Knight v R [2006] NSWCCA 292 (11 September 2006)

CITATION: KNIGHT v REGINA [2006] NSWCCA 292

FILE NUMBER(S): 2001/2995

HEARING DATE(S): 28 June 2006

DECISION DATE: 11/09/2006

PARTIES:

Katherine Mary Knight (Appl)

The Crown

JUDGMENT OF: McClellan CJ at CL Adams J Latham J

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70094/00

LOWER COURT JUDICIAL OFFICER: O'Keefe J

COUNSEL:

J Stratton SC/M King (Appl)

G E Smith QC (Crown)

SOLICITORS:

Katsoolis & Co (Appl)

Director of Public Prosecutions (Crown)

CATCHWORDS:

CRIMINAL LAW – application for leave to appeal against sentence – murder – life sentence –principles relevant to imposing natural life sentences – whether the offence was in the worst class of case – premeditation – whether mutilation of deceased’s body following murder was relevant to objective seriousness of offence – degree of violence – degree of danger to the community – risk of re-offending – no real prospects of rehabilitation – personality disorder – psychiatric evidence of personality – mental stability – likely future personality – no discount given for guilty plea –- no prior convictions – whether sentence manifestly excessive – protection of the community

DECISION:

Appeal dismissed

JUDGMENT:

IN THE COURT OF CRIMINAL APPEAL

2001/2995

McCLELLAN CJ at CL

ADAMS J

LATHAM J

MONDAY 11 SEPTEMBER 2006

KNIGHT, Katherine Mary v REGINA

Judgment

1 McCLELLAN CJ at CL: The applicant pleaded guilty to the murder of her de facto husband, John Price, on 29 February 2000. She was sentenced to life imprisonment which by reason of s 19A of the Crimes Act 1900 means she must serve the sentence for the term of her natural life. She seeks leave to appeal against that sentence.

2 The sentencing judge heard evidence and submissions over a number of days. The applicant did not give evidence although her ERISP was tendered. Statements of evidence from the deceased’s family, the applicant’s previous partners and other persons were tendered. From the evidence the sentencing judge made findings with respect to the nature of the relationship between the applicant and the deceased and the events which preceded the killing. His Honour also received psychiatric evidence as to the personality of the applicant, her mental stability and likely future personality.

The facts relating to the murder

3 The circumstances of the killing of the deceased and the mutilation of his body by the applicant were described by the sentencing judge in the following terms:

“Mr Price was killed late on the night of 29 February 2000 or during the very early hours of the morning of 1 March 2000. His death was as a result of multiple injuries to various organs of his body, secondary to multiple stab wounds.

The post mortem examination revealed that Mr Price had been stabbed at least 37 times in various parts of both the front and back of his body. There may have been more wounds inflicted, but the extent of those found and the subsequent acts of the prisoner in relation to Mr Price’s body rendered it impossible to know how many more there may have been and in particular the number of wounds which may have been inflicted in the area of his neck.

Many of the wounds were deep, and extended into vital organs. These included the aorta, both lungs, the liver, the stomach, the descending colon, the pancreas, and the left kidney, the lower pole of which had virtually been sliced off.

The wounds inflicted on Mr Price and the injuries which they caused resulted in the loss of a great deal of blood. This was found splattered and smeared throughout various parts of the house and in a pool, which was quite deep, and measured 1 metre x 2 metres. This pool was in the hallway of Mr Price’s home. At the time the police arrived on the morning of 1 March 2000 the blood in it was not fully congealed and had dried only at the edges.

The blows which inflicted the injuries to Mr Price were in a pattern that spread from the upper part of his body to his buttocks and below and had been struck with some considerable force by a knife which had a long blade. A butcher’s knife which answered such a description was found adjacent to Mr Price’s body. In addition, a butcher’s steel for sharpening knives was found on a lounge chair next to his body. A sharpening stone was also found. It was open on a bench in the kitchen, quite close to the sink and stove. It had clearly been used.

An examination of the blood stains, their differing characteristics and pattern of occurrence in various parts of the house, establish that Mr Price was first attacked by the prisoner in the principal bedroom of the premises at a time when he was in a recumbent posture. The wounds then inflicted were to the front of his body and it is clear that thereafter he got off the bed after, or as, some further injuries were being inflicted on him in the course of his attempts to escape from his assailant, the prisoner. He escaped from the bedroom and moved down the hall in order to get outside the premises but was pursued by the prisoner, who stabbed him in the back a number of times. Whilst in the hallway he tried to switch on the light. At that time he was heavily blood stained both front and back and appears to have then had further stab wounds inflicted to the front part of his body. In the course of his endeavour to escape Mr Price reached the front door and opened it and, as is apparent from the blood stains on the outside knob of the front door, he succeeded in getting outside the house. However, he did not remain outside and was either dragged or, as is much less likely, came back into the house and fell in the hallway quite close to the open doorway that leads into the lounge room in which his body was later found by police.

That he lay in the hallway for some time is manifest by the considerable volume of blood found in the pool in the hallway.

After he had been dead for some time his body was dragged by the prisoner from the hallway into the lounge room. That he had been dead for some time before this occurred is demonstrated most graphically by the photographs which show the smearing of blood caused by the moving of his body, especially by the thighs, buttocks and thoracic area of his back which were in contact with the floor. Those photographs and the evidence relating to them and the events surrounding the death establish without doubt that at the time Mr Price’s body was moved the blood in the pool was not fully fluid and thus did not flow in to fill the gaps caused by the movement of the body.

I am satisfied that at the time the prisoner dragged Mr Price’s body from the hallway into the lounge room it was, subject to the wounds which had been inflicted and to which I have already referred, still entire.

Thereafter the prisoner, who had for many years worked as a meat slicer in abattoirs, skinned Mr Price’s body. This was carried out with considerable expertise and an obviously steady hand so that his skin, including that of the head, face, nose, ears, neck, torso, genital organs and legs, was removed so as to form one pelt. So expertly was it done that, after the post mortem examination, the skin was able to be re-sown onto Mr Price’s body in a way which indicated a clear and appropriate, albeit grizzly, methodology. One small segment was left in place – the skin on the left upper chest.

At some time after Mr Price had been skinned the prisoner hung his pelt on a meat hook on the architrave of the door of the lounge room, where it remained until it was later removed by investigating police.

As is apparent from the fact that his head and neck were removed as part of one entire skin, Mr Price’s head was in place at the time he was skinned. However at some time between the time when the body was moved into the lounge room and skinned and about a time before 7.30 a.m. on 1 March 2000 the prisoner decapitated Mr Price’s body and at some stage arranged it with the left arm draped over an empty soft drink bottle, and the legs crossed. This was said in evidence to be an act of defilement demonstrating contempt for Mr Price’s remains.

