Reported Decision : 111 A Crim R 415 New South Wales Supreme Court CITATION : R v Matthew James Harris [2000] NSWSC 285 FILE NUMBER(S) : SC 70027/99 HEARING DATE(S) : 24 March 2000 JUDGMENT DATE : 7 April 2000 PARTIES : Regina v Matthew James Harris JUDGMENT OF : Bell J COUNSEL : C: Ms W Robinson QC A: Mr A Webb SOLICITORS : C: S E O'Connor, Director of Public Prosecutions A: Creaghe Lisle CATCHWORDS : CRIMINAL LAW AND PROCEDURE - Sentencing - Murder - whether life sentence appropriate Sentencing Act 1989, ss5, 13A Crimes Act 1900, ss19, 19A, 431B Crimes Legislation Amendment (Sentencing) Act 1999, Sch 1 LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999, ss21, 44, 61, Sch 2, cl 37 Crimes Amendment (Mandatory Life Sentences) Act 1996 Crimes (Homicide) Amendment Act 1982 Crimes (Administration of Sentences) Act 1999, s135 R v Previtera (1997) 94 A Crim R 76 R v Kalajzich (1997) 94 A Crim R 41 R v Petrinovic [1999] NSWSC 1131 R v Garforth (CCA, unrep, 31/03/94) R v Street (CCA, unrep, 17/12/96) R v Bell (1985) 2 NSWLR 466 CASES CITED : R v Burke [1983] 2 NSWLR 93 Veen v The Queen (No.2) (1987-1988) 164 CLR 465 R v Petroff (Hunt CJ at CL, unrep, 12/11/91) R v McCafferty (Wood J, unrep, 15/10/91) Bugmy v The Queen (1990) 169 CLR 525 R v Ellis (1986) 6 NSWLR 603 R v Holder (1983) 3 NSWLR 245 DECISION : See para 115 (sentenced to 40 years with 25 years non-parole) THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION BELL J 7 APRIL 2000 70027/99 - REGINA v MATTHEW JAMES HARRIS SENTENCE 1 HER HONOUR: On 3 December 1999, the prisoner, Matthew James Harris, was arraigned on an indictment charging him with three counts of murder. He entered pleas of guilty to each count. All matters were stood over for sentence. The sentence hearing was listed before me on 24 March 2000. 2 On that date, the Crown presented a further indictment charging the prisoner with an offence of armed robbery in company committed upon Trang Doan Ngoc Nguyen on 20 June 1998. The prisoner pleaded guilty to that charge. 3 The armed robbery offence was the first in the series of offences for which the prisoner stands for sentence. It was committed ten days before the prisoner's 30th birthday. 4 The prisoner committed the armed robbery in company with a man named Kenneth Scott Frazier. Neither of them had money to buy alcohol. It was about 7.15pm on a Saturday night. They went to the front door of premises in Nordlingen Drive, Wagga Wagga, which were situated directly behind the block of units in which they both lived. They knocked on the front door of the victim's unit announcing that they were police. Each was armed with a large kitchen knife. The victim, Trang Nguyen, opened the front door of the unit and the two men pushed their way in. They terrorised Ms Nguyen holding a knife to her throat and demanding money. Her three children were present. They stole a total of $58.00. They disconnected the telephone and left the unit and went to buy alcohol. 5 This ugly crime appears to mark the commencement of the prisoner's degeneration to a point where, in the space of six weeks beginning around 1 October 1998, he strangled three people in separate incidents. 6 Peter Wennerbom was aged 62 years. He was a single man living in a unit in Jack Avenue, Wagga Wagga. He was a slightly built individual who suffered some residual difficulties following a stroke. The prisoner was on friendly terms with Peter Wennerbom's sister, Elaine de Jong. He had accompanied Mrs de Jong on occasions when she visited her brother. He knew that Mrs de Jong loved her brother and had been worried about his health. 7 Some time around 1 October 1998, the prisoner knocked on Mr Wennerbom's front door under the pretext of asking for a drink of water. It appears that Mr Wennerbom was suspicious of the prisoner's approach. The prisoner told police that Mr Wennerbom handed the water to him at the door. The prisoner barged in. Shortly after entering the premises he commenced to strangle Mr Wennerbom. He told the investigating police, "He was an old man, there was no, no resistance at all. I had total, you know, control over the situation, he, he couldn't do anything". 8 Mr Wennerbom was in the habit of keeping relatively large sums of cash at home. Commonly he would have between $600 to $800. No money was found in the unit following the discovery of his body. The prisoner, in the course of two electronically recorded interviews said he did not recall taking money from Peter Wennerbom. Generally, his recollection of the detail of these shocking crimes was patchy. It may well be that he did steal a quantity of cash after killing Mr Wennerbom. 9 I was invited to approach sentence upon the basis that the prisoner went to Mr Wennerbom's home with the intention of robbing him and that thereafter he killed Mr Wennerbom to avoid identification. On this view, so the Crown Prosecutor submitted, one might discern a progression in the pattern of the prisoner's criminal offending in the second half of 1998. 10 It was the Crown's submission that the subsequent two killings bore a different character. Both of these were wholly opportunistic killings committed for no reason other than that the prisoner was angry and found killing to be an outlet for that anger. 11 There are a number of passages in the interview conducted between Detective Sergeant Spence and the prisoner on 1 December 1998 and in the subsequent "walk-through" interview conducted at the deceased's premises on 7 December 1998 which suggest strongly that the killing of Peter Wennerbom was an opportunistic killing, for the sake of it. Thus, during the interview on 7 December, the following exchange appears: "Q. Now when you, earlier you said you came here, you were going to ask for some money. Do you remember if you actually got any money from him? A. Oh, no, no, I don't think, I might have, that, that might have been the reason to come here, but like I said, I ended up asking him for water instead. I don't, didn't come here to ask him for money, I didn't, I don't, I, I might have said that but I don't think I came here to ask for money. The only reason I came here was because I knew the, I knew him, I knew he lived on his own and I knew I could kill him." 12 Elsewhere in that interview, the prisoner asserts that robbery did not even enter his mind. He speaks of his sole intention as being to kill Mr Wennerbom. I will return to the question of the prisoner's motivation in relation to this first killing in due course. 13 Mr Wennerbom's body was found by the father of one of his neighbours on the afternoon of 4 October 1998. Police and the ambulance service were summonsed. Senior Constable Christie attended and observed a suspicious bruise to the right side of the deceased's throat. He treated the premises as a potential crime scene and contacted the duty officer. Arrangements were made for specialist police to attend and photograph the scene. 14 Dr Childs, the deceased's treating medical practitioner examined the body. He noted the bruising to the neck and declined to issue a death certificate. The deceased had last been seen alive on 1 October 1998. The post-mortem examination did not establish a clear cause of death. At the time, it was considered that death may have been the result of a stroke or epileptic seizure. 15 Elaine de Jong, in a statement dated 8 January 1999, told police that in the days following the death of her brother the prisoner had been especially solicitous. Mrs de Jong's daughter, Jane Pope, asked the prisoner to help her clean out Peter Wennerbom's unit following the discovery of his body. The prisoner did so. He went to the funeral. Jane Pope said that he did not attend the service itself but he stayed outside playing with her children. She did not consider this unusual since the prisoner was accustomed to helping her with the children. 16 Over the course of a number of years Mrs Pope had seen the prisoner suffer periodic bouts of depression. She observed that he was depressed in the period following the death of Peter Wennerbom. 