Regina v George Alfred McLEOD [1999] NSWSC 78

New South Wales Supreme Court CITATION : Regina v George Alfred McLEOD [1999] NSWSC 78 CURRENT JURISDICTION : Criminal Division FILE NUMBER(S) : 0009/97 HEARING DATE(S) : 5/2/99 JUDGMENT DATE : 19 February 1999

PARTIES : REGINA v GEORGE ALFRED McLEOD JUDGMENT OF : Sully J

COUNSEL : R. Thompson - Crown Applicant - in person SOLICITORS : Crown Solicitor CATCHWORDS : DECISION : In lieu of sentence of 3.7.90 - aggregate sentence of 17 years, comprising minimum term of 12 years and additional term of 5 years. Minimum term will commence on 20.7.89 and expire on 19.7.2001. Additional term will commence on 20.7.2001

SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

SULLY J

17 February 1999

L9/97 - Regina v George Alfred McLEOD

ON SENTENCE

1 HIS HONOUR: This is an application brought pursuant to section 13A of the Sentencing Act 1989 (NSW), ["the Act"], by Mr. George Alfred McLeod, ["the applicant"]. The application seeks to have determined into the form of a minimum term and an additional term a sentence of life imprisonment imposed upon the applicant by Lusher AJ on 3 July 1990. The application was heard on 5 February instant; the applicant then appearing unrepresented. 2 The material facts are within a small compass. 3 On Thursday 20 July 1989, the applicant went to the Surry Hills Police Station and there informed a police officer that he had killed on the previous day a young woman named Heidi Virag; and that he had so killed her by hitting her over the head with a metal bar. Immediate police investigations ensued, and they resulted in the applicant's being charged with the murder of Miss Virag. The applicant first appeared in custody on that charge on 20 July 1989, and he has remained in custody ever since that day. In due course, and on 20 June 1990, the applicant was indicted before Lusher AJ and in connection with the alleged murder of Miss Virag. The applicant pleaded that he was not guilty, and he was put, accordingly, upon his trial. The trial continued until 25 June 1990, on which day the jury, after a retirement of about 2 hours, returned a verdict of guilty of murder. In due course, and on 3 July 1990, the applicant stood for sentence before Lusher AJ; and he was thereupon sentenced to penal servitude for life, that sentence to date from 20 July 1989. A subsequent appeal to the Court of Criminal Appeal was dismissed; but the appeal concerned only matters going to the applicant's conviction, and not to his sentence; and nothing turns for present purposes upon the decision of the Court of Criminal Appeal. 4 The essential facts surrounding the killing appear, sufficiently for present purposes, from the following extract taken from a recorded interview between the applicant and investigating police, which interview commenced at 9.25 a.m. on 20 July 1989, being a time within an hour or so after the applicant had first reported the killing to the police: "Q. What can you tell me about the injuries Heidi received? A. About midday yesterday, she came over to my room, she knew it was my pension day, so we had sex and after that she put it on me for one hundred dollars, I just went berserk and that was it. Q. What do you mean you went beserk? A. I got real angry and I picked up the iron bar which is kept near my bed and hit her. Q. How many times did you hit her? A. I can't remember but it was more than once. Q. Did you hit her with the iron bar? A. Yes. Q. On what part of her body did you hit her? A. On the head. Q. Why do you keep the iron bar next to your bed? A. I had a couple of attempts of breaking into my room and kept it for self protection. Q. Why did you hit Heidi with the iron bar? A. Because she asked me for money. Q. Had she asked you for money in the past? A. Never. Q. Do you know why she wanted the money? A. Yeah, for sex. Q. Did she ask you for the money before or after you had sex with her? A. After. Q. Where was she when you hit her with the iron bar? A. Sitting on the bed. Q. How long after having sex with her did she ask you for the money? A. Straight away, she never even put her clothes back on. Q. About what time was it when you hit her with the iron bar? A. About fifteen minutes after she came in. Q. Apart from asking you for money, did Heidi do anything else that provoked you? A. No, I don't think so. Q. Did you have an argument with her about the money she asked for? A. We argued a little and I told her that she hadn't asked me for money before and I called her every name under the sun and after that I hit her. Q. Did you assault her with your hands? A. No just the iron bar." 5 At the trial before Lusher AJ the defence raised provocation as an issue proper to be considered by the jury. Lusher AJ was persuaded to leave the issue of provocation to the jury. The verdict of the jury necessarily entails that the jury rejected the defence contentions as to provocation. 6 In addition to the issue of provocation, the issue of the applicant's alleged intoxication, in the relevant legal sense, was raised as a matter of substance at the trial before Lusher AJ. This issue, also, Lusher AJ left to the jury. The verdict of the jury necessarily entails that the jury rejected the substance of the defence contentions on this issue. 