The evidence of the Medical Examiner establishes that the decapitation was effected at the C3/C4 junction and was done with a very sharp knife. The removal was clean and left an incised type wound. To remove Mr Price’s head in such a way required skill, which was consistent with the skills acquired by the prisoner in the course of her work as a meat slicer. It also required a steady hand at the relevant time.

Not only was Mr Price’s head removed but parts of his buttocks were also sliced off. The excised parts of Mr Price were then taken by the prisoner to the kitchen and at some stage, after she had peeled and prepared various vegetables, she cooked Mr Price’s head in a large pot together with a number of the vegetables she had prepared so as to produce a sickening stew. The contents of the pot were still warm, estimated to be at between 40 and 50 degrees centigrade, when examined by police during the mid-morning of 1 March 2000. This supports the conclusion that the cooking of Mr Price’s head took place at a time into the early morning of 1 March 2000.

The pieces which had been cut from Mr Price’s buttocks were baked in the oven of the premises by the prisoner together with other of the vegetables she had peeled. The gruesome steaks were then arranged on plates together with the vegetables which she had baked and left as meals for the son and daughter of the deceased, accompanied by vindictive notes to each in the handwriting of the prisoner. A third piece was thrown on the back lawn, whether for consumption by dogs or for some other purpose is not revealed in the evidence.”

4 The sentencing judge described the circumstances of and surrounding the killing as horrendous. His Honour said “Objectively the circumstances mark the killing and its accompanying incidents as being of the most gruesome kind, the murder as being in the most serious category of crime.”

The personality of the applicant

5 The sentencing judge was provided with considerable evidence relating to the applicant’s personal history. She had been previously married and when that relationship failed had lived in two de facto relationships. Both those relationships failed whereupon she commenced living with the deceased. His Honour found that throughout her various relationships the applicant was “prone to violence and vindictiveness, to malice and possessiveness and to cruelty and that she was also a person who was anxious to present herself as an innocent victim, whereas in fact she was not infrequently a serious aggressor.”

6 His Honour’s detailed consideration of these matters was as follows:

“Mr Price had married in April 1973, but had separated from his wife in January 1988.

There were two children of that marriage. According to his wife Mr Price had never been violent, even when affected by alcohol. She said their separation had been because they “were not really completely compatible” and that, notwithstanding the long separation, he had sought a reconciliation on many occasions and remained a good provider. At the time of his death Mr Price and the prisoner were in a de facto relationship, as they had been intermittently for a period of some four to six years. It had been less than tranquil. Indeed on a number of occasions in the past there had been arguments between them in the course of one of which the prisoner stabbed or slashed Mr Price on the left chest with a knife. I shall return to the prisoner’s relationship with Mr Price later in these reasons.

As was her entitlement, the prisoner chose not to give evidence. As a result there is no sworn testimony to support the contentions by her as to her childhood and earlier life or as to her various relationships. However, in her interviews with the various psychiatrists she gave a history of having been one of eight children, six of whom were boys and one of whom was a twin sister. Her history included that one, possibly two, of her brothers had sexually abused her when she was young and that there was a suggestion that on one occasion her father may have engaged in activity suggestive of some sexual connection with her. However, she was unable to provide any details of the events involving her brothers which gave rise to doubts in one of the psychiatrists about the authenticity of such allegations.

Her marital and de facto relationships had all proved to be unsatisfactory. In 1974 she married David Kellett. Two children were born of this marriage, which broke up in 1984 or thereabouts. She claims to have been physically abused by her husband and that he was unfaithful to her as a result of which she claims to have had a nervous breakdown. In a statement made by him, David Kellett, who was at the material times a truck driver, denied any incidence of violence on his part. He said, ”I never raised a finger against her, not even in self defence. I would just walk away”. He described the prisoner as “being unpredictably violent.” He further recounted an event on their wedding night in which she choked him by grabbing his throat because of what she perceived to be the comparative inadequacy of his sexual performance. He said that at a later time not only had she attacked him with an iron but on one occasion he woke one morning with her sitting on his chest in bed holding a meat knife to his throat and saying: “You see how easy it is” and asking “is it true that truck drivers have different women in every town?” He denied any such infidelity. She also burnt his clothing.

There was no cross-examination of Mr Kellett on his statement although an opportunity for cross-examination was afforded to counsel for the prisoner. Furthermore there is no evidence either in the Crown case or in the case mounted on behalf of the prisoner to gainsay Mr Kellett’s statement. His evidence was not challenged in address. I accept Mr Kellett’s evidence as the more correct version of what occurred in the marriage. In particular the evidence establishes violent, vindictive, vengeful acts on the part of the prisoner directed at her spouse.

The prisoner also complained about mistreatment at the hands of her de facto husband, David Saunders, whom she met and with whom she formed a relationship with in 1987. One child, a daughter, was born of this relationship in June 1988. She claimed that Mr Saunders also treated her very badly and was violent to her. In particular she claimed that on one occasion he had kicked her in the stomach at a time she thought she was pregnant, as a consequence of which she got a knife and went immediately into the back yard and as an act of revenge cut the throat of Mr Saunder’s eight week old puppy whilst Mr Saunders was watching. On a later date the prisoner damaged Mr Saunders car. It was at about this time that she took an overdose of sleeping tablets and was admitted to a psychiatric hospital.

During the course of this relationship the prisoner took out a number of Apprehended Violence Orders against Mr Saunders and, according to one of the prisoner’s daughters, there was violence by Mr Saunders towards her mother.

Mr Saunders made a statement which was tendered in evidence. He was not cross-examined on this statement although the opportunity for such cross-examination was also afforded to counsel for the prisoner. His evidence was not challenged in address. In his statement he claims not to have been keeping company or sleeping with any other women at the time he was in the relationship with the prisoner, although she constantly accused him of such behaviour. Furthermore, he denies the incident of kicking as alleged by the prisoner and claims that although the relationship was “basically good” the prisoner did take out domestic violence orders against him. However, he says, “it was me that was being assaulted”. In particular he instances an occasion when she stabbed him in the right side of the stomach with a pair of scissors and another when she cut all his clothing into small pieces, leaving him with only the clothes he was then wearing.

Whether Mr Saunders was the aggressor in the relationship is not able to be resolved satisfactorily on the evidence before the court. However, what is clear and uncontradicted is that there were a number of violent and vengeful acts by the prisoner towards Mr Saunders and his property and these included an instance in which a stabbing instrument was used to inflict injury and another in which she killed a puppy by cutting its throat as an act of malice and revenge directed at Mr Saunders.

