Regina v Short [1999] NSWSC 430

New South Wales Supreme Court CITATION : Regina v Short [1999] NSWSC 430 CURRENT JURISDICTION : Criminal Division FILE NUMBER(S) : 70077/97 HEARING DATE(S) : 23/11/98 - 14/12/98 JUDGMENT DATE : 7 May 1999

PARTIES : Regina Jay William Short JUDGMENT OF : Sully J

COUNSEL : David Thompson QC - Crown Peter Zahra - Defence SOLICITORS : Crown Solicitor Legal Aid of NSW CATCHWORDS : Criminal law - sentencing principles - indeterminate life sentence for murder - principles applicable. ACTS CITED : Crimes Act s.19A, s. 431B CASES CITED : Reg. v Garry Zane Glasby (Sully J: unreported; 11 June 1998) and cases therein referred to, ref. and foll. DECISION : For Murder - penal servitude for 20 years, apportioned between a minimum term of 16 years and an additional term of 4 years. Minimum term will commence on 3/3/97 and expire on 2/3/2013; for Robbery with Corporal Violence - Penal servitude for 5 years to commence on 3/3/97 and expire on 2/3/2002; for Assault occasioning Actual Bodily Harm - Penal servitude for 2 years to commence on 3/3/97 and expire on 2/3/99.

22 SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

SULLY J

7 May 1999

70077/97 - REGINA v JAY WILLIAM SHORT

JUDGMENT - ON SENTENCE

HIS HONOUR: Introduction 1 On 23 November 1998 Jay William Short, ["the prisoner"], was presented for trial in this Court and upon an indictment containing three counts. 2 The first count charged that the prisoner, on 2 March 1997 at Lithgow, had murdered one Alison Marie Lewis. Such a crime contravenes section 19A of the Crimes Act 1900 (NSW), ["the Act"], and attracts a statutory maximum penalty of penal servitude for the term of the offender's natural life. 3 The second count charged that the prisoner, on 2 March 1997 at Lithgow, had robbed one Melanie Spillane of certain of her property, namely a handbag containing money and other personal items, and that he had used, at that time, corporal violence on that victim. Such a crime contravenes section 95 of the Act and attracts a statutory maximum penalty of penal servitude for 20 years. Where the particular corporal violence results in an actual wounding of the victim, or in the actual inflicting upon the victim of grievous bodily harm, section 96 of the Act increases the statutory maximum penalty to one of penal servitude for 25 years. 4 In the case of Mrs. Spillane, the corporal violence allegedly used against her caused both wounding and grievous bodily harm; and the normal endorsement on the cover sheet of the indictment refers in fact to section 96 of the Act. The count actually charged is framed, however, in terms appropriate to section 95 of the Act; and I proceed for present purposes upon the footing that section 95, rather than section 96, is the correct point of statutory reference. 5 The third count charged that the prisoner, on 2 March 1997 at Lithgow, had assaulted one Kerry Tonkin; had then beaten and otherwise ill-treated her; and had thereby occasioned to her actual bodily harm. Such a crime contravenes section 59 of the Act; and attracts a statutory maximum penalty of penal servitude for 5 years. 6 To each of the three charges thus preferred against him the prisoner pleaded not guilty; and he was put, accordingly, upon trial by jury. That trial occupied the Court until 14 December 1998, on which day the jury returned verdicts finding the prisoner guilty as charged of all three of the offences nominated in the indictment. 7 Proceedings on sentence were stood over to a date to be fixed; and were listed, eventually, for hearing on 19 March 1999. On that day evidence and submissions on sentence were received; and the Court took time to consider what action it would take. 8 While sentence was thus reserved, the Crown applied to re-open the proceedings on sentence. This application came before the Court on 9 April 1999, and was granted for certain stated, and limited, purposes. 9 The re-opened proceedings on sentence came before the Court on 23 April 1999; and certain supplementary evidence and submissions on sentence were received. Once again, the Court took time to consider what it would do in the matter of sentence. The Relevant Facts 10 Shortly after midnight on Saturday 1 March 1997, Miss Lewis, Miss Tonkin and another friend went together to a night club in Lithgow. There they met Mrs. Spillane. The group of young women enjoyed themselves at the night club until about 2.50 a.m. on the Sunday morning. There had been talk among the people in the group of walking to a nearby municipal pool and of there taking a swim. Miss Lewis left the night club at about 2.50 a.m. About 10 minutes later Miss Tonkin and Mrs. Spillane and another girlfriend left the night club. They went to the Lithgow Hotel; and then, having dropped off their friend at the hotel, Miss Tonkin and Mrs. Spillane began to walk back towards the night club, on their way to the swimming pool. Their route took them to the vicinity of an open area of public recreation space known as the Watsford Oval. The area was very dark; and the locality seems to have been practically deserted and fairly lonely. The two young women were carrying their shoes; and Mrs. Spillane was carrying her handbag around her neck. 11 Suddenly, both young women were attacked from behind. Miss Tonkin felt something "across the back of my shoulders, like somebody had hit me or thrown something at me". She heard, simultaneously, Mrs. Spillane cry out: "Who are you?". Miss Tonkin thereupon ran off as quickly as she could. In effect, she circled the Watsford Oval, crying out for help; and she was found, eventually, by a taxi-driver whom Mrs. Spillane had managed to reach after having escaped from her assailant. 