7 Lusher AJ, in his Honour's remarks on sentence, described the killing as "a particularly brutal murder". I would say, with respect, that my own view of the objective gravity of the killing is to the same effect. On the view of the facts most favourable to the applicant, he was asked unexpectedly to pay for a sexual encounter with a young woman with whom he had previously been carrying on for some time a clandestine sexual affair; and he was so enraged by the request and by what he saw as its effrontery and unreasonableness, that he simply picked up an iron bar and struck the young woman a series of blows that undoubtedly inflicted upon her fatal injuries. The evidence at trial was to the effect that the iron bar must have been wielded with, at least, a significant degree of force in order to have caused the particular injuries that were found upon post-mortem examination of the victim. 8 In applying section 13A of the Act to the applicant's case, it is necessary to have particular regard to sub-sections (4A), (9) and (10A) of section 13A. I shall deal in turn with each of those sub-sections. Sub-section 4(A) The sub-section is in the following terms: "In considering such an application, the Supreme Court is to have regard to all the circumstances surrounding the offence for which the life sentence was imposed, and all offences, wherever committed, of which the person has been convicted at any time (so far as this information is reasonably available to the Supreme Court )." 9 The applicant, when he stood for sentence before Lusher AJ, had a not inconsiderable criminal history. That history comprised eleven particular items, and some of the items involved multiple offences. Five of the itemised matters dealt with offences of breaking, entering and stealing; a further three items involved charges of stealing; one item involved a minor offence of dishonesty; one item involved proceedings in respect of a breach of recognisance; and the remaining item, by far the most serious, involved an offence of malicious wounding with intent to do grievous bodily harm, a matter in respect of which the applicant was sentenced to a substantial period of imprisonment. 10 In connection with these criminal antecedents of the applicant, Lusher AJ said, in his Honour's remarks on sentence: "For completion, it will be noted that on this question of culpability and mitigation, I have had no regard whatever to the criminal record of the prisoner, which included, as I have stated earlier, a daylight street shooting on his wife some years ago and for which he was appropriately punished. It may be argued that one of the circumstances of the incident to be considered when looking at whether or not there are mitigating circumstances is the type or disposition of the person whose culpability is being considered. Be that as it may, however, as I have said, I have not taken his record into account whatsoever and it has not entered into my considerations. I intimated as much to both counsel when they addressed on sentence." 11 Sub-section (4A) does not enable this Court to adopt Lusher AJ's approach with regard to the applicant's criminal antecedents. It is necessary, therefore, to consider more particularly the evidence that is before the Court as to those criminal antecedents. 12 As matters stand, there is no evidence touching upon the substance of any of the matters in the applicant's criminal antecedents, save only the offence of malicious wounding with intent to do grievous bodily harm. As to that particular matter, there is a considerable body of evidence: it will be found in documents forming annexures B, C, D, E and F to the statement of facts that forms exhibit A on the present application. 13 It appears from that material that the applicant met, in the early part of 1970, a lady named Judith Ann Speed. She was then the mother, and the sole carer, of two young children. She and the applicant began a de facto relationship. In due course a baby boy was born to them. Immediately after the birth, and without reference to, or knowledge on the part of, the applicant, Miss Speed put the child up for adoption, and the child was in fact adopted out. Shortly thereafter the applicant discovered what had happened; and he and Miss Speed contracted what they both described as a marriage of convenience, in the hope that by so doing, they would be able to reverse the adoption of their child and recover custody of the child for themselves. In the events which happened, it was not possible to achieve this reversal of the adoption process. 14 Thereafter, and until about March 1972, the applicant and his then wife continued in a fairly stormy, volatile, marital relationship. Early in 1972, Mrs. McCleod, being then aware that she was again pregnant to the applicant, procured without prior reference to, or any prior knowledge on the part of, the applicant, an abortion; and she underwent, in conjunction with the abortion, surgical procedures designed to ensure that she would not again become pregnant. 15 The applicant and his then wife did not thereafter live together. For some time thereafter the applicant himself was in prison serving sentences dating from 2 March 1972 and entailing, put simply, his incarceration until about March 1973. 