Supreme Court New South Wales Medium Neutral Citation: Boyd v R (No. 3) [2017] NSWSC 863 Hearing dates: 9 December 2016 Date of orders: 30 June 2017 Decision date: 30 June 2017 Jurisdiction: Common Law Before: Johnson J Decision: The application to determine the Applicant's life sentences is refused. Catchwords: CRIMINAL LAW – application for determination of five life sentences imposed in 1985 - consideration of applicable statutory factors - offences held to be in worst category and involving great heinousness - sexual sadism involved in murder of three women and attempted murder of a fourth - four counts of murder and one of wounding with intent to murder – offences committed over seven-month period in 1982-1983 - Applicant has no real insight into offending - now 61 years old - consequence of refusal of application is that Applicant will remain in prison for the term of his natural life - application refused Legislation Cited: Children (Criminal Proceedings) Act 1987 Crimes (Sentencing Procedure) Act 1999 Crimes (Sentencing Procedure) Amendment (Life Sentences) Act 2008 Crimes Act 1900 Cases Cited: Boyd v R [2016] NSWSC 1691 Boyd v R (No. 2) [2016] NSWSC 1755 Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Pollock v R [2007] NSWSC 148 R v Boyd (1995) 81 A Crim R 260 R v Denyer (1995) 1 VR 186 R v Glen [2005] NSWSC 1093 R v Glen [2006] NSWCCA 153 R v Harris (2005) 50 NSWLR 409; [2005] NSWCCA 469 R v Hitchins (unreported, Grove J, 3 June 1993) R v Kilic (2016) 91 ALJR 131; [2016] HCA 48 R v Loveridge (2014) 243 A Crim R 31; [2014] NSWCCA 120 R v Lyttle (unreported, Newman J, 6 March 1996) R v McCafferty (unreported, Wood J, 15 December 1991) R v Rees (unreported, Smart J, 12 August 1993) R v Turner (unreported, Wood J, 20 August 1992) R v Wade [2013] NSWSC 1092 Van der Baan v R [2012] NSWCCA 5 Texts Cited: Ware and Marshall, "Treatment Engagement With A Sexual Offender Who Denies Committing the Offence" Ware, Marshall and Marshall, "Categorical Denial in Convicted Sex Offenders: The Concept, its Meaning and its Implications for Risk and Treatment" Category: Principal judgment Parties: Samuel Leonard Boyd (Applicant) Regina (Respondent) Representation: Counsel: Mr PM Strickland SC (Applicant) Mr H Baker (Respondent) Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2015/294899 Publication restriction: --- Judgment 1. JOHNSON J: The Applicant, Samuel Leonard Boyd, has made application to the Court for determination of five sentences of penal servitude for life imposed upon him in 1985. 2. This is the third and final judgment which I am delivering with respect to the Applicant. On 25 November 2016, I refused the Applicant leave to withdraw his application for determination of life sentences with reasons for that decision being published on 30 November 2016: Boyd v R [2016] NSWSC 1691. On 5 December 2016, I declined an application by the Applicant that I recuse myself from the hearing of his application: Boyd v R (No. 2) [2016] NSWSC 1755. Identification of Victims and Their Family Members in this Judgment 1. As will be seen, the Applicant was convicted of the murder of four persons, and the attempted murder of another person, in three separate events which occurred over a seven-month period in 1982-1983. 2. With respect to three of the murder victims and the victim of the attempted murder, the Applicant committed acts which were capable of being prosecuted as prescribed sexual offences. However, the Applicant was not charged with separate counts alleging sexual offences. The sexual features of his offences fall to be considered as part of the circumstances of the murder or attempted murder offences. Accordingly, s.578A Crimes Act 1900 does not operate to prohibit publication of the identity of these victims as they were not prescribed sexual offence proceedings. 3. As part of the Court's function in determining this application, it will be necessary to set out in some detail the graphic circumstances of the offences. 4. At the hearing, the Court received victim impact statements from family members of the victims, to which reference will be made later in this judgment. A number of family members were present at the hearing. I considered that it was appropriate to obtain the views of the family members as to identification of victims and family members in this judgment. 5. The Crown spoke to family members during the day of the hearing and further enquiries were made by the Crown after the hearing, the results of which were communicated to my Associate on 31 January 2017. 6. The Crown informed the Court that the children of the victim of the first murder on 13 September 1982 did not wish to be identified and I will adopt that course having regard to s.15A Children (Criminal Proceedings) Act 1987. 7. Other family members had no objection to the names of the victims or the names of the family members being published (T24-25, 9 December 2016). An exception to this was a victim of the final group of murders which took place on 22 April 1983, all of whose relatives could not be consulted. The Crown asked that her name not be published in this judgment. I agree with this approach and will refer to her as Ms HH. History of Proceedings Concerning the Applicant 1. The Applicant stood trial for all offences before O'Brien CJ of CrD and a jury. On 4 January 1985, the Applicant was found guilty by the jury of the following offences: 1. the murder of Rhonda Celea on 13 September 1982; 2. the murder of Gregory Wiles on 22 April 1983; 3. the murder of Patricia Volcic on 22 April 1983; 4. the murder of Ms HH on 22 April 1983; 5. wounding Olive Short with intent to murder on 22 April 1983. 1. The offences committed against Ms Volcic, Ms HH and Ms Short formed part of the same incident. 2. Following the return of these verdicts, O'Brien CJ of CrD proceeded to pass sentence, observing "I see no reason at all why you should not sustain the maximum penalty". His Honour sentenced the Applicant to five terms of penal servitude for life commencing on 22 April 1983. 3. On 11 December 1987, the Court of Criminal Appeal (Maxwell, Carruthers and McInerney JJ) dismissed the Applicant's appeal against conviction. 4. The Applicant has brought prior applications to determine his life sentences. On 7 July 1994, Carruthers J declined the first application by the Applicant to determine the life sentences. 5. On 18 September 1995, the Court of Criminal Appeal (Gleeson CJ, James and Ireland JJ) dismissed an appeal from the decision of Carruthers J: R v Boyd (1995) 81 A Crim R 260. 6. On 25 March 2000, the Applicant made a second application for the determination of the life sentences. On 4 April 2008, that application came before Hoeben J (as his Honour then was). Senior Counsel for the Applicant informed the Court that he had instructions to withdraw the application. At that time, the relevant legislation did not require the leave of the Court for an application to determine a life sentence to be withdrawn. Hoeben J noted that the application was withdrawn. 7. On 23 September 2015, the Applicant filed his third application for the determination of the life sentences. It is that application which has proceeded to hearing and is the subject of this judgment. The Final Hearing on 9 December 2016 1. The hearing of the application to determine the Applicant's life sentences proceeded on 9 December 2016. Mr Strickland SC appeared for the Applicant. Mr Baker of counsel appeared for the Crown. 2. The following material was tendered in the Applicant's case: 1. Applicant's folder of documents on application for determination of life sentences (Exhibit A) which contained: 1. Affidavit of the Applicant affirmed 25 November 2016. 2. Further affidavit of the Applicant affirmed 5 December 2016. 3. Transcript of the hearing before me on 25 November 2016 of the application to withdraw the application to determine the life sentences which led to Boyd v R [2016] NSWSC 1691 (referred to at [2] above). 4. Violence risk assessment of Danielle Matsuo, Senior Specialist Psychologist, Serious Offender Assessment Unit, dated 1 June 2012. 5. Affidavit of Danielle Matsuo affirmed 6 December 2016. 6. Treatment report of Luke Brabant, Specialist Psychologist, CUBIT, dated 27 April 2011. 7. Report of Dr Richard Furst, psychiatrist, dated 30 April 2016. 8. Applicant's Notice of Reply to Statement of Facts filed 17 August 2016. 1. Classification Committee history sheet with respect to the Applicant including a social background report dated 29 November 1973 (Exhibit B); 2. further report of Dr Furst dated 7 December 2016 and additional documents referred to in the report (Exhibit C); 3. two articles referred to by Ms Matsuo by Ware and Marshall, "Treatment Engagement With A Sexual Offender Who Denies Committing the Offence" (Exhibit D) and Ware, Marshall and Marshall, "Categorical Denial in Convicted Sex Offenders: The Concept, its Meaning and its Implications for Risk and Treatment" (Exhibit E); 4. affidavit of Alexandra Heffernan, the Applicant's solicitor, affirmed 6 December 2016. 1. The Crown relied upon a volume of material (Exhibit 1) and victim impact statements of members of the family of deceased persons (Exhibit 2). 2. The Crown volume (Exhibit 1) contained the following material: 1. Statement of Facts dated 21 July 2003 together with copies of the Applicant's police statement and record of interview dated 13 September 1982 and judgments of the Supreme Court of New South Wales and the Court of Criminal Appeal concerning the Applicant; 2. Notice of the Applicant's Reply to the Statement of Facts dated 18 August 2016; 3. transcript of the Applicant's first determination application before Carruthers J on 8 April 1994; 4. transcript of the Applicant's second determination application before Hoeben J on 4 April 2008; 5. psychiatric reports prepared for the present application from Dr Furst dated 30 April 2016 and Dr Michael Diamond dated 18 June 2016; 6. psychiatric reports prepared for earlier applications being those of Dr William Lucas dated 20 August 1993, 23 January 2006 and 8 October 2007 and Dr Robert Delaforce dated 26 March 2008 and 1 April 2008; 7. report of the Serious Offenders Review Council ("SORC") dated 16 February 2016 annexing previous SORC reports and other material including psychiatric reports of Dr Jonathan Phillips dated 11 October 1983 and Dr CL Wong dated 25 June 1984. 1. The following persons gave oral evidence at the hearing on 9 December 2016: 1. the Applicant (T10-13); 2. Danielle Matsuo, Director, State Wide Programs, Corrective Services NSW (T14-22); 3. concurrent evidence of Dr Furst and Dr Diamond (T26-57). 1. Dr Furst had been retained by the solicitor for the Applicant to provide a psychiatric opinion concerning the Applicant. Dr Diamond was retained for a similar purpose by the Crown. The detailed reports of Dr Furst and Dr Diamond, to which reference has been made, provided the foundation for their concurrent evidence. 2. Helpful written submissions were provided by Senior Counsel for the Applicant (MFI1) and the Crown (MFI2 and MFI3) with counsel speaking to their submissions and making further submissions by reference to the oral evidence given at the final hearing (T59-72). Facts of the Offences 1. The following narrative is drawn from the Crown submissions, which summarise accurately the primary documents giving rise to this summary. 2. The circumstances surrounding the five offences are outlined in the Statement of Facts dated 21 July 2003 and the annexures to it (see [21](a) above). 3. In the Applicant's Notice of Reply to Statement of Facts dated 17 August 2016 (see [21](b) above), the Applicant accepted the facts "subject to the following": 1. "Some of the alleged facts are outside the Applicant's knowledge and recollection such that he can neither accept nor reject the same but, he accepts that he killed Gregory Wiles, [Ms HH], Patricia Volcic and did wound Olive Short with intent to murder"; 2. "The Applicant has always and does now deny he killed Rhonda Celea or otherwise harmed or assaulted her in any manner whatsoever". 