New South Wales Supreme Court CITATION : Regina v O'Connell [2004] NSWSC 1120 HEARING DATE(S) : 1 October 2004 JUDGMENT DATE : 19 November 2004 JURISDICTION: Criminal JUDGMENT OF : Davidson AJ at 1 DECISION : Sentence CATCHWORDS : Sentence - Murder - Psychological condition of prisoner - Youth - Plea of guilty - Going to circumstance of offence or of offender LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 CASES CITED : Veen v The Queen (No 2) (1988) 164 CLR 465 R v Way [2004] NSWCCA 131 11/5/04 PARTIES : Regina v Christopher Scott O'Connell FILE NUMBER(S) : SC 70026/04 COUNSEL : P. Conlon SC (Crown) L. Flannery (Prisoner) SOLICITORS : Director of Public Prosecutions (Crown) Legal Aid Commission of NSW (Prisoner) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DAVIDSON AJ Friday 19 November 2004 70026/04 - REGINA v CHRISTOPHER O'CONNELL REMARKS ON SENTENCE 1 HIS HONOUR: The prisoner has pleaded guilty to a charge that on Friday 9 May 2003 he murdered Amy Cramp. 2 On 9 May 2003 Amy Cramp was fifteen years of age. She lived at home with her parents and sister. The prisoner was eighteen years of age and lived with his mother at Unit 1, 192 Lindsay Street, Campbelltown. 3 On 9 May 2003 the deceased went to where the prisoner lived. She spent at least part of the morning with him there, the prisoner's mother being absent at work. 4 I conclude from the evidence that the deceased met her death at some time between about 12 noon and 2.30 pm on that day. 5 I also find that, after causing the death of the deceased the prisoner left his mother's unit and spoke to Aden McCormack and Charmian Risk, Crown witnesses, after which he returned to his mother's unit later that afternoon and wrapped the deceased's body in a doona which he had taken from a neighbour's clothes line. At some time after 5.30 pm he wheeled the body in an Otto bin from his mother's premises to an area in Hurley Hall Park where there is a scout or guide hall. There he left the body of the deceased still wrapped in the doona cover. 6 Post mortem examination was conducted on 13 May 2003. A total of forty nine injuries to the body of the deceased were identified, including ten stab wounds. The injuries were numerically identified for convenience. 7 Injury 15 was a stab wound to the chest penetrating the heart from a single edged knife blade. 8 Injuries 17 and 18-22 I am satisfied beyond reasonable doubt were caused by the broken shaft of a golf club which was found in a rubbish bin of the unit. Injury 17 had penetrated the left breast to a depth of about 25 centimetres. It passed through the lobes of the liver, a portion of which had been "punched out" by the blow. 9 Injuries 11, 12 and 13 were incised wounds, of which the doctor conducting the post mortem examination, Dr Hulewicz expressed the opinion that it was very unlikely that they were inflicted prior to death, but whether post or peri mortem he is uncertain. 10 There was what the doctor described as a significant injury to the labora majorum inflicted prior to death. He said this injury was as a result of blunt force trauma caused by an instrument such as a vibrator, which was found in the bedroom of the unit. The doctor expressed the view that that injury would have resulted from abnormal forceful penetration of such an instrument. 11 Dr Hulewicz also described injuries to the eyes and mouth as being blunt force trauma caused by something like an open hand or a knee, or possibly an object. There were also a number of anal bruises which, in his opinion, were caused before death and an injury in the area between the vagina and the anus, again a blunt force injury. He expressed the view that the anal injuries were consistent with having also been inflicted by means of the vibrator. 12 Although some of the doctor's evidence seems to suggest that some of these injuries may have been inflicted post mortem, more particularly as I have said the injuries identified as 11, 12 and 13, the evidence does not warrant, in my view, a positive finding as to this. Where the injury was not clearly inflicted prior to death, in the doctor's view, he said that the injuries were either peri or post mortem. 13 Although there is evidence to suggest that during the morning of 9 May 2003 the deceased and the prisoner may have together consumed a substantial quantity of alcohol, nevertheless a post mortem blood alcohol analysis indicated only .054 mgs of alcohol per 100 ml of the deceased's blood. 14 It is also suggested in some of the evidence that the deceased and the prisoner may have consumed cannabis shortly before her death, however traces of that substance were not found in her blood or urine post mortem. 15 As for the prisoner, although alcohol was not detected in his blood on testing, the blood was taken at a time which precludes any positive finding of fact being deduced from this. There was, however, an indication of cannabinoids in his blood when the tests were done after blood was taken at some time about 135 pm on 10 May 2003. 