R v Maiden [1999] NSWSC 311

New South Wales Supreme Court CITATION : R v Maiden [1999] NSWSC 311 CURRENT JURISDICTION : Criminal Division FILE NUMBER(S) : L00008/96 HEARING DATE(S) : 19 February 1999 JUDGMENT DATE : 8 April 1999

PARTIES : Stephen Arthur Maiden (Applicant) Regina (Respondent) JUDGMENT OF : Dunford J

COUNSEL : Mr P Boulten (Applicant) Mr Dawe QC (Crown/Respondent) SOLICITORS : Legal Aid Commission of NSW (Applicant) Mr P Thompson, Director of Public Prosecutions (Crown/Respondent) CATCHWORDS : CRIMINAL LAW - Sentencing; Re-determination of life sentence. ACTS CITED : Sentencing Act 1987, s 13A CASES CITED : R v Purdey (1992) 65 A Crim R 441 R v Haggart (unreported - Dunford J - 19 November 1993) DECISION : See para 22

THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION DUNFORD J 8 APRIL 1999 L00008/96 - R v Stephen Arthur MAIDEN JUDGMENT 1 HIS HONOUR: This is an application by Stephen Arthur Maiden for re-determination under s 13A Sentencing Act 1987 of the life sentence imposed on him by Hunt J at Grafton on 22 September 1988 following his conviction for the murder of Mark Gerald White at Glenreagh in November of 1987. The Crown neither supports nor opposes the application. 2 The Crown case at the trial was that the applicant and one Leslie Davidson Petty, who were both escaped convicts on a spree of criminal activity from Adelaide through Sydney to the Queensland border, lured the victim, a young seventeen year old who had been hitchhiking and whom they had picked up, into the bush and there killed him by breaking his neck and buried his body in a shallow grave. The Crown alleged that there was a prior agreement between them to kill the victim and that on a given signal from Petty, the applicant attacked the victim and during the ensuing struggle they fell to the ground where the applicant had the victim's neck in a head lock, and by pushing very hard and quickly against the side of his face attempted to break his neck, but succeeded only in rendering him unconscious, whereupon Petty came over, turned the victim onto his stomach before grabbing him under the chin and putting his knees into the victim's back, thus breaking his neck from the rear. 3 In a Record of Interview made on 16 February 1988, following his arrest, the applicant said that he merely pushed the victim over and went and dug the grave whilst Petty killed him (answer 14) and the motive for the killing was that they were concerned he would get in the way of a truck which they were supposed to "rip off" in Queensland (answer 68). 4 In his evidence on this application he said that he and Petty were intending to stop and rob a truck carrying a large quantity of cigarettes from Queensland to Sydney, and the victim was aware of this proposal and had agreed to be involved in the crime, but that Petty later suggested that he felt the victim should be killed because he believed that he would go to the police or inform the authorities that he and the applicant were in the area and had escaped from gaol; and the applicant agreed to the plan because at the time he regarded Petty as a type of father figure and, as a criminal, he looked up to him. 5 He said that when Petty gave him the signal he pushed the victim over, and the latter fell over on his back, Petty then sat on his stomach and held his hands round his throat, whilst the applicant ran into the bush, and when he came back, Petty had the victim on his stomach, he thought he was unconscious at the time and he saw Petty break his neck, whereupon Petty told him to go and dig a shallow grave, which he did. 6 Petty and the applicant told quite a different story at the trial in unsworn statements which the jury by their verdicts clearly rejected and which the learned trial judge described as "a tissue of lies". In the absence of other witnesses, it is difficult to tell how much of the version now given by the applicant is true, and precisely what part he physically played in carrying out the agreement between him and Petty to kill the deceased. However, what is clear beyond reasonable doubt is that there was an agreement between them that the victim should be killed for no good reason. On any version he was part of the agreement and on any version he gave the deceased the initial push preparatory to Petty breaking his neck, and whether he himself first tried to break the deceased's neck is not of any great significance. It was therefore a deliberate, callous, premeditated killing of a young man the killers had given a lift to, befriended and invited to join them in a proposed serious criminal enterprise. They then, so the applicant says, brutally killed him by breaking his neck because he knew about them and their plans and they feared he might notify the police. I accept that the applicant was not the instigator of the offence and was at the time under the influence of a considerably older man. 7 The applicant was born on 24 June 1966 in Melbourne and so was twenty one years old at the time of the murder. At the age of three or four he was placed in an institution along with two of his brothers, and he remained in institutional care until his mid teens when he was briefly re-united with his mother but shortly afterwards he was made a state ward. From the age of fifteen he had a number of convictions mainly in Victoria for offences such as theft, burglary, stealing motor cars, possess house breaking implements and escape from a youth training centre. He served a number of short sentences and ultimately in the District Court at Goulburn on 4 June 1987 he was sentenced to a total of four years penal servitude with a non-parole period of two years for break, enter and steal and forgery. It was whilst serving this sentence at Cooma that he and Petty escaped on 10 October 1987. 