New South Wales Supreme Court CITATION : Regina v Andrew Mark Norrie [2006] NSWSC 830 HEARING DATE(S) : 11/11/05, 3/3/06 JUDGMENT DATE : 22 August 2006 JUDGMENT OF : Bell J at 1 DECISION : 1. Pursuant to cl 4(1)(c) of Sch 1 of the Crimes (Sentencing Procedure) Act 1999 I decline to specify a term for the life sentence imposed on Andrew Mark Norrie on 31 July 1987 and I decline to specify a non-parole period for the said sentence; 2. Pursuant to cl 6(1)(b) of Sch 1 of the Crimes (Sentencing Procedure) Act 1999 I direct that Andrew Mark Norrie not re-apply to the Court for a period of 20 years' from today's date for the determination of a term and a non-parole period for the sentence referred to in order 1. CATCHWORDS : Life sentence redetermination - heinous offence - considerations of dangerousness LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Baker v R [2004] HCA 45; 78 ALJR 1483 CASES CITED : R v Fernando (1999) NSWCCA 66 R v Harris (2000) 50 NSWLR 409 R v Merritt (2004) 59 NSWLR 557 PARTIES : Andrew Mark Norrie (Applicant) Regina (Respondent) FILE NUMBER(S) : SC L00014/95 COUNSEL : C. Craigie SC (Applicant) W. Roser (Crown) SOLICITORS : SE O'Connor (Applicant) S Kavanagh (Respondent) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION BELL J Tuesday 22 August 2006 L00014/95 Regina v Andrew Mark Norrie JUDGMENT 1 BELL J: On 31 July 1987 Andrew Mark Norrie was sentenced by Finlay J to imprisonment for life for the murder of Ian Allan Breust (the deceased), to which he had pleaded guilty. 2 On 27 June 1995 the applicant applied under s 13A of the Sentencing Act 1989 (as it then stood) for an order determining a minimum term and an additional term in respect of his sentence. Subsequently, by letter dated 2 October 1995, he said that he wished to cancel his application and to re-apply after three or four years. The Registrar of the Serious Offenders Review Council (SORC) requested that no action be taken to strike out the application pending the receipt of advice from the Mental Health Advocacy Service. The application remained pending in the Court. In the interim the applicant was transferred to Victoria to be dealt with for the murder of Mark Lynch, an offence that occurred the day after the murder of the deceased. 3 The applicant pleaded guilty to the murder of Mark Lynch before Bongiorno J and on 7 December 2001 he was sentenced for that offence to imprisonment for life. His Honour specified a non-parole period of 14 years and six months. 4 Following the imposition of the sentence in Victoria the applicant was returned to this State to continue to serve the life sentence imposed by Finlay J. In 2005 he sought to have the present application brought on for hearing. On 29 June 2005 his solicitor filed a reply to the statement of facts prepared by the Solicitor of Public Prosecutions, which is dated 19 September 1995. 5 The application was listed for hearing on 11 November 2005. On that date, Mr Craigie SC, who appeared on the applicant's behalf, applied for the application be stood over in order to obtain reports from Victoria concerning the applicant's imprisonment in that State. It was stood over until 3 March 2006. The hearing proceeded on that day. A number of documents were tendered by consent: the Statement of Facts and the Reply thereto (annexures to the Statement of Facts include copies of the records of interview between the applicant and the police following his arrest for the murder of the deceased and a number of reports by psychiatrists who assessed the applicant prior to his sentencing for that offence); the psychiatric reports of Dr Walton (5 February 2001), Dr Lucas (25 July 1999 and 3 May 2004) and Dr Westmore (25 October 2005); two reports prepared by the SORC; a bundle of documents produced by the Victorian correctional authority; a victim impact statement and a letter written by the applicant to the daughter of the deceased. 6 The application is governed by the provisions of s 44(5) and Schedule 1 of the Crimes (Sentencing Procedure) Act 1999 (the Act). Clause 2 of Schedule 1 provides that an offender serving an existing life sentence may apply for the determination of a term and a non-parole period for the sentence. 7 The applicant became eligible to make the present application after serving eight years of his sentence. The circumstances surrounding the offence 8 In determining an application under Sch 1 of the Act the Court is to take into account all of the circumstances surrounding the offence for which the sentence was imposed and all offences, wherever and whenever committed, of which the offender has been convicted so far as this information is reasonably available to the Court: cl 3. 9 The applicant pleaded guilty before Finlay J to four charges in addition to the murder of the deceased. These were the armed robbery with wounding of the deceased; two counts of shoot with intent to murder and one count of malicious damage to a dwelling house. At the time of the commission of these offences the applicant was aged 24 years. He had a young companion, Scott Thompson, who was aged not quite 17 years. Thompson was convicted of the manslaughter of the deceased and of one of the counts of shoot with intent to murder. Thompson was mildly mentally retarded. 10 In his reasons for sentence Finlay J described the facts as follows: The events giving rise to the crimes of which the prisoners had been convicted commenced at the end of February 1986 in Brisbane. The prisoners Norrie and Thompson went to a sports store on Thursday, 27 February 1986. At that store Norrie purchased a Sterling semi-automatic .22 rifle, and paid a deposit on another. He also purchased ammunition and a number of magazines for the rifle. The following day the prisoner Norrie returned and completed the purchase of the second rifle. Also on that day, Friday 28 February, he rented an Avis rent-a-car from the Brisbane airport. On the Friday evening of 28 February the prisoners Norrie and Thompson commenced driving south from Brisbane in the rented car. Norrie was the driver. Thompson was unlicensed. They were then armed with two semi-automatic rifles, on the butt of one of which the prisoner Thompson inscribed his first name, "Scott". They had a vast amount of ammunition and spare magazines, camouflage army-like uniforms, a sword and similar equipment. I have no doubt that the prisoner Norrie was generally responsible for this equipment. At 2am on the following morning, Saturday, 1 March, Mr Bishop, with his now wife and her two infant children, were travelling from south Ballina in a rented Nissan vannette on the Pacific Highway. The prisoner Norrie shot at the van from the side of the road. Thompson was with him. A number of bullets struck the van. One exploded the passenger side window by the head of Mrs Hendy, as she then was, some glass going into her eyes. This gave rise to the charge of shooting at her with intent to murder her, in respect to which Norrie has pleaded guilty, and in respect to which the jury acquitted the prisoner Thompson. The prisoner then pursued the van, with Norrie driving. They came alongside the van, then being driven by Mr Bishop, at about 100 kms/hr. The prisoner Thompson was in the front passenger seat of the car, with his gun protruding from the window, firing. One bullet smashed the driver side window of the van, but fortunately missed the driver. This gave rise to the further charge of shooting at Lindsay James Bishop with intent to murder him, in respect of which both prisoners had been convicted. The prisoners' car then rammed the side of the van before driving off. Fortunately no