16 There is also evidence, particularly from Mr McCormack, that when he saw and spoke to the prisoner at about 2.30 pm on the afternoon of 9 May, which I infer was shortly after he had caused the death of the deceased but before he had returned to the flat to dispose of her body, the prisoner was well intoxicated, although according to Ms Risk, who was also present, he was not slurring his speech. 17 To Mr McCormack and Ms Risk the prisoner made a number of express and implied admissions. He asked rhetorically what it would be like to stab someone in the chest and kept repeating this. According to Mr McCormack he said he wanted to stab someone in the chest and "drag the knife down and tear it out just to see what it felt like". He also spoke of "how he wanted to be bashed by a dominatrix ….". He wanted to know how long it might take for a body to start decomposing before rigor mortis set in. He asked, again rhetorically, what would happen if he had "stabbed the body at me mum's house and left it there for a day, would it stink?" 18 When Mr McCormack temporarily left the room the prisoner said to Ms Risk "I did it, I stabbed her." She asked who he had stabbed and he said "I don't know her, I just saw her and I stabbed and she is back in either the laundry or garage." He also said "I have got to find a way to get rid of her before Mum gets back. Mum will be spewing"; and that he "should just put it in a trolley and wheel it up the park and leave it there." 19 Later that afternoon the prisoner spoke to another Crown witness, Mr Albrecht. He endeavoured to sell to Mr Albrecht a number of items of jewellery which were subsequently identified as having belonged to the deceased. He told Mr Albrecht that he wanted the money for "pot." 20 Mr Albrecht said that the prisoner told him of a "relationship" that he had with a girl he had just met and "she was really dirty and he liked her because she was really dirty." According to Mr Albrecht, the accused said "You haven't had sex until you have bonded sex with chains and knives ……". 21 The owners of the doona to which I have made mention, neighbours of the prisoner's mother, said that on the evening of 9 May 2003 the prisoner was seen to be punching and kicking at the door of his mother's unit and calling out as if to his mother who was not in fact inside. This, I infer must have been at some time after 3.45 pm and I have drawn the conclusion that it must also have been after 5.30 pm when the prisoner was seen in the process of disposing of the body, because at about 3.45 pm, as I understand the evidence, the prisoner's mother returned to the flat and found the door apparently intact. There were indications, however, of which she gave evidence, that the acts causing death had already occurred, and the deceased's body had been removed from the unit into the garage at that stage. 22 At about 7 pm whilst with her daughter in Hoddle Street, the prisoner's mother received a telephone call from him. He claimed "Someone had demolished the front door." Fifteen minutes later the prisoner telephoned the police and emergency services and claimed to have come home to find "my door's been kicked in." 23 This brought the police into the matter for the first time. When it was put to the prisoner that he did the damage by then apparent to the front door, he denied that it he had done so. 24 After the police left, the prisoner's mother went into the garage and saw what appeared to be blood in various places including on the Otto rubbish bin. She also found in the prisoner's bedroom a handbag and bloodstained clothing. 25 The police were contacted again. The prisoner claimed not to know the source of the blood in his room, nor of blood seen on his jacket, and in the garage. The police officer asked "Where is Amy?" The prisoner responded "The bitch was meant to meet me here today but she did not show up. That's my friends for you." 26 Other police were called into the matter and a girl's backpack identified as being that of the deceased was also found in the prisoner's bedroom. The prisoner said it was "Amy's – my girlfriend's. She left it here a week ago when she was meant to come and get it today but she did not show up." 27 Shortly after 1 am on 10 May 2003 the first of a series of electronic interviews was held with the prisoner. Again he said that he did not know where the deceased was. He said that she was supposed to come to see him but did not. He said "If you find out what happened to her, can you tell me?" He said that he had left home at 10.30 am that day and had not returned home until about 5 pm. In the meantime he had seen his friends Mr McCormack and Ms Risk and another person Loven. 