1. I note that the Statement of Facts and Applicant's Notice of Reply were prepared pursuant to the now repealed Practice Note 57, "Criminal Proceedings - Applications for Terms for Life Sentences" (issued 2 February 1990). The First Offence - The Murder of Rhonda Celea at Busby on 12 September 1982 1. The Applicant was working as a self-employed pest exterminator in August and September 1982 when he carried out some work for the victim, Ms Celea, who was aged 27. The Applicant was aged 26 at that time. The Applicant was living with his family in Busby. 2. Ms Celea was a mother of two who had separated from her husband and was living in Busby. The Applicant first visited her at home on 20 August 1982 to give her a quotation for weed and pest removal. He carried out that work on 23 August 1982. He returned on 9 September 1982 to inspect the work and, according to the information he gave police, he had arranged with Ms Celea to return again on Monday, 13 September 1982 to carry out further work. 3. The Statement of Facts indicates that the police arrived at Ms Celea's home at 8.30 am on Monday, 13 September 1982 in response to a telephone call by the Applicant. The Applicant had said in the call that he had arrived at the house a short time earlier to find a body inside the house. He took the police to the rear of the house. The police opened a flyscreen door and saw Ms Celea's naked body lying in the hallway. A closer inspection of her body revealed a bloodstained child's dress over her face and a gaping laceration of her throat. Her body was lying on its back with the legs apart. There were bruises and abrasions about her genital area. Pantyhose, panties and a dress were in the hallway a short distance from her body. 4. A post-mortem examination conducted later that day by Dr Pirie showed the following injuries: 1. an 11 centimetre incised transverse wound across the front of her neck, which severed arteries, veins and her windpipe; 2. other lacerations in the same area as well as facial bruising; and 3. minor bruising and abrasions to the posterior wall of her vagina. 1. Dr Pirie's estimate of the time of death was between 8.00 pm on the preceding day, Sunday, 12 September 1982, and 4.00 am on Monday, 13 September 1982. 2. Later on 13 September 1982 at Green Valley Police Station, the Applicant gave the police a written statement (which he signed) and he took part in a record of interview, the transcript of which he also signed. He was allowed to leave the police station afterwards. 3. I accept that the Applicant's statement and interview are highly significant. They demonstrate that the Applicant was not affected by drugs or alcohol on the day after the murder. Rather, they reveal that he had an excellent memory of what had occurred between himself and Ms Celea, up to a point prior to her death, at which point he claimed that he had not seen her alive again. 4. The Applicant told police that he went on holiday with his family between 26 August 1982 and 8 September 1982. The day after their return, 9 September, at about 4.00 pm, he "called at" Ms Celea's property to inspect his work and spoke with her "in the front yard of the property". She had her baby with her at this time. She told him that "she was satisfied with the work" but (according to the Applicant) he said, she asked him to carry out further work killing grass and weeds at the side of the garage. He said that they agreed he would do this further work on the morning of 13 September 1982. He claimed that this was the last time he saw her alive. Clearly, this last part of his statement was rejected by the jury. 5. The Applicant stated that he arrived at Ms Celea's home at about 8.30 am on 13 September 1982 and parked out the front. He said that he "jumped the fence [the gate was padlocked] and walked up to the front door". After knocking on the front door, he said that he heard a baby crying inside the house and there was no response to his knocking, so he went around to the side of the house and walked up onto the back landing. He said that he saw the screen door was closed but the back door was open. He said that there was no response when he knocked on the screen door and said, "Hello". He said that the light on the porch above the back door was on. He looked through the screen and saw "a body": "The head of the body was facing towards the back door. The body was on its back. I could still hear a baby crying and saw Mrs. CELEA's baby in the doorway of the kitchen. The baby was on its knees. The baby was close to the body. I opened the screen door and entered the house. I went up to the body. The body was of a female. The body was naked. The throat had been cut." 1. He said that he picked up and cleaned the baby with a towel in the bathroom, then contacted the police. When the police arrived, he took them into the house and showed them "the body". He stated, "That's all I can recall". 2. The Applicant largely repeated his exculpatory version in his record of interview which took place on the evening of 13 September 1982. 3. The Statement of Facts described how, over the next few weeks, the Applicant referred to himself in conversation with his wife and friends as the "Busby Ripper". The Applicant's later explanation to Dr Delaforce, psychiatrist, about this term was that it was "an off-the-cuff joking remark to him by a neighbour that Mr Boyd just took as a joking remark". 4. It is appropriate at this point to explain the relationship between the murder of Ms Celea and the later murders and attempted murder at Glenfield against other female victims. In advance of the trial, O'Brien CJ of CrD had declined an application for a separate trial for the murder of Ms Celea, holding that there were striking similarities with the murders and attempted murder committed by the Applicant on 22 April 1983. On the hearing of the appeal against conviction, the Court of Criminal Appeal (Maxwell, Carruthers and McInerney JJ), on 11 December 1987, rejected the Applicant's challenge to this decision. 5. This finding was of particular significance for the reason explained by the Court of Criminal Appeal: "The question in issue was one of identity and for the evidence of the Glenfield matters to be admissible in respect to the Busby matter, it must be capable of identifying the actor in the Busby incident with the actor identified in respect of the Glenfield incident. In this respect, in relation to the Glenfield murders, counsel for both parties at the trial conceded that there was no other reasonable explanation of those deaths but that the appellant inflicted the injuries which caused them and the defence was not based on one of identity but on other grounds. Further, as to the Busby murder, it was not disputed that the man who caused the injuries to the deceased was guilty of her murder. The real issue in that case was whether it was the appellant whose acts caused her death." 1. The Court of Criminal Appeal upheld the decisions of O'Brien CJ of CrD that there was "striking similarity in the method of the killing" and that the similarities between the circumstances of the incidents "were so striking that it was proper that they should be left to the jury to decide whether, having been satisfied of the identity of the accused as the person who committed the Glenfield matters, they were satisfied that he must have committed the Busby matter". 2. The striking similarities between these offences remains an important factor in the application given the Applicant's continuing denial that he murdered Ms Celea. The Second Offence - The Murder of Gregory Wiles on 22 April 1983 1. The Applicant's second murder occurred slightly more than seven months after the first. He had been with the victim, Mr Wiles, on the night of the murder but it was unclear what had happened in the immediate lead up to the offence. The Applicant has never given a version of what occurred during the murder itself or exactly where it took place. 2. The Statement of Facts indicates that on the evening of Thursday, 21 April 1983, the Applicant, then aged 27, was with Mr Wiles, also 27, for a short period at the Arch Bar Hotel at Liverpool. They were seen together again the following morning, Friday, 22 April 1983, at about 1.40 am at the Scaramouche Disco in Liverpool. The Applicant left the disco shortly before the 3.00 am closing time. 3. The Applicant gave the following version to Dr Phillips in 1983 (recorded in the report of 11 October 1983) as to what happened after he left the Scaramouche Disco: 1. the Applicant elected to drive Mr Wiles, who was an acquaintance, with whom he did not have a close friendship; 2. when they walked out of the disco, they noticed police in the area; 3. they waited for a while before entering the Applicant's car; 4. they drove towards Minto before stopping briefly at a service station to buy cigarette papers; 5. they stopped at Glenfield at approximately 3.00 am and smoked two joints, one of which included "grass" purchased at the disco; 6. the Applicant could remember nothing unusual about the joints; and 7. his next memory was wandering in the caravan park and being covered in blood. 1. The Applicant's case at trial was that he had been drinking at the Arch Bar on the night of 21 April 1983, he went home and got changed and then went back to the Arch Bar where he continued drinking, and then went to the Scaramouche Disco. On leaving the disco, he bought cigarette papers at a service station and smoked marijuana. Thereafter he claimed that he had no recollection until after the offences. 2. There has never been any explanation as to what happened immediately before Mr Wiles was murdered. His body was found at 7.15 am on 22 April 1983 at the side of a road in Glenfield with severe injuries to his head, consistent with hammer blows. His trousers were "pulled down around his knees". Mr Wiles' wallet was found in the Applicant's blood-spattered vehicle. 3. A post-mortem examination conducted by Dr Pirie late on the afternoon of 22 April 1983 showed that Mr Wiles had suffered a number of lacerated wounds to his head. One wound was to the right side of his forehead, just above the eyebrow, that fractured his skull. Dr Pirie considered that the cause of death was cerebral haemorrhage and lacerations and a fractured skull, caused by multiple blows to the head by a blunt instrument. 4. A claw hammer, similar to one admittedly owned by the Applicant, was located in the Glenfield Park Special School near the bedroom occupied by Ms Short, where the offences to which I will now turn took place. The Third, Fourth and Fifth Offences - The Murders at Glenfield of Ms HH and Patricia Volcic and the Wounding With Intent to Murder of Olive Short on 22 April 1983 1. The Applicant's mother worked at the Glenfield Park Special School between 1973 and 1976. At that time, the Applicant was aged about 18 to 21 years. The school was a residential establishment for mildly intellectually handicapped children of both sexes, aged 8 to 18 years, with three dormitories for boys and one for girls. 2. The Applicant visited his mother at the school on a number of occasions and met Ms HH. During the attack, he referred to Ms HH by her first name. 3. The three female victims were all employed by the school and each had her own room to sleep in overnight. 4. Ms Short, aged 58, awoke to a scream and a male voice at about 4.45 am on 22 April 1983. She opened her door to investigate and saw Ms Volcic, aged 33 years, and Ms HH, aged 55 years, both standing naked in the doorway, being menaced by the Applicant who had a blood stained, red-handled knife in his hand. 5. The Applicant told Ms Short to get back in her room, take her clothes off and that she would not be killed, but added, "I've already killed one tonight". He said that the alarm had been turned off and there was no security around. 