8 They travelled to South Australia where they remained for several weeks and then, with two others as travelling companions, they left Adelaide in a stolen motor vehicle on 21 November and drove through Northern Victoria to Sydney, and they then travelled north to Coff's Harbour, on the way picking up the deceased and a young female companion on the Pacific Highway near Macksville. After going to Coff's Harbour, they headed for Grafton via Glenreagh and it was at the latter place that the murder took place. The remainder of the group continued travelling, committing a number of offences on the way, until Petty and the applicant were ultimately arrested on 29 January 1998 near Yass and charged with escape from lawful custody. Subsequently, after being interviewed, both were charged with the murder on 16 February 1988, and made their first appearance on that charge at Goulburn Local Court that same day. 9 Following the sentence for murder, on the 27 March 1992, the applicant in the District Court at Sydney before Gallen DCJ pleaded guilty and was sentenced in respect of a number of offences including the escape itself and also a number of break, enter and steal, and larceny offences, committed between the time of the escape and the time of his re-arrest. For escape lawful custody, the applicant was sentenced to a fixed term of two years to commence at the expiration of the sentence being served at the time of the escape. His Honour was informed that the sentence expired on 4 February 1990 and dated the sentence for the escape from that date. It has since been ascertained that the date of expiry of the sentence being served at the time of the escape was miscalculated because the time spent at large following the escape was not taken into account and that correctly calculated the date of expiry of the original sentence should have been 31 March 1990. Most of the other sentences were for lesser periods or back dated and were made concurrent with that one, but on a charge of larceny of a motor vehicle from Werris Creek on 19 January 1988 he was sentenced to a minimum term of three years to date from the date of sentencing (ie 27 March 1992) with an additional term of one year. His Honour was of course aware that the sentences he was imposing were largely academic because of the life sentence that had already been imposed on the applicant, but it follows that until 26 March 1995 the applicant was serving sentences for the escape and the offences committed whilst at large. I shall come back to this aspect of the matter. 10 After being sentenced for the murder on 11 October 1988, the applicant was classified A2 in Goulburn Correctional Centre. In 1991 whilst at the Reception Prison at Long Bay, where he had been moved temporarily to facilitate court appearances, he wrote a letter indicating that he had decided that he should do something to improve his life by undertaking education with a view to obtaining employment on his ultimate release, and he also at about this time obtained a position as head sweeper in which position he performed well. Up until this stage he had been on protection, but in 1992 he undertook and successfully completed a Motivation and Attitude Development course which became available to selected young inmates in protective custody, although it was necessary for them to cease being on protection whilst undergoing the programme. In November 1994 at his own request he was placed back in protective custody because he was experiencing difficulties with two fellow inmates and as a result he lost his employment as clerk in the Office of the Assistant Superintendent of Industries. 11 On 14 January 1995, he was listed for transfer to Goulburn but deliberately inflicted wounds on himself and was subsequently transferred to Lithgow on 28 February 1995. 12 Since about 1991 he has undertaken a number of courses particularly in the computer field and acquired a number of skills. He has generally received good reports. There have been some blemishes, including charges of cannabis in urine and attempts at self harm and a period at Lithgow Correctional Centre about 1995 when he was depressed. He was re-classified B in September 1995 and transferred to Grafton Correctional Centre where he worked in the print shop but he was on protection and the print shop was subsequently transferred to the minimum security section of the gaol. Apart from using cannabis and on occasions drugs such as Rohypnol etc, he has not been a heavy drug user and in particular he has not used heroin since he was a youth. He has been attending alcohol and other drug courses. Whilst at Lithgow he went on the Methadone program in an attempt to obtain medication for depression which he was then suffering rather than to deal with heroin dependency. 13 In September 1997 he was transferred to Junee Correctional Centre, which is wholly a protection institution. He subsequently applied to undertake the Special Care Programme which caters for inmates with behavioural problems which manifest in self defeating behaviour, and at the time of hearing, the result of his application was not known, although the assessment committee had met. He was undertaking a pre-university training course, working in the cable factory and doing a woodwork course. He gave evidence before me that his hopes for the future included successfully completing the course at the Special Care Unit, improving himself as a person to gain life skills so that hopefully one day he can integrate back into society. He hopes to obtain further educational skills particularly in the computing and social science fields. 