12 Mrs. Spillane's own experience with her assailant was more prolonged. She described it as follows in her evidence: "Q. Just tell the Court what happened? A. Someone hit me on the shoulder with something. I don't know what it was at the time, and Kerrie ran. Q. What happened to you? A. He grabbed me by the hair, and pulled me towards the oval. Q. Were you hit anywhere else? A. On the head. Q. Were you hit on the head, or the shoulder first? A. The shoulder. Q. After that you were hit on the head? A. Once he had hold of me he started hitting into my head. Q. He had hold of your head? A. Yeah, my hair. Q. How were you held? A. I was hunched over, and he had hold of the back of my hair, and was just pulling me by the hair. Q. In which direction? A. Towards the oval. Q. Pulling your head down? A. Yes. Q. Were you doing anything? Were you saying anything? A. Screaming. I don't really remember. Q. You were screaming? A. Yeah. Q. As loud as you could? A. Yep. Q. Was anything said? A. No, he just told me to 'shut up' many times. Q. Sorry. A. Many times. Q. And pulling at you? A. Yep. Q. Did you have a glimpse of anyone? A. No. Q. Did you see any person at all? A. No, my head was down the whole time. Q. But you could hear a male voice? A. Yep. Q. You were being pulled towards the oval? A. Yes. Q. Is there a gutter there? A. Yes. Q. Did you get pulled towards the gutter? A. Yes. Q. Did you do something with the gutter? A. Yes, I pushed my foot into it so he couldn't pull me any further, and I was almost on the ground by that stage. Q. Did something happen to your hair? A. It come out, yep. Q. The hair came out? What happened then? A. I ran. Q. Which way did you run? A. Under the viaduct near the pool. Q. That is under another viaduct which is near the pool? A. Yes. Q. That is under the railway? A. Yes. Q. It goes towards Main Street? A. Yes. Q. You ran under there? Did you get to Main Street? A. Yes. Q. Did you see a taxi? A. Yes. Q. Did you hale (sic) the taxi? A. Yes. Q. Mrs. Morrison was the driver? A. Yes. Q. What happened after that? A. We went back under the viaduct. I told Mrs. Morrison what had happened, and she phoned the police, and we went back looking for Kerrie, because we didn't know where she was at that stage. Q. Did you drive to a spot which overlooks Watsford Oval? A. Yes. Q. Did the lights of the cab shine across the oval? A. Yep. Q. Could you see Kerrie? A. Yes. Q. In the oval? A. Yep. Q. Did she come over to the cab, you were screaming for her? A. Yep. Q. She came over to the cab and got into the cab? A. Yep. Q. Did you then go to Lithgow Hospital? A. Yes." (Trial transcript 29 (43) - 31 (51) 13 The handbag that Mrs. Spillane had been carrying was pulled off her and over her head during the course of her struggle with her assailant. The bag contained at that time a small amount of money, probably no more than $10 or thereabouts; and some other personal items. 14 Neither Miss Tonkin nor Mrs. Spillane could give any very precise description of their assailant. 15 Miss Tonkin suffered, as a result of the assault upon her, a sore back. Mrs. Spillane suffered a nasty laceration to the back of her head. The laceration required some three stitches. 16 Miss Lewis' movements after she left the night club cannot be re-constructed in any detail. It seems clear that Miss Lewis left the night club shortly after the departure from the club of a young local man named Michael Doalman. They were acquainted, and they had spent time, but it would seem no great time, in each other's company at the night club. According to Mr. Doalman's evidence, Miss Lewis attempted to persuade him to go with her for a swim at the municipal pool, but he preferred to go home. She followed him as he walked away from the club; and both of them walked, hand in hand, towards a nearby hockey field. They made their way to the vicinity of a shed standing near the hockey field; lay down together on the grass; and had sexual intercourse. Thereafter, they went their separate and opposite ways: he towards his home; she towards the pool. 17 When the attack upon Mrs. Spillane and Miss Tonkin became known, a search was made for Miss Lewis. As the search progressed through the Sunday morning, various blood-stained items of Miss Lewis' clothing were discovered. Eventually, and a little after 2.30 p.m., her naked body was discovered. It was buried in a sand pit forming part of some recreational facilities. Other discarded items of Miss Lewis' clothing were found nearby in bins. 18 Post-mortem examination established that Miss Lewis had died from ligature strangulation. Her body