New South Wales Supreme Court CITATION : R v Ray Tumanako [2001] NSWSC 126 FILE NUMBER(S) : SC L6/98 HEARING DATE(S) : 2 March 2001 JUDGMENT DATE : 2 March 2001 PARTIES : Regina Ray Tumanako JUDGMENT OF : Sperling J at 1 COUNSEL : M Marien for the Crown C Craigie for the Applicant SOLICITORS : CATCHWORDS : Criminal Law - Sentencing - Schedule 1 of Crimes (Sentencing Procedure) Act 1999 - Redetermination of life sentence LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999, Sch. 1 DECISION : Application granted. Life sentence redetermined to a sentence of 20 years imprisonment with a non-parole period of 14 years. THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION SPERLING J FRIDAY 2 MARCH 2001 L6/98 - Regina v Ray Tumanako DETERMINATION OF LIFE SENTENCE 1 HIS HONOUR: For reasons which will be apparent, I propose to give my decision in this matter now rather than to reserve my decision. The result will be that what I now say could no doubt be more elegantly expressed with the luxury of time in preparation and would likely be a good deal shorter. 2 This is an application for re-determination of a life sentence pursuant to the scheme in Schedule 1 of the Crimes (Sentencing Procedure) Act, 1999 . This is a case in which it is appropriate to grant the application and to re-determine the sentence. 3 The applicant was born on 15 May 1947. On 14 February 1989, the applicant murdered Kim Susan Cameron. For that crime, he was indicted before McInerney J and a jury on 27 February 1990. On 1 March 1990, the jury found the applicant guilty as charged. 4 On 11 May 1990, McInerney J sentenced the applicant to penal servitude for life as he was bound to do. The following findings were made in the course of his Honour's remarks on sentencing. The applicant had previously had a de facto relationship with the deceased. They had separated. The deceased had a child called Elana from a previous relationship. The deceased had formed another relationship with a Mr Harrison at or about the time of the break-up with the applicant. That break-up had occurred it seems late in the year 1988. 5 Elana attended a kindergarten at Revesby. On the day before the murder, the applicant waited for the deceased at Revesby railway station and had a conversation with her there. He was keen to resume his relationship with the deceased. She gave him no encouragement. The following day was Valentine's Day. The applicant drove to the kindergarten in his van and waited to see the deceased there. He had brought flowers with him to give to her, which were later found in the van. These facts indicate that the applicant went to the kindergarten that day with the intention of trying to persuade the deceased to resume their former relationship. McInerney J made no finding to the contrary of that. 6 The deceased did not arrive at the kindergarten alone, she arrived in a vehicle driven by Mr Harrison. Mr Harrison's presence appears to have inflamed the applicant. He left his vehicle, not with the flowers but with a knife on his person and approached the deceased in a rage. He first punched the deceased and then he stabbed her twice in the chest, causing injuries from which she died. 7 From his actions and from what he said at the time it is clear that he stabbed the deceased with the intention of killing her. At precisely what point in time he formed that intention is not, however, clear. The fact that he punched the deceased first suggests that it was in the course of the attack that he formed the intention to kill. At all events, the elements in the episode which need to be recognised are that this was a killing without premeditation; that it was done in a state of extreme rage and that the intention to kill was formed in that state. 8 It is also to be noted that at the time of the event the deceased's child was in the vehicle and witnessed what occurred. The child was then about four years of age. Her presence was either known to the applicant or was reasonably to be assumed by him. 9 At the trial, the applicant raised the partial defence of diminished responsibility. Expert evidence was called by both sides. The jury's verdict demonstrates that they rejected the defence. McInerney J found that he himself was not satisfied on the balance of probabilities that the applicant was, as had been alleged, mentally dissociated at the time. His Honour acknowledged that the applicant was enraged but his Honour was unimpressed with that consideration as a possible matter in mitigation. 10 That the killing was carried out in the sight of the deceased's child was of course a very significant matter of aggravation. It is moderated to some extent by the fact that the deceased was at the time in a state of rage and would have been less capable, by reason of his emotional state, to appreciate the implications of the child being present. Nonetheless, having made that observation, I do not lose sight of the stark reality that to kill a mother in the presence of a young child is an aggravating factor of very considerable moment. It goes to the culpability of the accused, it is part of the objective circumstances of the crime. 