17 Yvonne Ford was a 33 year old woman living at 26 Phillip Avenue, Wagga Wagga. She suffered from mild intellectual disability. She was able to live independently. She held down a part-time job working for Cheryl Fitzgerald-Holmes, the proprietor of a set of boarding kennels. Ms Ford was employed for 20 hours per week to walk the dogs. She was described by Janice Lowing, Ms Fitzgerald-Holmes' sister, as a methodical person and a conscientious employee. She had drawn up a chart to remind herself which dogs had been walked and which had not. She relied upon the Community Transport service to drive her to and from work. This is a community based organisation employing volunteer drivers. The prisoner was one. On occasions he had driven Ms Ford to work. 18 Ms Lowing told police that Yvonne was a very security-conscious person. Among the only people she could imagine Ms Ford letting into her home would be the Community Transport drivers and perhaps the Woolworths delivery man. Ms Lowing described Yvonne Ford as a totally harmless person who enriched the lives of those who knew her. Ms Fitzgerald-Holmes told the police, "All Yvonne wanted was to get a car, meet a boyfriend and have a family". 19 On or about 17 October 1998, the prisoner called to Yvonne Ford's home. In an interview with the police, he said he did not remember how he came to visit the premises. He said he "just went there. I was probably out on one of me walks and I probably had a few drinks, in the area so I just went went to the house ended up there". 20 The prisoner knocked on the front door of Mr Ford's home telling her that it was Matthew from Community Transport. She let him in. They engaged in small talk in the lounge. The prisoner told Police that Yvonne had been happy to see him. He volunteered that she did not get many visitors. After a little time the prisoner made a sexual advance towards her. He had no intention of having sexual intercourse with Ms Ford. The advance was a pretext. The prisoner had decided that the easiest way to kill Ms Ford would be to strangle her while she was in the bath. He had no hostility towards her. She had been always polite and nice to him on the occasions when he had driven her for the Community Transport Service. He told police: "We struck up a bit of a friendship, as, just, just driving her around, and I obviously could tell she was lonely, she was slightly handicapped. I didn't come, I didn't come around here for sex, I didn't come around here for anything, I just came around to say Hello, I live nearby, but then these thoughts started entering my head that I wanted to kill her." 21 The prisoner persuaded Ms Ford to get into the bath. He offered to rub her back. He took his clothes off and sat in the bath behind her. Then he strangled her. She struggled so he held her under the water while strangling her. It took 3 to 4 minutes to kill her. 22 The prisoner told police that there was no particular reason for him to select Ms Ford, "… it could have been her, it could've been anybody. She was just unlucky". Ms Ford did meet one criterion. The prisoner told Detective Sergeant Spence, "I just thought she would be easy, to target, she wouldn't put up a fight or … she would be relatively easy to kill" (Q.363/4). 23 The prisoner was asked how he had felt at the time he was strangling Yvonne Ford and he replied, "Powerful, angry, just anger, pure anger. Not, not that she, there was no sex or anything, I was angry at the world. This is why this whole thing has happened, has started, and it was just my total anger building up from, I don't know, from the day I was adopted, it's just all built and built and, and something has set, set me off and I, I killed her" (interview, 7 December 98 at pp 23-24). 24 The prisoner told the police that, following the murder of Yvonne Ford, when he went home, he had felt horrified. 25 Janice Lowing became concerned about Yvonne Ford's wellbeing on Sunday, 18 October 1998 when she did not answer the door. Senior Constable Hall attended the premises and discovered the body. He made contact with his supervisor and arranged for scientific police to attend. A post-mortem examination was carried out but the cause of death was not evident at that time. There was nothing to suggest to the police that the death of Ms Ford was the result of foul play. 26 The prisoner noted that there had been no press report of Yvonne Ford's death. He inferred that his crime had probably not been detected. 27 The prisoner was living in a block of units at 1 Joyes Place, Wagga Wagga. He came to know a number of the other residents of that block. His immediate neighbour was Ronald Galvin. They were aquainted with one another. Ronald Galvin had never done anything to upset the prisoner. On 3 November 1998, the prisoner strangled Ronald Galvin. The following evening, the prisoner borrowed Elaine de Jong's car. He carried Mr Galvin's body from the Joyes Place premises wrapped in a doona. He drove to an area of tall grass not far from Uranquinty where he dumped the body. He was generally familiar with the Uranquinty area because Jane Pope and her family live there. He had stayed at the Pope's home some years earlier. 28 Ronald Galvin was the son of Cecil and Iris Galvin. The Galvins live in Wagga Wagga. Ronald was a loving son who assisted his parents in a variety of ways which enabled them to enjoy a full and outgoing life in their later years. He would collect them and take them shopping or on visits to the doctor or to see family and friends. His senseless killing has caused untold distress to them and to his sisters, Barbara and Cheryl, and to his brother Brian. A Victim Impact Statement, prepared on behalf of the family, is in evidence. It speaks eloquently of the family's loss and of their sense of bewilderment that their son and brother should have been murdered by the prisoner for no reason. I bear in mind the observations of Hunt CJ at CL in R v Previtera (1997) 94 A Crim R 76 at 85. 29 The prisoner's recall of the circumstances surrounding the killing of Ronald Galvin were poor. At the time of the extensive interviews between the prisoner and Detective Sergeant Spence conducted on 1 December 1998 the prisoner's short term memory appears to have been impaired. He had taken an overdose of heroin the previous night. He was observed by the welfare officer, responsible for screening new receptions at the Silverwater Metropolitan Reception and Remand Centre, to be in a highly distressed, anxious and confused state when she assessed him at 7.20pm on 2 December 1998. 30 In his first interview concerning the murder of Ronald Galvin, the prisoner was not able to recall whether he had strangled Mr Galvin in his own flat or in Mr Galvin's flat. Subsequently, on 7 December 1998, when the prisoner participated in a "walk-through" at each of the premises in which he had killed people, he remained somewhat uncertain about the scene of the killing of Mr Galvin. He thought that he had been drinking with Mr Galvin, although it was possible that he had called to Mr Galvin's flat to ask for a cigarette. He strangled him from behind. His only explanation was, "… I think it was just a lot of anger I was getting rid of and it was being projected on him" (Q.562). 31 Ronald Galvin was reported as a missing person. Detective Sergeant Spence interviewed the prisoner on 25 November 1998 in connection with the disappearance. The prisoner gave an account that he had last seen Mr Galvin at 7.00 or 7.30pm on the evening of Melbourne Cup day. Mr Galvin had been sitting on the stairway leading up to his flat with a number of persons including someone described as "a bloke I've never seen before". The prisoner said he had not seen Mr Galvin since that time. Detective Sergeant Spence recorded the prisoner as a suspect in relation to the disappearance of Ronald Galvin on 25 November 1998. 32 Mr Galvin's body had not been located as at the date of the prisoner's arrest. 