carried multiple traumatic injuries, including an injury which had been inflicted by "an object with a linear edge", (trial transcript: Dr. Lawrence: 83(54) ), and with such force as to cause a perforation of the right ear-drum. There were, also, post-mortem drag marks on the body. 19 The Crown case against the prisoner on the charge of murder was based, putting the matter very simply and broadly, upon the basis of the combined effect of inculpatory admissions made to the investigating police and to other people; of inferences to be drawn from the finding of a pubic hair of the prisoner on Miss Lewis' skirt; and of the finding in two separate locations of two pieces of a stick, one piece of which was able to be related to the injuries caused to Mrs. Spillane and Miss Tonkin; and the other piece of which was able to be related to the perforating injury to, and to the region of, Miss Lewis' right ear. 20 The accused's case at trial can be summarised in the form of the following adaptation of my summing up notes: 1. He did not commit the murder; was not present when the murder was committed; and took no active part whatsoever in connection with the carrying out of the murder. 2. He was present at the beginning of what proved to be the chain of events culminating in the murder. But his only active involvement in that initial stage of events was to put his hand over Miss Lewis' mouth in order to stop her from screaming out. 3. Thereafter he followed as she was led off by two men: one, a local man and a friend of the prisoner, named Aaron Martin; and the other a man known only as 'the tattooed man'. He continued to follow until the group reached the place where the tattooed man began to slap Miss Lewis' face. Disapproving of what was going on, and craving some form of drug-shot, he remonstrated briefly and ineffectually with the tattooed man, and then left that scene. 4. Thereafter he never saw Miss Lewis alive. When he returned to the relevant spot he found her dead, and in the condition described in his evidence. 5. Seeing that she was dead, he panicked and buried the body in the manner described by him in his evidence. Thereafter he disposed of Miss Lewis' clothing, and the burial implements, also as described by him in his evidence. 6. When arrested by the police and interviewed, he made incriminating statements for the reasons that he feared that the police would bash him; that he was afraid of inculpating Aaron Martin and the unidentified tattooed man, with consequent risk to his own physical safety; and that he was attempting to buy time until he could see his solicitor. 7. He denies having made some of the apparently incriminating statements attributed to him by various of the witnesses. 8. He was, but in an exculpatory rather than an incriminating sense, the wrong person in the wrong place at the wrong time. 21 The man Aaron Martin to whom reference is made in the foregoing summary was called in the Crown case. His evidence was directed not so much at inculpating the prisoner, as in exculpating himself. It is, I think, clearly to be inferred from the verdict of the jury that the jury accepted to the required legal standard the substance of the evidence of Aaron Martin, and did not accept the substance of the contrary evidence of the prisoner. The Objective Gravity of the Offences of which the Prisoner has been found Guilty 22 There is, I think, no need to dwell at length upon this topic. 23 Miss Lewis was a young woman aged some 19 years. She was done to death in the most cruel and wicked fashion. Her murder was, in purely objective terms, an appalling crime calling for uncompromising denunciation, and meriting severe punishment. 24 The offences committed against Miss Tonkin and Mrs. Spillane tend, in the nature of things, to be overshadowed by the brutal killing of Miss Lewis. Those other offences were, however, by no means trivial examples of their respective categories of crime. Had Miss Tonkin not been lucky enough to get away quickly from her assailant; had Mrs. Spillane not shown great tenacity and presence of mind in resisting her assailant; and had Mrs. Morrison, the taxi driver, not come upon the scene when she did; and had she not thereupon shown prompt and practical good sense in her own responses; the consequences for those two young women might have been much worse. The Relevant Subjective Features of the Prisoner's Case 25 Some of these features can be established simply and readily. 26 First, the prisoner was born on 12 August 1975. He was aged, therefore, 21 years and some 7 months at the date of the offences of which he has been found guilty; and he is now aged 23 years and some 9 months. He is single. He has an ex-nuptial child aged about 16 months. 27 Secondly, the prisoner has criminal antecedents. Some of them have violent aspects, but nothing remotely approaching the lethal violence done to Miss Lewis; or equating in any real way to the particular type of personal violence done to Mrs. Spillane and to Miss Tonkin. 