16 On 10 September 1974 the applicant accosted Mrs. McCleod outside the apartment building in which she was then living. He told her that he had come for the purpose of shooting her. He produced thereupon a sawn-off shotgun and fired a number of shots into her. She was not killed, but she was very severely injured. This appalling crime was committed in broad daylight; and was, even on the applicant's own contemporaneous version of events, a premeditated and carefully planned crime. 17 The applicant took part in a recorded interview with investigating police; and during the course of that interview he was asked the following questions and gave the following answers: "Q35. Can you tell us why you fired the shots at your wife? A. Over both children. Q.36 Do you hate your wife? A. Yes. Q.37 Do you feel that she has deprived you of the children? A. Yes. Q.38 When you were told by your mother-in-law about your wife not having the child. Did that set off a chain of events in your mind? A. Yes about the second child. Q.39 Did you formulate any plan? A. Yes to shoot her in the leg, but I was too drunk, I got drunk waiting for her to come out so I just fired haphazardly. Q.40 We have been informed by your wife that after she was shot in the mouth she fell and that she was then shot in the rear part of her body. Can you tell us anything about this? A. Well it just happened so quick. I shot her and then ran." 18 In respect of this crime, the applicant stood for sentence in the District Court at Sydney on 16 December 1974. He was then sentenced to penal servitude for 12 years; and a non-parole period was fixed so as to expire on 16 February 1978. 19 In fact, the applicant was not released to parole until 1 June 1982. It is clear from the material constituting Exhibit D on the present application, that the reason why the applicant was not released to parole at the expiration of the non-parole period fixed by the sentencing Court, was a view held by the Parole Board that his history and previous record "…….. together with the attitudes towards rehabilitation he has shown during current sentence ………" made it appear "………..unlikely that he would comply with the conditions of a Parole Order". When the applicant was eventually released, he was given the benefit of some slight remissions of sentence. The superintendent of the facility in which the applicant was last detained before release, made, in connection with the release of the applicant, a brief report dated 13 March 1982. Parts of it are, I think, of some importance for present purposes. The report reads as follows: "McLeod was transferred to Oberon on the 5.4.78, serving a sentence of 12 years, during the full period of this time he has been employed in the Laundry, where he has carried out his work in an excellent manner, he is employed and paid on a five day per week basis, but has always worked seven days, and has done this without any supervision, when he completes his work in the laundry he always finds himself something else to do in the flower gardens or lawns, he can be relied upon to collect all dirty linen and issue clean linen for the other inmates. Although this man is a very erotic type of person, and it is considered by other people that he could be of some danger when released, I believe that I must be guided by his attitude and conduct whilst at this institution and recommend that he be granted 28 Days Special Remission, making him due for release on the 1stJune 1982." 20 Given the background of which I have been speaking, it is, in my opinion, important to take care in applying sub-section (4A). It is clear that the Court is to have regard, for present purposes, to those antecedent offences in so far as credible information about them is available to the Court. What is not clear is the way in which Parliament intends that the Court should "have regard to" those antecedent matters. That being so, and in the absence of some clear and imperative statutory requirement to the contrary, I consider that sub-section (4A) should not be construed and applied in any way that runs counter to the fundamental principles of sentencing that are expounded by the High Court of Australia in Veen v The Queen (No. 2) 1988 (164 CLR 465). It is sufficient for present purposes to note the principles in the terms of their summary in the headnote, which is to the following effect: "(1) A sentence should not be increased beyond what is proportionate to the crime to extend the period of protection of society from the risk of recidivism by the offender, but it is permissible for the sentencing discretion to be exercised having regard, amongst other matters, to the protection of society. (2) The previous criminal history of an offender may be taken into account in determining a sentence, but it cannot be given such weight as to lead to a penalty which is disproportionate to the gravity of the offence. The history is relevant to show whether the offence is an uncharacteristic aberration or whether in it the offender has manifested a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may indicate that a more severe penalty is warranted. It is legitimate to take account of the previous history when it illuminates the moral culpability of the offender in the instant case or shows his dangerous propensity or a need to impose condign punishment to deter him and other offenders from committing similar offences." 