor which either mitigated or at worst were neutral in relation to the actions of the prisoner; [4] Related to this, the disinhibition of the prisoner by virtue of the matters referred to in [3] above; [5] The pleas of guilty; [6] The fact that the prisoner felt manipulated; [7] The prospect of rehabilitation since the prisoner could be maintained in constant psychological appraisal during the course of a prison sentence which, it was accepted by counsel for the prisoner, must necessarily be long.

Of those seven identified factors, those numbered 2, 5, 6 and 7 do not go, in my opinion, to the mitigation of the objective heinousness of the applicant’s crimes. They are capable, in my opinion, of going to the mitigation of sentence by reason of personal considerations particular to the applicant.

As to the remaining three identified factors, O’Keefe J concluded: first , that the crimes had been premeditated; and secondly , “that the actions of the …. (applicant) …. . were not the consequence of the ingestion of excessive drugs or alcohol on the day on which they occurred” .

His Honour’s overall assessment was that the applicant “terminated the lives of two decent men for no other reason but that he was an angry man, who when angry tended to resort to violence” .

At the hearing before O’Keefe J, and at the hearing before this Court, there was discussion of whether the applicant’s actions could be characterised as having been premeditated. The Crown Prosecutor before O’Keefe J submitted that the actions, and in particular the killings, had been “entirely senseless and motiveless, not something generated by a previous relationship, premeditated in that sense ……………” . This accorded with a submission which the Crown Prosecutor put a little earlier and in these terms” “If pre-meditation means some settled determined course of action against nominated individuals at a point in time before you commence the process, then no. If it is in terms of what it was was determined to be done at a point in time shortly before it occurred, to the extent that he went out and after he destroyed the material in the adjacent unit, then went out with the rifle with the intent of shooting whoever was in the vicinity, then to that extent it was pre-meditated. It was not a pre-planned execution of some known person motivated by some previous relationship.”

That seems to me to be a completely clear and correct description.

O’Keefe J said on the topic: “Premeditation does not necessarily involve plotting and planning over a lengthy period. It simply involves deciding deliberately to do the act charged, taking steps to prepare for the act and then carrying it out. That is what the prisoner did in this case. He became angry. He dressed for the occasion. He decided to have what he called ‘a game’, a deadly one. He got his gun. He took up a lot of ammunition. He smashed through the wall as he said he was going to do and then when he was not able to vent his anger on the occupants of Unit 7 sufficiently he did so on the innocent occupants of Unit 6 and on the good Samaritan, Mr. O’Shea, and his spouse.”

I do not agree with the applicant’s submission that this assessment shows “a clear misunderstanding as to the onus and standard of proof” . That assessment of his Honour seems to me to be, also, a completely clear and correct description of the applicant’s actions.

It is necessary to consider, next, the submissions put for the applicant concerning the mitigating effect upon his objective culpability of the expert psychiatric and psychological opinion evidence that was placed before O’Keefe J. (a) Dr. Westmore

Dr. Westmore wrote a report dated 15 September 1999. It is addressed to the applicant’s then legal representatives. It seems to have been obtained with particular reference to, in Dr. Westmore’s words: “………… the issue of the availability or otherwise of psychiatric defences to the charges of murder” : Dr. Westmore’s conclusions and opinions were: “Of immediate relevance to your client and his current legal difficulties is the issue of the availability or otherwise of psychiatric defences to the charges of murder. He does not suffer from a mental illness in the sense that he would qualify for a mental illness defence. That is there is no evidence on the history that he provides that he was suffering from a disease of the mind which totally deprived him of his capacities at the relevant time. I would note however that there are some difficulties in comprehensively assessing this in that he can provide no details of his thought content at the time of the homicides. He reports no memory of this period of time. The nature of his actions around the time of the homicides does not suggest or support the proposition that he was organically impaired at that time. That is there is no evidence that he was so affected by drugs and or alcohol that he was not able to act in a purposeful goal specific fashion in relationship to the homicides. His ability to drive a motor vehicle and to leave the scene also suggests some cognitive skills but again assessing the level of those skills is not possible because once again he reports no memory and cannot give us access to his mental mechanisms at that time. With regards to the defence of substantial impairment the history does support quite strongly that he was depressed around this time, he had been seeing a GP who was treating him with the anti-depressant Zoloft. He was also abusing alcohol along with cold and flu tablets. He appears to have been quite preoccupied with his previous girlfriend Tina, there were ruminations and obsessive thoughts about her. He reports consuming a large amount of alcohol in the hours preceding these events, he also took anti-depressants and cold and flu tablets. The role of alcohol cannot be excluded as playing a principal and/or primary role in his behaviour and it therefore cannot be excluded as being a factor of potential significance in his actions. Because of that he does not qualify for the defence of substantial impairment. Longer term considerations in this case include the significant depression your client appears to have suffered in the weeks and possibly months leading up to these events along with the abuse of alcohol and pills. These problems while not amounting to psychiatric defences certainly were significant and played a major [role] in the aetiology of this man’s offending behaviour. His long term prognosis is uncertain, he requires extensive counselling about alcohol use, he has a past history of self harm thoughts and behaviour and he obviously requires ongoing treatment for his depression.”

The submissions now put for the applicant concentrate, not so much on these conclusions, but upon antecedent observations made by Dr. Westmore, and especially such observations touching upon the matter of depression as at 21 February 1999.

In a section of his report entitled: “Mental State Examination” , Dr. Westmore says: “Although I didn’t think he was showing overt signs of major depression, he is possibly on anti-depressants at this time. I could not identify any psychotic features such as delusions or hallucinations.”

In a separate section entitled: “Diagnostic Issues” , Dr. Westmore makes these observations: “Your client suffers from alcohol abuse/probable dependency and polysubstance abuse. He has in addition a history of depression. This might be a major depressive illness or a severe adjustment disorder with a depressed mood state. It is difficult to determine precisely on the history the nature of his depression. He may also suffer longer term chronic low grade depression best described as a dysthymic disorder. He has evidence of personality dysfunction with strong anti-social qualities and possibly an anti-social personality disorder. Medical conditions appear to play no immediate role in his psychiatric difficulties. His overall level of functioning in the last twelve months appears to be quite low. His existence has been characterised by substance abuse and problematic relationships. He has been struggling to hold employment.” (b) Miss/Mrs. Kathleen Barrier

Miss/Mrs. Barrier is a psychologist. She interviewed the applicant on 15 March 2000, and at the request of his then legal representatives. She prepared a report of that same date.

The applicant’s presentation at interview exhibited a “prevailing emotional tone” that was “substantially depressed” . His general presentation “remained flat and disconsolate” .

A detailed personality test assessment was made of the applicant. The significant findings are these: “Robert’s overall profile indicates that at least a moderate level of pathology characterises his overall personality organisation. Prominent scores reflect his feelings of social and personal inadequacy. They reflect an intense conflict between his desire to withdraw from personal relationship (Schizoid), his fear of independence (Dependent) and a growing sense of unworthiness and despondency. Whilst he would very much like to depend on those close to him he has learned to anticipate disillusionment and discouragement in these relationships. His deflated sense of self worth and his expectation of personal failure and social humiliation limit any efforts he might make to become autonomous or to overcome his dispirited feelings. He sees no alternative but to give in to his gloomy and sorrowful state. This restriction of choice stirs deep resentments within him. As a consequence he would experience anxiety and dejection, interspersed occasionally with petulant, erratic, passive-aggressive acts and periodic criticism of others for their lack of support. The dependent security he seeks, however, is seriously jeopardised when he voices these emotional outbursts and resentment. To bind his irritability and moodiness and thereby protect against further loss, he may withdraw socially and become even more anxiously depressed as a result. The more erratically moody this man became the more likely it was that others distanced themselves which served to reinforce his depressive withdrawal. Unable to overcome feeling that life is empty and meaningless and unable to master the skills to overcome the deficits he sees in himself, he is likely to become at times cranky, if not explosive, but then to turn against himself. Extended periods of exhaustion and chronic depression may be typical. Simple tasks demand more energy than he can muster. On clinical syndrome measures which are current reactive clinical states, his score on Major Depression is well within the significant range and reflects that a major depression characterises the daily life of this melancholic and moody man. Implicit in this description are self deprecation, thoughts of death, guilt and feelings of unworthiness. Recurrent periods of alcoholism are a major problem. Anxious, lonely and socially apprehensive, he may have found alcohol to be a useful lubricant that reduces tension, stirs fantasies of self esteem and permits the quick dissolution of emotional pain. His responses also reflect that he has abused drugs. As part of a more pervasive dysphoria, this troubled man reports suffering from symptoms that typify a generalised anxiety disorder. Expecting the worst he is likely to perpetrate if not create the problems he anticipates.”

Later, and in connection with a discussion of the effects of one in particular of a number of relationship break-downs which the applicant has experienced, the report says: “Robert described a marked deterioration in his functioning after Tina left. He neglected his business which failed. He said “I felt a failure, could make nothing work, business, relationships and even suicide”. He became increasingly depressed and withdrawn. There was a concomitant marked increase in his use of toxic substances, specifically alcohol and amphetamines. He found it difficult if not impossible to voice his real feelings to others, for fear they may reject or humiliate him. Life was empty and meaningless. In the circumstances it is consistent that Robert would have felt irritable, frustrated and become, at times, cranky if not explosive. Evidence from objective personality assessment indicates that Robert would likely attract a diagnosis of Personality Disorder. He would satisfy criteria as drug and alcohol dependent. It also indicates he would likely currently attract a diagnosis of Major Depression. Given his personal history, it is likely that the client has been suffering this condition since his former de facto Tina’s departure.”

The report concludes that the applicant: “………needs ongoing management for his current high levels of anxiety and depression” ; that he needs to continue on a regular basis consultations with the gaol psychologist; and that: “(i)t is felt he is a prominent suicide risk”. (c) Professor Starmer Professor Starmer is attached to the Psychopharmacology Research Unit at the University of Sydney. He, too, prepared a report at the request of the applicant’s legal representatives. That report is dated 17 March 2000. The report looks exhaustively at the quantities of alcohol and drugs which were allegedly ingested by the applicant at times proximate to the time of the offences. There is an assessment of the likely interactions of some combinations of some of those substances. It suffices for present purposes to note the two concluding paragraphs of the report: “13. Three or four-way interactions are clearly possible among the drugs which Mr. Hill appears to have taken, but it would be speculation to attempt to predict what the outcome might have been. 14. In conclusion, there appear to be indications that Mr. Hill took a mixture of drugs and alcohol on the day of the offences and I consider that enough scientific evidence exists to suggest that their combined effects were capable of influencing his behaviour.” (d) Dr. Fretze

Dr. Fretze is, I infer, a General Practitioner who was practising at Toukley in 1998 and 1999. Dr. Fretze saw the applicant on six occasions between 20 October 1998 and 5 February 1999 inclusive. The applicant’s history, so far as is now relevant, was one of depression, giving rise occasionally to bursts of serious alcohol abuse and the abandonment of his prescribed anti-depressant medication. At their last consultation on 5 February 1999, Dr. Fretze doubled the previously prescribed daily dosage of “Zoloft” , an anti-depressant. Dr. Fretze did this in response to the applicant’s request for an increased dosage; and “……… on the condition he saw me weekly …. . When he left he seemed quite committed to his treatment and I fully expected him to return in another week for follow-up. I have not seen him since.”. (e) Drs. Moynham and Nielssen

There are no copies of these reports in the Appeal Book. Dr. Moynham’s report is mentioned briefly at paragraph 50 of the Crown’s written submissions; and not at all in the applicant’s written submissions.

The applicant’s written submissions contain the following reference to Dr. Nielssen’s report: “15. The applicant gave Dr. Nielssen a history of his intoxication at the time of the offences as follows: “Mr. Hill said that the offence occurred after a period of heavy drug and alcohol abuse following the loss of a significant relationship and courier business. He said that he was receiving treatment for depression in the months before the offences. He said that he was intoxicated with a combination of drugs and alcohol at the time of the offences.” (p.2) and later in the report “He said that he remembered doing some work on his car and that as he did so he had several drinks. He said that he then took a box of hayfever tablets and the rest of his setraline tablets, although he said he could not be sure how many he had, or how much he had to drink.” (p.3) 16. He gave a history of having tried to commit suicide on two occasions, once by hanging and once by an overdose of tablets and alcohol (p.3) and a history of blackouts whilst intoxicated (p.5). 17. Dr. Nielssen stated that whilst in custody since the offences, the applicant had continued to suffer from depressive illness, had been treated for a fractured cheek bone (24.7-27.8.99) requiring four weeks in hospital and had attempted suicide by overdose requiring admission to hospital (p.4).

Uninstructed by Twala , I would have been of the opinion that the two murders committed by the applicant were decidedly in the worst case category; and that any mitigation properly to be effected by, in particular, the psychiatric and psychological profile of the applicant, was to be reflected in the subjective features of the applicant’s case, and not in mitigation of the objective criminality of the crimes themselves. Twala seems to me, however, to preclude that approach. It suffices to quote again from the judgment of Badgery-Parker J: “There is no doubt that this was, as emphasised earlier, a violent and horrible killing, but it was a killing clearly influenced (notwithstanding the jury’s rejection of the defence of diminished responsibility) by the mental disturbance of the prisoner resulting from the breakdown of his relationship with his wife upon whom he had become very heavily, even obsessively dependent. The court found it impossible to characterise this as a case falling within the worst category and was of the view that his Honour erred in so regarding it. It followed that the sentence of penal servitude for life was excessive and that a determinate sentence ought to have been fixed.”

If that approach be sound in principle, - and I am not aware that Twala has been over-ruled or doubted, - then, by parity of reasoning, the present applicant’s crimes of murder, influenced as it seems to me they clearly were by a volatile depressive history, exacerbated by alcohol and substance abuse and by unhappy and unstable conditions, cannot be characterised as worst case examples. Such an approach, if I may say so with respectful frankness, seems to me to be unpersuasive in terms of both justice and common sense; but, while Twala stands as good authority, I see no alternative.

That said, it must surely be the case that any mitigation of the seriousness of these two murders must be regarded, if the rule of law is to have any manifest vindication, as minimal. If the two cases are not worst case examples, then in purely objective terms they are, in my opinion, at the very top of whatever is, so to speak, the next category down from the worst case category.

How that assessment should be reflected in sentence cannot be determined properly until there has been a proper evaluation of the relevant subjective features of the applicant’s case. Re-Sentencing by this Court: The Applicant’s Subjective Features

These are: [1] Age : The applicant was born on 13 May 1956. He was aged, therefore, 42 years and about 9 months at the time of the offences. He is aged, now, not quite 47 years. [2] Criminal Antecedents : The relevant antecedents are firearm offences, not involving violence against any person, for which the applicant was sentenced, in November 1997 and in the Local Court, to imprisonment for 3 months. An appeal to the District Court, in Augusut 1998, was successful in having those sentences replaced by a mixture of non-custodial penalties, being a 2 year good behaviour bond and a Community Service Order of 250 hours. The present offences were committed in breach of that bond, a clearly aggravating circumstance. [3] Personal History : The applicant appears to have had a trouble-free childhood, as the eldest of four children. He had no noteworthy difficulties with school, leaving in Year 8. It seems that the applicant had, until the early 1990’s, reasonably stable employment in a number of labouring or semi-labouring types of employment. The applicant married at the age of 19. There were two children, a son now aged 24, and a daughter now aged 22. That marriage broke down; and the applicant obtained custody of the children whom he subsequently reared into, as it would seem, law-abiding citizens. After that marriage breakdown, the applicant lived for 13 years in a de fact relationship. It came to an end abruptly and at the instance of the de facto wife. In about 1996 the applicant entered into another de facto relationship, of which there was issue, one daughter. This lady seems to have been genuinely loved by the applicant; but she was heavily drug-addicted; and the relationship collapsed because, as the applicant was told by her, she loved the drugs more than she loved him. This relationship breakdown appears to have had a profoundly adverse effect upon the applicant. He has described the experience as having his life fall apart. The applicant has had other subsequent relationships, but they do not appear to be particularly stable. The applicant has had some involvement with a well-known biker gang, but it seems that this involvement has not been active, if indeed alive at all, for some time. [4] The Pleas of Guilty These were entered at an early stage. They would require, normally, a discount which acknowledged, and could be seen to acknowledge, the saving of public resources; and very importantly, the avoiding of any further distress to the surviving victims. As to the matter of remorse, there was, in my opinion, not much at all shown by the evidence before O’Keefe J. There is now more evidence on that topic. It is contained in an affidavit affirmed by the applicant on 3 April 2003. The expressions of regret and remorse there advanced come very late in the day, but that is not to say that they are not genuine as far as they go. [5] The Prospects of Rehabilitation O’Keefe J, who saw and heard both of the applicant’s adult children, was greatly impressed by the son. His Honour regarded the son’s evidence as permitting a conclusion that there was at least a faint hope of future rehabilitation. There is, in my opinion, no justification for this Court’s now departing from that conclusion. The applicant’s case seems to me to be one in which it is very difficult to make confident predictions about future rehabilitation. The psychiatric and psychological profiles which emerge from the expert opinion evidence earlier quoted seem to me to indicate that the applicant will need, at the very least, long, patient and sustained treatment before he could be considered responsibly as fit for release back into the general community. It is fair to add that the affidavit evidence tendered on re-sentencing does in fact suggest that such treatment, if maintained prudently, could well lead in time to significant rehabilitation. [6] Circumstances of the Applicant’s Present Detention These are in some ways particularly burdensome to the applicant. He is in strict protection, and is likely to remain so classified for some time at least. This entails practical burdens which are described tellingly in the applicant’s affidavit earlier herein mentioned. Further light is shed upon this topic by the relevant prison clinical records. These show that the applicant, while in custody on 22 July 1999, was seriously assaulted. He suffered a fractured cheek-bone requiring an operation to insert pins necessary in order to restore his zygoma. The notes also contain references to suicidal ideation. Re-sentencing by this Court : Balancing Objective Criminality and Subjective Considerations

It is useful, in the present case, to commence with the following extract from the judgment of this Court, (Gleeson CJ, Lee CJ at CL, Hunt J), in Reg v Dodd (1991) 57 A Crim R 349 at 354: “As Jordan CJ pointed out in Geddes at 556, making due allowance for all relevant considerations, there ought to be a reasonable proportionality between a sentence and the circumstances of the crime, and we consider that it is always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offence viewed objectively, for without this assessment the other factors requiring consideration in order to arrive at the proper sentence to be imposed cannot properly be given their place. Each crime, as Veen (No. 2) (1988) 164 CLR 465 at 472; 33 A Crim R 230 at 234 stresses, has its own objective gravity meriting at the most a sentence proportionate to that gravity, the maximum sentence fixed by the legislature defining the limits of sentence for cases in the most grave category. The relative importance of the objective facts and subjective features of a case will vary: see, for example, the passage from the judgment of Street CJ in Todd [1982] 2 NSWLR 517 quoted in Mill (1988) 166 CLR 59 at 64; 36 A Crim R 468. Even so, there is sometimes a risk that attention to persuasive subjective considerations may cause inadequate weight to be given to the objective circumstances of the case: Rushby [1977] 1 NSWLR 594. We consider that to have happened here. In our view the requirement of a reasonable proportionality with the circumstances of crime called for a significant full-time custodial sentence.”

It will be apparent from what I have said earlier herein that, were it not for what I take from the decision in Twala , I would have dealt with the two murders committed by the applicant as worst case examples. Because of what I believe to be the essential reasoning in Twala , I do not believe that the correctly principled striking of a balance of objective criminality with subjective mitigating circumstances can properly result in a head sentence of life imprisonment.

That said, however, I have no doubt that the applicant’s case is one in which determinate sentences must reflect in a real way, and particularly in connection with the two murders, the sheer, chilling enormity of those crimes. The murder of Mr. Watson, in particular, was in my opinion so brutal and callous a crime as to call for a sentence of exemplary severity.

When proper account is taken of the true objective culpability of, in particular, the two murders, then the properly principled weighting of the subjective features of the case cannot have anything other than minimal effect. To approach this case by setting a determinate sentence, and by then cutting it by figures in the order of 20 – 25 per cent for the pleas of guilty; and by then cutting further to allow for other subjective matters, could not be thought sensibly as being likely to cement public confidence in, and public respect and support for, the rule of law. If anything, such an approach would be much more likely to subvert all of those objectives.

I have come, accordingly, to the conclusion that a proper head sentence for the murder of Mr. Watson would be one of imprisonment for 30 years. I would not find special circumstances; not because there are no matters capable in law of amounting to special circumstances, but because to give normal effect to them would entail, in my opinion, a non-parole period that was wholly inadequate to denounce, to punish and to deter two truly dreadful crimes. I would set a non-parole period for this offence of 25 years.

For the murder of Mr. O’Shea, I would fix a head sentence of 28 years, with a non-parole period of 23 years.

I would see no reason to interfere with the remaining two sentences passed upon the applicant by O’Keefe J. Those two offences, also, were in my opinion, if not worst case examples, then at the very top of the next-most serious level of offences of that kind.

As to whether the sentences thus set should be wholly cumulative, wholly concurrent, or partly cumulative and partly concurrent, I think that justice would be served by making all four sentences concurrent. A total effective penalty of imprisonment for 30 years with a non-parole period of 25 years, passed upon a man who is at present aged almost 47 years, would seem to me to meet, with practical justice, the proper requirements of the principles of totality and of proportionality. Orders

In my opinion the Court should order: [1] that leave be granted to appeal against all four sentences passed upon the applicant in the Court below; [2] that the appeals against the sentences thus passed for the two offences of murder be allowed, and that those sentences be quashed; [3] that in lieu the applicant should be sentenced: 3.1 for the murder of Mr. Watson, to imprisonment for 30 years to commence on 24 February 1999 and to expire on 23 February 2029; with a non-parole period of 25 years to commence on 24 February 1999 and to expire on 23 February 2024; 3.2 for the murder of Mr. O’Shea, to imprisonment for 25 years to commence on 24 February 1999 and to expire on 23 February 2024; with a non-parole period of 23 years to commence on 24 February 1999 and to expire on 22 February 2022 [4] that the appeals against the sentences passed in the Court below in respect of the two contraventions of section 33A of the Crimes Act 1900 (NSW) be dismissed.

LEVINE J: I agree with Sully J

BUDDIN J: I have had the advantage of reading in draft form the judgment of Sully J. I agree with the orders which his Honour proposes and am in substantial agreement with his Honour’s reasons therefore. I wish only to add some brief observations of my own.

As Sully J has observed, it is common ground that the sentencing judge erred in setting a non-parole period with an additional term of life imprisonment. It may be noted that his Honour’s remarks on sentence predated this Court’s decision in R v Harris (2000) 50 NSWLR 409. It would also appear that his Honour was led into this error by counsel at the sentencing hearing. Having acknowledged that error, I wish to add my voice to those who have previously expressed the view that there would be merit in permitting a court, in appropriate cases, to fix a non-parole period where an offender is sentenced to life imprisonment. See for example Harris at 429 – 431. One can thus readily sympathise with what the sentencing judge was endeavouring to achieve in the present case.

Nonetheless I agree with Sully J that it is necessary in the circumstances of the present case for this Court to intervene and proceed to re-sentence the applicant.

So far as the objective seriousness of the various offences is concerned, it would be quite impossible to regard the tragic series of events, for which the applicant was responsible, as doing other than reveal criminality of a very high order. Indeed the circumstances of the murder of Mr Watson were, as Sully J has observed, particularly heinous. Accordingly very lengthy sentences of imprisonment must be imposed. That having been said, I see no reason to doubt the approach taken by this Court in Twala (NSWCCA unreported, 4 November 1994). I would be particularly reluctant to do so in the absence of submissions and full debate upon the matter. Twala has, in any event, been followed in a number of cases including Harris itself (at 423).

In my respectful view, Sully J has identified those subjective matters upon which the applicant was entitled to rely in order to ameliorate the otherwise appropriate sentence. I would not however, as his Honour has, describe the subjective features as having “anything other than minimal effect”. In particular, in my view, the pleas of guilty entitled the applicant to an appropriate discount. In some cases, the heinousness of the offence(s) will be so great that no discount for the plea(s) of guilty can be countenanced. See R v Thomson & Houlton (2000) 49 NSWLR 383 at 418. The primary judge did not conclude that this was such a case. Nor would I.

Moreover the Crown Prosecutor accepted that the applicant had pleaded guilty at the “earliest appropriate opportunity and in addition he handed himself in to police after initially fleeing from the scene”. Indeed the applicant pleaded guilty upon arraignment. That is a matter of no little significance particularly given the seriousness of the offences which he was facing. Furthermore it is quite apparent that the pleas of guilty came after there had been negotiations between the parties concerning the two offences not involving homicides. It was that circumstance that no doubt prompted the Crown Prosecutor’s remark about the timeliness of the pleas.

As Sully J has observed, it is also necessary to bring into account the fact that the applicant is now, and presumably will remain, in strict protection. That is a matter of some moment given that the applicant is going to be spending a very lengthy period of time in custody.

Nevertheless, as the passage in Dodd to which Sully J refers makes clear, subjective circumstances cannot, particularly in a case such as this, be permitted to cause “inadequate weight to be given to the objective circumstances of the case”.

I agree with Sully J that when proper effect is given to the principles which relevantly govern the present sentencing exercise, including the need to appropriately denounce the applicant’s criminality, then an overall effective sentence of 30 years’ imprisonment is called for.

In R v Simpson (2001) 53 NSWLR 704, Spigelman CJ said that “the non-parole period is to be determined by what the sentencing judge concludes that all of the circumstances of the case, including the need for rehabilitation, indicate ought to be the minimum period of actual incarceration” (at 717). Accordingly I agree with Sully J that nothing less than an overall non-parole period of 25 years’ can be contemplated. Nor do I think, particularly given the applicant’s likely age when he is eventually released, that a period on parole of more than five years is warranted in his case.