33 In the period following Mr Galvin's murder the prisoner made two attempts to kill himself. In each instance he took an overdose of heroin. On Wednesday 11 November 1998, Elaine de Jong spoke with the prisoner who told her that he had just returned from a trip to Sydney after taking an overdose. She asked why and he said "I don't feel well, I'll talk to you about it tomorrow. I need to tell you something". The following day, she went to the prisoner's flat but he was not at home. She made a number of inquiries and learned that the prisoner had returned to Sydney. Such was her concern that she flew to Sydney that same day in an attempt to locate him. She returned to Wagga Wagga three days later having failed to find him. 34 On 30 November 1998, Mrs de Jong received a telephone call from the prisoner at 3.00am. He said to her, "I need to talk to you. Will you stand by me no matter what?" He hung up shortly thereafter. About two minutes later, he telephoned again and repeated his request that she promise to stand by him. He went on to say, "I'm going to be away for a long time, about sixteen years. Will you visit me. Will you promise not to die before I get out?" The prisoner then told Mrs de Jong, "I killed that bloke that's missing from next door". Mrs de Jong asked where the body was to be located and the prisoner replied, "Somewhere in Uranquinty. Don't tell anybody yet. I want to do this in my own time. I love you." Mrs de Jong immediately spoke with her husband and together they went to the Wagga Wagga Police Station and spoke with Sergeant Hogno at about 4.00am that day. 35 At 9.30am, the prisoner again telephoned Mrs de Jong. He told her that he was in Sydney. He repeated his request for her to stand by him. In that conversation he went on to tell Mrs de Jong, "I killed a lady in Phillip Avenue as well on Caulfield cup day". Mrs de Jong asked, "How". The prisoner replied, "In the bath. But I don't think anybody found her because I don't think there was anything in the newspapers about it". He asked Mrs de Jong not to have the police waiting for him should he return to Wagga Wagga. He said he wanted to go to the Police Station when it was daytime. Mrs de Jong replied, "Mathew, don't come back here thinking that you can talk me into being quiet. You know how I am". The prisoner said, "I don't know if I can do it. What about if you make me a tentative booking under the name of Mathew Brown on today's coach?" The prisoner did not take the coach. 36 At 2.05pm, he telephoned Mrs de Jong from Sydney. She was, at that time, speaking with Detective Sergeant Spence. During this conversation, the prisoner told Mrs de Jong that he had some heroin and he thought it was best to end it all then. It appears that the prisoner took an overdose of heroin sometime later that evening. Inspector Axford attended the Embarkation Park, Victoria Street Potts Point at a little after midnight on Tuesday, 1 December 1998 to investigate a report of a male person who had apparently overdosed. He located the prisoner lying unconscious in the park. The ambulance service was contacted and the prisoner was revived by the administration of oxygen and Narcan. He was conveyed to St Vincent's Hospital for further treatment. 37 After Inspector Axford obtained the prisoner's personal particulars, he made some inquiries on the police computer system. As the result of those inquiries he arranged for Senior Constable Clarke to attend at St Vincent's Hospital and arrest the prisoner. 38 At a little after 11.00am that morning, Detective Sergeant Spence conducted the first of a number of electronically recorded interviews with the prisoner. 39 During the interviews conducted on 1 December 1998, the prisoner was told of the admissions made by him to Mrs de Jong as to the killing of Ronald Galvin and Yvonne Ford. He said, and I accept, that he did not remember having made those admissions. Nonetheless, he freely confessed that he was the killer. 40 The final interview conducted on 1 December 1998 concerned the death of Peter Wennerbom. That interview commenced at 8.53pm. The prisoner had not made any admission to Elaine de Jong as to the killing of her brother. At the beginning of the interview, the prisoner started to say that he did not know about the death of Mr Wennerbom. At that point he appeared to become upset. He expressed concern about upsetting Elaine de Jong. He went on to say to Detective Sergeant Spence, "My mind's not clear on it but, I don't know, I think I might have something to do with it". Shortly thereafter, he clarified this by saying he had strangled Mr Wennerbom. 41 I approach this matter upon the basis that the prisoner was fully cooperative with police throughout their investigation. I accept that his memory for detail of the events was, at times, impaired. 42 On 7 December 1998, the prisoner accompanied Detective Sergeant Spence and other police to the scenes of each of the killings and made further frank disclosures concerning his involvement. 43 On 1 February 1999, Detective Sergeant Smith conducted a further electronically recorded interview with the prisoner. In the course of this interview, Detective Sergeant Smith obtained a great deal of background information concerning the prisoner which, in some measure, assists in an understanding of these appalling crimes. 44 The prisoner was born on 30 June 1968. He was adopted at the age of about ten months and grew up in Cronulla. His parents had one natural child, a girl four months older than the prisoner. The prisoner had come to understand that arrangements had been put in train for his adoption at a time when his parents believed that they were unable to have further children of their own. Subsequently, his mother gave birth to a son. When the prisoner was around ten, he was told that he was adopted. He appears to have been very unsettled by that discovery. 45 It was the prisoner's perception that his parents and, in particular his mother, treated him differently and less well than his brother and sister. In his early teens he started exhibiting behavioural problems. He began abusing alcohol and truanting. He left home and school. 46 The Department of Community Services arranged various placements for the prisoner over the years. A report, dated 12 July 1983, under the hand of Mr Mullany, District Officer, was tendered on the prisoner's behalf. The report was prepared two weeks after the prisoner's 15th birthday. At the time, the prisoner was in temporary foster care with a family in Gymea. His behaviour with this family had been observed to be quite good. It was noted that his parents had shown a complete lack of interest in him. The family was described as living ten minutes by motor vehicle from the foster home but as having made no attempts to contact the prisoner. 47 From the age of fifteen or thereabouts, the prisoner found himself living in refuges and on the streets. He prostituted himself and became a heroin user. In January 1991, he was charged with offences of armed robbery and assault. In May 1991, he was sentenced to an effective minimum term of two and a half years penal servitude. An additional term of six months was specified. The prisoner described the victim of the armed robbery offence as one of his customers. 48 While serving this sentence, the social worker at the Junee Prison put the prisoner in touch with Elaine de Jong. Both Elaine de Jong and her daughter, Jane, were active in the Triangle Organisation. This is a voluntary group which aims to assist adoptees to meet their biological parents. Elaine de Jong agreed to assist the prisoner to locate his mother. She formed a friendship with the prisoner and, following his release from custody in 1993, he moved to Wagga Wagga. He lived with Mrs de Jong and her family for a period of six months or more. He was motivated by a desire to make a fresh start away from the life he had known in Kings Cross in the previous decade. 49 From that time, up until the date of his arrest in relation to the present matters, the prisoner lived predominantly in Wagga Wagga. He would return to Sydney on occasions and purchase heroin. However, his usage was controlled and, until shortly prior to his arrest, recreational. 