serious injury was occasioned in these events, despite the van having a number of bullet holes in it. The experience must have been one of incredible terror for the occupants of the van. Probably about 2 March 1986 a 1967 Volkswagen sedan was parked at the side of the road near Foxground, near Kiama. It had broken down a few days before, and had been left locked up by its owner. The prisoner Thompson said that while he and the man Norrie were driving along, Norrie said, "There's a car. Let's go and shoot at it." They remained in their vehicle just across the road. Both of them fired a number of shots into the Volkswagen, smashing the windows and making a number of bullet holes in the driver's door and body panel sections. It was night-time. This was the version given by the prisoner Thompson. In respect of this charge of malicious injury to the motor vehicle he was found guilty. In respect of the charge against the prisoner Norrie, to which he pleaded guilty, that on 3 March 1986 at Merou he maliciously injured a dwelling house. On that morning a number of shots were fired into that home at Merou, near Nowra. These shots were fired by the prisoner Norrie, when it was still dark, into the front of the house. There was no suggestion that any people were seen in the vicinity of the house at the time. On Monday, 3 March, the deceased, Mr Breust, a forty-six year old married man, went fishing at Kurrunna Lake, a little south of Merou. He left his car near the side of the highway. The prisoners Norrie and Thompson drove by. His Honour went on to set out the account of the killing of the deceased given by Thompson in his record of interview. He continued: The victim died from brain damage resulting from bullets penetrating his skull, at least one of which had been fired, it appears, directly from the top. He had at least seven bullet wounds in him, some of them, on the evidence, inflicted, after his death. Death had been instantaneous from the brain damage. The prisoner Norrie gave several different accounts, but common to them was the fact that he took his gun from the car with a view to shooting the victim, who was a total stranger to him. There was no provocation, no reason, nothing, that could sensibly be called a motive. There was some eleven spent shells in the area of the murder, all of which came from Norrie's gun. The only conclusion which can be drawn is that the prisoner Norrie was deliberately looking for a victim to shoot to death, which he did in a calculated cold-blooded way, totally devoid of any sensitivity or feeling. I accept, for the purposes of sentence, that the shots occasioning the deceased's death were fired by the prisoner Norrie. His Honour considered whether, for the purposes of s 19 of the Crimes Act (as it then stood), the applicant's culpability for the murder of the deceased had been significantly diminished by mitigating circumstances. He concluded that: Here there is no evidence offered, nor could any argument be presented, to make it appear that the prisoner Norrie's culpability for the first crime of murder is significantly diminished by mitigating circumstances. Mr Luland, of Queens Counsel, who is experienced senior counsel, acknowledges this. Indeed there are no mitigating circumstances whatsoever. The only inference which is open is that the prisoner Norrie set out on a planned campaign of indiscriminate murderous violence, culminating in the convictions for which the sentences are to be imposed. 11 After sentencing the applicant to imprisonment for life for the murder of the deceased his Honour imposed concurrent sentences of 10 years' penal servitude for the offence of armed robbery with wounding and 15 years' penal servitude for each offence of shoot with intent to murder and three years' penal servitude for the offence of malicious damage. His Honour declined to fix non-parole periods in relation to the determinate sentences. Each sentence was directed to date from 7 March 1986, being the date on which the applicant had been taken into custody in relation to them. 12 In light of the account that the applicant has given in recent times concerning the circumstances surrounding the offence I propose to refer to the contents of his interviews with the police. He was first interviewed in connection with these offences following his arrest by Detective Sergeant Beaumont of the NSW Police at the Mount Gambier Police Station on 8 March 1986. He volunteered his role in the killing of deceased. He was also questioned about the offences against Lindsay James Bishop and Lorna Joan Hendy. He said this: Q. From what I have been informed between 2:30 and 2:40 am on the 1st March, 1986, the van which I have mentioned containing the people to which I have just referred were travelling in a southerly direction along the Pacific Highway about four kilometres north of the township of Broadwater. Do you understand that? A. Yeah. Q 12 At this time the vehicle conveying those people came under rifle fire. Do you understand that? A. Yeah. Q 13 Can you tell me anything about the incident? A. Yeah I just wanted to kill them inside if I had of known that there were children inside I wouldn't have done it. … Q 23 Why did you fire those shots at the van? A. I just wanted to kill. Q 24 If you didn't know the people in the van why did you want to kill them? A. I just enjoy killing people. 13 The applicant was further interviewed by Detective Sergeant Beaumont at the Narooma Police Station on 13 March 1986 concerning the murder of the deceased. He gave this account: We started off then from Brisbane and drove down on our way to Sydney and we stopped off at the Gold Coast for a few hours and then continued driving through. Later that night we ambushed a red van and us just fired some shots through it then chased it and rammed it a few times with our car then as we were driving along we shot some signs, a road grader, then we shot a house then a blue Volkswagen then we stopped off the night I think it was in the car. The next day we continued driving through Sydney to here Narooma, driving along we saw this car parked at the side of the road I was driving Scott only drove for about 15 minutes the whole time then I did a u-turn and came back, parked next to his car and we got out and walked down the track to where he was fishing we were just talking about fishing and stuff then we walked back up to the car we both got our guns I walked down the track first. The bloke had his bucket and rod in his hand and was just walking back up the track that's when I shot him about three times and he started staggering around a bit I shot the magazine in him. As I was shooting Scott must have come down because when I had finished shooting he was standing next to me then Scott just shot him twice and I took his wallet out of his back pocket then we both ran up to the car. I gave the wallet to Scott and we drove off, Scott went through the wallet and then he threw it out the window. … Q 51 Did you or rather why did you particularly want to kill Mr Breust? A. I just wanted to kill anyone it didn't matter that it was him or someone else. Other offences of which the applicant has been convicted 14 Following the murder of the deceased the applicant and Thompson continued driving south, into Victoria. The following day in East Gippsland they picked up a hitchhiker, Mark John Lynch, who was looking for a ride towards Sydney. The applicant executed a u-turn and stopped for Mr Lynch. He told Mr Lynch that there was some beer and marijuana in the boot of the car and he offered to share both with him. A short time later he stopped the vehicle. Mr Lynch alighted from it and the applicant fired a number of shots at him, one or more of which caused his death. He made full admissions of the murder of Mark Lynch in an interview with detectives from the Victoria Police which was described by Bongiorno J as chilling in its frankness. In the course of the interview his Honour recorded that the applicant offered as his explanation for the killing: I was bored, just wanted to shoot someone. We were going to call at houses and I just wanted to shoot people. 