New South Wales Supreme Court CITATION : REGINA v GIDLEY [1999] NSWSC 498 CURRENT JURISDICTION : Criminal FILE NUMBER(S) : 91/012 HEARING DATE(S) : 21 May 1999 JUDGMENT DATE : 26 May 1999 PARTIES : REGINA v Cecil Walter GIDLEY JUDGMENT OF : Bell J at 1 COUNSEL : Crown: R. Cogswell SC Applicant: J. Nicholson SC SOLICITORS : Crown: P. Thompson Applicant: W. Hutchins CATCHWORDS : CRIMINAL LAW AND PROCEDURE ; Sentencing; Re-determination of life sentence Sentencing Act 1989 ACTS CITED : Mental Health Act 1990 Criminal Procedure Act 1986 Crimes Act 1900 Regina v Twala (unreported CCA 4/11/94) Regina v Kalazich (1997) 94 A Crim R 41 Regina v Previtera (1998) 94 A Crim R 76 Regina v Fenech (4/9/97) Regina v Purdey (1993) 65 A Crim R 441 Veen v The Queen [No 2] (1988) 164 CLR 465 Regina v Dennis (unreported CCA 28/10/92) CASES CITED : Power v The Queen (1974) 131 CLR 623 Regina v Maclay (1990) 19 NSWLR 112 Regina v Leaver (unreported CCA 23/11/94) Regina v Robinson (28/11/97) Regina v Spinks (unreported CCA 7/8/97) Regina v Bell (18/4/95) Regina v Salameh (15/12/98) Regina v Alexander (7/5/99) DECISION : See para 90 31 IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION BELL J Wednesday, 26 May 1999 91/012 - REGINA v Cecil Walter GIDLEY JUDGMENT 1 HER HONOUR: This is an application by Cecil Walter Gidley brought pursuant to s.13A(2) of the Sentencing Act 1989 for an order determining minimum terms and additional terms in respect of the life sentences imposed on him by Mr Justice Roden on 22nd April 1983. 2 On 21st March 1983 the applicant was indicted before Roden J on an indictment containing two counts of murder and one each of robbery with striking and armed robbery. He pleaded not guilty to the two charges of murder and guilty to the two robbery matters. On 31st March 1983 the jury returned verdicts of guilty in respect of each count of murder. The matter was stood over for sentence to 22nd April 1983. On that occasion two further indictments were presented and the applicant when arraigned upon them pleaded guilty to a series of further charges. Those were as follows: (i) escape from lawful custody, (ii) stealing, (iii) use offensive weapon with intent to prevent lawful apprehension, (iv) possess shortened firearm, (v) break enter and steal, (vi - ix) four counts of kidnapping, (x) forgery, (xi) uttering, and (xii) steal from a dwelling. 3 Additionally there was one count of armed robbery to which the applicant pleaded not guilty. It should be noted that in relation to the charge of break enter and steal the applicant asked that a further seven matters appearing on a schedule be taken into account. Those additional charges comprised a break enter and stealing offence together with three instances each of forging and uttering. 4 It appears that the applicant called no evidence on sentence nor were any submissions addressed to his Honour on the applicant's behalf. As at 22nd April 1983 sentences of life imprisonment in respect of the convictions for murder were mandatory unless it appeared to the sentencing judge that the prisoner's culpability for the crimes was significantly diminished by mitigating circumstances. There was nothing of that nature in the facts of this case. In that sense it might be thought unsurprising that no material was placed before the sentencing judge. I note that during the course of the trial the applicant withdrew his instructions from his solicitor and counsel and thereafter appeared unrepresented. 5 The facts of the two murders are summarised in the Statement of Facts prepared by the office of the Director of Public Prosecutions in accordance with Practice Note 57. The applicant through his legal representatives filed a Notice dated 7th December 1998 in which he stated his acceptance of the Statement of Facts. On the hearing of this application the applicant gave evidence and sought to supplement aspects of the facts as agreed. I will come to this aspect shortly. 6 At about 5pm on 30th January 1982 the applicant, probably in company with an unidentified companion, went to premises at 9 Moonbria Street, Naremburn. The applicant was armed with a sawn-off 12 gauge double barrel shotgun. The premises were the home of Bernard and Elsa Levine. They were an elderly couple both in their seventies. Mrs Levine was five years older than her husband. There is nothing to suggest that they had ever met the applicant or his companion. It is likely that Mr and Mrs Levine opened the front door of the premises since the police detected no signs of forced entry. Once the applicant gained entry to the premises it appears that he or his companion made demands of the Levines which were not met. Thereafter the applicant struck each of them over the head on more than one occasion with the butt of the shotgun fracturing their skulls and occasioning the fatal injuries. 7 A little after 8am the following morning the Levines' son-in-law, Herbert Kalcher, happened on the scene. He looked through a partially open window in the lounge room and saw the body of his father-in-law lying on the floor with blood on the carpet nearby. He entered the house through a window and saw his mother-in-law lying near her husband with blood on the back of her head. The police were called to the premises and they observed blood stains on the lounge room curtains, the window frame, inside the front door, on the western wall of the lounge room, the television set and a cupboard in the lounge room. That was in addition to the blood on the bodies and on the carpet near where the bodies were lying. Police also observed that the telephone receiver was off its rest and the cord had been forcibly pulled from the socket. Drops of blood were located in other rooms of the house. 8 The post mortem examination of Bernard Levine revealed six large lacerations around the left side of his head and forehead. There were several small skin abrasions on the shoulders and back, haemorrhages in the upper lids of both eyes, a fracture to the right side of the jaw bone, and several fractures extending from the right side of the skull to the base of the left hand side and again at the back of the skull. An autopsy performed on the deceased Elsa Levine found seven large lacerations on the head and a Y-shaped fracture to the base of the skull at the back of the head. It was the doctor's opinion that the application of considerable force would be required to inflict the injuries to both the deceased's skulls. 9 At the time of the commission of these murders the applicant was an escapee. He had been serving a sentence at the Malabar Training Centre and on 17th January 1982 he failed to return from day leave. He had been serving a sentence of balance of parole. That sentence was due to expire on 8th March 1982. 