11 There was evidence before the sentencing judge of feelings of remorse shortly after the incident. Some 40 minutes later the prisoner rang the triple O number and stated, in emotional tones, that he had just killed his girl and wanted to hand himself in. Among other things, he said, "I think she is dead, I hope not." Later the same day, he telephoned Mrs Jennings, a friend with whom he had been living. He was crying on the telephone. He said he had done something terrible and wanted to talk to her. Meanwhile, the police had been looking for the applicant. When initially observed the applicant was wearing a black t-shirt with a gold motif. He was seen to take off the t-shirt, turn it inside out and put it back on again. This, I would interpret, was a clumsy attempt to avoid apprehension at that stage. However, when approached by a police officer immediately thereafter the applicant said, "Okay I did it, the girl at Revesby, I'm so sorry." Asked what he had done, the applicant said, "I stabbed her. I should have punched her but I stabbed her. Is she dead?" He was then spoken to by a more senior police officer and, after an official warning, said, "Yes, mate, I have killed Kimmie." 12 McInerney J had before him the report of Ms S Feld, Probation and Parole Service, Hurstville district office. The report was dated 26 April 1990. She also gave oral evidence. The substance of what she said, so far as is presently material, is as follows: The applicant was born and raised in New Zealand. He was raised apart from his siblings when, following his parents separation, he was sent to a farm where he resided with an aunt and uncle. He remained there from the age of 12 to 18 years, when he joined the New Zealand Army. He first married in 1970 to a Czechoslovakian woman. The relationship terminated when his wife returned to Czechoslovakia for vacation and was not allowed to leave the country. She was subsequently killed in a motor car accident and their daughter remained in Czechoslovakia raised by her maternal grandparents. The applicant migrated to Australia in 1975. Five years later, he met and married an Australian woman. The marriage was brief and the applicant had since been involved in several de facto relationships. The applicant had met the deceased in 1986 and they had commenced co-habiting soon after. Co-habitation was intermittent. In 1986, there was an incident of assault on the deceased. The applicant had a limited education, and did manual work in New Zealand and Australia. Inquiries with several employers revealed that the applicant was generally well regarded and there were no significant problems relating to his employment. 13 At interview with Ms Feld, the applicant was visibly distressed when discussing the offence and his actions on that day. He admitted that, prior to going to the kindergarten, he had consumed several cans of beer and had smoked marijuana. He said he had intended to see his wife and give her the flowers which he had bought for Valentine's Day. It was the sight of Mr Harrison which caused him to become angry and to lose control. He referred to his strong love for the deceased and to a deep sense of loss, not only for himself but also for the victim's family and child. 14 Ms Feld's overview was as follows: "Mr Tumanako appears to have experienced a disturbed childhood and adolescence. Inquiries had suggested that he becomes extremely involved and exhibits feelings of strong emotional attachment in intimate relationships. Unresolved feelings, conflicts from earlier life, including physical abuse and active combat duty, may have some bearing on his behaviour. In this respect, it may be that Mr Tumanako has difficulty with painful aspects of reality. It is considered that Mr Tumanako may benefit from psychological psychiatric counselling to assist him in dealing with the above-mentioned areas during the period of his incarceration." 15 I mention in passing that the history of active combat duty was not in fact correct. The reasons for that history having been given emerges from the documents I have seen. I do not regard it as being a matter of significance. 16 The applicant's criminal history prior to this crime, consists of two convictions for assault female committed when the applicant was 18 years of age. That was in New Zealand. The papers indicate that these were not serious offences in the scale of that particular crime. Note needs also to be taken of the applicant's age at that time. On 29 October 1982, the applicant committed the offence of accessory after the fact to armed robbery for which he was sentenced in the District Court at Sydney to six years hard labour with a non-parole period of two years. Further details in relation to that offence, apparent from the papers, would indicate the applicant had not taken an active part in the robbery itself and that the offence had to do with concealment of relevant information. The offence does not, therefore, of itself, give rise to apprehension of a violent disposition. On 26 September 1984, the applicant committed the offence of negligent driving and driving while unlicensed, for which he was fined $100 each charge, in default four days hard labour. That is the applicant's prior criminal history. 17 The court has before it a statement of facts prepared by the Director of Public Prosecutions, dated 9 September 1999. What is contained in that statement and in the annexures to it is largely covered by the findings made by McInerney J in his remarks on sentence insofar as it relates to events prior to and on the day of the crime. Insofar as it relates to the applicant's history in prison since that time, I will refer in a more compendious way to that aspect of the matter at a later stage. 