15 While the applicant was in custody awaiting sentence for the murder of the deceased, on 8 June 1987 he lured a fellow prisoner into a room at the Long Bay Remand Centre. He there struck his victim on the head with a short iron bar and attempted to cut his throat with a steak knife, which he had obtained the previous day with this purpose in mind. He was convicted at trial before Campbell J and a jury of the offence of wounding with intent to murder arising out of this incident. In his remarks on sentence Campbell J described the offence in these terms: It was a vicious, premeditated attack, entirely without justification or motive, other than the prisoner's pleasure in killing. On 17 November 1988 his Honour sentenced the applicant to a term of penal servitude for 10 years, to commence at the end of the concurrent sentences of 15 years' penal servitude imposed by Finlay J. His Honour declined to fix a non-parole period. The psychiatric assessments of the applicant at the time of the offence 16 The reports of a number of psychiatrists who assessed the applicant around the time of these events are in evidence. Dr Barclay's report, dated 22 October 1986 based, upon his assessment of the applicant at an interview conducted on 3 September 1986. He reported that: I asked Norrie how he would compare shooting someone with having sex and he replied "I would much prefer to do that (shoot someone) than to have sex. It is a new experience totally." I asked him would he do it again and he replied, "yes". And I asked him why, and he replied "it's a total release from the world. It's just completely different. Not everyone can do it. If you can do it. It makes you feel completely good and different." Norrie then went on to say that if he had been able to get into the Army he would not have been content just to drive a truck he would have wanted to get overseas to do some shooting. In response to my query did he mean to kill people, he replied "yes". He said that the publicity associated with what he has done is not important. He said "I just did it for total release, not publicity. I would prefer that other people don't know what I have done. It's a personal thing. Some people like getting drunk, using drugs. I don't know any of that. Dr Barclay concluded that the applicant is a psychopath. He commented that the applicant presented as a person who displayed a consistent dislike for association with other people and who was unable to sustain any close relationship for a long period of time. Psychological testing revealed him to be of low average intelligence. 17 Dr Wong in his report, dated 7 April 1987, detailed his assessment of the applicant based on an interview conducted on 19 March 1987. He said this: Regarding the present alleged offences, he said he left his job as he had "enough of everything" and wanted to have some fun. He thought of shooting cars and people and decided on the shooting trip two days before he and the co-accused commenced their trip. He said he could no longer derive any thrill from shooting at inanimate objects, so he felt he had to do something different. He said he never considered what his action would to the victims. Even now he "does not think about it at all". I then went more closely into his feelings concerning the alleged offences: Q. Two people were shot dead through no fault of theirs. Does that mean anything to you? A. No, not really. Q. You don't feel sorry for what happened? A. No, not at all. I had a good time. Q. Given the opportunity would you do it again? A. Oh yes, I would. I had a good time. Q. You think it is odd that you feel this way about it? A. No, I just enjoyed doing it. Q. If it would give you a good feeling would you do it to anyone? A. Yes, it does not matter so long as it gives me a good feeling. Q. Would you do it to your grandparents? A. I would now. Q. Why now and not before? A. Before I did not know how good it would feel shooting people; I do now. Q. So you would not hesitate doing it to your grandparents who are closest to you? A. No, not at all. In Dr Wong's opinion there was nothing in the applicant's presentation which was suggestive of a formal mental illness. He considered that the applicant exhibited extreme callousness and a total inability to experience the basic emotions with which human beings are normally endowed. In his opinion, the applicant manifested a profound personality disorder of the schizoid type. This applies to individuals who demonstrate defects in the motivation and capacity to form relationships or to become emotionally involved with others, but who do not have other abnormalities of thinking, perception or behaviour. Dr Wong considered the applicant to have the characteristics of schizoid personality to an extreme degree. 18 Dr Milton assessed the applicant at an interview on 27 May 1987. In his report he said that the applicant described fantasies of killing people: going to K-Mart with a couple of others armed with shotguns and "just start shootin' people". Dr Milton noted that the applicant showed little feeling during the interview. He reported that the applicant did not seem to wish to impress, but rather to simply relate what had happened in a flat and rather dull fashion. In Dr Milton's opinion the applicant did not appear to be suffering from a psychosis. He commented on features of the applicant's personality and placed particular emphasis on his inability to form relationships. 19 Dr Shand in his report, dated 29 June 1987, recorded the history that he obtained in an interview with the applicant conducted on 27 June 1987. This included that the onset of homicidal impulses dated to when the applicant was aged 14 or 15 years. Dr Shand noted that the applicant acknowledged the satisfaction that his destructive and homicidal behaviour gave him and that he had volunteered that he had tried to kill another prisoner and that he would do so again if taken out of segregation. In Dr Shand's opinion, the applicant exhibited a severe and intractable personality disorder of the psychopathic type. Dr Shand concluded: He remains unconcerned about a life long prison sentence apart from the loss of freedom involved, and sees it as a desirable opportunity to "bash, stab and kill" more people. Unless there is some subtle neurological basis for such behaviour, there is certainly no treatment for his personality disorder and prognosis for recovery or improvement is zero. He should never be released to the community and will represent a continuing and serious threat to the physical well-being and safety of prisoners and prison staff alike. He is a man of average intelligence with no signs of psychosis. He is fit to plead and instruct counsel. He has no defence under the McNaghten Rules. I feel required to add that he is the most extreme case of this type that I have examined during twenty-five years of forensic work. Clause 7 of the Act 20 In considering the application the Court is to have regard to the matters set out in cl 7 of Sch 1, which provides: 7(1) In considering an application referred to in clause 2(1), the Supreme Court is to have regard to: (a) any reports on the offender made by the Review Council, and any other relevant reports prepared after the offender was sentenced, that are available to the Supreme Court, and (b) the need to preserve the safety of the community, and (c) the age of the offender (at the time the offender committed the sentence and also at the time the Supreme Court deals with the application), and (d) in the case of an offender sentenced before January 1990 (the date on which section 463 of the Crimes Act 1900 was repealed by section 5 of the Prisons Serious Offender Review Board) Amendment Act 1989), the fact that the sentencing court: (i) would have been aware that an offender sentenced to imprisonment for life was eligible to be released on license under section 463 of the Crimes Act 1900, and (ii) would have been aware of the practice relating to the issue of such licenses, and (e) any other relevant matter. (2) The regulations may make provision for or with respect to reports referred to in subclause (1), including provisions relating to the matters to be dealt with in reports and the making of reports available to the Supreme Court. (3) In considering an application referred to in clause 2(1), the Supreme Court: (a) must have regard to and give substantial weight to any relevant recommendations, observations and comments made by the sentencing court when imposing the sentence concerned, and (b) must give consideration to adopting or giving effect to the substance of any such recommendations, observations and comments and the intention of the sentencing court when making them, and (c) to the extent that it declines to adopt or give effect to any such recommendations, observations and comments, must make a record of its reasons for doing so. (4) Subclause (3)(c) does not limit any other requirement that the Supreme Court has, apart from that paragraph, to record the reasons for its decisions. The SORC reports 21 The first report prepared by the SORC is dated 8 November 1995. Among the documents annexed to it is a report prepared by the Probation and Parole Service for the benefit of the Classification Committee, which is dated 3 September 1987. The author recorded that: He claims that he now feels some sorrow for the victims and their family as he now realises that they are "actual people" and not just targets. It is difficult to judge the level of contrition as he appeared to be still emotionless … . At the time of his initial classification on 11 September 1987 the applicant was being medicated with the psychotropic drug Largactil. 22 The applicant was transferred to the High Security Unit at Goulburn in January 1990 because of concerns reported by the Director-General of the Department of Corrective Services for the safety of staff and other inmates. 23 The SORC report records concerns that arose by reason of a letter that the applicant had written to the daughter of the deceased. It was dated 21 December 1989 and it read as follows: I hope you remember me I remember you very well, I also know where you live, so does Scott, we both only have three years left, before we are released, we both will be returning to Narooma to have a party with you, we cannot wait, please make sure you have plenty of friends and family at your place for Xmas 1992, it will save us time looking for them, we had a lot of fun with Ian. The effect of this letter on the family of the deceased is touched on in the victim impact statement to which I will come. 24 The applicant remained in the High Security Unit at Goulburn until January 1992. Thereafter he was classified as an A2 Prisoner protection status prisoner. The SORC noted that there had been disagreement about the diagnosis of the applicant's mental state and that for a time he had been transferred to the Morisset Psychiatric Hospital. He appears to have been held in custody at that for some months in 1988. Thereafter the Mental Health Review Tribunal determined that he was no longer a forensic patient and he was returned to the custody of the Department of Corrective Services. 25 The applicant was admitted to Ward D of the Long Bay Hospital following his discharge from the Morisset facility. 26 In a report prepared by a clinical psychologist at the Long Bay Prison Hospital, dated 10 October 1989, the applicant was recorded as saying that, "it's quite likely that I would kill someone again". At around the same time, in interviews with a Probation and Parole officer, the applicant was recorded as expressing a wish to be deported to England in order to join the Army and learn more about target shooting and other methods of warfare. The resume of the interview included: Eventually he sees himself in the role of superintendent in a giant death camp where half the world's population will be exterminated to alleviate what he perceives as current gross over population and then he plans to "weed the bad apples" out of what is left. 27 A letter written by the applicant dated 19 January 1990 is annexed to the first SORC report and it includes the assertion, "I just want to kill thousands a day, I hate society, I want to rule forever … ". 28 Dr Gluckstern, the Director of Psychiatric Services of the Prison Medical Service, in a report dated 20 March 1990, observed: [T]here have been differences of opinion about this man's diagnosis; there have been one or two professionals (psychiatrists and psychologists) who believe that this man does suffer from paranoid schizophrenia. I do not share that view nor do the majority of psychiatrists who have seen Mr Norrie. There has never been any clear-cut psychiatric feature to suggest that he is psychotic. Andrew Norrie has an unquenchable desire to kill and I believe that it is this feature in his character which has made some people diagnose his condition as schizophrenia. I believe that he has had "murderous fantasies" since his adolescence and that he derives some sexual gratification from these fantasies. I think most psychiatric opinions about Andrew Norrie agree with my view that he is not suffering from a psychotic illness. Be that as it may I think the important thing is to realise that this man has an unabated urge to kill, it certainly has not altered with medication or with any other form of psychological intervention. I cannot foresee a time when Andrew Norrie's urge to kill would subside and would therefore advise he should not be considered for release in the foreseeable future. 29 It appears from an examination of the materials annexed to the SORC report that the applicant had come under Dr Gluckstern's care on 20 July 1989 and that he continued to have contact with him until his transfer to the High Security Unit, Goulburn in January 1990. 30 A senior prison officer attached to the High Security Unit at Goulburn reported that the applicant was a polite and respectful inmate, but noted that he was reluctant to associate with other inmates, even within the Protection Unit. He was given the position of sweeper in the Segregation Unit and he responded well in this role. 31 In March 1993 Dr Koller, a visiting psychiatrist, reported that the applicant had a history of schizophrenia and noted that he had complained of obsessional thoughts of mutilation and of dead bodies. Dr Koller considered that the applicant had become anxious and agitated as the result of mixing with too many people. At this time it appears that the applicant was being treated with the use of major tranquilizers. Dr Koller described the applicant's presentation at examination as mentally well and in touch with reality. 32 The applicant was transferred as a protection prisoner to the Maitland Prison in October 1994. He was moved from strict protection to a lesser level of protection and he became aggressive and threatening towards officers and inmates. His behaviour was monitored by officers and medical staff and he was described as settling down and assimilating into the normal Wing routine. His case officer noted that he was extremely moody. 33 The applicant was transferred from Maitland to the Lithgow Correctional Centre. Shortly after this, on 14 September 1995, he engaged in an act of relatively minor self mutilation using a concealed razor blade. After this incident he settled down and was reported to be associating with other inmates. 34 A supplementary report by SORC, dated 20 October 2005, annexes copies of reports and recommendations made during the applicant's custody in the Lithgow Correctional Centre. 35 In 1996 the Visiting Committee reported that the applicant was participating in psychological counselling regularly. 36 The SORC report records that the applicant has not presented as a management problem since his return to New South Wales following the proceedings in Victoria. 37 The staff at Lithgow reported that the applicant's behaviour and attitude were satisfactory, but that as he was on strict protection at his own request. This classification prevented him from engaging in employment. The Chairperson of the SORC reports that the applicant's life sentence has the effect that he is ineligible to undertake major therapeutic programs that would otherwise be available to inmates at high risk of violent recidivism. His access to programs is also severely restricted by reason of his strict protection status and his A2 classification. The more recent psychiatric assessments 38 Dr Walton examined the applicant on 4 February 2001 at the Port Philip Prison for the purpose of preparing a report for the forthcoming Victorian proceedings. Dr Walton recorded that: Mr Norrie now states "I feel pretty bad. I'm not religious but it's wrong to go around and kill people, taking their lives when they could be going around doing things and instead they're dead". This statement was uttered without obvious emotional accompaniments indicative of sorrow or remorse. 39 Dr Walton commented on the observations of the psychiatrists who had assessed the applicant over the years noting that a definitive diagnosis of schizophrenia had not been made, but that the applicant had undergone extended treatment with antipsychotic medication. This had been withdrawn 18 months prior to the date of his report and there had been no emergence of obviously psychotic phenomena following its cessation. Dr Walton commented that there appeared to be no family history of criminal conduct or of mental illness. At the time of examination Dr Walton saw no evidence that the applicant had any deluded beliefs and he presented as cognitively intact. He gave an account that at the time of the killing he had experienced some disruption in his thinking with intrusive thoughts. He told Dr Walton that he had not experienced such notions in the past four years or so. Dr Walton observed: Mr Norrie was adamant that he would not re-offend but he frankly admitted that he found it difficult to provide convincing arguments to others as to why this may be the case. At a concrete level he stated "I just don't want to come back to jail", but he seemed to be struggling to make some expression of morality, he adding "I don't want to kill. I don't want to do anything wrong". … It is very tempting in the face of the extreme type of apparently purposeless and unmotivated violence which this man has exhibited to search for psychiatric explanations of such behaviour. I am quite convinced that Mr Norrie's offending is not on the basis of any imposed mental illness but I remain frustrated in terms of lacking understanding into the development of his particular personality of a type which would allow such behaviour to emerge. It would seem unlikely that any psychiatrist will gain that insight at this late stage. However, without doubt, Mr Norrie does suffer from a significant personality disturbance. There are some indications that a degree of psychological maturation may have occurred, for example, he clearly can express that his behaviour was morally wrong and he is able to articulate a degree of victim empathy, albeit that not accompanied by what would be the usual parallel emotional expression, and I suspect that that is but one demonstration in this man's character. That underdevelopment is likely to be permanent. ... I would not describe the prognosis as unremittingly gloomy but I could be no more specific than that. 40 Dr Lucas carried out a psychiatric assessment of the applicant in connection with the present application on 27 July 1998. He interviewed the applicant at the Lithgow Correctional Centre. At the time Dr Lucas had a copy of the SORC report of 8 November 1995, the Statement of Facts and the annexures thereto, which included the previous psychiatric assessments that I have referred to earlier in these reasons. Dr Lucas also had access to the applicant's clinical file at the Lithgow Correctional Centre, which contained a number of psychiatric reports and other documents that did not form part of the material attached to the SORC report or to the Statement of Facts. Following the interview Dr Lucas obtained the applicant's clinical file from the Morisset Hospital. He subsequently prepared a report dated 25 July 1999. 41 In his first report Dr Lucas commented that he had found the assessment difficult due to the applicant's personality traits and to the fact that he had not been especially forthcoming. At the time of 1998 interview the applicant was classified as an A2 inmate and it appeared that his classification would not be changed until his sentence was determined and the earliest possible release date known. At the time of this interview he had been in the Lithgow Correctional Centre for about three years, under the normal protection regime. He reported that he had been prescribed a variety of medications, mostly Melleril, which he was still taking at that time. 42 Dr Lucas obtained a history from the applicant that he had been born in the United Kingdom and that he had come to Australia at the age of 11 years. His father left the family when the applicant was aged two years. His mother had not talked about his father and the applicant was not curious. The applicant described his relationship with his mother as "alright", but said that they were not close and never had been. He is an only child. He reported that he had been a healthy child and that he had not suffered any abuse. He attended high school in Brisbane until the age of 15 years. He described his relationships with his peers at school as satisfactory and he said that he had got on well with his teachers. After leaving school he had worked at a variety of jobs; office cleaning, truck driving and factory work. In the main he had been in employment. 43 The applicant gave an account to Dr Lucas that he had been affected by alcohol at the time of his offences March 1986: he had got drunk in Brisbane and he had been drunk for the whole of the trip, from there to South Australia. This is in contrast with the account the applicant gave to the police at the time of these events. 44 The applicant told Dr Lucas that he would not shoot anyone again. His reason for confidence in this respect was that he did not want to keep going to gaol. He volunteered that "shooting that person didn't bother me the slightest". 45 Dr Lucas asked the applicant about how human life might be valued. He reported that the applicant responded that he did not know but, "a lot of people die every day, people always die, they get born". He said that at the time of his first admission to hospital at Long Bay he had a strong feeling that he wished to kill, but that since taking medication he had not felt so inclined and that all that he wanted to do was to sleep. When asked what he could put to the Court in support of his application for a determinate sentence the applicant told Dr Lucas that he wanted to stay out of prison. When asked what he would do if thoughts of killing returned after his release he said that he would take his treatment and that he would not get drunk. Dr Lucas noted that in previous assessments the applicant had appeared to be indifferent to what happened to him. When asked by him about the extent to which he cared about what happened to him the applicant responded, "a lot. I want to get things before I am too old or I'll never get a job". 46 Dr Lucas concluded in his first report that: His personality disorder is severe and includes schizoid, antisocial and borderline traits. If we put aside for a moment the possibility he has a history of schizophrenia, I think it is fair to say that Mr Norrie's personality disorder is extremely disabling, affecting him perhaps more than chronic psychosis does some people. 47 Dr Lucas assessed the applicant again on 19 March 2004. His second report is dated 3 May 2004. At this time he had access to the supplementary report of the SORC and to the report of Dr Walton. Dr Lucas commented that the applicant spoke well of his time at the Port Phillip Correctional Centre, commenting on the availability of educational programs and of access to computers. He reported having undertaken a number of programs including; anger management; coping with people and talking to them; cleaning and mathematics. He found these interesting and was generally positive concerning the administration of corrections in Victoria. In contrast he noted that in New South Wales many programs were not available unless a prisoner had achieved a C1 classification. Such a classification is only available a couple of years prior to release. The applicant also commented favourably of the facilities available in the cells in Victoria and on the quality of the food. 48 Dr Lucas detected a favourable change in the applicant's presentation in the March 2004 interview. On this occasion the applicant discussed his difficulty in experiencing emotion. Dr Lucas observed: I thought Mr Norrie's discussion, most of it quite spontaneous, indicated his awareness of his serious difficulties with expectations about emotional reactions and experiencing and understanding them. I thought this a considerable advance, it may well indicate an improvement in his insight and his ability to benefit from regular individual counselling. 49 At the time of this second interview the applicant reported that he was doing a tertiary preparation course. It was his intention to complete Years 11 and 12 and to undertake tertiary studies through the University of Southern Queensland. He expressed a liking for mathematics. In the course of this interview the applicant expressed himself as "100 percent" confident that if released he would not hurt or kill someone. 50 The applicant's account of his offences on this occasion was that most of the violence had occurred in the space of 24 hours. He said that he had just "blew up for 24 hours". He claimed that he was not really the criminal type: his only crimes were in this period and that the two people had been killed in the one day. 51 Dr Lucas considered the applicant's presentation in March 2004 to be consistent with the severe personality disorder that he had previously observed, which manifests as a mixture of schizoid, antisocial and borderline traits. He considered that the applicant had matured to some extent, but that he remained a rather damaged man with longstanding personality problems. In Dr Lucas' opinion the applicant is now accessible to a psychological approach and may benefit from a lengthy program with regular contact with an experienced psychologist. While Dr Lucas was of the opinion that the applicant's prognosis has improved since their initial interview he considered that it remained guarded. He concluded: Mr Norrie will always have certain personality traits affecting his ability to interact easily with others but if his account of the last few years is correct he has more capacity to change than previously thought. Given the extent of his difficulties any degree of change is worth not only his own efforts but those of the authorities. Dr Lucas considered that setting a non-parole period would be of benefit to the applicant and would admit of more realistic planning for his overall rehabilitation and release. 52 Dr Westmore examined the applicant on 10 October 2005. In contrast to the assertions that he made at the time of these events, the applicant told Dr Westmore that shooting his victims had not excited him. He said that he gone back to shooting at signposts and trees, having found that shooting people did not make him feel any different. When asked if he had regrets over shooting two people, he said: Back then I didn't care about nothing. Regrets, I didn't know those people, I wish I hadn't done it. Every time (now) on TV when I see people badly hurt, I feel sorry for them. He said that he would not kill again, observing "because I know not only that it is wrong, but I don't ever want to come back to gaol again". Dr Westmore asked if gaol had been difficult for him, and he replied, "no, not difficult, just boring". 53 Dr Westmore raised the letter that the applicant had written to the deceased's daughter in the course of the interview. The applicant acknowledged writing it and said he had done so "because they kept saying that I should be hung or put against the wall and shot. Other prisoners were reading these things and felt like hurting me". When asked if he had any further desire to have contact with his victims' families, he said, "no, I just wanted them to stop saying really bad things to me in articles". 54 The applicant was not taking any medication at the time of his interview with Dr Westmore. There was no evidence that he was psychotic. Dr Westmore noted that his affect and mood were both restricted, but that he was not suffering from a major depressive illness. He showed little to no emotional reactivity when discussing his history, including the history relating to the two homicides. Dr Westmore concluded that the applicant has a severe, profound personality disorder of the psychopathic type. He observed: His history and his behaviour indicate that he has been a profoundly disturbed individual. His current history and presentation would suggest some changes of a positive type although, like Dr Lucas, I would expect Mr Norrie to remain severely and significantly disturbed from an emotional perspective and in terms of his capacity for intimate relationships with others, for the rest of his life. 55 Among the material produced by the Victorian correctional authorities is a handwritten report dated 4 August 2000 by Dr Viswanathan, of the Institute of Forensic Mental Health, which is addressed, "To Sentence Management": Mr Norrie is charged with a bizarre murder which occurred approximately fourteen years ago. He is serving a maximum of life sentence on another murder which happened on the same day in NSW. He seems to have no remorse or give any reasons as to why they happened other than to say "I had to do it". He is at risk of repeating serious harm to others if allowed to share a cell. 56 A nursing note from the St Vincent's Hospital Psychiatry Outpatient Clinic dated 12 September 2000, records the following: Happy smiling presentation talking about shooting people as if it were everyday conversation – no remorse often presenting with childish giggling/gestures. The victim impact statement 57 Section 28(2) of the Crimes (Sentencing Procedure) Act 1999 provides that a victim impact statement may be received and considered by the court when determining an application under Sch 1 for the determination of a term and a non-parole period for an existing life sentence. I have received and considered the contents of the statement of Kay Pamela Breust, dated 8 September 2005. Mrs Breust says that since the day of the murder of her husband and up to the present she has been fearful and she has needed to take medication nightly in order to sleep. She continues to suffer from nightmares as the result of the offence. She describes the impact on herself and on other members of the family of the receipt of the applicant's letter in 1989. Mrs Breust states that since the date of her husband's murder she has endeavoured to cope as best she was able with the support of her family and friends but without any professional assistance. In light of the present application she has been advised by her treating doctor to seek counselling to assist her to deal with the ongoing effects of the offence and her fears stemming from it. The terms of the other sentences imposed on the applicant 58 Mr Craigie informed the Court that the concurrent sentences of 15 years that were imposed by Finlay J expired on 25 February 2002 after having been re-determined in accordance with the transitional provisions of the Sentencing Act 1989. He said that the sentence of 10 years' penal servitude imposed by Campbell J, which was directed to be served accumulatively to the 15 year term, will expire on 6 March 2011. The latter date is exactly 25 years from 6 March 1986. This would mean that the applicant's sentence had not been calculated in accordance with the transitional provisions of the Sentencing Act. Annexure "N" to the Statement of Facts is a copy of a letter prepared by the Manager of the Sentence Administration Unit which is dated 12 September 1995. It calculates the applicant's aggregate determinate sentence of 25 years from 6 March 1986 and states that it expires on 25 February 2002. I approach the present application upon the basis that the applicant has now served the determinate sentences imposed by Finlay J and Campbell J. 59 The non-parole period specified by Bongiorno J in the Supreme Court of Victoria in respect of the life sentence imposed on the conviction for the murder of Mark Lynch will expire on 6 June 2016. The applicant will have been in custody at that date for a period just in excess of 30 years. Determination of applications under Schedule 1 60 The Court may determine an application in relation to an existing life sentence by (i) setting a specified term for the sentence together with a non-parole period; or (ii) declining to set a specified term for the sentence but setting a non-parole period; or (iii) declining to set a specified term for the sentence and declining to set a non-parole period for the sentence. 61 Clause 6 of Sch 1 provides that in the event that the Court declines to set a specified term for an existing life sentence, or to set a non-parole period for the sentence, it may when making that decision, direct that the offender may never re-apply to the Court, or direct that the offender may not re-apply to the Court for a specified period of time. An order that the offender may never re-apply to the Court has the effect that he or she is to serve the existing life sentence for the term of his or her natural life. A direction under clause 6 that an offender may never re-apply to the Court, or that an offender may not re-apply to the Court for a period exceeding three years, may be given only if: (a) the offender was sentenced for the crime of murder, and (b) it is a most serious case of murder and it is in the public interest that such a direction be made. 62 In the event that the Court declines to specify a term for the sentence or a non-parole period but does not make an order under cl 6, the offender may not re-apply to the Court within the period of three years from the date of the determination: cl 6(3). The submissions 63 In the Crown's submission the Court should refuse the application and direct pursuant to clause 6(1)(a) that the applicant may never re-apply to the Court for a determination of a specified term or non-parole period for the sentence. 64 Mr Craigie's prime focus was on the power conferred by cl 4(1)(b) to decline to set a specified term for the sentence, but to fix a non-parole period. In his submission, it was appropriate to allow the possibility, no more, that at a stage in the future the Parole Board might determine that the applicant be released on parole. He laid emphasis on the duty of the parole authority, stated in s 135(1) of the Crimes (Administration of Sentences) Act 1999, not to make a parole order for an offender unless it is satisfied, on the balance of probabilities, that the release of the offender is appropriate in the public interest. 65 Mr Craigie observed that the murder of Mark Lynch occurred as part of the same series of events as the murder of the deceased. Bongiorno J had much the same material before him as is before the Court on the present application. In Mr Craigie's submission it would be anomalous for this Court to decline to set a non-parole period for this sentence and direct that the applicant never re-apply for the determination of a non-parole period when the Victorian Court had determined that it was appropriate to fix a non-parole period for a related offence. I am not persuaded that is so. Considerations of totality are not apt to the determination of the present application. Bongiorno J sentenced the applicant in circumstances that included that he was serving a sentence of life imprisonment and that this Court had not determined his application that a non-parole period be fixed in relation to it. I am required to consider his application by reference to the considerations to which Sch 1 of the Act directs attention. 66 In Mr Craigie's submission despite the applicant's grave criminality an examination of his progress over the past 20 years showed some signs of hope. In the late 1980's he had been subject to powerful homicidal urges. However these could be seen to have subsided. The overall picture that emerged from the reports of the officers and the psychologists was said to show incremental improvement. He was now said to be a more subdued individual who was showing some signs of insight. The significance of the reports in recent years was the absence of manifestations of the violent urges that had been present at the time of the offence and the applicant's somewhat muted acceptance of the moral wrongness of his conduct at that time. 67 Mr Craigie noted the psychiatric evidence pointed to the inevitability of institutionalisation with lengthy imprisonment. He submitted that there is a public interest in minimising the impact of institutionalisation by providing at least some modest prospect of supervised release into the community. 