New South Wales Supreme Court CITATION : Benjamin Bruce ANDREW and Peter Clive Basil KANE [1999] NSWSC 647 CURRENT JURISDICTION : Criminal FILE NUMBER(S) : 70071/97; 70087/97 HEARING DATE(S) : Andrew - 19/4/99 to 30/4/99 Kane - 3/5/99 to 18/5/99 JUDGMENT DATE : 2 July 1999 PARTIES : REGINA v Benjamin Bruce ANDREW REGINA v Peter Clive Basil KANE JUDGMENT OF : Sully J COUNSEL : Andrew - D. Thompson (C) , P. Byrne SC (A) Kane - D. Thompson (C), J. Barnett, replaced by J. G. Spencer (A) SOLICITORS : Andrew - Donovan Oates Hannaford, Port Macquarie Kane - James A. Hall, Sydney CATCHWORDS : ACTS CITED : Evidence Act 1995 (NSW) Sentencing Act 1989 (NSW) R v Middis (unreported: CCA: 27/3/91) R v Fernando & anor (unreported: CCA, 14/4/99) R v Georgiou (unreported: CCA, 25/5/99) R v Beavan 69WN (NSW) 141 R v Twala (CCA: (unreported: 4/11/94) R v Isaacs (1997) ACrimR 587 R v Chaouk, CCA, unreported, 17/8/93 R v Brown & ors (1994) 1 AC 212 at 237 CASES CITED : R v Todd (1982) 2 NSWLR 517 at 519E-520A R v Whittaker (1928) 41 CLR 230 at 240 R v Tappy [1960] VR 137 at 138-9 R v Harris [1961] VR 236 at 237 R v West [1979] Tas SR 1 at 6 and 9 R v Meares, NSWCCA, 3/10/97 37 ATR 321, at 325 R v Mihailovic & ors NSWSC, 15/4//91, unreported, at 4041 R v Lowe (1984) 154 CLR 606 at 610-611 R v Damon Ashley Cooper, CCA, unreported, 24/2/98 R v Sefo and R v Seriano, unreported, 13/5/98 DECISION : Andrew - Convicted of manslaughter of Wayne George Tonks. Sentenced to penal servitude for 6 years - minimum term of 4 years and additional term of 2 years. Minimum term will commence 28 April 1999 and expire 27 April 2003. Additional term will commence 28 April 2003.; Kane - Convicted of murder of Wayne George Tonks. Sentenced to penal servitude for 13 years - minimum term of 10 years and additional term of 3 years. Minimum term will commence 18 May 1999 and expire on 17 May 2009. Additional term will commence on 18 May 2009. SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION SULLY J 2 July 1999 70071/97 - REGINA v Benjamin Bruce ANDREW 70087/97 - REGINA v Peter Clive Basil KANE ON SENTENCE HIS HONOUR: Introduction 1 Before the Court for sentence this morning are two prisoners, Benjamin Bruce Andrew and Peter Clive Basil Kane. Both have been found guilty, the former of manslaughter and the latter of murder, in connection with the death of one, Wayne George Tonks ["the victim"]. 2 The prisoner Andrew was brought to trial on 19 April 1999. He was presented for trial upon an indictment charging that he had murdered, on 19 May 1990 and at Artarmon, the victim. The prisoner pleaded not guilty to that charge and he was put, accordingly, upon trial by jury. The trial continued until 30 April 1999, on which day the jury returned a verdict finding the prisoner not guilty of murder but guilty of manslaughter. The jury appended to that verdict a recommendation for leniency. The prisoner was remanded, thereupon, in custody until 4 June last, on which day evidence and submissions in connection with sentence were heard. The prisoner was further remanded thereafter until this morning for sentence. 3 The prisoner Kane was brought to trial on 3 May 1999. He, too, was presented for trial upon an indictment charging him with having murdered, on 19 May 1990 and at Artarmon, the victim. He, too, pleaded not guilty and was put, accordingly, upon trial by jury. That trial continued until 18 May, on which day the jury returned a verdict finding the prisoner guilty of murder as charged in the indictment. The prisoner was remanded, thereupon, until 4 June, and in the expectation that any evidence and submissions in connection with his sentencing could be entertained simultaneously with those of the prisoner Andrew. As it happened, the prisoner's case on sentence was not ready to proceed on 4 June; and he was remanded until 25 June on the basis that all necessary evidence and submissions as to sentence would be received by the Court on that occasion, and so as to allow of his being sentenced this morning in company with the prisoner Andrew. 4 Whatever else can be said about the death of the victim, it can be said at once that the death was the ultimate outcome of a joint enterprise to which each of the two prisoners was a party. That being the case, the Crown had originally intended to bring the two prisoners jointly to trial. The prisoner Andrew made, however, an application for a separate trial; and, in circumstances of which it will be necessary to say presently something more extended, an order was made for the separate trial of each of the two prisoners. 5 The separation of the two trials, whatever might be said about it in terms of bare legal theory, has resulted in a succession of serious practical problems. For reasons which will become apparent later herein, the Crown sought to call each prisoner in the trial of the other. This gave rise to some very difficult practical problems, of which it is not necessary to say now anything more than is said in the various interlocutory judgments dealing with those problems at the times at which they variously arose. 6 As is obvious from what has already been said, the separation of the two trials has resulted in fact in the return by two different juries of two different verdicts which, if not inconsistent in a narrow and pedantic legal sense, are certainly incompatible in a broad and practical sense; and nowhere more so than in connection with the present sentencing exercises. 7 The practical consequences of the separation of the trials of the two prisoners have been, and continue to be for present purposes, such as to justify some further comment this morning. The Separation of the Trials of the Prisoners 8 On 26 March last the joint trial, then pending, of the two prisoners was listed for mention. Mr. Thompson of Queen's Counsel appeared for the Crown, as he continued to do throughout the two subsequent trials. The prisoner Andrew was represented by his solicitor. The prisoner Kane appeared in person and unrepresented, he then being in the course of negotiating with the Legal Aid Commission for the grant to him of legal aid in connection with his own representation at trial. The expected joint trial was re-listed, therefore, for further mention on 29 March. 9 On 29 March, the prisoner Andrew was represented, once again, by his solicitor; and the prisoner Kane appeared, once again, in person. The Court was informed that legal aid for the trial of the prisoner Kane had been approved; and that a particular solicitor and a particular senior counsel had been assigned to the matter. The proposed joint trial of the two prisoners was then set for 12 April, subject to the completion on or before 9 April of the trial then in progress in the Court. 10 On 9 April, the pending joint trial was again mentioned, and an application was made by the prisoner Andrew for a separate trial. In addition to the Crown Prosecutor, there were present on that occasion Mr. Byrne of Senior Counsel representing the prisoner Andrew; and Mr. Barnett of Counsel representing the prisoner Kane. The Court was informed that there was agreement between the Crown and the prisoners that there should be separate trials. An order was made accordingly, and without any further and extended inquiry by the Court into the appropriateness or otherwise of there being separate trials. 11 It is, of course, trite that there is no vision quite like the vision of hindsight; but I have to say that, with the benefit of hindsight, I think that these trials ought not to have been separated. I acknowledge the wisdom of the proverbial advice that there is no useful purpose to be served in crying over spilled milk; but I am mindful, also, of the wisdom of the well known observation of Oliver Wendell Holmes J of the United States Supreme Court that: "The life of the law has not been logic. The life of the law has been experience". It is in the spirit of that latter observation that I make the further observations that follow. 12 The basic principles governing the separation of the trial of two or more co-accused are well established. They are stated succinctly and as follows in the judgment of Hunt J (as he then was) in Regina v Middis (unreported: Court of Criminal Appeal; 27 March 1991): "Briefly, the relevant principles are that: 1. Where the evidence against an applicant for a separate trial is significantly weaker than and different to that admissible against another or the other accused to be jointly tried with him; and 2. Where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him; and 3. Where there is real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material; a separate trial will usually be ordered in relation to the charges against the applicant. The applicant must show that positive injustice would be caused to him in a joint trial." 13 The principles thus stated have been expressly approved and followed in two recent decisions of the Court of Criminal Appeal: Regina v Fernando and anor. (unreported: Court of Criminal Appeal, 14 April 1999); and Regina v Georgiou (unreported: Court of Criminal Appeal, 25 May 1999). The joint judgment in Fernando and anor. contains, at pages 99-104 inclusive, a most helpful resumé and analysis of the principal authorities on the topic. One of the authorities to which reference is made in Fernando and anor. is Regina v Beavan 69WN (NSW) 141. There, the Court of Criminal Appeal takes up, with evident approval, the following excerpt from the judgment of Herron J (as he then was); which excerpt I now reproduce because it has a particular practical relevance to the events that have happened in the separate trials of the present prisoners: "If separate trials were had, very often only one half of the picture could be presented to the jury. In order to do complete justice, juries are entitled to see and hear all those who are alleged to have acted in common purpose, and it is neither a rule of law nor of practice that where an essential part of one accused's defence amounts to an attack on a co-accused, there must be separate trials. Cases have occurred and will no doubt continue to occur in which one accused says that he or she was persuaded by the superior intellect of the other accused to take some part in the enterprise, or that he or she was intimidated by the relationship or threats of that other. It is essential to the proper appreciation of such cases that the jury should see and hear all parties. It is true that statements not on oath can be prejudicial to the one referred to in them, but as they are not statements on oath the jury can be warned by the trial judge to reject those references to the co-accused, and there is no reason to think that a common sense jury will refuse to follow such advice." 14 It is true that the particular observations made in the closing sentence of the foregoing excerpt must be understood in the context of the law of evidence as it stood at the time at which Herron J was speaking; that law then permitting an accused person to make an unsworn statement from the dock, a procedure no longer available under the law of this State. It remains the case, in my opinion, that the logical thrust of what was said by Herron J remains as valid now as it was then. I read to that same effect the relevant passages in the joint judgment of the Court of Criminal Appeal in Fernando and anor.. 15 As will be seen presently, the versions given at their respective trials by the two prisoners of what had actually been the sequence of events leading up to the killing of the victim were as different as the proverbial chalk and cheese. It is possible that both such versions are, at least in part, untruthful. What is beyond any rational dispute is that both of those versions cannot possibly be truthful. Had the Court been aware, when dealing with the application for separate trials, that such was the case, then, hindsight or no hindsight, I very much doubt whether it could have been demonstrated that the proper application of the principles to which I have earlier referred made it appropriate to order separate trials. 16 I do not make that observation in the sense of accusing, of criticising or of recriminating. I speak, rather, in the interest of ensuring that other trial Judges are aware of, and are put upon their proper guard by, the experience of this Court in the present two matters. What has happened in the present cases teaches that an order separating trials should rarely, if ever, be made upon the basis of the consent of all interested parties and nothing more; but should be made, if at all, only after any particular applicant for a separate trial has shown cause, in a precise and positive fashion, for the making of such an order. Facts Common to the Cases of the Two Prisoners 17 The victim was, at the time of his death, a school teacher in the State service. He was attached to the staff of Cleveland Street High School, where he was an assistant teacher in the Social Science Department. He seems to have been in good standing, personally and professionally, with his peers. 18 On Monday 21 May 1990 the victim did not appear for duty at school. This was uncharacteristic; and, in due course, his superiors reported the fact to the police and asked for inquiries to be made by the police. Those inquiries took the police to the home of the victim which was a home unit numbered 1 in premises at 17 Hampden Road, Artarmon. The unit was a fairly conventional 2-bedroom suburban home unit in a fairly conventional suburban home unit block. The investigating police officers, unable to rouse anybody in the unit, gained entry to it. They found the victim lying face-down on the floor of the lounge-dining area of the unit. He was lightly dressed in casual clothing. His ankles and knees had been lashed tightly together with lengths of industrial-strength masking tape, which was a vivid green in colour. His hands had been secured behind his back. They were not so much bound as encased in the same kind of masking tape. Fitted over his head was a white, opaque, plastic shopping bag. The bag had been pulled down over the head so that the sealed bottom of the bag was at the top of the head, and the mouth of the bag was at the victim's throat. Further lengths of the masking tape had been used so as to seal off the mouth of the bag. A preliminary inspection of the unit showed that it was in a state of disarray such as might have been caused by the ransacking of the unit by some burglar or burglars. 