28 The prisoner claimed that when he had returned home he had found that the front door was already damaged and he again denied being responsible. 29 He agreed that the handbag found in his mother's unit had also belonged to the deceased and said that she had left it there too, a week previously. He said that he had telephoned her that morning and that she had told him that she would be around in twenty minutes to collect her bag. 30 I interpolate here that there had been such a telephone call made by the prisoner that morning at about 9.20 am. He had initially spoken to the deceased's thirteen year old sister Jessica. She said that he had asked to speak to the deceased and that they had in fact spoken on the phone for a few minutes. He had telephoned again. Jessica said that she had asked the prisoner on the telephone what he and Amy intended to do that day and he responded "Just the usual." 31 After the discovery of the deceased's body the prisoner was again electronically interviewed at about 8 pm. He was told of the body having been found, and on this occasion he said that Amy had come to his place in the morning. He claimed that they had been drinking and smoking pot and that he was "blanking out." He said that he had awakened and that she was in his room and "there was blood everywhere." He said "I didn't even know I did it. I had seen her there on the floor." He was asked what he had done and he said he did not remember. He was told of cuts seen on the breast of the deceased and said that he had seen one and that it was bleeding a lot. He said that he did not know how she got cut but guessed that he must have done it because there was no one else there. He spoke of putting a sheet over the wound. He checked the pulse and found she did not have one. He said that he had run out of the flat and gone to see Mr McCormack and Ms Risk who had given him "a couple of cones." He claimed that he had said nothing to them and had left. He continued to maintain that he had returned to his mother's unit to find the door smashed and that he did not know how the body of the deceased got to Hurley Park. 32 The evidence as to what the prisoner said to Mr McCormack, Ms Risk and Mr Albrecht, of the neighbours whose doona was used to wrap the deceased's body in, and the evidence of the prisoner's attempt to sell the deceased's jewellery to Mr Albrecht have considerable significance in the assessment of the circumstances leading to, and the commission of this offence. It also has considerable significance in determining for the purposes of sentence, what the prisoner's state of mind was at and shortly before he did the acts causing death. I find that that evidence is quite inconsistent with any suggestion ultimately made by the prisoner to the police that he had suffered from some sort of blackout at the relevant time. It and other evidence of how and where he disposed of the body is also of significance in determining what weight is to be given to evidence of the prisoner's psychological makeup and the bearing which that evidence may have on the prisoner's state of mind and the nature of his thought process shortly before and at the time of the murder. 33 I state at the outset that, having reviewed all of the evidence, I am satisfied beyond reasonable doubt that the prisoner deliberately embarked on conduct calculated in various ways to divert suspicion from himself as the person who caused the death of the deceased. He did so fully aware of what he had done. He sought to divert suspicion from himself, initially by breaking the door of his mother's unit to make it appear that the deceased's disappearance may have been at the hands of some intruder. He also sought, by the removal of the deceased's body from his mother's unit to the vicinity of the scout hall to divert attention from himself. His initial denials to the police officers and gradual acceptance of some possibility of complicity in the death and assertion of blackout only occurred after a number of additional circumstances had been revealed to him. 34 Whatever may have been the effect upon him of alcohol and any cannabis he may have consumed, I am also satisfied beyond reasonable doubt that he was motivated in causing the death of the deceased in the manner disclosed in the post mortem examination by a desire to act out the violent sexual proclivities of the kind he had disclosed in conversations with Mr McCormack and Mr Albrecht. These conversations, in my view, also emphasize the cold blooded brutality of the acts done in causing death and the disposal of the deceased's body. I have reached these conclusions after taking fully into consideration the evidence relied upon in the prisoner's case. 35 I am also satisfied beyond reasonable doubt that at some stage during the course of the conduct, which led to death, the prisoner formed and acted with an intention to kill. 36 I turn now to some of the matters relied upon by Ms Flannery of counsel for the prisoner. 37 Included in the material admitted in the prisoner's case is the report of a psychologist Ms Seidler. In it she sets out the familial, educational, medical and psychosocial background of the prisoner. I regard these histories as being confirmed to a sufficient extent to permit me to make findings on the balance of probabilities on the basis of them, from the contents of a letter from the prisoner's mother, which is also in evidence, as part of his case. In it she verifies the accuracy of much of the background information given by the prisoner to Ms Seidler. 38 The report recites that he was the only child of parents who never established what is described as a committed relationship. He lived with his mother during childhood and had only sporadic contact with his natural father. 39 His mother formed several other relationships as a result of which the prisoner had a total of three stepfathers. His relationship with each of them proved to be turbulent and difficult for the prisoner involving both physical violence and emotional abuse. It is said that he has never had a significant male role model. 40 Ms Seidler expresses the opinion that, in the light of this history, his mother's ability to supervise and care for the prisoner's developmental needs "may have been questionable." His mother was unable, for example, to protect him from some of the physical abuse he received from his natural father and stepfathers. 41 He behaved badly at school as well as at home. At fourteen he left school after what is described as "a fight with his stepfather." He became involved in what is termed "a delinquent subculture engaged in both substance abuse and juvenile crime". He returned home only periodically and as he felt the need. 42 As to his educational and vocational history the prisoner reported to Miss Seidler he had found it difficult to cope with school due to "literacy and concentration/attention problems". In 1996, whilst in Year 6, he was diagnosed with both dyslexia and attention deficit hyperactivity disorder by Dr McCarthy, a developmental paediatrician. 43 He was suspended from school in Year 3 and repeated Year 6. At high school he was disrespectful and rude to teachers and was suspended on several occasions for damaging school property and not completing schoolwork. He truanted about once a week during his few years at high school and would spend the day getting intoxicated with his friends. He was expelled at the beginning of one year because of unmanageable behaviour. 44 He attended a special school for severely behaviourally disorderly children which he found more satisfactory than ordinary high school. 45 Since leaving school he participated in a TAFE course in manual arc welding but did not complete the course and he has, since his arrest on 9 May 2003 participated in education courses such as literacy and computing as well as art studies whilst in gaol. He has been intermittently employed in various ways, the longest period of employment being for six months. 46 As to his psychological history, of major significance in the prisoner's case are the diagnoses of attention deficit hyperactive disorder, conduct disorder dyslexia and other, apparently related conditions. 47 Dr McCarthy, his treating specialist states that he has not seen the prisoner for some five and half years prior to the date of his report of 4 August 2004. The prisoner's mother refers to the prisoner being on the prescribed medication, Ritalin, for a period which proved to have some beneficial effect but made him "no longer happy or cheerful", as a result of which he became withdrawn. He stopped taking the medication when thirteen or fourteen years of age. 48 In an earlier report of 17 November 2003 Dr McCarthy writes of the prisoner having problems with sequential memory and a short concentration span with high levels of distractibility and poor impulse control, these described as characteristic of attention deficit disorder. He is also reported as being of poor self esteem and having difficulty socializing with his peers. 49 In November 1997 however the doctor reported improvement in the prisoner's social interaction. He also reports on the difficulties of the prisoner's transition to high school and his erratic compliance with medication. 50 In January 1999 after the prisoner has been placed in the special school to which reference has been made he showed progress and obtained a good report at the end of Year 7. 51 An appointment fixed during 1999 however, was not kept with Dr McCarthy and the doctor had no further contact with the prisoner. He notes however that in early 1999 the prisoner "had been exposed to the use of cannabis". He described attention deficit hyperactivity disorder with associated conduct disorder as an appropriate diagnosis, with a poor prognosis unless treated aggressively. 52 Dr McCarthy states that the prisoner in 1999 still needed to take medication which would have minimized his impulsivity and tendency to use prohibited drugs. He again describes the prognosis for conduct disorder and associated attention deficit hyperactive disorder when untreated, as being poor. In a yet earlier report of 30 June 1999 it is noted that Dr McCarthy had recommended that the prisoner continue his current dose of Ritalin and advised further review in about six months. As indicated Ritalin was, however, discontinued and no later appointment was kept. 53 Returning to the report of Ms Seidler, she indicates that the prisoner claimed to have experienced several blackouts during his lifetime attributed to use of excessive amounts of drugs or alcohol. The longest of these, lasting up to three days, occurred after taking excessive amounts of serapax and temazapan, both sleeping pills. He reported seizures, one of which was drug induced and two occurring after his arrest. He did not report any triggering events for these seizures and received no medical intervention or assessment in relation to them. 54 He claimed that at the age of sixteen he was hit on the head with a metal pole whilst riding his bicycle. He said that he had lost consciousness for about half an hour. At the age of eighteen years he claimed to have been hit by a car whilst intoxicated and riding his skateboard. He said that he did not sustain any lasting injuries as a consequence. He also spoke of a pre-existing back injury and ankle weakness for which he received analgesic medication. 55 As to his psychosocial history, Ms Seidler reports that that there was no evidence of any significant psychopathology or psychosis upon interview after his arrest. 56 She also reported the prisoner's assertion that he had always enjoyed a group of friends and found it relatively easy to develop relationships with peers. This is in contrast to Dr McCarthy's original assessment of the prisoner in 1996 that his self-esteem was poor and he had difficulty socializing appropriately with his peers. 57 Ms Seidler considers again the prisoner's drug and alcohol consumption. He commenced drinking alcohol at the age of twelve involving binges and weekly drinking with peers. He nevertheless claimed his alcohol consumption was "not problematic." He reported using cannabis from the age of fourteen, smoking a number of cones of it daily. He had experienced paranoia as a result but denied hallucinations. In Ms Seidler's opinion his use of substances reached a state of dependence and he continued to smoke cannabis until his incarceration. He also described, at the age of fourteen, sniffing glue three times daily and the occasional sniffing of spray paint cans. This appears to have been concurrent with his asserted use of hallucinogen LSD, as a result of which he had reported "flashbacks" on several occasions. At sixteen he commenced using amphetamines as a result of which he experienced "speed psychosis", i.e. psychotic symptomatology from excessive use of amphetamine. He reported paranoid beliefs, magical thinking and visual and auditory hallucinations but apparently did not bring these to the attention of medical or psychiatric practitioners. 58 Ms Seidler's opinion is that auditory hallucinations reported during his recorded interview were related to drug induced psychotic phenomena and she said that the use of methylamphetamine commonly induces psychotic like symptoms. 59 The prisoner said that he had participated in both detoxification and rehabilitation programmes on many occasions but had failed to complete the programmes. He also received drug and alcohol counselling for approximately twelve months but said that he did not find it helpful and continued to use substances whilst undergoing it. 60 Ms Seidler refers to a psychological assessment made of the prisoner the day following his arrest by a registered nurse Ms Barlow and a psychologist Emad Girgs. That report states that the assessment was undertaken "due to the history of suicidality". It refers to an attempt by the prisoner to hang himself twelve months previously. He had described a nine year history of auditory hallucinations and referred to the attention deficit hyperactivity disorder, which had been diagnosed by Dr McCarthy. There is also a reference to an attempt to cut both his wrists. On the date of the assessment the prisoner stated that he was again hearing voices and they were telling him to kill himself, because he did not deserve to live. The report recommends twenty four hour surveillance whilst in custody and a comprehensive psychiatric assessment. 61 Ms Seidler, (par 47) states that as well as diagnoses of attention deficit hyperactivity disorder, conduct disorder and dyslexia there was a specific learning disability. All of these, she states, manifested themselves in impulsive and inappropriate behaviour, difficulties in concentration and in developing appropriate relationships. She offers the view that "his substance abuse and anti social behaviour unfortunately appears to have culminated in the offence presently before the Court" as to which I will comment later. 62 As to prospects for rehabilitation she states that given his history, without significant intervention and assistance, Mr O'Connell's prognosis remains poor and to this end she makes a number of recommendations. She states that in her opinion the level of psychological and personal dysfunction in the prisoner are likely to continue into his later adult life before "burning out". She does not indicate when this may occur nor whether it is inevitable that it will. 63 As to the statutory framework within which sentence must be imposed I accept the submissions by Ms Flannery that whilst the standard non parole period specified for the middle range of objective seriousness of this offence namely, twenty years, does not apply, nevertheless it is a guide or indication as to the way in which Parliament regards murder as being appropriately punished. I accept the further submission of Ms Flannery that ss 3A and 21A and 22 of the Crimes (Sentencing Procedure) Act apply. 64 As to s 21A, in determining the factors which affect the relative seriousness of the offence, Ms Flannery submits that I should take into consideration the evidence as to the mental state of the prisoner as going to the circumstances of the offence, and not merely to the circumstances of the offender. Ms Flannery cites as authority for this proposition the decision of the Court of Criminal Appeal in R v Way [2004] NSWCCA 131, 11 May 2004. I of course accept Way's case as authority for the proposition that mental illness or intellectual disability affecting the offender's capacity to reason, appreciate rightness or wrongness of a particular act or to exercise appropriate powers of control may go to the circumstances of the offence and not merely the circumstances of the offender, provided however that they are causally related to the commission of the offence. 65 A question arises therefore, as to the extent if any, to which the mental state of the prisoner as clinically and otherwise determined, and whether or not exacerbated by consumption of alcohol or illicit drugs, is causally related to this offence. 66 In this connection I have already expressed my view as to the level of the prisoner's rationality and comprehension at the time of the offence. His actions in seeking to divert suspicion from himself and the express or implied admissions made to Mr McCormack, Ms Risk and Mr Albrecht all lead me to the view, as I have indicated that I am satisfied beyond reasonable doubt that he did not suffer any blackout or psychotic condition, whether drug induced or otherwise, at the time of the offence. He was in my view fully comprehensive of what he was doing and had done. In reaching this conclusion I have taken into consideration the contents of Ms Seidler's reports and Dr McCarthy's diagnosis and the other evidence tendered on behalf of the prisoner as to these matters, as indeed I have also already indicated. 67 As to the prisoner's consumption of alcohol and illicit drugs shortly prior to the commission of the offence, per se, I find that beyond making the prisoner probably more readily amenable to the sort of conduct which led to the death of the deceased, I am not persuaded that the evidence before me indicates, even on the balance of probabilities, that this is a factor affecting the relative seriousness of the offence. It is per se, in my view neither an aggravating nor a mitigating circumstance. Whatever affect it may have had in rendering him more likely to act out violent sexual notions, the evidence does not suggest to me that this was otherwise causally related to the commission of the offence. I do not understand Ms Seidler to have expressed such a view in positive terms. To the extent to which it may be said that her view that the prisoner's substance abuse and anti social personality "culminated" in the commission of the offence, is evidence of such a causal connection, I would reject to that extent her view. I do not regard the use of the word "culminated" as a causal relationship however. 68 Viewing these matters as going to the circumstances of the offender, rather than the seriousness of the offence, of relevance in assessing the significance of the prisoner's substance dependence and psychological state at the time of the offence, is the long term possibility of improvement as a factor in his prospects of rehabilitation. A person who commits such acts, as led up to and caused the death of the deceased, more readily whilst affected by drugs and/or alcohol, may continue to be dangerous unless his dependence no longer exists, and/or there has been a fundamental change in his psychological state. The protection of the community as a sentencing principle acquires significance in the circumstances of this case. 69 As for the prisoner's psychological condition, the only hope for ultimate correction in Ms Seidler's view is that as an adult it may "burn out" in the absence of appropriate treatment. Whilst it is recognized that he did not have appropriate parental guidance in his childhood or youth, the fact is that he did not continue taking the medication prescribed by Dr McCarthy for his then diagnosed conditions, nor did he follow up by presenting for further consultation after a date had been fixed. This and his general conduct does not instil in me any real confidence that if his addictions continue to exist and his psychological state has not reached the stage of "burn out" when released he may not continue to be a danger to the public. (See s3A(c) Crimes (Sentencing Procedure) Act 1999; Veen v The Queen (No 2) (1988) 164 CLR 465). This is not to suggest preventive detention, but that an adequate assessment of the circumstances requires this factor to be taken into consideration. 70 Returning to s 21A of the Sentencing Procedure Act, and of course leaving out of account such aggravating factors as are elements of the offence, the outstanding aggravating factor suggested by the evidence as expressly referred to in that section falls into the category of "gratuitous cruelty". Whatever that expression may ultimately be held to mean, there are clearly aspects of it exhibited here. I also take the view that the victim of this offence was very young and therefore likely to have been quite vulnerable. I note the submission of Ms Flannery that there is no evidence that the offence was premeditated. Much of course depends upon what is meant by that term. It does not necessarily involve long and careful planning of which there is no evidence in this case. There is no evidence to suggest for example that the prisoner lured the deceased into his mother's unit with a view to killing her. Statements made to Mr McCormack and Mr Albrecht along the lines that the prisoner was continuing to dwell on the acts and circumstances of the killing and his reference to sexually sadistic acts indicate that, from a source which is not revealed in the evidence, he had developed a set of fantasies which he acted out on the person of the deceased. At some stage during the course of doing so I have found beyond reasonable doubt that he formed the intention of killing her. Whilst the submission is sound, that the offence was not premeditated in the rational straightforward way in which that term is generally used, the potentiality for violence and sexual sadism did exist prior to the commission of the offence and the prisoner used the occasion to give vent to that potentiality. 71 Turning to the mitigating factors specified in s 21A the prisoner does have a record including for crimes of violence, of a quite serious kind. These were committed however, whilst he was fifteen or sixteen years and seem to have been dealt with leniently by the Children's Courts before which he appeared. Particularly in the light of the seriousness of the present offence I draw no inference from his prior criminal record which would tend to deprive him of any leniency, which might otherwise be extended to him. 72 I am, however, unable to conclude even on the balance of probabilities on the evidence before me, that he is unlikely to reoffend. This, as I have previously indicated, depends to a large extent on the amelioration of his addictions and his underlying psychological states on which his prospects for rehabilitation depend. I do not regard his prospects of rehabilitation as capable of being assessed as "good" for the purposes of s 21A on the evidence which has been adduced before me. 73 I accept however that the prisoner has shown a degree of remorse for the offence, particularly as expressed to the prison chaplain, Father O'Rourke. As to whether he was fully aware of the consequences of his actions because of his age I take into consideration the fact that he was but eighteen years of age at the date of the offence. Clearly, however, this was not an offence of a juvenile kind but of a deviantly adult kind. The seriousness of the offence and the circumstances surrounding it, in my view, require limited weight to be given to this factor. For the purposes of s 21A I am prepared to regard his diagnosed mental state as a "disability" and that, particularly when exacerbated by consumption of illicit drugs and/or alcohol, made him more likely to engage in the sort of conduct which is revealed by the evidence relating to the death of the deceased. 