28 Thirdly, the prisoner has a seriously dysfunctional family and personal history. It is not necessary, I think, to go over that history in minute detail. Exhibits B, C, 1 and 2 on sentence present that detail in a completely clear and a readily accessible fashion. It suffices to say that the picture thus painted is a bleak and saddening one. The focus of that picture is sharpened, in my own view, by the evidence given in the sentence proceedings by the prisoner's father. The content of that evidence, but more significantly the way in which it was given, seem to me to be eloquent of the reality of what is conveyed by the bare words of the documentary exhibits. 29 Fourthly, there is in Exhibit 3 on sentence material in the nature of school reports, other personal certificates of achievement, and various personal references. This material suggests that the prisoner is not without worthwhile personal capacities, provided only that he is properly motivated to realise them. 30 It is not really possible to go with any confidence beyond the foregoing matters; and that for reasons appearing in two reports dated respectively 23 October 1998 and 22 January 1999, and prepared by Dr. Bruce Westmore, a well-recognised Forensic Psychologist. 31 In the report of 23 October 1998 Dr. Westmore speaks in the following terms of the prisoner's then mental state as he, Dr. Westmore, perceived it in the light of the examination which he conducted in connection with that report: "Mr. Short presented as a man who looked his stated years, he was pleasant and cooperative. He maintained good eye contact and he spoke spontaneously and expansively. There was some intensity to his affect but he was not unduly anxious I felt. He was not clinically depressed and there was no evidence of any psychotic features such as delusions or hallucinations. He presented as being of average intelligence, he certainly was an alert and attentive historian." 32 Later in this report, Dr. Westmore made the following observations concerning his diagnosis of the then psychiatric condition of the prisoner: "On psychiatric examination at this time there is no evidence that he is suffering from any form of mental illness and nothing in the history he provides of the event itself which would suggest mental illness played any role in the alleged offending behaviour. There is also no information to suggest he would have the defence of substantial impairment available to him on the history he currently provides." 33 In his later report dated 22 January 1999, Dr. Westmore describes as follows part of the exchanges that he had, in connection with the preparation of that report, with the prisoner: "I asked him what his thoughts were now about this matter and he said he hopes to get a re-trial. I asked him was he intending to appeal and he said yes. I asked him the basis of this but he could not say. I asked Mr. Short was he maintaining his innocence in relation to the offending behaviour and he responded in the affirmative." 34 Later in that same report, and with respect to his prognosis concerning the prisoner, Dr. Westmore says: "This man's prognosis remains most uncertain, this because of the nature of the offences and his current position regarding the offences. By maintaining his innocence of the charges it is not possible to assess any feelings of regret and remorse he may have for his actions nor indeed to make any comments about his level of psychological insight and understanding into the processes which led up to the offending behaviour. To that extent his prognosis should be considered in a guarded fashion at this time. It is likely he has a personality disorder with anti-social traits and he suffers substance abuse. He has little to no insight into this latter problem." 35 Because of the barriers to which Dr. Westmore refers in his later report, it is very difficult to judge whether, as the Crown has submitted, the prisoner should be sentenced upon the basis that it can be found properly that the available evidence shows him to be psycopathic; and so, likely to repeat the extreme violence of the crimes of which he has been found guilty. 36 Dr. Westmore was called to give evidence at the sentence proceedings. Part of that evidence was the following: "Q. He maintains, never mind for the moment whether correctly or not, that there was no offence? A. That's correct. Q. Does that not then leave us in a situation where diagnosis, analysis and prognosis that might have been rational upon the basis of other premises simply becomes speculative because there is no given basis from which one can confidently argue it? Does that miss something or is that correct? A. That is essentially correct. The problem is that we cannot understand this offence because he gives no history about it, so it is hard to understand this offence, even in the context of his personality, as we know it, with what we already know about it. We cannot understand how or why he committed this offence because he gives no history about it and that does make things like predicting future dangerousness very difficult. Q. Well, impossible in truth? A. Virtually it does, yes." 37 And later: "Q. A person who gives way to base feelings, ……………., or feelings of cruelty to other human beings could, or is likely to, give