68 The Crown's submission was that in the case of an application for the determination of a term and a non-parole period for an existing life sentence involving an offence in which the level of culpability of the applicant for the offence is of an extreme nature falling within the worst case category, it was appropriate for the Court to decline the application and direct that the applicant may never re-apply to the Court. The Crown referred to a number of recent statements of principle concerning the sentencing of offenders for murder in circumstances that attract the provisions of s 61(1) of the Sentencing Procedure Act; R v Harris (2000) 50 NSWLR 409; R v Merritt (2004) 59 NSWLR 557 and R v Fernando (1999) NSWCCA 66. In Merritt Wood CJ at CL (with whose judgment Tobias JA and Hidden J concurred) said at 570; [52]: In my assessment, the primary focus of the legislation [s 61 of the Sentencing Procedure Act ] is directed towards how extreme the offender's culpability is. Both R v Harris and R v Miles , and the various decisions that have led to life sentences, have emphasised the importance of this factor, and for the need for the Court to find features of very great heinousness, along with the absence of any facts mitigating the seriousness of the crime. In these circumstances, I can see no reason why the section should not apply, if the culpability is so extreme that any combination of the stated indicia would lead to the view that the only sentence, that can be passed, is one of imprisonment for life. The applicant has been sentenced to imprisonment for life. My task is to determine the application in accordance with the provisions of Sch 1 of the Act. 69 Mr Craigie submitted that in determining an application under Sch 1 the Court is required have regard to, and give substantial weight, to any relevant recommendations, observations and comments made by the sentencing court when imposing the sentence concerned. He noted that the sentencing judge had not made a non-release recommendation (as that expression is defined for the purpose of Sch 1). My attention was also drawn to Finlay J's direction that a copy of his remarks were to be taken out and brought to the attention of the Parole Board so that it could take them into account "when and if it considers a date of release, and any conditions of release, in due course, of the prisoner Norrie" (ROS at 9). In Mr Craigie's submission Finlay J sentenced had the applicant in the expectation that he would be released at some future date and this was a matter to which the Court was to give substantial weight. 70 The fact that Finlay J contemplated that the Parole Board may give consideration to the applicant's release and that he did not make a non-release recommendation are not matters that to my mind are to be taken as providing support for the application. At the time Finlay J passed sentence, s 463 of the Crimes Act made provision for the release of life sentenced prisoners on licence as the result of executive action. His Honour's direction that his remarks on sentence be brought to the attention of the Parole Board so that it could take the matters set out therein into account, if and when it considered his release, does not convey that his Honour was of the opinion that he should be released at some time in the future. 71 There was no statutory basis for the making of a non-release recommendation and any such recommendation had no legal effect. Nonetheless, some judges considered it appropriate in a heinous case to make such a recommendation and other judges did not: Baker v R [2004] HCA 45; 78 ALJR 1483 per Gleeson CJ at 1487; [9]. Absent a finding that an offender's culpability for the crime of murder was significantly diminished by mitigating circumstances, the penalty fixed by law at the date the applicant stood for sentence was one of life imprisonment. This was the sentence that his Honour imposed. His findings concerning the circumstances of the offence and the applicant's culpability for it are consistent with a view that it fell within the worst category. Mr Craigie realistically accepted this to be the case. 72 The most recent psychiatric assessments of the applicant may be supportive of Mr Craigie's submission that he has matured to some degree. His homicidal urges appear to have subsided. He has not given into them for many years and he appears to have been generally non-violent and compliant within the prison setting. Nonetheless, the more recent psychiatric assessments do not seem to me to significantly qualify the opinions expressed in the reports of those who assessed him around the time of these events. They speak with one voice in describing the applicant as having a profoundly disturbed personality. The report of Dr Viswanathan and the nursing note made by staff at the psychiatric outpatient clinic in Victoria undermine Mr Craigie's submission that the picture from the mid 1990's has been one of gradual improvement. It is troubling that after more than 14 years in custody, when he was nearing 40 years of age, the applicant should still be speaking of shooting people. His apparent inability, as recently as October 2005, to comprehend the enormity of his conduct in writing his chilling letter to the daughter of his victim is to my mind equally troubling. 73 In determining the application I have regard to the protection of the community as the predominant consideration. This does not admit of significant weight being given to the possibility that the applicant's rehabilitation may be promoted by fixing a non-parole period. His offence was one of great heinousness and he is dangerous. I do not accept Mr Craigie's submission that the interests of the community may be taken to be adequately protected by a consideration of the statutory duty that is imposed on the parole authority. 74 The material adduced on the application does not persuade me that the applicant's progress has been such that it would be appropriate to specify a non-parole period in respect of the sentence. I am mindful that in recent years the applicant has shown an interest in being released from gaol and that his account of the circumstances of his offences given to Dr Walton, Dr Lucas and Dr Westmore differs from that given to the psychiatrists who examined him at the time of the events and to the police. At that time he did not say that he had been affected by alcohol or intrusive thoughts. 75 I am satisfied that the murder of the deceased was a most serious case of murder and that it is in the pubic interest that the applicant not re-apply to the Court for a period exceeding three years. I consider that a lengthy period should be specified before the applicant may be permitted to re-apply to the Court. In my view the heinousness of the offence and the danger that the applicant poses to the community do not admit of his conditional release on parole for a very long time, if at all. However, I acknowledge that there may come a time when he may not present a danger to the community and when the other purposes of punishment will have been met. For this reason I do not propose to direct that he may never re-apply to the Court. I have determined that he should not be permitted to re-apply to the Court for a period of 20 years from today's date. ORDERS 1. Pursuant to cl 4(1)(c) of Sch 1 of the Crimes (Sentencing Procedure) Act 1999 I decline to specify a term for the life sentence imposed on Andrew Mark Norrie on 31 July 1987 and I decline to specify a non-parole period for the said sentence; 2. Pursuant to cl 6(1)(b) of Sch 1 of the Crimes (Sentencing Procedure) Act 1999 I direct that Andrew Mark Norrie not re-apply to the Court for a period of 20 years' from today's date for the determination of a term and a non-parole period for the sentence referred to in order 1. ********** 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.