Her next relationship was with John Chillingworth. It commenced in 1990 and a son was born in March 1991. Again, the prisoner had nothing good to say about this partner and the relationship broke up after some three years. Although the prisoner claims to have been assaulted by Mr Chillingworth on many occasions, as is recorded by Dr Milton, the available records do not support her claims. Furthermore, in a statement made by John Chillingworth he denies violence to her, except on one occasion when she snatched his glasses from his face and broke them in front of him. It should, however, be noted that for a time Mr Chillingworth was addicted to alcohol. Mr Chillingworth’s statement was not the subject of cross-examination nor challenged in address. Mr Chillingworth’s statement reveals a number of spiteful and vindictive acts, including the smashing of his false teeth because it was claimed that he had smacked one of the daughters of the prisoner – a claim which he denies. The relationship between Mr Chillingworth and the prisoner came to an end in December 1993 which was some two years after he had given up alcohol and become a regular member of Alcoholics Anonymous.

Again, it is not possible to be dogmatic about the exact relationship between Mr Chillingworth and the prisoner. However, it is clear that she engaged in spiteful, vindictive and vengeful behaviour when she felt, whether with or without justification, that she had been slighted by her partner.

According to the prisoner her relationship with Mr Price began some six years before his death. That would place the commencement of the relationship in about 1994. According to the prisoner she lived with Mr Price for about two years then broke up, but then went back to live with him after some period apart. Mr Price’s son, Jonathan, fixed the time of the commencement of relationship as about 1995 or 1996. Whatever the actual date of commencement of the relationship, the evidence shows that it was less than stable and had been neither continuous nor tranquil. There were incidents of violence on the prisoner’s part and on Mr Price’s part as well. During the course of the relationship she engaged in a number of acts of spite and violence towards him. One of these involved the prisoner making a video, with an accompanying commentary, of a first aid cabinet and some other items which Mr Price had taken from his place of employment. At a later date, as a result of Mr Price doing something which displeased her, the prisoner sent the video to Mr Price’s employer. The result was that Mr Price lost his job. This was said by her to have been done as an act of revenge. It is significant to note that the prisoner was untruthful about the subject matter of this video when she gave her history to Dr Lambeth and when she spoke about the video to other people as well. Her untruthful description of the contents of the video painted her as a victim of assault, rather than Mr Price as being a victim of her malice.

On another occasion she sliced Mr Price’s left chest with a knife. The scar from this was still visible on his body following his death and skinning. It is perhaps not coincidence that the only part of Mr Price that was not skinned by the prisoner was that part of him which bore the scar which she inflicted.

In the course of the relationship the prisoner made it known to a number of people that she intended to kill or seriously maim Mr Price. Threats of such a kind were made to several people as well as to Mr Price in the presence of other people. For his part, Mr Price expressed concern for his safety and even his life to a number of people and stated that he intended to terminate the relationship and have the prisoner removed from his house.

On more than one occasion during the course of the relationship the prisoner had sought to have Mr Price give her his house or a share in the house, which she regarded as hers, at least in part. She was not happy when Mr Price indicated that he did not intend to confer any proprietary rights on her and that he intended that his goods and his house should go to his children. In this regard it should be noted that the prisoner said to Mr Price in the presence of one of his friends, Trevor Lewis, “You’ll never get me out of this house. I’ll do you in first.”

On the Sunday before the killing there was an altercation between the prisoner and Mr Price. It is clear that he assaulted her, but the circumstances in which this occurred are less than clear. He left the house and sought refuge in the nearby house of a friend, claiming that the prisoner had gone for a butchers knife and that he was fearful for his life. The police were called and he repeated this assertion to them. However, the prisoner denied to the police that she had used or intended to use a knife on Mr Price. She was, however, aware that Mr Price had told the police that he wanted to end the relationship and had asked them to get the prisoner out of the house. The police informed Mr Price that he would have to use court process for that purpose. He protested and again expressed concern for his safety.

The evidence concerning the interval between Sunday, 27 February, 2000 and the date of Mr Price’s death does not reveal any further argument or disturbance between the prisoner and Mr Price. It does however reveal that the prisoner showed her bruises to many people. These included the police officers who attended Mr Price’s residence on 27 February, 2000, her twin sister, both her daughters, her sister-in-law and a friend as well as Dr Cook at whose surgery she attended late on the afternoon of Tuesday, 29 February 2000. Her attendance on Dr Cook was not for the purpose of any treatment, but merely to have the doctor record his findings. On examination he found three bruise marks on the prisoner’s right breast consistent with finger marks, as if someone had grabbed the breast firmly. He also found a small bruise on her left chin at about the jaw line. As the doctor commented:

“The consultation was fairly brief, she seemed to be mainly concerned that the injuries were recorded.”

From a review of the prisoner’s history, I am satisfied beyond reasonable doubt that the prisoner was, throughout her various relationships, a person who was prone to violence and vindictiveness, to malice and possessiveness and to cruelty and that she was also a person who was anxious to present herself as an innocent victim, whereas in fact she was not infrequently a serious aggressor.

I am further satisfied beyond reasonable doubt that the prisoner had not had any stable relationship with a member of the opposite sex, that all her relationships, marital and de facto, had involved violence, certainly on her part, that such violence included the use by her of knives and cutting instruments and that her vindictive and violent behaviour was frequently in the nature of a “pay back”.”

Was the murder premeditated?

7 His Honour gave careful consideration as to whether the murder was premeditated. He found that it was having regard to the following considerations:

“(a) Comments made by the prisoner to other persons indicating such an intention.

(b) Comments of a similar kind made by the prisoner to Mr Price in the presence of others.

(c) Comments made by Mr Price to others which indicated his fears for his life.

(d) The conduct of the prisoner in the days leading up to the murder.

(e) The behaviour of the prisoner on 29 February 2000.”

8 His Honour’s analysis of these matters was as follows:

“As to (a)

Some 16 months before the murder the prisoner said to her daughter, Natasha: “I told him if he took me back this time it was to the death”.

This was said against a background of the prisoner having resumed her relationship with Mr Price following a period of separation. She also said, to the same daughter, ”If I kill Pricey, I’ll kill myself after it.

About five months before the murder she said to her brother, Kenneth Knight: “I am going to kill Pricey and I am going to get away with it I’ll get away with it cause I’ll make out I’m mad”.

This conversation was also heard by the prisoner’s niece, Tracy Knight.

About five weeks before the murder the prisoner, who Mr Kenneth Knight says often told him she was going to kill Mr Price, said: “I am going to kill Pricey and the two kids too.”

The prisoner also made such a threat to one of her friends, Geraldine Edwards.

As to (b)

The prisoner said to Mr Price in the presence of a friend, Trevor Lewis: “You’ll never get me out of this house, I’ll do you in first” and, in the presence of Amanda Pemberton she threatened Mr Price, saying: “If you leave me I will cut your balls out.”

As to (c)

Mr Price confided to his friend, Trevor Lewis that he believed that the prisoner would end up killing him. To his neighbour and friend, Anthony Keegan, (to whose house he repaired on Sunday, 27 February, 2000 after the altercation with the prisoner), he said: “She’s gone for the butcher’s knife so I got out of there.” He also informed Mr Keegan of his concern, as later expressed to the police, about getting a knife in his back.