way again in the future? A. They may do. You need, probably, to answer the question fully, to understand the circumstances of how the first incident occurred. As I said earlier, the major problem we have here is that he is not acknowledging it. He is giving no account of his mental state at the time or what he did or why he did it, so it is very difficult to tell you, in Court, about things like his future risk of doing behaviour like this again. HIS HONOUR: Q. In truth, it is impossible? A. Yes, it is. Q. All that one can say about it is that he has, upon the basis of a reliable and reliably conservative diagnosis, a personality disorder of some kind? A. Yes. Q. And, really, while he persists in denying that he had any involvement in any one of the three of these offences, and denied all three of them, that is just an impenetrable barrier to going, logically, any further forward? A. Pretty much." 38 I am not prepared to make such a finding as the Crown has submitted should be made. I think that the preponderance of the evidence, and in particular Dr. Westmore's oral evidence, which I accept, is, on a fair view, to the contrary. Should an Indeterminate Sentence be Imposed? 39 Section 19A of the Act is in the following terms: "(1) A person who commits the crime of murder is liable to penal servitude for life. (2) A person sentenced to penal servitude for life for the crime of murder is to serve that sentence for the term of the person's natural life. (3) Nothing in this section affects the operation of section 442 (which authorises the passing of a lesser sentence than penal servitude for life). (4) This section applies to murder committed before or after the commencement of this section." 40 In 1996, section 431B was added to the Act. So far as is at present material, it is there provided: "(1) A Court is to impose a sentence of penal servitude for life on a person who is convicted of murder, if the Court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence." 41 The Attorney-General, in explaining this provision to Parliament, said: "The preservation of that discretion does no more than recognise the possibility that a murder, which, on its face, demonstrates an extreme degree of criminality, may nevertheless call for something less than life imprisonment. For this reason the discretion to impose less than life remains, although it is a discretion which cannot be lightly exercised in the face of the principle expressed in the Bill." 42 On 11 June 1998 I passed sentence in the matter of Regina v Gary Zane Glasby. On that occasion I expressed the following views: "It is obvious that the imprisonment of an offender for the term of his natural life is, to say the very least, a draconian punishment. The existence of such a penalty has excited strong, and sometimes passionate, responses from individual Judges. An especially powerful statement in that regard is that of Allen J in his Honour's dissenting judgment in R v Baker (unreported, CCA 20 September 1995). His Honour says: "In Regina v Petroff (unreported, 12 November 1991) Hunt CJ at CL said: 'In the Old Testament, in the second Book of Moses called Exodus, the author laid down the law concerning acts of violence in these terms: "And if any mischief follow, then thou shalt give life for life, Eye for eye, tooth for tooth, hand for hand, foot for foot, Burning for burning, wound for wound, stripe for stripe" (Ch 21 vv 23-25) It is, as I say, an understandable desire on the part of the victim or those whom he or she leaves behind to have the law of Moses applied. But we now live in a civilised community. Winston Churchill, during a debate in the (UK) House of Commons in 1910 said this: "The mood and tempo of the public with regard to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country." Those words admirably express the basi approach which a judge in a civilised country must take. Section 19A of the Crimes Act 1900 empowers this Court to sentence a person convicted of murder to penal servitude for life. That is what such sentence, if imposed, means. It means for life. It means that never can there be any hope of release. It means never, no matter how many decades go by, will the prison door be opened and the prisoner be allowed out again. It matters not whether he be sixty, seventy or survives to eighty. He is there for life. Such a sentence cannot lightly be imposed in any civilised society. There are, of course, circumstances in which in a civilised society such a sentence may be called for. Such cases will be quite exceptional. But clearly they exist. The law so provides. It would be foolish in the extreme to attempt to give a list of the types of cases which would warrant the court taking this, the most extreme measure available to the law. Three, however, stand out in respect of murder. The first is the case of the professional killer, the person who cold-bloodedly assassinates others for gain. That is one category. Another is the case where the killer is so fundamentally psychotic that it could never be safe to release him back into the community. I may say that the evidence that that is so would, as far as I am concerned, need to be quite strong. The third is the case of an offender who embarks on such a course of criminality that nothing short of the knowledge that the most extreme punishment the law can give awaits him would deter him from continuing that course" [emphasis added]." 