19 When the bag was removed from the victim's head, it was found to contain an accumulated quantity of blood. I am satisfied beyond reasonable doubt that such accumulated blood came from a wound which had been inflicted to the rear of the victim's head. The wound was curvilinear in shape; it was 47 mm in length. It was a blunt force injury; and the blow which caused it had been struck with a force sufficient to cause a small area of bruising on the under-surface of the brain on the left side and on the right side. There was not, however, any fracturing of the victim's skull. 20 The removal of the shopping bag from the victim's head disclosed, also, that the victim's eyes had been tightly blind-folded with further lengths of the green industrial-strength masking tape; and that his mouth had been tightly gagged in the same way. The gagging had not been done in such a fashion as to obstruct the victim's nostrils. The lengths of masking tape which had been used to seal the mouth of the shopping bag had been applied tightly, but not with such a tightness as to cause any kind of strangulation. The undisputed medical evidence was that the primary cause of death was suffocation. 21 Fingerprints, not those of the dead man, were found on a drinking glass which was standing on an occasional table not far from the body; and on the surface of some of the masking tape. The investigating police were unable to match the fingerprints with any known fingerprints stored in the relevant police records. There were no other clues to the identity of any assailant; and in due course the police investigation was terminated without the identification of any assailant having been made. 22 Some time during 1992 the prisoner Kane met, and developed a relationship with, a young woman named Bedelia Unger. They began to live together; and eventually, and in January 1994, they married. The prisoner Andrew was best man at the wedding; he and the prisoner Kane having been close personal friends since their secondary-school days. 23 The prisoner Kane told his wife, - (who prefers to be known as Bedelia Dali, by which name I shall hereafter refer to her), - that he and the prisoner Andrew had been involved in the death of the late Mr. Tonks. Bedelia Dali made no use of that information until 1997, and at a time when her marriage with the prisoner Kane had broken down in circumstances of great and mutual animosity. 24 In 1997 Bedelia Dali disclosed to the police what she had been told by her husband. The police investigation into the death of the late Mr. Tonks was thereupon re-opened; and it led, in due course, to the arrest and charging of the two prisoners. 25 During each of the separated trials, evidence was given by Mr. Malcolm Smith. Mr. Smith was formerly a Detective Sergeant of Police in the New South Wales Police Service; and he was, as such, the officer in effective charge of the investigations, both original and resumed, into the death of the late Mr. Tonks. In connection with the original investigations into that death, Mr. Smith was instrumental in preparing a detailed brief of evidence for presentation to the Coroner at an inquest conducted, eventually, in October 1993. That brief of evidence encompassed, among other things, the results of extensive inquiries which Mr. Smith had made into the personal background and lifestyle of the dead man. Extensive use was made of this material in the cross-examination of Mr. Smith at the trial of the prisoner Andrew; and a broadly similar, although much less detailed, use was made of the material in Mr. Smith's cross-examination in the separate trial of the prisoner Kane. 26 This material established that the late Mr. Tonks pursued a clandestine but active homosexual lifestyle. He had a particular homosexual attraction towards teen-aged boys and young men. He actively sought out homosexual encounters with such partners, doing so by a number of methods of which one was to solicit, in effect, by leaving appropriate invitations and personal details inscribed on the walls of public toilets. The evidence did not suggest that the late Mr. Tonks was a man given to gratuitous, or indeed any, physical violence; or that his normal method of operation involved his acting jointly with other persons in connection with the setting up of homosexual encounters. 27 In connection with this material respecting the dead man's personal sexuality and lifestyle, it is appropriate, I think, to make some observations common to both of the present cases. 28 Mr. Smith was, in my opinion, a very impressive witness. For my own part, I would not hesitate to accept the evidence that he gave in each trial. That entails that I would not hesitate to accept that his investigations did in fact yield information of the kind to which his evidence referred; that the information came from people who identified themselves as close personal friends of the dead man; and that the information was such as might reasonably be accepted as generally reliable. It is, however, important to understand that the whole of this body of material, extremely damaging as it inevitably was in its illumination of the character and lifestyle of the dead man, was hearsay evidence. The Court had, of course, no way at all of having any idea of what the late Mr. Tonks himself might have wished to say about the information thus provided about him by others. More importantly, the relevant operation of the Evidence Act 1995 (NSW) made Mr. Smith's evidence of that hearsay information admissible, notwithstanding that none of the informants was tested by cross-examination, either in the presence of the jury or at all. 29 These considerations seem to me to have a real significance in connection with the question of the objective criminality of the killing of the late Mr. Tonks. It could scarcely be doubted that there are many people, - and, more probably than not, a clear majority, of people, - in contemporary Australian society for whom the kind of lifestyle that the late Mr. Tonks is shown to have followed would be morally reprehensible, physically repellent and socially subversive. All the more reason to emphasise in the strongest and most uncompromising terms that a person who follows that lifestyle, even if that lifestyle entails the committing of serious criminal offences, does not become on that account an outlaw whose life is simply forfeit to anybody who feels strongly enough to take it in fact. The paramount purpose of the rule of law is to uphold in principle and to shield in practice the absolute and fundamental sanctity of human life: all human life. 30 There are some further things to be said about the objective criminality of the killing of the late Mr. Tonks; and it is appropriate to say them now because they are equally significant in each of the two present cases. 31 Because of the starkness of the contrast between the versions of relevant facts given respectively by the two prisoners, it is not possible to make a positive finding of fact, reached beyond reasonable doubt, as to exactly which of the prisoners did exactly what at each and every stage of the events that took place in the dead man's unit on the evening of 19 May 1990. I am, however, satisfied beyond reasonable doubt that the following findings, at least, can properly be made: (1) That the two prisoners went in company to the unit on the evening in question; were in every effective sense in company throughout the events that thereafter took place; and left the unit together at the end of those events. (2) That they went to the unit looking for trouble. It is true that there is a stark contrast between the kind of trouble that they say, in their respective versions, they were expecting. The prisoner Andrew says that he went to the unit for the purpose of verbally abusing the victim in connection with a sexual assault previously committed by the victim upon the prisoner; a version of events of which it will be necessary to say something more in due course. The prisoner Kane's version is that his objective in going to the unit had a similar genesis, but had the rather different purpose of, in his own words, "kicking the shit out of" the victim. Be all that as it may, I have, as I have said, not the slightest doubt that both of the prisoners went to the unit spoiling for a fight. The proposition advanced by the prisoner Andrew, the effect of which is that he intended to have a civilized conversational exchange with a man who had previously committed a serious, unprovoked and unwelcome sexual assault upon him a short time previously, and then simply go on his way without further ado, is not, in my opinion, a reasonable possibility, and I reject it. (3) That both prisoners went to the unit armed with a mini-baseball bat and a quantity of masking tape previously herein described. They carried the baseball bat in the white opaque plastic shopping bag that was later found secured over the head of the dead man. (4) That the first violence actually done to the victim involved the striking of his head with the mini-baseball bat, and so as to inflict the head wound earlier described. The prisoner Kane says that he struck the blow. The prisoner Andrew says that he struck the blow. It does not seem to me to matter which of them it was who actually did the deed. One of them certainly struck the blow. The other was, equally certainly in my opinion, present when the blow was struck and concurring in that assault. At the trial of the prisoner Andrew, it was argued that he struck the blow partially in self-defence, and partially as a result of provocation offered to him by the conduct of the victim. I shall say something about these matters at the appropriate later time in the present remarks on sentence; but I can indicate at once that I reject, as the jury clearly did reject, any suggestion of self-defence; and I reject as readily any suggested provocation justifying this particular assault. (5) That, although it is not clear whether the blow to the victim's head actually rendered him unconscious; it is clear beyond any reasonable doubt that it so affected him that he fell, effectively stunned, to the floor. Thereafter he was bound hand and foot, and was gagged and blind-folded, with lengths of the masking tape which I have earlier described. Once again, there is contradiction between the respective versions of the two prisoners as to exactly who did exactly what in connection with this handling of the victim. Once again, it does not seem to me to matter greatly which of them it was who actually applied this or that length of the restraining tape. What is, in my opinion, clear beyond any reasonable doubt is that one or other of them, if not indeed in some instances both of them, applied the bindings; and that, insofar as one only of them did the actual binding, the other was in every requisite legal sense present and assenting to what was being done. (6) That the condition of the victim, prior to the placing of the plastic bag over his head, was such that he was, in every practical sense, absolutely helpless. He could not move; he could not cry out for help; he could not see anything that was thereafter happening to or around him. More importantly, he could breathe only through his nose. It is true that the prisoners were at the time aged a little more than 16 years; but they were not mere children, and they were certainly not so uninformed as not to understand, as a matter of elementary common sense to put the point no higher, that to bag the victim's head in the way that was done would necessarily entail that, unless somebody chanced upon him very quickly thereafter and removed the bag, he could easily suffocate to death. (7) That the plastic shopping bag must have been fitted over the dead man's head by, at the very least, one or other of the two prisoners. The lengths of masking tape by means of which the mouth of the bag was thereafter tightly secured, also must have been put in place, to say the very least, by one or other of the two prisoners. The prisoner Andrew says that he saw the prisoner Kane in the act of drawing the bag over the dead man's head; but that he did not ever see the masking tape, either while it was being wound around the mouth of the bag and the neck of the victim, or after that action had been completed. The prisoner Kane says that he did not have anything to do with the positioning of the bag over the head of the dead man, or with its subsequent sealing by the use of the masking tape. He says that he does not know who did either of those things. So far as concerns the prisoner Andrew, I am satisfied beyond reasonable doubt that, if it be the case that he is telling the truth when he says that he saw the prisoner Kane put the bag in position on the head, then he knew when he left the unit in company with the prisoner Kane that the bag was then in position, fitted over the victim's head. On his own admission he left the unit through the front door. The front door was no great distance from the position in which the victim had been finally left. That final condition of the victim is graphically illustrated in the photograph numbered 17 and forming part of Exhibit E in the trial of the prisoner Kane. Even if it be the case that the prisoner Andrew did not notice the vivid green masking tape in position around the mouth of the bag, - a matter that I regard as highly improbable but am not prepared to reject as a reasonable possibility, - he cannot have failed, in my opinion, to have noticed the bag itself closely fitted over the victim's head. I have no doubt that he did see it, and that he was simply content to leave the bag in place. I am satisfied beyond reasonable doubt that, even if the bag had not been taped into position, its having been fitted over the head of the victim in his then condition brought into being a state of affairs that was, to say the very least, seriously life-threatening, and obviously so even to a 16 year old boy who had the then nerve, determination and intelligence of the prisoner Andrew. So far as concerns the prisoner Kane, I simply do not believe him in his assertion that he does not know how the bag came to be positioned over the dead man's head and to be thereafter taped with the masking tape. I am satisfied beyond reasonable doubt that either he did it himself; or that he was in every requisite legal sense present and assenting when it was done. (8) That, having dealt with the victim in the way previously described, and having vandalised his unit, the prisoners then went on their way. They did absolutely nothing to give any warning of any kind to anybody of the then condition of their victim. In that regard it is not necessary to postulate anything that is in any way extravagant or inculpatory. A simple and anonymous "000" phone call from a public telephone box would have done all that was necessary in order to have ensured that some help got to the victim before he suffocated to death. The best view of their behaviour is that they simply went on their way uncaring about what might be the fate of the victim whom they had left in so parlous a condition. 