21 In applying to the present case the requirements of sub-section (4A) as conditioned by the Veen principles, it is necessary to keep carefully in mind that it would be an egregious denial of justice to the applicant to treat him now in a way that entailed, effectively, punishing him further for the 1974 offence. The applicant has paid in full the penalty that a just application of the law required him to pay in respect of that earlier offence. 22 That said, it remains the case, in my opinion, that the 1974 and 1989 offences, although by no means identical, have certain circumstantial similarities that are, in my opinion, troubling. 23 It is true that the 1974 shooting appears to have been a more coldly calculated crime than the 1989 killing. It is, nevertheless, the case that both offences proceeded from an episode of irrepressible, violent rage triggered by a perception on the part of the applicant that he had been affrontingly mistreated by somebody with whom he had an established and intimate emotional and sexual relationship. 24 It is true, further, that the applicant appears to have been law-abiding between the date of his release in 1982 and the date of the killing in 1989. There is, of course, a sense in which that fact stands to the applicant's credit. It is, however, the case that, even after a period of some 7 years of law-abiding life in the general community, the underlying disposition of the applicant was still so fragile and so volatile as to be capable of being triggered by a sordid but not obviously significant incident into an outburst of, literally, murderous rage. 25 I do not think that it could be contended reasonably that the case of the applicant is identical with that of Mr. Veen. I think, however, that there are some broad similarities; and that they indicate that sub-section (4A), correctly construed and fairly applied, require that, if the present application is to be granted, then the aggregate sentence fixed by the Court should be a substantial one. The subsequent need to apportion such a sentence as between a minimum term and an additional term raises other considerations with which it will be convenient to deal later in this judgment. Sub-section (9) 26 The sub-section is in the following terms: "(9) The Supreme Court, in exercising its functions under this section, 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 section 463 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 Review Council 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) The need to preserve the safety of the community; and (d) The age of the person (at the time the person committed the offence and also at the time the Supreme Court deals with the application), and may have regard to any other relevant matter." 27 As to (a), it is not possible for this Court to say much that is useful. I think that it can be accepted readily enough that the present applicant would have been considered, under the old regime, for release on licence after he had served some significant period of imprisonment. How long he would have been required to serve before being so considered for release on licence, it is not possible for this Court to say. The available statistical base is narrow, and the cases embraced by it cover a very wide range of individual circumstances and periods of imprisonment actually served. I think that it is probable that the present applicant, given his criminal antecedents as I have previously canvassed them, would have been required to serve a comparatively longer, rather than a comparatively shorter, period of imprisonment before being considered for release on licence. 28 As to (b), it is convenient to begin by citing the following conclusions reached by the Review Council in its report dated 13 November 1997: "Throughout the whole term of his current imprisonment McLEOD has not been a management problem. Of concern however is his refusal to accept the seriousness of his alcohol problem and his consequent reluctance to accept assistance to deal with it. The SORC will continue to monitor his progress in prison and will encourage him to utilise the services provided by inmate development staff. Should McLEOD'S life sentence be re-determined, the SORC will arrange the preparation of a Management Plan, designed to equip him for eventual return into the community as a law abiding citizen. It is appreciated, of course, that his age and medical disabilities will reduce the range of options available, however the SORC will work in close co-operation with the Parole Service to ensure the inmate's needs are appropriately met." 29 The proposition that the applicant has not been a management problem, while literally correct, gives a very incomplete picture of his progress in fact during the years throughout which he has been imprisoned. Throughout the whole of that time, the applicant has made serious, substantial and consistent attempts to rehabilitate himself and to equip himself to re-enter the general community as a law-abiding and useful citizen. His prison reports have been