He informed his employer that on Monday, 28 February 2000, he woke up in the dark of the early hours of the morning to find the prisoner at the end of the bed with her hands behind her back, it being his belief that the prisoner had a knife. He said that he believed he was “a gonna” and leapt out of bed and escaped. However, he declined to leave the house because of his concern that his children may become targets in lieu of him.

Mr Price attended a Chamber Magistrate at Scone Court House on 29 February, 2000. He went to seek an Apprehended Violence Order against the prisoner and informed the Chamber Magistrate that he wished to end his relationship with her and to prevent her from entering his house. On that occasion Mr Price informed the Chamber Magistrate of the previous stabbing event which he had experienced at the hands of the prisoner and also informed the Magistrate that the prisoner had threatened to cut his penis off.

As to (d)

As indicated in paragraph 42 above, the prisoner made considerable play of demonstrating the bruises which she received at the hands of Mr Price on Sunday, 27 February 2000. The fact that she did not seek treatment and was so keen for everyone to see them, in my opinion, was part of creating a suitable setting into which the killing of Mr Price could be placed.

As to (e)

The behaviour of the prisoner on 29 February, 2000 was quite unusual. The retrieval by her of her video camera from the house of her twin sister was significant. It had been at that house for a number of months. It was retrieved to record quite unusual demonstrations of apparent affection to one of her daughters and to record, inter alia, a curious statement: “I love all my children and I hope to see them again”

Coming on top of the unexpected retrieval of the video camera and in the light of subsequent events, this statement supports the conclusion that she had in her mind circumstances which could mean that she may not see her children again.

The prisoner’s decision to take her daughter, Natasha, and others to dinner that night was also quite unusual. So too was the statement of her reason, namely: “I want it to be special.” No basis for a special night was laid and when added to what was said on the video is an additional matter going to an ultimate conclusion concerning the prisoner’s intentions in relation to Mr Price. That such intentions were perhaps discussed with, and if not discussed with at least manifest to, her family is clear from the statement of her daughter, Natasha. She sensed that her mother was unstable within herself and the events of the day and whatever was said or done caused her to say that night: “I hope you are not going to kill Pricey and yourself”

The behaviour of the prisoner in leaving her two younger children at the home of her daughter, Natasha, without clean clothes and without their school requisites is also significant, the more so since she gave different and inconsistent reasons for having done this. The true explanation, in the light of subsequent events is that she did not want to go to her own house with her children and that she did not want the children at Mr Price’s house on that night.

One other factor which should be taken into account in relation to this aspect of the case is the medical evidence. As will be seen in more detail hereafter, all of the medical witnesses expressed the opinion that the prisoner had determined to kill Mr Price at least by Sunday, 27 February, 2000. I accept their opinions as to her determination to kill Mr Price as correct, more particularly in the light of the matters referred to above.

There are a number of other indicators to which regard may be had. However, based on the material set out above I am left in no doubt that the prisoner had determined, at least by Sunday, 27 February, 2000, that she was going to kill Mr Price and planned the method of his execution between then and the time she returned to his home on the night of 29 February, 2000.”

Should the applicant’s actions be understood as a suicide attempt?

9 A suggestion was made at the sentencing hearing, which was repeated on this application, that the various statements and actions of the applicant should be understood as indicating that the applicant was contemplating suicide. His Honour rejected the submission in the following terms:

“Counsel for the prisoner has submitted that the events following the killing, skinning and beheading of Mr Price and the partial cooking of his body, involved a genuine attempt on the part of the prisoner to take her own life. I am satisfied beyond reasonable doubt that there was no genuine attempt on her part so to do.

An examination of a sample of her blood taken at the hospital revealed that she had no alcohol in her blood and that the levels of fluvoxamine and promethazine were respectively 0.22mg/l and 0.21 mg/l. These are well within the limits of a therapeutic dose of the drugs in question. These drugs had been previously prescribed for the prisoner and as a consequence she was well aware of the therapeutic dose.

At the hospital on 2 March, 2000 she said she had taken only two nerve tablets. The Fluvoxemine had come from a blister packet of fifteen which was found at Mr Price’s house. Each tablet was of 100 milligrams. The antihistamine promethazine tablets (trade name Phenergan) were taken from a blister pack of twenty, each tablet in which was 25 milligrams. In the light of the half life of the prescribed drugs in question, the limited dose taken, her knowledge of the prescribed dose and importantly the views expressed by Dr Milton, namely that it was not a genuine suicide attempt, I have come to the conclusion set out above.”

Did the applicant have amnesia?

10 The applicant claimed to have no recollection of the relevant events when she was interviewed. His Honour did not accept that claim, his analysis being as follows:

“The prisoner claimed in her record of interview to have no recollection whatsoever of the events of and surrounding the death of Mr Price. The extent of her amnesia as claimed in her record of interview was virtually total, extending back into part of the day of 29 February, 2000 and into 1 March, 2000. However, as set out in paragraph 25 above she was able to remember and detail quite vividly events which appear to have immediately preceded Mr Price’s death. Furthermore, on the morning after her admission to hospital she was able to give details of the medication she had taken and its quantity. Although this was before she was questioned by the police, she still claimed in the course of that questioning that she had no recollection of such events. Piecing these various strands of evidence together it results in a picture in which her recollection ceases immediately before Mr Price’s death and recommences after the skinning, dismemberment and partial cooking of Mr Price had taken place. This is not a credible pattern for a true amnesia, according to the psychiatric evidence which I accept. Moreover, during the time of which she claims to have no recollection, she performed a number of tasks that required a steady hand, the application of skill and an understanding of driving a motor vehicle and of operating an automatic teller machine. She also showered, changed her clothes and walked from her house back to Mr Price’s house.

I do not believe the prisoner’s statements as to her claimed amnesia. For reasons set out above and are further dealt with in the course of examining the medical evidence, I am satisfied beyond reasonable doubt that she has much more recollection than she has claimed and that her claimed extent of amnesia is convenient for her, both emotionally and litigiously.

Although this issue was debated at some length both during the course of the hearing and in addresses, in one sense whether she had and has amnesia for the events is of little or no account in relation to the question of the penalty to be imposed upon the prisoner. Whether she remembers the events or not they are as horrendous. Whether she remembers the events or not, they were premeditated. Even if she has no recollection of the actual killing, dismemberment and partial cooking of Mr Price, that may be regarded as no more than a blocking out by her of events that are so horrendous as to cause revulsion and rejection by her as the person responsible for such acts. “

The psychiatric evidence

11 The sentencing judge had the benefit of evidence from the psychiatrists, Dr Delaforce, Dr Milton and Dr Lambeth. His Honour expressed the following conclusion in relation to the psychiatric material:

“From the foregoing it can be seen that two of the psychiatrists called in the case (i.e. other than Dr Milton) were of the view that the prisoner had a borderline personality disorder, that the prospects of ridding her of such disorder were in essence nil, that she was and would remain a person dangerous to others if set at large in the community and that she continued to be capable of inflicting quite serious physical harm, even death, on members of the community, particularly on any one who crossed her. These included the family of Mr Price.