50 The prisoner's criminal record as a juvenile contains relatively few entries having regard to his lifestyle. His first convictions recorded against him as an adult were the armed robbery and assault offences to which I have referred. He was sentenced in May 1991 in respect of these offences. He was then aged twenty-two years. He was released from prison around November 1993 at the age of twenty-five. 51 From the date of his release from prison until the armed robbery of Trang Nguyen in June 1998, the prisoner appears to have led a relatively law abiding life if one puts to one side for present purposes his occasional drug use. The only criminal offence recorded against him in these years was a conviction for stealing recorded at the Wagga Wagga Local Court in respect of which he was fined $200. He had not been out of prison long at the date of his arrest for that offence. 52 The prisoner obtained employment for a short time at Cargill's Meatworks as a packer. By and large, over these years, he was unemployed. In 1994, he undertook a basic education course at the Wagga Wagga TAFE. This course lasted for six months. The prisoner found the content of it too elementary to be of real interest. However, he persisted because it provided him with something to do and he wished to please the de Jong family. 53 The prisoner performed voluntary work with the Community Transport Organisation in Wagga Wagga. Again, his motivation for undertaking this work was that it provided him with something to do. He also enjoyed driving. 54 An old pre-sentence report, dated 14 October 1987, was tendered on the prisoner's behalf. That report described the prisoner as a young man who had been anxious to discover his natural mother for some years. He had previously been told he would have to wait until he was 18 years of age. He told the author of the report that he had come to feel that an attempt to find his natural mother may only bring hurt and rejection. That proved to be a well-founded fear. With the assistance of Mrs de Jong the prisoner met his natural mother a year or two prior to the commission of the present offences. He told Detective Sergeant Smith that the meeting lasted three or four minutes. His mother explained that she had given him up at birth and that she did not want further contact with him. He was given to understand that his mother had given birth to him at an early age and that, subsequently, she had formed another relationship and had children who represented her "own family". Those children knew nothing of the prisoner nor did she wish them to learn of him. I accept that this was a significant blow to the prisoner. 55 In his interview with Detective Sergeant Smith on 1 February 1999, the prisoner said that as a child he had nightmares about his adoptive mother. He used to think that she was trying to kill him. He hated her. He said that his nightmares would feature the silhouette of his mother in the window carrying a knife trying to kill him. Those nightmares recurred over a period of years until the prisoner left home. He went on to tell Detective Sergeant Smith: "… just the thoughts, you know, I've always, its on record, I've always thought of I've wanted to kill my mother and my family and stuff like that. Just being dirty on the world, you know, being dirty on the fact that I was adopted and I was taken in by this family and then rejected by them. … in the shit with the prostitution and having to lower meself and all that, just all the thoughts." (Q.102) 56 He went on to state that he had murderous thoughts about his family quite often from about the age of 13. He said that his thoughts about killing people continued during the period that he was prostituting himself. He described himself in this way: "I went with so many blokes I could have killed a number of them, but I didn't, I didn't, didn't go through with it, but even then I had the thoughts, you know, these blokes that the, that I was, that I was sleeping with were using me and I using them or whatever, I thought, I wanted to kill them, of course." (Q 105) 57 Reports by two psychologists were tendered in the prisoner's case. One by Ms Barrier, dated 10 November 1999, and one by Ms Matsuo, the forensic psychologist, at the Metropolitan Medical Transient Centre, Long Bay complex. Ms Matsuo reports regular and on-going therapeutic contact with the prisoner between 16 September 1999 and the date of her report, 22 March 2000. Her opinion is based in part upon the results of psychometric assessment and in part on her observations of the prisoner over six months of regular contact. Ms Matsuo notes that psychiatric assessment of the prisoner, while he was in custody led to a diagnosis of depression and that he has been taking anti-depressant medication since October 1999. The medication, together with psychological therapy, has resulted in him showing greater emotional stability and in the emergence of his underlying personality. 58 Both Ms Matsuo and Ms Barrier made use of the Millon Clinical Multiaxial Inventory - Third Edition (MCMI-3). This is a standardised psychometric measure designed to assess information concerning the subject's personality, emotional adjustment and the presence of psychopathology. I read both psychologists as having obtained broadly consistent results by reference to that measure. 59 Ms Barrier's test results revealed a diagnosis of personality disorder (schizotypal) and/or avoidant personality disorder with prominent depressive and schizoid traits. Ms Barrier states that: "Personality test results describe someone who is 'unable to overcome the feelings that life is empty and meaningless, and unable to master the skills to overcome the deficits he sees within himself, he is likely at times to become cranky if not explosive'." 60 Ms Barrier reported that the prisoner demonstrates little empathy for the victims and limited understanding of the enormity of his behaviour. He told Ms Barrier that he was currently seeing a psychologist at the prison on a regular basis with the aim of assisting him to come to terms "about why it all happened". 61 Ms Matsuo says that the prisoner has a Schizoid personality disorder. Individuals with this disorder tend to be detached from social relationships and to have a restricted range of expression of emotion in interpersonal settings. They tend to be socially isolated people. The Diagnostic and Statistical Manual of Mental Disorders (Fourth Edition) suggests that, in some situations, such individuals may be comfortable in revealing themselves and they may acknowledge painful feelings. Ms Matsuo says that this has happened with the prisoner. She goes on to observe: "Taken in context based on his day to day behaviour, Mr Harris displays few pervasively antisocial traits. He prefers to be alone rather than in large groups but this stems from his feeling of inadequacy and worthlessness. He often denigrates himself in front of the author and has a low self-image. Mr Harris' history does indicate he has often failed to comply with social norms especially in terms of his drug use, prostitution and his criminal history, however, he does not lack remorse altogether. He has demonstrated significant levels of compassion both in and out of gaol, helping others in need and in particular taking care of young children at his home in Wagga. Mr Harris' transient disregard for others has occurred as a very specific end to a certain set of psychological circumstances. He believes the reason he felt indifference to the human life that he destroyed may be the indifference he feels towards his own existence. He is not, in terms of his enduring personality type an irritable, aggressive or violent person as assessed by the MCMI-3 - and he is not a person who pervasively shows indifference or contempt for the feelings and suffering of others or explosive anger." 