consistently favourable. He has no prison demerits of any kind recorded against him, something which in my opinion tells very strongly in favour of his present application. He has completed a large number of courses designed to improve and to develop in various ways his natural skills and capacities. Included among the materials that have been placed before the Court in that latter regard, is a certificate given on 13 August 1997 by the head supervisor of International Cable Manufactures Pty Ltd. It reads, formal parts omitted, as follows: "………… (the applicant) commenced employment at International Cable Manufactures on 19-7-1996 up to the present day he has always worked diligently, efficiently, conscientiously, he has never refused to do anything that he has been asked. (The applicant) has the unique title of any person, civilian or prisoner, of never taken a 'sickie' since the day he started working here. In the quality control department, he is regarded as a whiz. I have never had any complaint against him. I will be very sorry if I ever lose him. I wouldn't hesitate to recommend him to anyone." 30 This type of endorsement is representative of the way in which the applicant's work supervisors have consistently evaluated his capacity, diligence and reliability. 31 The expressed concern of the Review Council concerning the applicant's "alcohol problem" causes me some difficulty. This particular aspect of the application was the subject of some evidence given at the hearing by Mr. M. K. Saxby, the Secretary of two Review Council sub-committees having to do with the management of high security inmates and with the management and supervision of pre-release leave. I raised with Mr. Saxby the question of the applicant's supposed "alcohol problem", and Mr. Saxby gave the following particular evidence. "Q. The notion that he has refused to accept the seriousness of his alcohol problem raises, could I suggest for your comment, if you can make any useful comment, a number of questions. First is the proposition of fact that he does still now have an alcohol problem. Can you point me in the direction of something that warrants that conclusion of fact? I can understand readily a conclusion that he had in the past an alcohol problem. From what little of this material I have looked at in any detail thus far, I couldn't quite get a grip of anything that was suggestive of the fact that he still has a serious alcohol problem, indeed, an alcohol problem at all. A. I can only point you to Helen Hayward's report from 1997 where there is a discussion of Mr. McLeod's alcohol use and he has stated he has not touched a drink whilst in gaol. He asserts he has no desire to drink and questions the assertion by drug and alcohol workers that he is an alcoholic. I am not in a position to be able to say that Mr. McLeod does have an alcohol problem but I think if he were to avail himself of alcohol and other drug services then some kind of opinion could be gathered from them. Q. But is the Council to be understood as saying that it's present view is that if Mr. McLeod for reasons that seem good to him does not want to become involved with drug and alcohol counsellors and psychiatrists and so forth that the Council will see that as something mitigating against his fitness to be released back into the general community, is that the inference I am asked to draw from that portion of the report? A. Yes, it is. The Council relies on the opinion of expert psychologists and alcohol and other drug workers and given the nature of the circumstances of the crime, there was a great deal of alcohol consumed on the day, they would need to have some indication of his feelings about alcohol now and some opinion about whether he is likely to take that behaviour up again if he was released into the community so they would be very concerned without having any professional advice and that's what I think they mean there. They are voicing their concern. A professional opinion has not been able to be formed about his ability to cope in the community without alcohol. THOMPSON: Without alcohol counselling. HIS HONOUR: Yes, without alcohol counselling. I understand." 32 The 1997 report of which Mr. Saxby makes mention is annexure G to Exhibit B. It contains the following clinical observations: "While Mr. McLeod reports a high dependence on alcohol in the community, he asserts that he has not "touched a drink" while in gaol. He further asserts that he has no desire to drink and questions the assertion by Drug and Alcohol workers that he is an alcoholic. However, he does agree that his previous alcohol usage may have contributed to his current memory, attention and concentration deficits. Consultant Psychologist W. John Taylor, in an assessment dated 1.11.89, reports low performances in specific sub-tests of the Wechsler Adult Intelligence Scale which are sensitive to brain damage, which may be related to Mr. McLeod's chronic alcoholism. Further, results from the clinical syndrome scales of the Minnesota Multiphasic Personality Inventory reveal a significant elevation of the alcohol dependence scale. Personality tests results indicate that Mr. McLeod has a personality disorder with schizotypal characteristics. This would/may account for some transient psychotic symptoms with accompanying perceptual experiences and impairment of self control which may explain the feeling of foreboding Mr. McLeod reported on the day of the assault on Ms. Virag in 1989. However, there is no evidence or report by Mr. McLeod of any such psychotic or aberrant perceptual experiences in the recent past and he reports coping well in his current environment. Mr. McLeod does report some social isolation in JCC, however does have "some friends who I trust". 