In a practical sense the nuances of difference between the doctors do not matter. I am satisfied beyond reasonable doubt that the end point of their evidence is that she is and will continue to be a very dangerous person and so continue indefinitely. Furthermore, her history of serious violence, particularly involving knives and extending over a long period, strongly supports the conclusion that were she to be released into the community at any time she would be likely to inflict serious injury, perhaps death and even mutilation, on those who cross her.”

Was this a worst case?

12 Following his discussion of the circumstances of the killing and the psychiatric evidence his Honour identified the fact that s 19A of the Crimes Act provides that a person who commits the crime of murder is liable to imprisonment for life (s 19A(1)) and if sentenced to life imprisonment must serve that sentence for the term of that person’s natural life (s 19A(2)). However, as his Honour correctly identified s 19A must be read together with s 21(1) of the Crimes (Sentencing Procedure) Act 1999 which provides that a lesser sentence than life may be imposed for murder.

13 His Honour found that the facts of the present case brought the murder into the worst case category and, only if the mitigating factors justified a lesser penalty, would any sentence other than life imprisonment be appropriate. The matters which his Honour identified as going to the seriousness of the offence were:

· the extreme culpability of the applicant, his Honour having found that the murder was premeditated;

· the applicant has no real prospects of rehabilitation and would be highly dangerous to the community were she allowed out of prison;

· although muted because of her borderline personality disorder the need for general deterrence was a relevant factor;

· the community interest in heavy punishment and in rehabilitation for the crime was high;

· the applicant’s history of violence reflected a characteristic of her personality with the consequence that consideration of retribution, deterrence and protection of society require a most severe penalty.

Matters in mitigation

14 The sentencing judge identified four matters as possibly going to mitigation of the penalty:

(i) The fact that the prisoner pleaded guilty to the charge of murder.

(ii) The borderline personality disorder diagnosed in the prisoner.

(iii) The absence of any prior relevant criminal record on the part of the prisoner.

(iv) That the quality of mercy would not be strained were a finite sentence to be imposed on the prisoner.

15 With respect to the plea of guilty his Honour found that it should be accepted as having been offered on the first day of the trial. Although it was not an early plea the applicant’s counsel argued that the applicant’s claimed amnesia relating to the relevant events explained the delay. His Honour was sceptical of this claim and determined that no discount for the plea could be afforded to the applicant. His reasons for this decision were as follows:

1. Whether the prisoner genuinely suffered from amnesia or not she was made aware shortly after her actual arrest on 1 March, 2000 that she had killed Mr Price.

2. In the interview which was conducted by police on 4 March 2000 the fact that Mr Price was dead, that the prisoner was believed to have killed him and that she was under arrest for and would be charged with his murder, was made abundantly clear.

3. The prisoner had been interviewed by her legal representatives in connection with the killing even before the police saw her on 4 March 2000.

4. The medical records indicate that the fact that the prisoner had killed Mr Price was brought to her attention while she was in hospital.

5. The prisoner was well aware by the time she was interviewed by Dr Delaforce on 21 and 22 June, 2000 that she had murdered, and was charged with having murdered, Mr Price

6. The nature of the circumstances of and surrounding the murder and the fact that the crime is, even on the most beneficial view, at the very top of the range of seriousness.

7. Whether a discount should be given or not is a discretionary matter and the present case is one in which the protection of the public requires a long sentence so that no discount for the plea is appropriate.

8. The absence of any element of contrition or remorse involved in the plea.

9. The fact that there was a strong Crown case confronting the prisoner.

10. Even on a purely utilitarian approach, the investigation had been completed and the preparation of the trial had been undertaken. The extent of the saving in human and economic terms was therefore limited.

16 His Honour concluded his reasoning in relation to the plea with this summary statement:

“Furthermore, the nature of the crime committed by the prisoner so offends the public interest that the maximum sentence, without any discount, would be appropriate.”

17 His Honour accepted that the applicant has a borderline personality disorder and, although finding that this condition may have been involved in her decision to kill, his Honour said: “it does not explain the time and full circumstances of the killing, which come from factors not associated with the borderline personality disorder.”

18 Although some of his Honour’s statements on the matter could be misunderstood I believe the better view is that he accepted that the applicant had no relevant criminal record. However, his Honour found that her absence of previous convictions was of no real consequence when set against her history of violence which his Honour found to be a characteristic of her personality.

19 Finally, his Honour had regard to considerations of overriding mercy but found that the applicant did not qualify for any mercy from the court. Describing her behaviour as cruel and vicious and showing no mercy to Mr Price his Honour concluded that she had shown no contrition or remorse and posed a serious threat to society.

The relevant principles

20 The sentencing judge was careful to consider the principles which have been identified by this Court to be appropriate when a court is contemplating imposing a life sentence. It has been emphasised on many occasions that the sentencing of offenders is a complex and difficult task requiring a judgment to be made with respect to many considerations which may not necessarily, and often do not, point to the same conclusion.

21 There will rarely be only one correct sentence for any particular offender. As much as a conventional sentencing decision is difficult, when sentencing for murder in circumstances where a life sentence may be appropriate and where, if sentenced to life imprisonment, the offender will never be released the task is even more onerous. The problems are acute when the offender might be expected to live for another forty years or more and where, although guilty of a heinous crime, and a present danger to the community, the impact of incarceration and the amelioration of criminal tendencies with time could result in that person being satisfactorily returned to society at some, although distant, future time.

22 These considerations have led this Court to require that sentencing judges carefully consider whether the facts of any particular case justify the finding contemplated by s 61(1) of the Crimes (Sentencing Procedure) Act 1999. That section is in the following terms:

“A court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence.”

23 Section 61(1) has been the subject of consideration in a number of decisions. It is not necessary to analyse them for present purposes beyond a statement of the following principles:

· the maximum penalty for an offence in the case of murder, life imprisonment, is intended for cases falling within the worst category of case for which that penalty is prescribed: Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447 at 451-452.

· it is not possible to prescribe a list of cases falling within the worst category – ingenuity can always conjure up a case of greater heinousness: Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 478; R v Petroff (unreported, 12 November 1991 – Hunt CJ at CL).

· a life sentence is not reserved only for those cases where the offender is likely to remain a continuing danger to society for the rest of his or her life or for cases where there is no chance of rehabilitation; the maximum may be appropriate where the level of culpability is so extreme that the community interest in retribution and punishment can only be met by a sentence of life imprisonment; R v Kalazich (1997) 94 A Crim R 41 at (50-1); R v Baker (unreported, CCA 20 September 1995); R v Garforth (unreported CCA 23 May 1994).