18 The Court also has a report of the Serious Offenders Review Council, dated 19 October 1999. The report reviews the applicant's prison history up to that point in time. It concludes with the following comment: "Throughout his period of incarceration Tumanako has generally presented in a favourable light. He has taken advantage of therapeutic and education courses. It is unfortunate, however, that he has devoted such extraordinary energy into manipulating his placement in the Sydney Metropolitan area. This manipulation has undoubtedly affected his ability and readiness to progress through the security classifications. If the Court re-determines his sentence of life imprisonment then the Council will endeavour to extend Tumanako's personal development and secure his progress through the remainder of the security classifications and, in due course and subject to satisfactory behaviour, will recommend his placement in unescorted external pre-release leave programs." 19 The court has had the benefit of oral evidence from Mr McConnell, the present secretary of the Council. I should record that his evidence was led by the Crown. Having regard to his evidence and other material before the court, I do not accept that the applicant has behaved unreasonably in relation to his endeavours to serve his sentence, in recent years, in the Sydney area rather than in any country corrective institution. It appears now to be common ground that the applicant's endeavours in that regard have, first of all, been carried out in a regular manner and, secondly, have been motivated by a wish to maintain contact with his daughter with whom he was reunited in 1995 and who, through her own ill-health, was unable to visit him while he was incarcerated out of Sydney. It further appears from the evidence before me that the applicant's actions in that regard have not had any demonstrable effect at all on his movement through the classification system towards readiness for release into the community. 20 I think it is unfortunate that the construction on events, as conveyed in the report of 19 October 1999, came to be put before the court as an authoritative view of the situation at that time. 21 It is apparent that the applicant has participated extensively in programs within the prison system by way of vocational education and by way of psychological improvement. This is demonstrated by a substantial collection of certificates that have been placed before the court. They are annexed to the applicant's notice of reply to the Crown statement of facts. 22 Of considerable importance is a supplementary report by the Serious Offenders Review Council which is dated 21 February 2001. It and materials appearing in the earlier report satisfy me of two things. First, it appears that certain incidents, occurring particularly earlier in the sentence, which on the face of it indicate a degree of unruly behaviour, may in fact have been nothing of the kind. I think it would be unjust in view of what I have heard to allow those earlier reports to influence my judgment. 23 The second thing that emerges from the supplementary report and the materials attached to both reports of the Council is that the applicant has applied himself assiduously to self-improvement during his prison sentence, that he has been of considerable assistance to the prison authorities in mentoring younger prisoners and in settling factional friction within the prison system. Notwithstanding the ordinary provocation of prison life and perhaps more particularly so in regard to an inmate who is taking an active part in assisting prison authorities, the appellant has not, according to his own evidence, ever responded in an untoward manner. If he had, one would expect that to have come to notice and to be apparent from the material put before the Court. 24 The supplementary report of the Council dated 21 February 2001 concludes with an overview as follows: "If the court decides to grant Tumanako's application and determine his sentence so that he is eligible to be considered for released to parole at some time in the future, then the SORC will develop a management plan for Tumanako's reduction to minimum security, that is C1, C2 and C3, whereupon he will be considered for participation in the pre-release unescorted leave programs, including day and weekend leave, education leave and work release. The purpose of such programs is to allow inmates a structured reintroduction to the community. The customary time table for minimum security for long term inmates like Tumanako is five years. The Department's policy generally requires an inmate to be in the last 18 months of their sentence before entry to pre release programs as approved." 25 In this regard, I refer again to the evidence of Mr McConnell, who made it clear that, in the event of a re-determination, which does not allow for a period as long as five years to elapse before the expiry of a minimum term or non parole period, the prison authorities make a practice of endeavouring to construct an accelerated program for the individual prisoner, with the objective of completing such a program within the time remaining for the non parole period. 26 I pause there to make the following observations. I have heard that in the ordinary course of things an application of this kind is initiated by an approach by the prison authorities to the particular prisoner with the suggestion that the time has been reached when such an application would be appropriate. It seems, therefore, that, as a practical matter, the initiation of the process is by the prison authority. A prisoner might not otherwise be aware of the entitlement to apply and, if aware, might be loath to initiate the move without the co-operation and goodwill of the prison authority. So the position seems to be that prison inmates are in the hands of the prison authority concerning the initiation of applications of this kind. 27 I would then observe that, in the present case, a period of two and a half years has elapsed between the making of the application by filing the process in this court and the matter coming before a judge for determination. I hasten to say that the matter came into a list for call-over only at the end of last year and a fixture in February of this year could hardly have been more prompt. The delay is attributable to the lodgment of documentary material by agencies of the Crown, namely, the Director of Public Prosecution's office, SORC and the Legal Aid Commission. 