62 Ms Matsuo describes the prisoner as expressing genuine remorse over the death of Yvonne Ford but not over the deaths of Mr Wennerbom or Mr Galvin. Ms Matsuo states that the prisoner displays empathy for his female victim and that he shows insight into the emotion she would have experienced at the time. Ms Matsuo considers that the prisoner is developing increasing feelings of guilt concerning Ms Ford, that he feels "terrible" inside, that he is disgusted with himself and that he deeply regrets his actions. He has expressed distress and confusion in his sessions with Ms Matsuo over the fact that he feels no empathy with the male victims. He says he wants to feel it because he knows what he has done is extremely wrong. 63 In her conclusion, Ms Matsuo states that, in the length of time she has had contact with the prisoner, he has begun to accept responsibility for his crimes and not to feel the depth of self-pity which he did previously. Ms Matsuo states: "Mr Harris is cognisant of his psychological shortcomings and his lengthy problems with drugs and alcohol. He has already shown himself to be highly motivated to work on his offending issues with psychological programs and his substance abuse issues with AOD counsellors." She describes him as having begun what he knows will be the difficult task of understanding himself. 64 As I have noted, the Crown submitted that I would approach this matter upon the basis that the killing of Mr Wennerbom was in a different category to the killings of Yvonne Ford and Ronald Galvin. The Crown submitted that I would not conclude beyond reasonable doubt that the prisoner had set out with the intention of killing Mr Wennerbom. The Crown accepted, having regard to the whole of the material, that a reasonably possible view of the facts was that the prisoner had intended to rob Mr Wennerbom, and that, having done so, he determined to kill him in order to avoid later identification. 65 There are, as I have observed, a number of passages in the interview between Detective Sergeant Spence and the prisoner in which it appears the prisoner clearly acknowledges that his sole intention in visiting Mr Wennerbom that night was to kill him. This is against a background of the prisoner's admissions that, for a number of years, he had entertained thoughts of killing people in order to get back at the world. I note that, in his sessions with Ms Matsuo, the prisoner has asserted his belief that it was his intention on the evening he called upon Mr Wennerbom to rob and not to kill. The prisoner has not sought to put a complexion on the killings of Yvonne Ford or Ronald Galvin other than that they were killings for the sake of it. Nor in his sessions with Ms Matsuo has he sought to feign remorse for the killings of either Peter Wennerbom or Ronald Galvin. This inclines me to accept that the prisoner has endeavoured to be frank with Ms Matsuo. 66 The interview concerning the killing of Peter Wennerbom was the final interview conducted on 1 December 1998. It is apparent that the prisoner was exhibiting considerable confusion on that day. In the course of his interviews concerning the killing of Yvonne Ford and Ronald Galvin, he had repeatedly spoken of his ruminations about killing people generally. At an early stage in the interview concerning the murder of Peter Wennerbom, he said, "I intended to rob I think". Subsequently, as I have already detailed, he moved from this as his intention asserting emphatically that he had gone to Peter Wennerbom's home in order to kill him. 67 I consider that, in the light of his state on 1 December and having regard to the sequence with which he was interviewed concerning the three deaths, that I would not conclude beyond reasonable doubt that his intention was to kill Peter Wennerbom at the time when he knocked on Mr Wennerbom's front door. 68 I approach the matter of sentence upon this basis. Around the time of his 30th birthday, the prisoner started to become overwhelmed by feelings of depression associated with his view that he had achieved nothing in his life. He was at the time associating with Kenneth Frazier, a person with a lengthy criminal record. The association was a bad one from the prisoner's point of view. 69 Kellie Oxford, a young girl living in the Frazier's home gives an account of the lead up to the armed robbery of Trang Nguyen. She says that it was Mr Frazier who proposed the robbery. She recalls the prisoner as initially declining to be involved. The following night, both Mr Frazier and the prisoner were drunk when Ms Oxford says, Frazier said, "What about that armed robbery?" to which the prisoner replied, "Why not". 70 Both the prisoner and Ken Frazier were suspects in relation to the robbery of Trang Nguyen. They were asked to attend an identification parade at the Wagga Wagga Police Station. It would appear that there was insufficient evidence to charge either of them at that time. 71 After getting away with the robbery of Ms Nguyen, the prisoner, when again affected by alcohol, was emboldened to rob Peter Wennerbom. Having forced his way into Mr Wennerbom's house, he killed him to avoid detection. He was a person who for years had entertained thoughts of killing people. Having killed Mr Wennerbom, and having avoided detection, the prisoner became confident enough to commence killing people for the satisfaction of it. 72 The Crown submits that the killings of Yvonne Ford and Ronald Galvin call for the imposition of the maximum penalty. 73 As I have noted, these proceedings were before me on 24 March 2000. On that day the Sentencing Act 1989 was still in force. On 3 April 2000, Schedule 1 of the Crimes Legislation Amendment (Sentencing) Act 1999 commenced. The Sentencing Act 1989 was thereby repealed. The Crimes (Sentencing Procedure) Act 1999 ("the Procedure Act") commenced on that day. The savings and transitional provisions are contained in Schedule 2 of the Procedure Act. Relevantly cl 37(a) is in these terms: "anything begun before the appointed day under a provision of the old legislation for which there is a corresponding provision in this Act may be continued and completed under the old legislation as if the Crimes Legislation Amendment (Sentencing) Act 1999 had not been enacted". 74 I do not know what is embraced by the words "anything begun … under a provision of the old legislation". The proceedings were on foot prior to the appointed day at a time when the Sentencing Act 1989 was in force. They had been commenced, on one view, not later than the date on which the prisoner was arraigned. It is not clear to me that anything had begun under a provision of the old legislation for which there is a corresponding provision under the Procedure Act. The proceedings had begun by virtue of the presentation of the indictment. For this reason, I consider the Procedure Act and not the Sentencing Act to apply to any determinate sentence imposed. 75 Section 19A(1) of the Crimes Act 1900 ("the Act") provides that a person who commits the crime of murder is liable to imprisonment for life. A person sentenced to imprisonment for life is to serve that sentence for the term of the person's natural life. Section 19A does not affect the operation of s 21 of the Procedure Act which admits of the passing of a lesser sentence than imprisonment for life in respect of a person's conviction for murder. 76 Section 61 of the Procedure Act provides: "A court is to impose a sentence of imprisonment for life on a person who is convicted of murder, if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence." 77 Section 61 of the Procedure Act is in identical terms to s 431B of the Act. The latter was inserted into the Act by the Crimes Amendment (Mandatory Life Sentences) Act 1996. It commenced on 30 June 1996. I was not referred to any authority concerning the construction of this provision. Hunt CJ at CL referred to it in passing in R v Kalajzich (1997) 94 A Crim R 41 at 49, a case dealing with an application for the determination of a minimum and additional terms pursuant to s 13A of the Sentencing Act 1989. In that case, the Crown submitted that his Honour should decline the application and direct pursuant to s 13(8) that the applicant never re-apply to the Court for such a determination. The effect of such a direction being to leave the unsuccessful applicant serving a term of imprisonment for the remainder of his or her natural life. In this context, his Honour said: "For completeness, reference should be made to the terms of s 431B(1), inserted in the Crimes Act last year, which purports to provide a mandatory life sentence for murder where 'the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met by the imposition of [a life] sentence'. The subheading to that particular provision is 'Mandatory life sentences for certain offences' but, so far as the offence of murder is concerned, it has no effect as a mandatory sentence, because it permits (by subs 3) a sentence less than the maximum to be imposed even where its conditions have been fulfilled. It adds nothing at all to the common law relating to the imposition of maximum penalties, except the danger that it may eventually be interpreted as replacing the common law by an ill-defined code which will eventually become narrower than the common law". 78 Greg James J gave detailed consideration to the history and effect of s 431(B) in Regina v Petrinovic [1999] NSWSC 1131. His Honour, having noted that s 431B(3) appears to preserve a discretion to impose a lesser sentence (in that it provides that nothing in subs (1) affects the operation of s 442), went on to observe that if the Court is of the opinion set out in s 431B(1) there is, having regard to the language of the section, no discretion to impose a sentence other than life (para 25). It is difficult to reconcile s 431B(3) (now s 61(1) of the Procedure Act) with the terms of s 431B(1) (now s 61(3) of the Procedure Act). I see the force of Greg James J's view. 79 I approach this matter upon the basis that if I am of the view that the prisoner's level of culpability in the commission of the offences is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of a life sentence I am required by s 61(1) of the Procedure Act to impose such a sentence. I consider that if I am of that view I would, in any event, be required to impose a life sentence having regard to the principles governing the sentencing of offenders at common law; Regina v Garforth (NSWCCA, unreported, 23 May 1994). 80 In Petrinovic, Greg James J, after referring to the Attorney General's second reading speech of the Crimes Amendment (Mandatory Life Sentences) Bill in the Legislative Council on 17 April 1996, said this: "Considering what was said by the Attorney-General and the language used in s 431B(1), it appears that the section is meant to apply to the culpability involved in the commission of the crimes and that is not to be limited as defined merely by the immediate factual circumstances. Even as to those, there is some doubt as to whether the relevant test requires the culpability of the factual circumstances of the individual offence, standing alone, to justify the imposition of penal servitude for life (see Regina v Street (CCA, unreported 17 December 1996)). It is not necessary to resolve that matter here." (paras 33/34) 81 The language of the provision appears to be drawn from the observations of the Court in Garforth. In that case, it was submitted on behalf of the appellant, that the maximum sentence ought to be reserved to cases in which the offender was likely to remain a continuing danger to society for the rest of his life or, alternatively, to those cases where there was no reasonable prospect of rehabilitation. The Court rejected that submission and in the course of so doing observed, "There are some cases where the level of culpability is so extreme that the community interest in retribution and punishment can only be met through the imposition of the maximum penalty". 82 What matters are to be taken into account in determining whether the prisoner's level of culpability is so extreme as to require the imposition of a life sentence? Mr Webb, who appears on behalf of the prisoner, submitted that I would have regard the prisoner's frank admissions as to his guilt, in particular his voluntary disclosure of the offences involving Peter Wennerbom and Yvonne Ford (in respect of which he was not a suspect), his troubled background and the emotional deprivation of his youth, and the contents of Ms Matsuo's report. These matters in combination, so it was submitted, would lead me to the view that the prisoner's culpability for the crimes is not so extreme as to demand the life sentence. 83 Prior to the introduction of s 19A of the Act when the penalty upon conviction for murder was a mandatory life sentence (at a time when persons sentenced to life had the expectation of eventual release on licence under s 463 of the Act) the Crimes (Homicide) Amendment Act 1982 inserted a proviso to s 19 permitting a judge to impose a determinate sentence in cases in which it appeared to the Judge "that the person's culpability for the crime is significantly diminished by mitigating circumstances whether disclosed by the evidence in the trial or otherwise". The construction of that proviso was the subject of a division of opinion within the Court. The controversy was resolved in R v Bell (1985) 2 NSWLR 466, a case in which the majority determined that the expression "culpability for the crime" requires that material totally unconnected with the commission of the crime be excluded (per Samuels JA at 479, Lee J at 482). Thus, circumstances arising after the commission of the murder, being matters ordinarily referable to the exercise of the sentencing discretion such as remorse, assistance to the authorities, a plea of guilty and favourable prospects for rehabilitation, were not to be taken into account for the purpose of determining whether the prisoner's culpability for the crime was significantly diminished. 84 The proviso to s 19 as it then stood was in different terms to the formulation in s 61(1) of the Procedure Act. Further, the proviso operated to confer a discretion where otherwise there was none. Section 61(1) operates (accepting for present purposes the force of Greg James J's view in Petrinovic) to take away a discretion and to require a judge to impose the maximum sentence if he or she is of the specified opinion. Such a provision should be construed restrictively. Nonetheless, having regard to the language of the provision, it seems to me that the assessment of the prisoner's culpability required by the section is directed to circumstances surrounding or causally connected to the offence. Again, I consider this to be consonant with the position at common law having regard to Garforth. 85 Thus, I put to one side for present purposes consideration of such evidence as there is of the prisoner's remorse, his confessions, pleas of guilty and prospects of rehabilitation and I consider whether the prisoner's culpability for his crimes is so extreme that the community interest in the various stated objectives of sentencing requires the imposition of a life sentence. 86 In Bell, the majority observed that culpability means "blameworthiness" as distinct from "deserving of punishment" (per Samuels JA at p 479, Lee J at p 482). In R v Burke [1983] 2 NSWLR 93 at 101, Nagle CJ at CL observed (again in the context of the proviso to s 19 introduced by the Crimes (Homicide) Amendment Act 1982) "the deprived life and upbringing of a prisoner may, in some cases, have contributed to the committal of the murder and so may reflect on his culpability". That such a consideration may be relevant to the assessment of the prisoner's culpability for his crime in the sense of being a causative influence upon it was accepted by each of the judges in Bell. 87 I turn now to the evidence concerning the prisoner's troubled background. In the course of his interviews with the police and in discussions with the two psychologists the prisoner described a childhood characterised by rejection and emotional deprivation. I have summarised the effect of this material above. 88 A statement was obtained from the prisoner's father which does not describe any difficulties in his son's early years. Mr Harris does report that he and his wife started to identify problems with the prisoner's school work and behaviour when the prisoner was in the last year of primary school. Mr Harris says that the prisoner did not fit in well at high school and left both school and home aged fourteen years. He says that he is not able to give any reason why he left home at this age. 89 Mr Mullany's report, to which I have referred, describes a very different picture. It is a contemporary document. It is expressed in the strongest of terms. In this respect it is sufficient to note the opinion set out in paragraph 7 of the report. Mr Mullany goes on to summarise the report of a psychologist prepared around May 1983 when the prisoner was aged fourteen years. The psychologist was of the opinion that the prisoner's behaviour was consistent with children who have not come to grips with adoption and have lost their bonds to their substitute family. Mr Mullany considered the lack of contact between the prisoner and his family (in respect of which he was not critical of the prisoner) was likely to have "an ongoing adverse effect on his emotional development which in all probability will mean he will become involved in anti-social and criminal behaviour". 90 I approach this matter upon the basis that the prisoner did experience a significant level of emotional deprivation and rejection in childhood and that this led to him leaving home and living the life of a 'street kid'. In his teenage years he prostituted himself with men and experienced the feelings of debasement and worthlessness that almost inevitably flow from that lifestyle. 91 I consider that this unfortunate background was causally related to the commission of the present offences. It is the burden of everything the prisoner had to say to the investigating police in a series of interviews notable for their frank admissions. It finds support in the report of Ms Matsuo. This view causes me to refrain from concluding that the prisoner's culpability for his offences is so extreme that the community interest in the various objects of sentencing may only be met by the imposition of a sentence of life imprisonment. 92 I consider that I have a discretion to impose a lesser sentence than one of life imprisonment. It does not flow that I would necessarily do so. Among the various objects of sentencing I must consider the protection of the community. 93 No psychiatric evidence has been placed before me to assist with a consideration of the prisoner's potential for dangerousness in the future. In Garforth the Court observed that a judge is not in a position to require the defence to tender psychiatric reports nor can a person facing sentence be required to submit to a psychiatric examination at the request of the Director of Public Prosecutions. In those cases where no psychiatric material is available, the sentencing Judge is required to make his or her own determination on such material as is available. The Court said: "There are some cases in which the circumstances of an offence on their own suggest the possibility of dangerousness". 94 The prisoner is a person who has killed people whom he perceived to be vulnerable and, therefore, easy to kill because it made him feel powerful to do so. He told Detective Sergeant Spence in the course of the "walk-through" interview relating to the death of Peter Wennerbom that, "He had been living a straight life in Wagga" and "over months thoughts about killing people came into my head - they were powerful thoughts". In that same interview, he said, "I've always expressed the desire to kill people ever since I was a kid and it made, and it, it sought of excited me. It wasn't like I was getting off on it or anything but it was very powerful and it was revenge on society. It's you know, the whole shit." 95 Having regard to the crimes committed by the prisoner, together with the statements made by him to the investigating police, I have no difficulty in concluding that the prisoner represents a danger to the community. This is a proper matter for me to take into account in determining the appropriate sentence, consistent with the observations of the majority in Veen v The Queen (No. 2) (1987-1988) 164 CLR 465. Considerations of the protection of the community cannot allow of the imposition of a sentence which is disproportionate to the gravity of the offence. Having regard to the gravity of these offences I do not feel constrained on that account. 96 The prisoner is thirty-one years of age. A life sentence may see him serve something of the order of fifty years in custody with no prospect of release regardless of any progress which he makes towards reform. In Garforth, the Court observed, "We should emphasise that we do not intend to diminish the terrible significance of a sentence of life imprisonment". The Court quoted, with approval, the observations of Hunt CJ at CL in R v Petroff (unreported, 12 November 1991): "The indeterminate nature of a life sentence has long been the subject of criticism by penologists and others concerned with the prison system and the punishment of offenders generally. Such as sentence deprives a prisoner of any fixed goal to aim for. It robs him of any incentive and it is personally destructive of his moral. The life sentence imposes intolerable burdens upon most prisoners because of their incarceration for an indeterminate period and the result of that imposition has been an increased difficulty in their management by the prison authorities." 97 It is to be borne in mind that Hunt CJ an CL was speaking of life sentences as they stood prior to the introduction of s 19A into the Act at a time when life sentence prisoners had the expectation of ultimate release on licence. 98 As I read Ms Matsuo's report, there exists some possibility that the prisoner may develop an understanding of his psychological difficulties. Ms Matsuo paints a somewhat more optimistic picture of the prisoner's prospects in this regard than emerges from the report of Ms Barrier. Ms Matsuo has had continuing contact with the prisoner over a relatively lengthy period. I accept her opinion in preference to Ms Barrier's for that reason. 99 I consider that the prisoner's admissions both to Mrs de Jong and to the police are significant to my view that he is not entirely without hope of rehabilitation. His crimes speak of a callous unconcern for human feelings. At the time he was committing them there are some indications that he was himself disturbed by his behaviour. 100 In the course of his interview with Detective Sergeant Spence concerning the murder of Ronald Galvin, the prisoner said that he had gone to see a doctor in Wagga Wagga for depression. He was asked why he was depressed and he replied, "'cause I killed the bloke". He went on to say, "There wasn't any other problem, it was just, you know, living with it". 101 In the period following the murder of Mr Galvin, I accept that the prisoner, on two occasions, endeavoured to kill himself. When he telephoned Mrs de Jong on 30 November 1998, it seems to me he was exhibiting some signs of concern about his aberrant behaviour. There are passages in his lengthy interviews with the investigating police which tend to confirm that view. 102 I consider that the prisoner has some prospect that, with appropriate psychological counselling over a lengthy period, he may one day come not to present a danger to the community. The experience of this Court in making determinations pursuant to s 13A of the Sentencing Act 1989 shows that, on occasions, over the course of long terms of imprisonment some offenders (despite the commission of terrible offences) do rehabilitate themselves to such a degree that their release into the community under supervision may be contemplated; Regina v McCafferty, unreported, NSWSC Wood J, 15 October 1991. 