33 The clinical observations are followed by this summary: "Mr. McLeod has been in JCC for approximately 12 months. On his own report, he is coping well and enjoying his work and leisure activities. It is anticipated that Mr. McLeod will participate in a therapeutic group to address his alcohol dependence and he has expressed willingness to do so. Such a therapeutic environment would also provide a forum to address Mr. McLeod's limited understanding of his offending behaviour." 34 (The reference to "JCC" is a reference to the Junee Correctional Centre.) 35 Having both seen and heard from the applicant during the course of the recent hearing, I think that a fair assessment of his present disposition is that he would acknowledge fairly readily having had an excessive recourse to alcohol at various times during his past life. In that sense, I think that the applicant would agree readily enough that he had in the past "an alcohol problem". But the relevant present question, surely, is not whether he has had an alcohol problem in the past but whether he has one now. As to that, I can but say that on the whole of the evidence available to me, I would not see any basis upon which I could reasonably find as a fact that the applicant does now have "an alcohol problem". 36 That said, I would think that it is obviously in the applicant's own present interests that he cooperate with the Correctional authorities at least to the extent of making proper contact with the alcohol counselling service available to him in his present custody. I think that it would be very much in the applicant's present interests to engage, not in any profound psychological examination and assessment, but in a simple and sensible programme of advice and encouragement designed to ensure that if and when he is released back into the general community, he will adhere to his declared intention of not again developing "an alcohol problem". 37 As to (c), I consider that this is a matter calling, self-evidently, for the careful consideration of this Court. The question is, of course, one of balance, having regard to the totality of the available evidence. Certainly, the fixing of any aggregate determinate sentence, and its subsequent apportionment between minimum and additional terms, will need to have carefully in mind the imperative need to protect the community against any further incident of violence at all, let alone violence of the kind manifested in 1974 and in 1989. 38 As to (d), the applicant was born on 1 July 1939. On 19 July 1989, the date of the relevant killing, he was aged slightly more than 50 years. He is now aged, in broad terms 59-1/2 years. 39 As to "any other relevant matter", there are, in my opinion, a number of matters to be noticed. 40 First, it is to be observed that the applicant has a clear and repeatedly expressed aversion to professional psychologists and psychiatrists. This aversion, as best I can judge from the available evidence, derives from the applicant's perception that the psychiatric assessments that were put before the Court at trial and sentence did not do justice to his true position. The applicant has a profound and abiding sense of grievance about what he sees as having been egregious inadequacies in his professional representation at trial and on sentence. The applicant has a continuing sense of indignation, even of affront, about what he perceives as persistent attempts by people to make him admit to the existence of problems that he does not see as existing. 41 I have approached the determination of the present matter upon the basis that it is pointless to suppose that the applicant is going to undergo some Pauline conversion in connection with these deeply rooted perceptions. All that can be done, I think, is to note the facts as they appear from the evidence; and to factor in to present considerations the need for somebody concerned with the management of the applicant to find some way of offering the applicant a prudently sympathetic opportunity to have appropriate pre-release counselling designed to minimise any post-release risks of the recurrence of past personal problems. 42 Secondly, I have regard to the evidence concerning the applicant's health. The applicant is diabetic, although he is not at present insulin-dependent. He has cardio-vascular problems which, - so far as I can judge from the available evidence such as it is, - are even now not insignificant, and might well call for surgery in the near future. 