6. Ms Short went back into her room and the Applicant pushed the other two victims into the room, following them in. From the conversation which followed between the Applicant and Ms Short, it would appear that the Applicant's purpose in coming to the school had been to seek sexual satisfaction with girls of advanced teenage years whom he expected to be sleeping there. He was informed that there were no girls aged 17 or 18 in the dormitories. 7. Because Ms Short survived the ordeal, she was able to give evidence of what the Applicant did. This was very important in the circumstances or this case. If Ms Short had also died, it would have been left to the forensic evidence and other circumstantial evidence to explain what happened together with any account which the Applicant provided. Instead, the bravery of Ms Short in testifying concerning these terrible events played a critical part in the prosecution of the Applicant. Her evidence continues to be very important as it portrays acts of the Applicant which have given rise to a diagnosis of sexual sadism. 8. The Applicant engaged in the following series of brutal, sexually-related attacks on the three women: 1. he pushed Ms Volcic down in front of him and forced her to perform fellatio on him at knifepoint - it is clear that the Applicant was sexually excited by the events; 2. he told Ms Short to lie on the bed; 3. he directed Ms HH to perform cunnilingus on Ms Short and when Ms HH protested he told her, "Do as you are told, [HH]. Your husband used to do it to you"; 4. Ms Short ran out of the bedroom to try to reach the alarm in the hallway, but he chased her and reached her just before she was able to get to the alarm. He punched her in the face, got her back in the bedroom, stabbed her in the back and knocked her onto the bed; 5. he directed Ms Short to tie up Ms HH's hands and told her he would kill her if it came undone; 6. he cut up a pillow case and made Ms Volcic tie Ms Short's hands with the strips and also stuff tissues into her mouth; 7. he tied a gag around Ms Short's mouth; 8. he tied up Ms Volcic's hands; 9. by that stage, all three victims had their hands and feet tied and were lying with their backs on the bed; 10. he walked up and down from one victim to the other, slashing and stabbing each in turn in the neck; 11. Ms Short recalled that she pretended to be dead after the Applicant had stabbed her "a lot of times" and remembered the Applicant stabbing Ms Volcic "badly"; 12. Ms Short heard a muffled noise coming from Ms Volcic and saw the Applicant push her off the bed and stamp on her or kick her; 13. Ms Short remembered the Applicant turning off the lights and exiting - she was able to free her hands and remove the gag and tissues, but remained bleeding in the room until staff arrived at 6.30 am; 14. There was evidence that the Applicant ejaculated during those acts as borne out by the following features; 15. later scientific examination found the presence of semen on vaginal swabs and smears on the body of Ms HH; and 16. later scientific examination also found the presence of semen on anal and vaginal swabs and smears from the body of Ms Volcic. 1. After the Applicant stabbed Ms Short many times, she closed her eyes and pretended to be dead. She remembered the Applicant turning off the lights before leaving the room. 2. Ms Short was able to get her hands free and remove the gag and tissues from her mouth. She remained bleeding in the bedroom until the day shift arrived at about 6.30 am, when she was able to attract their attention. 3. Ms Short was taken to Liverpool Hospital where she was treated for 27 incisions on the anterior neck from one to 10 centimetres in length, one of which had transacted the right internal jugular vein. She also had a 10 centimetre incision on the right shoulder. 4. Post-mortem examinations by Dr Pirie that afternoon disclosed the following injuries to Ms HH and Ms Volcic. 5. Ms HH had 25 incised wounds in a horizontal direction across the front of her throat, with the carotid artery being severed, and her trachea and thyroid cartilage cut three times. A plastic bag had been packed into her mouth. The cause of death was external haemorrhage due to incised neck wounds. 6. Ms Volcic had 22 wounds, each of one to three centimetres, on the front of her neck, with underlying arteries severed including the carotid artery and her trachea had been cut. There was a piece of the end of a knife in her scalp. The cause of death was the severed carotid artery and multiple neck wounds. The Applicant's Movements Following the Attacks on 22 April 1983 1. The Applicant was seen driving his vehicle at about 5.45 am that morning, 22 April 1983, into a Lansvale caravan park where he was residing. 2. Residents saw that he was staggering and covered with blood. He was approached and said that he could not remember anything after leaving the Scaramouche Disco and he requested that the police be called. He was taken to a caravan and he put a red-handled pocket knife on a table. 3. When questioned later by police at Cabramatta Police Station, he admitted that he had gone to the Glenfield Park Special School with his mother when she worked there several years earlier. He said that his last recollection of events that morning was buying a packet of cigarette papers from a service station attendant at Casula with Mr Wiles. 4. At 10.00 am on 22 April 1983, the Applicant (then 27 years of age) was arrested and charged with the five offences in relation to which he was convicted by the jury. He has been in custody since 22 April 1983. Trials of the Applicant 1. The Applicant was first arraigned on all five counts before Wood J at the Supreme Court on 23 July 1984. He pleaded not guilty to each count and a jury was empanelled and the trial commenced. On 25 July 1984 (the third day of the trial), Wood J discharged the jury and remanded the Applicant for trial on a date to be fixed. 2. The Applicant was again arraigned on all five counts on 30 November 1984 before O'Brien CJ of CrD. He again pleaded not guilty to each count and a jury was empanelled and the trial commenced. 3. The jury retired to consider its verdicts at 4.30 pm on 3 January 1985 (the 22nd day of the trial), returning at 12.48 am on 4 January 1985 with verdicts of guilty in respect of all counts. 4. At the conclusion of the short proceedings on sentence that day, O'Brien CJ of CrD imposed the sentences of penal servitude for life referred to earlier in this judgment. The Statutory Scheme for Determination of Life Sentences 1. Section 44(4) Crimes (Sentencing Procedure) Act 1999 provides that Schedule 1 has effect in relation to existing life sentences referred to in that Schedule. The Applicant's life sentences fall within the definition of "existing life sentence" in Clause 1 of Schedule 1. 2. Clause 2 of Schedule 1 provides as follows: "2 Applications for determination of non-parole periods (1) Subject to clauses 6 and 6A (2), 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." 1. As the Applicant has served at least eight years of the sentence concerned, he is eligible to make the present application: Clause 2(2)(a). I note that a "non-release recommendation" (as defined in Clause 1 of Schedule 1) was not made in the case of the Applicant. 2. Clause 2A (which was introduced in 2008) places a restriction on the number of determination applications which may be made. The Applicant is confined to the making of one application: Clause 2A(2). If the Court declines to set a specified term for the sentence or to set a non-parole period, the Applicant is to serve the existing life sentences for the term of his nature life: Clause 2A(3). 3. Clause 3 of Schedule 1 sets out matters to be considered by the Supreme Court on the making of an application to determine an existing life sentence. Clause 3 provides: "3 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." 1. Clause 7 of Schedule 1 provides for further matters to be considered by the Court on an application. Clause 7 states: "7 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. (5) In considering an application referred to in clause 2 (1) that is made on or after 17 June 2008, or that was made before that date but not finally disposed of before the commencement of the Crimes (Sentencing Procedure) Amendment (Life Sentences) Act 2008, the Supreme Court must have regard to and give substantial weight to the following: (a) the level of culpability of the offender in the commission of the offence for which the sentence was imposed, (b) the heinousness of the offence." 1. As the Applicant was sentenced before 12 January 1990, Clause 7(1)(d) of Schedule 1 had application to this case. 2. As the present application was made after 17 June 2008, Clause 7(5) has application to him as well. Clause 7(5) was introduced by the Crimes (Sentencing Procedure) Amendment (Life Sentences) Act 2008, which I considered for other purposes in Boyd v R [2016] NSWSC 1691 at [16]-[20]. 3. Clause 7(5) requires the Court to "have regard to and give substantial weight to" the "level of culpability" of the Applicant in the commission of the offences and the "heinousness" of the offences. It will be necessary to keep in mind these changes to the statutory scheme when considering submissions made by reference to cases decided before 2008 to which these provisions did not apply. 4. In the Agreement in Principle speech concerning the 2008 Act, Mr Campbell, the Minister for Police said the following concerning the new Clause 7(5) of Schedule 1 (Hansard, Legislative Assembly, 18 June 2008): "The legislation currently provides that upon an application for a redetermination of a sentence the court is to have regard to all of the circumstances surrounding the offence for which the sentence was imposed, as well as a number of other factors including: any reports on the offender made by the Review Council; any other relevant reports prepared after the offender was sentenced that are available to the Supreme Court; the need to preserve the safety of the community; and 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. The bill adds an additional specific factor for consideration that the court should give substantial weight to: the culpability of the offender in the commission of the offence, and whether the offence was in the worst category of cases. This will ensure that the court turns its attention to the objective features of the offence and whether it was so heinous a crime as to fall within the worst-case category. The terminology is consistent with section 61(1) of the Crimes (Sentencing Procedure) Act, which provides for the imposition of mandatory life sentences in worst-case category offences. In this provision the Government wants to make it clear that some crimes are so terrible that, despite any progress that has been made by an offender since they have been in custody, the offender should never be released and should die in prison. Some offenders, if they were being sentenced today under truth in sentencing, would still deserve a life sentence." 1. I accept that this provision operates to render Clause 7(5) factors more powerful in the determination of this application. As will be seen, these are factors which operate strongly against the Applicant. 2. In addition, victim impact statements may be received and considered by the Court when it determines an application under Schedule 1: s.28(2) Crimes (Sentencing Procedure) Act 1999. The Court received a number of victim impact statements made by members of the families of the victims of the Applicant's crimes. I will return to these later in this judgment. 3. Clause 4(1) provides for the alternative orders which the Court may make on an application. Clause 4 states: "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." 1. I will proceed to address these statutory factors in turn. Before doing so, I will set out, in broad terms, the submissions made on behalf of the parties concerning the appropriate outcome of the application. Overview of Submissions of the Parties 1. Mr Strickland SC submitted that the Court should determine the life sentences and fix a non-parole period with respect to the Applicant. The gravity of the Applicant's offences was acknowledged. However, it was emphasised that the Applicant has already been in custody for more than 33 years. 2. It was submitted for the Applicant that having considered all relevant statutory factors and other matters which bear upon the determination of the application, the Court would set a determinate non-parole period for the Applicant. It was emphasised that, if the present application failed, the Applicant would be left to serve imprisonment for the term of his natural life. 3. The Crown submitted that each of the Applicant's offences fell squarely within the worst category of cases and that each offence was of such very great heinousness, and the level of the Applicant's culpability was so extreme, that the subjective features of the Applicant cannot displace the need for a life sentence. 4. The Crown submitted that the Court should decline to set a specified term and decline to set a non-parole period under Clause 4(1)(c) of Schedule 1 with respect to each of the sentences. Clause 3(1)(a) - All the Circumstances Surrounding the Offences 1. The circumstances surrounding the offences have been set out earlier in this judgment. The offences were of the utmost gravity. This was not a case of a single murder or of several murders occurring at about the same time. 2. Rather, the Applicant's offences occurred in three separate incidents over a period of seven months. The recital of the facts of the offences, and in particular the murder of Ms Celea and the murders of Ms Volcic and Ms HH and the attempted murder of Ms Short, demonstrate the extreme gravity of these offences. 3. It is clear that the Applicant intended to kill each of Ms Celea, Ms Volcic, Ms HH and Ms Short. Submissions were made that I would be only satisfied that the Applicant intended to inflict grievous bodily harm to Mr Wiles. I am satisfied that the Applicant acted with intention to kill Mr Wiles. He attacked him with a claw hammer, inflicting multiple blunt force injuries to the head. Accordingly, the Applicant acted with intent to kill with respect to each of the five victims. 4. I will return to these aspects when considering statutory factors concerning the level of culpability of the Applicant in the commission of the offences and the heinousness of the offences. It should be noted at this point, however, that when dismissing the Applicant's appeal against the refusal of Carruthers J to determine his life sentences, Gleeson CJ (James and Ireland JJ agreeing) observed in R v Boyd (1995) 81 A Crim R 260 at 261 that "The crimes for which the appellant was sentenced to penal servitude for life clearly fall within the worst category of case". Clause 3(1)(b) - All Offences, Wherever and Whenever Committed of Which the Applicant has been Convicted 1. Apart from the present offences, the Applicant has several prior entries on his criminal record for juvenile offences in South Australia and two offences in New South Wales for matters dealt with at the Liverpool Court of Petty Sessions in 1976 and 1981. The Applicant's prior offences include nine counts of breaking and entering, one count of common assault and various dishonesty offences including forging and uttering, stealing and having licence plates calculated to deceive. 2. The Applicant spent time in an adult prison in South Australia in the early 1970s. 3. In late 1999, some 16 years after he first entered custody, the Applicant was sentenced at the Wagga Wagga Local Court to imprisonment for one month for possessing a prohibited drug. This offence arose from the discovery in the Applicant's cell of a quantity of cannabis when a search was undertaken on 26 September 1999. Clause 7(1)(a) - Reports on the Applicant Made By SORC and any Other Relevant Reports Prepared After the Applicant was Sentenced 1. Over the years that the Applicant has been in custody, four SORC reports have been prepared together with a number of psychiatric and psychological reports. In addition, evidence was given at the hearing by the authors of recent reports, Dr Furst, Dr Diamond and Ms Matsuo. 2. The first SORC report (then the Serious Offenders Review Board) was dated 27 July 1992 under the hand of the Acting Chairperson, Mr Kenneth Gee QC. This report outlined events in the earlier part or the Applicant's time in custody. Having entered custody on 22 April 1983, the Applicant had an A2 classification as at 6 February 1985. 3. Reports concerning the Applicant included reference to "a couple of minor breaches of prison discipline" with the Applicant being described as "a well presented, well spoken man, with a smoothness, which was not common among prisoners". The breaches of prison discipline involved questioning authority and not following instructions of prison staff. It was noted that the Applicant had begun educational studies which "appeared to be aimed at passing the time". 4. A parole officer's report dated 24 August 1987 stated that the Applicant had separated from his wife in 1982 and "claimed the marriage broke down as a result of his wife being materialistic and wasteful, as well as the financial pressure of supporting many children". The Applicant stated that he had a de facto relationship for six months after the breakdown of his marriage, but that "his de facto became over demanding and disagreements occurred". The parole officer's report noted that the Applicant "made a clear distinction between the two periods of offending" and that he strongly denied the first murder. In relation to the subsequent offences, the Applicant told the parole officer that "he was not in a conscious or controlled state of mind because of the amount of alcohol, marijuana and, in particular, the insecticides he had been spraying the preceding day". 5. In a psychological report of a Mr Goldman, the Applicant said "he wasn't in control of his conscious will" and he "didn't intend" to commit any crime. He claimed to be trying to find answers to the offending but was "afraid of finding out 'the truth'". 6. In a psychiatric report dated 25 June 1984 prepared before trial by Dr CL Wong, who had been retained for the Crown, Dr Wong expressed the opinion with respect to the first murder that it was "unlikely to have been committed when he was under the influence of an extraneous substance". With respect to the later offences, Dr Wong observed that there was nothing in the available scientific literature to suggest psychiatric disturbance from the pesticide that the Applicant had said that he had used that day. Instead, Dr Wong observed that the Applicant was probably under the influence of alcohol and/or marijuana but that "he never had any untoward effect from these previously" and that "his EEG and brain scan were normal" and there was nothing in the Applicant's past medical history which suggested any predisposition to psychiatric disturbance. 7. Dr Jonathan Phillips was retained by the defence and provided a report dated 11 October 1983 with respect to the Applicant. Dr Phillips noted that the Applicant recounted many of the details of the work he undertook at five separate jobs on 21 April 1983, the day before the Glenfield offences with the Applicant indicating that he had been wearing protective clothing and a respirator whilst undertaking these tasks. 8. Dr Rod Milton, psychiatrist, furnished a report dated 10 August 1989 concerning the Applicant for the Release on Licence Board. In that report, Dr Milton found the Applicant's claim that toxic sprays had caused him to lose control was "unconvincing and that a repetition of disastrous behaviour following another disappointment would not be surprising". Dr Milton assessed the Applicant's explanation of the Glenfield offences which was based on the toxic effect of weed sprays and drugs, as being "complex, vague and ingenious" with Dr Milton finding the explanation "unconvincing" and that "it is a more than chance association that the breakup of the marriage was associated with the committal of the first murder". 9. The first SORC report described the Applicant's crimes as "terrible" and placed particular emphasis upon the report of Dr Milton. 10. The second SORC report concerning the Applicant is dated 23 July 2002 under the hand of the Hon Peter Moss QC, Chairperson. 11. The Applicant had been interviewed every six months by SORC and his classification had been reduced from A2 to B around January 1994. 12. It was noted that in 1999, he had continued to be an excellent worker and had completed the 16-hour Sex Offender's Relapse Treatment program. 13. Reports on the Applicant were generally favourable however, "he has been described by staff as manipulative, outspoken and confrontational, especially when he disagrees with an instruction or policy direction". Attached to the report was a memorandum dated 10 December 1998 from Dr Blake, psychologist, who stated that the Applicant had completed the Tier 3 Alcohol and Other Drugs program. Dr Blake noted "by his own admission, Mr Boyd has spent the last 15 years in an 'emotional vacuum' where he has avoided confronting the enormity of his offences". 14. The third SORC report is dated 3 July 2007 under the hand of the Hon David Levine RFD QC, Chairperson. It was noted that the Applicant had remained a B classification prisoner. He was continuing to receive good reports and was employed within the prison system, but the General Manager of Junee Correctional Centre had referred to him in an April 2003 report as being "extremely manipulative and calculating". 15. A psychological report dated 7 December 2006 was prepared by Rayomand Pestonji and Georgina Spilspury, psychologists employed with the Department of Corrective Services. The authors of this report noted that the Applicant "has consistently maintained, and continues to do so to the present day, that he is not responsible for the murder of Ms Celea on September 13, 1982". The authors observed that the Applicant appeared to have "some insight into his actions insofar as he acknowledged the possibility that if 'that button has been pushed once, it might happen again'". 16. The final SORC report is dated 16 February 2016 under the hand of the Hon RO Blanch AM QC, Chairperson. It was noted in that report that the Applicant had completed a number of courses since the last SORC report, including anti-violence and anger management courses and that he had positive work reports. 17. The Applicant had commenced the CUBIT program on 2 August 2010 and completed it on 30 March 2011. The CUBIT treatment report by Mr Brabant and Ms Senior noted that the Applicant had made "some positive shifts" in managing uncomfortable emotions and building intimate and trusting relationships which was relevant to his areas of dynamic risk. 18. It was noted that the Applicant's "denial of the 1982 offence and reported inability to remember the 1983 offences meant that his capability to gain insight into his offending was limited". Based on STATIC 99 factors, the Applicant was placed in the "moderate to high category of sexual reoffending relative to other adult male sexual offenders". It was observed that, in order for the Applicant to manage his risk of recidivism, it was important for him to continue to address dynamic risk factors. 19. A report by Ms Matsuo dated 1 June 2012 noted that, over his life, the Applicant "has demonstrated a need for power and control - and this is directly related to his offending behaviour". The Applicant had more recently shown in the CUBIT program greater ability to perceive things from the perspective of others. Ms Matsuo stated that he would need to continually work on his attitudes of power and control. 20. The SORC report noted that the former Corrective Services Commissioner did not approve SORC's recommendation in July 2012 that the Applicant's classification be reduced to C1. SORC repeated its recommendation of a C1 classification in June 2013, however the new Corrective Services Commissioner did not approve this recommendation either. 21. On 27 July 2015, the Corrective Services Commissioner regressed the Applicant's classification from B to A2 as part of a general reclassification of inmates serving life sentences and this was unrelated to any conduct or behaviour on the Applicant's part. 22. On 1 September 2015, SORC recommended that the Applicant's security classification be reinstated to B. The recommendation was based upon, amongst other things, positive custodial reports. SORC noted the Applicant's completion of therapeutic programs to address his offending behaviour including CUBIT, the Sex Offender's Relapse Program and CALM, normalisation and men's work anti-violence program. 23. On 7 September 2015, SORC's recommendation was once again not approved by the Corrective Services Commissioner. 24. A number of psychiatric reports have been prepared with respect to the Applicant, most recently the reports of Dr Furst and Dr Diamond prepared for the purpose of the hearing of this application. 25. Dr Delaforce prepared two reports on behalf of the Crown for the purpose of the Applicant's second application which was withdrawn in 2008. Dr Delaforce's first report dated 26 March 2008 noted that the Applicant "denied sexual excitement by violence to, power over, or control and humiliation of, a female". Dr Delaforce undertook a review of the photographs of the crime scenes and trial evidence which led him to conclude that the victims of the Glenfield Park Special School offences were in a "helpless state" and that the Applicant had "control of them". Dr Delaforce considered that the Applicant's behaviour in stabbing all three victims "suggests behaviour to inflict pain and suffering during the complete control of the women" and that there was evidence that the Applicant was sexually excited by these events. 26. With respect to Mr Pestonji's report of psychological testing suggesting a relatively low statistical chance of recidivism of violence, Dr Delaforce observed that this did not take into account the sexual aspect of the Applicant's offending in 1982 and 1983 which "strongly indicate serious sexual homicide probably driven by his sexual fantasy with his sexual excitement by violence". 27. Dr Delaforce reviewed the earlier reports of Dr Lucas who had been engaged by the defence for the Applicant's earlier applications. Dr Lucas had concluded that the Applicant's most likely diagnosis was of antisocial personality disorder. However, Dr Delaforce's diagnosis was of sexual sadism and a personality disorder not otherwise specified. 28. Dr Delaforce referred to the evidence of Ms Short remembering that the Applicant had enquired about female students at the school and noted that the Applicant's presence at the school was "consistent with sexual predatory behaviour and therefore a planned act with an intention to carry out sexual activity". He referred to the throat injuries to the victims as supporting his finding of sexual sadism. 29. With respect to a realistic assessment of the Applicant's risk of reoffending, including the commission of another murder, Dr Delaforce stated that it was difficult to determine especially as it related to the extent of the Applicant's continued sexual sadistic fantasy. Dr Delaforce observed: "Such fantasy could easily and understandably be kept totally private by Mr Boyd because to admit the fantasy now could have a huge effect on the outcome on the redetermination of his sentences. If the fantasy continues the risks of reoffending would be high. If such fantasy was not now continuing the risk would be substantially lower but then with a real risk of returning following specific opportunity, stressors, and/or excessive substance use." 1. Dr Delaforce refrained deliberately from attempting to put a percentage figure on the Applicant's risk of recidivism. He concluded that "sexual sadism was present in the 1982 and 1983 crimes". Although sexual sadism could wane, and even permanently cease with age, Dr Delaforce could not exclude even a high risk of the Applicant reoffending in a similar manner. 2. In his report of 30 April 2016, Dr Furst noted that the Applicant maintained that he did not kill Ms Celea and that he had no recollection of the other offences. The Applicant told Dr Furst that he had been sexually abused when he was 11 or 12 years of age over a period of 12 to 18 months and had only disclosed that to a female friend and to Ms Matsuo about five years earlier. 3. Dr Furst agreed with Dr Delaforce that the crime scene evidence was "suggestive of the presence of deviant sexual fantasies at the time" but observed that the Applicant's denial of Ms Celea's murder and his "claimed amnesia of the other offences" makes it difficult to provide a definitive opinion in this respect. He concurred with Dr Delaforce's other diagnosis of a personality disorder not otherwise specified, having regard to the Applicant's issue of anger, manipulation of others, heightened self-importance and related increased sense of entitlement and difficulties with trust. 4. Dr Furst's diagnosis was of a personality disorder not otherwise specified, substance abuse disorder (cannabis and alcohol abuse) and suggestion of sexual sadism. Dr Furst concluded, at least with respect to the female victims, "the sexual nature of his offending on both occasions and crime scene similarities involving brutal force, humiliation of victims and numerous stab wounds to the necks of the victims was consistent with uncontrolled anger mixed with sexual arousal, suggestive of sexual sadism". 5. Dr Furst considered that the ongoing denial of the 1982 offence and the "real or feigned inability of Mr Boyd to remember his 1983 offences" constituted a barrier to gaining insight into his motivations and/or underlying sexual deviance, which "is probably his most personal risk factor". Dr Furst continued: "His apparent sexual sadism may have also ameliorated over time or may still be present to a degree. It is possible that such fantasies, if present, may only also emerge under times of intense emotional stress. He is also prone to decompensate in the context of rejection/interpersonal difficulties, which would be of concern if he were to form an intimate relationship in the future." 1. In a further report dated 7 December 2016, Dr Furst raised for consideration the use of anti-libidinal medication by the Applicant. This prospect was raised in the context of steps which might be taken to reduce what would otherwise constitute a risk of reoffending having regard to the Applicant's offences and the psychiatric opinions expressed with respect to the Applicant. 2. In his report of 18 June 2016, Dr Diamond noted what he described as the "absolute control" of the female victims in the 1983 offences and the likelihood that the Applicant attended the school "specifically for the purpose of sexual gratification". 3. Dr Diamond questioned the opinions expressed by Ms Matsuo regarding violence risk assessment, noting "It is difficult to accept or understand the rationale behind the opinions expressed in the absence of having Mr Boyd deal directly and deeply with the actual nature of the offences for which he has been convicted". 4. Whilst noting that the Applicant had taken some positive steps by completion of programs such as CUBIT, Dr Diamond observed that "the value of these gains is undermined by the absence of the required full and frank disclosure of the offending conduct". 5. Dr Diamond agreed with Dr Delaforce's comments regarding the sexual aspects of the violence, including sadistic and controlling behaviour, observing that the manifestations of sexual sadism in the 1982 and 1983 murders of the women were "obvious and pronounced". 6. Dr Diamond referred to his discussions with the Applicant in which he raised with him "the inescapable difficulty that he faced because he had never been able to contribute to gaining a deeper understanding of his offending because he had steadfastly been unable to recall the details of the murders and his conduct at the time". Dr Diamond explained to the Applicant that "it made it very difficult to reach a view about assessing future risk in the absence of having any insights from him about what actually happened during the course of his offences". 7. Dr Diamond's diagnosis was of sexual sadism and antisocial personality disorder. With respect to what were considered to be the somewhat optimistic and speculative views of Ms Matsuo, Dr Diamond said: "Such services may be in a position to offer some oversight and review, but in the absence of any clear understanding of the deep drives, motivations and sources of gratification that underlie Mr Boyd's offending, my view is that they are not well placed to provide pre-emptive, supportive and sufficiently engaged contact with Mr Boyd so as to produce an acceptable level of intervention sufficient for a suitable degree of confidence about Mr Boyd's propensity and capacity to reoffend." 1. Dr Diamond concluded his report with observations which included the following: "To respond directly to the risk factor question, my view is that the Commissioner is correct in his view that the inmate remains moderate to high risk rather than low risk. It is impossible to form a view that Mr Boyd is other than moderate to high risk because there is no clear definitive information about his exact state and recall of his subjective emotional drives at the time of the offences. … I note the comments of Dr Furst in his opinion regarding sexual sadism. The same view prevails. The evidence for sexual sadism is obvious and clear. The motivations for sexual sadisms, the underlying drives and sources of gratification are not clear. There is no acceptable way to form a judgment suggesting anything other than ongoing significant and unacceptable risk in the absence of clear recall, appreciation of his motivations and drives, and an understanding of what, if any, attenuation of his drives occurred over the years. Succinctly, in my opinion, Mr Boyd remains the same person that he was when he committed the offences." 1. The concurrent evidence of Dr Furst and Dr Diamond at the hearing on 9 December 2016 emphasised the opinions which each of them had expressed in their reports. It became increasingly apparent that there was no great difference between the positions which each psychiatrist took with respect to the Applicant. 2. In the course of the concurrent evidence, Dr Furst was asked about the similarities between the 1982 murder of Ms Celea and the 1983 murders and attempted murder at the Glenfield Park Special School. Dr Furst said (T41, 9 December 2016): "WITNESS FURST: I think it is highly significant that the crime scene characteristics have similarities, and that's the reason for the trial judge, as I understand it, trying these matters together before a jury. The relevance in terms of the actual offences themselves relates to the likelihood of sexual gratification and wanton violence towards the victims, including neck injuries, a number of stab wounds to the neck, being motivating factor at the time of the offending. I think the state in which the 1982 victim was found, in a state of undress and humiliation, also speaks to the sexual component involved. The second similarity which is relevant is that both offences appear to have taken place shortly after he was slighted, if you like, or angered about his interpersonal relationships with women. The first one being a marital relationship that was breaking down or had broken down and the second one being a second relationship which had broken down. From the psychological point of view, I would propose that anger towards women and revenge towards women was a motivating factor in the 82 offence and 83 offence with the three women. It doesn't really account for the injury to the male victim who was hit with a hammer as I understand. Having said that, it is still, in my opinion, more likely than not that anger towards women and some type of revenge motivation was behind the offending, as well as his paraphilia, the sexual sadism which I described earlier." 1. Dr Diamond touched upon an aspect of the murder of Ms Celea, with Dr Furst agreeing with Dr Diamond on this aspect. Dr Diamond said (T42-43, 9 December 2016): "HIS HONOUR: Is there anything you want to say, Dr Diamond, about the recent evidence? WITNESS DIAMOND: There is one issue that has not been canvassed that I think is important with regard to the psychological and psychiatric state of Mr Boyd. That relates particularly to the material in his statement about what occurred when he arrived at the home of the victim Celea in 1982, that morning. When I read that, this is a different account, in the sense that there's no denial of memory or giving of an account of what occurred at that crime scene at that day. The evidence of Mr Boyd is that he didn't do it, that he arrived at the crime scene when the victim was already in that position and had been killed. But the telling information that I took from that description is that there was a toddler clinging to the deceased mother, who had grotesque wounds, who was clearly dead, and was positioned in a particularly degrading way, and the statement of Mr Boyd is totally absent of any emotional response to that discovery. The only material he records is that he noticed that the toddler was wet and that he picked up, I think it was a tea towel or some other cloth, and took the toddler and changed I forget the sex of the child, but I think it was a girl and held on to her until police arrived. That is a statement about good behaviour, but it says nothing about a subjective reaction to such an horrific crime scene, and I found that odd, that an individual who knew nothing about a murder would walk into a crime scene of that nature and only record the changing of the nappy of a wet toddler. So to me that seemed really self serving and quite deficient in detail of what was meant to be recall of the event. HIS HONOUR: Dr Furst, I think as Dr Diamond was giving that recent evidence you were nodding your head? WITNESS FURST: I agree with that opinion." 1. The Applicant's failure to engage with the aspects of paraphilia and sexual sadism manifested by his offences was exemplified by his response to questions from Mr Strickland SC concerning the possible use of anti-libidinal medication (T11-12, 9 December 2016): "Q. Why do you think that the anti libidinal medication might help you? A. If my libido is a problem, as what the Court deems it is, then it has to be addressed. Q. Do you think it is a problem? A. I would have to discuss that further with people in a better position to understand that than I am. Q. Do you understand the suggestion has been made because of the sexual deviancy involved in the crimes you committed? A. Yes, I understand that. Q. Well, have you, since those crimes were committed, had any concerns about sexual deviancy or any thoughts that you might have about sexual fantasies, things of that sort? A. I've never gone down that road, no." 1. The Applicant's blunt response that he had "never gone down that road" is indicative of his continuing absence of insight more than 33 years after the commission of the offences. 2. In the course of his evidence, Dr Diamond referred, as well, to the callousness, cruelty and lack of capacity for empathic connection which was demonstrated by his offences (T39, 9 December 2016). 3. Dr Furst did not agree with a proposition put to him by Senior Counsel for the Applicant based upon the evidence of Ms Matsuo (T54, 9 December 2016): "STRICKLAND: Dr Furst, what do you say first about Ms Matsuo's statement or her conclusion that Mr Boyd has developed a good understanding of how the predisposing and precipitating factors lead to these events. WITNESS FURST: I disagree with that on the whole. I think looking at her affidavit at point 15, the affidavit dated 5 December, she talks about how sexual deviance was addressed during the course of the CUBIT program. And I quote, 'The depth at which this occurred and in Mr Boyd's case was impeded by a range of factors including lack of recall. He denied the sexual dealing was part of his prior sexual interest or sexual interest at the time of the' I think it says 'treatment', 'and hence to add to that also at the time of the offences'. So although it is true that he has some awareness of background factors or background stressors, and in the comments that he made to me and to Dr Diamond and many other people and that you've quoted from his affidavit at page 49, I don't think that really addresses a core issue of why these offences took place, which is still a bit of mystery for everybody especially Mr Boyd, in his failure to accept what the CUBIT therapists were proposing that the paraphilia or deviance were driving that, so a lack of insight. And that's a major problem in terms of the psychological awareness." 1. I found the evidence of Ms Matsuo unconvincing with respect to a risk assessment of the Applicant. Her concentration appeared to be on denial of commission of offences by sex offenders and the manner in which those involved in psychological counselling accommodate that issue (including reference to the articles by Ware and Marshall). However, the Applicant is not just a sex offender. He is a multiple murderer who has acted in ways well described in the evidence of Dr Furst, Dr Diamond and Dr Delaforce. The evidence of Ms Matsuo (T15-21, 9 December 2016) was unsatisfactory in explaining any objective foundation for her assessment concerning a multiple murderer such as the Applicant. 2. I have considered the evidence of Ms Matsuo. Her evidence is touched by a sense of unwarranted optimism when regard is had to the totality of the evidence including the psychiatric evidence of Dr Furst and Dr Diamond. With all due respect to Ms Matsuo, I do not consider that great weight can be placed upon her opinions in the determination of this application. 3. I do not consider that the possible use of anti-libidinal medication by the Applicant assists the present application. That proposal does not seem to grapple with the major difficulties confronting the Applicant on this application. 4. The evidence of Dr Furst and Dr Diamond reveals significant difficulties in the making of any reliable risk assessment concerning the Applicant at this time given his lack of insight and his unwillingness or inability to come to terms with the clear aspects of sexual sadism which were manifest in both the murder of Ms Celea in 1982 and the murders and attempted murder of three other woman in 1983. The Applicant remains, at best, a moderate-to-high risk of reoffending if released. This aspect remains a significant difficulty for the Applicant on this application even though more than 30 years have passed since the commission of the grave crimes for which he remains in custody. Clause 7(1)(b) - The Need to Preserve the Safety of the Community 1. Under this heading, Mr Strickland SC submitted that the Applicant had already made significant progress in his rehabilitation and that this was a significant factor in assessing this statutory consideration. 2. Emphasis was placed upon the evidence of Ms Matsuo with respect to the issue or risk assessment. It was submitted that, although it had taken some time to emerge, the Applicant had made commendable progress in prison including the completion of programs and courses, in particular the CUBIT program undertaken in 2010 and 2011, with excellent work reports being furnished as well. Whilst accepting that there were areas where the Applicant had not demonstrated complete insight, it was submitted that there are reasonable prospects that he can make further significant progress in his rehabilitation through the continuation and completion of further custodial programs in conjunction with psychological counselling. 3. The Crown submitted that the number and nature of the Applicant's crimes render this a factor of critical importance in the present application. It was submitted that the Applicant had committed several murders with an obvious sadistic sexual aspect being present in his offending against all of the female victims. Whilst the murder of Mr Wiles remains entirely unexplained, the Crown submitted that this is a further highly disturbing feature surrounding the Applicant. 4. The Crown pointed to the ongoing denial of the Applicant of the commission of the first murder with an asserted lack of recollection with respect to the others. It was noted that Dr Furst had expressed the view that this lack of memory "may be real or feigned" on the part of the Applicant. 5. The Crown submitted that the evidence of Dr Furst and Dr Diamond should be preferred to that of Ms Matsuo in areas of risk assessment. 6. In all the circumstances, the Crown submitted that considerable weight needs to be given to the need to preserve the safety of the community. 7. I have already concluded that the evidence of Dr Furst and Dr Diamond should be preferred to that of Ms Matsuo concerning risk assessment. 8. All aspects of the Applicant's crimes, and the evidence which bears upon their commission and the Applicant's motivation, bears strongly upon the consideration of this statutory factor with respect to preservation of the safety of the community. 9. There is a diagnosis of sexual sadism which manifested itself in two sets of murders committed seven months apart. This is a case where the Applicant not only experienced these deviant urges, but was prepared to act upon them in a homicidal fashion more than once. 10. The description of the Glenfield Park Special School offences provided by the survivor, Ms Short, constitutes a chilling insight into mind of the Applicant at that time. Although more than three decades have passed since the commission of those offences and the Applicant is now a man in his 60s, there is no real insight demonstrated on his part which can provide a solid foundation with respect to an assessment of his conduct in the future. 11. It is not always the case that an admission of guilt is required for the purpose of an assessment of a person's prospects of rehabilitation and reoffending. I referred to a number of decisions which made this point in Boyd v R (No. 2) at [14]. I have given careful consideration to the evidence with those decisions in mind. 12. The difficulty for the Applicant is that his offences are of such extreme gravity, and involve extreme levels of perversion in the form of sexual sadism and a preparedness to dominate and control victims whilst carrying out the form of torture leading to death, that some degree of insight and acknowledgement of the true characterisation of his acts is a practical and realistic starting point for an accurate risk assessment. 13. In my view, the Applicant remains a risk to the safety of the community. It is the case that this risk will probably reduce as he moves further into old age. However, the extreme nature of his offences, and the risk that he may be triggered by stressors at some time in the future, means that even old age does not provide substantial comfort in considering the Applicant's risk of committing serious crimes of sexual violence again in the future. Clause 7(1)(c) - The Applicant's Age 1. The Applicant was born in November 1955. He is now 61 years old. 2. Mr Strickland SC emphasised the advancing years of the Applicant. He noted that the Applicant was 26 or 27 years old at the time of the commission of the offences. 3. Mr Strickland SC noted the statement of Gleeson CJ in R v Boyd at 266 where it was said that the age of the Applicant was "undoubtedly an important consideration in favour of fixing a minimum term". It was submitted that 21 years had passed since the Chief Justice made that observation and that the Applicant had made significant progress in his rehabilitation in that time. 4. It was submitted that the safety of the community would not be jeopardised by fixing a non-parole period for the Applicant which expired some years into the future. It would still be necessary for the Applicant to demonstrate to the State Parole Authority that he had made further significant attempts at rehabilitation before he could realistically be considered for release on parole. 5. Senior Counsel for the Applicant submitted that the Court should not make a finding that it is impossible for further significant rehabilitation to occur. It was submitted that the material before this Court gives rise to a confidence that further progress towards insight into the Applicant's offending is reasonably possible. 6. I accept that the Applicant's age is a factor of some significance in the determination of the present application. He is now in his 60s and, on a best case scenario for him, if a non-parole period was fixed, it would not expire for some years into the future. The Applicant would be of an advanced age at such a time. 7. It is necessary to consider this factor together with all other evidence before the Court on the application. The psychiatric evidence addressed earlier in this judgment provides a solid foundation for real concern about the Applicant in a manner which is not readily diluted by the further passage of years. 8. It is not so much a matter of finding that further significant rehabilitation on his part is impossible. Rather, the evidence does not provide any confidence, based on objective grounds, that any significant rehabilitation is likely to occur. Clause 7(1)(d) - The Previous System of Releasing Prisoners on Licence 1. No specific submission was advanced for the Applicant under this heading. 2. The Crown referred to what I had said concerning this topic in Pollock v R [2007] NSWSC 148 at [81]-[87], [98] and [125]-[130]. 3. Having considered this aspect for the purpose of the present application, I do not think that this aspect has particular significance in the determination of the present application largely for reasons expressed in Pollock v R at [129]-[130]. Clause 7(1)(e) - Other Relevant Matters 1. Mr Strickland SC submitted under this heading that, were the Court to decline to set a non-parole period, any hope that the Applicant would have a future release would be permanently extinguished. He submitted that the totality of matters raised on behalf of the Applicant did not warrant the extinguishment of all hope in his case. 2. This is an aspect which I will consider in addressing the totality of the evidence adduced on the application. Section 28(2) Crimes (Sentencing Procedure) Act 1999 - Victim Impact Statements by Family Members 1. The Crown addressed the victim impact statements made by family members of the victims of the Applicant's crimes. 2. It must be observed at the outset that, at the time when the Applicant was sentenced in 1985, there was no provision for the making of victim impact statements in the criminal courts of this State. Reforms made to the criminal justice system since then have included the important recognition of the role of victim impact statements to be made by living victims of crime and also family members of victims of homicide. 3. Although more than 30 years have passed since the Applicant was convicted and sentenced, it is apparent that the permanent impact of these offences has continued to affect the lives of family members of the victims. So much was made clear by the presence of many of them at the hearing of this application. The victim impact statements give testament to the fact that the consequences of terrible crimes such as those committed by the Applicant affect many persons apart from the immediate victim. 4. I have mentioned the brave and crucial role played by Ms Short who survived the attack at the Glenfield Park Special School. She played a crucial role in the trial and conviction of the Applicant. As Gleeson CJ said in R v Boyd at 262, it was remarkable that Ms Short survived. She has since passed away. 5. A victim impact statement was made by Donald and Margaret Short, the children of Ms Short. Her family members state that Ms Short "was never the same after the horrific crime she endured and witnessed that night when she and her colleagues had succumbed to the depraved acts" committed by the Applicant. They speak of the fact that further court proceedings involving the Applicant bring back "painful memories", which have remained with them over the years since these terrible events. 6. Trevor Colin Pike is the brother of Ms Celea. He states that he will never forget taking the phone call on 13 September 1982 informing him that his sister had been found dead in what he came to learn were horrific circumstances. Mr Pike states that his immediate family never got over the death of his sister, and their late mother had never recovered from the loss of her youngest daughter. 7. Brian Philip Pike is another brother of Ms Celea. He states that, after all these years, he still finds it very difficult to put into words the pain and suffering that the Applicant's crime caused to him and his immediate family. He states that "The many years have rolled on and we all try to put some of the sadness and grief aside", but "It all shows its ugly face at family gatherings when you see an incomplete part of our very close family". Of the young children of Ms Celea, Mr Brian Pike refers to the great difficulties affecting them as they grew up without a mother. 8. Margaret Joy Hutton is the sister of Ms Celea. Ms Hutton explained the terrible events when she came to learn of her sister's death. She describes how, as the years go by, the family tries to move forward but the difficult memories remain and affect the family. 9. Four members of the family of Patricia Volcic have provided a joint victim impact statement. At the time of her death, Ms Volcic had three young children aged five, nine and 10 years. The victim impact statement is made by the children of Ms Volcic who speak of the difficulties experienced by them in growing up and the loss to them in experiencing a life without their mother. The family members speak of the "emotional scars left on this family that last a life time". 10. Stephen John Wiles is the brother of Gregory Wiles. Gregory was 27 years old when he died and was the youngest in the Wiles family. Stephen Wiles states that the murder of his brother changed the whole family from that moment on. He refers to the adverse effects upon his parents and other members of the family who had understandable problems in coping with the loss of their son at the hands of the Applicant. 11. Stephen Wiles states that "My parents lost a son, my siblings and I have lost a brother and all of our children have lost their uncle". He notes that Gregory Wiles had a seven-year old daughter at the time of his death, and that she has lost her father and that her children have lost a grandfather. 12. The damage to different generations of the families of the victims is clear from these statements. All of this resulted from the homicidal havoc created by the Applicant over a seven-month period in 1982-1983. 13. On behalf of the community, the Court expresses its condolences to the many family members of the victims for the terrible losses which they suffered so many years ago as a result of the acts of the Applicant. The community should acknowledge their strength in supporting family members who were suddenly left without a mother, father, brother, sister, son or daughter. Clause 7(5)(a) - The Level of Culpability of the Applicant in the Commission of the Offences for which the Life Sentences were Imposed 1. The Court must give substantial weight to this factor (see [81]ff above). 2. Mr Strickland SC submitted that, in approaching this factor, it was necessary to bear in mind that the Applicant was significantly affected by drugs and marijuana at the time he committed the Glenfield offences. It was submitted that this affected either his cognitive abilities and/or his emotional restraints and/or his capacity to make reasoned or ordered judgments. 3. Reliance was placed on the account given by the Applicant at different times including evidence given in applications and accounts provided to psychiatrists. Reference was made to the report of Dr Phillips concerning the Applicant's account of his consumption of alcohol before the Glenfield offences. It was noted that Dr Phillips had said that there was no other evidence for psychotic disorder, major mood disorder or epilepsy. 4. Mr Stickland SC submitted, as well, that the Applicant had a particularly disadvantaged upbringing where he was exposed to severe physical, sexual and emotional abuse. Reliance was placed upon the decision of the High Court of Australia in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at 595 [44]. It was emphasised that the Court had said that the effect of profound childhood deprivation does not diminish with the passage of time and repeated offending. 5. Mr Strickland SC noted that the Applicant had described in some detail his upbringing in material which he had written during his participation in the CUBIT program in 2010-2011. Reference was made as well to social background reports prepared by the New South Wales Department of Community Welfare with respect to the Applicant in 1973 (Exhibit B) and the account provided by the Applicant to Dr Delaforce which was contained in his report of 26 March 2008. 6. The Crown submitted that the Applicant derived no real assistance from the statements that the Applicant was affected by alcohol or drugs at the time of the offences. Reliance was placed upon the psychiatric evidence and the diagnosis of sexual sadism with any suggested role of alcohol or drugs to be kept in appropriate perspective. 7. With respect to the submission for the Applicant concerning his childhood, the Crown submitted that the facts of this case are far removed from the factual scenario in Bugmy v The Queen. It was noted that the evidence indicated that the Applicant played a variety of sports at primary school and that, as a child, he did a paper run. It was noted that he had a circle of friends with whom he associated as a child whilst carrying out activities such as bike riding, fishing and other age-appropriate activities. It was noted that the Applicant had finished high school and went to night school where he completed a one-year pest control course. He worked as a labourer in home construction and began an apprenticeship in automatic spray painting. At the time of the murder of Ms Celea, he was running a small business. When he was older and after marrying, the Applicant cared for children and stepchildren of his own. 8. The Crown submitted that the circumstances of the Applicant were far removed from those of the offender in Bugmy v The Queen. 9. The evidence concerning the Applicant's background is largely contained in accounts he provided to those who have prepared reports about him over the years. There is the 1973 report (Exhibit B) relied upon by the Applicant and this provides some measure of contemporaneous support for some difficulties experienced by him in childhood. 10. The totality of the evidence bearing on this issue, however, points to the Applicant having a childhood in a family setting where he was educated and ultimately undertook post-school trade training. 11. It may be accepted that the Applicant suffered some trials and tribulations as part of the process of growing up. Even taking the evidence on this aspect in the most favourable light for the Applicant, I do not consider that the principles in Bugmy v The Queen provide any real assistance to him. 12. I keep in mind the Applicant's personal background in assessing the evidence on the application generally. 13. With respect to the submission concerning the Applicant's culpability being reduced by the effects of alcohol and drugs, I am not satisfied that the evidence warrants a finding that he was significantly affected by alcohol or drugs at the time of the commission of the offences. To the extent that it bears upon the sentencing exercise which I am currently undertaking, I note that self-induced intoxication is not a mitigating factor on sentence: s.21A(5AA) Crimes (Sentencing Procedure) Act 1999. In assessing the relevance of intoxication with respect to moral culpability in this judgment, it is appropriate to have regard to this provision which, in any event, largely reflects the law as it stood before its enactment: R v Loveridge (2014) 243 A Crim R 31; [2014] NSWCCA 120 at 59 [220]. 14. I take into account as well the fact that the Applicant was quite capable of driving his motor vehicle on the morning of 22 April 1983 soon after the commission of the offences at the Glenfield Park Special School. Further, he referred to Ms HH by her first name and showed a clear consciousness of his surrounds at the time of the commission of the offences at that location. 15. There is no evidence that the Applicant suffered from any mental illness or disorder or intellectual disability at the time of the offences. The evidence is quite the reverse. There is no element of provocation or conduct which may place any of these offences in a context which may assist the Applicant. 16. The Applicant's subjective factors are of very limited assistance to him. There was no plea of guilty and the matters went to trial. There is no contrition even now for these offences, even in circumstances where there is a clear acceptance that it was the Applicant who committed the crimes of murder and attempted murder at the Glenfield Park Special School in 1983. 17. In my view, the level of culpability of the Applicant in the commission of these offences ought be regarded as very high. Significant weight must be given to this factor in determining this application. Clause 7(5)(b) - The Heinousness of the Offences 1. Once again, substantial weight is to be given to this factor in determining the application (see [81]ff above). 2. Mr Stickland SC noted that the terms "heinousness" had been described in R v Harris (2005) 50 NSWLR 409; [2005] NSWCCA 469 at 423 [85] as meaning "atrocious, detestable, hateful, odious, greatly reprehensible and extremely wicked". I accept these meanings of the word. 3. Mr Strickland SC referred to the observation of Gleeson CJ in R v Boyd at 266 that the number of heinous crimes committed by the Applicant is a matter which must be given substantial weight in considering whether to grant the application. 4. Mr Strickland SC referred to a number of other decisions involving multiple murders, or single murders of extreme violence, where determination of a life sentence had been made. In this regard, he referred to R v McCafferty (unreported, Wood J, 15 December 1991), R v Turner (unreported, Wood J, 20 August 1992), R v Rees (unreported, Smart J, 12 August 1993), R v Lyttle (unreported, Newman J, 6 March 1996), R v Glen [2005] NSWSC 1093 (on appeal, R v Glen [2006] NSWCCA 153), R v Hitchins (unreported, Grove J, 3 June 1993), Pollock v R [2007] NSWSC 148, R v Wade [2013] NSWSC 1092 and the Victorian decision of R v Denyer (1995) 1 VR 186. 5. The Crown submitted that the Applicant's offences lay in the worst category of offences of murder. It was submitted that the Applicant's offences are each truly heinous and utterly devoid of factors mitigating the seriousness of the crimes. 6. In support of this submission, the Crown drew attention to particular features of the three groups of murders which revealed the heinousness of the offences. 7. The Crown submitted that, although there is no hierarchy of murder offences based only on intention, there must have been an intention to kill in each of the murders given the extreme nature of the injuries. It was submitted that Ms Short was extremely fortunate that she did not die given that she was stabbed multiple times. 8. The Crown submitted that the physical and sexual assault and degradation that was part of the offences at the Glenfield Park Special School involved particular cruelty and would have been terrifying for the victims. It was submitted that the indignities, sexual abuse and utter terror to which they were subjected and the viciousness of the knife attacks upon them whilst they lay helpless, bound and gagged involved very great heinousness. 9. It was submitted for the Crown that the Court should have regard to the fact that there was a series of murders in reaching a conclusion concerning the heinousness of the offences with reliance being placed upon Van der Baan v R [2012] NSWCCA 5 at [30]-[45]. 10. In my view, each of the Applicant's offences which are the subject of this application may be appropriately described as heinous. 11. There was a savage attack on Ms Celea involving an element of sexual sadism. 12. This offence was strikingly similar to the offences committed against the women working at the Glenfield Park Special School. Each of them was carrying out an important public duty in assisting young people. Rather than being safe in their own beds at night, they were detained, terrified and subjected to gross indignities by the Applicant in conduct which can he appropriately characterised as torture associated with sexual sadism. The Applicant then attacked each of the three women, killing two and almost killing the third. This group of offences on its own represents murder offences of the highest order. 13. It may be taken that care is to be exercised in attributing particular offences to what may be described as the worst category of offences of that type: R v Kilic (2016) 91 ALJR 131; [2016] HCA 48 at 136-137 [17]-[20]. In my view, it is entirely clear that the murders of the two women and the attempted murder of the third at the Glenfield Park Special School on 22 March 1983 fell within the worst category of offences of murder. In so characterising the offences, I have had regard to the totality of the evidence including such evidence as was available concerning the condition of the Applicant at the time. 14. The 1982 murder of Ms Celea was itself, in my view, in the worst category. It involved the murder of a young mother with sexual motivation on the part of the Applicant once again reflecting sexual sadism. When one looks at the strikingly similar murders of three women and the attempted murder of a fourth, the position is substantially fortified as to the characterisation of these offences. 15. The Applicant murdered Mr Wiles as well in circumstances which are less clear. This aspect should not underplay the gravity of that crime. I am satisfied that the Applicant intended to murder Mr Wiles. 16. In reality, the Applicant was a repeat murderer on three separate occasions in a seven-month period so that the totality of his crimes may be considered for the purpose of an assessment of the heinousness of the offences. I accept the Crown submission by reference to Van der Baan v R. 17. I do not think that comparison with the outcomes in other life sentence determination cases provides any real assistance in the circumstances of this case. Nearly all of those cases predated the 2008 amendments. Further, there are clear factual distinctions between those cases and the Applicant's case. 18. My finding that the Applicant's offences are heinous in the extreme is to be given substantial weight in the determination of this application. Resolution of the Application 1. I have made a series of findings under separate headings which must be drawn together for the purpose of determining the application. 2. I have found that the Applicant's offences are in the worst case of murder with this conclusion being magnified when the circumstances of the offences are viewed together. 3. The Applicant displayed sexual sadism in his homicidal attacks upon Ms Celea, Ms Volcic, Ms HH and his attempted murder of Ms Short. There is no feature surrounding the offences which operates to reduce the Applicant's moral culpability in any real way. 4. This was not a series of murderous attacks carried out over a short period of time. The Applicant struck and struck again, and then again, over a seven-month period. 5. The reports which the Court has considered, including the recent psychiatric reports and psychiatric evidence by highly experienced psychiatrists, provide little comfort with respect to the Applicant at the present time. He has completed a number of courses including CUBIT and programs available in custody. However, he continues to demonstrate an absence of insight into his gross offending which, on the psychiatric evidence, is a necessary gateway towards any favourable assessment of his prospects by way of risk assessment. This is the point which has been reached after he has been in custody for more than 30 years. 6. It is undoubtedly the case that the Applicant has been in custody for a very lengthy period of time. However, apart from his age, there are limited factors which operate in his favour at this time. 7. These are in truth offences which, if committed now, would well merit the imposition of a sentence of life imprisonment under s.61(1) Crimes (Sentencing Procedure) Act 1999. In making this observation, I am not, of course, purporting to apply that provision. The point is that such a finding would be appropriate in the case of this Applicant if he stood for sentence now for these offences. That touchstone is not irrelevant for present purposes. 8. I am conscious that, if this application does not succeed, the Applicant will spend the rest of his life in prison. That is an important factor to keep in mind in determining the application. However, I am well satisfied that the application for determination of the life sentences should be refused in this case. Conclusion 1. The Applicant committed a series of murders over a seven-month period in 1982-1983. The murders and the attempted murder of the female victims were savage in the extreme and marked by sexual sadism. These offences are in the worst category of cases of murder. The offences are heinous in the extreme. The murder of Mr Wiles is itself a terrible crime. When viewed together, the Applicant's offences are magnified in their gravity and heinousness. 2. I have had regard to the substantial volume of evidence placed before the Court on this application by the Crown and the Applicant. It has allowed an assessment of the Applicant in custody over more than three decades. He remains essentially lacking in insight with an apparent unwillingness or inability to confront the true nature of his crimes. Any risk assessment of the Applicant must be extremely guarded in these circumstances. 3. I have kept firmly in mind that the refusal of this application will see the Applicant, now 61 years old, remaining in prison for the balance of his life. Having considered the evidence on the application and bearing in mind the extreme gravity of his crimes, I am well satisfied that the just and appropriate outcome of this application is that the Applicant should remain in prison for the term of his natural life. 4. I dispose of this application by declining to set a specified term for the sentences and declining to set a non-parole period for the sentences of life imprisonment to which the Applicant is presently subject. 5. The application to determine the Applicant's life sentences is refused. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 June 2017