New South Wales Supreme Court CITATION : ASP v R [2007] NSWSC 339 HEARING DATE(S) : 23 February 2007, 27 February 2007, 1 March 2007 JUDGMENT DATE : 13 April 2007 JUDGMENT OF : Johnson J at 1 DECISION : 1. Application to redetermine life sentence refused; 2. Direct that Applicant not reapply to Court for redetermination for a period of seven years. CATCHWORDS : SENTENCING - application to redetermine life sentence imposed in 1988 - abduction, sexual assault and murder of victim - offences committed whilst on parole for sexual assault offences - applicant committed other offences of abduction and sexual assault in month prior to murder - lengthy determinate sentences imposed for other offences - whether offence constituted a "most serious case of murder" - application of totality principle where life sentence imposed together with lengthy determinate sentences - later incident of sexual assault in prison in 1993 - relevance of later incident to redetermination application - preservation of safety of community - offender with dangerous propensity to commit offences of abduction and sexual assault in 1980s - assessment of prospects of rehabilitation and risk of reoffending - public interest - application refused - applicant precluded from making further application for seven years Crimes (Sentencing Procedure) Act 1999 Children (Criminal Proceedings) Act 1987 LEGISLATION CITED : Evidence Act 1995 Crimes Act 1900 Sentencing Act 1989 R v Archer (Court of Criminal Appeal, 21 August 1987, unreported) Charara v Director of Public Prosecutions (NSW) (2001) 120 A Crim R 225 Douar v The Queen (2005) 159 A Crim R 154 Weininger v The Queen [2003] 212 CLR 629 Briginshaw v Briginshaw (1938) 60 CLR 336 The Queen v Olbrich (1999) 199 CLR 270 Collins v R [2006] NSWCCA 162 R v Previtera (1997) 94 A Crim R 76 R v Slater (2001) 121 A Crim R 369 R v FC and JD (2006) 160 A Crim R 392 Ibbs v The Queen (1987) 163 CLR 447 R v Garforth (Court of Criminal Appeal, 23 May 1994, unreported, BC9402546) R v Fernando (1997) 95 A Crim R 533 R v Twala (Court of Criminal Appeal, 4 November 1994, unreported) R v Purdey (1993) 31 NSWLR 668 CASES CITED : R v Fernando [1999] NSWCCA 66 Veen v The Queen (No. 2) (1988) 164 CLR 465 R v MAK and MSK [2006] NSWCCA 381 R v Salameh [1999] NSWCCA 300 R v Maiden [2000] NSWCCA 519 R v Malcolm (1991) 58 A Crim R 148 R v Page [2002] NSWSC 1067 R v Towner [2002] NSWSC 951 R v Clarke [1999] NSWSC 1225 R v Clarke [2005] NSWSC 413 R v Harris (2000) 50 NSWLR 409 R v Kalajzich (1997) 94 A Crim R 41 R v Qutami (2001) 127 A Crim R 369 R v Palu (2002) 134 A Crim R 174 Baker v The Queen [2004] 223 CLR 513 R v Boyd (1995) 81 A Crim R 260 R v Jamieson (1992) 60 A Crim R 68 PARTIES : ASP (Applicant) Regina (Respondent) FILE NUMBER(S) : SC L2001/03 COUNSEL : Mr P Kintominas (Applicant) Mr L Lamprati SC with Ms N Noman (Respondent) SOLICITORS : BJ Murphy Angelovski & Associates (Applicant) Director of Public Prosecutions (Respondent) LOWER COURT FILE NUMBER(S) : --- LOWER COURT DATE OF DECISION : --- LOWER COURT MEDIUM NEUTRAL CITATION : --- IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST Johnson J 13 April 2007 L2001/03 ASP v Regina JUDGMENT 1 JOHNSON J: This is an application under s.44(5) Crimes (Sentencing Procedure) Act 1999 ("the 1999 Act") in which the Applicant, ASP, seeks an order determining a specified term and a non-parole period with respect to a sentence of life imprisonment imposed by Hunt J in the Supreme Court of New South Wales at Sydney on 14 October 1988, following his plea of guilty to murder. 2 The Crown opposes the redetermination application and submits that the Applicant ought be precluded from making further application for a period of 10 years. I have decided to refuse the application and to direct that no application may be brought for a period of seven years. The Applicant, the Crown and the community are entitled to have my reasons for reaching this conclusion. Use of Pseudonyms in Judgment 3 A number of persons will be referred to in this judgment by the use of initials, and not names. There are several victims of sexual assault committed by the Applicant in the 1980s, one of whom is the victim of the murder for which the Applicant was sentenced to imprisonment for life. Each of these victims will be referred to by initials only, in accordance with contemporary law and practice. 4 In addition, I have made an order that the Applicant be referred to by his initials only. As will be seen, the Crown called, as witnesses on this application, the Applicant's daughter, Miss X, and his former wife, Mrs Y. Their evidence related to an alleged sexual assault by the Applicant upon Miss X during a gaol visit in about 1993. To refer to the Applicant by name would serve to identify his daughter. To permit appropriate reasons to be given in this judgment, but at the same time to guard against identification of the Applicant's daughter, both the Crown and counsel for the Applicant submitted that the appropriate course was to refer to the Applicant by initials only in this judgment: s.11(1)(b),(c) Children (Criminal Proceedings) Act 1987. I accept this submission and have adopted this approach. The Present Application 5 By application filed on 27 August 2001, the Applicant sought redetermination of his life sentence under s.44(5) of the 1999 Act. 6 The hearing of the application commenced before me on 23 February 2007 and continued on 27 February and 1 March 2007. Mr Kintominas of counsel appeared for the Applicant. Mr Lamprati SC and Ms Noman appeared for the Crown. 7 A number of documents were tendered at the hearing. The Crown tendered a Statement of Facts dated 10 April 2003 and annexures (Exhibit A), a report of the Serious Offenders Review Council ("SORC") dated 8 May 2002 and annexures (Exhibit B), a supplementary SORC report dated 19 September 2006 and annexures (Exhibit C), a report of Dr CL Wong, psychiatrist, dated 25 October 2006 (Exhibit D), a supplementary report of Dr Wong dated 2 November 2006 (Exhibit E), a victim impact statement of RS, the mother of the murder victim (Exhibit F) and the affidavit of Miriam Rottenberg affirmed 27 October 2006 and annexures (Exhibit G). 8 The Applicant tendered a Notice of Reply to the Statement of Facts dated 13 April 2006 together with a report of Dr William Lucas, psychiatrist, dated 27 February 2006 (Exhibit 1). 9 Dr Wong gave oral evidence and was cross-examined on his reports (T26-46, 23 February 2007). 10 As mentioned, the Crown called two witnesses, Miss X and Mrs Y, who gave oral evidence on 23 and 27 February 2007. Miss X had given a signed statement to police on 2 July 2004 (Annexure G to Exhibit G). Mrs Y had given a signed statement to police on 28 May 2004 (Annexure H to Exhibit G). Mr Kintominas objected to the tender of these statements by the Crown upon a number of bases. On 23 February 2007, I admitted the statements into evidence. 11 Put shortly, Miss X alleged that the Applicant had sexually assaulted her by inserting his fingers in her vagina during a contact visit at Lithgow Correctional Centre in about 1993 when she was about five years of age. In her police statement, Mrs Y stated that Miss X had complained to her of such an event soon after it occurred, and that she had spoken to the Applicant thereafter by telephone and in person, at which time he admitted that he had done what Miss X alleged. For reasons which I will elaborate upon later in this judgment, I ruled that such evidence was relevant and admissible on a life sentence redetermination application given the factors to be taken into account under Schedule 1 to the 1999 Act, and generally, on such an application. 12 I should observe, at this point, that when Miss X and Mrs Y came to give evidence, they did not adhere to their statements to police and asserted that the Applicant had not so acted towards Miss X. The Crown was granted leave to cross-examine both witnesses as unfavourable witnesses under s.38 Evidence Act 1995. I will return to the evidence of these witnesses later in this judgment. 13 The Applicant did not give evidence or adduce oral evidence from any witness on the application. The Statutory Scheme for Redetermination of Life Sentences 14 The present application falls to be determined under Schedule 1 of the 1999 Act. Clause 2, Schedule 1, 1999 Act provides for applications to be made: " Applications for determination of non-parole periods (1) Subject to any direction under clause 6, an offender serving an existing life sentence may apply to the Supreme Court for the determination of a term and a non-parole period for the sentence. (2) An offender is not eligible to make such an application unless the offender has served: (a) at least 8 years of the sentence concerned, except where paragraph (b) applies, or (b) at least 30 years of the sentence concerned, if the offender is the subject of a non-release recommendation. (3) An offender who is the subject of a non-release recommendation is not eligible for a determination referred to in subclause (1) unless the Supreme Court, when considering the offender's application, is satisfied that special reasons exist that justify the making of such a determination." 15 The Applicant has served at least eight years of the sentence concerned and is eligible to make the present application: cl.2(1), Schedule 1, 1999 Act. Clause 3, Schedule 1, 1999 Act provides for the Court to have regard to certain matters on an application: " Matters for consideration by Supreme Court (1) In considering an application in relation to an existing life sentence, the Supreme Court is to have regard to: (a) all of the circumstances surrounding the offence for which the sentence was imposed, and (b) all offences, wherever and whenever committed, of which the offender has been convicted. so far as this information is reasonably available to the Supreme Court. (2) The reference in subclause (1) (b) to an offence of which an offender has been convicted: (a) includes: (i) any offence in respect of which a court has found the offender guilty but has not proceeded to conviction, and (ii) any offence taken into account when the offender was sentenced, but (b) does not include: (i) an offence for which a conviction or finding of guilt has been quashed or set aside within the meaning of Part 4 of the Criminal Records Act 1991, or (ii) an offence of a class or description prescribed by the regulations." 16 Clause 7, Schedule 1, 1999 Act requires the Court to have regard to a number of specific factors on an application: " Matters relating to exercise of Supreme Court's functions (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 offence and also at the time the Supreme Court deals with the application), and (d) in the case of an offender sentenced before 12 January 1990 (the date on which section 463 of the Crimes Act 1900 was repealed by section 5 of the Prisons (Serious Offenders 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 licence under section 463 of the Crimes Act 1900, and (ii) would have been aware of the practice relating to the issue of such licences, 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." 17 Clauses 4 and 5, Schedule 1, 1999 Act provide for the powers of the Court on an application, and the effect of a determination to set a non-parole period: "4 Determination of application (1) The Supreme Court may dispose of an application in relation to an existing life sentence: (a) by setting a specified term for the sentence together with a non-parole period for the sentence, or (b) by declining to set a specified term for the sentence but setting a non-parole period for the sentence, or (c) by declining to set a specified term for the sentence and declining to set a non-parole period for the sentence. (2) The Supreme Court may set a specified term and a non-parole period for an existing life sentence even though the Court was not the sentencing court. (3) In the case of an offender who is the subject of a non-release recommendation, the Supreme Court may dispose of an application in relation to an existing life sentence: (a) by setting a non-parole period for the sentence, or (b) by declining to set a non-parole period for the sentence, but does not have jurisdiction to set a specified term for the sentence. 5 Effect of determination to set a non-parole period (1) A non-parole period arising from a determination referred to in clause 4 (1) or (3) is taken to have commenced on the date on which the sentence commenced or, if the offender was remanded in custody for the offence, the date on which the first such remand commenced. (2) If the Supreme Court sets a specified term for an existing life sentence, the existing life sentence is taken to have been replaced by a sentence of imprisonment for the term so specified. (3) The term of the sentence, and any non-parole period, are to be taken to have been set under section 44, but are not required to comply with the other provisions of Division 1 of Part 4." 18 Clause 6, Schedule 1, 1999 Act provides that the Court may prohibit further applications by an unsuccessful applicant, either permanently or for a period exceeding the statutory minimum period of three years: " Supreme Court may prohibit further applications (1) If the Supreme Court declines to set a specified term for an existing life sentence or to set a non-parole period for the sentence, the Court may (when making that decision) direct that the offender who made the application: (a) may never re-apply to the Court, or (b) may not re-apply to the Court for a specified period of time. (2) If the Court gives a direction under this clause that an offender may never re-apply to the Court, the offender is to serve the existing life sentence for the term of the person's natural life. (3) If the Court does not give a direction under this clause, the offender may not re-apply to the Court within the period of 3 years from the date of the Court's decision not to give the direction. (4) A direction under this clause that an offender may never re-apply to the Court or may not re-apply to the Court for a period exceeding 3 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." 19 The Crown submits in this case that the application should be refused and a direction given under cl.6(1)(b) that a further application may not be brought for a period of 10 years. Circumstances Surrounding the Offence of Murder 20 The Court is required to have regard on the application to all of the circumstances surrounding the offence of murder for which the sentence was imposed: cl.3(1)(a), Schedule 1, 1999 Act. 21 On 14 October 1988, the Applicant was sentenced by Hunt J for a series of offences, including the murder of KS. The Applicant was sentenced at the same time for a group of offences committed against another victim, LB, a month prior to the murder of KS. I will outline the facts of the Applicant's offences against LB later in this judgment (at paragraph 48). In this part of the judgment, I will confine attention to the circumstances of the offence of murder to which the present application relates. Abduction, Sexual Assault and Murder of KS 22 At about 6.30 am on Friday, 2 October 1987, KS, who was 20 years of age, left her home to walk to Guildford railway station to catch the train to work. KS had suffered a stroke when she was nine years old, which had left her partially paralysed down her left side. She walked with a pronounced limp and had very limited use of her left arm. Despite her disabilities, she held the position of acting supervisor within the Department of Transport and Communication at the time of her death. 23 The Applicant, who was then aged 27 years, and on parole, approached KS and asked her to help him start his car which was parked in Stimpson Street, Guildford. When they reached the vehicle, the Applicant pushed KS into the front seat. Although the Applicant denied that she struggled, a witness heard KS screaming and saw her being pushed into the car, and took down the registration number of the vehicle. The Applicant later told police that he may have hit KS on the nose at this time, because it was bleeding. KS said that she wanted to get out of the car, but the Applicant kept on driving. 24 Four other women identified the Applicant as having approached them on the morning of 2 October 1987 at Guildford, Fairfield and Villawood prior to the abduction of KS. 25 The Applicant drove a number of kilometres to the Erskine Park area where he took KS into a paddock. He removed her pants and had sexual intercourse with her. When he finished doing so, KS apparently heard a vehicle pull up and she started to call out. The Applicant took out a knife that he had with him, which was about eight inches long and half-to-one inch wide, and stabbed her a number of times with the intention of killing her. The Applicant placed the body of KS in a shallow pool of water and left her there. 26 KS had a stab wound to her right breast where the knife punctured her lung and caused her death. She had wounds to her left arm, shoulder and to her right eye. There were other lacerations and bruises to her mouth and about her body. There was a large haematoma on the right side of her head, which had been inflicted prior to her death. 27 KS' mother, RS, reported her missing when she failed to return home that evening. 28 About 1.30 pm on Sunday, 4 October 1987, a 14-year old boy was riding his bicycle in the bushland area in the vicinity of Mamre Road and Erskine Park Road, Erskine Park. He discovered the semi-naked body of KS, partially submerged in a shallow creek. He also found a bundle of clothing near the body. Police were then called to the scene. 29 On 5 October 1987, a woman informed police that she had seen a photograph of KS on a television news broadcast, and recognised her as being identical to a girl she had seen being forced into a motor vehicle in Stimpson Street, Guildford, shortly after 6.35 am on 2 October 1987. The witness had been inside her first-floor home unit when she heard a woman screaming. She walked out onto her balcony and saw KS struggling with a man who forced her into a green-coloured vehicle. The witness provided police with the registration number and enquiries revealed that the vehicle was registered in the name of the Applicant. 30 Police went to the Applicant's home at about 10.30 pm on 5 October 1987. The Applicant hid in the ceiling of a bedroom and refused to come down. At about 12.20 am on 6 October 1987, the Applicant came down from the ceiling and was conveyed to Penrith Police Station where he was interviewed. He gave a signed record of interview in which he admitted to being the person responsible for the death of KS. He stated that he took her to the bushland area where he had sexual intercourse with her and then stabbed her with a knife and put her body into the water. He then disposed of some of her belongings after removing about $70.00 from her handbag. He stated that he then went to the vicinity of Bankstown Airport where he threw the knife into the Georges River. He then went home, got changed and went to work. The Applicant told police that he did not know KS prior to seeing her on 2 October 1987, and that he had approached her with the intention of having sexual intercourse. He stated that, at the time of the commission of the offence, he was not affected by alcohol or drugs, nor had he been taking any medication. 31 In his record of interview with police on 6 October 1987 concerning the abduction, sexual assault and murder of KS, the Applicant mentioned a number of matters which are presently relevant. The Applicant had been living with his then girlfriend (and later wife, Mrs Y) for about six or seven months (Q/A8). The Applicant was employed as a storeman at Marrickville and had attended work on Friday, 2 October 1987 at 8.20 am (Q/A9-21). The Applicant said that he was carrying the knife "just in case I needed to persuade her to get in [his vehicle]" (Q/A90). The Applicant said that he produced the knife to "shut her up from yelling but it didn't so I stabbed her" with his intention being "I suppose to kill her" (Q/A91-92). He said that he was concerned that she may be able to identify him "until she started screaming" (Q/A93). 32 A conversation with Detective Sergeant Myers before the commencement of the record of interview included the following exchange: "MYERS: Why did you kill her? APPLICANT: After we had intercourse she was screaming. MYERS: Were you going to let her go if she had not screamed? APPLICANT: No I planned to do it. MYERS: Were you in a frenzy? APPLICANT: No I knew what I was doing. MYERS: What happened after you stabbed her? APPLICANT: I put her in the water and left." 33 On the morning of 6 October 1987, the Applicant took police to the crime scene and other locations where he indicated what had taken place on 2 October 1987. A search of the areas indicated by the Applicant failed to locate the murder weapon or the property of the victim. Proceedings Against the Applicant 34 The Applicant was charged with the murder of KS and abduction of KS with intent to carnally know her. 35 At that time, the Applicant was asked questions in relation to offences against LB committed on 4 September 1987. He declined to answer those questions. On 6 October 1987, the Applicant was charged with the forcible abduction and sexual assault of LB on 4 September 1987. 36 The Applicant did not apply for bail. He appeared at Penrith Local Court on 6 October 1987 and, on 16 November 1987, was committed for trial for the abduction and murder of KS. 37 On 7 March 1988, a bill was found against the Applicant for murder, abduct female with intent to carnally know and having sexual intercourse without consent with KS. 38 On 17 May 1988, the Applicant appeared for committal proceedings at Penrith Local Court on the charges relating to LB. At that time, he indicated to the officer in charge of the investigation that he intended to plead guilty to those charges and to the abduction, sexual assault and murder of KS. 39 On 26 May 1988, the Applicant was committed for sentence on charges of forcible abduction of LB with intent to carnally know her, administering a stupefying drug to LB with intent to commit an indictable offence and stealing property of LB. 40 On 26 August 1988, all matters in relation to both victims were stood over for sentence on 14 October 1988. Sentencing Hearing Before Hunt J 41 On 14 October 1988, the Applicant was indicted before Hunt J on seven counts: (a) abduction with intent to carnally know KS: s.89 Crimes Act 1900 ; (b) sexual intercourse without consent with KS: s.61D Crimes Act 1900 ; (c) murder of KS: s.19 Crimes Act 1900 ; (d) forcible abduction with intent to carnally know LB: s.89 Crimes Act 1900; (e) administer a stupefying drug to LB with intent to commit an indictable offence: s.38 Crimes Act 1900 ; (f) sexual intercourse without consent with LB: s.61D Crimes Act 1900 ; (g) stealing property of LB: s.117 Crimes Act 1900. The Applicant pleaded guilty to all counts on the indictment. 42 At the sentencing proceedings, the Crown called Detective Sergeant Anthony, Detective Sergeant Myers and Dr William Barclay to give evidence. A report of Dr Barclay dated 27 September 1988 was tendered. Dr Barclay had interviewed the Applicant at the Metropolitan Remand Centre, Long Bay on 13 September 1988. At the insistence of the Applicant, the interview took place in the presence of the Applicant's wife, Mrs Y. Dr Barclay reported that the Applicant told him that "speed and alcohol triggered it off - and problems in myself as well". The Applicant described regular use of cannabis. Dr Barclay said (page 3 of report): "The only mitigating circumstance one can see in this offence is [ASP's] use of amphetamine or an amphetamine type substance intravenously in the months leading up to the time of the offence. He describes symptoms that are consistent with amphetamine abuse and at times the development of some paranoid ideas and he describes a state of mind that approaches a mild degree of dissociation when he says 'it was like my mind was knowing what was happening but I seemed to have no feeling of any kind'. There is nothing, however to suggest that at the time of the offence there was any impairment of his ability to form the intent to commit the offence nor that there were any paranoid ideas influencing his behaviour at the time and in particular influencing his behaviour with respect to the actual offence. The Record of Interview is quite clear and there is nothing in that record of interview, nor was [ASP] able to tell me anything in my interview with him to suggest any influence by amphetamines played a part in the commission of this offence. I note that [ASP] has a previous offence for threatening to inflict actual bodily harm with intent to have sexual intercourse and having sexual intercourse without consent in 1983. I note that in 1982 there is any offence of sexual assault and there are a number of prior offences of assault and then a number of motor vehicle offences." 43 The Applicant's counsel called the Applicant's wife, Mrs Y, and Dr Rod Milton to give evidence at the sentencing proceedings. A report of Dr Milton dated 10 August 1988 was tendered in evidence. Dr Milton stated (page 1 of report): " [ASP] informed me that he sexually assaulted and killed a woman at Penrith after having been using amphetamines for some months. He remembers the occurrence well, although he was reluctant to talk about it. He said 'It's just like I was turned off - it's hard to explain, there were no feelings or emotions'. He remembers seeing the woman in the street and he assaulted her and took her into his car.' He would not proceed with a description of the event after that but said he was ashamed of what happened and is going to plead guilty because he believes he did wrong and has been converted to the Christian faith and wants to accept responsibility for what he did. He was upset when telling me this." 44 The Applicant told Dr Milton that he had married three months before August 1988 whilst in gaol, and had known his wife for over a year. 45 Dr Milton expressed the following opinion in his report (page 2): "The offences occurred after a period of particularly heavy use of amphetamines. The prolonged use of these drugs can certainly produce emotional disorders, particularly paranoid states. While [ASP] did not show clear evidence of being paranoid, his mental state certainly appears to have been altered in that he felt out of touch with himself, and unusually lacking in emotion. It is possible these effects were a result of the use of the stimulant drugs. This state would certainly constitute an abnormality of mind. It would be a matter for the jury to decide whether this abnormality of mind was such as to substantially diminish [ASP's] responsibility for the killing, in terms of Section 23a of the Crimes Act. Note that my assessment was limited because [ASP] was not keen to discuss the offences." 46 The Applicant tendered a drug and alcohol report dated 27 September 1988 of Ms Diane Scott of the Department of Corrective Services. Ms Scott reported that the Applicant had told her that he had consumed 18 cans of beer and a half weight (or $150.00 worth) of amphetamines on the day of the offence. 47 The Applicant did not give evidence in the sentencing proceedings before Hunt J. Remarks on Sentence of Hunt J 48 In his remarks on sentence on 14 October 1988, Hunt J recited the facts surrounding the offences committed against the victim, LB. His Honour said (remarks on sentence, pages 1-2): "At approximately 6.30 am on 4 September [1987] , [LB] was dropped at the Yennora railway station by her father to catch the train to work. She was then seventeen years of age. The only other people there were the stationmaster and the prisoner. The prisoner approached [LB] and asked her to help him for a minute. When she turned to face him, the prisoner told her that he had a gun and he showed her a gun which was tucked into his trousers but otherwise hidden by his clothing. The prisoner ordered [LB] to follow him, threatening her that otherwise she would get hurt, He led her to the car park where he ordered her to get into his vehicle and to assist him to start it. When that task had been performed, [LB] said that she wanted to leave but the prisoner replied that he wanted her to do one more thing for him. The prisoner then drove to the vehicle into the bush where he gave [LB] the option of being tied up or taking sleeping tablets. When she opted for the former, the prisoner strapped her wrists together but then told her that the straps would hurt her and that she should take the sleeping tablets instead. [LB] offered to say nothing to anyone if the prisoner let her go, but that offer was rejected by him. She took two tablets which the prisoner gave her and when they did not produce sleep, she took another two. The prisoner provided a quilt for her to lie on and insisted that she lie on it. She fell asleep a short time later. When [LB] awoke, the prisoner had left and he had taken her clothing together with her shoes, her handbag and its contents. He had sexual intercourse with her whilst she was drugged and she was bruised and bloodied about her face and legs. Those who came to her help described [LB] as dazed and incoherent. A doctor at Westmead Hospital examined her and has described numerous fresh superficial scratch marks over her whole body which were consistent with very recent violence. There was also a laceration to her neck. Her hymen had recently been torn. The forensic biology examination disclosed semen in her vagina. [LB] had not previously had sexual intercourse." 49 After reciting the facts concerning the abduction, sexual assault and murder of KS, Hunt J turned to the issue whether the Applicant was affected by drugs at the time of the offences (remarks on sentence, page 5): "An issue was raised as to whether, at the time when he murdered [KS] , the prisoner was suffering from the effects of amphetamines. According to the history given to Dr Barclay who was called by the Crown, the prisoner had been abusing drugs for some time. That evidence by Dr Barclay is evidence in favour of the prisoner. There is also the evidence of his wife to the same fact. But the prisoner did not tell Dr Barclay that he had injected speed (as it is known) on that particular day, nor did he tell the police, to whom he specifically denied that he had been affected by either drugs or alcohol at the time of the murder. He did tell Miss Scott, a drug and alcohol worker in the gaol system, that he had used speed and that he had consumed a large amount of alcohol on the morning when he killed [KS] but that report was tendered by the prisoner himself so the history is not evidence in his favour. That evidentiary position is correctly conceded by his counsel, who stated that he was unable to prove that fact. In other words, he was unable to do so without calling his client. I am satisfied that the prisoner was not affected by any drugs or alcohol at the time of the murder." 50 Hunt J recited the Applicant's criminal history in the following terms (remarks on sentence, pages 4-5): "The prisoner, who is now twenty eight years of age, has a very long record of offences stretching back to 1976. For the first few years, those convictions are frequently related to motor vehicle stealing and illegally using them, and driving them negligently. There are also a large number of break enter and steal convictions. There is one conviction for escaping lawful custody and one conviction for absconding. There is one conviction for driving with the prescribed content of alcohol in his blood, and one minor conviction for possessing Indian hemp. In 1980 there commences a series of convictions involving violence - one for maliciously setting fire to a dwelling house, a number for assault, two for threatening to inflict actual bodily harm by an offensive weapon with intent to have sexual intercourse, and two for the sexual intercourse without consent associated with those earlier offences. For that particular group of offences, the prisoner received a total head sentence of twelve years. He withdrew a subsequent appeal against conviction and sentence. He was released from custody in relation to those offences on 1 December 1986. He was still on parole for these offences at the time when these present offences were committed." 51 Hunt J adverted to subjective material tendered in the sentencing proceedings (remarks on sentences, pages 5-6): "There was some subjective material tendered before me. The prisoner has embraced religion since he has been in custody, and there are two quite remarkable references tendered which speak of the prisoner's apparently genuine remorse for what he has done and of his attempts at personal rehabilitation. During the period of his custody, he married his wife with whom he had previously been living and there has since been a child born. All of the material put before me shows that the prisoner has indeed changed in his attitudes over the year that has passed since his arrest. Dr Milton has also recorded the shame which the prisoner has expressed in relation to what he has done. Dr Barclay said in his evidence that the prisoner was suffering from an antisocial personality disorder in which the offences committed by him over the years increased in seriousness as he became older, finally culminating in the ultimate crime of murder. Dr Barclay did agree, however, that the prisoner would be likely to lose much of his aggression by the time he reached his forties." 52 At the request of the Applicant, Hunt J revoked the parole order relating to the earlier sexual assault convictions pursuant to s.38(8) Probation and Parole Act 1983. His Honour directed that the Applicant's parole be treated as having been revoked on 6 October 1987, the date upon which he was arrested for the murder of KS. 53 Hunt J turned to the sentence for the murder of KS (remarks on sentence, pages 6-7): "The next issue to which I should turn is the sentence for the murder of [KS] , because that is in a special category. Section 19 of the Crimes Act provides that the penalty for the crime of murder is penal servitude for life, unless it appears that the particular prisoner's culpability for the crime is significantly diminished by mitigating circumstances. That means that I must examine the prisoner's blameworthiness in the commission of the murder itself. Having done so, I can see absolutely no such mitigating circumstances in the present case. I have already found that the prisoner was not affected by any drugs or alcohol at the time. In any event, where that intoxication has been self-induced I do not see that it is a proper mitigating circumstance to take into account. A life sentence will, therefore, have to be imposed." 54 Hunt J turned to the question of sentence for the crimes other than murder (remarks on sentence, pages 7-8): "In affixing the sentences appropriate to the remaining matters, I must, of course, take into account the totality of the prisoner's criminality. When I do so, I must take into account also the fact that he has pleaded guilty to murder, as well as the fact that a life sentence is being imposed. That is not to punish him twice for the sentence of murder, but simply to look at the overall picture which is presented, both by the murder and by those other sentences. It was submitted that it has now become accepted that no total head sentence for multiple offences should exceed twenty years, a figure gleaned from the judgment of the Chief Justice in The Queen v Visconti (1982) 2 NSWLR 104 at 114. I cannot for myself read that judgment as suggesting the existence of any such limit, and if that judgment has become accepted as asserting such a limit then it has been wrongly interpreted. It would, in my view, be quite improper to approach the sentence for multiple offences upon such a basis. On the other hand, I must take into account the submission made on behalf of the prisoner that the total head sentence should not be so crippling that there is no hope left for the prisoner in the future." 55 Before moving to pass sentence, Hunt J said (remarks on sentence, pages 8-9): "In the present case, l propose to make each of the sentences in relation to [KS] apart from the murder concurrent with the life sentence for murder, and those in relation to [LB] also concurrent but cumulative upon the determinate sentences imposed in relation to [KS]. Once [KS's] murder is taken into account, there is little said in relation to the remaining two charges; they were despicable crimes and they warrant severe punishment but they are completely engulfed by her murder. In relation to [LB] , it is difficult to imagine a more aggravated kind of sexual assault than that which the prisoner perpetrated upon her. Although it did not involve the severe physical beatings which are often seen, the forcible abduction with a gun and the use of sleeping tablets in order to have sexual intercourse with this young virgin against her will makes the prisoner's actions such as to disgust ordinary decent people in this community. I do not suppose that many other men would harbour similar ideas of acting in such an appallingly depraved ways but the community nevertheless expects these courts to deal particularly severely with crimes such as these in order to ensure that those who may have similar ideas will quickly put them out of their minds. Punishment for these crimes must be severe enough to deter both the prisoner himself and others from ever doing anything like this again." Sentences Imposed by Hunt J 56 Hunt J imposed the following sentences: (a) Count 3 - murder: penal servitude for life to commence at the expiration of the balance of the sentence imposed in the Central Criminal Court on 5 August 1983 (that is, to commence on 28 October 1994); (b) Count 1 - abduction of KS: eight years' penal servitude (concurrent with Count 3); (c) Count 2 - sexual intercourse without consent with KS: five years' penal servitude (concurrent with Count 3): (d) Count 4 - abduction of LB: eight years' penal servitude (concurrent with Count 5): (e) Count 5 - administering a stupefying drug to LB: 12 years' penal servitude (cumulative on Count 1): (f) Count 6 - sexual intercourse without consent with LB: five years' penal servitude (concurrent with Count 5); (g) Count 7 - stealing property of LB: two years' penal servitude (concurrent with Count 5). 57 The determinate sentences gave rise to a total head sentence of 20 years' penal servitude. Hunt J declined to set a non-parole period given that the Applicant was subject to a life sentence: R v Archer (Court of Criminal Appeal, 21 August 1987, unreported, page 5). 58 The Crown informed me that on 25 September 1989, the Applicant's aggregate determinate sentence of 32 years and 448 days, imposed at various courts commencing from 29 February 1980, was redetermined pursuant to the transitional provisions of the Sentencing Act 1989. The redetermined sentence was calculated as a fixed term of 23 years, two months and two days to commence 29 February 1980 and to expire on 30 April 2003. The balance of parole was to be served from 29 February 1980 until 25 October 1990. The life sentence commenced on 26 October 1990. All Offences, Wherever and Whenever Committed, of Which the Applicant has been Convicted 59 In considering an application in relation to an existing life sentence, the Court is to have regard to all offences, wherever and whenever committed, of which the offender has been convicted: cl.3(1)(b), Schedule 1, 1999 Act. 60 I have already referred (at paragraph 48) to offences committed by the Applicant against LB on 4 September 1987, in relation to which he was sentenced to terms of imprisonment by Hunt J on 14 October 1988. The Applicant's Criminal History 61 It is necessary to refer to other offences committed by the Applicant. 62 The Applicant was born on 5 February 1961. His criminal history commences in 1975, with a range of offences of dishonesty bringing him before the Children's Court and Courts of Petty Sessions up to 1980. The Applicant was sentenced to his first term of imprisonment for larceny motor vehicle at Liverpool District Court on 29 February 1980. He was convicted and fined for assault in 1980, and again in 1982. Sentences Imposed by Reynolds J in 1983 63 On 5 August 1983, the Applicant was convicted by a jury and sentenced by Reynolds J, in the Central Criminal Court, to terms of imprisonment for offences of threatening to inflict actual bodily harm by an offensive instrument with intent to have sexual intercourse (two counts) and having sexual intercourse without consent (two counts). He was sentenced by Reynolds J to penal servitude for 12 years commencing on 29 October 1982, with a non-parole period of four years and four months concluding on 5 February 1988. 64 In the course of his remarks on sentence on 5 August 1983, Reynolds J said with respect to these offences (pages 1-2): "On the evening in question you gained entry to [the victim's] car by pretending that you had been stabbed and asking her to drive you to a hospital. You had only been in the vehicle a short time when you threatened her with a replica pistol which you had earlier painted black. You clearly intended that she would accept that the pistol was real. Having produced the pistol you told her that you had a gun and informed her that provided she didn't do anything stupid that she would not get hurt. Obviously this was intended to frighten her and certainly had this result. A short time later you told her that you wished to make love to her and by this time she was understandably confused and quite frightened. You spoke to her in these terms: 'You know I have a gun at your head, make up your mind.' When you had said this to her she told you that she felt sick. You then said to her: 'If you don't make up your mind you will feel a lot sicker.' At your direction she entered the back seat of the car and it was there that the first act of sexual intercourse took place. The acts constituting the third and fourth offences took place within a very short time of the first act of sexual intercourse. You produced a knife and held it near her head, thereby forcing her to enter upon the second act of sexual intercourse and causing her to become very frightened. Your attitude in this trial was to completely deny the first and second offences. You denied having any pistol and you further denied that the first act of sexual intercourse ever took place. Plainly the jury did not accept you. As to the third and fourth offences you denied using the knife in the manner alleged by the young girl and, whilst agreeing that the act of sexual intercourse took place, said that it happened with her consent. Once again, the jury plainly rejected your evidence. You were obviously abroad on that evening seeking a victim such as the complainant. You gained entry to her vehicle by subterfuge. You clearly intended that the gun should be regarded by her as real and clearly intended to frighten her into submission. In this you were obviously successful. You again used the knife with the clear intent to frighten her and again you were successful. You have shown no remorse for these crimes and in this hearing, as I have already pointed out, you simply denied the first three offences and in relation to the final offence alleged that she consented to the act of intercourse. The matters found to have been proved against you are most serious and, in my opinion, they deserve substantial punishment." 65 Reynolds J observed that the Applicant had been released on parole on 1 June 1981, and that the offences for which sentence was then being passed were committed whilst the Applicant was on parole. Events After 1983 66 On 20 June 1984, the Applicant was sentenced in the Sydney District Court for the offence of maliciously setting fire to a building with intent to injure, for which a sentence of imprisonment for two years was imposed, commencing on 20 June 1984 and concluding on 19 June 1986. 67 The Applicant was released on parole on 1 December 1986. 68 On 8 April 1987, he appeared in the Parramatta Local Court on a charge of driving with the mid-range prescribed concentration of alcohol, in relation to which he was fined $400.00 and disqualified for 12 months. The Applicant Admits Further Offences Committed in September 1987 69 On 9 January 1990, police at Bass Hill Police Station received a Christmas card containing a letter from the Applicant. The letter included the following: "My name is [ASP] . I am currently serving a 20 year sentence. When I finish that I begin a life sentence. I am writing to confess to a crime I committed in, or somewhere near, your area. Personally, I cannot see any point in doing this, because my sentence is so big now, it is unlikely I would receive any further time, and it would run concurrent to my life sentence. Plus the costs factor. However, I have since become a Christian and the Lord (I feel) is urging me to confess this crime. I wont be very helpful with details, as it was over two years ago and I was very drunk. The crime - I took a male, and female to an area (I can't remember where) and I raped the woman, then I left them otherwise unharmed. The only thing I can remember, was her name was [T] . Unfortunately, I can't remember anything apart from what I told you. If you wish to take this matter any further, I am at Long Bay Gaol." 70 Police were in possession of statements dated 13 September 1987 from TI, a 16-year old girl, and her boyfriend, AF, then 18-years old, concerning offences committed against them on 12 September 1987. 71 At about 12.15 am, on 13 September 1987, TI and AF had returned to premises at Yagoona after having been out together for the evening. They drove their vehicle into the car park area of the units, and were sitting in the vehicle talking when they noticed a sedan pull up directly behind their vehicle. The Applicant and another unknown male person were in the sedan. 72 The Applicant and his male companion approached the victims' vehicle, and identified themselves as police officers from the Drug Squad. The victims were ordered to leave their vehicle. At this time, AF asked to be shown identification. The Applicant produced a black coloured replica handgun and, at the same time, the unknown male person punched the victim once in the head. Both victims were then ordered into the Applicant's vehicle and, with the Applicant driving, were driven around the Bankstown area for a period of about 20 minutes. The victims were unable to get out of the Applicant's vehicle as, at the time that they were placed in the vehicle, the Applicant removed all of the buttons from the door locks. 73 The Applicant then drove the victims to a reserve at the corner of the Hume Highway and Johnson Road, Bass Hill. The victims were ordered from the vehicle and AF was made to lie face down on the ground whilst the Applicant stood over him pointing the replica handgun at him. The Applicant's accomplice forced TI into the bushes about five metres away from the vehicle. TI was forced to remove her clothing and was then forced to have sexual intercourse with the accomplice. At the same time, the Applicant had removed the wallet from AF at gunpoint, and removed $10.00 from the wallet which he kept. 74 The accomplice then approached the Applicant and took the gun from him. He then stood over AF, pointing the gun at him, whilst the Applicant went over to TI, who was lying naked and sobbing on the ground. The Applicant then forced her to have sexual intercourse with him. The Applicant and his accomplice then told both victims to get out of the area and not to tell anyone what had happened otherwise they would be shot. The Applicant and his accomplice left in their vehicle. The victims walked a short distance to houses and reported the matter to police. 75 In the course of a record of interview with police on 19 January 1990, the Applicant said that he had sent the letter to the police station as he had "become a Born Again Christian and by confessing to this incident I am doing what the Lord wants me to do" (Q/A11). When asked to identify his co-offender, the Applicant said "I don't want to say who it was because I feel that by doing this I would be going against what the Lord wants me to do" (Q/A25). 76 When asked whether there was anything further he wished to say about the matter, the Applicant said "just that I am sorry and that I hope that it brings some comfort to the girl and to the boy" (Q/A30). 77 On 4 May 1990, the Applicant was sentenced by his Honour Judge Gibson QC at the Liverpool District Court to four fixed terms of imprisonment for 10 years to commence on 4 May 1990 and to expire on 3 May 2000 with respect to offences of abducting a female to carnally know (two counts), assault and rob whilst armed and inflicting actual bodily harm with intent to have sexual intercourse with a third person. Alleged Incident of Sexual Assault by the Applicant Upon Miss X in About 1993 78 As mentioned earlier, Mr Kintominas objected to evidence being adduced by the Crown on this application with respect to the incident of alleged sexual assault by the Applicant upon Miss X during a contact visit at Lithgow Correctional Centre in about 1993. It was submitted that evidence of sexual misconduct of this type was not admissible on a life sentence redetermination application. I ruled that the evidence was admissible. 79 In taking this approach, I rejected the submission of Mr Kintominas that cl.3, Schedule 1, 1999 Act, in effect, covers the field concerning the admissibility of evidence of misconduct (capable of constituting an offence) on a life sentence redetermination application. It is common ground that the Applicant has not been convicted of an offence with respect to this incident. 80 I accept that evidence of a sexual assault by the Applicant, after 1988, is relevant on an application such as this. 81 Clause 7(1)(e), Schedule 1, 1999 Act provides for the Court to have regard to any other relevant matter on a life sentence redetermination application. In my view, the incident of alleged sexual misconduct is relevant to this application. Counsel for the Applicant submits that the Court should accept that there has been a process of reformation and rehabilitation, and a change in values, on the part of the Applicant since 1987, illustrated by his Christian beliefs and his volunteering, in December 1989, of his offences against TI and AF. It is submitted for the Applicant that, despite his history of recidivism during the 1980s with respect to abduction and sexual assault offences committed whilst on parole, the Court may have regard to aspects of his character, revealed in the evidence, to support a conclusion that a process of reformation and rehabilitation is well under way. The Applicant points to aspects of his conduct after his crimes in September-October 1987, in support of a favourable conclusion that he is unlikely to act again upon his previously demonstrated propensity to commit sexual offences. 82 Evidence of an alleged sexual assault by the Applicant is also relevant to the need to preserve the safety of the community (cl.7(1)(b), Schedule 1, 1999 Act), and is capable of bearing upon the public interest (cl.6(4)(b), Schedule 1, 1999 Act). The latter provision is relevant, given the Crown submission that the present application ought be refused, and an order made under cl.6(1)(b) that the Applicant not be permitted to make further application for a period of 10 years. 83 It is clear that post-offence criminal conduct is relevant to an assessment of an offender's prospects of rehabilitation: Charara v Director of Public Prosecutions (NSW) (2001) 120 A Crim R 225 at 233-234 [37]-[40]; Douar v The Queen (2005) 159 A Crim R 154 at 179 [131]. If the Applicant had been convicted of sexual assault in 1993 upon Miss X, that conviction would be relevant and admissible in the present application. In circumstances where the Applicant points to post-offence good behaviour in an effort to establish that a process of reformation or rehabilitation is under way, I am satisfied that conduct such as that alleged here is relevant to a determination as to whether reformation has, in fact, occurred. 84 In this respect, it is highly significant that the Applicant has a history, prior to 1988, of recidivism with respect to offences of sexual assault. A further incident of sexual assault whilst the Applicant is in custody is relevant to a determination as to whether there has been reformation and rehabilitation of the Applicant. The fact that the alleged incident in 1993 is said to have been committed against the Applicant's five-year old daughter whilst he was in custody, and that this incident is significantly different to his earlier crimes committed against older females who were strangers does not, in my view, bear upon the question of admissibility. It is the allegation that a sexual assault has occurred which is relevant, at a time when the Applicant asserts that he has changed his values and his approach to life. 85 The principles in Weininger v The Queen [2003] 212 CLR 629 at 638-640 [25]-[32] are applicable. Uncharged criminal acts may be relied upon, if revealed by evidence, in an assessment whether an offender is a person of prior good character at a time when he stands for sentence for an offence. I am satisfied that similar reasoning is available where the Applicant claims reformation and rehabilitation after his crimes, and where it is alleged that there has been a sexual assault which, if it occurred, would militate against a finding of reformation or rehabilitation. 86 Accordingly, I was satisfied that the evidence concerning the alleged incident was relevant and admissible in the present application. I admitted the statement of Miss X dated 2 July 2004 and the statement of Mrs Y dated 28 May 2004. Statement of Miss X 87 It is appropriate to refer to the account of the alleged incident in the signed statement of Miss X, who was 16 years old at the time when it was made on 2 July 2004. Miss X stated (paragraphs 3-9): "3. I am currently in a New South Wales High School completing studies in year eleven (11). I am the daughter of [Mrs Y] and [ASP] . My father [ASP] is currently in gaol and he has been for as long as I have known. 4. In 1993 I went with my mother to Lithgow gaol to visit my dad ( [ASP] ). I do not remember the exact time or date, but I know I was in kindergarten at … Primary School at the time. We were living in … Whalan. I believe the time can be worked out from the records because it was also the last time that I went to visit [ASP] at the gaol. Up until then, I used to go every weekend with my mum, on both days of the weekend. 5. On this particular day I was playing with another young boy. He was a bit older than me and I was five (5) or six (6) at the time. I was sitting in the only room that I ever went into, where we used to visit [ASP] . I have drawn the room as best as I can remember and given this to Detective TAYLOR. It had a lot of tables and chairs, and some of the seats were 'booth' style, built into the wall. I was wearing a white coloured button up top, which had flared collars and cuffs. I was also wearing undies and a knee length black coloured skirt. [ASP] was wearing white coloured long sleeve overalls. 6. I was sitting on the floor playing and mum was sitting with [ASP] on one of the booth style seats. Mum got up and went out to get a drink and have a smoke. She walked outside through the doors around the back of the seats. She later came back and was talking to the policeman at the front desk. Whilst mum was talking to the policeman at the desk, [ASP] called me to come over and speak to him. I walked over and he sat me on his lap. The booth we were sitting in had a curved seat which was like a semi circle and a round table in the middle. [ASP] was sitting at the end of this seat and he put me on his lap. I was seated on his legs, and was facing away from him. We were both facing the same way. I dangled my legs off to the side around his legs which were together. The table made it a close fit, and my legs were concealed by the table. 7. [ASP] placed his right hand on my right knee and he started to rub my leg as he slowly moved his right hand up my leg. My skirt was loose fitting and it bunched up as he moved his hand up my leg. My legs were curled under and around his legs. He moved my legs further apart as he ran his hand up and between my legs. He turned his hand when it was between my legs and using his thumb pointing out, pushed my legs further apart. This hand was a definite hand movement to move my legs apart. [ASP] kept moving his hand up in between my legs. His hand was touching my inner thigh on my right leg as he did this. His right hand and fingers then lifted the elastic side of my undies at the area of my vagina. He put his hand inside my undies, and the elastic of the undies held his hand inside my undies. [ASP] then put a finger inside my vagina. I don't know how many fingers he put inside my vagina, but it was at least one (1). I remember how much it hurt as he did this, and he kept his finger inside my vagina for some time. He then moved his finger in and out of my vagina at least ten (10) times. He was doing this really hard. I couldn't see how far in my vagina his finger was but I remember feeling, and thinking that it would have been about 1/2 or 3/4 the length of his finger inside my vagina. I turned around and looked at him and he just smiled at me with a sick looking smile. He didn't say anything and I just looked away. The table was hiding most of what he was doing at the time. 8. Mum was walking back over from the policeman at this time and she had to walk around a few other tables and couples before she got to us. [ASP] stopped and took his fingers out of my undies. As he did this, my elastic from the undies fell back into place covering my vagina. He took his hand out from under my skirt and pulled my skirt back over my legs. He patted his hands on my knees after he finished pulling my skirt down. When he did this mum was about six (6) to seven (7) metres away. I'm not sure exactly, but this is close. Mum got back and they just started talking again as if nothing had happened. I went back to playing with the little boy that I was had been playing with earlier. I think he may have seen something, because he acted funny and wouldn't talk to me. He went straight over to his mum. 9. Later that night after we had left the gaol I told mum what had happened. I don't remember the exact words but I told her that [ASP] had put his finger in my vagina. This was later reported to DoCS (Department of Community Services) but it didn't go to the police because I was young and didn't know what to do about it. I begged my mum not to tell anyone about it. I am now at the point in my life that I want the matter investigated. I understand that detective Luke TAYLOR is investigating the matter and I give him permission to access any confidential documents which will allow him to further investigate this matter." Statement of Mrs Y 88 Mrs Y was 37-years of age at the time when she made a signed statement to police on 28 May 2004. In that statement, she said (paragraphs 3-12): "3. About 1987 I was nursing at … Nursing home when I became friends with … . I had known her about twelve (12) months when I was invited around to her house one day and met her brother [ASP] . [ASP] and I started a relationship and were living in a flat in Yennora. We had only been there a few months when he was arrested at home, for the rape and murder of [KS] . As a result of this, [ASP] has been in prison ever since. Initially he was in remand, and later Parklea Correctional Centre. Our relationship continued and eventually we married whilst he was in Malabar. This was the 5th March 1988. I was three (3) months pregnant when he was first picked up by the police. [Miss X] was born on the 19th March 1988 at Liverpool Hospital. On July 10 1990, I gave birth to [JAP] , who passed away at only five (5) weeks of age. On 13 April 1992 I gave birth to [TJP] . 4. [ASP] was transferred to Lithgow Correctional Centre after the Parklea riots as he was placed in protective custody. [ASP] had become a 'christian' and refused to riot, and warned the prison guards of the upcoming riots. I continued visiting [ASP] at Lithgow. My visits there normally on both day of the weekend. I would go up on the Friday night, driving up along Bells Line of Road. I would stay at a house there which was supported by St Vincent de Pauls. I would visit at 9.00am on the Saturday and stay there for the all day contact visits. I would leave when they closed in the afternoon. This was the same time on a Sunday. I would leave straight away on the Sunday and go back home. 5. During the time he was in Lithgow, I lived at a number of places including … . These were housing commission homes and they would have a record of the times and dates I was at each place. 6. One night after a weekend visit to Lithgow, [Miss X] had a bath and came out to me in the lounge room. She sat on my lap and were having a hug. [Miss X] was in a very placid mood, a bit subdued, different to her normal way. She said, words to the effect of, 'mum, I've got something to tell you. I was on daddy's lap and he put his finger in here - it hurt'. [Miss X] was wearing long pink coloured pyjama pants and pink slippers. She pointed to her vagina and touched it on the outside of her pants. She said, 'It was hard and it hurt'. I said, 'Where did he touch you?' She said, 'Inside my pants'. I said, 'Why didn't you call mummy?' She said, 'I looked at him and he smiled at me, and he did it harder'. When she said this, I believe this to mean that he was harder in his actions of putting his finger in her vagina. 7. I took [Miss X] into her room and laid her [on] the bed and made some sort of check on her vagina. I don't know what I was looking for but i felt I had to. I can't remember if I put some Savlon on her or not. I didn't notice anything, but we were both crying. I can't describe what was going through my mind. I just wanted to be sure that she was alright. 8. When [Miss X] described what had happened to me I thought of a time when this could have happened. I was talking to the officer at the desk for at least ten (10) minutes. I was standing in the visitors room, and was about ten (10m) to fifteen (15m) away. I could remember seeing that [Miss X] was sitting on his ( [ASP] ) lap and talking to her. 8 [sic] . Over the next few days we spoke about it further. At one stage she said, 'I'm sorry'. I think she was apologising because she had to tell me about her father. I told her, 'I am proud of you for telling me'. 9. I had to wait a few days to speak to [ASP] . We spoke on Tuesday and Thursday during the day time. I think we only had two (2) or three (3) phone calls per week. We took them mid week to break up the time during the week between visits. As soon as I first got to speak with [ASP] , I asked him straight away. I said, 'We got home the other night and [Miss X] told me that you put your fingers in her vagina. Is this true?' He said, 'Yes'. He sounded very quiet and low. I said, 'I can't believe it, I didn't understand. Why?' He said, 'We'll discuss it later on a visit in case this is being recorded'. [ASP] didn't want to discuss this because of the 'code' inside prison, whereby he would have been killed inside for what he had done. 10. That following weekend I visited Lithgow again and went straight in and confronted [ASP] . I said, 'What did you do'. He said, 'I don't know'. I said, 'She wouldn't lie, she said you put your finger in her vagina'. He put his head down and said, 'Yes it's true'. I said, 'Why did you do it, why didn't you come to me when you had these thoughts come into your head. We could have worked through this'. He said, 'I don't know why, I don't understand, I don't know why I didn't come to you. I don't want to lose you'. I said, 'I don't think I'd ever be able to go on and risk [Miss X] in the process'. 11. I cannot remember any further access visits or phone conversation with [ASP] after this date. I may have confronted him again over it, but I cannot remember. 12. I reported the matter to what I think was the Wentworth Area sexual assault clinic. They were the Poly Clinic in an annexure at Mt Druitt Hospital. I am also aware that over the following years DoCS received notifications. Police action was never taken at the time because I thought it was something best left for [Miss X] to do when she was ready, if she ever was. I didn't see [Miss X] being in any further danger as [ASP] was not likely to be released from prison. As [Miss X] got older she has had to confront this issue and she feared that it may also have happened to other people. She feels she is ready to take action to help deal with her problems with her father. I don't know if he will ever be released, but [Miss X] fears that [if] he does get out he might do this to other girls." Prison Visiting Records 89 The Crown tendered prison visiting records concerning the Applicant for the period 1 January 1994 to 2 October 2006 (Annexure J to Exhibit G). Those records reveal the following: (a) the Applicant was housed at Lithgow Correctional Centre until his transfer to Goulburn Correctional Centre between 3 and 10 July 1994; (b) contact visits between Mrs Y and the Applicant took place regularly at Lithgow Correctional Centre between 1 January and 3 July 1994 - the records do not indicate that Miss X accompanied Mrs Y on any of these visits; (c) between 10 July 1994 and 29 October 1994, Mrs Y visited the Applicant at Goulburn Correctional Centre, usually accompanied by Miss X and Mrs Y's son, TJP (born 13 April 1992); (d) the contact visit on 29 October 1994 at Goulburn Correctional Centre was the last recorded visit by Mrs Y, accompanied by Miss X and TJP; (e) thereafter, Mrs Y did not visit the Applicant again until a visit to Junee Correctional Centre on 22 January 2005; (f) Miss X did not visit the Applicant again until a visit on 5 June 2005 in the company of Mrs Y and TJP; (g) since June 2005, Miss X has been a regular visitor to the Applicant at the Junee Correctional Centre, usually (but not always) in company with Mrs Y and TJP; (h) the prison visiting records in evidence end at 2 October 2006 and record a visit on that date at Junee Correctional Centre by Miss X, Mrs Y and TJP. 90 The evidence reveals that the prison visiting records were obtained by the Crown from Junee Correctional Centre. No submission was made by the Crown or the Applicant that these records should be considered anything other than reliable. However, the following observations may be made concerning the records: (a) there is no record of Miss X visiting the Applicant at Lithgow, with the first recorded visit being that at Goulburn on 10 July 1994; (b) the evidence of Mrs Y and Miss X was that Miss X had visited the Applicant at Lithgow Correctional Centre, and therefore a question is raised concerning the accuracy and reliability of the records - was it the practice at Goulburn Correctional Centre to record all adult and child visitors, but at Lithgow only to record adult visitors?; (c) there were no visits whatsoever from Mrs Y and Miss X to the Applicant between November 1994 and January 2005. 91 It is appropriate to refer to the oral evidence of Miss X and Mrs Y. Oral Evidence of Miss X 92 For reasons given in a separate judgment on 27 February 2007, I held that s.18 Evidence Act 1995 applied to the evidence of Miss X and that, despite her objection to giving evidence, she ought be required to give evidence on this application. Miss X acknowledged that she had signed the statement dated 2 July 2004 and that its contents were true and correct "to a degree" (T25.58, 27 February 2007). She said that she was sexually assaulted, but not by the Applicant (T26.2). She said that the sexual assault took place in the room as she had described (T26.14). 93 I granted leave to the Crown to treat Miss X as an unfavourable witness for the purposes of s.38 Evidence Act 1995, and the Crown cross-examined her upon the contents of her statement. 94 Miss X agreed that it was her practice to go with Mrs Y to Lithgow Correctional Centre to visit the Applicant on weekends in about 1993 (T27.39). She agreed that she knew what the Applicant looked like at that time (T28.1). Miss X stated that the person who placed his hand up her dress was not the Applicant, but another person whose whereabouts were unknown (T29.12). In the course of cross-examination by the Crown, Miss X explained the change in her account in the following way (T29.18): "Q. … You were quite familiar with the applicant weren't you? You'd seen him many times? A. Yes. Q. You'd seen him many times in the context of gaol visits? A. Yes. Q. There could be no mistaking-- A. I was going through a very depressed stressed state where I'd just lost my sister, I'd just been sexually assaulted, and I've seen lots of counsellors and psychiatrists and they said that what I've done is mixed up. All my emotions and like even my memories of my sister's death. I don't remember being in the house. I remember being in a garden. Just stupid things where I've mixed up everything and it wasn't until when I first started going and seeing my dad again was when I was finally working through my treatments and that's when I remembered everything that's happened, and that's why I am proceeding with a relationship with him and withdrew my statement to the police." 95 Miss X agreed that she had told her mother that she had been interfered with, initially not alleging that the Applicant had done so, but soon thereafter stating that it was the Applicant who had acted in this way by placing his finger in her vagina (T31). Miss X said that her counselling commenced about a year after she had been interfered with (T32.12). She agreed that, up until she made her statement to police in July 2004, she was saying that it was the Applicant who had touched her (T32.28). Miss X acknowledged that she believed the contents of her statement to be true in July 2004. She was asked by the Crown (T32.57): "Q. Was it after that that you came to the view that it was wrong? A. Yes. That's what I'm saying, going through all this with the police officer and going through all the facts and everything that was involved helped, and counselling helped me to remember and to understand. Q. Was that what, 2005 or-- A. Yes. It was between 2004 between making this statement and towards 2005 with my first visit was in between." 96 Miss X said that she wanted to visit the Applicant in the decade following 1994 "but my Mum wouldn't let me" (T33.21). 97 Under cross-examination by Mr Kintominas, Miss X said that she understood that her description of the room in the prison where the assault occurred, and of the clothing of the offender, was apparently wrong (T34-35). Miss X told Mr Kintominas that she commenced counselling and therapy in about 1995, about a year after the incident (T36.14). 98 According to Miss X, it was before her mother went to visit the Applicant in 2005 that she (Miss X) formed the view that it had not been the Applicant who had assaulted her (T37-38). Miss X denied that there had been communication of any form between the Applicant and herself prior to her coming to the view that it was not the Applicant who had assaulted her (T38.45). She said that when she saw a photograph of her father, she realised that it was not him (T38.49). Miss X stated that her father had tattoos on his arms, but that the person who had assaulted her did not have tattoos (T39-40). Miss X said that she could not now recall the exact location of the assault or whether it was in prison (T40.35). 99 Miss X said that her conclusion that it was not her father who had assaulted her after all, had not been reached at the suggestion of any other person (T43.1-14). 100 In re-examination by the Crown, Miss X agreed that she could not see the offender's hand whilst it was up her dress, but said that she observed it (and the absence of tattoos) "when I walked up to him" (T46.1). Miss X denied that she was rationalising away something that happened to her because she would rather that the opposite was true (T47.12). Miss X was asked by the Crown (T47.41): "Q. Did you tell one of the solicitors that you were - Lynn Broad, you remember that name, Lynn Broad a solicitor from the prosecution office? A. No I don't remember speaking to someone, let alone saying that. Q. Well never mind her name, did you indicate that you'd now become a Christian and had forgiven the applicant and no longer felt any hatred for him? A. No I am a Christian, but no I do not remember saying anything to that-- Q. And that you were doing your HSC and didn't want the matter hanging over you? A. I do remember saying to them that I do not believe it was him, but I do not remember saying that I don't want the matter to go any further because I forgive him. Because me being a Christian my belief is, even if you can forgive that person, God still wants judgment to be passed down to people, so no I would not say that. He tells us to respect the authorities of this world." Oral Evidence of Mrs Y 101 It is appropriate to refer to parts of the evidence of Mrs Y. She had been married to the Applicant, but divorced him in the late 1990s (T49.54, 27 February 2007). In a separate judgment given on 27 February 2007, I ruled that s.18 Evidence Act 1995 had no application to the evidence of Mrs Y. Accordingly, she is a competent and compellable witness for the Crown in the present application. 102 Having regard to answers given by Mrs Y to the Crown early in examination in chief, the Crown sought and was granted leave to treat her as an unfavourable witness under s.38 Evidence Act 1995. 103 Mrs Y said that she visited the Applicant regularly at Lithgow Correctional Centre, accompanied by Miss X (T55). Mrs Y confirmed that Miss X had complained to her that she had been interfered with and that, although Miss X had not originally asserted that it was the Applicant who had done so, she did complain that the Applicant had so acted "within a couple of days" (T61.22). 104 The Crown took Mrs Y to that part of her statement in which the Applicant admitted to her that he had placed his fingers in Miss X's vagina. The Crown asked Mrs Y (T63.54): "Q. You said to him, didn't you, 'We got home the other night and Miss X told me that you put your fingers in her vagina, is this true?' To which he replied, 'Yes', correct? A. That's what I've signed. Q. Well you signed that because it was the truth, didn't you? A. No, he actually said - this is what I was going over it with the police in the JIRT's team, he actually said, 'Yeah, yeah, yeah', to settle me down. Q. I see? A. They said that it had to be written like that because it was legal things. Q. So you put that, if I may say so, dreadful accusation to him and he just said, 'Yeah, yeah, yeah'? A. No, it wasn't 'Yeah, yeah, yeah', it was-- Q. Well that's what you said a moment ago, isn't it? A. 'Yes, yeah, yes, yes, yeah, yeah, yeah, hon, calm down, calm down'. Q. And you said to him, 'I can't believe it'? A. 'I can't believe this'. I didn't sign this page because it's totally out there compared to the little-- Q. And he said to you, 'We'll discuss it later on, on a visit, in case this is being recorded'? A. No, that's not our conversation at all, and we went on to have approximately a ten minute conversation. Q. Yes, I'm not suggesting this is everything that was said, but everything relevant to this? A. No." 105 Mrs Y agreed that she had reported to the Wentworth Area Sexual Assault Clinic that Miss X had been assaulted by the Applicant (T66.17). As a result of this report, Miss X received counselling (T66.21). Mrs Y acknowledged that, in 1996, she had told the Wentworth Area Sexual Assault Clinic that Miss X had told her that her father had touched her on the vagina under her pants during a supervised visit, and that Mrs Y had confronted the Applicant and he had admitted that this had occurred, causing Mrs Y to be very shocked (T67.1-12). Mrs Y then moved from that position, asserting that although Miss X had reported to her being interfered with by the Applicant on a visit to Lithgow Correctional Centre, the Applicant did not admit to so conducting himself (T67-68). 106 Under cross-examination by Mr Kintominas, Mrs Y said that there was no other matter (apart from Miss X's allegation of sexual assault) which was causing any ill-will between her and the Applicant at the time when she ceased to visit him (T69.45). Nor was there any other matter which caused Mrs Y to be angry with the Applicant at the time when she reported the matter to the Wentworth Area Sexual Assault Clinic (T69.53). 107 Mrs Y stated that, by 2004, her memory of events 10 years before was not that good, especially as she had developed epilepsy which affected her memory (T70.32). Mr Kintominas asked Mrs Y about those parts of her statement in which she said that the Applicant had confessed to her that he had interfered with Miss X (T74.3): "Q. As I understand you, did you tell us that soon after she nominated her father as having done something, your husband rang you on the telephone? A. Yes, yes, it had to be within days because when he did ring - I'm pretty sure because we would have discussed it on the weekend otherwise. Q. You questioned him about what your daughter had said? A. Yes, I told him. Q. Are you able to recall now whether you put to him the allegation that he had touched her or whether you put it in terms that he put his finger in her vagina? A. Touched her. Q. And what do you recall him saying on the telephone? A. It was just yeah, yeah, try and calm down, just relax, and trying to get me to stop being over the top, and towards the end of our conversation he was getting me to settle down and said that we'd discuss it on Saturday, we would talk on Saturday. Q. Did you go on Saturday? A. Yeah. Q. Did you go alone? A. No. Q. Who did you go with? A. [Miss X] and I would have gone. [Miss X] and I would have gone. Q. And at that visit did you discuss [Miss X's] allegation? A. Yes. Q. What did he tell you? A. And we hadn't at that stage even gone into the explicit details of what - but yeah, he didn't - he said what it was was when him and I were cuddling [Miss X] and what - she used to lay across both our laps and we used to tickle her. She used to lay her arm up and we'd tickle her. She likes to have her arms tickled. And that's what he said was the only - I mean I don't remember if I was away from the offices. Yeah, other than that was the only time that we were laying. We weren't laying but she was laying." 108 Mrs Y stated that she continued to visit the Applicant for some time after Miss X alleged that an incident had occurred (T75). Mrs Y said that she formed a relationship with another man and a child was born of that relationship in November 1996 (T75-76). Mrs Y stated that Miss X had expressed a wish to visit the Applicant in custody over the 10-year period during which no visits took place, but that Mrs Y had refused to take her to see her father "due to the fact that I [Mrs Y] was pregnant and involved" (T77.48). Mr Kintominas drew Mrs Y's attention to the fact that, according to the prison visiting records, she had continued to visit the Applicant after he had been transferred from Lithgow Correctional Centre to Goulburn Correctional Centre in July 1994. Mrs Y said that she recalled Lithgow, but not Goulburn (T80.4). She said that, had the Applicant confessed to interfering with Miss X, she highly doubted whether she would have taken Miss X to see the Applicant again (T80.41). 109 In re-examination by the Crown, Mrs Y confirmed that Miss X had alleged, at one stage, that the Applicant had interfered with her, but Mrs Y observed, Miss X "also called her girlfriend's friend Dad" (T82.39). Submissions Concerning Miss X and Mrs Y 110 The Crown submitted that I should be satisfied that an incident occurred at Lithgow Correctional Centre in which the Applicant interfered sexually with his daughter in the manner alleged by Miss X in her statement of 2 July 2004 and that, thereafter, the Applicant confessed to Mrs Y that he had done so, in the manner alleged in Mrs Y's statement of May 2004. The Crown submitted that it was sufficient that I be reasonably satisfied, on the balance of probabilities, that the Applicant had so conducted himself, in accordance with the principles in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362. The Crown submitted that this was the appropriate standard as the Applicant was not on trial for an offence of sexual assault. Nor, the Crown submitted, was it an aggravating factor on sentence, in respect to which the Crown bears the onus of proof beyond reasonable doubt: The Queen v Olbrich (1999) 199 CLR 270 at 280-281. Rather, the Crown submitted that this incident was relied upon partly to rebut the Applicant's assertion of reformation and rehabilitation since his incarceration in 1988, and also with respect to the need to preserve the safety of the community (cl.7(1)(b), Schedule 1, 1999 Act) and the public interest (cl.6(4)(b), Schedule 1, 1999 Act). 111 The Crown submitted, in any event, that the Court would be satisfied beyond reasonable doubt that the Applicant had acted in this way. It was submitted that the oral evidence of Miss X and Mrs Y was implausible and that the truth lay in the statements made by them to police in 2004. 112 Mr Kintominas submitted that the applicable standard of proof on this issue was the criminal standard. He submitted that the Crown seeks to rely upon the occurrence of the alleged incident in a manner adverse to the Applicant in sentencing proceedings. Accordingly, he submits that the Court should only take this incident into account, in a manner adverse to the Applicant, if it is satisfied beyond reasonable doubt that the Applicant so conducted himself. 113 Mr Kintominas submitted that the Court could not be satisfied beyond reasonable doubt that such an incident occurred, nor should the Court be so satisfied on the civil standard of proof (applying the Briginshaw principle). It was submitted for the Applicant that the oral evidence of Miss X and Mrs Y was to the effect that the Applicant had not interfered with Miss X. It was submitted that the evidence of Miss X pointed to a degree of confusion on her part, which serves to explain how she came to make the allegation to police in 2004. It was submitted that Mrs Y had memory difficulties, and that no real weight could be attached to her claim to police, in May 2004, that the Applicant had confessed to her that he interfered with Miss X in 1993. 114 Particular weight was placed by Mr Kintominas upon the prison visiting records. According to those records, Mrs Y and Miss X visited the Applicant at Goulburn Correctional Centre between July and November 1994. Mr Kintominas submitted that it was difficult to reconcile continuing visitation with the assertion that the Applicant had interfered with Miss X during a contact visit at Lithgow, and had allegedly confessed to Mrs Y that this had occurred. It was submitted that the conflict between the prison visiting records, and the contents of the statements of Miss X and Mrs Y, was such as to cast substantial doubt over the whole account that the Applicant had interfered with his daughter in the manner alleged. Resolution of Submissions Concerning Miss X and Mrs Y 115 I have given careful consideration to the submissions made by the parties on this question. On the face of the statements made to police in 2004, Miss X made a clear complaint to Mrs Y in about 1993 that the Applicant had placed his finger in her vagina in a manner consistent only with sexual assault. Miss X alleged to Mrs Y that the Applicant had so acted, and Mrs Y confronted the Applicant with this complaint. The Applicant acknowledged so acting, but deflected any further conversation with Mrs Y in the event that the telephone conversation was being recorded. Thereafter, Mrs Y stated that the Applicant confessed that he had interfered with Miss X. The prison visiting records disclose that, for a period exceeding 10 years, neither Mrs Y nor Miss X visited the Applicant in prison. 116 Mrs Y acknowledges that she complained, in the mid-1990s, to the Wentworth Area Sexual Assault Clinic that the Applicant had sexually interfered with Miss X, and that Miss X received counselling thereafter. It is undisputed that, in May 2004, Mrs Y signed a statement to police giving her account of the complaint of Miss X to her and the conversation between Mrs Y and the Applicant in which he confessed. In her statement to police, Mrs Y explained why Miss X was then coming forward, including the possibility that the Applicant may be released from custody and concern that females may be at risk if the Applicant was at large in the community. 117 The oral evidence of Miss X before me was unconvincing, to say the least. It seems clear that, by 2005, Miss X did not wish to press any complaint against her father. However, a clear complaint was contained in her statement to police of July 2004. I do not consider that her efforts to explain away the statement to police, including suggestions of mistaken identity and the presence or absence of tattoos on the offender's arm, detract from the veracity of the sexual misconduct by the Applicant alleged in the statement. 118 I am conscious that the incident is said to have occurred when Miss X was about five years of age. If she had not made complaint for some years and had asserted, for the first time, in 2004 that such an incident occurred, a substantial question would arise with respect to any allegation. However, it is undisputed that Miss X complained to her mother, Mrs Y, soon after the incident that the Applicant had sexually interfered with her. It is undisputed that Mrs Y spoke to the Applicant about this. It is undisputed that complaint was made to the Wentworth Area Sexual Assault Clinic in the mid-1990s concerning an alleged sexual assault upon Miss X by her father and that she received counselling as a result. It is the evidence of Mrs Y that there was no ill-will between her and the Applicant in the mid-1990s which may serve to explain the cessation of visits by her and her daughter to the Applicant for a period exceeding 10 years. All of these factors provide significant support to Miss X's claim of sexual assault by the Applicant upon her. 119 Mrs Y gave implausible evidence before me in an attempt to explain away her statement to police that the Applicant confessed to sexual interference with Miss X. 120 The actions of Mrs Y complaining to the Wentworth Area Health Sexual Assault Clinic and the Department of Community Services, and then to the police, concerning the Applicant fortify a conclusion that events recited in Mrs Y's statement, in fact, took place. The timing of Mrs Y's statement to police in May 2004 may be explained (as the statement reflects) by the fact that a life sentence redetermination application had by then been filed by the Applicant, and that his possible release into the community was then a matter of concern. 121 I have considered the submissions concerning the prison visiting records. There appears to be no dispute that the Applicant was transferred from Lithgow to Goulburn in July 1994. The records suggest that Mrs Y and Miss X visited the Applicant at Goulburn Correctional Centre between July and November 1994. Interestingly, the records do not reveal any visits by Miss X to the Applicant at Lithgow prior to July 1994. This cannot be correct. It was the evidence of both Miss X and Mrs Y (and was included in their statements to police) that regular visits were occurring whilst the Applicant was housed at Lithgow Correctional Centre. This suggests that the records may not be entirely reliable and complete in their content. It is noteworthy, also, that Miss X recalls visiting the Applicant at Lithgow, but cannot recall visits to Goulburn. 122 It is an undisputed fact that, from 1994 to 2005, Mrs Y and Miss X did not visit the Applicant in custody at all. The only explanation for this state of affairs in oral evidence was the fact that Mrs Y had met another person to whom she ultimately had a child in November 1996. I do not regard this explanation as being at all persuasive to account for a history of non-visiting exceeding a decade. The statement of Mrs Y to police explained that the reason for ceasing visits to the Applicant was his sexual assault upon Miss X whilst in custody. I do not consider that the contents of the prison visiting records prevent a finding that the Applicant sexually interfered with his daughter in prison in about 1993. 123 I have considered the totality of the evidence, both written and oral, concerning this issue. It is not necessary for me to resolve the dispute as to the applicable standard of proof, as I am satisfied beyond reasonable doubt that the Applicant sexually assaulted Miss X in the manner set out in her statement. 124 From time to time, accused persons are convicted of serious criminal offences despite the fact that complainants do not adhere at trial to incriminating accounts given in earlier statements to police: see, for example, Collins v R [2006] NSWCCA 162. 125 The contents of the police statements of Miss X and Mrs Y are admissible as evidence of the truth of the facts asserted by each of them in those statements: Collins v R at [44]. Significant concerns arise with respect to the credibility and reliability of aspects of the evidence of Miss X and Mrs Y, but those concerns relate to their oral evidence of denial and retraction of the contents of their police statements: Collins v R at [47]-[48]. I am satisfied beyond reasonable doubt that the contents of their statements to police are truthful and correct: Collins v R at [45], [48]. 126 Accordingly, I am satisfied beyond reasonable doubt that the Applicant sexually assaulted Miss X. In reaching this level of satisfaction, I have been persuaded, in particular, by the early complaint of Miss X to Mrs Y, by Mrs Y's account that the Applicant confessed to her that he had so acted, the fact that Mrs Y acted upon that complaint in conveying it to the Wentworth Area Sexual Assault Clinic and other authorities in the mid-1990s, by the fact that prison visits to the Applicant from Mrs Y and Miss X ceased completely for a period exceeding 10 years and that statements were made by Miss X and Mrs Y to police in 2004 in the context of a possible application by the Applicant for the redetermination of his life sentence. 127 It is apparent that, at some time in 2005, Miss X and Mrs Y changed their minds and determined not to press the complaint concerning the Applicant. The evidence does not permit a clear finding as to when this change of mind occurred. Both Miss X and Mrs Y deny that any communication with the Applicant played a part in such a decision. The Applicant has not given evidence on the present application. 128 Miss X re-established contact with the Applicant in early 2005 and has continued with that contact. Mrs Y has done likewise. 129 I am not in a position to form a clear conclusion as to why the allegation has been withdrawn by Miss X and Mrs Y. However, I am satisfied, and satisfied beyond reasonable doubt, that the Applicant did interfere with his daughter in about 1993 by placing his fingers in her vagina in a manner consistent only with sexual assault. 130 I will return later in this judgment to consider the relevance of this finding to the present application. SORC Reports and Other Relevant Reports 131 In considering the present application, the Court is to have regard to reports on the Applicant made by SORC and other relevant reports: cl.7(1)(a), Schedule 1, 1999 Act. SORC Report of 7 May 2002 132 The SORC report of 7 May 2002 disclosed that, from the time when the Applicant was taken into custody on 7 October 1987 until 1995, he was housed in maximum-security prisons. He was classified A2 until his classification was reduced to B on 20 March 1995 when he was transferred to Junee Correctional Centre. 133 The Applicant was transferred from Parklea Correctional Centre to Goulburn Correctional Centre on 31 October 1990 and placed in protective custody following his refusal to take part in a prisoner disturbance at Parklea. According to the SORC report, the Applicant's refusal prompted threats of violence from other inmates. From 1995, the Applicant has been housed at Junee, a medium-security establishment, with other inmates who have been similarly identified as being at risk if placed elsewhere. 134 The report noted that the Applicant had rarely been placed on report for breaching prison rules, and that none of the incidents were serious and none involved drugs or alcohol. The report stated that, from the commencement of his sentence, the Applicant had been very involved in religious studies, including translating the Bible, and he claimed that becoming a "born again Christian" had been responsible for his changed attitude, including his attitude towards drug abuse. A further report dated 23 August 1994 by the Reverend JL Steele, Anglican Chaplain at Lithgow, described the Applicant's involvement in Bible studies. 135 The report of 7 May 2002, under the hand of the Chairperson, the Hon PJ Moss QC, noted that the Applicant had usually been described in SORC reports as compliant, a good worker and as an inmate who relates well to both staff and fellow inmates. Occasionally, he had been said to be argumentative when he disagrees with a direction, but generally he had not been a management problem. It was noted that, during the early years of his sentence, the Applicant received regular visits from his wife and two children, however, this family contact had ceased in late 1994. With respect to counselling and treatment, the Chairperson stated (pages 4-5): "Since his transfer to Junee on 28 April 1995 [AJP's] contact with Inmate Development Staff (including psychologists) has been spasmodic despite regular encouragement by Council members that he become involved with these staff members, the inmate maintains he has experienced difficulties in arranging interviews with these officers (a view not always shared by the officers concerned) at other times stating he has no outstanding issues to resolve." 136 It was observed that Mr Bazaley, psychologist, had commented that the Applicant attended four sessions in 2001 and then stopped attending. It was said that, during the sessions, the Applicant had engaged in discussion pertaining to his attitude and life in prison. The Applicant also had resumed computer studies and was described by the Education Officer as "a consistent student over three years … a good learner". 137 The Chairperson concluded the report with the following comments (page 5): "Notwithstanding the circumstances of the offences leading to his term of imprisonment and the earlier sexual offences whilst on parole, [ASP] has nevertheless been a well behaved inmate and a willing worker throughout his sentence. If his application for determination of life sentence is granted the Council will continue to monitor [ASP's] performance, and at the appropriate time will develop a plan to assist his re-entry into the community, by way of unsupervised temporary leave programs. As part of his ongoing management the Council will also encourage [ASP] to participate in the Custody Base Intensive Treatment Program (CUBIT), which is available to sex offenders nearing the completion of their sentences." SORC Supplementary Report of 19 September 2006 138 A supplementary report dated 19 September 2006 of the SORC Chairperson, the Hon DD Levine RFD QC, is in evidence. 139 The report confirms that the Applicant has remained classified B at Junee Correctional Centre. Reference was made to several disciplinary offences, with the conclusion being stated that SORC remained of the view that the Applicant had "rarely been placed on report for breaching prison rules" and that none of the incidents referred to were serious. 140 On 16 July 2002, the Assessment Committee of SORC noted the following with respect to the Applicant: "Stay As Is (Junee). Redetermination application withdrawn - couldn't be bothered going through the whole process. Is working as a Painter, with average work reports. Does not get visits. Case Manager reported that inmate expressed to the team that he feels disgruntled that he is told one thing at assessment committees and the opposite is recorded. He feels let down and does not see the point in meeting with SORC. Manages frustration by talking about issues and/or exercising/working out." 141 On 5 August 2003, an Assessment Committee of SORC made a further attempt to interview the Applicant, but he declined to be interviewed. 142 The supplementary report concluded in a manner similar to the principal report of 7 May 2002 (see paragraph 137 above). Ms Rosen's Report of 13 September 2006 143 Annexed to the supplementary SORC report is a report of Ms Anne Rosen, psychologist, dated 13 September 2006. The report was completed for the purposes of the Applicant's Supreme Court redetermination hearing. Ms Rosen interviewed the Applicant on 24 August 2006 and 5 and 12 September 2006. 144 Ms Rosen's report contains the following account with respect to the Applicant's offences (page 2): " [ASP] told the interviewing psychologists, that at the time of the current offences, he had been under the influence of speed and had dreams and thoughts urging him to commit the crimes. He also described an extensive history of substance abuse including alcohol and drugs; drugs of choice included heroin, marijuana, LSD and amphetamines (used daily). [ASP] told us that (and in contradiction to the Judge's Sentencing Comments), he had been under the influence of drugs at the time he committed his crimes. He said that at his trial he had not wanted to minimize the seriousness of the charges by implying that the drugs, rather than he, were responsible for the crimes. When I challenged him about his drug usage at the time of these crimes, [ASP] said that preceding the assaults he had thought about abducting, raping and murdering. He claimed these thoughts had been intrusive, increasing in frequency until he committed the crimes. He said, 'I resisted the urges for about two weeks eventually ended up doing it'." 145 Ms Rosen gives the following account of the clinical interview with the Applicant on 24 August 2006 (page 2): "Throughout the interview, [ASP] was quietly spoken. He initially displayed appropriate affect and mood and was compliant with the interview process. While he was willing to discuss his offences he became distressed when describing aspects of the assaults he had perpetrated on his two female victims. He sat with eyes downcast, wept frequently and fidgeted when discussing the assault and attacks on both young women. When asked about aspects of the crimes he said, 'I don't know what to say. I feel useless.' When asked whether he felt the sentence he had received was just, he replied, 'I don't think anything (any length of sentence) is enough.' He told me he is now fully aware of the impact of his crimes on his family as well as the victims' families. It appears that as his own daughter is now of a similar age to his victims, he has realized the implications of his sexual assault against [LB] and the rape and murder of [KS] . During the course of his interviews, [ASP] presented as sorrowful and remorseful. He appeared embarrassed as well as distressed when he described to us that he has experienced nightmares and flashbacks since committing these crimes. When I asked him whether he still experiences dreams or thoughts urging him to commit rapes or murder he replied, 'No'." 146 Ms Rosen referred to psychological testing of the Applicant. The Level of Service Inventory Revised ("LSI-R") test indicated that the Applicant's likelihood of recidivism (reincarceration within one year following release) was in the medium range, with a possibility that he may reoffend calculated at 48.1%. 147 Static 99 is a psychometric assessment tool used to evaluate the degree of risk of reoffending by sex offenders. The Applicant was given a score of eight, with scores above six considered to be in the high range. Factors that supported the Applicant's high-risk score included the fact that he had another sexual offence conviction, there was reported violence in the commission of the current offence and in other offences, the fact that he had a conviction for a non-contact sexual offence and that his victims were unrelated strangers and female. 148 Ms Rosen observed that the Applicant had, to date, been unable to participate in therapeutic programs at Junee, due to his classification as a sex offender. He was being assessed for suitability for CUBIT and, due to recent policy changes, may also be suitable to attend some therapeutic courses. Ms Rosen observed that the Applicant had a supportive wife, daughter and son who visit regularly. 149 Ms Rosen considered that the Applicant may benefit from participating in a number of therapeutic programs and interventions: (a) the CUBIT program to address his sexual offending; (b) Drug and Alcohol Awareness and a Relapse Prevention Program; (c) assessment for the VOTP was recommended; (d) psychological counselling to address the underlying issues relating to symptoms of depression and anxiety. SORC Letter of 25 October 2006 150 By letter dated 4 October 2006, the Solicitor for Public Prosecutions sought clarification from SORC with respect to a number of matters referred to in the SORC reports dated 7 May 2002 and 19 September 2006. The Executive Officer and Registrar of SORC responded to these questions by letter dated 25 October 2006. 151 A report of KE Hedge, Probation and Parole Officer, dated 7 October 1987 provided information concerning the Applicant's life after release on parole in December 1986 and before his arrest on 6 October 1987. It will be remembered that the offences against LB were committed on 4 September 1987, the offences against TI and AF occurred on 13 September 1987 and the offences against KS on 2 October 1987. The Applicant entered custody on 7 October 1987 and later married Mrs Y. 152 Mr Hedge stated that the Applicant met Mrs Y in January 1987 and commenced living in a de facto relationship with her in March 1987. In April 1987, the Applicant was formally referred to the Fairfield Area Health Centre for drug and alcohol counselling and psychological assessment and/or counselling. The Applicant initially attended counselling. However, the drug and alcohol counsellor considered that the Applicant's motivation was low and he failed to keep a number of appointments. At interview, the Applicant was reported as presenting as "superficially co-operative". The Applicant commenced employment on 20 July 1987 as a storeman with a firm at Marrickville, a position which he retained until his arrest. He was said to be "a reliable employee who did not appear to have an alcohol problem". 153 Mr Hedge said with respect to the Applicant's family position whilst he was at large in 1987: "On 19th August 1987 (during a home contact) the parolee's de facto wife (a nurse working part time) stated that their relationship was improving and that the parolee had been through a 'bad patch' in May and June, 1987 during which he had been introverted and would not discuss issues concerning his situation with her. The writer was not aware of this difficulty, and she had not disclosed much information in previous contact. Nevertheless she stated that in August, 1987 the relationship had strengthened through his full time employment and controlled alcohol consumption." 154 Further information was sought concerning the Applicant's entry into the Special Care Unit at Long Bay in 1989. Included in the materials provided by SORC was a report dated 6 October 1989 from A Grapsas which included the following (Annexure P to Exhibit G): "Since he was sentenced [ASP] has become totally preoccupied in Bible studies, and describes himself as a 'born-again Christian'. He applied and was accepted into the Special Care Unit and has been there since 28th August, 1989. His contact and participation in the Programme are considered satisfactory. Prior to his admittance into the Special Care Unit he was seeing a psychologist on a regular basis for counselling. Discussing the offence [ASP] displays some contrition for his victim, although he has convinced himself that now that he has found God he has been forgiven all his past sins and has received absolution. He maintains that without the effect of the high doses of amphetamines he was taking at the time he was unlikely to commit these offences. Whether this can be believed is only a matter of conjecture but the writer is not convinced of this." 155 This document is significant to the present application. It sheds light upon the Applicant's approach to his offences. The fact that the Applicant believes that "he has been forgiven all his past sins and has received absolution" may serve to explain why the Applicant has not done more in the prison system to undertake treatment and counselling which may assist an understanding of his offending behaviour, and provide an objective foundation to assess his risk of reoffending. I will return to this issue later in the judgment. Reports of Dr Wong 156 Dr CL Wong, consultant psychiatrist, interviewed the Applicant on 9 October 2006 at Junee on behalf of the Crown. Dr Wong had been provided with a range of documents, including statements concerning the alleged sexual assault upon Miss X. 157 Dr Wong observed that the Applicant did not manifest any psychiatric abnormalities during interview and appeared to be of average intelligence. 158 Dr Wong recounted the Applicant's versions of the offences committed in 1982 (for which the Applicant was sentenced by Reynolds J) and 1987 (for which Hunt J imposed sentence) (pages 4-5): "Regarding his first offence in 1982, [ASP] said he was walking home when he was drunk and merry. A car driven by a girl hit him. He happened to be carrying a knife. He got into her car and was 'putting the word on her' when the knife fell out of his pocket and was lodged in between the seats. They ended up having sexual intercourse. He did not feel at the time it was rape. To him, it was not against her will and was consensual. Only after he became a Christian did he realise that there might have been intimidation and that she had submitted to him out of fear. It should be noted that I do not have any independent account of this offence. Concerning the offences in 1987 which led to his conviction in 1990, [ASP] said he was at the time with another man. They had speed and must have discussed what they were about to do. He confessed to this crime as he felt God wanted him to. [ASP] told me that for some weeks before the murder, he kept thinking about rape, abduction and murder as he drove around all night. However, in spite of these thoughts, he did not do anything unusual for one or two weeks. He then abducted a girl with the intention of raping her. However, when he saw her crying, he asked himself, `What am I doing?' and stopped doing anything to her. The girl hugged and thanked him and told him she would not report the incident. She apparently did not, although looking back now, he wished she did. With regard to [LB] , [ASP] said he abducted her and administered drug to her. His intention was to have sexual intercourse with her and then kill her. However, when she was asleep, he left her. He was vehement that he had not had sex with her. Indeed, until he saw Dr Lucas, he did not realise he had been accused of having sex with her. He admitted, however, that he was closer to doing to [LB] what was on his mind than was the case with the other girl referred to in the last paragraph. In relation to [KS] , [ASP] admitted he abducted her and took her to a secluded spot. He raped her and then stabbed her and left her to die. He felt the whole thing was 'robotic' and he did not feel anything. It was because he was so unfeeling that convinced him that it must be the drugs which made him do it. He put forward another observation which led him to believe that he was influenced by drugs, not only when the offences relating to [KS] were committed but also those relating to [LB] . The observation was that he was using speed regularly at the time, especially when he was driving, and when both sets of offences were committed he was driving. Later in the interview, I reminded him that when interviewed by the police after the murder, he denied specifically being affected by drugs or alcohol when the offence was committed. He told me that at the interview, he deliberately gave wrong answers. He was at the time very keen to plead not guilty. He therefore gave misleading information which did not tally with the known facts. In this way, the police would know he was not telling the truth when he confessed to committing the crime and they would thus be convinced of his innocence. That, according to him, was how he proposed to fight the charges. I put to him the above version and asked him if I had understood him correctly. He answered in the affirmative. In answer to my question, [ASP] said that he chose his victims by random. To this day, he could not understand why he did what he did. As he pondered over the matters time and again, he realised that the thoughts he had on his mind of what he intended to do, that is, to abduct, rape and murder, were terrible. This was not apparent to him then. He now has compassion and empathy." 159 Dr Wong reported the Applicant's response to the allegations of sexual assault against Miss X (pages 5-6): "When I drew his attention to the allegations made against him by his daughter [Miss X] , he vehemently denied them and was keen to establish his innocence. He maintained, for example, that she was 'unravelling'; and thus had a distorted memory, that it was physically impossible for him to commit the offence as alleged, that her mother was at the time only a short distance away and that [Miss X] had been visiting him regularly to date. I told [ASP] that I was not prepared to make any judgement as to whether the offence had in fact been committed." 160 The Applicant informed Dr Wong that he was involved in group therapy whilst at the Special Care Unit of Long Bay. When he came to Junee in 1995, the Applicant stated that he made application to see a psychologist/psychiatrist but "was given the run around and after two years, he gave up trying". 161 With respect to the Applicant's Christian beliefs, Dr Wong reported (pages 6-7): " [ASP] became a Christian shortly after he came into custody after the murder. Asked by me what he has got out of Christianity, he said he started having empathy. He discovered his conscience and was able to understand how others felt. His outlook has changed. He could not bear to watch violence on TV. He was gratified that God would love someone like him. [ASP] has not undertaken any courses of study while in custody. However, for some time he has been translating the Bible from Greek into English. As he does not know Greek, I asked how he went about it. While he attempted to explain to me that this was done with the help of a dictionary, I remained somewhat puzzled as to how translation could be done without knowing the language. In any case, he said this was done for interest. As well, it helped him to understand the Bible better." 162 In the course of assessing the Applicant's risk of reoffending, Dr Wong observed (pages 7-8): "When interviewed by the police in relation to the murder, [ASP] said that he was not going to let [KS] , the murder victim, go after he raped her even if she had not scream. Both the rape and the killing were planned. He was not in a frenzy and knew what he was doing. Immediately after the killing, he went home, got changed and went to work. Although he had a late start, he worked the whole day and finished at the usual hour. He told me he was under no apparent stress at the time. On the contrary, he impressed upon me that he was happily married, holding down a job and feeling contented. The horrendous crime committed was thus clearly premeditated and there were no appreciable precipitating circumstances. It was preceded by highly aberrant sexual fantasies and he picked his victim randomly. That he was able to put in a full day's work immediately after the brutal attack and while the victim was left to die attested to his utter callousness. Some of these observations also apply to the crime concerning [LB] . After reviewing all the available evidence, the trial judge was satisfied that he was not affected by any drug or alcohol at the time of the murder. I respectfully agree. It is also noteworthy that while he told the police that he normally smoked marijuana, he made no mention of speed. I find the explanation he gave for his specific denial when interviewed by the police not at all convincing. As referred to earlier, he said that to this day he could not understand why he did what he did. This remark suggests he did not appear convinced that the influence of drugs played a significant role. His sexual crimes, in particular the one resulted in the victim's death, thus presented a number of unusual features which are indicative of markedly deviant sexual tendencies. He was apparently under a strong urge at the time to commit the series of offences, bearing in mind he was on parole after he just finished serving a four-year sentence. The possible revocation of his parole did not deter him from committing at least three similar offences within a period of four weeks. [ASP] has a very extensive criminal history commencing from the age of 14. Admittedly, prior to the age of around 20, these were relatively minor and consisted mostly of break, enter and steal and motor vehicles offences. Nevertheless, they indicate marked antisocial traits." 163 Concerning diagnostic formulation, Dr Wong observed that the only thing that he could say with some confidence is that the Applicant "is not suffering from a psychotic disorder and that he has very marked antisocial personality traits, even if they do not amount to an antisocial personality disorder". 164 With respect to treatment received by the Applicant, and his motivation to seek treatment, Dr Wong stated (pages 8-9): " [ASP] has been in custody for almost 20 years. However, he has not to date received any in-depth psychological assessment or participated in a formal therapeutic program, although he had been assessed for administrative purposes such as classification. Regardless of what led to this unfortunate state of affair, the fact remains that the underlying abnormalities leading to the commission of the crimes, such as the origin of the markedly aberrant fantasies before the offences, are as yet unexplored. In her report of 5 October 1989, Irene Propper, senior psychologist, remarked that [ASP] 'has not yet begun to explore his personal issues'. Sadly, this still remains essentially the case. In so far as his motivation for treatment is concerned, while I am not in a position to accept everything he said, there is some support for his contention that the jail was understaffed. In her report of 13.9.06, Anne Rosen, assessment specialist, attributed the brevity of her report in part to the understaffing of psychologists at Junee Correctional Centre. I was able to observe the frustration [ASP] displayed as a result of his futile attempts to seek treatment. On the other hand, although he stated that he was deeply remorseful and prepared to do anything to undo what he had done and allowing for the fact he had tried in vain for two years to seek treatment, he had nonetheless shelved this issue for the next 5-6 years. This raises some doubt as to the strength of his professed motivation. Furthermore, as mentioned above, I find the explanation he gave for furnishing misleading information to the police following his arrest for murder far from convincing. If this is a convoluted attempt on his part to establish a nexus between illicit drug usage and his crimes, and this to me appears quite likely, it would indicate that he is not prepared to be open about what was on his mind at the time of the crime and raise further doubt on his incentive to receive effective therapy." 165 With respect to the Applicant's age, Dr Wong said (page 9): "As a rule of thumb, the risk of sexual recidivism decreases with age, just like crime in general. This applies to [ASP] , who is now almost 20 years older than he was when the crimes were committed. While aging probably reduces the risk of sexual recidivism in a number of ways, in part it is because as a person gets older, he is less impulsive and many offences are committed on the spur of the moment. However, in the case of [ASP] , his most serious offences were premeditated. Furthermore, although his offences while in custody were few and far between, there were two instances of disobey direction in the past two years. Even allowing for the fact that he was deliberately provoked, he nevertheless lost his temper. As well, he was visibly agitated when these issues were discussed at my interview. This would indicate that he is still having some difficulty in managing his anger. In this connection, it should be noted that even though he committed very few offences while in custody, this should not be regarded as a significant positive prognostic guide in so far as his sexual recidivism is concerned. The highly controlled prison environment does not provide the opportunities, such as access to potential victims, for the commission of the sexual crimes he was prone to." 166 Dr Wong addressed the issues of contrition and the Applicant's religious conversion (page 9): "It is obviously difficult to assess the genuineness of his contrition in the course of one single interview. In so far as I was able to discern, [ASP] appeared remorseful. However, as indicated above, this does not appear to have resulted in a strong commitment to seek treatment. I am unable to conclude that his conversion to Christianity as such has reduced his likelihood to re-offend. To do so is tantamount to saying that people of a particular religious belief are less inclined to offend. According to him, through his conversion he has discovered his conscience and become more empathetic. Even assuming that some such changes did occur, their effect on the likelihood of his sexual re-offending is nebulous." 167 Dr Wong referred to the Applicant's prospects of reintegration into society (page 10): "Being a loner and without friends and an extended family, [ASP's] supportive network outside consists at present of his ex-wife, his two children and a few church friends. Of course, the situation may change considerably, for the better or for the worse, when the time comes for his release. Speaking generally, the support he has on the outside may help to ameliorate his likelihood of re-offending. However, it is difficult to be more precise about this without an understanding of what motivated the crimes and this is at present almost entirely lacking." 168 Dr Wong concluded that there were virtually no unequivocal positive prognostic pointers, apart from the Applicant's age. Dr Wong stated that, in any case, "such positive pointers as there are pale into insignificance beside the fact that he has hardly participated in any therapeutic programs". Dr Wong concluded that it was therefore not possible to say that the Applicant's risk of reoffending now is significantly different to what it was when his crimes were committed. 169 With respect to the CUBIT program, Dr Wong observed (page 10): "It might be more appropriate for some individuals to participate in the CUBIT program close to their release. However, bearing in mind that to date [ASP] has not had the opportunity to partake in any treatment program, he should I feel be afforded one without further delay in order that the relevant issues relating to his offences could be explored." 170 Dr Wong concluded with the observation that, if the Applicant did interfere with Miss X whilst in custody, "this would make the underlying aberrance even more ominous, bearing in mind that the victim was his five year old natural daughter and that the alleged crime was committed when he was serving a sentence for another sexual offence" (page 10). As stated above, I am satisfied beyond reasonable doubt that the Applicant interfered sexually with his daughter during a contact visit in about 1993. 171 Dr Wong furnished a further report dated 2 November 2006 after being provided with the remarks on sentence of Reynolds J of 5 August 1983. Dr Wong contrasted the version of the 1982 offences which the Applicant gave him with that revealed in the remarks on sentence, and observed that the Applicant's version "was an attempt on his part to play down his culpability in relation to those offences". Dr Wong continued: "For treatment to be effective, it is vitally important that [ASP] be entirely forthright about his state of mind at the time of the offences. In my report of 25.10.06, I expressed my concern that the account he gave me to establish a nexus between his illicit drug usage and the murder and rape of [KS] might be contrived, as that would cast doubt on his incentive to receive effective therapy. The sentencing remarks of Reynolds J have reinforced my doubt and thus the rather grim prognosis I gave in my report of 25.10.06 concerning the risk of [ASP] re-offending." Oral Evidence of Dr Wong 172 Mr Kintominas cross-examined Dr Wong concerning the significance of the Applicant's voluntary revelation to police in December 1989 that he had committed offences against TI and AF. Dr Wong was asked (T27.15, 23 February 2007): "Q. What significance do you put on him coming forward in that way a bit more than a year after the life sentence was imposed on him? A. Well it could indicate a number of things. He might genuinely feel sorry for what he had done and wanted to make a clean breast of that. On the other hand, it could be because he wanted to be able to start from a clean slate in due course. And by volunteering the information, as he had already been sentenced to life, he … really had nothing to lose. So it could be one of those things. … Q. The confession to this particular crime that he came voluntarily forward with, it is not the sort of behaviour you would normally expect from somebody who has no remorse at all for that particular offence? A. As I indicated in my last answer, he could have [been] genuinely remorseful. On the other hand it could have been a desire on his part to start from a clean slate in due course." 173 Mr Kintominas asked Dr Wong (T28.49): "Q. What I'm asking is, assuming it would be accepted that his motive for coming forward was a genuine motive of remorse, then would you alter the opinions that you expressed in your letter, sorry, in your report, about his prospects for rehabilitation? A. Not significantly. Q. Sorry? A. Not significantly. The reason being that remorse is a positive prognostic pointer. Because that would indicate that with remorse there would be a more genuine more determined effort to seek treatment, as I indicated in my report, a stronger commitment to seek treatment. But from what I could gather from the applicant that hasn't been the case. In other words, the link between remorse and positive prognostic [pointers] lies in the commitment to seek treatment." 174 A clear theme that emerges from the oral evidence of Dr Wong was that, allowing for the limited nature of counselling and treatment available within the prison system, the Applicant has not pursued with any vigour involvement in such treatment and counselling as may have been available if he had sought it. A consequence of this, Dr Wong explained, was that no real assessment could be made of the genuineness of the Applicant's remorse and desire for rehabilitation, and difficulty existed in assessing whether the Applicant posed a lesser danger to the community than he did when he committed a number of serious offences in the 1980s. 175 Mr Kintominas asked Dr Wong about the significance of the Applicant's age (T44.26): "Q. To what extent, therefore, do you agree or disagree with Dr Lucas when he says that because of his age the personality problems are likely to have ameliorated? A. Well, personality problems, what are they? To date we don't know what they are, because they have not been explored. Well, obviously the applicant has some grossly abnormal personality problems for him to commit crimes of this nature but precisely what those problems are, we don't know because they have never been explored." Report of Dr Lucas 176 The Applicant was examined by Dr William Lucas, forensic psychiatrist, at the request of the Prisoners Legal Service on 15 December 2005. Dr Lucas provided a report dated 27 February 2006 which was tendered before me in the Applicant's case. Dr Lucas did not give oral evidence on the application. 177 With respect to treatment whilst in custody, Dr Lucas stated (Exhibit 1, page 2): "In Junee Correctional Centre there are courses for sex offenders but he has not been offered one of these or asked to be included. When his sentence is determined he will make a request. He knows of the CUBIT program available in Long Bay Correctional Centre which is difficult to access without a C classification." 178 Concerning the Applicant's conversion to Christianity, Dr Lucas stated (pages 9-10): "Two to three months after his arrest [ASP] converted to Christianity. He said he did not claim to have been perfect thereafter. His religion is bible-based and his beliefs are not extreme. He believes more in God than outward things. He used to attend services in prison but no longer does so. He usually went to Roman Catholic services which he found too ritualistic and when he turned to other services he found that they were 'explaining away the Bible'. [ASP] set himself a project in prison, translating the New Testament from Greek into English. He told me he is nearly there and had twelve months to go. When I saw him he had just been told he could not finish it - his use of computers in the education section was terminated." 179 Dr Lucas observed that the Applicant was motivated to accept further assistance, but seemed to have received relatively little during his 18 years in custody. He observed that the Applicant had little contact with psychologists during his imprisonment and, since his trial, had not been referred to a psychiatrist. The Applicant told Dr Lucas that he had not had any contact with psychologists in the last two-and-a-half years despite efforts to arrange this. The Applicant said that he wished to see a psychologist and wanted "to try to better understand what happened" (page 12). 180 Dr Lucas expressed the opinion that the Applicant's offences were serious and "to date have not been completely understood", and that the Applicant "requires further investigation and treatment" (page 13). He considered that the Applicant would benefit from being in a position to apply for the CUBIT program which "is confronting and participants need strong motivation and a desire to persist with it" (page 13). 181 If the Applicant participated in the CUBIT program, Dr Lucas considered that it would be possible "to get a better idea of the circumstances of and reasons for his offences which in turn will enable a better estimate of what risks he might present to the community if released" (page 13). Dr Lucas observed that the Applicant's personality problems are likely to have ameliorated with the passage of time and his risk of reoffending diminished, but that confirmation of this was required and inclusion in a treatment program is the only way in which the Applicant can be tested while in custody. 182 It does not appear that Dr Lucas was informed of the alleged sexual assault upon Miss X whilst the Applicant was in custody and, accordingly, his report is silent on that issue. Victim Impact Statement 183 The Court may receive and consider a victim impact statement when determining a life sentence redetermination application: s.28(2), 1999 Act. A victim impact statement of RS, the mother of KS, was read to the Court by Ms Day from the Homicide Victims Support Group. The statement of RS indicated the profound consequences upon RS, and other members of her family, resulting from the death of KS. It is clear that RS and KS were especially close given the health difficulties experienced by KS early in life, leaving her with partial paralysis and a limp. The murder of KS changed her mother's life, resulting in panic attacks and ongoing anxiety and depression. RS stated that the hardest thing which she ever had to do was to arrange and attend her daughter's funeral, and the second hardest was to write the victim impact statement. The fact that a life sentence redetermination application had been brought by the Applicant produced anxiety and worry in RS and her son, and brought back memories which had been blocked out for many years. 184 It is appropriate for a public acknowledgement to be made of the loss and grief suffered by RS and her family. I do not pretend that any person who has not been subjected to the ordeal experienced by RS and her family could begin to understand the consequences of a crime such as this. 185 It is the law of this State that, should the life sentence be redetermined, a greater sentence cannot be passed because of the impact of the crime upon the victim's family: R v Previtera (1997) 94 A Crim R 76 at 84-87; R v Slater (2001) 121 A Crim R 369 at 374-375 [19]-[24]; R v FC and JD (2006) 160 A Crim R 392 at 415-416 [103]-[105], 428 [270]-[171]. The Crown Submissions 186 The Crown opposes the application and seeks a direction pursuant to cl.6(1)(b), Schedule 1, 1999 Act, that the Applicant be prohibited from making further application for a period of at least 10 years. The Crown submits that the Applicant's offence involves a most serious case of murder and that it is in the public interest that such a direction be made: cl.6(4), Schedule 1, 1999 Act. The Offence of Murder 187 The Crown submits that it is open to the Court to find that the facts surrounding the offence of murder are of very great heinousness, and that there are no facts mitigating the seriousness of the crime. The Crown points to the fact that the Applicant had armed himself with a knife with an eight-and-a-half inch blade, had cruised around looking for a victim and, after unsuccessful attempts with four other women, he abducted KS, removed her clothing and sexually assaulted her. KS was a vulnerable victim given her physical disability. When she called for assistance, the Applicant stabbed her a number of times with an intention to kill. He told the police that he would not have let her go, even if she had not screamed. He said that he planned to kill her. 188 The Applicant confirmed to Dr Wong that it had been his intention to kill KS and that he had planned to rape and kill her. Having stabbed KS, the Applicant left her in shallow water. Similarly, the Crown noted that the Applicant confirmed to Dr Wong that his initial intention was to rape, and then kill LB. 189 The Crown submits that the Applicant had admitted to Dr Wong that he fantasised about abduction, rape and murder in the weeks leading up to the offences against KS. 190 The Crown submits that the murder of KS was committed to prevent detection of her abduction and sexual assault, and that these factors would place the case close to the worst-case category of murder: Ibbs v The Queen (1987) 163 CLR 447 at 451-452. It was submitted that the circumstances of the abduction and sexual assault aggravated the murder: R v Garforth (Court of Criminal Appeal, 23 May 1994, unreported, BC9402546 at pages 8-9). 191 Although the Crown is not seeking a direction that the Applicant never be permitted to reapply (cl.6(1)(a), Schedule 1, 1999 Act), the Crown submits that a number of authorities which address the worst case of murder for the purpose of imposition of a life sentence, are instructive. Reference was made to the judgment of Abadee J in R v Fernando (1997) 95 A Crim R 533 at 535-536. In order to characterise any case as being in the worst-case category, it must be possible to point to particular features which are of great heinousness, and it must be possible to postulate the absence of facts mitigating the seriousness of the crime (as distinct from subjective features mitigating the penalty to be imposed): R v Twala (Court of Criminal Appeal, 4 November 1994, unreported at page 7); R v Fernando at 535. 192 The Crown submits that the Court would be readily satisfied that this case is a most serious case of murder. Dr Wong refers to the Applicant having "highly aberrant sexual fantasies" that preceded the murder which was committed in circumstances of utter callousness. Other Offences Committed by the Applicant 193 The Crown submits that the Applicant comes before the Court with an appalling record of sexual offences which culminated in the abduction, sexual assault and murder of KS. 194 The Applicant had been convicted after trial and sentenced by Reynolds J in 1983 for sexual assault offences. The Crown draws attention to the Applicant's account of these offences given to Dr Wong. The Applicant refers to an incident where he had sexual intercourse with a girl after a traffic accident. He claimed that he believed she was consenting, but did not accept that it may have been rape. The Crown submits that the remarks on sentence of Reynolds J do not support such a misunderstanding. The Applicant gained entry to the victim's car by subterfuge. He pretended to be injured and sought a lift to hospital. He then sexually assaulted the victim at gunpoint, and later at knifepoint. 195 Reynolds J referred to the Applicant being "obviously abroad on that evening seeking a victim such as the complainant" (page 2.6, remarks on sentence). The Crown submits that the predatory nature of these offences, committed in 1982, accords with the Applicant's conduct in his later serial offending in 1987. 196 The Crown submits that the Applicant was engaged in a sexual rampage in a period of a month between 4 September and 2 October 1987. The attack on LB on 4 September 1987 involved her abduction from a public place, and the administration to her of a drug, culminating in sexual assault. 197 The Crown submits that the offences committed by the Applicant and an unidentified co-offender on 13 September 1987 against TI and AF, were serious and troubling as they demonstrate a very different mode of offending to the offences against LB and KS. The Applicant and his co-offender followed the 18-year old male and 16-year old female victims in their car from a hotel to the home of the female victim. There, they impersonated police and abducted both victims. After driving to a remote area, TI was sexually assaulted by both men whilst her boyfriend was subdued by the Applicant by means of threats with a gun. 198 The Crown acknowledges that the Applicant wrote to police on 14 December 1989 confessing to these crimes, but submits that the tenor of his letter suggests that his motivation was to raise and finalise the matter by way of a concurrent sentence, without further cost to him, as against the possibility that the matter may come back at a later time and be raised against him. The Crown pointed to the fact that the Applicant declined to identify his co-offender to police as that "would be going against what the Lord wants me to do". The Crown submits that the Applicant's motivation in raising this matter was pragmatic and self-serving, and that his refusal to identify his co-offender supported a conclusion that the revelation of his involvement in the crime was not indicative of genuine remorse. 199 The Crown observed that each of the three incidents committed on 4 and 13 September and 2 October 1987 was accompanied by the theft of property from the victims and the use of a weapon, a gun on two occasions and a knife on the third. 200 The Crown submits that the Applicant committed three abductions and sexual assaults and one murder, within the span of a month. All of these offences were committed whilst the Applicant was on parole. Disturbingly, the Crown submits, these offences were committed whilst the Applicant was said to be in a "tremendous relationship" with Mrs Y (page 3.8, Wong report) and "his sexual life was fine and he had never been so happy" (page 4.10, Lucas report). Further, at the time of the offences, Mrs Y was pregnant with their first child. 201 The Crown submits that an examination of other offences for which the Applicant had been convicted in the 1980s, provides no support for the present application but, rather, fortifies a conclusion that the orders sought by the Crown should be made. The Incident with Miss X 202 The Crown submits that the incident of sexual interference by the Applicant with his daughter during a contact visit in about 1993 is troubling. Dr Wong concluded that, if the Applicant did act in this way towards his daughter, it would make his "underlying aberrance even more ominous". I have found that the Applicant did sexually interfere with his daughter. Such conduct by the Applicant, the Crown submits, undermines the Applicant's submission that a process of reformation and rehabilitation had been well under way since 1988. Absence of Insight into Offending 203 The Crown points to concern, in various reports, over the Applicant achieving insight into his offending. Insight is recognised as being integral to the path to rehabilitation and understanding of the motivations underlying the offending. 204 The Crown submits that the Applicant's continued denial to Dr Lucas that he had sexually assaulted LB, although admitting that he abducted her for that purpose, is not consistent with remorse or the development of insight into his offending. It was apparent from the medical and forensic evidence that LB had been sexually assaulted. 205 The Crown points to the evidence of Dr Wong that the underlying abnormalities leading to the commission of the crimes remain unexplored. It was submitted that the Applicant had not demonstrated a strong commitment to obtaining treatment and counselling in his years in custody. 206 With respect to the Applicant's reliance upon his conversion to Christianity, the Crown submits that there is limited opportunity to assess the manner in which this conversion may impact upon his conduct. The Crown acknowledges that the Applicant volunteered his involvement in the offences against TI and AF, citing his Christianity as a motivating factor for this step. Nonetheless, the Applicant sought to rely upon his religion as an excuse for declining to nominate his co-offender. The evidence suggests that the Applicant participated initially in group religious sessions, but his more recent Christian practices have been solitary and therefore difficult to gauge. Dr Wong was unable to conclude that the Applicant's conversion to Christianity has reduced his likelihood of reoffending (page 9, Wong report). 207 The Crown relies upon Dr Wong's conclusion that it is not possible to say that the risk of reoffending now is significantly different from what it was when the Applicant's crimes were committed. In assessing the Applicant's prospects of reintegration into society, Dr Wong found it difficult to be precise without an understanding of what motivated the crime and this "is at present entirely lacking" (page 10, Wong report). 208 The Crown submits that there is nothing in the reports to negate a real danger to the community if the Applicant is released. It was submitted that the risk of reoffending, by way of similar offences, remains high. Totality 209 The Crown submits that the Applicant has been serving sentences for other offences (balance of parole for his 1983 offences and related and unrelated abductions and sexual assaults committed in 1987) during his period of incarceration. The last of those determinate sentences expired on 30 April 2003. In his remarks on sentence, Hunt J directed that the sentence for murder was to commence at the expiration of the balance of parole that the Applicant was serving (which was to expire on 28 October 1994). 210 All sentences imposed upon the Applicant prior to the commencement of the Sentencing Act 1989 have been readjusted. The concurrent sentences of imprisonment for 10 years imposed at the Liverpool District Court in 1990 for the offences against TI and AF did not expire until May 2000. 211 It was submitted for the Crown that the existence of very lengthy determinate sentences running concurrently with the life sentence for murder, was an important factor in determining whether to fix a non-parole period for the offence at all and, if so, in determining the length of any non-parole period. The Crown submits that any sentence imposed for the murder must be a meaningful sentence, having regard to totality. The Applicant has been in custody solely in relation to the murder since 30 April 2003. If a determinate sentence was to be fixed, the Court should not disregard other determinate sentences, otherwise the Applicant would, in effect, only be punished for the murder and not the other offences: R v Purdey (1993) 31 NSWLR 668 at 680. 212 The Crown submits that it is not enough to be well behaved in prison and that the Applicant must demonstrate real progress on the course of rehabilitation. It was submitted that conversion to Christianity does not equate with rehabilitation. Given the seriousness of the murder, and the Applicant's substantial history of offences of abduction and sexual assault committed whilst on parole, tangible evidence of reform is required. It was submitted that this can only flow realistically, from the Applicant seeking out actively participation in counselling and the provision of treatment by way of such programs as are available within the prison system. The Applicant has not demonstrated serious efforts to achieve this result. 213 The Crown submits that it is in the public interest that a direction be given that a substantial period of time, not less than 10 years, pass before this Court may be called upon once again to consider whether a determinate sentence should be fixed, in light of such evidence as may be adduced on a future application. The Applicant's Submissions 214 Mr Kintominas submits that it is appropriate to fix a non-parole period with respect to the Applicant but that, in the event that the Court declined to do so, an order excluding the Applicant from making further application for a period of 10 years should not be made. 215 If the Court does not make any other order, the Applicant may not reapply to the Court within a period of three years from the date of the Court's decision not to give such a direction: cl.6(3), Schedule 1, 1999 Act. In the event that the Court refuses the present application, Mr Kintominas submits that the statutory period ought stand, thereby allowing the Applicant an opportunity to make further application in three years' time. 216 Counsel for the Applicant acknowledges that this was a serious case of murder, but submitted that it fell short of a "worst case" and that a finding ought not be made that the offence was a "most serious case of murder" for the purpose of cl.6(4)(b), Schedule 1, 1999 Act. 217 Mr Kintominas emphasised the Applicant's positive history of conduct within prison, and contends that there were features which pointed towards the commencement of a process of reformation and rehabilitation on the part of the Applicant. He submits that a difficulty confronting the Applicant has been the limited availability of appropriate treatment and counselling at Junee Correctional Centre, a matter noted in the reports of Ms Rosen, Dr Lucas and Dr Wong. 218 Mr Kintominas submits that the best way forward is to set a non-parole period to facilitate the process whereby the Applicant could undertake the CUBIT program, which would provide an opportunity for an understanding to emerge of the factors underlying the Applicant's offending. In due course, it would be a matter for the State Parole Authority to determine whether the Applicant should be released on parole in the light of evidence then available. Mr Kintominas submits that this approach would serve the public interest, and the protection of the community, by reducing the risk of reoffending on the Applicant's part. 219 Mr Kintominas submits that, were the Applicant to be required to wait another 10 years before renewing his application, he would have spent over 29 years in prison since he was taken into custody for the murder offence. He submits that the objective circumstances of the murder, although admittedly grave, are not such as to compel a conclusion that anything less than a non-parole period of 30 years would be insufficient to satisfy the demands of justice, irrespective of how favourable the subjective circumstances of the Applicant might be. 220 As the life sentence was set by Hunt J to commence at the expiration of his 1983 sentences (recalculated as 26 October 1990), the Applicant has now served almost 16 years and six months of that sentence, and an order preventing him from reapplying for another 10 years would see him serving some 26 years and six months of the sentence before he could then reapply to have his sentence determined. Mr Kintominas submits that this was getting close to the enforced wait of 30 years applying to prisoners whose sentence had a recommendation that they never be released pursuant to cl.2(b), Schedule 1, 1999 Act. Hunt J had made no such recommendation in this case. 221 Mr Kintominas submits that, in fact, Hunt J accepted that the total head sentence in respect of the other offences for which the Applicant was sentenced "should not be so crippling that there be no hope left for the prisoner for the future". Counsel submits that acceptance by his Honour of that proposition clearly demonstrated that his Honour was not of the view that the crime was so serious as to preclude future release. 222 Counsel submits that sufficient time has now passed for the Court to be in as good a position as it is ever likely to be to evaluate the Applicant's remorse and potential for rehabilitation. Nor can it be said, he submits, that the application is made so prematurely as to offend any public expectation that the formal stigma and denunciation of the life sentence be dissolved too early, given the objective facts of the crime and the views expressed by the sentencing Judge. 223 Mr Kintominas submits that determining the sentence, or at least imposing a non-parole period, will make it more likely that the Applicant would be admitted to the CUBIT program. 224 Mr Kintominas submits that there is sufficient evidence to satisfy the Court that the Applicant's prospects of rehabilitation are reasonably good. He has managed to stay drug free in prison for nearly 20 years. The worst that can be said about his relatively few and minor infractions of prison discipline is that he has, on rare occasions, expressed his frustrations. Counsel submits that it is of great significance that such expressions of frustration have not been accompanied by violence of any kind. 225 Mr Kintominas submits that a significant early pointer to the Applicant's prospects of rehabilitation was his confession in December 1989 to participation in the sexual assault of TI on 13 September 1987. This was an unsolved crime until the Applicant, some 15 months after being sentenced by Hunt J, wrote to police and confessed to the crime. The Applicant claims that he did so as a result of his conversion to Christianity whilst in gaol. 226 Mr Kintominas acknowledges that religious conversion is not, in itself, a matter which can automatically attract favourable consideration on sentence. He submits, however, that what is important and relevant, if it can be demonstrated, is that the Applicant has earnestly chosen henceforth to live and abide by a set of values which involve him accepting that he must not do wrong by other people, and taking responsibility for and accepting punishment for, the wrongs he has done in the past. 227 It was submitted that the Applicant's action in giving himself up for the offence on TI was a marked departure from the way in which he had previously conducted himself, and demonstrated a true and fundamental change for the better. The Applicant's failure to nominate his co-offender, it was submitted, does not detract either from remorse for past conduct, or from the prospect for future rehabilitation demonstrated by the Applicant's acceptance of responsibility for the sexual assault of TI. Mr Kintominas noted that identification of the Applicant's co-offender may have had adverse consequences for him in the prison setting, and that this may serve to explain why the Applicant refused to reveal the identity of his accomplice. 228 Mr Kintominas noted the finding of Hunt J that the Applicant had not been affected by drugs or alcohol at the time of the murder. Although it was suggested, at one point, that the Applicant may invite this Court to come to a different factual conclusion, no such submission was pressed at the end of the hearing. The Applicant did not give evidence on the present application. 229 In any event, Mr Kintominas submits that the Applicant had never claimed that the substances, which he said he had ingested, had provoked a murderous rage on his part. Rather, the Applicant had described to the psychiatrist a dissociative state of mind which appears consistent with heavy amphetamine usage. It was submitted that such a dissociative state of mind may result in the weakening of usual human inhibitions in murdering a fellow human being. 230 Counsel submits that the significance of a potential finding that the Applicant was not affected by drugs and alcohol is that the Court may have more confidence in the proposition that he is unlikely to offend, given his abstinence from drugs whilst in prison. 231 Mr Kintominas concluded that the setting of a non-parole period would provide incentive for the Applicant to undertake appropriate treatment and counselling within the prison system, and that this would be in the public interest. Resolution of Competing Submissions 232 There are a number of matters which the Court must take into account in determining whether a non-parole period, with or without a specified term for the sentence, ought be fixed. Circumstances Surrounding the Offence of Murder 233 A critical factor bearing upon my decision on this application is an assessment of the objective seriousness of the Applicant's crime of murder. The Crown does not submit that this is a "worst case" of murder, so that the application should be refused with a direction that the Applicant may never reapply to the Court: cl.6(1)(a), Schedule 1, 1999 Act. Rather, the Crown submits that this offence is close to that category, and that factors which bear upon such an assessment are presently relevant. Assistance may be derived from decisions such as R v Garforth (Court of Criminal Appeal), R v Fernando (Abadee J) and R v Fernando [1999] NSWCCA 66 at [341]ff. 234 The facts surrounding the offence of murder appear earlier in this judgment (paragraphs 22 to 32). It is appropriate that I consider the circumstances of this case to see if there are particular features of very great heinousness, and an absence of factors mitigating the seriousness of the crime (as distinct from subjective features mitigating the penalty to be imposed). Heinousness has been described as meaning "atrocious, detestable, hateful, odious, greatly reprehensible and extremely wicked": R v Harris (2000) 50 NSWLR 409 at 423 [85]. Features which bear upon the heinousness of the Applicant's crime of murder in this case include the following: (a) there was the element of premeditation and planning prior to the actual killing: R v Garforth at 3; R v Fernando at 540 (Abadee J); R v Fernando at [349] (Court of Criminal Appeal); (b) there was a forced abduction of KS prior to her killing, and a sexual assault upon her which aggravate the crime of murder: R v Garforth at 8-9; R v Fernando at 540 (Abadee J); R v Fernando at [349] (Court of Criminal Appeal); (c) KS was physically disabled (see paragraph 22 above) and the Applicant, I infer, would have become aware of her particular vulnerability at the time of, or soon after, the abduction; (d) the victim experienced extended suffering over a period of time from her abduction until the time of her death, which would have constituted a terrifying ordeal for her: R v Fernando at 541 (Abadee J); R v Fernando at [349] (Court of Criminal Appeal); (e) the Applicant intended to kill KS from the time that he abducted her, and he chose the occasion to stab her to death when she may have cried out and drawn attention to the Applicant, thereby leading to his apprehension: R v Fernando at 541 (Abadee J); R v Fernando at [350] (Court of Criminal Appeal); (f) the Applicant was on parole for sexual assault offences at the time when he murdered KS, in the context of having abducted and sexually assaulted her: R v Fernando at [348] (Court of Criminal Appeal). 235 Hunt J held that the Applicant was not affected by drugs or alcohol at the time of the abduction, sexual assault and murder of KS. The Applicant has not given evidence on the present application, and no basis has been identified for me to reach a different conclusion to Hunt J in this respect. Mr Kintominas did not submit that I should treat the Applicant's accounts of drug usage contained in the reports before me as evidence of the truth of the fact by reason of s.60 Evidence Act 1995. I would not be prepared to attach weight to those statements, in any event, given that they are based on self-serving, unsworn and untested assertions: R v Kalajzich (1997) 94 A Crim R 41 at 46; R v Qutami (2001) 127 A Crim R 369 at 377 [58]-[59], 380 [79]; R v Palu (2002) 134 A Crim R 174 at 184-185 [40]-[41]. 236 The Applicant left the scene of the murder of KS to attend his place of employment, where he discharged duties thereafter without apparent disturbance. This does not suggest that the Applicant was affected by alcohol or a drug on that day. 237 I accept the Crown submission that the heinousness of the murder in this case approaches, and is close to, a "worst case" of murder. I am satisfied that the Applicant's murder of KS reveals grave criminality which is more than comfortably accommodated within the statutory concept of a "most serious case of murder" for the purpose of cl.6(4)(a), Schedule 1, 1999 Act. Other Offences For Which the Applicant Has Been Convicted 238 The Applicant's criminal history does not assist him on this application. The Applicant's antecedent history illuminates his moral culpability, and shows his dangerous propensity: Veen v The Queen (No. 2) (1988) 164 CLR 465 at 477-478. 239 The Applicant had committed a series of offences of abduction and sexual assault in the 1980s, culminating in the murder of KS on 2 October 1987. Each of these offences were committed whilst the Applicant was on parole in 1982 and 1987. 240 It is clear that the Applicant has demonstrated a dangerous propensity to commit offences of this type. The Applicant set out to prey upon young women in public places, whilst armed, for the purpose of abducting them and conveying them by motor vehicle to isolated places where they could be sexually assaulted. The Applicant's offences were planned and, according to statements by the Applicant to Dr Wong, reflected urges which he had at that time to abduct, rape and murder young women. 241 The series of crimes between 4 September and 2 October 1987 were committed whilst the Applicant was said to be living happily in a relationship with Mrs Y, who was pregnant. Despite this outward appearance of domestic stability, which would suggest the existence of a platform for reformation and rehabilitation, the Applicant was seeking out young women to abduct and sexually assault, whilst armed and, on one occasion, whilst in company. 242 In my view, these features of the Applicant's criminal history provide no assistance to him on the present application. Rather, they demonstrate a pattern of recidivist conduct involving abduction and sexual assault of a grave type, which point to a dangerous propensity on the part of the Applicant. Recommendations, Observations and Comments of Hunt J 243 In considering a life sentence redetermination application, the Court must have regard to, and give substantial weight to, any relevant recommendations, observations and comments made by the sentencing Judge when imposing the sentence concerned: cl.7(3)(a), Schedule 1, 1999 Act. The Court must give consideration to adopting or giving effect to the substance of any recommendation, observation and comment and the intention of the sentencing Judge when making them: cl.7(3)(b). To the extent that I decline to adopt or give effect to any such recommendation, observation or comment, a record of reasons for doing so must be made: cl.7(3)(c). 244 Hunt J made no recommendation in his remarks on sentence. Prior to 1989, it was the case that some Judges considered it appropriate in a heinous case to make a non-release recommendation and other Judges did not: Baker v The Queen [2004] 233 CLR 513 at 522 [9]. There was no statutory basis for making such a recommendation: R v Jamieson (1992) 60 A Crim R 68 at 80; Baker v The Queen at 520 [7]. 245 Mr Kintominas drew attention to certain observations and comments by Hunt J in the course of his remarks on sentence on 14 October 1988. He submitted that Hunt J had not made a non-release recommendation and had observed that the determinate sentences ought not be so crippling that there be "no hope left for the prisoner in the future". Mr Kintominas submits that this comment demonstrates that Hunt J was not of the view that the Applicant's crime was so serious as to preclude future release. 246 Care must be taken not to read too much into this comment by Hunt J which related to the fixing of determinate sentences for crimes other than murder. In any event, the Crown is not contending on this application that the Applicant should never be released. Rather, the Crown argues that the present application ought be refused and a lengthy period fixed before the Applicant may again apply to the Court. I do not consider that this comment of Hunt J provides support for the present application. 247 There are further comments or observations of Hunt J which I should mention. His Honour observed (see paragraph 51 above) that subjective material tendered on sentence indicated that the Applicant had "embraced religion since he has been in custody" and that "two quite remarkable references tendered … speak of the prisoner's apparently genuine remorse for what he has done and of his attempts at personal rehabilitation". Hunt J said that "all of the material put before me shows that the prisoner has indeed changed in his attitudes over the year that has passed since his arrest". 248 I do not consider that my findings are inconsistent with these comments or observations of Hunt J made in 1988. His Honour observed what appeared to be the commencement of a process of change in the Applicant. On the evidence before me in 2007, I do not consider that the Applicant has taken objective steps towards personal rehabilitation. He has not made serious and sustained efforts to obtain treatment and counselling in prison. Further, his sexual interference with Miss X operates against the Applicant's claim of reformation and rehabilitation. In summary, although the Applicant's path towards rehabilitation appeared promising in 1988, as Hunt J commented, his action and inaction since that time does not provide a foundation for findings now which are favourable to the Applicant. The SORC Reports and Other Reports 249 Upon analysis, the various reports concerning the Applicant provide little assistance to him on this application. It seems clear that the Applicant has generally been a well-behaved prisoner whilst in custody. However, the crimes for which he was sentenced involved the forcible abduction, sexual assault and murder (on one occasion) of young women whom he came upon as strangers in public places. A record of general good conduct whilst in custody sheds little light upon the process of reformation and rehabilitation of a person who has committed such offences. As Dr Wong observed (see paragraph 165 above), good conduct in the "highly controlled prison environment" should not be regarded as a significant positive prognostic guide so far as sexual recidivism is concerned. 250 A common theme in the various reports concerning the Applicant is the non-emergence, to date, of information which may provide an understanding of the Applicant's serious and persistent criminality. Such information as is known by way of assessment, indicates that the Applicant is a significant risk of reoffending if released into the community. Apart from the passage of time, there is little material which could provide the Court with any confidence with respect to the Applicant's conduct if released into the community. 251 Accordingly, the contents of reports concerning the Applicant do not assist him on this redetermination application. The Applicant's Age 252 The Applicant was born on 5 February 1961 and was aged 27 years when sentenced by Hunt J in 1988. He is now 46 years old. 253 The Applicant was not a very young man at the time he murdered KS. His conduct in 1987, and as early as 1982, had demonstrated a dangerous propensity to commit serious offences involving forcible abduction and sexual assault of young women. The age of the Applicant at the time of the murder does not assist him on the present application. 254 The Applicant is now approaching middle age. Dr Barclay's report in 1988 suggested that there may be a reduction in the Applicant's risk of reoffending when he reached his 40s. 255 The reports of Dr Lucas and Dr Wong provide no significant predictive pointers which assist the Applicant with respect to the risk of reoffending. In reality, the Applicant can call in aid the passage of years, and his ageing, as the only real factors operating in his favour in the present application. Practice of Release on Licence 256 As the Applicant was sentenced by Hunt J before 12 January 1990, the Court must have regard to the fact that the sentencing Court would have been aware that an offender sentenced to imprisonment for life was eligible to be released on licence under s.463 Crimes Act 1900, and would have been aware of the practice relating to the issue of such licences: cl.7(1)(d), Schedule 1, 1999 Act. 257 In approaching this statutory factor, it is necessary to bear in mind the lengthy determinate sentences imposed by Hunt J, together with those imposed by Judge Gibson QC in 1990. Given these substantial determinate sentences, I do not consider that this statutory factor is of any real assistance to the Applicant in this case. Remorse, Reformation and Rehabilitation 258 The existence of contrition or remorse is relevant to an assessment of an offender's prospects of rehabilitation and the likelihood of him committing further offences in the future: R v MAK and MSK [2006] NSWCCA 381 at [41]. 259 It may be said on behalf of the Applicant that he confessed to police with respect to his crimes against KS, and pleaded guilty to charges with respect to KS and LB. Thereafter, in December 1989, the Applicant volunteered the fact that he had committed offences against TI and AF. He pleaded guilty to those charges. 260 On the other hand, the Applicant still appears to maintain that he did not sexually assault LB, despite his plea of guilty to that charge. He adheres to a self-serving version of his 1982 offences which continues to minimise the criminality found by the jury (at trial) and Reynolds J (on sentence). He denies sexual interference with Miss X in about 1993. I have found that such an incident did, in fact, take place. 261 I accept that there is some element of remorse revealed by the Applicant's voluntary disclosure in December 1989 of his offences against TI and AF. However, I am also satisfied that significant pragmatic considerations, of a self-serving type, operated on the Applicant's mind as well, leading him to take that course. Disclosure of these crimes does not, in my view, constitute unequivocal evidence of genuine remorse on the Applicant's part. I am satisfied that the Applicant had in mind that these offences may possibly come back to haunt him at a later time and that the best course, in his interest, was to admit to the offences, thereby ensuring an entirely concurrent sentence running with his life sentence. The contents of the Applicant's letter (see paragraph 69 above) supports this conclusion. The Applicant's disclosure of these crimes appears to fit more comfortably into Dr Wong's category of disclosure to "wipe the slate clean". 262 The Applicant's claim of reformation and rehabilitation is compromised significantly by the incident of sexual interference upon Miss X in about 1993. 263 I accept Dr Wong's evidence that the most powerful positive evidence that the Applicant has embarked upon a pathway towards reformation and rehabilitation would be active steps by him to seek out, and undertake, treatment and counselling with respect to his past criminality whilst in custody. I acknowledge that treatment and counselling of this type may not be readily available in custody. Nevertheless, I am not satisfied, on the evidence, that the Applicant has actively pursued such treatment and counselling as may be available to him in custody. In my view, this conclusion operates adversely to the Applicant in this case. 264 The Applicant's conversion to Christianity provides limited assistance to him on this application. I have the clear impression that the observations of the Special Care Unit Officer made on 6 October 1989 (see paragraph 154) that the Applicant "has convinced himself that now that he has found God he has been forgiven all his past sins and has received absolution" has dominated the Applicant's thinking thereafter with respect to the need for treatment and counselling as a means of developing genuine insight and to demonstrate reformation. The Applicant appears to have convinced himself that a belief in divine forgiveness is a form of substitute for objective evidence of insight, reformation and rehabilitation. The Applicant is a serial rapist who has murdered one of his victims. It ought be clear to the Applicant that the Court (and the community) will expect solid and substantial evidence of reformation and rehabilitation, extending beyond the passage of years and the subjective claim that he is a changed man, in support of an application for redetermination of his life sentence. The Need to Preserve the Safety of the Community 265 The Court is required to have regard to the need to preserve the safety of the community in considering the present application: cl.7(1)(b), Schedule 1, 1999 Act. 266 The circumstances of the offence of murder, taken with the Applicant's history of serious crimes against women, demonstrate the presence of a dangerous propensity on the part of the Applicant, in and prior to 1987. The evidence of Dr Wong (and the report of Dr Lucas) indicates that the Applicant has gained little by way of insight into his serious offending. Any process of treatment or counselling which may assist in this respect is yet to occur. 267 The risk assessment undertaken by Ms Rosen, and the assessment by Dr Wong, do not provide support for the Applicant. It is the opinion of both that there is an appreciable risk of reoffending by the Applicant. 268 The need to preserve the safety of the community and, in particular, women in the community, is a real and substantial impediment to the application to redetermine the Applicant's life sentence. Totality 269 It is clear that the totality principle applies to resentencing on a life sentence redetermination application: R v Salameh [1999] NSWCCA 300 at [30]. The circumstance that a person is a multiple offender is a material consideration in any sentencing exercise, including a life sentence redetermination application: R v Boyd (1995) 81 A Crim R 260 at 264. 270 In the present case, the Applicant has been subject to determinate sentences which expired (as to head sentence) in 2003. The sentences imposed by his Honour Judge Gibson QC in the Liverpool District Court in 1990 did not expire until May 2000. The offences for which these determinate sentences were passed included a range of offences committed against several victims, including KS. 271 In my view, it is appropriate for the Court, in considering a redetermination application, to have regard to the existence and duration of determinate sentences in deciding whether to set a non-parole period at all, as well as the question of the duration of any non-parole period. If I had determined to set a non-parole period in this case, I could not disregard the determinate sentences passed upon the Applicant because to do so would, in effect, mean that the Applicant was punished only for the murder, and not for the other offences: R v Purdey at 680; R v Salameh at [30]-[36]; R v Maiden [2000] NSWCCA 519 at [21]ff. 272 As I propose to refuse the present application, it is inappropriate for me to say more concerning the application of the totality principle to this case. Conclusion 273 Courts have observed that a Judge, on a redetermination application, has the advantage of hindsight when approaching the question of sentence: R v Malcolm (1991) 58 A Crim R 148 at 150, R v Page [2002] NSWSC 1067 at [69]. This is an advantageous position where information about, and professional observations of, the offender are much more extensive given the passage of years since imposition of the original sentence: R v Towner [2002] NSWSC 951 at [57]. In the present case, however, hindsight provides little assistance to the Court. This is because there has been no real therapeutic process by way of treatment or counselling which would assist an objective assessment of the Applicant's prospects of reformation and rehabilitation, and the risk of reoffending. 274 I do not accept the Applicant's submission that the interests of the community may be adequately protected at this time by the setting of a non-parole period with the State Parole Authority to consider the question of the Applicant's release to parole at some future time. 275 I have formed the view that the application to fix a non-parole period, and to specify a term for the Applicant's life sentence, ought be declined. The gravity of his crime of murder, taken with his serious history of criminality and the presently inadequate evidence concerning measures which would permit an objective assessment of a reduced risk of reoffending, lead me inexorably to this conclusion. 276 This is a conclusion which I would have reached even if I had not found that the Applicant sexually assaulted Miss X. However, that finding clearly does not assist the Applicant in this case. I stress that the Applicant is not being sentenced to a further term of imprisonment for the sexual assault on Miss X. That incident is being taken into account as part of the assessment of the Applicant's prospects of rehabilitation, his risk of reoffending and with respect to the statutory factors of protection of the community and the public interest. 277 In my view, the present application is premature. The lengthy determinate sentences imposed upon the Applicant in 1987 and 1990 are such that, having regard to the principle of totality, more time should pass before further consideration is to be given to redetermination of the life sentence. Further, there is an inadequate and unsatisfactory evidentiary foundation for the Court to address the statutory criteria and, in particular, the protection of the community. 278 I am satisfied that the Applicant's crime is a most serious case of murder. I am satisfied that it is in the public interest that a direction be made that the Applicant not be permitted to reapply to the Court for a period exceeding three years. The phrase "in the public interest" takes its meaning from the statutory context in which it appears: R v Kalajzich at 49. It classically imports a discretionary value judgment, and a determination where the public interest lies is a question of fact and degree: WorkCover Authority (NSW) v Law Society of NSW (2006) 65 NSWLR 502 at 533 [146]. Factors which bear upon the public interest, in this context, include those referred to in paragraph 277 above. An emphatic statement must be made to the Applicant that he should take more effective steps to advance his own cause with respect to treatment and counselling, if further application for redetermination is to be made by him. 279 If the Applicant is prepared to undertake the CUBIT program, and that opportunity could be made available to him by custodial authorities, it is apparent that such a course could advance the public interest in this case. The Crown drew my attention to the decision of Newman J in R v Clarke [1999] NSWSC 1225, where a life sentence redetermination application was refused to an offender who was able thereafter to undertake the CUBIT program, leading to a later setting of a non-parole period by Hidden J: R v Clarke [2005] NSWSC 413. 280 If it is open to the prison authorities to facilitate the Applicant's entry into the CUBIT program, or some other or equivalent program, that course would appear to be highly desirable. In raising this prospect, I should not be understood as indicating that, if the Applicant completes such a program, he will be liable to succeed on a future redetermination application. If such application is made, it will be a matter for the presiding Judge to determine, on the evidence before the Court, whether the application ought be granted. 281 I have been led to make these observations because the common view of Dr Wong, Dr Lucas and Ms Rosen is that it is more than highly desirable that the Applicant have an opportunity to undertake the CUBIT program. 282 Having regard to the various factors to which reference has been made in this judgment which bear upon the fixing of a period during which the Applicant may not bring a further application, I am satisfied that a direction ought be made that he not reapply to the Court for a period of seven years from today. 283 I make the following orders: (a) pursuant to cl.4(1)(c), Schedule 1 of the Crimes (Sentencing Procedure) Act 1999 , I decline to specify a term for the life sentence imposed on ASP on 14 October 1988 and I decline to specify a non-parole period for the said sentence; (b) pursuant to cl.6(1)(b), Schedule 1 of the Crimes (Sentencing Procedure) Act 1999 , I direct that ASP not reapply to the Court for a period of seven years from today, that is not before 13 April 2014, for the determination of a specified term and a non-parole period for the sentence referred to in Order (a) above. ********** 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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