43 Thirdly, and related to the present and likely future condition of the applicant's health, is the fact, - and I am satisfied that it is the fact, - that the applicant has responded to his health problems by devising, and by adhering strictly to, a programme of diet and of exercise designed to ensure that his general physical condition is kept under some proper control. The evidence is sparse, but it suggests that the applicant's diet and exercise programmes are in fact keeping him in reasonable general health. To the extent that such is the case, the fact reflects, I consider, very favourably on the applicant's present capacity, given only the requisite motivation, for intelligent self-discipline. Sub-Section (10A) 44 The sub-section provides: "The Supreme Court, in exercising its functions under this section: (a) Must have regard to and give substantial weight to any relevant recommendations, observations, and comments made by the original sentencing Court when imposing the sentence concerned, and (b) Must give consideration to adopting or giving effect to their substance and the intention of the original sentencing Court when making them, and (c) Must, to the extent that it declines to adopt or give effect to those matters, state its reasons for doing so." 45 I have read and considered the entirety of Lusher AJ's remarks on sentence. There do not seem to me to have been any relevant recommendations. There were certainly relevant observations and comments made by his Honour; and they were to the effect, put briefly, that his Honour did not accept the applicant as a witness of credit in respect of matters crucial to the determination, which it fell to his Honour to make, concerning the existence of any circumstances appropriate to mitigate the sentence, otherwise mandatory, of imprisonment for life. 46 Accepting, as I think I must do, that Lusher AJ's findings in that respect were plainly open to his Honour; I do not think that it follows that this Court must now deal with the applicant upon the basis that what he now says cannot be safely relied upon. 47 I think that the applicant is intelligent and resourceful. I think that he is articulate and confident in his own opinions about the material aspects of his present situation. It is clear from the evidence that the applicant has had a sad and deprived upbringing, and a disadvantaged adult life that has prevented his making a good and useful life out of his personal qualities of intelligence and resourcefulness. I think that the evidence discloses that he has made real efforts, and with substantial success, towards his ultimate rehabilitation. I think that he is conscious of the moral and legal culpability of what he did, both in 1974 and in 1989. I do not think that it makes sense to deal with the applicant upon the basis that there do not remain any circumstances in which an affront of sufficient perceived gravity would draw from him a very sharp response; but I do not think it fair to infer that his present disposition is such that any response of that kind would necessarily be violent, let alone murderously violent as in 1974 and 1989. 48 Thus, although I do not see any basis upon which I could differ from Lusher AJ's findings as his Honour made them in 1990, I do not see that sub-section (10A) requires me to give effect to those findings in a way that displaces my own assessment, as I have summarised it, of the applicant. The Determination of the Present Application 49 Having regard to the whole of the foregoing considerations, I have come to the conclusion that it would be proper to grant the present application. I am encouraged in that view by the stated position of the Crown that the application is not simply opposed. 50 I have come to the conclusion that it would be appropriate to determine an aggregate sentence of penal servitude for 17 years. I consider that it would be a just apportionment of such a sentence to provide a minimum term of 12 years and an additional term of 5 years. In fixing the minimum term of 12 years, I proceed upon the basis that the applicant has been in custody for 9 years and 7 months in round terms. The proposed minimum term will entail, therefore, that the applicant will serve a further 2 years and 5 months in custody. 51 The present application is, accordingly, granted. In lieu of the sentence of imprisonment for life that was passed upon the applicant on 3 July 1990, there is substituted a sentence of penal servitude for 17 years. That sentence is apportioned between a minimum term of 12 years and an additional term of 5 years. The minimum term will commence on 20 July 1989 and will expire on 19 July 2001. The additional term will commence on 20 July 2001. 52 It is, I think, neither necessary nor appropriate for this Court to embark upon the making of elaborate recommendations as to the future management of the applicant. I think, however, that it would be fair to express a general recommendation of the Court that the applicant's future classification(s) and management should proceed upon the basis that the applicant has achieved significant progress towards ultimate rehabilitation; and that nothing should be done that discourages the applicant from building further upon what he has thus far achieved. 1 Exhibit C may be returned to the Crown. The certificates and testimonials forming part of Exhibit 1 may be returned to the applicant. All other exhibits will remain in Court pending further order. SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION