Regina v David Jack Glen [2005] NSWSC 1093

New South Wales Supreme Court

CITATION : Regina v David Jack Glen [2005] NSWSC 1093

HEARING DATE(S) : 16 September 2005, 14 October 2005

JUDGMENT DATE : 28 October 2005

JUDGMENT OF : Barr J at 1

DECISION : Application granted. Set a term of the sentence of thirty-six years, commencing on 10 October 1985 and expiring on 9 October 2021. Set a non-parole period of twenty-four years. The earliest date on which the applicant will be eligible for release on parole will be 9 October 2009.

PARTIES : Regina , David Jack Glen

FILE NUMBER(S) : SC L00001/01

Crown: G Smith SC COUNSEL : Applicant: A Haesler SC

Crown: S Kavanagh SOLICITORS : Applicant: Legal Aid Commission of New South Wales

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

GRAHAM BARR J

28 OCTOBER 2005

L00001/01 DAVID JACK GLEN

JUDGMENT 1 HIS HONOUR: This is an application by David Jack Glen for an order under Schedule 1 Crimes (Sentencing Procedure) Act 1999 setting a specified term for a sentence together with a non-parole period. On 22 December 1986 Wood J sentenced the applicant to imprisonment for life following his trial and conviction for murder. His sentence began on the day of his arrest, 10 October 1985. Consequently, the applicant has now been in custody for twenty years. This is how his Honour described the case - "The prisoner was, on 18 December 1986, convicted of the murder of Kylie Jane Corbett, his ten year old cousin. The offence, which occurred on 10 October 1985, was both vicious and sadistic, even on the account most favourable to the prisoner, taken from his statement and record of interview. Regrettably, it is essential as a part of the permanent record for the prisoner's file to set out in a little detail the facts and aggravating circumstances which bring the prisoner before the court for sentence. He met Kylie and her younger sister shortly after 8am on 10 October as they were on their way to school. He observed that Kylie had a bag of clothes for a school charity and he invited her to call at his unit to collect some further materials. This she agreed to do. Once there, he seized her around the neck and pushed her onto a bed. He pulled out a knife and threatened to kill her if she screamed or cried out. She was made to undress and he said he inserted his finger into her vagina "as far as I could". He acknowledged that she began to bleed. She was tied up by the wrists and legs to the bed and left there by the prisoner while he callously went to a nearby shopping centre to play the pinball machines and to buy some food for himself. On his return to the unit he said he repeated the act of sexual interference previously mentioned, while she was tied to the bed. Kylie pleaded to be released and to be allowed to dress. The prisoner relented to the extent of cutting the bonds on her arms but he continued his torment by requiring her to read to him from his [sic] schoolbooks. She was again tied to the bed while the prisoner ostensibly went for a shower. I pause at this point to observe that the sexual assault on the child was far worse than this narrative would suggest and far worse than that to which the prisoner admitted. It is necessary to digress to the evidence of Dr Malouf who carried out a post mortem examination. This disclosed abrasions and contusions to the vulva, bruising of the vaginal wall, tearing of the perineum, contusions and lacerations to the vaginal wall, tearing of and abrasions to the anal verge and contusions to the posterior walls of both the rectum and the pelvis. The vaginal orifice was gaping such as to readily admit an object one finger in width. The anus was dilated and gaping such as to admit readily an object two fingers in width and had been so violently interfered with as to leave the sphincter muscle in paralysis. Quite what the prisoner did to the deceased is known only to him, but there can be no doubt that he violently penetrated her vagina and anus with some hard object other than his finger. I categorically reject the prisoner's denials in this regard as nonsense. He refused to disclose what brutal violation he committed to this girl to inflict those injuries, and that is a matter of grave aggravation to which I will return later. While out of the room the prisoner clearly made up his mind to kill the child so as to avoid detection for his intrusion of her body. On his return he picked up a military-type wooden baton which, despite the child's struggles, he pressed with both hands against her neck, choking her to the point of unconsciousness. He then strung her up by the neck to a rail in the wardrobe with a belt tied around her neck by means of a slipknot. Her body was supported on a chair and there she was left to die by asphyxiation. The prisoner departed the flat shortly after 3pm and remained out until about 5am when he returned to dispose of the body he knew to be there. In his absence the body had been discovered by police, hanging in the wardrobe, dressed in a swimming costume with a school uniform draped over her upper body. The seat of her swimming costume and a cloth between her and the chair were seen to be soaked in blood, and the cord by which she was strung up was found to be tight and supporting her upper body. How the prisoner had the effrontery in these circumstances to say that he did not mean to kill the girl or that he left her tied by the neck merely to stop her falling from the chair, I do not know. That version was rightly rejected by the jury. Dr Malouf's post mortem showed, in addition to the injuries already mentioned, that there were constriction rings around the neck which were deepest in the centre with friction burn marks. Contusions and abrasions were obvious below the constriction rings consistent with having been caused by a hard object such as the baton. Bruised and constriction rings were found about her forearms just above the wrists and also around both legs just above the ankles. There can be no doubt that the death of this child was brought about by asphyxiation due either to choking with the baton or constriction of the upper airways by hanging, for each of which even the prisoner was responsible. The injuries to the vulva and rectum were an inevitable cause of shock and may have been a contributing cause of her death. 2 His Honour went on to deal with the evidence of two psychologists, Ms Duffy and Mrs Goldberg, and three psychiatrists, Dr Milton, Dr Barclay and Dr Robertson. I do not need to set out the detail of his Honour's observations and findings. His Honour concluded that not a single factor had been advanced to mitigate the appalling circumstances of what his Honour described as "this hideous killing". 3 As s19 Crimes Act then stood, his Honour was bound to impose a sentence of imprisonment for life unless the applicant's culpability was significantly diminished by the circumstances contemplated by that section. His Honour concluded that the applicant's culpability was not significantly diminished and continued - "The only conclusion open, upon the evidence, is that the prisoner's culpability for his act was not significantly diminished by any circumstance falling within the proviso. At the highest, what is shown is the kind of antisocial personality disorder shared by the vast majority of offenders who appear before the criminal courts. There is no suggestion that the prisoner was affected by alcohol or drugs, or that his culpability was significantly diminished by the so-called personality disorder. I reject the submissions to the contrary, as contradicted by the evidence. The fact that the prisoner may have behaved impulsively in initiating the assault is of little assistance in this regard, given the lengthy period of time involved. It may be that he acted impulsively in taking Kylie to his flat and assaulting her for the first time. Thereafter, however, I am satisfied that his acts were considered and deliberate and extended over a sufficient period to deny any suggestion of a reduction in self-control. I accept that it is proper to have regard to the entirety of the incident, including the acts leading up to the final killing, when I come to assess whether there was a siginificant diminution in culpability. However, I am satisfied that the only conclusion open in this case is that there was no significant diminution in responsibility such as to attract the proviso. Unfortunately, I must conclude that the prisoner's acts were both deliberate and were carried out for his pleasure and sexual satisfaction. The prisoner has shown not a shred of remorse for his victim or the family at any time since his arrest. I have carefully observed him during the trial and I have been left with the overwhelming impression that he felt sorry not for the family or Kylie but merely for himself. At no time did he appear moved or distressed when the consequences of his acts were mentioned or his record of interview read out. His expressions of regret to the police and to the jury, I am satisfied, relate only to the predicament in which he now finds himself. The measure of his lack of contrition is indicated by the fact that the victim was his own cousin, well known to him, and that even now he seeks to justify or to excuse his acts on the basis that they were not meant. It is further indicated by the fact that he took a break in his mistreatment of the child to play the pinball machines and to feed himself. The prisoner has been unwilling to explain why he accumulated the weapons used in this attack, including a hunting knife, and a wooden baton of the kind used as a weapon by the military or the police. This again is a matter of real concern for the future. Most cruelly and clearly, however, is his lack of remorse indicated by a letter which he had the effrontery to send to the parents of his victim in recent weeks. I will read the letter in full since its terms speak more eloquently of the prisoner's total lack of conscience and contrition than any words of mine could: "Dear Aunty Barbara, Hi, I'm writing to say that I'm truly sorry about what has happened, that all I can do is time inside, that is in gaol. Well, I know it might be hard for you but it is hard for me too because I have lost my freedom but I know I have to do time for what I have done. Well, as you know, I go for trial on the fifteenth of December this year and at the trial I'm going to plead not guilty to the murder charge and for the sexual assault and I'm going to say a dock statement. Well, not much more that I can say but that I'm truly sorry about what has happened and I meant that, Aunty Barb. Well, it's bye, and I will see you at court. Love from David." Even if the proviso had been applicable, nothing could be said in favour of the prisoner in the way of his subjective circumstances. He is now twenty years of age and has a lengthy record. He left school at year eight, after an unsatisfactory history of truancy and fighting. He formed a de facto liaison relatively young in life and has left a wife and child separated from him. His criminal record began at that age of eight years and he has returned before the courts almost every year since. Over that time he has acquired entries for twenty-one offences, including multiple offences of burglary, theft and stealing." 4 Having imposed sentence, his Honour continued - "Before I depart from the matter, I wish to have recorded certain further observations in relation to the prisoner, for the assistance of the Corrective Services Commission and also for the information of any Release on Licence or Parole Board to which the prisoner may apply in the future. First, it is necessary to record that the prisoner is especially vulnerable to attack by fellow prisoners by reason of the nature of his offence and there is material available to the court, within the Corrective Services Division Records, to suggest that he is in particular danger at the Central Industrial Prison at Malabar. It is my recommendation that he be kept in the Protection Unit at the Metropolitan Remand Centre pending classification and decision as to where he should commence to serve his sentence. It may be that consideration should be given to at least the early years for him to serve that sentence at some place other than the Central Industrial Prison, but that is a matter for the prison authorities to assess and my observation in that regard is not to be taken as any fetter upon the discretion of the Department. Next, I wish to have recorded that the sentence I regard as appropriate for the prisoner is such as to require very careful consideration by the authorities in relation to his future custody and in particular as to whether he should be, at any time in the future, returned back to the community. My assessment in this regard is based upon the most careful and dispassionate analysis of the crime charged and the prisoner's personal profile. There are matters in this case which I regard as of very great concern. They include the total lack of contrition expressed by the prisoner, his callous attitude towards the parents of his victim and his obvious lack of insight into and acceptance of his wrongdoing. Additionally, there is his refusal to discuss with the psychologists and psychiatrists the matters concerning his sexual attitudes and his state of mind in that regard, when carrying out the sexual violation of his victim. The material available leaves me with the view that this prisoner at this time presents a very grave danger to the community, in particular to young children. While once again I do not mean by these remarks to fetter the discretion of any relevant Board entrusted with a decision as to the future release of him back to the community, I would be remiss in my duty not to have these observations recorded, since I have had the special opportunity to asses the prisoner at the time he comes up for sentence. It may be that after a lengthy period of imprisonment and counselling, a fundamental change in his personality and ability to modify his behaviour, together with an acceptance of his criminality, may emerge. Hopefully, that will be the case and it is proper that he be given the advantage of further psychiatric counselling and assistance while he serves his sentence." 5 By clause 4, Schedule 1 of the Crimes (Sentencing Procedure) Act empowers the Court to dispose of an application of this kind by setting a specified term together with a non-parole period, by declining to set a term for the sentence but setting a non-parole period or by declining to do either. By cl. 5, if the Court sets a specified term, the life sentence is taken to have been replaced by a sentence of imprisonment having that term. If a non-parole period is fixed, it is taken to have been set under the relevant provisions of the Act (see s44). 6 By cl. 6 a Court which declines to set a specified term or to set a non-parole period may order that the applicant never reapply or not reapply for a period of time which the Court specifies. In the absence of such a direction an applicant who is refused relief under the Schedule may reapply within the period of three years from the date of the Court's decision. 7 Special provisions appear in the Schedule to deal with cases the subject of what is called a non-release recommendation. They are cases in which a recommendation or observation was made at the time of sentencing to the effect that the offender should never be released from imprisonment. It should be noted that notwithstanding his Honour's strong observations about the serious nature of the applicant's crime and the poor case that he personally presented, his Honour stopped short of making any recommendation or observation of that kind. On the contrary, it appears from the closing passages of his Honour's judgment, extracted above, that his Honour held out the hope that the applicant's personality might change and that he might modify his behaviour and accept his criminality. Implicit in his Honour's remarks was an acceptance that in those circumstances the applicant ought to have an opportunity to earn his release from custody on parole or licence. 8 On 12 October 1993, a few days after he became eligible to do so, the applicant applied for orders of the same kind as are now sought under the predecessor of Schedule 1, s13A Sentencing Act 1989. In view of the very serious nature of the offence and the gravity of his Honour's remarks, that application might have been regarded as premature, even though there was a strict legal entitlement to make it. However that may be, the application was left undetermined until listed for hearing in 1999. It was obvious to the parties then that the application was by no means ready for hearing. I shall explain why as I deal with the course of progress of the applicant through the corrective system. Counsel then appearing for him applied for an adjournment. Counsel for the Crown opposed the application and asked for an order dismissing it. Implicit in the Crown's application was an acknowledgment of the right the applicant would have, in the absence of any order that he never reapply, to bring another application. As the legislation then stood he would be able to bring it after a further period of two years. His Honour declined to adjourn the hearing of the application and dismissed it, but shortened to eighteen months the period after which the applicant might make a fresh application. 9 In giving judgment his Honour reviewed the applicant's progress, as evidenced by reports from the Serious Offenders' Review Council and from medical practitioners. His Honour summarised the position as follows - 31 The applicant is now aged 33 years. His current classification is B and he is held as a prisoner at the Junee Correctional Centre. Initially, he was held in the Protection Centre of Long Bay until he was moved, in 1987, for a short time to Maitland and then to Goulburn. 32 He was returned to Long Bay in June 1989 following unsubstantiated suspicions of an escape plot by some life sentence prisoners. While there, he remained on strict protection with consequent loss of opportunity for education and employment. 33 From about October 1989, repeated attempts have been made for him to seek assistance from a psychologist to address the issues related to his offence and, in more recent years, to join a sexual offenders programme. Until very recently, on the face of the prison files, he has resisted all of that encouragement. 34 After returning to Goulburn in 1990, he made some progress in so far as he enrolled in an adult education course and sought employment in the tailoring shop. Since then, he has completed other courses and has been in fairly regular work in the tailoring shop at various of the prisons, as well as in their libraries and kitchens. 35 In 1993, he was transferred to the Cooma Correctional Centre with a B classification. His performance deteriorated some time after this move, in the sense that he discontinued his educational courses and was sacked from his position in the prison library, when he became involved with a transsexual inmate. He did, however, later take up work in the kitchen and he began a cooking course. 36 He declined to participate in the sexual offenders SOAP (Sexual Offenders Assessment Programme) programme at Cooma, because he claimed that his offence was not sexual but rather to do with anger, his cousin being a substitute for his wife. 37 In 1994, he was transferred to Parramatta Correctional Centre before moving back to Goulburn in January 1995 when the protection facilities at Parramatta were closed. 38 In February 1995, the Review Council transferred his management to the Serious Offenders Management Committee, which recommended his transfer to Junee in anticipation of the establishment of a sex offenders programme at that centre. The programme did not, however, materialise at that time. 39 In a letter dated 5 June 1995, the applicant did indicate, for the first time, it would seem, an interest in undertaking the SOAP programme and, for that purpose, requested a transfer to Cooma. The reason for the request was expressed in the following terms: "I wish to undertake the assessment because I have my determination of sentence coming up soon and believe this course will help me in my rehabilitation." 40 Following this letter, the Case Manager prepared a programme pathway providing some goals for him to aim at, on the way to rehabilitation. These goals included consultation with a psychologist, completion of an anger management course and admission to SOAP. 41 The conclusion of the Serious Offenders Review Council as at 22 September 1995, is encapsulated in the following paragraph of its report, which was prepared in anticipation of this application coming on for hearing: "Glen's behaviour in custody has, for the most part, been satisfactory. There is concern, however, that he lacks the capacity to tackle the issues which were raised by the sentencing judge, especially his lack of insight into the nature of his offence and lack of remorse and its implications for those who must decide if, and when, he should be returned to the community. 42 The Review Council, while not making any comment on the minimum sentence, if any, the Court might consider appropriate, is of the view that Glen has not been rehabilitated and nothing can be said at this stage as to when, if ever, he will be fit for release. He has failed at all material times to take advantage of psychological assistance within the department.