· in many cases a two stage approach to the consideration of whether the maximum penalty should be imposed is appropriate. Firstly, consideration is given to whether the objective gravity of the offence brings it within the worst class of case and then consideration is given to whether the subjective circumstances of the offender require a lesser sentence: R v Bell (1985) 2 NSWLR 466; R v Valera [2002] NSWCCA 50.

· it is the combined effect of the four indicia in s 61(1) which is critical: R v Merritt [2004] NSWCCA 19; (2004) 59 NSWLR 557.

· the absence of any one or more of the indicia of retribution, punishment, community protection or deterrence may make it more difficult for a sentencing judge to reach the conclusion that a life sentence is required although will not be determinative: Merritt at 559.

24 In the present case the sentencing judge undertook the two stage process finding that the murder fell into the most serious category and that having regard to her personal history of violence and flawed personality, a life sentence was appropriate. His Honour’s summary remarks were as follows:

“The prisoner has pleaded guilty to a murder which falls into the most serious category of murders. I am satisfied beyond any doubt that such murder was pre-meditated. I am further satisfied in the same way that not only did she plan the murder but she also enjoyed the horrific acts which followed in its wake as part of a ritual of death and defilement. The things which she did after the death of Mr Price indicate cognition, volition, calm and skill. I am satisfied beyond reasonable double that her evil actions were the playing out of her resentments arising out of her rejection by Mr Price, her impending expulsion from Mr Price’s home and his refusal to share with her his assets, particularly his home, which he wanted to retain for his children. I have no doubt that her claim to amnesia forms part of her plan to affect madness in order to escape the consequences of her acts and to provide a convenient basis, on which to rely to avoid detailed questioning by the police and escape punishment.

As I have said, the prisoner showed no mercy whatsoever to Mr Price. The last minutes of his life must have been a time of abject terror for him, as they were a time of utter enjoyment for her. At no time during the hearing or prior thereto did the prisoner express any regret for what she had done or any remorse for having done it; not even through the surrogacy of counsel. Her attitude in that regard is consistent with her general approach to the many acts of violence which she had engaged in against her various partners, namely “they deserved it”. In addition the prisoner’s history of violence together with her flawed personality cause me to conclude, along with Dr Milton and the other psychiatrists called in the case, that she is without doubt a very dangerous person and likely, if released into the community, to commit further acts of serious violence, including even murder against those who cross her, particularly males. A crime of the kind committed by the prisoner calls for the maximum penalty the law empowers the court to impose.

An examination of the cases referred to by counsel supports the view that I have formed, namely that the only appropriate penalty for the prisoner is life imprisonment and that parole should never be considered for her. The prisoner should never be released.”

The appeal

25 The applicant pressed five grounds of appeal. In my opinion each ground should be rejected.

26 It was submitted that his Honour was in error in finding that the offence was in the worst class of case and that there was little to distinguish this case from an ordinary domestic murder. To my mind there will always be difficulties in attaching precise labels to a particular offence and I would be reluctant to acknowledge that “an ordinary domestic murder” would be an appropriate description of any offence for the same reason the courts have been reluctant to define the elements which comprise a worst case: Veen v The Queen (No 2) [1988] HCA 14; (1968) 164 CLR 465 at 478. However, there are present in the applicant’s case a number of features which in my opinion justify its categorisation as being in the worst class of case.

27 His Honour found, and in my opinion the finding was justified, that the applicant had planned to murder Mr Price for some time prior to the actual killing. I have previously set out his Honour’s consideration of these matters. Her crime was not one committed during a momentary lapse of mind or in a spontaneous rage. The objective facts justify the conclusion that the applicant set upon the deceased whilst he was prone in bed and inflicted a number of wounds to his abdomen. He then sought to escape but she inflicted successive cuts with a large knife to his back and buttocks. She then set about defiling his body in a calculated and precise manner. There was no suggestion that the killing was committed in a fit of rage or when the applicant had temporarily lost control of herself. Her motivation was plain. Her relationship with the deceased was failing and rather than be rejected she decided to kill him.

28 The applicant submitted that her mutilation of the deceased’s body following his death was not relevant to the objective seriousness of the offence. In my opinion this submission must be rejected. As this Court said in R v Yeo (2002) NSWSC 315 at [36] the offender’s treatment of the deceased’s body can be taken into account in assessing the seriousness of the offence (see also R v Garforth unreported, NSWCCA, 23 May 1994; DPP v England (1997) 186 A Crim R 99).

29 This was a violent and cruel crime during which the deceased must have suffered extreme trauma. He was stabbed numerous times. The violation of his body reveals an utter contempt for the deceased and for his children.

30 The applicant submitted that “it was not open to his Honour to find that the applicant was so dangerous that she could never be released.” I do not accept this submission. It is now settled that the sentencing judge does not have to be satisfied of the risk of re-offending beyond reasonable doubt: R v SLD [2003] NSWCCA 310; (2003) 58 NSWLR 589. To my mind there was more than sufficient evidence to justify his Honour’s conclusion in this case. As his Honour found, the evidence reveals a pattern of violent and vengeful behaviour visited upon her previous partners and the deceased. This behaviour extended to engaging her nephew to assault the deceased and steal his motor vehicle. Dr Delaforce noted the applicant was herself fearful “that she would repeat her behaviour if released from prison” and concluded that she had a “continued high risk of violence to self and others, especially when relationships with males end, or are thought to be ending.” Dr Delaforce is of the opinion that these personality traits would not change significantly in the future. Dr Milton concurred with Dr Delaforce.

31 As I have indicated, in R v Garforth (unreported, NSWCCA, 23 May 1994) the court rejected the submission that it was only in a case where there was no chance at rehabilitation that the maximum penalty of life imprisonment should be imposed at [15]. Similarly, in R v Baker (unreported, NSWCCA, 20 September 1995) Barr J rejected the suggestion that a life sentence should never be imposed if there is some prospect of rehabilitation at [10]:

“An alternative way of putting such an argument would be to say that where a prisoner had some prospects of rehabilitation, his crimes could never be regarded as falling into the worst category of case. I would reject such an argument.”

32 The applicant submitted that his Honour’s finding that she had a violent personality, having regard to the evidence of her violence toward former partners, was inappropriate because it failed to have regard to evidence, particularly from the applicant’s children, of the violence perpetrated on her by those partners. Although it is apparent that his Honour did not refer to that evidence in his reasons, he obviously had regard to it when forming his conclusion. His Honour’s speaks of difficulties in accurately describing these relationships and says of Mr Kellett that his version of what occurred in the marriage was “the more correct.” As to Mr Saunders his Honour says that the question of whether he was the aggressor in the relationship “is not able to be resolved satisfactorily.”

33 Notwithstanding his criticism of the sentencing judge’s reasons counsel for the applicant accepted that at the least it was plain that the applicant had been involved in a series of violent domestic relationships in which “she gave as good as she got.” If this evidence went no further, and in my view it did, it could not be concluded that the appellant’s violent outbursts were explained by violence inflicted upon her or that her actions could be explained or justified because she was a victim of indignities inflicted upon her.

34 I have considered all of the material before the sentencing judge. Not only did counsel concede that his Honour’s findings were open on the evidence in my opinion those findings were justified. The applicant was prepared to resort to violence and inflict real harm on other people. Most significantly she was prepared to use knives and ultimately, as the facts of this case demonstrate she was prepared to carry out a brutal killing rather than allow the applicant to terminate their relationship.

35 Complaint is made that the sentencing judge erred by not giving the applicant any discount for her plea of guilty and discounted the utilitarian value of her plea because of the strength of the Crown case.

36 I have previously set out his Honour’s reasoning with respect to the plea. I am not persuaded that his Honour’s decision to deny a discount was other than appropriate.

37 In my opinion the utilitarian value of the plea was limited, being effectively offered on the first day of the trial. It is apparent that his Honour did have regard to the strength of the Crown case when considering the plea and in this respect his Honour may have erred: R v Thomson and Houlton [2000] NSWSC 275; (2000) 49 NSWLR 371 at 416; R v Sutton [2004] NSWCCA 225 at [12]. However, the error was of no moment. His Honour was satisfied that in any event the circumstances relating to the offence and the offender were such that the plea of guilty could not justify any discount of her sentence. see R v Miles [2002] NSWCCA 276; R v Kalache [2000] NSWCCA 2; R v Thomson and Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [157]. That finding was clearly open to his Honour and in my view was correct.

38 The applicant further submitted that his Honour erred by not taking into account the applicant’s psychiatric disorder as a mitigating factor. The submission was in the following terms:

“The second factor, which it was argued mitigated the offence, was the applicant’s psychiatric disorder. There was a conflict in the psychiatric evidence about the applicant’s psychiatric condition. Dr Rod Milton, who was called by the Crown, was of the opinion that the applicant’s personality problems were not in the nature of a psychiatric disease, they were her nature. Dr Delaforce, who was also called by the Crown, diagnosed the applicant as suffering from a borderline personality disorder and post traumatic stress disorder. He specifically did not find that she was a psychopath. Dr Lambeth, who was called by the applicant, also found that the applicant suffered from a post traumatic stress disorder and from a borderline personality disorder.

His Honour did not reach a firm conclusion about the conflict between the experts as to the applicant’s psychiatric condition. His Honour found that, even on the most favourable case made for the applicant, the personality disorder was involved in the applicant’s decision to kill, ‘but it does not explain the time and the full circumstances of the killing, which come from factors not associated with the borderline personality’. As a result his Honour concluded that the applicant’s mental condition ‘does not, in my opinion, operate to reduce the penalty which otherwise should be imposed.’

His Honour clearly treated a connection between the applicant’s mental condition and the offence, as a precondition for using the psychiatric condition as a mitigating factor. It is submitted that in so doing, his Honour was in error: see Engert (1995) 84 A Crim R 67 at [68] and [71]; Regina v Letteri (NSWCCA unreported 18 March 1992 at [12]); Regina v Benitez [2006] NSWCCA 21 at [39].”

39 There could be little doubt that an uninformed person would be likely to conclude when given an account of the relevant facts that the applicant was mentally ill or perhaps mad. However, the psychiatric evidence in the case presents quite a different picture. Although Dr Delaforce diagnosed the applicant as suffering from post traumatic stress disorder and borderline personality disorder he emphasised that her actions in carrying out the murder were part of her personality and not a manifestation of any psychiatric disorder. Dr Lambeth made a similar diagnosis to Dr Delaforce, although he was of the opinion that her condition was pervasive and affected all parts of her life. However, he did not accept that her personality disorder provided a complete explanation for her crime. Dr Milton’s evidence was to similar effect.

40 The applicant does not identify the impact which it is submitted the applicant’s psychiatric disorder should have had on the applicant’s sentence. The appropriate principles have been defined in many cases. In particular mental illness may result in a sentence where less weight is given to specific or general deterrence: R v Scognamiglio (1991) 56 A Crim R 81; R v Wright (1997) 93 A Crim R 48; R v Benitez (2006) NSWCCA 21. It may be relevant to consideration of matters of retribution or the need for treatment outside the prison system: R v Engert (1995) 84 A Crim R 67. It may also be that because of a mental condition the prison term may prove more onerous for a person suffering from a mental illness.

41 In Engert Gleeson CJ said at [67]:

“... the question of the relationship, if any, between the mental disorder and the commission of the offence, goes to circumstances of the individual case to be taken into account in the application of the relevant principles. The existence of such a causal relationship in a particular case does not automatically produce the result that the offender will receive a lesser sentence, any more than the absence of such a causal connection produces the automatic result that an offender will not receive a lesser sentence in a particular case. For example, the existence of a causal connection between the mental disorder and the offence might reduce the importance of general deterrence, and increase the importance of particular deterrence or of the need to protect the public.”

42 Although a person may be suffering from a mental illness which might otherwise point to mitigation of their sentence consideration of matters relating to the protection of society may have the effect that the sentence should not be reduced. In Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465, Mason CJ, Brennan, Dawson and Toohey JJ said at 476-477:

“... a mental abnormality which makes an offender a danger to society when he is at large but which diminishes his moral culpability for a particular crime is a factor which has two countervailing effects: one which tends towards a longer custodial sentence, the other towards a shorter. These effects may balance out ... “

43 In the present case his Honour found that the offence was premeditated and accepted the psychiatric evidence that it was a reflection of the violent characteristics in the applicant’s nature. Accepting that she has some psychiatric problems the evidence does not suggest that for this reason the need for general deterrence was diminished. His Honour found that having regard to the psychiatric evidence the applicant’s personality is unlikely to change in the future and that if released she will be a danger to members of the community. It was appropriate to weigh this finding in the balance when concluding that a life sentence was appropriate.

44 The applicant complained that his Honour did not give sufficient weight to the fact that she did not have a criminal record. At one point his Honour referred to the applicant as having “no significant criminal record” and later “the absence of previous criminal convictions.” Nothing turns upon this distinction. His Honour sentenced on the basis that the applicant had no prior convictions although he was mindful of her previous violent behaviour. There is no difficulty in this approach to the sentence: see Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629. As I have indicated the findings that the applicant had been violent towards her former partners were open. That they were relevant to the sentencing task cannot be doubted; R v Cramp (2004) NSWCCA 264 at [52].