32 It has been submitted on behalf of both prisoners that the crimes of which they have been respectively found guilty cannot properly be characterised as being in the respective worst case category. Once again, the basic principles are not in doubt. They are expounded conveniently in the judgment of Badgery-Parker J speaking for the Court of Criminal Appeal in Regina v Twala (unreported) 4 November 1994. His Honour says: "However, in order to characterise any case as being in the worst case category, it must be possible to point to particular features which are of very great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime (as distinct from subjective features mitigating the penalty to be imposed)." 33 I have no doubt that the common objective facts as I have previously been discussing them are, without more, sufficient to establish "particular features which are of very great heinousness". Everything that was done to the victim was done deliberately. Everything that was done with that deliberation involved either violence or cruelty or both. To have left the victim even as he was before the bag was put over his head had about it, as I am satisfied, more than just a touch of a savagely vengeful pleasure. To have gone on thereafter to put the plastic bag over the victim's head even without the taping, - and a fortiori with the taping, - was, in my opinion, to have acted either with a brutally vengeful deliberation, or with a callously vengeful indifference. 34 As to whether it is "possible to postulate the absence of facts mitigating the seriousness of the crime", much depends on what further findings as to the relevant objective facts can properly be made in the individual case of each prisoner when the facts particular to that prisoner's case are considered in addition to the facts common to both cases. It is to that differentiated examination that I next turn. Facts Particular to the Case of the Prisoner Andrew 35 The prisoner gave extensive sworn evidence at his trial. His version of relevant events, as thus put forward, was broadly as follows. 36 In May 1990 he was aged 16 years and some 2 months. He was enrolled as a boarder at St. Gregory's College, Campbelltown. His family life was unsettled, his parents having separated when he was about 9 years of age, and having subsequently divorced. His mother had re-married and was living with her husband and their young children at Castlecrag, where the prisoner used to visit regularly for his school holidays; and where he was in fact visiting on holiday at the times now material. He had at Castlecrag self-contained accommodation of a kind that enabled him to come and go with as much independence and privacy as he wished. He was not happy in his boarding school environment. 37 That unhappiness was due, in no small part, to the taunting of his peers at school. The taunting was to the effect that the prisoner was homosexual. He himself was unsure at that time of his sexual orientation; although he had feelings and attractions which had caused him to think that he might be, indeed, homosexual. 38 According to the prisoner, he felt that there was nobody in his immediate family or circle of friends in whom he could confide about such a personal matter. He cast about, therefore, for some way of meeting a homosexual man to whom he might explain, and from whom he might get some useful counsel concerning, his sexuality. To that end, and while using a public toilet outside the Stanton Library at North Sydney, which library he had been visiting, the prisoner saw and noted a message written on the internal wall of the toilet. The message was, in effect, an open solicitation of homosexual encounters. The message had been put there by the late Mr. Tonks. 39 By a process of reasoning which is not clear to me from the available evidence, the prisoner apparently decided that this was the contact for which he had been looking. To that end he telephoned the number written on the wall and found himself speaking to Mr. Tonks. The telephone call was made at about 2.15 a.m. and from a public telephone box situated not far from the prisoner's home at Castlecrag. The telephone call resulted in an arrangement that the two of them would meet, there and then, at Artarmon. The prisoner travelled, accordingly, to Artarmon; made the arranged contact with Mr. Tonks; and accompanied him back to his unit at 17 Hampden Road, Artarmon. At the unit the two of them began to engage in conversation; Mr. Tonks offering, and the prisoner accepting and consuming, a number of strong alcoholic drinks. As I have followed the prisoner's evidence, the cumulative effect of the drinks did not completely stupefy him, but did retard to some extent his responses and reactions. 40 After a time Mr. Tonks suggested that the two of them watch a video, and they did so. The video in question was an explicitly pornographic homosexual video. As the video played, and time passed, Mr. Tonks began to touch the prisoner in a sexually suggestive kind of way, the prisoner resisting, according to his version, all such advances. 41 After a further time had passed, Mr. Tonks suggested to the prisoner that he, Tonks, give the prisoner a massage. The prisoner agreed; and what followed, according to the prisoner's version, was a sequence of events moving from the removal of portion of his clothing and the massaging of his back; to the removal of most of the remainder of his clothing and an extension, with palpable sexual overtones, of the massaging; and, finally, to the removal of what remained of his clothing and the rapid escalation of the massaging into a fully blown sexual assault entailing in rapid succession two acts of actual or attempted, (the evidence on the point is not entirely clear), anal penetration. The prisoner asserts that he protested against these culminating sexual acts; but that he was, effectively, powerless to prevent them. 42 According to the prisoner, he was revolted by this unexpected and unwelcome course of events. He said that he remembered being: "cold - icy towards him, as I got dressed, and no I don't remember saying anything to him, really ………. (and)………. I don't think he did say anything to me as I was leaving". The prisoner expressed as follows his feelings at the conclusion of this particular encounter with Mr. Tonks: "I was just devastated that he had treated me the way he did and that I - I really wanted to talk to another gay person about the struggle that it was to be a young gay man in the first place and I just felt - I couldn't believe that I had allowed myself to be put in a situation where this could happen to me." 43 In the immediate aftermath of these events, the prisoner noticed some rectal bleeding; and somewhat later, and after he had returned to school, he noticed periodic penile discharges of what looked like contaminated material. The prisoner described his reaction in these terms: "I was furious and I wanted to confront Mr. Tonks about what he had done to me". The confrontation that he thus envisaged he described in these words: "I wanted to have it out with Mr. Tonks and let him know that what he had done to my body was not acceptable". This description was further expanded in these immediately following questions and answers: "Q. At this stage did you feel any anger towards Mr. Tonks? A. Yes I did. Q. When you say you wanted to have it out with him, what did you envisage that would involve? A. I wanted to let Mr. Tonks know that what he had done to me was not acceptable and that he had betrayed, you know, the trust that I had in going to this gay man to discuss my sexuality with him. Q. Did you talk to Peter Kane about what you would do when you got there? A. We spoke about what we would do when we went there and that was that I would verbally abuse the man and, if necessary, I would hit him. Q. When you say if necessary you would hit him what would make it necessary for you to hit him? A. Well, if he tried what he did on the first occasion, I was prepared to protect myself against him. Q. Did you take anything with you? A. Yes. Q. When you went to the unit? A. Yes we did. Q. What was that? A. We took a small baseball bat, like a mini baseball bat, and some industrial tape. Q. Why did you take those things? A. We took those things in case Mr. Tonks was going to try what he did the first time and they would prevent him from doing so." 44 And so, in company with Peter Kane, the prisoner did in fact return on the evening of 19 May 1999 to the unit at Hampden Road, Artarmon. He spoke, initially, to Mr. Tonks via the intercom connection. He told Mr. Tonks that he wanted to see him, and that he was accompanied by a friend. Mr. Tonks initially demurred about admitting the two of them; but was persuaded by the prisoner that it was safe for him to do so. 45 What then ensued is described as follows by the accused in his evidence: "Q. Sorry, you said you remember having to bargain with him I think you said? A. Yes. I said 'I've got a friend with me. I want to chat' And eventually he did let us in and we arrived in - we walked into the unit and sat down on the lounge and he offered us a drink straight away and sat, and then he sat down with us and …….. Q. ……. Before you go on, what sort of drink was it? A. I think it was Scotch and Coke or bourbon and Coke. Q. Did you have a drink? A. I didn't consume what he poured for me and nor did Peter. But he had a drink. And I said to him 'Wayne, I want to talk to you about what happened when I was here'. And he got up and said 'Oh, don't worry about that, let's watch a movie'. He brushed it off. He didn't want to discuss it. ………… Q. When you said to him: 'I want to talk about what's happened', did you say that in a particular tone of voice or in a certain way? A. Yeah. I said it in a firm way. He knew - he knew what I meant. Q. You say that you took it as being brushed off when he said 'Don't worry about that'. In what way did he say that? A. He said, ' Don't worry about that. Don't worry about it'. Q. What happened then? A. Then, he said, 'Let's watch a movie'. And he was standing up when he said 'Don't worry about that, don't worry about that', and he got up and put on a porno. And I just stood up and said 'I can't believe you. I can't believe you', and I started to hit him. Q. What did you hit him with? A. I hit him with the mini baseball bat. Q. Whereabouts? A. On the head. Q. Did you see what happened to him as a result of you hitting him? A. He was shocked. He was stunned. Q. Was he injured in any way? A. Yes; I think he started bleeding. Q. Why did you hit him the way you did? A. Because I was there for a serious reason and he had brushed me off and decided that it was all okay; that it was all okay not to be discussed, and he had the audacity to get up and put on a porno. Q. What did you think, when he put on the pornographic movie, was going to happen? A. Well, that he was playing his game of, you know, trying to - trying to get sex to happen again." 46 The prisoner then went on, in his evidence, to describe how he had at once fallen upon the stunned and prostrate Mr. Tonks and bound him up in the way previously described. The prisoner was careful in his evidence to make the point that he had left the nasal passages unobstructed so that his victim could breathe. He went on to explain how he and the prisoner Kane had thereafter gone around the unit "and messed it up". He gave as his reason for that vandalism that he was "venting my anger". 