28 I make no criticism. The time may be required to gather in all of the material that is necessary. However, it is unfortunate that the court should, in such circumstances, be informed, as this court was informed, by the supplementary report of the Council of 21 February 2001, that it would, in effect, be five years from a determination before the prison system would be able to make the applicant ready for release. As I have mentioned, the oral evidence given in the case is to the contrary. It would be preferable if, in applications such as this, the Council were to put the position in its report in a way which better reflects the reality. What I have just said is however in a sense by the by for this reason. 29 In a case such as this, where the sentence is to be re-determined, the court will exercise its function having regard to the principles which apply to sentencing and having regard to the material before the court, which includes what was before the sentencing judge and what has since become available. The court will not have the regard to prison policy or the implementation of prison policy or the timing of the implementation of prison policy in determining what is an appropriate sentence in a given case. So, for the Council to state how much time is needed to implement a redetermination is as ineffectual as it appears to be inaccurate. 30 There is, nonetheless a practical matter that I cannot ignore. It appears from the material before me that the prison authority does not, as a matter of practice promote a prisoner serving an old style life sentence until such time as it receives notice of a redetermination. Such reclassification is, I understand, a necessary step in the progress of the prisoner towards readiness for release. To that extent, it seems that the court's intentions may be subject to prison policy which is, to say the least, unfortunate. All I can do to minimise any such impediment is to avoid further delay in bringing the application to a conclusion. It is for that reason that I have given an ex tempore decision. 31 The court also has before it a supplementary notice of reply to the Director of Public Prosecutions statement of facts which is dated 1 March 2001. Annexed to that document are a report by Dr J M Carne, forensic psychiatrist, and a report by Mr W J Taylor, clinical forensic psychologist. The first of those reports is dated 19 February 2001, the second 28 February 2001. 32 Dr Carne has specifically addressed the risk of re-offending. He says, "Mr Tumanako is not a violent man, he does not have an antisocial personality, he has normal intelligence, he does not abuse drugs or alcohol, he has always been a hard working conscientious man and has an almost exemplary record within gaol. I asked Mr Tumanako what the likelihood would be of the offence being repeated. He told me he has no interest in returning to relationships. His life will revolve around family, particularly his grandchildren and his daughter, with whom he has only reunited in 1995." 33 Dr Carne's conclusion was as follows: "There is no evidence of any psychiatric disorder being involved in this offence, suggestions that dissociation or psychogenic amnesia took place are not supported by the facts or the literature. Mr Tumanako expressed profound regret for the offence and takes full responsibility for it. His behaviour in general in prison has been exemplary. In my opinion there is little chance of the offence being repeated. There is no evidence that there are any other psychiatric factors which need to be taken into account." 34 I do not share Dr Carne's assumption or acceptance of what he took to be the applicant's statement that the applicant has no interest in returning to relationships. It is clear that the applicant is an emotional man and I do not doubt that, on his release, he will again become involved with a woman or women in an intimate way. That, however, does not seem to me to be fundamentally discordant with Dr Carne's analysis of the situation. 35 Mr W J Taylor was also involved in the matter at the time of the applicant's sentence. In the course of his later report he said: "The impression gained from Mr Tumanako was that he is very remorseful for having committed the offence and is fully accepting responsibility for his behaviour in committing the offence. He still is somewhat tearful in talking about the deceased and clearly has not stopped grieving over her death and the fact that he caused it. However, it is also of significance that he appears to be reunited with his daughter and indeed spoke about his daughter and grandchildren with a great deal of reflection. Should he be released from prison he stated that he has been asked by his daughter to live with her and her family." 