R v Constantinou [1999] NSWSC 520

Reported Decision : 108 A Crim R 73

New South Wales Supreme Court CITATION : R v Constantinou [1999] NSWSC 520 CURRENT JURISDICTION : Criminal FILE NUMBER(S) : L00012/92 HEARING DATE(S) : 07/05/99 JUDGMENT DATE : 4 June 1999

PARTIES : Regina v Sam Constantinou JUDGMENT OF : James J

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 83/09/340 LOWER COURT JUDICIAL OFFICER : Lusher J

COUNSEL : CK Maxwell QC (Respondent) JW Conomos (Applicant) SOLICITORS : P Thompson (Respondent) Jack Rigg (Applicant) CATCHWORDS : Criminal Law and Procedure - Life Sentence Redetermination ACTS CITED : Sentencing Act DECISION : Application granted

THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

JAMES J

4 June 1999

L012/92 REGINA v Sam CONSTANTINOU

JUDGMENT 1 HIS HONOUR: This is an application by Sam Constantinou pursuant to s13A of the Sentencing Act that the Court set minimum terms and additional terms to replace three sentences of imprisonment for life, which were imposed on the applicant by Lusher J on 24 September 1984, after the jury in a trial conducted before Lusher J had found the applicant guilty of the murder of John Thomas Gibson at Marrickville on 14 October 1982, of the murder of Leonard Herbert Carey at Camperdown on 26 November 1982 and of the murder of Michael John Condon Brown at Lilyfield on 10 December 1982. At the trial the applicant was also found guilty of four charges of robbery with striking and wounding of four other victims, all of these offences having been committed on 10 December 1982 and a charge of robbery with striking on 17 December 1982. 2 The applicant was tried jointly with a co-offender, Christopher Hatziathanasiou, on the charges of murdering Mr Gibson and Mr Brown. Hatziathanasiou was found guilty on both charges of murder. Hatziathanasiou had pleaded guilty to four charges of robbery with striking and wounding, committed with the applicant. Hatziathanasiou also pleaded guilty to nine other charges of robbery with striking and wounding, one charge of assault with intent to rob with striking and wounding and one charge of robbery in company. 3 The applicant did not dispute the statement of the facts of the cases of murder contained in the notice filed by the Director of Public Prosecutions pursuant to Practice Note 57 and the following statement of the facts of the offences and the course of the criminal proceedings against the applicant is taken from the notice filed by the Director and from the recorded interviews of the applicant on 9 and 10 January 1983. Murder of Mr Gibson 4 As I have already stated, the victim, John Thomas Gibson was murdered on 14 October 1982. On the afternoon of 14 October 1982 the applicant met the co-offenders Hatziathanasiou, a youth named Boland and a juvenile named Vassilakis at a milk bar at Earlwood. The group discussed obtaining money for the purchase of heroin by robbing some one. The group travelled by bus to Marrickville Railway Station and then walked in the direction of Marrickville R.S.L Club. When questioned by police on 9 January 1983 the applicant said, "we were walking along the road… I saw an old bloke walking through the park and Arthur (Boland) or George (Vassilakis), I don't know who it was, said, 'there's a mug'". I interpolate to say that I understand what was said to mean that the old man, who was Mr Gibson, was thought to be a suitable target for a mugging. Mr Gibson was seventy-two years old. The applicant continued in his answers to the police as follows:- "We followed him across into the park and I pushed him to the ground and then reached for his pockets… I got some money out of his pockets, I think it was two or three dollars". 5 The applicant, Hatziathanasiou and Vassilakis lifted the victim up and placed him behind a park bench. The four offenders then left the park, having been disturbed by passers by. The offence was committed in daylight. 6 The post mortem examination of the deceased revealed extensive fractures of the skull and nasal bones. The cause of death was found to be haemorrhages due to the skull fractures. 7 When interviewed by the police, the applicant, while admitting that he had pushed Mr Gibson over, denied that he had kicked Mr Gibson. 8 Vassilakis, who, as I have said, was a juvenile, had already been dealt with for his part in this offence by the time of the applicant's trial. Boland, who was tried at the same time as the applicant and Hatziathanasiou was found guilty of the manslaughter of Mr Gibson. 9 In his remarks on sentence delivered on 24 September 1984 Lusher J simply found:- "As he (Mr Gibson) walked through the park, Constantinou ran at him from behind, pushed, shoved or held him to the ground, where he was kicked, robbed". 10 His Honour made no finding about who did the kicking. Murder of Mr Carey 11 Shortly after midnight on 25 November 1982 the applicant, who was alone, was sitting on a bench at Annandale, when he observed Mr Carey, who was sixty-five years old, walking along Parramatta Road. The applicant followed Mr Carey for over 500 metres, until he turned into a lane. The applicant then ran up behind Mr Carey, pushed him heavily in the back and punched him, causing him to fall to the ground. As Mr Carey attempted to get up, the applicant punched him about the head, until Mr Carey fell unconscious to the ground. While the applicant was searching Mr Carey's pockets, he was disturbed by a barking dog. The applicant took Mr Carey's wallet, ran to a nearby street, extracted about $50 in cash from the wallet and threw the wallet away. 12 The pathologist who conducted the post mortem examination of the deceased observed that Mr Carey had substantial abrasions and brain injuries and formed the opinions that the abrasions were consistent with blows from a fist and that the brain injuries could have been caused by the victim's head striking the ground. Robbery Offences 13 Between 9.30 pm and 11.00 pm on 10 December 1982 the applicant and Hatziathanasiou robbed four men in the Annandale/Glebe area. They used the applicant's motor cycle as a means of transport. Three of the victims were elderly men and the other victim was a man in his thirties. Three of the victims were assaulted and robbed by the applicant, while Hatziathanasiou kept watch. The other victim was initially assaulted by the applicant but Hatziathanasiou then kicked and robbed the victim. All the victims suffered head injuries of some kind. Murder of Mr Brown 14 The victim of the third murder, Mr Brown, was murdered later on the same night, that is the night of 10 December 1982. Shortly after 11.00 pm the applicant and Hatziathanasiou travelled on the applicant's motor cycle to a part of Annandale. There they kept three elderly men, who were walking together, under observation. After the three men had separated, the applicant and Hatziathanasiou selected one of the men, Mr Brown, who was sixty-three years old, as the target for a robbery. The applicant and Hatziathanasiou followed Mr Brown on foot for some distance. Both the applicant and Hatziathanasiou then ran up behind Mr Brown. The applicant pushed Mr Brown heavily in the back and punched him in the head, causing him to fall face forward to the roadway. The applicant and Hatziathanasiou moved Mr Brown to a nearby street, searched his clothing and took about $80 from his pockets. 15 Mr Brown's body was later found, lying in a pool of blood. A post mortem examination of Mr Brown's body revealed extensive fractures to his nose and skull, which could have been caused by his face striking the roadway. The doctor who performed the post mortem examination considered that the immediate cause of death was the inhalation of blood from the nose and skull fractures. 16 When interviewed by police on 9 January 1983, the applicant said, "I ran up behind a man and I saw he did not have a wallet in his hip pocket, so I hit him from behind with my fist… he fell down on the road. I pinned him while he was struggling and went through his pockets". Robbery with Striking 17 The offence of robbery with striking was committed on 17 December 1982. The applicant followed the victim to his home. When the victim had arrived at his front door, the applicant tapped him on the shoulder. As the victim turned the applicant punched him on the jaw, rendering him unconscious. The applicant took $15 and a cigarette lighter from the victim. 18 The applicant was arrested on 9 January 1983 and has been continuously in custody ever since. 19 In his summing-up to the jury at the trial the trial judge identified as the act which on the Crown case caused the death of each victim as being "the act of running a man down from behind, in effect so that he does not see you and so striking him and he goes to the ground". At the trial the Crown, under the provisions of s18 of the Crimes Act as then in force, relied on two heads of murder, contending that the act causing death was done in each case, either with reckless indifference to human life, that is with the knowledge that it was probable that death would result, or during or immediately after the commission of a crime punishable by death or penal servitude for life, such as robbery with striking and wounding (that is felony murder). The Crown did not allege that any of the accused had acted with an intention to kill or with an intention to inflict grievous bodily harm. The trial judge also gave the jury directions about common purpose, including a direction that an accused who did not himself do the act causing death would nevertheless be guilty of murder, if that act was within his contemplation as an act which might be done in the course of carrying out a common purpose to which he was a party. 20 In his remarks on sentence Lusher J described the nature of the offences as being "to select some elderly man, follow him and then on getting close to him to run fast at him from behind, either to push or hurl him to the ground and then rob him". 21 In his remarks on sentence Lusher J did not make any finding about the basis on which the applicant was to be regarded as having murdered the victims. In my opinion, the applicant should be regarded in all cases as having committed felony murder. The case against him that he had committed felony murder was overwhelming. On the other hand, it would, in my opinion, be difficult to be satisfied beyond reasonable doubt that the applicant foresaw that it was probable that death would result from an act performed in carrying out the common purpose of robbery with striking. Among other considerations the applicant had committed a number of robberies without a weapon but with striking and wounding, where the death of the victim had not resulted. 22 In his remarks on sentence Lusher J referred to the applicant's subjective circumstances. The applicant was born on 1 April 1963. His parents were Greek Cypriots. The applicant had convictions in the Children's Court and convictions in 1982 but his Honour stated that none of those offences had any effect upon his Honour in dealing with the matters he was concerned with. The applicant had had an unfortunate history at school and had been asked to leave school, following an altercation with a teacher. He had had various jobs as a bricklayer and labourer but had been dismissed on grounds of unsuitability, poor attendance and suspected drug use. 23 The applicant began taking drugs when he was eleven years old. In his teenage years he experimented with drugs and by the age of eighteen he was addicted to heroin. Lusher J found that the applicant "presented as rebellious and undisciplined with a lifestyle that was irresponsible and without direction and had descended to the pursuit of excitement and enjoyment through alcohol and drug abuse". 24 Lusher J after reviewing the subjective circumstances of the applicant and Hatziathanasiou continued as follows:- "The whole picture presented by these two young men is, of course, a devastating one. It is sad and sickening to relate it. They are both fine looking, well built young men. In another time and circumstances they would no doubt have been fine young citizens". 25 At the time at which Lusher J sentenced the applicant and Hatziathanasiou, the penalty for murder was imprisonment for life, unless it appeared to the sentencing judge that the prisoner's culpability was "significantly diminished by mitigating circumstances". Lusher J found that there were no such mitigating circumstances in the case of either the applicant or Hatziathanasiou. His Honour then proceeded to sentence the applicant to penal servitude for life on each of the three charges of murder and to concurrent terms of imprisonment for ten years on all the charges of robbery with striking and wounding or with striking. Hatziathanasiou was sentenced to penal servitude for life on each of the two charges of murder of which he had been convicted and, with one immaterial exception, to concurrent terms of imprisonment for ten years on all of the charges of aggravated robbery. 26 As I have already stated, the applicant's application was made as long ago as 26 July 1992. A report of the Serious Offenders Review Board concerning the applicant was made on 11 November 1992. I have read and have taken into account this report and all the annexures to the report. The summary-conclusion at the end of this report included the following:- "Until fairly recently Constantinou's gaol history has been unstable. For a long time there was no progress or any attempt on the prisoner's part to come to terms with his problems. He must face these before he is to become an acceptable member of the community at large. He has close family ties". * * * "He has been a heroin addict, undisciplined and rebellious. He is now making good progress. He still has to make more progress but, if his present behaviour continues to improve, hopes for the further down grading his security and for preparing him in due course to the community are real". 27 Because of the long delay in the applicant's application coming before the Court, a supplementary report of the Serious Offenders Review Council authenticated on 9 March 1999 was prepared. I have read and have taken into account this report and all the annexures to this report. At the end of the report the Serious Offenders Review Council commented as follows:- "This supplementary report outlines Constantinou's progress in custody since 1994. His admissions to the Special Care Unit and the Violence Prevention Programme are evidence of a willingness to address issues associated with his criminal activity. In spite of his being the target of numerous allegations there has been little concrete evidence to substantiate the suspicions of authorities. There is support, however, for the view that he is manipulative and that his motivations may be open to question". 28 Mr Saxby, the secretary of the Serious Offenders Management Committee, gave brief evidence at the hearing of the application. Mr Saxby said that on 14 September 1998 the applicant's classification as a prisoner was reduced to C1 and it has remained at C1. 29 The applicant has been in custody in the Industrial Training Centre since August 1998. A memorandum from the Acting Governor of the Industrial Training Centre dated 5 May 1999 contained the following passages:- "(1) In the period of time Sam Constantinou has been at the I.T.C he has without doubt kept a low profile. * * * By and large… his conduct has been quite good both from an officer and inmates' point of view. (2) Sam has completed the KAIROS course and has demonstrated a preparedness to undertake personal development. In many ways all he has known since his late teens is prison. "Prison" has dictated much of his thinking and interaction with officers, other inmates and also those that visit him. Understandably this institutionalisation of Mr Constantinou has made it very difficult for him to learn the many coping mechanisms and behavioural models that most of us take for granted. (3) Consideration for a sentence determination at this time I feel is appropriate and would give him an opportunity to be placed on a programme that would eventuate in his ultimate progression to a C3 classification. That is not saying that he, Constantinou, will get it easy, without doubt this period will be a difficult transitional stage and require a considerable amount of counselling and a preparedness to undertake personal development courses". 30 While in custody the applicant has in fact completed a number of courses, including personal development courses. 31 No psychiatric or even psychological evidence about the applicant was placed before me, even though some of the documents which were admitted into evidence disclose that he has been seen by psychologists while in the Industrial Training Centre. Senior counsel for the applicant said that it was apparent from the reports of the Serious Offenders Review Board and the Serious Offenders Review Council that the applicant had had his "ups and downs" within the prison system and it had been considered by him that any further material would not be helpful to me. 32 The applicant gave evidence on the hearing of the application. He said that he was the eldest of the three children of Greek Cypriot parents. His mother, sister and brother were in Court on the hearing of the application. His father is in Cyprus. The applicant gave evidence that in February 1999 he had married within the prison system a young woman, whom he had known for twenty years and by whom he had had a child born in May 1995. From soon after the applicant's arrest and until he was sentenced, he was in protective custody but the applicant has not since been in protective custody. The applicant said that he would undertake the considerable amount of counselling and the personal development courses referred to in the memorandum of the Acting Governor of the Industrial Training Centre. 33 According to a letter from the Department of Corrective Services, the concurrent terms of penal servitude for ten years imposed on the applicant for the offences of aggravated robbery expired on 29 March 1989 and as at the date of the hearing of this application the applicant had served a period of ten years one month eight days exclusively referable to the sentences for murder. 34 As is usual, the office of the Director of Public Prosecutions communicated with the relatives of the deceased victims. The widow of Mr Brown replied, opposing the granting of the present application. 35 An application under s13A of the Sentencing Act made by the co-offender Christopher Hatziathanasiou on 1 April 1991 was heard and determined by me in 1995. I granted Hatziathanasiou's application and set minimum terms and additional terms to replace the original sentences of imprisonment for life for the murders of Mr Gibson and Mr Brown. For each of the two murders Hatziathanasiou was sentenced to a minimum term of penal servitude of twenty years commencing on 6 January 1983, being the date on which Hatziathanasiou was first taken into custody, and expiring on 5 January 2003, that being the earliest date on which he would be eligible for release on parole, and an additional term of six years, the sentences to be served concurrently. 36 No appeal was brought from my decision on Hatziathanasiou's application and the redetermined sentences for Hatziathanasiou stand. 37 Because of parity arguments which have been advanced on the hearing of the present application, it is important to note some of the findings I made in determining Hatziathanasiou's application. Hatziathanasiou, of course, was not involved at all in the murder of Mr Carey. As to the murders of Mr Gibson and Mr Brown, I noted that at the trial the Crown had accepted that Hatziathanasiou did not have an intention to kill or to inflict grievous bodily harm and I found that he did not foresee that it was probable that either victim would die. I found that the actual perpetrator of most, at least, of the physical violence was Constantinou, and not Hatziathanasiou. I found that Hatziathanasiou was to be regarded as being sentenced in each case, on the basis that it was within his contemplation that his co-offender Constantinou, in carrying out the common purpose of robbing the victim with striking, would do acts, which in fact caused the victim's death. 38 Hatziathanasiou is about the same age as Constantinou; he is in fact a few months older, having been born in August 1962. Unlike the present applicant, Hatziathanasiou had spent most of his sentence on protection, in more than usually onerous conditions of imprisonment. In Hatziathanasiou's case I had the advantage of a psychiatric report from Dr Westmore. I found that there were some prospects of rehabilitation for Hatziathanasiou. 39 The applicant's application, having been made as long ago as July 1992, is not subject to the amendments to s13A of the Sentencing Act which came into effect on 21 November 1993. Under ss(4) of s13A the court may set a minimum term and an additional term to replace an original sentence of imprisonment for life or decline to determine a minimum term and an additional term. Under ss(9) the court is to have regard to:- "(a) The knowledge of the original sentencing court that a person sentenced to imprisonment for life was eligible to be released on licence under s463 of the Crimes Act 1900 and of the practice relating to the issue of such licences; and (b) Any report on the person made by the Serious Offenders Review Board and any other relevant reports prepared after sentence (including, for example, reports on the person's rehabilitation), being in either case reports made available to the Supreme Court; and (c) Any relevant comments made by the original sentencing court when imposing the sentence, and may have regard to any other relevant matter". 40 I have already discussed and I have had regard to the reports of the Serious Offenders Review Board and the Serious Offenders Review Council and the remarks on sentence of Lusher J. I have also had regard to the matters referred to in par(a) of ss(9). 41 The principles to be applied by a court hearing an application under s13A of the Sentencing Act have been stated in a number of cases, some of which are referred to in my judgment of 25 October 1995 in Hatziathanasiou's case. Without attempting to state all of the relevant principles, I will simply note some of them. 42 1. The principles to be applied in sentencing for murder under s19A of the Crimes Act are generally applicable, except that a court on an application under s13A is able to take into account all that has happened to the applicant since he was originally sentenced. 43 2. In general at least, an application under s13A should be refused, only if the judge hearing the application considers that a sentence of penal servitude for life would be appropriate, that is only if the judge considers that the case falls within the worst category of cases of murder. A case falling within the worst category of cases is a case dealing with the worst type of offence committed by the worst type of offender (R v Boyd (1995) 81 A Crim R 260 at 264). 44 (3) A judge is prohibited from adopting a two tiered process of sentencing and is required to draw together the relevant objective and subjective circumstances (R v Twala (unreported Court of Criminal Appeal 4 November 1994). However, a judge is entitled to consider sequentially the arguments for and against a conclusion that the case before him is a case of the worst type (R v Garforth (unreported Court of Criminal Appeal 23 May 1994). 45 (4) If a judge decides to set a minimum term, then in setting a minimum term a judge fixes the minimum period which the prisoner must serve in prison. On the expiration of the minimum term set by the judge the offender will be eligible for release on parole but he will not be entitled to be released on parole unless a parole order is made by the Parole Board and the Board is not to make a parole order unless the Board has inter alia determined that the release of the offender is appropriate, having regard to the principle that the public interest is of primary importance. 46 (5) By virtue of the provisions of s13A(5) it is not possible to impose cumulative sentences on an application under s13A. Consequently, where, as in the present case, more than one sentence was imposed by the original sentencing judge, then, if the application is granted, the longest of the sentences imposed by the judge hearing the s13A application must reflect the totality of the criminality in all of the offences committed by the offender, including the offences for which determinate sentences were originally imposed. 47 At the hearing of this application senior counsel appearing for the Crown opposed the application that I should set determinate sentences to replace the sentences of imprisonment for life originally imposed. Counsel submitted that the three murders which the appellant had committed fell within the worst category of cases of murder, for which the appropriate sentences would be sentences of imprisonment for the remainder of the offender's life. Counsel pointed to the facts that there were three murders, and not merely one; that they were committed on separate occasions; that two of the murders were committed in company; and that the applicant and his co-offender were strong young men and the victims were elderly, defenceless persons. 48 A submission was made on behalf of the Crown that I should find that the applicant at least had the intention to inflict grievous bodily harm on the victims. It was contended that it would have been apparent to the applicant that it was unlikely that any of the victims were carrying much money and that I should not accept that the purpose of the assaults was to rob the victims, as distinct from injuring them. 49 However, at the trial the Crown did not contend that the applicant had the intent to kill or do grievous bodily harm to any of the victims and in his remarks on sentence Lusher J found, notwithstanding the small, and even trifling, amounts of money actually taken from the victims, that the applicant's motive in assaulting the victims was to obtain money for drugs. In these circumstances, as in the case of Hatziathanasiou, I find that the applicant had no intention to kill or to inflict grievous bodily harm on any of the victims. 50 Senior counsel for the Crown accepted that the youth of an offender is a relevant factor in sentencing and that the applicant at the time of committing the offences was only nineteen years old. However, counsel pointed to recent decisions of the Court of Criminal Appeal R v Leonard (unreported Court of Criminal Appeal 7 December 1998) and R v Fernando (unreported Court of Criminal Appeal 14 April 1999), in which life sentences for murder imposed on offenders only a few years older than the applicant had not been disturbed on appeal. 51 It was submitted on behalf of the Crown that, while it could be that the applicant had some prospects of rehabilitation, the existence of some prospects of rehabilitation will not necessarily prevent a case falling within the worst category of cases, for which the only appropriate sentence is imprisonment for life. 52 Senior counsel for the Crown submitted that it was of concern that there was no psychiatric evidence about the applicant. 53 It was submitted on behalf of the Crown that the applicant's case could be distinguished from Hatziathanasiou's case, in which I had allowed the application to set determinate sentences, on the basis that the applicant had committed three murders, and not two, and that the applicant had been the perpetrator of most at least of the physical violence, Hatziathanasiou having been treated as criminally liable under the doctrine of common purpose. 54 What was described as a "fall back" submission was made by the Crown that, if the application was granted and determinate sentences set, a very substantial minimum term should be set with an additional term for life. Reference was made by the Crown to R v Rees (unreported Court of Criminal Appeal 23 September 1995 and R v McCafferty (unreported New South Wales Supreme Court 15 October 1991), in both of which an application under s13A of the Sentencing Act by an applicant who had committed three murders was granted and determinate sentences set. 55 Senior counsel for the applicant submitted that I should accept that all the murders were felony murders, the applicant not having intended to kill or to inflict really serious bodily injury. The murders had been committed on separate occasions but, it was submitted, during one period of criminality extending over a couple of months. The applicant was nineteen years old at the time the offences had been committed and has been continuously in custody since he was nineteen. It was submitted that the applicant has some prospects of rehabilitation and that the comment in the report of the Serious Offenders Review Council and the remarks of the Acting Governor of the Industrial Training Centre were, to some extent at least, favourable to the applicant. 56 As to parity, it was submitted by senior counsel for the applicant that, notwithstanding such differences as might exist between their cases, the applicant would have a legitimate sense of grievance, if, Hatziathanasiou's application having been granted, the applicant's application was refused. It was submitted that the applicant should receive a minimum term of the same length as that set for Hatziathanasiou and that, if there was to be any difference in the sentences passed on the two offenders, that difference should be limited to a longer additional term in the case of the applicant. 57 It is clear that the objective circumstances of the crimes of murder were very serious, for the reasons given by the Crown. 58 I am satisfied that the applicant's case is worse that Hatiathanasiou's case. The applicant was convicted of three murders; Hatziathanasiou was convicted of two murders. The additional murder more than offsets the additional offences of aggravated robbery to which Hatziathanasiou pleaded guilty. The applicant was the perpetrator of at least most of the physical violence to which the victims were subjected, whereas Hatziathanasiou was dealt with on the basis that he was liable under the doctrine of common purpose. Hatziathanasiou had spent most of his sentence on protection, in more than usually onerous conditions of imprisonment, whereas the applicant, apart from a period between being arrested and sentenced, has not been on protection. In Hatziathanasiou's case there was some psychiatric evidence; in the applicant's case there is no psychiatric evidence. Accordingly, as the applicant's case is worse than Hatziathanasiou's case, the applicant should be dealt with more severely than Hatziathanasiou. 59 The question for decision is whether, in accordance with the Crown's primary submission, the applicant's application should be refused, on the ground that the case falls within the worst category of cases of murder involving offences of the worst type. 60 I have concluded, after anxious consideration, that I should grant the application. I am aware of the need to avoid a two tiered process of sentencing but I should indicate the factors which have led me to my conclusion. 61 In my opinion, notwithstanding the decision of the Court of Criminal Appeal in R v Mills (unreported Court of Criminal Appeal 3 April 1995) it is a mitigating factor, even if only slight, that in no case did the applicant intend to kill or to inflict really serious bodily injury or foresee the probability of death. 62 The offences were committed when the applicant was nineteen years old and he has been in gaol since he was nineteen. His youth is relevant, both because of his immaturity at the time of committing the offences and the severity to him of a sentence for the rest of his life. If the applicant is to serve a life sentence, he could spend upwards of fifty years or more in prison. I appreciate that in a proper case a judge is required to impose a life sentence on an offender as young as the applicant, however severe the impact of the sentence on the offender. However, the youth of the applicant at the time of committing the offences and at the time of entering into custody is a matter I should take into account. 63 I find that the applicant has some prospects of rehabilitation and the memorandum by the Acting Governor of the Industrial Training Centre offers some encouragement. 64 In my opinion, there is some force in the argument based on parity. Hatziathanasiou's application was granted and under the determinate sentences set Hatziathanasiou is eligible for release on parole in January 2003, when he will be forty years old, and he will be entitled to be released no later than January 2009, when he will be forty-six years old and, if not earlier released, would have served twenty-six years in gaol. Even though there are differences, and important differences, between the cases of Hatziathanasiou and the applicant, which should be reflected in the applicant receiving severer sentences, I have concluded that the differences are not such as to warrant a situation where Hatziathanasiou will be released from custody at some stage in his forties, while the applicant will be kept in custody, with no prospect of ever being released, even if he lives to the age of sixty or seventy or more. As noted by the Crown, there have been cases in which applications by triple murderers have been granted. See McCafferty and Rees. 65 In setting a minimum term I take into account inter alia that in setting a minimum term I am fixing the minimum term of imprisonment which the applicant must serve before becoming eligible for release on parole and that whether, and when, the applicant will be released on parole depends on the Parole Board deciding that it should make a parole order. In all the circumstances, including that it was the applicant who was the perpetrator of at least most of the violence to which the victims were subjected, I should set an additional term for the remainder of the applicant's life. 66 I have concluded, taking into account the objective facts of the murders, the facts of the offences of robbery and the sentences imposed for them, the subjective circumstances of the applicant before and after he was sentenced, the terms of s13A including the matters I am required to take into account, and the principles of sentencing which I have stated or referred to, I should impose the following sentences. 67 Mr Constantinou for each of the murders of John Thomas Gibson, Leonard Herbert Carey and Michael John Condon Brown, I sentence you to a minimum term of penal servitude of thirty years commencing on 9 January 1983 and expiring on 8 January 2013, that being the earliest date on which you will be eligible for release on parole and an additional term for the remainder of your life, the sentences to be served concurrently. - - - -