47 His attention was drawn to the plastic bag over the head of the victim; and in that connection he gave the following evidence: Q. "Did you put that bag over his head? A. No. Q. Do you know who did? A. Peter placed the bag over his head. Q. Did you see him do that? A. I saw Peter pull the bag on to Mr. Tonks' head. Q. Did you do anything when you saw Peter Kane do that? A. No I didn't. Q. Did you see whether Peter Kane did anything after he pulled the bag over Mr. Tonks' head? A. No I didn't. I saw Peter pull the bag over his head. Q. Did you leave the unit after that? A. A short time after we did, yes. Q. Did you say anything to Peter Kane? A. No. Q. What did you think when you saw the bag placed on Mr. Tonks' head? A. I thought Peter was just giving him the fright of his life. Q. Do you know that there was tape placed around Mr. Tonks' neck? A. I didn't. I didn't know that at the time. Q. Was there anything else that you did in the unit before you left the unit that you remember? A. We couldn't get out of the unit. It was deadlocked and I took some time to locate the keys to that deadlock, and when I did, we left. Q. When you left the unit, did you think about Mr. Tonks? A. Yes I did. Q. What did you think? A. I thought that Mr. Tonks would wiggle his way out of the bag that I saw placed on his head and I knew that if he did so, that he would have been able to survive. Q. Did you talk to anybody about the fact that he was left there in that state as you knew it to be? A. No I didn't." 48 It is obvious that a great deal turns for present purposes on the view that the Court now takes of the foregoing version of the prisoner. This is no easy task: first, because, in the events that have happened, the Court cannot but be conscious of the starkly different version given by the prisoner Kane in his separate trial; but the Court is required, nevertheless, carefully and completely to set aside that knowledge, and to deal with the prisoner Andrew only upon the basis of the evidence available in his separate case; secondly, because the assessment now to be made of the prisoner's version of what took place on the second occasion is very much intertwined with the assessment now to be made of the prisoner's version of what occurred on the first occasion; and thirdly, because an assessment of the prisoner's version of what took place on that first occasion stands, in every effective sense, alone. The victim, who would presumably have had not a little to say about both of his encounters with the prisoner, is forever silenced; and there is, as I see the fact, no evidence capable, on any realistic view, of strengthening in a real and substantive way the version given by the prisoner about either of his two encounters with the victim. 49 The most useful starting point is, perhaps, to say that I am not prepared to accept, simply and comprehensively, the version given by the prisoner in his evidence. That is so for the following reasons: (1) On 21 November 1990, or some six months after the fatal encounter in the victim's unit, the prisoner went, in company with the prisoner Kane, to the Albion Street Centre in Sydney and there had himself tested for HIV. The official of the Centre who dealt with the prisoner gave evidence at the prisoner's trial. I see no reason not to accept that evidence, and I do in fact accept it. According to that evidence, the prisoner presented with signs of depression. He was "economical" in what answers he gave to the questions asked of him at the Centre. He did give, however, a version of what he said had happened to him, and had caused him to be apprehensive of having become infected with the HIV virus. Conflating the relevant answers, that version was as follows: "He told me that he had been taken to a unit somewhere and subjected to anal penetration by two males. Two males took him blind-folded to a unit where he was raped, no condoms used. He indicated that they forced him to get drunk first and also forced him to give them oral sex which they also gave to him." It is, of course, obvious that this version does not square at all with the corresponding version given by the prisoner in his evidence. So far as I can see, there is no explanation given by the prisoner for that discrepancy. Once the prisoner had decided to give any kind of narrative explanation at all of the relevant background, he could have given an abbreviated version of the narrative given by him in his evidence; and he could have done that, as it seems to me, without any greater embarrassment, or invasion of his privacy, or disadvantage otherwise, than by giving the inconsistent version that he did in fact give. No doubt, one swallow does not make a summer. I must say, however, that I find this inconsistency inexplicable, and therefore troubling, on the question of credibility that I have now to resolve. (2) On 16 May 1997 the prisoner was arrested in Port Macquarie by two police officers, Det.-Sgt. Yeomans and Det.-Snr. Constable Powell. He was told that he was under arrest in connection with the murder of the late Mr. Tonks. He was properly cautioned. He responded to the caution by saying that he understood what he had been told; and that he would, voluntarily, talk to the police. He told the police that he did not wish his parents or anyone else to be present with him at that time. He was told that he might use a telephone at any time and he indicated that he understood that advice. The prisoner was then taken to the Port Macquarie Police Station and interviewed by the two police officers, principally by Det.-Sgt. Yeomans. The record of interview was not tendered at the trial; but there was produced and marked for identification 5 a transcript embodying portions of the record of interview. It was agreed that those portions should be read to the jury; and that was in fact done. During the course of the interview, the prisoner falsely stated that he had no knowledge of, or prior acquaintance with, Mr. Tonks; that he had never been to the premises at Artarmon; that he had never been sexually assaulted. He was asked, thereafter, but still during the course of the interview with the two police officers, whether he would make available a set of fingerprints for comparison purposes. He was properly cautioned that he had no obligation to do so. He agreed, nevertheless, to make his prints available; and a set of comparison prints was thereupon taken from him. The prints having been found to match prints discovered on various items at the victim's unit, the prisoner was so informed and asked whether he could give any explanation of that fact. He said, simply "No". Normal and proper practice in connection with ensuring the authenticity and the voluntariness of the interview was duly completed, eliciting no complaint of any kind from the prisoner in connection with the way in which the interview had been conducted by the investigating police officers. The prisoner gave in chief the following evidence about these matters: "Q. How did you feel at that stage, when the police had announced their presence and the reasons they were there? A. Well it was a shock and I was scared but I wanted to talk to them about - I wanted to cooperate with them. Q. You said, when you were interviewed by them, certain things that were clearly not true - about your knowledge of that matter. A. That is right. Q. Why did you say those things to them? A. Well I was scared - I was scared of them locking me up - sending me to gaol right then." These answers were expanded somewhat, and as follows, in cross-examination" "Q. When the police came to speak to you many years later you said you would talk with them and you would cooperate with them. A. Yes. Q. Indeed that is what you didn't do, isn't it? A. Well, I went with them and I gave them my fingerprints and was interviewed by them but I felt really intimidated by the interview and I answered 'no' to about 90 percent of the questions - no - meaning I didn't want to answer, and eventually I had a lawyer come down to the station and arranged my situation, but I did go with the police and give them fingerprints and tried to cooperate as best I could on my own, feeling the way I did. Q. I suppose it was quite a shock to you that you left fingerprints behind - the police told you on that day you were arrested? A. Not particularly. Q. You still did not confess to the police that you had been involved? A. Well - Q. With the killing of Mr. Tonks? A. Yes - when the police had my fingerprints they knew that my fingerprints were found there and they matched them, so." No suggestion was made in the cross-examination of Det.-Sgt. Yeomans that the prisoner had appeared to be intimidated; or that it was plain from his answers that whenever he responded in the negative to a particular question, he was signifying, at least on most of such occasions, that he did not wish to answer the particular question; or that he did not wish to answer the question in the absence of his solicitor. There is not, so far as I can see, a scintilla of evidence that supports the propositions of the prisoner that: "I felt really intimidated by the interview and I answered no to about 90 percent of the questions - no - meaning I didn't want to answer" . One could be forgiven for thinking that those assertions were bare-faced and self-serving lies; but, at the very least, they are, in my opinion, intentionally misleading glosses of the truth. (3) The Crown called at trial a Mr. Mario Ghezzi, who had been a school teacher of the prisoner in 1990 and 1991. Mr. Ghezzi gave evidence that in about February of 1991 a group of boys from St. Gregory's, including the prisoner, had gone with him to a retreat in Bowral. Mr. Ghezzi agreed with a description, put to him by the Crown Prosecutor, of such a retreat as being "an occasion for self-reflection and spiritual development" . Mr. Ghezzi said that he had had occasion during the course of the retreat, to reprimand the prisoner for some misbehaviour or other and that the prisoner had responded in a way best described by referring, as follows, to the actual evidence: "Q. What did he say? A. Well I wasn't ready for this, I wasn't looking for this. I was chipping him on his behaviour on the retreat and, as I recollect, he turned around and said something to the effect of 'Well, if you think that's bad, I can tell you worse things', and he began to tell me the story. And I think it began with something like 'What if I told you that I had killed a man?', to which I think I said something like 'What do you mean? You have got to be kidding.', and this story came out. …………… 'It began when I was out on a boarder's free week-end, I met a man who took me back to his place and did some things to me'. I can't recall him being explicit about the things done to him, but I gather that they were not pleasant. And he said, 'After that on another week-end, I went back to his place with a friend.'. Names were never mentioned. And he said that 'We went back and somehow met up with the man again. Went back to his place. We had some drinks, and then we did it'. And I think I said, 'Well, what do you mean, did it?'. He said 'Well, we got him for what he did to me', and, I mean, I wasn't asking for details at this stage, but what I can recollect is that in the conversation about what happened, I think it was like strangulation or asphyxiation. I remember somewhere in that conversation 'plastic bags' being mentioned; 'tying him up' and somewhere along the line, I don't know, a piggy bank smashed. And after this conversation - I mean, basically I was fairly stunned and I said 'Well, what would you do?' - I remember saying to him 'What would you do if I went to the police with this story?', and he said 'I would deny this conversation had ever happened'. And after that, I said 'What do you want me to do with that?', and he said 'Nothing. It's just a story', and left it at that." There was no challenge to the essential accuracy of Mr. Ghezzi's evidence. The evidence is important, I think, in that it is related to a time not very far removed from the time of the killing; and it gives, therefore, a more reliable impression than one might draw from assessments made of his behaviour in 1997 and later years, of what he was actually like at and about the time of the killing. In that respect two things strike me as significant about the prisoner's behaviour as described by Mr. Ghezzi: first , that the prisoner was capable of displaying towards Mr. Ghezzi what I would describe as a cool effrontery; and secondly , that the prisoner showed an equally cool amorality about telling convenient lies. (4) The accused was extensively cross-examined by the learned Crown Prosecutor. Part of that cross-examination, - it is recorded at pages 216-218 of the trial transcript, - put successively to the prisoner the various stages, as he had described them, of his first encounter with the victim; and suggested, as to each such stage, that the prisoner could have left at any time had he desired to do so. The prisoner agreed that such had been the case, at least until the stage was reached at which, as the prisoner described the fact, he had first been anally penetrated. This evidence was not, so far as I can see, altered by re-examination. The importance of the evidence is, as I see it, that it tends to cast a rather different light than that suggested by the prisoner in his version in-chief, upon what I might describe as the momentum and atmosphere of the unfolding events that took place on the occasion of the first encounter. I think that this evidence weakens, at least to some extent, the impression which the prisoner sought to convey throughout the trial, namely, that the entire first encounter between him and Mr. Tonks had been, so to speak, entirely black and white: on one hand, the young, naive school-boy not seeing himself as having any real choice about things going on around him, and which he did not really understand; and on the other hand, the experienced child molester riding rough-shod over the obvious reticence and vulnerability of that school-boy. 50 For those reasons, and as I have earlier said, I do not accept, simply and comprehensively, the prisoner's version of the material events. It does not follow, however, that I simply and comprehensively reject them. The findings of fact that are available to be made now and beyond reasonable doubt cannot be reached, as I see this case, upon so conveniently simplistic a basis. 51 I am satisfied beyond reasonable doubt of, at least, the following matters: (1) That there were in fact two encounters between the prisoner and the victim, they being separated by a period in the order of two or three weeks. (2) That the first encounter did involve gross sexual impropriety of some kind or kinds on the part of the victim, who was after all a man aged 40 or thereabouts, towards the prisoner, then aged 16 years and 2 months. (3) That the encounter was the result of an initiative of the prisoner; and that the prisoner chose to continue the encounter through the whole of its course and, at least, up until the first actual or attempted anal penetration. (4) That the prisoner did in fact feel deeply aggrieved by the conduct of the victim towards him on that first occasion. (5) That such sense of grievance festered in the mind of the prisoner for the period, earlier mentioned, in the order of two or three weeks, giving rise eventually to a fixed determination on his part deliberately to seek out the victim and, in some real and substantial way, to avenge himself on the victim. (6) That the intent of the prisoner when he returned on the second occasion, in concert with the prisoner Kane, and as part of a deliberate act worked out between the two of them, did not so return with no intent other than verbally to abuse the victim and then to walk quietly away, satisfied that he had, so to speak, evened the score. (7) That the intent of the prisoner when he returned on the second occasion was to inflict some form of grievous bodily harm upon the victim. I would not be prepared to find beyond reasonable doubt that there was a positive intent to kill. Nor would I be prepared to find beyond reasonable doubt that there was any particularly formed intent as to the kind of grievous bodily harm that might be inflicted. What I am satisfied beyond reasonable doubt to have been the fact is that the prisoner's intent was, in a real and active sense, to avenge himself on the victim by inflicting upon the victim bodily injury serious enough to expunge what the prisoner says was his firm conviction that he had been subjected to vile and degrading conduct wholly unprovoked by, and wholly unwelcome to, him. (8) That the prisoner, when he saw his friend pull the plastic bag over the victim's head, thought, as he himself said in his evidence, that if the victim could " wiggle" his head out of the bag, he would be unlikely to suffocate. The prisoner did not say, of course, but I am satisfied beyond reasonable doubt that it followed from that appreciation of affairs that it was present to the mind of the prisoner that the victim, if perchance he could not "wiggle" his head out of the bag, was very much at risk of suffocating; and the prisoner was content, to say the very least, that the victim should remain exposed to that chance. And I am satisfied further, and beyond reasonable doubt, that it was well present to the prisoner's mind that the victim's prospects of managing to "wiggle" his head out of the plastic bag before he suffocated were, to say the very least, sharply and dangerously reduced by the fact that the victim was then lying face down, effectively unable to move at all because of the way in which he had been trussed up, and was as well partially conscious at best because of the effects of the head wound which the prisoner says he himself had inflicted. 52 It is necessary, next, to come to a view as to how effect should be given to those findings of fact. In that connection, it is necessary to consider with some care the implications of the verdict returned by the jury. 53 The central plank of the prisoner's case at trial was an assertion that everything he had done to and towards the victim was done in self-defence. It is, I think, indisputable that the verdict of the jury entails that the jury rejected that defence. In my opinion, it was properly rejected; and in so far as it is necessary for me to make a discrete finding of fact upon the point, I too would unhesitatingly reject it. I fail to see that the victim did anything on the second occasion, - and bearing always in mind that the second occasion was some two to three weeks later than the first occasion, - that could possibly cloak in self-defence the ugly continuum of escalating violence that was done to the victim, either by the prisoner himself, or by the prisoner Kane with the requisite presence and assent of the prisoner. 54 Rejection of self-defence entails, in its turn, that the verdict of manslaughter is explicable only upon either of two bases. The first possible basis is that the jury was satisfied beyond reasonable doubt that the Crown had established all the material ingredients of the crime of murder, but had not established beyond reasonable doubt that the intended and relevant act or acts of the prisoner had not been done as a result of provocation. 55 The second possible basis is that the jury was not satisfied that the Crown had proved beyond reasonable doubt the intent necessary to establish the crime of murder, but was satisfied that the Crown had proved beyond reasonable doubt that the prisoner was guilty of manslaughter by an unlawful and dangerous act. 56 The findings of fact that I have made, implemented in accordance with the principles laid down by the decision of the Court of Criminal Appeal in Regina v Isaacs (1997) ACrimR 587, entail that I should treat the verdict of manslaughter returned against this prisoner as having been so returned by reason of a finding by the jury that the Crown had not rebutted beyond reasonable doubt suggested provocation; so that an offence that would have been, otherwise, culpable as murder, should be treated as an offence reduced in level of culpability to the offence of manslaughter. 57 If that be a correct approach in the present particular case, then I think that I should say frankly that, unconstrained by the implications, as I see them, of the verdict of the jury, I would myself have been satisfied beyond reasonable doubt that the Crown had well and truly rebutted any suggested provocation. The fact is, however, - and as the decision in Isaacs explains in detail, - that I am constrained by the verdict of the jury. For the reasons previously given, I consider myself constrained, therefore, to treat the present case as one of murder reduced by suggested and unrebutted provocation to manslaughter. 58 The end result of what I have hitherto said is, in my opinion, that it is not, to recapitulate Badgery-Parker J in Twala, "possible to postulate the absence of facts mitigating the seriousness of the crime (as distinct from subjective features mitigating the penalty to be imposed)". In other words, I do not think that the manslaughter for which the prisoner Andrew is now to be sentenced is in the worst case category in the sense that it would be appropriate to impose the maximum statutory penalty or a penalty at the top of the available statutory range. It must be made clear, however, that it does not at all follow that the manslaughter of which the prisoner has been found guilty is in any sense a trifling or an inconsequential crime in terms of its objective criminality. I regard the prisoner's crime as being, in terms of its objective criminality, a serious one meriting a serious level of punishment. 59 That point having been reached, it is then necessary to assess the relevant subjective features of this particular prisoner's case. Before doing that, it is appropriate to consider the objective criminality of the crime of which the prisoner Kane has been found guilty by the jury. Facts Particular to the Case of the Prisoner Kane It is convenient to begin by noting briefly some evidence given by the former Deg.-Sgt. Smith concerning the nature and characteristics of the tape, various lengths of which were used to bind up the victim. This evidence established that the tape was manufactured in the United States; imported into New South Wales by a particular importer; and distributed to various hardware chains throughout Australia. The evidence continued: "It's called Stylus 398 duct tape. Also commonly referred to as gaffer tape. I understand it's generally described as a cloth-backed tape. It has general applications but it's also used in industrial applications as well. It is fully water-proof and it has extremely vigorous adhesion qualities." 60 The prisoner Kane did not give evidence at his trial. There were tendered as part of the Crown case against him video cassette tapes of two lengthy interviews held between the former Det.-Sgt. Smith and a colleague, and the prisoner, at the Surry Hills Police Station on 16 May 1997. Each of those video tapes was accompanied by an agreed transcript. The prisoner's case was put to the jury upon the basis that the version of events given by the prisoner in the second of the two interviews was his truthful version of the relevant facts and circumstances having to do with the death of the late Mr. Tonks. 61 The former Det.-Sgt. Smith gave evidence that he had arrested the prisoner at the home of the latter's parents at about 8 a.m. on the morning of 16 May 1997. Det. Smith asked the prisoner whether he had any knowledge of Mr. Tonks, and the prisoner replied simply and falsely that he did not. He was asked whether he had any knowledge of the death of Mr. Tonks; and, again, he simply and falsely answered that he did not. He was formally arrested and taken to the Surry Hills Police Station. 62 There, and at about 9.10 a.m., the first of the two formal interviews commenced. Throughout both of those interviews, the prisoner's father, Mr. Nicholas Kane, was present; and he intervened from time to time, either to give some particular advice to his son, or to give more generally support and encouragement. 63 The transcript of the first formal interview runs to some 60 typewritten pages. The structure of the questioning is careful and methodical. The questioning deals, first, with the obvious formal matters; confirms the particulars, as I have earlier summarised them, of the arrest; and then moves to the death of Mr. Tonks. Once again, the prisoner denies, simply and falsely, any knowledge whatsoever of the death; of the details of the death; of the location of the killing; or of the victim. The questioning then turns to the allegations that had been made by the prisoner's estranged wife, Bedelia, as to a confession, said to have been made to her by the prisoner, of his involvement in the murder of Mr. Tonks; and to other inculpatory exchanges said to have taken place between the two of them at various subsequent times. The questioning then follows the same method in connection with allegations made by the prisoner's mother-in-law to the police concerning inculpatory statements said to have been made to her by the prisoner. The portions of the interview to which I have referred extended to about 9.46 a.m., at which time a break was taken in order to change the audio tapes. During the few moments that it takes to make that change, the prisoner's father is seen on the video tape to say something to the prisoner, and the latter thereupon asks whether he will get a "right of response" to various of the allegations that have been made to the police by his wife and mother-in-law. He is told that he will have that opportunity at a later and more convenient time; and the interview re-commences at about 9.48 a.m. The interviewer completes his questioning about the allegations made to the police by the prisoner's mother-in-law; and then informs the prisoner that fingerprints, as yet unidentified, have been found at the scene of the killing. He asks the prisoner whether the latter will make a set of comparison prints available; the prisoner agrees to do so; and the interview is, accordingly, suspended from about 9.51 a.m. to about 10.13 a.m. in order that the fingerprints may be taken. 64 Upon the resumption of the interview, the prisoner confirms that he has had the opportunity, during the break, to speak to his father; that he has discussed certain things with his father; and that he would like to raise those things himself in the context of the current interview. He is given an open-ended invitation to say whatever it is that he wants to say; and he launches, thereupon, into a scathing attack upon his wife and his mother-in-law. From time to time his father intervenes with suggestions as to things that he might wish to cover in what he is saying. This episode occupies, in transcript form, some 10 A4 pages of material, extending from pages 43 to 53 both inclusive of the transcript forming part of Exhibit M at the trial. Those 10 pages of material can be summarised sufficiently for present purposes by saying that they assert, in strong and powerful language, that the prisoner's wife and mother-in-law have concocted their allegations to the police in order to discredit the prisoner in connection with then current proceedings in the Family Court concerning the custody of the two children of the prisoner and his wife. 65 At the conclusion of this episode, the interview is again suspended for a short while and, upon its resumption at about 10.36 a.m., the prisoner is informed that the prisoner Andrew is currently being investigated by the police and that two fingerprints of the prisoner Andrew have been identified among the fingerprints found at the scene of the killing. The prisoner Kane says that there is nothing he wants to say in connection with those fingerprints. He is told during the course of this particular exchange with the police that a fingerprint of his own has been found at the scene of the killing. As to that, his only response is: "I don't know how it could be there." Shortly thereafter, and at about 10.39 a.m., the interview is concluded, and the usual post-interview formalities are duly attended to. 66 Thereafter, and at about 12.05 p.m. on the same day, the second formal interview commences. It follows the same carefully structured pattern as the first interview. It establishes that, during the time elapsing between the conclusion of the first interview and the commencement of the second interview, the interviewing police have spoken briefly with the prisoner's father; and that thereafter the prisoner has himself spoken in confidence with his father; and has then indicated a wish to be re-interviewed. There ensues a lengthy interview which concluded at about 1.47 p.m., and which runs to some 61 pages of typescript. During the course of this second interview, the prisoner gives a version as follows: 67 On a day about two weeks or so prior to the date of the killing, the prisoner and his friend Andrew were approached in a street somewhere in North Sydney and were invited to a party. They were so invited by two men, one of whom was the late Mr. Tonks, and the other of whom is wholly unidentified except as being in appearance about the same sort of age as Mr. Tonks. The time of the initial encounter could not be established any more precisely than to say that it was during daylight hours. The two prisoners accepted the invitation and went in company with the other two men to Mr. Tonks' unit at Artarmon. They were given some drinks. The prisoner was offered, and drank, he thought, about "a couple of drinks". The drinks did not make him drunk, but they did make him feel "groggy". The two adult men then put on a pornographic video. When that happened, the prisoner said that he was going to leave, and made to do so, in company with the prisoner Andrew. Thereupon, both the prisoners were overpowered by the other two men and bound. The prisoner was bound hand and foot. Thereafter at least Mr. Tonks, but perhaps the other man also, had anal intercourse with the prisoner; and one of them forced the prisoner to fellate him. The prisoner was conscious, while these assaults were continuing, of back-ground flashes that suggested to him that these activities were being photographed in some way or other. 68 After these assaults had concluded, the two boys were untied and allowed to leave. 69 The two prisoners thereafter discussed what had happened to them; and eventually they agreed to go back to the unit and to confront Mr. Tonks. They took with them a mini baseball bat and some masking tape taken from the garage of the prisoner Kane's home. The prisoner Andrew made contact with Mr. Tonks on the security intercom, giving the impression that he was alone, and saying that he wanted a good time. The two prisoners were thereupon admitted into the building and went to the front door of Mr. Tonks' unit. He "………opened the door and we just walked in". The prisoner demanded the film or the photographs that had been taken on the earlier occasion. When asked by the interviewing police whether Mr. Tonks had complied with that request, the prisoner answered: "We both hit him.". According to the prisoner Kane, it was he not the prisoner Andrew, who struck the other victim with the mini baseball bat; but the prisoner Andrew, also, struck blows to the victim, although the prisoner Kane could not remember with what particular object. Thereafter, the two prisoners bound up their victim with the tape and, according to the prisoner Kane, commenced to search through the unit, not in order simply to vandalise it, but for the very particular purpose of locating the films or photographs which the prisoner Kane was convinced had been taken on the earlier occasion. No such photographs or film could be found. 70 As to the binding of the victim, the prisoner Kane's recollection was that he had tied, or helped in tying, the hands and feet; but that he had no recollection of tying the knees; and that he did not remember anything about the taping of the eyes and mouth of the victim. He did remember, however, having told the victim at some point during the assaults "to shut up". 71 As to the bagging of the head of the victim, and as to the subsequent taping of the open end of the bag around the neck of the victim, the prisoner said this: "That's what I can't remember, out of this …………. I don't remember being, I don't remember putting a bag over his head. That's not what I, that's not what I went there to do. I don't, don't know how ………." 72 The prisoner was asked whether he could remember his friend having placed the bag over the head of the victim, and he replied that he could not recall that having happened. He could only say that, as of the time of the interview, he had no recollection of having himself placed the bag over the head. 73 The prisoner said that he and the prisoner Andrew had left the unit, he realising that the victim was in fact injured and bleeding. Shortly thereafter the prisoner disposed of the mini baseball bat by throwing it away. 74 The questioning then moved to the topics of the inculpatory admissions said to have been made by the prisoner to his wife and mother-in-law. It suffices to say that he maintained that he had never made any such statement to his mother-in-law; but he agreed that he had in fact made such statements to his wife. 75 It remains, in connection with this second formal interview, only to note some things said by the prisoner Kane during the course of the interview as to his disposition when he returned to the unit on what he says was the second occasion. At page 8 of the transcript, that is to say at a fairly early stage during the course of the second interview, the prisoner, explaining how he and his friend came to return to the unit, says this: "………… We talked about it and we knew that there were photos. I hated him. I'd never kill another person in my life. I hated him." 76 And later, - see page 25 of the transcript, - and in connection with that same topic: "Ben and I talked about it, and I don't know what I wanted to do, but I know I wanted that, I wanted to find out if there was film or photos, I knew they were taken. And I didn't like him very much either. And I was going to go there and give him a hiding." 77 In connection with the making of such a return visit to the unit, the prisoner said, at the same point in the interview: "I'd been thinking about it for a while." 78 Later, and at pages 36 and 37 of the transcript, the following exchanges are recorded: "Q. What did, why did you go there, what was your intention when you first went there with Ben and when you went there with Ben? A. To kick the shit out of him and to get the film. I thought maybe we might have had his friend too. Q. And how is it, how is it that. You appreciate that, that your actions that day caused his death? A. Answered by nodding his head to the affirmative. 'Saw it on the news.' MR. KANE. It may have. DETECTIVE SERGEANT SMITH Q. I'm sorry? A. I saw, I saw it on the news. Q. Right. You saw it on the news, was it that night or - ? A. I can't remember. Q. Right. Was, was it shortly after that that you saw something on the news? A. Answers by nodding his head to the affirmative. Q. Do you appreciate, I'll just (ask) you that question again, because it was a bit, not really clarified, in regards to Mr. Tonks' death, do you appreciate that your actions and/or Ben's actions that day resulted in Mr. Tonks' death? MR. KANE Could I just advise him on that, I ----- DET. SGT. SMITH Sure MR. KANE From what I am hearing at the moment, no, ….. I'd advise you against saying that your actions directly caused the death, because you don't know. SUSPECT I don't, you said he suffocated and I don't, I didn't suffocate him." 79 Towards the very end of the interview, - see page 59 of the transcript, - the prisoner was invited, in a general way, to raise anything else that had not been covered, and he responded as follows: "It's all well and good to say sorry now, but it doesn't count for much. I've been sorry for a long time. Can't think of any other information, I'm sorry." 80 In the case of the prisoner Kane, as in that of the prisoner Andrew, a great deal turns for present purposes upon the extent to which the prisoner's version of relevant events can be accepted. That assessment is, in the case of the present prisoner, even more difficult than in the case of his co-offender. In the case of the prisoner Andrew, the Court had, at least, some opportunity of seeing and of hearing the prisoner himself. In the case of the present prisoner, the Court has not had that advantage, except, of course, in so far as the Court has been able to observe the demeanour of the prisoner as he sat in the dock throughout his trial. All of that entails, therefore, that the Court must do the best it can to form an assessment of the credibility of the present prisoner by having regard to what can be seen and heard of him on the video tapes of the two interviews of which I have been speaking. In that connection I make the following observations. 81 It is trite that the responses made by the prisoner during the course of the lengthy first interview of which I have earlier spoken were, essentially, a tissue of lies. What is interesting about that whole exercise is, however, the way in which the prisoner carried off the telling of those lies. It is to be remembered that he was aged, at the time, a little more than 23 years and 4 months. He had been arrested at his parents' home without, as I infer from the available evidence, significant, if indeed any, advance warning. I should think that Det.-Sgt. Smith, as he was then, presented then much as he presented in Court; that is to say, as an experienced police officer in possession of a large amount of potentially very damaging information concerning a killing in which the prisoner certainly knew that he was, to whatsoever particular extent, directly involved. And yet, he sat up in front of a video camera, and in the presence of two police officers and of his own father, and told, simply and comprehensively and without, in my observation, a flicker of discomfort or disquiet, lie after lie. So complete was his self assurance that, as has been previously noted, he exploited to the full every opportunity that he thought he could see for disparaging his wife and mother-in-law, thereby creating deliberately an impression, not at all inherently implausible given the poisonous relationship that then existed between him and his estranged wife, that he was, in truth, the innocent victim of concocted allegations having the improper collateral purpose of destroying his case in the then current Family Court proceedings concerning the custody of his children. Even when it was made plain to him that the police were even then interviewing his co-offender; and that his own fingerprint had been identified among the fingerprints found at the scene of the killing, he did not lose his composure or his capacity to tell coolly a deliberate lie. 82 I have to say that the prisoner's performance throughout that first recorded interview is, from first to last, a remarkable accomplishment as an exercise in mendacity. Not only does it show a cool effrontery; it shows, also and more importantly for present purposes, a cool amorality about the telling of the truth concerning really serious matters. It surely needs no extended emphasis that such a state of affairs raises, to say the very least, a serious question mark over anything subsequently said by the prisoner as to the facts and circumstances now relevant. 83 That entails, in turn, no small difficulty in making a fair assessment of the credibility of the version given by the prisoner during the second of the two extended interviews of which I have spoken. Throughout that second interview the prisoner's composure and general demeanour are completely different. At a very early stage in the second interview, the prisoner appears to break down in great emotional distress. Thereafter, from point to point throughout the interview the prisoner continues to show great apparent emotional hurt and distress. I believe that, had I seen only the second interview, I could have been readily persuaded that what I was seeing was genuine distress flowing out of a truthful and horribly painful narrative. I believe that, had I seen only the first of the two interviews, I could have been as readily persuaded that it was, at least, a reasonable possibility that the prisoner was giving a truthful account; and that his expressed indignation was, on that account, both genuine and understandable. 84 The fact is, however, that I have seen both of the interview video tapes. It is very difficult to isolate any consideration of the second interview from the impressions, necessarily unfavourable to the prisoner, that are made by the first interview. I have come, ultimately, to the conclusion that it would not be right simply to brush aside the second interview as being hopelessly contaminated by the obvious deficiencies of the first interview. There are, it seems to me, admissions made by the prisoner in the second interview which admissions do not make sense unless they are related to an antecedent incident that did in fact occur, whatever might be thought to have been the detailed particulars of the earlier incident. 85 Doing the best I can with such unpromising material, I am satisfied beyond reasonable doubt of, at least, the following matters: (1) That there were in fact two encounters between the prisoner and the victim, they being separated by a period in the order of two or three weeks. (2) That the first encounter did involve gross sexual impropriety of some kind or kinds on the part of the victim, who was after all a man aged 40 or thereabouts, towards the prisoner, then aged 16 years and a little more than 4 months. I am not able to make beyond reasonable doubt any finding as to the particular nature of the impropriety or improprieties. (3) That the prisoner did in fact feel deeply aggrieved by the conduct of the victim towards him on that first occasion. (4) That such sense of grievance festered in the mind of the prisoner for the period, earlier mentioned, in the order of two or three weeks, giving rise eventually to a fixed determination on his part deliberately to seek out the victim and, in some real and substantial way, to avenge himself on the victim. (5) That the intent of the prisoner when he returned on the second occasion to the victim's home was to inflict some form of grievous bodily harm upon the victim. I am not prepared to find beyond reasonable doubt that there was then a positive intent to kill. (6) That the prisoner was actively involved, with his co-offender the prisoner Andrew, in each and every step of the ugly and unbroken continuum of violence that began with the striking of the victim with the mini baseball bat, and concluded with the fitting of the plastic bag over the victim's head and the subsequent taping of the open end of the bag so as to make the bag, in effect, an air-lock. As I have previously said, it is neither possible nor necessary to make findings reached beyond reasonable doubt as to precisely which of the two offenders did precisely what to the victim and in what precise order. It suffices to be satisfied beyond reasonable doubt, as I certainly am, that each and every stage in that continuum of assault was the work either of the two offenders acting together; or of one of them, the other being in the requisite legal sense present and assenting. 86 The defence of the prisoner Kane was not conducted upon the basis of alleged self defence. There was, in any event and in my opinion, not adduced in the trial of the prisoner Kane any evidence which was capable, on a rational view, of supporting a case of self defence. 87 Provocation, such as would reduce murder to manslaughter, was relied upon in the defence case. The verdict of the jury clearly entails that the jury was satisfied beyond reasonable doubt that the Crown had rebutted any suggested provocation. In so far as it is necessary for me to make a discrete finding of fact upon the issue of provocation, I too am satisfied beyond reasonable doubt that provocation as suggested in the defence case is rebutted upon the whole of the evidence at trial. The conclusion to which I have come as to the objective criminality, overall, of the murder of which the prisoner has been found guilty is similar to my conclusion, as earlier herein noted, as to the objective criminality of the manslaughter of which the prisoner Andrew has been found guilty. That is to say, I do not think that the murder for which the prisoner Kane is now to be sentenced is in the worst case category in the sense that it would be appropriate to impose the maximum statutory penalty or a penalty at the top of the available statutory range. It remains, however, the clear fact, in my opinion, that the murder in question was a most serious criminal act; and one meriting, in terms of its objective criminality, a serious level of punishment. Subjective Matters Respecting the Prisoner Andrew 88 The prisoner was born on 9 March 1974. He was aged, therefore, 16 years and some 2 months at the time of this offence; and he is now aged 25 years and some 4 months. He is unmarried. 89 The prisoner has criminal antecedents in the form of one conviction for a comparatively minor offence of dishonesty. At trial, this was accepted on all sides as not disentitling him to the benefit of being considered on the basis that he was a person of prior good character in the requisite legal sense. It is proper that he be so regarded for the purpose of sentencing. 90 The relevant personal, familial and social backgrounds of the prisoner are detailed in a report dated 1 June 1999 and furnished by Dr. William Lucas, a forensic psychiatrist. I accept the relevant material as thus set out in Dr. Lucas' report. 91 As to the considerations of remorse, of personal deterrence and of prospects of rehabilitation, it is convenient to quote the following opinions expressed by Dr. Lucas: "Mr. Andrew has been convicted of a serious crime which arose out of special circumstances, ones which are unlikely to recur. I think it quite unlikely that Mr. Andrew will again be charged with a serious offence of violence. He regrets what has occurred, the trial has enabled him to clear the books as it were and he believes he has benefited from the experience. He is intelligent, is in a position to complete his BA and he intends to go on to other studies. His plans for the future are realistic and he has good support from friends and family. Mr. Andrew does not require psychiatric treatment. As he has abused marijuana and alcohol, not for too many years, he would be wise to seek some counselling while in prison. When he returns to the community supervision would assist him in establishing himself but this should not be too difficult given the support he will have from his family. Mr. Andrew has been through a difficult few years but he appears to have dealt with a number of important issues. I believe his psychiatric prognosis and long-term outlook in general is good." 92 Subject to one qualification, to which I shall come presently, I am in general agreement with the views thus expressed. 93 The qualification has to do with the aspect of remorse, in the sense here relevant. During the proceedings on sentence there was a lengthy exchange between the Court and learned Senior Counsel for the prisoner on this topic of remorse. During the course of that exchange I expressed in some detail reservations which I then felt in connection with that matter. They are recorded in all necessary detail and I need not now repeat them. I am still not wholly free of those doubts, the more so having regard to the findings that I have previously herein made concerning matters affecting the credit of the prisoner. The prisoner made, obviously, a favourable impression on the jury; and he seems to have made a comparably favourable impression on Dr. Lucas. I can only say for my own part that, based upon my own observations of the prisoner throughout the trial, and especially while he was in the witness box, I continue to have real doubts as to whether he does truly give an intelligently informed assent to the proposition that he is in a real way responsible, and both morally and legally, for the death of the late Mr. Tonks. So far as concerns the present discussion of the subjective features of his case, I think it is fair to give him the benefit of those doubts. 94 The matter of general deterrence, also, is a difficult aspect of the prisoner's case. This, too, was a topic discussed extensively during the course of the submissions on sentence. I cannot accept in the present case that general deterrence does not have a real role to play. Perhaps I best develop that point by making two brief citations of authority. The first is from the judgment of Gleeson CJ in Regina v Chaouk, Court of Criminal Appeal, unreported, 17 August 1993; the second is the closing passage in the speech of Lord Templeman in Regina v Brown and ors. (1994) 1 AC 212 at 237. 95 Gleeson CJ put, as follows, the point that I am wishing now to make: "The unlawful taking of another person's life is a very grave matter. Whilst the prisoner acted under provocation and a loss of self-control, and whilst his responsibility for his actions was diminished, his responsibility for those actions was not eliminated. Even allowing for the pressures under which he was acting and which reduced what would otherwise be murder to manslaughter, his actions involved taking the law into his own hands and to a degree consciously inflicting punishment upon the person who had wronged him. There is no place in our society for such acts of vengeance, and when they result in loss of human life, they are to be treated very seriously. " [emphasis added] 96 Lord Templeman put the point in this way: "Society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilised." 97 The next subjective matter concerns what was described in the submissions on sentence as the staleness of the offence here in question. The attention of the Court was directed to comments made by Street CJ in Regina v Todd (1982) 2 NSWLR 517 at 519E - 520A. It needs to be remembered that Todd was dealing with the case of a prisoner sentenced in Queensland to imprisonment in that State for offences committed in that State; and who faced the prospect of being sentenced again, and at the completion of his Queensland imprisonment, in New South Wales, to a term of imprisonment to be served in that State for offences committed in that State. In that rather special context, Street CJ said this: "Moreover, where there has been a lengthy postponement, whether due to an inter-state sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach - passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner." 98 Accepting, as of course I respectfully do, the guidance as to principle thus given by the Court of Criminal Appeal, it remains, nevertheless, my task to apply those principles in a level-headed sort of way to the particular facts of the present individual case. In that connection there are, I think, two points to be made. 99 The first point is that the reason why it took 7 years for the police to track the prisoner down was that the police did not have a clue that they could follow up, save only for fingerprints which they were unable to match with any of the prints held in the relevant police data base. Had it not been for the sheer chance of the disclosures made through Bedelia Dali to the police, the odds are, at least so far as the evidence at present available to this Court extends, that the prisoner would have continued to escape detection for an even longer period than the 7 years. I do not see why those considerations entitle the prisoner to any leniency. 100 The second point to be made is, however, that something of substance does indeed turn upon what the prisoner has made of his personal and social development throughout the period that has elapsed since the date on which he carried out the unlawful killing of which he has been found guilty. As I have earlier said, I accept that the prisoner has developed, both personally and socially, in ways that are properly to be given favourable consideration. A reflection of this development has been that the prisoner was on pre-trial bail throughout, effectively, the whole of the time between his arrest and his arraignment. The conditions of that bail were onerous; and the prisoner appears to have complied strictly with all of the requirements of his bail conditions. I have, accordingly, taken those matters into account. 101 It is necessary to consider, next, the recommendation of the jury for leniency. 102 I take the law in that connection to be as stated by Isaacs J in Whittaker v R (1928) 41 CLR 230 at 240: "The recommendation of a jury for leniency should always be treated with respect and careful attention. It is a recognized feature of our legal system. But a recommendation simpliciter is, after all, a recommendation only, and the Judge, on whom falls the sole responsibility of measuring the punishment within the limits assigned, must consider for himself how far it is consistent with the demands of justice that he should accede to the recommendation." 103 The foregoing statement of principle has been repeatedly affirmed and followed: see R v Harris [1961] VR 236 at 237 (per Lowe, Gavan Duffy and Sholl JJ); R v West [1979] Tas SR 1, at 6 and 9 respectively (per Burbury CJ); R v Tappy [1960] VR 137, at 138-9 (per Lowe, Gavan Dulffy and O'Brien JJ); R v Meares, NSWCCA, 3 October 1997, Gleeson CJ, Sully & Bruce JJ (1997) 37 ATR 321, per Gleeson CJ as 325; R v Mihailovic & ors. NSWSC, Badgery-Parker J, 15 April 1991, unreported, at 4041. I propose to act in accordance with the principles thus stated. I will not treat the present matter in a way that simply disregards the jury recommendation; for I would not think it fair to give the recommendation absolutely no weight at all. By the same token, I make it clear that I do not think that it would accord with the requirements of justice to treat the recommendation, in the context of the present particular case, as though it were, simply and comprehensively, determinative of the way in which the Court should now deal with the prisoner. 104 It should be noted that the prisoner has been in custody since 28 April last. He has no other experience of such full-time custody in the prison system. The circumstances of his case are likely to make any future imprisonment more difficult for him than might otherwise have been the case. I have kept all of these things in mind in coming to my ultimate decision. Subjective Matters Respecting the Prisoner Kane 105 The prisoner was born on 7 January 1974. He was aged, therefore, 16 years and a little more than 4 months at the time of his offence; and he is now aged 25 years and almost 6 months. He is married; although, as earlier herein noted, the marriage is effectively at an end. There are two children of the marriage, a girl aged about 5 and a boy aged about 3. 106 The prisoner has criminal antecedents, the relevant details of which are set out in Exhibit A on sentence. It is not, I think, necessary to discuss at length the details of the offences. It is sufficient to say that they are, when compared to the crime of murder for which the prisoner is now to be sentenced, of minor significance. They play no part of substance in the course that I have decided to take in respect of the present sentencing of the prisoner. 107 Two expert psychiatric reports were tendered in the prisoner's case on sentence. The first of them is dated 27 June 1999 and is the report of Dr. Olav Nielssen. The other is dated 24 June 1999 and is the report of Katherine Barrier. I have read and considered the contents of both reports. I accept the substance of the opinions therein expressed. 108 Both reports establish that the prisoner has no underlying psychiatric or psychological disorder; and that he is not in any way anti-social in his fundamental personality. Their reports support the view, being the view to which I would have come in any event on the basis of the whole of the evidence otherwise available, that the killing of the victim was, so far as concerns the present prisoner, a wholly uncharacteristic act. 109 I have at no time seen the prisoner Kane in the witness box and tested by proper cross-examination. This makes it very difficult to come to a view about the question of remorse. There are, in the two psychiatric reports, fleeting references to the topic; and they suggest that the reporting psychiatrists accepted that, at least to some extent, the prisoner is, in a proper sense, remorseful for what he did to the victim. There being no evidence to the contrary, I think I should accept those expressions of opinion. I would not regard personal deterrence as being a significant feature of the prisoner's case, in the sense that I would not expect, all things being equal, that he would murder again. I think that personal deterrence is a factor in the sense that what is now done in the matter of sentence needs to be sufficient to bring home to the prisoner in a very real way the enormity of his offence, and his proper moral and legal responsibility for what he did. 110 As to general deterrence, I need not repeat what I have said in the matter of the prisoner Andrew. 111 In the prisoner's case on sentence, no particular submission was put concerning any suggested staleness of the original offence. In the case of the present prisoner, there was no jury recommendation for leniency. 112 It should be noted that the prisoner has been in custody since 18 May 1999; and that he was previously in custody between 16 May 1997 and 18 July 1997. I will allow in the ultimate sentence for these periods of pre-sentence custody. Considerations as to Parity of Sentence 113 Because the prisoner Kane is to be sentenced for the crime of murder, and the prisoner Andrew is to be sentenced for the lesser crime of manslaughter, there is no avoiding an outcome where there is a marked discrepancy between the sentences imposed, respectively, upon the two prisoners. It is practically certain that such an outcome will give rise, in the prisoner Kane himself, and among the members of his family and other supporters, to a sense of grievance. I do not think that justice would be seen to have been done were the Court simply to show no proper awareness of that reality. It is in that spirit, and for the proper information of those concerned, that I make the following brief observations. 114 It is convenient to begin by citing the opening words of the judgment of Mason J, as he then was, in Lowe v The Queen (1984) 154 CLR 606 at 610-611: "Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community." 115 It will be observed that Mason J speaks of "unjustifiable" discrepancy. When, as is the case with the present two prisoners, co-offenders have been tried separately rather than jointly, there will always be a risk that two separate juries will take two different views concerning the objective culpability of the co-offenders. When, as is the case with the present two prisoners, one co-offender is found guilty by one jury of murder, and the other co-offender is found guilty by a different jury of the lesser crime of manslaughter, the stance taken by the law is that, provided that each of the two trials has been conducted fairly and in accordance with law, it will necessarily follow that there will be a discrepancy, and sometimes a marked discrepancy, between the sentence imposed in respect of the finding of murder, and that imposed in respect of the finding of manslaughter; and that a discrepancy arising in that particular way is not unjustifiable in the sense of which Mason J was speaking in the passage to which I have earlier referred. 116 The point just now made is illustrated and examined, so far as is at present useful, by a recent decision of the Court of Criminal Appeal: Regina v Damon Ashley Cooper, Court of Criminal Appeal, unreported, 24 February 1998. In that matter the appellant and his co-accused had been put upon to commit arson and murder by the co-accused's domineering father. They burned down a house and shot and killed a man outside his house. The appellant was convicted of manslaughter on the basis of diminished responsibility; in a separate trial, his co-accused was acquitted altogether on the basis of involuntariness. The co-accused had given evidence of serious life-long abuse and domination by his father. Gleeson CJ made the following observations, (at 14 and 19-20 respectively): "It is not for this Court to comment upon the outcome of the trial of …..[the co-accused]…..even if we were in a position to do so. ….[The co-accused]….. is legally entitled to the full benefit of his acquittal. The appellant's case must be considered on its own merits. When alleged co-offenders are tried separately, or when one person is subjected to separate trials in relation to a number of alleged offences, the risk of results that are, or that might appear to be, inconsistent, is obvious. That risk is inherent in a system which permits, and not infrequently requires, such separate trials….. The fact that the appellant….. was convicted of arson and manslaughter, whereas…..[the co-accused]…..was acquitted, does not mean that the appellant was the victim of a miscarriage of justice. In Hui Chi Ming v The Queen [1992] 1 AC 34, a principal offender and a secondary offender were tried separately. The principal offender was convicted of manslaughter and sentenced to six years' imprisonment. The secondary offender, who had merely aided and abetted the principal offender, was convicted of murder and sentenced to death. The Privy Council said that the outcomes simply reflected the different views of the facts taken by two different juries. The case of R. v Howard (1992) 29 NSWLR 242 also provides a striking example of the way in which alleged co-offenders, all given due process of law, may be treated differently." 117 I propose to give full effect to the principles thus established. That is to say, I do not propose to increase, within the appropriate range of sentence, the sentence to be imposed upon the prisoner Andrew; nor do I propose to reduce within the appropriate range of sentence, the sentence to be imposed upon the prisoner Kane; so as to contrive an appearance, however artificial, of comparability, or of proportionality, or of relationship of any other kind between the two sentences ultimately imposed. Both prisoners had legal representation at the time of the making of the order for separate trials. Both acquiesced in the making of the order. Both took every available forensic advantage deriving from the separation of their respective trials. The end result has been to leave the Court in the position of having now to deal, justly according to law, but with that same distinct separateness, with each prisoner. Conclusions as to Sentence - the Prisoner Andrew 118 It was contended strenuously for this prisoner that there should be imposed upon him a sentence not involving any further full-time imprisonment. I have considered carefully whether what I would regard as a just balancing overall of the relevant objective and subjective matters which I have examined in previous sections of these remarks, would justify such an approach. I have no doubt that the answer is: no. When everything that can be said in the prisoner's favour has been weighed fairly in the balance, it remains the inescapable fact that a jury, manifestly sympathetic to the prisoner, has found that he bears, in a real and substantive sense, legal responsibility for an unlawful killing. Accepting, as I do and for reasons earlier herein explained, that there are bases upon which it would be proper to mitigate the full severity of what would otherwise be an appropriate sentence, I have a clear and comfortable conviction that to impose a sentence that did not entail at least some period of full-time imprisonment would not conduce to the maintenance of that proper public confidence in the administration of justice, to which Mason J referred in the passage earlier herein cited from his Honour's judgment in Lowe. 119 I have come to the conclusion that a proper aggregate sentence would be one of penal servitude 6 years, apportioned between a minimum term of 4 years and an additional term of 2 years. The minimum term will commence on 28 April 1999 and expire on 27 April 2003. The additional term will commence on 28 April 2003. I have considered the matter of "special circumstances" as contemplated by section 5(2) of the Sentencing Act 1989 (NSW). A sentence of 6 years could be apportioned between a minimum term of 4-1/2 years and an additional term of 1-1/2 years without the need to find "special circumstances". The variations that I propose are not very substantial; but they reflect my view that this particular prisoner, having served the minimum term of 4 years, should have thereafter, and if released to parole as I would expect will be the case, the support and the assistance of the Parole authorities for a period of not less than 2 years. 120 Benjamin Bruce Andrew: You are formally convicted of the manslaughter of Wayne George Tonks, of which manslaughter you were found guilty by the verdict of the jury. You are sentenced to penal servitude for a period of 6 years apportioned between a minimum term of 4 years and an additional term of 2 years. The minimum term will commence on 28 April 1999 and expire on 27 April 2003. The additional term will commence on 28 April 2003. 121 I make the following recommendations and direct the Registrar to being them to the urgent attention of the Commissioner of Corrective Services: (1) That the prisoner's classification within the Corrective Services system be carried out as a matter of urgency and to the end of minimising any extended exposure of the prisoner to the influence of hardened criminals. (2) That to the maximum extent compatible with proper prison administration and discipline, the prisoner be encouraged to continue, and be afforded the necessary facilities to continue, and to complete his current tertiary studies; and such further tertiary and other vocational courses as he may wish to undertake. Conclusions as to Sentence - the Prisoner Kane 122 The submissions on sentence put for the prisoner included a reference to a very recent decision of Simpson J of this Court in the related matters of Sefo and Soriano: unreported 13 May 1998. The former pleaded guilty to the murder of a 23 year old tourist who had done nothing to bring about his own death. The latter pleaded guilty to the manslaughter of the same victim. Sefo was sentenced by her Honour to penal servitude for 11 years comprising a minimum term of 7 years and an additional term of 4 years. It was submitted, as I followed the arguments based upon this decision, that such a measure of punishment might be thought of some general indicative value in the present case, given that Sefo was, like the present prisoner, a young boy at the time he committed the murder for which he was sentenced. 123 I have read the decision, and I think that it is clearly distinguishable on its facts from the facts of the present case. Sefo was aged about 13-1/2 years of age when he committed the murder; and he was aged about 15-1/2 when he stood for sentence. The subjective features of his case included the fact that he was suffering from a degree of intellectual impairment; was very poorly educated; and had what her Honour described as "a personal history of social and familial dislocation", which her Honour accepted as having an obvious bearing upon the pattern of his behaviour leading up to the killing in question. The case of the present prisoner is, I think, very far removed on its facts from that kind of subjective context. 124 There was, in addition, the very important consideration that Sefo pleaded guilty; and thus received, by reason of that plea, a significant discount in what would have been otherwise the sentence imposed upon him. In saying that, I must make it clear that the present prisoner is not liable, merely because he exercised his undoubted right to plead not guilty, to be punished more severely than would otherwise be appropriate. 125 In doing my best to bring into a fair overall balance the objective and subjective features of which I have earlier spoken, I have tried to allow, also, for the fact that the prisoner is a comparatively young man who could have looked forward, had he not been in his present predicament, to a good and useful life in the general community. I have tried to find a fair point of balance between what I think the justice and merits of the present matter require and the need to avoid a crushing sentence. 126 I have found difficult in the extreme everything to do with the sentencing of the present prisoner; but I have come to the conclusion that a fair result would be the imposition of a sentence of penal servitude of 13 years divided between a minimum term of 10 years and an additional term of 3 years. That sentence takes account of the two months served in custody by the prisoner in 1997; and it will be back-dated to 18 May 1999, the date upon which he entered his present custody. I have considered the question of "special circumstances" as contemplated by section 5(2) of the Sentencing Act 1989 (NSW); but I do not see that the subjective features of the prisoner's case require, in connection with his future rehabilitation back into the general community, an additional term greater than 3 years. 127 Peter Clive Basil Kane: You are convicted formally of the murder of Wayne George Tonks, of which murder you were found guilty by the jury. You are sentenced to penal servitude for a period of 13 years to comprise a minimum term of 10 years and an additional term of 3 years. The minimum term will commence on 18 May 1999 and will expire on 17 May 2009. The additional term will commence on 18 May 2009. 128 I make the following recommendations and direct the Registrar to bring them to the urgent attention of the Commissioner of Corrective Services: (1) That the prisoner's classification within the Corrective Services system be carried out as a matter of urgency. (2) That thereafter, and to the maximum extent compatible with proper prison administration and discipline, the prisoner's place of detention from time to time be arranged in such a fashion as will permit of his maximum continuing contact with his children. (3) That to the maximum extent compatible with proper prison administration and discipline the prisoner be detained in such circumstances as will minimise any extended exposure of the prisoner to the influence of hardened criminals. ********** Last Modified: 01/04/2002 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.