43 In Glasby itself, I accepted the above statements of principle; and I took the view that they warranted the imposition in that particular case of an indeterminate life sentence. I took that view because, on the given facts of that case, the murder there in question had been a cold-blooded contract killing; and fell, therefore, within a category of murder such as was regarded, even upon a conservative judicial approach, as appropriate to attract the indeterminate sentence. 44 Had I been persuaded in the present matter that there was credible evidence capable, if accepted, of establishing, to quote again the words of Allen J, that the prisoner "……is so fundamentally psychotic that it could never be safe to release him back into the community", I would not have hesitated to impose the indeterminate life sentence. But, as I have earlier explained, I do not think that the evidence to hand can possibly support so grave a finding against the present prisoner. In saying so, I am not unmindful of the grief and anguish of the family of Miss Lewis. Their burden is a terrible one; and nothing that this Court can say or do can possibly wipe away that level of pain or make good that level of loss. 45 Those considerations are powerful and they command rightly a proper respect and acknowledgment; but they are no substitute for concrete evidence sufficient to justify the draconian view that nothing short of an indeterminate life sentence will do justice in the case of the present prisoner. As I have earlier tried to explain, I do not think that the evidence is sufficient for that purpose. 46 I regard it as self-evident that the present case calls for the imposition of a significant sentence of penal servitude; but I have not been persuaded that nothing short of an indeterminate life sentence will give proper weight to what is described in section 431B of the Act as " ……… the community interest in retribution, punishment, community protection and deterrence ……….". I can but reaffirm my conviction, expressed in other judgments on other occasions, that the proper maintenance of the rule of law requires, particularly in cases of the present kind, a need to keep carefully in mind that vindication is not the same thing as vindictiveness. Conclusions as to Sentence 47 I have considered the various comparative materials that were placed before me by both counsel. Such materials are, as always, of broad, indicative value only. Those materials suggest to me, however, that such is the gravity of the crime committed against Miss Lewis, that a fair balance of the relevant objective and subjective factors in the prisoner's particular case is justly measured by an aggregate sentence of penal servitude for 20 years. I consider that it should be divided between a minimum term of 16 years and an additional term of 4 years. I have considered the question of "special circumstances" of the kind contemplated by section 5 of the Sentencing Act 1989 (NSW). I think that it is possible to nominate various subjective features of the prisoner's case that would be apt to fall within that description; but I am not persuaded that they point to any need for a period longer than 4 years as being necessary to provide for the proper rehabilitation of the prisoner back into the general community should the Serious Offenders Review Council consider that he is fit for such conditional release at the expiration of his minimum term. 48 Such an approach and, as well, the principle of totality, make it expedient, in my opinion, to deal with the offences committed against Mrs. Spillane and Miss Tonkin by the imposition, in each such case, of a fixed term of penal servitude. In the case of the offence committed against Mrs. Spillane, being the more serious of the two offences, I consider that the proper fixed term is one of 5 years. In the case of the offence committed against Miss Tonkin, I consider that the appropriate fixed term is one of 2 years. 49 All sentences will date from 3 March 1997, the day upon which the prisoner first entered his present custody. 50 Jay William Short, in respect of the crime of murder of which you have been found guilty by the jury you are convicted. You are sentenced to penal servitude for 20 years. That sentence is apportioned between a minimum term of 16 years and an additional term of 4 years. The minimum term will commence on 3 March 1997 and will expire on 2 March 2013. The additional term will commence on 3 March 2013. 51 In respect of the charge of robbery with corporal violence, you are convicted and sentenced to penal servitude for a fixed term of 5 years to commence on 3 March 1997 and to expire on 2 March 2002. 52 In respect of the crime of assault occasioning actual bodily harm, you are convicted and sentenced to penal servitude for a fixed term of 2 years to commence on 3 March 1997 and expiring on 2 March 1999. **********