103 I note that the prisoner managed to form a relationship of sorts with Mrs de Jong and with her daughter, Jane Pope, and Mrs Pope's family. Despite Mrs de Jong's love for her brother, she continues to offer support to the prisoner. So does Mrs Pope. Mrs de Jong in a letter dated 16 March 2000, speaks of the prisoner's apparent caring relationship with a young child then being looked after by Mrs de Jong. She refers to occasions when the prisoner exhibited initiative and kindness in dealing with the clients of the Community Transport Service. Given his crimes and, in this context, particularly the murder of Yvonne Ford, I feel I can place little weight on considerations of the latter sort. 104 In Bugmy v The Queen (1990) 169 CLR 525, the majority spoke of the difficulty of forecasting the likelihood of a prisoner re-offending over the course of a lengthy term. This was in the context of the determination of a minimum term in respect of a prisoner sentenced to life imprisonment. The sentencing judge in that case had imposed a minimum term of 18½ years. In so doing he had placed particular weight on considerations of the protection of the community. The majority found this minimum term to be excessive. The applicant was twenty-seven years of age at the date of sentence and would be over forty-five before the likelihood of his re-offending became a matter for the proper authorities to assess. 105 In Bugmy, the applicant's sentence was that fixed by the legislature, namely, life imprisonment. There exists in Victoria provision for the imposition of a life sentence together with the specification of a minimum term before the expiration of which the prisoner may not be considered for parole. Such a sentence provides for greater flexibility than is open to a judge in this State. The protection of the community is assured by the life sentence. A prisoner who continues to pose a threat to society will not be granted conditional release on parole. The specification of a minimum term provides an incentive for rehabilitation. 106 I may either impose a life sentence which deprives the prisoner of any hope or motive for rehabilitation or fix a determinate sentence. I have determined to impose a determinate sentence. Any determinate sentence must, having regard to the facts of this case, accord primacy to the protection of the community. Of necessity, this dictates a sentence of great severity. 107 I now turn to a consideration of the other features of the case which it was submitted would favour the exercise of some leniency. As I have noted the death of Yvonne Ford was not treated as an unlawful killing in the light of the inconclusive findings on autopsy. Although police entertained suspicions concerning the death of Peter Wennerbom, the matter does not appear to have been the subject of active investigation. 108 The prisoner's disclosure of his otherwise unknown guilt of two of these murders, together with his admission as to the murder of Ronald Galvin at a time when Mr Galvin's body had not been located, would in the ordinary course entitle the prisoner to a significant measure of leniency; R v Ellis (1986) 6 NSWLR 603. As I have noted, this consideration would not stand in the way of the imposition of the maximum sentence if I were of the view that such a sentence was required. Since I am not of that view, I consider that I should reduce the sentence I would otherwise impose in order to reflect the prisoner's voluntary disclosure of his guilt with respect to the murders of Yvonne Ford and Peter Wennerbom. However, I bear in mind that I must not reduce the sentences I impose such that they become unreasonably disproportionate to the nature and circumstances of the offences. This latter consideration is to the fore in the approach I adopt. 109 I have regard to the prisoner's pleas of guilty entered at the first opportunity. This is a matter which, pursuant to s 22 of the Procedure Act, permits a court to reduce the sentence which would otherwise be imposed. I take this into account in the same way I have indicated with respect to the prisoner's voluntary disclosure of guilt. 110 As I have noted I have regard to the protection of the community consistent with the observations of the majority in Veen (No. 2) in determining the appropriate sentence. In Petrinovic, Greg James J dealing with sentencing pursuant to s 5 of the Sentencing Act 1989 observed that the additional term did not exist solely for the purpose of the provision of supervision. His Honour said: "An additional term should reflect those elements referred to by the High Court in Regina v Bugmy (1990) 169 CLR 525 and may well include, in addition to a period for which supervision is prescribed, a further period during which the offender remains subject to the sanction of return to custody so as to reinforce rehabilitation and to provide protection, albeit of a more limited kind than that provided for by custody, to the community." His Honour departed from the statutory ratio in that case and imposed an additional term greater than one-third of the minimum term. 111 Under s 44 of the Procedure Act, I am required to firstly set the term of the sentence and then to set a non-parole period for that sentence. The latter is the minimum period for which the prisoner must be kept in custody in relation to the offence. The non-parole period must not be less than three-quarters of the term of the sentence, unless the Court decides there are special circumstances for it being less; s 44(2). 112 In the present case, I consider that there are special circumstances and I propose to specify a non-parole period which is less than three-quarters of the term of the sentence. The non-parole period I propose is itself of very great length. At the expiration of this period, should the Parole Board consider that the release of the offender to be appropriate, having regard to the principle that the public interest is of primary importance (the test provided by s 135 of the Crimes (Administration of Sentences) Act 1999) a lengthy period of supervision would be necessary. The prisoner should also be subject to the sanction of return to custody in order to reinforce rehabilitation for an extended period. 113 Each of the sentences I impose will be concurrent and will commence on the date the prisoner was taken into custody, being 1 December 1998. In fixing the sentences, I have not sought to distinguish the murder of Peter Wennerbom from the other two killings. I have regard to the principle of totality; R v Holder (1983) 3 NSWLR 245. 114 In relation to the offence of armed robbery in company, committed upon Trang Nguyen on 20 June 1998, I note that Kenneth Frazier was found guilty at trial. He was sentenced to a minimum term of thirty-nine months imprisonment, together with an additional term of fifteen months. Mr Frazier's criminal record discloses a lengthy history of criminal offending including sexual assaults and other offences of violence. I see no reason to distinguish between the prisoner and Mr Frazier in terms of culpability for the commission of the armed robbery offence. I bear in mind that Mr Frazier was not entitled to any discount upon a plea of guilty and that the prisoner had a criminal record at the date of the offence, somewhat less extensive than was that of Mr Frazier's. I consider that the sentence imposed on Mr Frazier on its face to be a lenient one. The sentence I impose in relation to this offence will, having regard to considerations of parity, also be lenient. In the light of the circumstance that the prisoner stands for sentence on three counts of murder which will each attract lengthy non-parole periods, I propose decline to set a non-parole period in relation to the sentence imposed with respect to the armed robbery. 115 Matthew James Harris, on each of the three counts of murder, you are sentenced to imprisonment for forty years, that sentence is to be taken to have commenced on 1 December 1998. I specify a non-parole period in each case of twenty-five years. The earliest date on which you will be eligible to be released on parole is 30 November 2023. In relation to your conviction in respect of the armed robbery of Trang Nguyen, I sentence you to a term of three years imprisonment to date from 1 December 1998. For the reasons given I decline to set a non-parole period in respect of this offence. This sentence will expire on 30 November 2001. ********** Last Modified: 09/25/2000 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.