14 He has been assessed by Dr Lucas, psychiatrist, whose diagnosis was that although he was not suffering from a major psychiatric disorder at the time of the murder, since being in prison he has had recurrent episodes of depression which he describes as "an adjustment disorder with depressed mood". At times paranoid feelings have also been apparent. He expressed the view that the applicant is suffering a personality disorder but its severity is difficult to assess as he has spent little time out of institutions with no real opportunities to demonstrate how he can function in the community. There were indications from his recent time in prison that he's settling down and can apply himself to studies and employment and is motivated to do something about himself. 15 Both to Dr Lucas and in his evidence before me he has accepted responsibility for his role in the murder and expressed contrition for it. In his application to be admitted to the Special Care Unit (10 October 1998) the applicant set out his list of goals if accepted for the programme as follows: 1. Anger management; 2. Assertiveness skills; 3. Learn the signs that manifest when reaching a state of depression, anger, procrastination; 4. Learn to put into practice rational thinking dissociated from negative emotions during stressful situations; and 5. Break the cycle of repetitive thought patterns linked to the past which are negative to his behaviour. This list in my view shows an awareness of his current problems and a desire to overcome them. 16 The overall impression which I get is that in time he will reach a stage where he should be able to reintegrate into the community; that time has not yet come but the issue is not whether the time has yet arrived but whether there is a prospect of it occurring in the future. The fixing of a minimum term does not determine the date of his release, that is a matter for the Parole Board subject to the considerations set out in s 17 of the Sentencing Act 1987, and I am satisfied that this is an appropriate case for re-determination of the life sentence. 17 The determination of the fresh sentence is complicated by the factors to which I have already referred, namely the fact that at the time of the murder he was an escapee from an outstanding sentence, which had to be completed on his recapture, and he has since been sentenced for the escape itself and a number of other offences committed whilst at large. A similar situation concerning escapees committing murder and other offences and being sentenced separately for the escape and other offences arose in R v Purdey (1992) 65 A Crim R 441 affirmed by the Court of Criminal Appeal (1993) 31 NSWLR 668, SLR (1994) 181 CLR 691n and R v Haggart (unreported - Dunford J - 19 November 1993). 18 In respect of the escape and other offences committed whilst at large, a number of concurrent and partly concurrent sentences were imposed by Judge Gallen on 27 March 1992 the overall effect of which was that the longest minimum term expired 26 March 1995. 19 At the time he was taken into custody on 29 January 1988 he was an escapee and so continued serving his pre-existing sentences which did not expire until 31 March 1990, by which time he had been sentenced for the murder (on 21 September 1988). Accordingly when remanded in custody on 16 February 1988 it was not for this offence, and the appropriate date under s 13A (5) for commencement of the minimum term to be set on this application is the date on which the original sentence commenced (i.e. 21 September 1988): R v Purdey. 20 Although the sentence must be backdated to the date of the original sentence, in calculating its length, these other outstanding sentences must not be disregarded as otherwise the applicant would in effect only be punished for the murder and not for the other offences. As Hunt J said in R v Purdey at 65 A Crim R at 447: "As the judge resentencing pursuant to s 13A is precluded from making the fresh sentence cumulative upon others which the prisoner was serving when the original life sentence was imposed - or would have been serving when sentenced for the murder in the ordinary course of events - he or she must therefore make the sentence for murder longer to take those other crimes into account, provided that the sentence imposed for the murder remains individually proportionate to the crime for which it is imposed. Again, to hold otherwise would effectively mean that the applicant would not be punished for those other crimes." This passage was approved by the Court of Criminal Appeal at 31 NSWLR 668 at 680 per Carruthers J with whom on this point the other members of the Court agreed. Moreover, it is necessary to fix a sentence for the murder which reflects the seriousness of that offence and takes into account protection of the public, retribution, general and personal deterrence, as well as rehabilitation: R v Purdey . But regard must also be had to the principle of totality with the result that the additional term to be served for the murder will be less than it would have been if it had stood alone as a single offence and he were being sentenced for it in isolation. 21 Taking these factors into account I consider the additional minimum term which should be added to the other sentences (that is to be served beyond 26 March 1995) is twelve years, which as I say is considerably less than would have been an appropriate minimum term for this offence if it had stood alone, but it must be fixed by reference to a commencement date of 21 September 1988. 22 Stephen Arthur Leslie Maiden, for the murder of Mark Gerald White I re-sentence you to penal servitude for a minimum term of eighteen and a half years and it shall be deemed to have commenced on 21 September 1988. I fix an additional term of six years; the earliest date on which you will be eligible to be released on parole will be 20 March 2007. **********