10 Three days after the murder of Bernard and Elsa Levine the applicant entered a firm of estate agents at Bondi Junction armed with a sawn-off rifle. He committed a robbery obtaining the sum of just under $4,000. In the course of that robbery he struck a customer with his shotgun. It was this conduct which gave rise to the offences of armed robbery and robbery with striking to which the applicant pleaded guilty before Mr Justice Roden on the day his trial for the two murders commenced. 11 Three days after the armed robbery the applicant broke and entered premises in Lugarno with a view to stealing firearms which he had been informed were to be found there. He was disturbed by the activation of an alarm in those premises. He left and entered a home nearby where making use of a sawn off shotgun to back-up his demands he required the householders, including an infant child, to accompany him in their car. This behaviour gave rise to the four charges of kidnapping. 12 The following day whilst in Grace Bros at Warringah Mall the applicant was seen to remove a price ticket from a carry bag. He produced his sawn-off shotgun to prevent arrest in those premises. That gave rise to the charge of stealing and of using an offensive weapon with intent to prevent lawful apprehension. On the same day he broke into premises in Hunters Hill where he stole a number of items including a cheque book. On 13th February 1982 on four occasions he used cheques from the stolen cheque book. On 15th February he stole a number of items from a dwelling house in Fairlight. He was arrested on 16th February 1982. 13 At the time of his arrest he was in possession of the shortened double barrel shotgun which was the subject of one of the counts in the indictment to which he pleaded guilty. 14 In relation to the offences of armed robbery and robbery with striking and the four counts of kidnapping Mr Justice Roden imposed concurrent sentences of ten years penal servitude. The remaining charges were the subject of sentences subsumed by the ten year terms. All determinate sentences were expressed to commence from 8th March 1982 and were concurrent with the two life sentences which also commenced on that date. His Honour declined to specify a non-parole period in relation to the determinate sentences. 15 On 16th September 1983 the applicant attempted to escape from the Central Industrial Prison at Long Bay. On 8th August 1985 he was sentenced to a term of two years in relation to this offence. 16 On 16th October 1989 the applicant succeeded in escaping from the Grafton prison. He was at liberty for a period of fifty days. On 6th December 1989 he was arrested in South Australia. He was subsequently returned to custody in New South Wales. He was convicted of this escape following a trial before Judge Phelan and a jury. On 28th October 1991 his Honour imposed a sentence of imprisonment for a period of four years and one day comprising a minimum term of three years and one day with an additional term of one year. The sentence was expressed to commence from the date of its imposition. It is apparent from his Honour's remarks on sentence that he took a serious view of this escape which he found to have been the product of sophisticated planning. 17 The applicant has a lengthy criminal history. His first custodial sentence was imposed on 10th October 1968. There are a number of entries for the possession and use of prohibited drugs, breaking entering and stealing, escaping from lawful custody and larceny. 18 A quantity of material has been placed before me on this application disclosing the applicant's progress in custody over the past seventeen years. The bulk of this material is in the form of the reports of the Serious Offenders Review Board, later the Serious Offenders Review Council ("the Council"), together with annexures thereto. 19 In the first of those reports under the hand of retired Judge Gee QC, the following observation is made: "He has the reputation for being a notorious heroin addict and many of his earlier offences have been associated with drug taking. As time passed, however, there have been increasing signs that he suffers from bouts of serious mental illness and that his drug taking has served only to mask this problem." 20 The report goes on to refer to the applicant's admission to the North Ryde Psychiatric Centre on 21st April 1968. On that occasion it appeared that he was suffering from delusions reportedly caused by drug taking. 21 In 1986 the applicant spent three months in the Parklea Drug Unit. Generally, he appears to have received a favourable assessment there. Significantly, officers monitoring his conduct made the following observations: "Cec can be quite rational for many days or even weeks. However there are times when he displays psychotic behaviour." 22 David Roland, a psychologist, who worked closely with the applicant at the Drug Unit made this observation in a report dated 16th May 1986: "He can go through swift mood swings where he becomes very resentful, angry and quite irrational in his thinking, the latter tending towards paranoia. It certainly shows a side of him that is close to psychotic." 23 The applicant was a witness before the ICAC Inquiry into the use of informers. Commissioner Temby described his behaviour as "quite aberrant" and observed that he was a man who wrote "letters that appear to be the product of a seriously disturbed mind". 24 The first assessment of the applicant as suffering from a psychiatric illness appears to have been that made by Dr Barclay in a report dated 24th May 1993. Dr Barclay interviewed the applicant at the Metropolitan Reception Prison, Long Bay, on 8th March 1993. He had then served eleven years of the present sentence. In reviewing material relating to the applicant's background, Dr Barclay referred to a note prepared by an officer at Parklea Prison in May 1987. That officer had suggested that it was desirable for the applicant to undergo a psychiatric assessment. Dr Barclay also made reference to the contents of a letter written by the applicant on 14th July 1987 which was indicative of confused thinking and probably represented an example of thought disorder. Significantly, Dr Barclay commented on the contents of some diaries maintained by the applicant which were apparently produced at his trial. There appears to have been a suggestion that the contents of the diary entries was psychotic. 25 At the time the applicant spoke with Dr Barclay he appears to have been quite florid. Dr Barclay recited the numerous conspiracy theories advanced by the applicant during the interview together with the applicant's denial of his involvement in the murders of the Levines. At that time, among other things, the applicant asserted that the Levines were a Jewish couple and that Roden J was prominent in the Jewish community. He told Dr. Barclay: "It was useful to me to appear to be guilty at that time because it served the purpose." 26 He went on to tell Dr Barclay that he believed that because he appeared to have been guilty of killing two prominent Jewish people that the Muslims saw him as supportive of their mission for social change. Dr Barclay recorded that the applicant told him: "I am an initiated member of the temple because Mum's, my mother's line goes back to a Davidian line. I was taken to Stonehenge as a child. Not the normal lodgers - my little temple which is a line from the temple Philista. I believe in God but not in a fundamentalist way. I like Eastern concepts of God." 27 Prior to this in 1986 the applicant, in an apparently more rational moment, had admitted his guilt of the murder of the Levines to the psychologist, Mr Roland, at the Parklea Drug Unit. Dr Barclay concluded his report in these terms: "In my opinion Gidley is mentally ill. I have considered the possibility that he is making all this up but I think it is unlikely when one looks back over the history of events and the hints that have been given over the years of Gidley having an underlying psychotic disorder. At this stage what he says is indicative of paranoid delusions with grandiosity and persecutory ideas. He believes that he is in some way a member of a special temple, that he has selected university students working on genetic programming, that he has infiltrated with viruses the intelligence computers of a number of the major intelligence agencies of Australia and the world, and that people come to the prison to interview him about his viruses in their computer programmes." 28 Dr Barclay went on to observe that it would be interesting to see what effect any anti-psychotic treatment might have on the applicant. He noted that it was improbable that the applicant would be co-operative in taking medication. 29 On 30th September 1994 when the Council reviewed the applicant it resolved that he should be transferred to the Long Bay Prison Hospital for psychiatric assessment as at that time his condition appeared to be "deteriorating". For various reasons which are set out in more detail in the Council's report of 17th September 1997 no psychiatric assessment appears to have been made until late April of 1995. On 3rd May 1995 Dr Jonathan Carne reported to the Council that there was "strong evidence that Mr Gidley is suffering from a mental illness. The illness has features of grandiosity, hostility and paranoid delusions and formal thought disorder". Dr Carne expressed the view that a course of anti-psychotic medication should be trialed. He shared Dr Barclay's doubts that the applicant would co-operate with a regime of medication and, at that time, there were not sufficient grounds for imposing a compulsory regime. 30 There are indications, apart from the contents of the psychiatric reports, to suggest that in the mid-1990's the applicant was mentally unwell. In an interview with the Visiting Committee of the Council on 31st January 1996 it was noted that he was co-operative but "still lost in fantasy". Amongst other things he told the Committee members that "the Jews had control of me for a long time". Later that year in August when the Visiting Committee re-interviewed the applicant he gave an account that he was Richard Truman and that "when he had escaped he stayed with Japanese people from IBM" who would be "happy to have him back to stay when he is released". 31 At the beginning of the following year the Visiting Committee attempted to interview the applicant but he refused to attend. His case management officer advised, "Cecil is not currently in touch with reality, has association problems with life". 32 The present application made pursuant to s.13A was first filed in 1991. For a variety of reasons including, no doubt, the pending trial and subsequent sentence imposed by Judge Phelan, the matter did not progress for some time. Again, it is noteworthy that in July 1995 the applicant told the Visiting Committee that he had decided to withdraw instructions from the Legal Aid Commission in respect of this application because they were "all out to get me, they're communists". Mr Nicholson SC, who appears on behalf of the applicant on the present application, tendered letters written by the applicant to Mr Grahame of the Legal Aid Commission in mid-1995. Their content is quite bizarre. 33 Dr Carne reviewed the applicant on 18th July 1996. He reported that the applicant had refused to take his advice concerning anti-psychotic medication. At that time Dr Carne was of the opinion that there were still no grounds for compulsory medication. 34 On 19th August 1997 Dr Carne provided a further report relating to the applicant. At that time it appears that the applicant was again quite florid. He spoke of Hannibal's elephants, artificial intelligence and scanning other people's minds using telepathic techniques. Old Testament imagery played its part too. In that report Dr Carne expressed the opinion that the applicant suffered from paranoid schizophrenia. Dr Carne concluded that the applicant should be made a forensic patient. He considered that the applicant's future and the welfare of the public would be better served if he were under the supervision of the Mental Health Review Tribunal. On 9th September 1997 Dr Ali, psychiatrist, provided a report on the applicant and concurred with Dr Carne's conclusion that he should be made a forensic patient and placed on anti-psychotic medication. As at 17th September 1997 when the Hon. Kep Enderby QC prepared a supplementary report on the applicant it was noted: "There is ample evidence to support the view that Gidley's behaviour reflects that he is suffering from a serious mental illness which perhaps in the past has been difficult to diagnose or define. Recent expert psychiatric opinion suggests that Gidley's condition is deteriorating and that his mental illness is becoming more definable. The SORC is of the view that if his condition does not ameliorate, Gidley will be unable to survive in normal community life and will require institutional care for an indefinite period." 35 On 17th September 1997 the applicant was made the subject of an order pursuant to s.97(1) of the Mental Health Act 1990. As a forensic patient he was transferred to the Long Bay Prison Hospital and his management became the joint responsibility of the Council and the Mental Health Review Tribunal. 36 As a forensic patient the applicant was placed on anti-psychotic medication. The effects appear to have been dramatic. On 3rd June 1998 the Assessment Committee of the Council interviewed him and noted that he was described by members of the Custodial and Inmate Development Services Staff as being well-behaved, polite and volunteering to undertake tasks. 37 On 30th July 1998 the Mental Health Review Tribunal recommended to the Minister for Health that the applicant should cease to be detained as a forensic patient on the basis that: "Mr Gidley is intelligent and resourceful, and is compliant with medication. … Mr Gidley has developed reasonable insight into the long-term benefits to him, in terms of achieving eventual release, of voluntary compliance with an anti-psychotic medication regime." 38 On 13th August 1998 the Minister for Health approved the recommendation. The applicant ceased being a forensic patient and was returned to his former custody. Since that time and to date the applicant has been receiving periodic injections of a drug known as Zuclopenthaol-Decanate. This is a long-acting anti-psychotic medication. Currently the applicant receives injections at four weekly intervals. 39 In a Supplementary Report prepared by the Council dated 10th November 1998 it is observed: "The current medication regime being adopted by Gidley has caused an appreciable difference in his behaviour, as evidenced by the lucidity of his recent written communication to the SORC. Previously, there was ample evidence to support the view that Gidley's behaviour indicated that he was suffering from a serious mental illness." 40 The Crown opposes the determination of a minimum term for this applicant. It is the Crown's primary submission that these murders fall within the worst category of case and exhibit features of heinousness (and an absence of features of mitigation) such as to make it appropriate that the applicant remain in custody for the rest of his life: Twala (unreported, NSWCCA, 4th November 1994) per Badgery-Parker J at 7; Kalazich (1997) 94 A Crim R 41 at 50-51. In the alternative the Crown submitted that were a determinate sentence to be imposed the additional term specified should be for the remainder of the applicant's natural life. 41 In submitting that these killings exhibited features of heinousness that would justify a refusal to set a determinate sentence, the Crown invited me to find that the applicant deliberately killed the Levines in order to do away with witnesses. My attention was drawn to the contents of a report prepared by David Roland dated 15th August 1986 which recorded an admission made to him by the applicant in these terms: "Soon after his escape he collapsed with a stomach injury and was taken to hospital. As soon as he could walk and while still suffering pain he left the hospital and met a friend who said he knew of a private residence where they could obtain $80,000 and Gidley agreed to this. During this time he was using heroin and drinking heavily which had the effect of staving off the pain he was experiencing. At the time Gidley and his accomplice were so intoxicated that they got the number of the house mixed up. After ransacking the house and not finding the money Gidley brutally bashed the two elderly residents to death so as not to leave any witnesses. Following on in close succession Gidley committed the other offences in an attempt to acquire the funds he required for a trip to America." 42 In evidence before me the applicant said he had first made admissions as to his guilt of the murders when he was a resident of the Parklea Drug Unit. He said, "That was when I first felt guilty about what I had done in a sensible manner, in a sane manner" (T.5). However, the applicant did not concede the accuracy of the version David Roland attributed to him. 43 The applicant's evidence concerning the killings was that he and an accomplice, known only by the name of Jerry, planned to go to the home of a drug dealer in order to steal money. The applicant had instructions as to where the money was hidden. He had the number of the drug dealer's house written on a piece of paper. He must have made a mistake as to that number. On arrival he was not surprised to find two older people in the premises because he believed the drug dealer lived with his parents. He and his companion arrived at the house with tape in order to tie up anyone who might be present. After gaining entry he went into a bedroom to look for the money. Jerry held the Levines captive in the lounge room. Whilst the applicant was searching for the money he heard the sound of breaking glass. He went back into the lounge room where he observed a struggle between Mr and Mrs Levine and Jerry. The struggle was for control of the shotgun. At the time the applicant arrived Jerry had been pushed backwards and his elbow broke one of the lounge room windows. At that point the applicant became involved in the struggle. He said this: "We got the upper hand and the Levines sustained - I hit them with the shotgun over the head too hard, too hard, but I didn't know at the time." (T.5). 44 He was asked what intention he had at that time and he replied: "I was panicking, probably because I was under the influence of drugs and alcohol and - at that time of my life and my mind was just a blank really." (T.5). 45 He was asked whether he knew he was hitting them to which he replied: "It was a bit of a blur. I was hearing voices at that time too. So the whole incident is a bit of a blur and I am not saying that to make it easy to get out of it, but it is a bit of a blur, the whole struggle episode, but I remember at the end of it that the Levines were laying on the floor and blood was coming from their heads and I was concerned at that point that I might have killed them." (T.5). 46 The applicant was cross-examined concerning the statements said to have been made to Mr Roland in 1986. He did not recall telling Mr Roland that at the time he had struck Mr and Mrs Levine he had an intent to kill. He did not deny such statements but indicated he was unable to recall what he had told Mr Roland. In re-examination the applicant asserted that he had not made any conscious decision to not leave witnesses at the scene. At T31 this exchange is recorded: "Q. Was the panic driven by any sense of the possibility that the matter could be reported to the police and what that may lead to? A. I was very drunk at the time so they may all have been factors rushing through a criminal mind which I had but I find it very hard to remember the actual event. I am not saying that to evade any question, I was very drunk and very stoned and it was a sudden struggle and it ended with the Levines, the injuries took their lives." 47 In further cross-examination by leave the Crown Prosecutor put these matters to the applicant: "Q. I put to you that you told Mr Roland that the reason for you killing Mr and Mrs Levine was so that you would not leave any witnesses? A. I don't think that is true. I may have, I can't recall conversation with David Roland. I may have said that way back then but I don't think so, I really don't. Q. And I put to you that is the reason you killed the Levines in order not to leave any witnesses. What do you say to that? A. No, it was not that pre-planned, it was not that simple, it was more crazy than that." (T.32). 48 I do not accept the applicant's account given in evidence as to the circumstances surrounding the killings. I consider the account that the elderly couple attempted to disarm a young man holding a double barrel shotgun an unlikely one and the circumstance that the applicant has previously given an inconsistent version does not encourage me to accept the present one. However, I am not prepared to find as a fact beyond reasonable doubt that the applicant deliberately formed an intention to kill the Levines in order to do away with them as witnesses. I have no doubt that the applicant said that to Mr Roland in the course of an interview in 1986. At that time the applicant also gave an account that his co-offender was a married man with children. This is in contrast to the evidence he gave before me on the hearing of the application. I have no reason to consider either version as truthful. In the course of cross-examination the applicant gave an account of why he had given the earlier version about his co-offender. He said this: "I just wanted the issue dealt with so that everybody would relax about it, because I had pressure on me to name him. … So I just made up a little story that covered everything, kept everybody happy and got them all of my back so that I could just make admissions that I'd committed the murders, admissions relating to me and me alone and I didn't get into any trouble with any other prisoners, you know, by informing on anyone else and everybody was happy with that at the time." 49 In the report of the Council signed by retired Judge Gee QC reference is made to a further admission of guilt made by the applicant in a letter to Mr Schubert, the Superintendent of Classification, dated 23rd April 1986. The report goes on to observe that two years later the applicant again wrote to Superintendent Schubert on 21st April 1988. On this occasion he denied committing the murders and gave a version of events described as being wildly at variance with the one he had given to the psychologist at Parklea in August of 1986. The report states: "Both versions have a tinge of plausibility about them but neither version is substantiated by contemporary records. They appear to be the products of a mind with a tenuous grasp of reality." 50 Although, as I have indicated, I am not prepared to accept the somewhat self-serving version given by the applicant in his evidence before me, nor do I consider it would be appropriate to sentence upon the version given to the psychologist. I think it is reasonably possible that the killings were, as the applicant said, not preplanned and somewhat more crazy than the account to the psychologist would suggest. 51 In approaching this application I give substantial weight to the comments made by Mr Justice Roden when sentencing the applicant: "There is no account which I had from him in court upon the basis of which I can assess the motive or purpose for these killings. It is clear from the evidence that at or about the time of the two murders the home of the deceased was ransacked in a manner indicating that robbery was the motive. However, the home in which tragedy occurred was a modest suburban home which on the face of it gave no indication of the availability of any great wealth or of anything else that may make the home attractive to a person bent upon robbery. Some of the remarks attributed to the prisoner by witnesses called at the trial are capable of suggesting that there was a deeper motive behind the killings, and that it is not unlikely that the prisoner believed that there would be some money or other property available at those premises. The nature of those remarks attributed to the prisoner and the nature of the killings are also capable of suggesting that the killings were either in the nature of an assassination or the result of frustration when the victims failed to deliver to the prisoner whatever it was that he may have been expecting to find. These are all possibilities which suggest themselves on the evidence, but they are no more than that. The evidence of the witnesses who saw the two men arrive also suggests the possibility that they may have entered the wrong house by mistake. For sentencing purposes I cannot properly settle upon any of those possible versions of the facts. But there is no basis upon which I can do more than regard these as brutal killings by a person who at the time was bent upon a criminal enterprise." 52 I approach my task on an acceptance of his Honour Mr Justice Roden's view that these were brutal killings by a person who was bent upon a criminal enterprise. 53 The objective criminality of these offences is of a very high order. The applicant took two lives. The Levines were elderly, they were in the sanctity of their own home, they were very brutally bashed about the head and they had done nothing to provoke any assault upon them. 54 A Victim Impact Statement signed by Mrs Maureen Kalcher was tendered in evidence before me. Provision is made for such statements to be received and considered by the court when determining an application under s.13A of the Sentencing Act 1989; s.23C(2) Criminal Procedure Act 1986. That statement was signed by Mrs Kalcher on 8 August 1997. She describes the terrible grief to which she was subject following the murder of her parents and the associated severe depression which has plagued her since. At that time she described herself as still living with the murders vividly present in her mind. It would appear that members of the Levine family attended the hearing of this application. It is eloquent testimony of the love that Bernard and Elsa Levine inspired that so many years later their loss would continue to be so acutely felt. The court has noted the contents of the Victim Impact Statement and extends its profound sympathy to Mrs Kalcher and her children. I am mindful of the approach adopted by the former Chief Judge of the Common Law Division in R v Previtera (1998) 94 A Crim R 76 at p.85 to the use to which such material should be put in a case such as this. I adopt that approach and it is not necessary for me to further refer to the matter. 55 Terrible as these two murders were I have come to the conclusion that it is not an appropriate case in which the court should decline to fix a determinate sentence. 56 The killing of the Levines and the violence inflicted during the course of the armed robbery three days thereafter are, having regard to the whole of the applicant's criminal record and known history, somewhat uncharacteristic. This was a matter which Dr Lucas remarked on in his report prepared for the applicant's legal representatives dated 1st October 1998. In that report Dr Lucas expresses this opinion: "Although I can reach no firm conclusion about the role his mental illness may have played in the commission of the murders there are hints that round this time he was experiencing psychotic symptoms, which although not severe he perceived as unusual even given his long experience of drugs. If this is so, he may well have suffered some disturbance of judgement which combined with his circumstances led him into situations where for the first time he engaged in violent offending. Even if one does not accept this view, and it is a tentative one, there is no doubt that he later developed frank psychotic symptoms which had been present intermittently during his imprisonment. The fact that he has now received treatment with good effect and is compliant with it suggests Mr Gidley's future prospects may be considerably better than one would previously have thought." 57 It would seem a number of features led to Dr Lucas' view that there were hints that the applicant's mental illness may have played some role in the commission of the murders. Dr Lucas considered that it is difficult to be certain about the date of onset of the applicant's psychotic illness but that there were important indications that all was not well perhaps as far back as 1980 or 1981 (report page 4). Interestingly, in his discussions with Dr Lucas the applicant did not assert that the offences were committed because of delusions or hallucinatory experiences. However, he did give an account of an incident during his stay in America (prior to the commission of the murders) which was suggestive of a psychotic episode. Dr Lucas observes that aspects of the applicant's behaviour during his trial for the murders appear to have been unwise for an intelligent man (and there is no doubt that the applicant is an intelligent man). Apart from sacking his legal representatives it appears that against the advice of the trial judge he insisted that police note books and his own diary be put into evidence. It will be remembered that there is a suggestion that the entries in the diary were of a psychotic nature. It also appears that the applicant gave a history of auditory hallucinations in late 1981. 58 Dr Lucas gave evidence on the hearing of this application. In the course of his cross-examination the following passage appears at T43-44: "Q. And you don't go so far as to express the opinion that there was any psychiatric pathology involved in the offences in 1982; you don't go that far as asserting that? A. I don't assert that the offence arose because of that or he would have had a psychiatric defence. I think there are hints that he may not have been psychiatrically well at that time, but as to whether he talked to voices, he apparently told the psychologist in the prison service about that, but if his mental state was disturbed to some extent then, as well as the drink and drug, I suspect that may have played a part in three weeks of pretty disturbed behaviour, in a criminal sense, but we don't know. I think Dr Barclay in his report did at the bottom of his second last page, he wondered whether Mr Gidley's disturbed mental state went back further than he expected." 59 The view that the applicant's mental state was disturbed to some extent, and that played a part in the three weeks of very disturbed behaviour to which Dr Lucas refers, receives some support from the circumstance that this appears to be the only time when he has engaged in acts of violence. 60 In approaching my task under s.13A I must have regard to the circumstance that this applicant stood for sentence before his Honour on a total of sixteen offences (together with the seven matters on the Schedule) together with the subsequent sentences imposed in relation to the escape matters; R v Fenech 4th September 1997. 61 The longest of the sentences imposed by Roden J were the ten year terms. I am informed those expired with the operation of remissions on 12th February 1989. The Crown submitted that the applicant had served seven years, one month and twenty-two days (as at the date of the hearing of the application) as exclusively referable to the life sentences. Mr Nicholson submitted that the determinate sentences would, in the absence of the concurrent terms of life imprisonment, have been subject to non parole periods. There was nothing in the applicant's criminal history that would have denied him the benefit of the non-parole period save that he stood for sentence upon two counts of murder. I accept that submission. 62 In Regina v Purdey (1993) 65 A Crim R 441, Hunt CJ at CL, dealing with an application under s.13A in respect of a prisoner convicted both of murder and of a series of armed robbery offences in respect of which concurrent determinate sentences had been imposed, discounted the latter to take into account notional non parole periods and their translation under the transitional provisions of the Sentencing Act. In this case any non parole period would have expired prior to the commencement of the Sentencing Act. I propose discounting the determinate sentences imposed by Mr Justice Roden to take into account this consideration. 63 A minimum term set pursuant to s.13A must commence on the day on which the original sentence commenced or, if the person was remanded in custody for the offence, on the date on which the first such remand commenced; s.13A(5). 64 Any sentence which I determine, in lieu of the life sentence, must reflect the objective criminality of the two murders. It must also reflect the totality of criminality involved in all the offences for which Roden J imposed concurrent sentences together with the subsequent escape matters; Purdey; R v Fenech 4th September 1997. However, it is plain that the sentence must not exceed that which is proportionate to the gravity of the murders; Veen v The Queen [No.2] (1988) 164 CLR 465 at 477. 65 In determining the minimum term pursuant to s.13A(2) of the Sentencing Act I am not concerned to fix a date upon the expiry of which I consider the applicant would be ready for release into the community; Regina v Dennis (NSWCCA, 28th October 1992). It is the role of the Board to determine when a prisoner's release is appropriate having regard to the principle that the public interest is of primary importance and that it has sufficient reason to believe that the prisoner, if released from custody, would be able to adapt to normal community life; s.17(1)(e) Sentencing Act 1989. 66 I must have regard to the matters set out in s.13A(9)(a)-(c) together with any other relevant matter. In other respects my task is no different to that which would have been undertaken by the sentencing judge at the time the original sentence was imposed had the penalty then been wholly at the discretion of the judge; Purdey at p.444. 67 The sentence to be imposed must take into account the different purposes involved in the exercise of the sentencing discretion; the protection of society, personal and public deterrence, retribution and reform. 68 By reference to these, at times competing, considerations I must, in relation to the minimum term, fix a period which justice requires that the applicant must serve before he becomes eligible for parole; Power v The Queen (1974) 131 CLR 623 at 628-9; Regina v Maclay (1990) 19 NSWLR 112 at 122. 69 The Crown has placed emphasis, among other things, on considerations of the protection of society in relation to this applicant. In particular Mr Cogswell SC has submitted that I would entertain doubts as to the applicant's personal commitment to overcoming his drug and alcohol addiction. Considerable focus in both the cross-examination of the applicant and of Dr Lucas was directed to this issue. It was submitted that since 1986, when the applicant participated in the Parklea Drug Unit programme, he had not sought to avail himself of any structured course of drug rehabilitation. I will come back to this consideration shortly. For present purposes I note that the risk of re-offending is a relevant factor in determining the minimum term; Regina v Leaver (unreported, CCA, 23rd November 1994), Veen [No 2] at p.477. 70 It does appear that the applicant was intoxicated, probably by a combination of drugs and alcohol, at the time of the commission of the murders. In his evidence before me the applicant stated that he had not used heroin for a long time now. He had consumed two smokes of marijuana while at the hospital, while a forensic patient in 1997. He considered that he had done well in giving up drugs. He acknowledged that alcohol was a bigger problem for him. He told me: "Alcohol and violence I think are related in my life and I should be very careful of alcohol. I've attended drug and alcohol counselling and I have to watch the alcohol very carefully indeed, not to drink." (page 8) 71 In cross-examination the applicant was challenged as to his commitment to constructive drug rehabilitation. Generally, it was his account that there was little more he could have done during his period of incarceration. He had on occasions spoken with drug and alcohol counsellors at the various institutions in which he has been held. He was not aware of ongoing programmes that had been available to him save for the Parklea Drug Unit. The Crown drew attention to material which suggested that the applicant had failed to complete the second phase of the Drug Unit programme. He also referred me to the report of Mr Roland of 15th August 1986 which suggested that indices of the applicant's continuing commitment to drug rehabilitation would include involvement in therapy programmes such as those offered at the Drug Unit and the Special Care Unit. The applicant did enter the Special Care Unit in 1986 but he remained there only a brief time. He commenced the programme with a friend who was discharged within a week. When his friend left the applicant chose to leave too. 72 Whether the applicant should have remained in the Special Care Unit or sought to undertake further treatment in the Parklea Drug Unit in 1986 seems to me to be of marginal assistance in addressing the issues both of dangerousness and rehabilitation for the purpose of this application. There has been a good deal of water under the bridge since that time. I accept that the range of opportunities for participation in drug courses may have been limited over the past ten years or more. I also note the applicant's evidence that on occasions when he was spoken to by the Council's Visiting Committee and in his discussions with drug and alcohol counsellors employed by the Corrections Health Service it was not suggested to him on any occasion that he needed to enrol in further courses. 73 This is not to say that in the event of his release the applicant ought not to be subject to careful supervision in relation to both drug and alcohol abuse. I accept that the applicant's optimism concerning his ability to deal with his long-standing addiction may be misplaced. However, regard must be paid to the circumstance that the applicant is now on medication to control his psychiatric illness. Dr Lucas said in the course of his evidence that the medication has a "considerable and obvious stabilising effect" on the applicant (T.35.34). He doubted that on release the applicant would "relive his early years again" (T.35.29). He thought his past use of drugs may have involved an element of self medication (T.35.45). 74 In its report of 10th November 1998 the Council said: "So long as Gidley continues to appreciate the importance of taking his medication and can be relied upon to do that, in the event of his life sentence being redetermined, there appears to be no reason why he could not return into the community at the expiration of any minimum term. However, he will require supervision by the Probation and Parole Service for a reasonable period after his release." 75 Dr Lucas in his report of 1st October 1998 observed: "I believe it would be of assistance to Mr Gidley and to the correctional authorities if his sentence was determined. The setting of a minimum will allow planning for his movement through the system so that his progress and overall stability are tested and he can be prepared for return to the community. If he is successful during this period it is important that when released he receives long-term supervision with the requirement that he continue psychiatric treatment. It goes without saying that abstinence from drugs and alcohol will be essential, not simply because of his past history of abuse and dependence but also because a return to this pattern of behaviour, even at a minor level, will interfere with his psychiatric treatment." 76 The applicant's evidence which was not challenged was that he has insight into the benefits of medication (T7). It is clear that he has undergone a significant improvement in his mental state over the past eighteen months. Concerns as to future dangerousness do not figure in the recent reports of the Council. For that matter, in the years prior to the identification and treatment of his mental condition, it is noteworthy that the applicant did not conduct himself in a violent way in custody. His conduct has been manipulative and bizarre at times but there is little in the material to suggest that the minimum term imposed needs to reflect emphasis on the protection of society; cf Veen [No 2] at 473-4. I regard the considerations of general deterrence and retribution as more prominent in the determination of this application. 77 I am required to have regard to the knowledge of the original sentencing court that a person sentenced to imprisonment for life was eligible to be released on licence under s.463 of the Crimes Act 1900 and the practice relating to the issue of such licences; s.13A(9)(a). To this end statistical material has been placed before me in the form of an annexure to the report of the Serious Offenders Review Board relating to the release on licence of prisoners serving life sentences between October 1981 and July 1989. This material shows that the mean time served before first release on licence by the 161 prisoners the subject of the sample was 11.7 years (minimum of 3 years maximum of 34 years). The limitations on the use of this statistical material have been referred to on a number of occasions by this court. 78 This applicant was sentenced in relation to two murders. They were objectively very serious offences that would, as at the date of sentence, have been expected to result in a custodial component well in excess of the mean length of time disclosed by the statistics. The circumstance that 92.5% of life sentence prisoners served 15 years or less prior to release on licence is of somewhat more assistance in the determination of this application. 79 I have also been assisted by reviewing a number of s.13A determinations and appeals arising from them which were supplied to me by the Crown. 80 In Robinson (28th November 1997) Abadee J dealt with an application on behalf of a prisoner who stood convicted of two murders. His victims were a 74 year old lady and her son both residents of Lightning Ridge. In addition to those crimes the applicant had subsequently been convicted of the offence of solicit to murder for which he received an 8 year term with a 6 year minimum term specified. On the re-determination a minimum term of 16 years was set. An additional term for the remainder of the applicant's natural life was imposed. 81 In Spinks (unreported, CCA, 7th August 1997) the court rejected an appeal against the severity of a sentence as redetermined by Hunt CJ at CL on a s.13A application. The applicant had been sentenced for the crimes of murder and robbery with striking and wounding. The sentencing judge had said that each was an appalling crime involving a brutal and cowardly attack on a defenceless invalid pensioner living alone. The applicant was a man with an extremely long criminal record including a number of offences of violence. The sentence imposed by Hunt CJ at CL was one of a minimum term of 20 years and an additional term for the remainder of the applicant's life. 82 In Bell (18th April 1995) Finlay J redetermined the sentence of a prisoner who, while an escapee, had murdered one man and robbed and wounded another. The objective gravity of the murder was extremely grave. The applicant had presented a very real management problem during his period in custody. There were a number of instances when he had assaulted prisoners. The sentence as redetermined was one of 18 years minimum term with an additional term for the remainder of his natural life. 83 In Sami Salameh (15th December 1998) McInerney J redetermined the sentence of a prisoner who had been convicted of one count of murder in May 1987. At the time the applicant was charged also with the possession of a shortened firearm and larceny of a motor vehicle. He and a co-accused, whilst disguised with stockings over their faces and armed with a shotgun, robbed a jewellery store . During the course of the robbery the applicant discharged the shotgun killing the victim. In addition to the serious criminality involved in that murder there were a number of other features which his Honour observed made the case "extremely disturbing". The applicant had a long criminal record. He was on bail at the time the murder was committed. Just prior to the murder he had committed other offences including an armed robbery involving the use of a shotgun. The applicant was described as having little going for him in terms of his behaviour in prison. He had been "to say the least a very difficult prisoner". His Honour found himself wondering whether the applicant would ever be rehabilitated. He was prepared to deal with his application on the basis that there was some chance of reform. However, his Honour considered there was a serious question as to the extent to which the applicant would represent a danger to the community upon his release on parole. At the time of determining the application he concluded there was a substantial basis for considering that the applicant would commit further crimes if released. A minimum term of 23 years penal servitude was imposed and an additional term for the remainder of the applicant's life. 84 In Alexander (7th May 1999) Kirby J dealt with an application for redetermination of two life sentences imposed on the applicant in 1987. He had been found guilty of the murder of a women and her three year old daughter. The applicant had been boarding at the deceased's home. During a dispute over the payment of rent he obtained a length of electrical cord and strangled her. When her three year old child found him covering her body he struck her with a piece of wood. He stabbed the child and her mother. There was evidence the killing of the mother was premeditated. The applicant had escaped whilst serving the life sentence. A minimum term of 21 years was imposed with an additional term of 8 years. 85 A review of such material as is before me concerning this applicant's conduct whilst in prison suggests that he has generally been a compliant prisoner who has pursued a variety of hobbies. In 1995 the case officer's assessment on the serious offender's review form described him thus: "Cecil is of good character, well liked, communicates with other inmates. Displays appropriate behaviour amongst peers and staff. A more settled and mature inmate. Enjoys his hobbies/interests in reading - manages to make his time useful." 86 Around this time his unit supervisor described him in these terms: "Quiet, good, well behaved inmate. Has a good sense of humour, nothing adverse to report." 87 The following year the case officer's assessment noted that the applicant mixed well in the unit and that he was involved in unit activities. His main activities included pottery and music. He was described as being "a bit exotic at times" but always polite and co-operative. 88 I accept the evidence of Dr Lucas that the applicant has a long-standing history of psychiatric illness. I accept that the indications are that as far back as 1980 or 1981 all was not well with the applicant in terms of his mental health. It would appear his condition has fluctuated in the course of his lengthy imprisonment. Generally, even when behaving in a bizarre fashion consistent with the subsequent diagnosis of paranoid schizophrenia, the applicant has been able to get on with staff and fellow inmates. I accept his evidence that it is his present intention to continue with the medication since he sees the benefits of him so doing. I consider that his prospects for rehabilitation are good. 89 I do not consider that this is an appropriate case in which to impose an additional term for the remainder of the applicant's natural life. He is now approaching 50 years of age. The sentence I intend to impose will ensure a lengthy period of supervision such as is recommended by Dr Lucas. 90 The application for the determination of minimum and additional terms is granted. In relation to each conviction for murder pursuant to s.13A(4)(a)(i) I set minimum terms of imprisonment of 19 years. Each sentence is to commence on 8th March 1982. Those sentences will expire on 7th March 2001. Pursuant to s.13A(4)(a)(ii) I set additional terms of 11 years to commence on 8th March 2001. ********** Last Modified: 05/26/1999 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.