36 Mr Taylor was also of the opinion, along with Dr Carne, that there is no evidence of personality disorder in this case. Mr Taylor went on to say: "From the basis of information that has been available to me at the time of preparing this report it would seem that many changes have occurred in Mr Tumanako since he has been convicted of the offence of murder. His remorse does appear to be quite genuine and he does seem to have made very real efforts at rehabilitation. An actuarial assessment of his potential for recidivism suggests that this is quite low and there was no information that could be gained which would suggest that he is indeed likely to re-offend. Mr Tumanako is now a 53 year old man who does seem to have made some plans for his life should he be released from gaol, these plans do seem to be quite appropriate." 37 The applicant gave evidence in the proceedings. It appears that, at an earlier time in his life and by reason of the unfortunate experience of a violent father he grew up with the notion that it was justifiable to use violence in circumstances where it seemed that that was the appropriate course. He gave evidence of being reunited with his daughter in 1995, and it is apparent that a close relationship has developed there, not only with her but with his grandchildren as well. His daughter has suffered a mental health problem, to which I have earlier referred and there is some illness involved with one of the grandchildren. These have been matters of understandable distress to the applicant. More particularly, it seems to me that the applicant's experience of being reunited with his own daughter has very considerably potentiated his feelings of remorse and his sense of responsibility for the crime for which he is now serving a sentence. I believe it has been brought home to him that the fact that this crime was committed in the sight of the deceased's child is a matter of particular importance and one which heightens his own responsibility for the crime very considerably. 38 On behalf of the applicant it was submitted that, notwithstanding the internalising of a sense of justification in relation to violence having occurred early in the applicant's life, this was no longer to be seen as a feature of his personality, as demonstrated by his prison history. It was emphasised on his behalf that there is no evidence of a pathological basis for the crime and hence no evidence of a pathological basis for of any similar behaviour. 39 It was pointed out, appropriately it seems to me, having regard to what I have seen, that the applicant's behaviour in prison has been exemplary and that his prospects of rehabilitation on release from gaol are as good as one might expect. 40 It is argued, I think with some force, that there is a diminishing return to be gained from the prolongation of prison sentences beyond what is necessary. 41 The Crown very properly took the position that it neither opposed nor consented to the present application. Helpful data has been produced by the Crown showing the level of sentences which have been imposed by individual judges and by courts of appeal in relation to offences of a similar kind. Very properly, the Crown raises for consideration by me whether the applicant's behaviour in prison, non violent as it has been, is a reliable indication that he would not again be violent in the context of a relationship with a woman at some future time. The Crown also raised for consideration, again very properly, whether the role of alcohol might not again be a factor in leading the applicant to re-offend. The applicant concedes that, before this crime, he did on occasions tend to drink too much and it does seem likely that alcohol played a role, perhaps not a very significant role but a role nonetheless, both in this crime and in the earlier less serious episode of assault on the deceased. I am not satisfied that the considerations to which I have referred raise a serious prospect of any similar crime being committed by the applicant or, indeed, any crime of violence on release from prison. 42 As indicated earlier in these reasons for decision the court is bound by the usual principles relating to sentencing. I am bound to take into account the role of a prison sentence in serving to rehabilitate the individual offender. I am bound to have regard to the role of convictions of this kind and sentences of this kind in deterring other would-be offenders from behaving in a similar way. I am also bound to have regard to the role of a sentence such as this in deterring the individual offender from re-offending in a similar way. Last but, in my view, far from least, the court is bound to take account of the legitimate demand of the community in any civilised society for punishment and retribution in response to breaches of the law and, most particularly, in the case of serious offences such as this. I have regard to all those considerations in the present case. 43 Applying those principles to the facts and circumstances as presently disclosed, an appropriate sentence in the present case by way of re-determination is a sentence of imprisonment of 20 years with a non-parole period of 14 years. The re-determined sentence will operate from the date on which the applicant was taken into custody, namely, 14 February 1989. The non-parole period will expire on 13 February 2003. That is the earliest date on which the applicant will be eligible for release on parole. 44 I express my hope and expectation that the prison authorities will do whatever is necessary to maximise the prospect that the applicant will be released from prison on or shortly after that date. oOo Last Modified: 03/08/2001 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.