74 I accept that the prisoner has been in protective custody since his arrest on 9 May 2002 and has been on what is termed limited protection since 27 September 2004, which allows him to associate with other prison inmates only, and to have access to the exercise yard for only up to three hours a day. I accept also that in limited protection he has been denied access to programmes of education and drug and alcohol counselling, which I regard as unfortunate, in the light of his history. I am uncertain however as to how long after sentence is imposed he will continue to be in protective custody of any kind, and hence I am unable to assess the significance of this as a factor in the sentence he must serve for the future. 75 As to his plea of guilty, the prisoner indicated an intention to plead guilty to the charge of murder on 4 May 2004. I am prepared to regard this as the first available opportunity for indicating such a plea. So far as the utilitarian value of the plea as contributing to the overall efficiency of the criminal justice system is concerned however, I am not disposed to accept that in all the circumstances the discount for this aspect should be at the top of the range as submitted by Ms Flannery. A plea entered or indicated, even as early as committal proceedings nevertheless assumes the expenditure of a good deal of time and effort in continuing the investigation after arrest and in putting together evidence for the purposes of establishing a prima facie case, although that aspect has not been the subject of detailed evidence in these proceedings. 76 As to the plea of guilty considered as an indication of contrition or remorse I have already noted the statement made by the prisoner to Father O'Rourke and I also note the reported statements made to Ms Seidler by the prisoner along the same lines. Against this however, has to be considered the seriousness of the offence committed and of the circumstances leading to its commission. On the other hand in pleading guilty the prisoner, no doubt on good advice, has elected not to raise for determination by a jury an issue of intoxication which would, in my view, have been unlikely to succeed in any event, but which he was entitled to pursue. Whether he may also have foregone an opportunity to raise an issue of substantial impairment of responsibility in the light of his diagnosed psychological condition does not appear. Consideration of both aspects of the plea would justify a reduction of about 20% which is the discount I will apply. 77 In determining the sentence to be imposed I have been much assisted by written submissions from both counsel including reference by them to relevant authorities. I note that the maximum penalty provided by law for this offence is imprisonment for the term of the prisoner's natural life. I note also, however that this is subject to the operation of s 21(1) of the Sentencing Procedure Act. The Crown submits that the evidence in this case places the offence in the worst category of cases of murder at common law and presumably also for the purposes of s 19(a) of the Crimes Act. The Crown does however fairly acknowledge that there are subjective matters which may persuade me to impose a lesser sentence than life imprisonment. 78 But for the prisoner's youth and his plea of guilty, a life sentence would have been imposed. 79 The legislation requires me firstly to fix a non-parole period being the minimum period for which the offender must be kept in detention in relation to the offence. After 20 percent discount for plea of guilty, I regard twenty five years imprisonment as an appropriate non-parole period and that is the non-parole period for the sentence which I now fix. The statute requires that the balance of the term of the sentence must not exceed one third of the non-parole period unless there are special circumstances for it being greater. In my view having regard to the findings I have made as to the uncertain prospects of rehabilitation of the prisoner I regard an 8-9 year balance of term as insufficient. Accordingly I find that there are special circumstances in this case and I impose a balance of term of ten years. 80 The sentence of the Court then is that you are sentenced to imprisonment for a term of thirty five years to date from 9 May 2003. I fix a non-parole period of twenty five years. The effect of that sentence is that you will be in custody until 8 May 2028 on which date you will become eligible for parole. Whether you are paroled depends upon a determination by administrative authorities. The whole of the sentence will come to an end on 8 May 2038. ********** Last Modified: 11/29/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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