45 Finally, it was submitted that a life sentence was manifestly excessive. It will be apparent from what I have already said that this submission should be rejected. This was an appalling crime almost beyond contemplation in a civilised society. The applicant determined to kill the deceased in a violent manner inflicting multiple deep wounds and after his death set about mutilating his body and in a macabre manner presented portions of it as a meal for his children. The crime was the product of a violent personality intent upon claiming the life of her de facto in a relationship which was plainly failing. She expressed no remorse or contrition. The psychiatric evidence indicates that her personality is unlikely to change in the future and, if released, she would be likely to inflict serious injury, perhaps death on others. The deceased’s family may be at particular risk.

46 To my mind the sentence was appropriate and no basis for interference by this Court has been identified.

47 Although I would grant leave to appeal I would dismiss the appeal.

ADAMS J: Introduction

48 I have had the advantage of reading the judgment in draft of McClellan CJ at CL. I agree with his Honour that this appeal should be dismissed. I also agree with his Honour’s reasons for this conclusion, subject to the qualifications that might be implicit in the following remarks. I should also state that the findings of fact of the learned sentencing judge, O’Keefe J, were open to him and, indeed, not significantly attacked on the appeal.

49 I wish to mention, however, that I am sceptical about the evidence of psychiatrists (including those whose considerable expertise assisted the Court in this case) concerning the motivations and feelings of persons such as the applicant when engaged in conduct of so bizarre and extreme a character as occurred here. Such patients are, thankfully, very rare. Experience of them must necessarily be limited. Consultations occur after the event and are focussed on forensic rather than therapeutic objects. They are not part of a continuing professional relationship. For various obvious reasons, histories are bound to be, to a greater or lesser extent, unreliable; none come from disinterested or objective sources and concern events very much in the past No doubt psychiatry can give insights about the nature and origins of such conduct but I think that any conclusions about its aetiology must be treated with considerable caution, a fortiori descriptions of what actually motivated the conduct and what was in the mind of the perpetrator at the time of the crucial events.

50 Thus, while, in my respectful view, the evidence justified the conclusion that the applicant derived some pleasure – perhaps satisfaction might be a more appropriate description – from what she did, I have some doubt whether the evidence justified the conclusion that the last minutes of the victim’s life “were a time of utter enjoyment for [the applicant]”. This is a matter of fact and degree and it is inappropriate that I should, on this point, substitute my view of the matter. Moreover, the difference does not in any significant sense reduce the applicant’s culpability. The question is more important when attempting to evaluate the dangerousness of the applicant in the future – on any view, in twenty or thirty years time. This is self- evidently a very difficult task. That is not to say that it ought not to be undertaken; to the contrary, it must be. But, in my respectful opinion, it should be done with a high degree of scepticism about the reliability of any conclusion about the likely position in, say, two or three decades. I return to this theme later in this judgment.

51 I would also respectfully disagree with the following passage in his Honour’s reasons –

“[89] In imposing a sentence in a case such as the present it should also be borne in mind that the violence exhibited by the prisoner to Mr Price was not an uncharacteristic aberration. Rather her history of violence shows that violence, albeit not to the extent manifest in the present case, was part and parcel of her behaviour and a characteristic of her personality.”

52 In my respectful view, the prior acts of violence nowhere nearly approach the gravity or character of the acts that caused and surrounded the murder of Mr Price. Those acts were of a fundamentally different kind, in respect of their physical attributes, the intention with which they were undertaken, and their results. The same is the case for the moral culpability or (to use an old-fashioned term) the wickedness that was involved: the death of Mr Price is enough to demonstrate this, let alone the applicant’s subsequent but inextricably connected treatment of his body. In my opinion, the murder of Mr Price is not on the same moral continuum as the prior violence and its character was, in reality as well as in principle, fundamentally different from the earlier acts. For the same reasons, the prior acts of vindictiveness which did not involve physical threats should be disregarded in considering the culpability involved in the murder, though they and the physical threats are, of course, relevant for other reasons.

53 This is not to say that the prior history is irrelevant. Plainly it is important in understanding, so much as that is possible, the applicant’s character and it is part of the material that goes to explain in some degree what ultimately happened. The absence of that history, however, would not reduce in the slightest degree, to my mind, the heinousness of the applicant’s crime.

The interpretation of s61(1)

54 The imposition of a life sentence is an extreme penalty. This is made clear by the terms of s61(1) of the Crimes (Sentencing Procedure) Act 1999 itself –

“A court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfies that the level of culpability in the commission of the crime is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence.”

It follows from s54 of the Act that a person sentenced to life imprisonment cannot be released on parole and the only residual possibility of release lies in the exercise of the prerogative of mercy. The possible exercise of the prerogative is entirely in the hands of the Executive and must be ignored by the courts. In short, from the Court’s point of view, the effect of a sentence passed under s61(1) is that such a prisoner will remain in gaol until they die.

55 It is obvious that such a punishment can only be justified for an offence that falls into the worst class of case. Furthermore, the circumstances must be such that the only way by which the relevant community interest can be met is by imposing a life sentence. Since s61(1) is part of a legislative scheme including, self-evidently, s54, this last sentence should be extended to read: the circumstances must be such that the only way by which the relevant community interest can be met is by imposing a life sentence without the possibility of being considered for release on parole. To ignore this aspect of the sentence would be to ignore its overwhelmingly most significant attribute.

56 It is important, therefore, to consider the statutory scheme of parole, which has for very many years been an important feature of the sentencing regime in this State. Its significance has been reinforced, if anything, by the introduction of standard non-parole periods in 2002 by the insertion of Division 1A in the Act. It is a carefully crafted scheme that attempts, amongst other things, to reconcile the undoubted advantages of encouraging rehabilitation – which is both in the public interest and the interest of the offender – with the necessity of ensuring the protection of the public from offenders who still present, at the expiration of the non-parole period, a significant danger to the public, which the conditions of parole and the supervision by such instrumentalities as the Probation and Parole Service might be insufficient to deal with.

57 It is obvious that each case must be dealt with individually and that a judgment as to whether release on parole is appropriate should be made by an independent body capable of dispassionate, objective judgment. Corruption and fears of corruption and inappropriate politicisation surrounding governmental involvement in the release of prisoners induced removal of the government’s powers in this respect as part of the substantial “truth in sentencing” reforms of about a decade ago. The Crimes (Administration of Sentencing) Act 1999 provides an elaborate and detailed structure for the administration of the parole system, which depends in its most crucial aspects upon the functions of Parole Authority, constituted by s183. Its members comprise at least four persons who are qualified for judicial appointment (judicial members), appointed by the Government, one who is a police officer, appointed by the Commissioner of Police, at least one who is an officer of the Probation and Parole Service appointed by the Commissioner of Corrective Services, (official members) and at least 10, appointed by the Government, “who reflect as closely as possible the composition of the community at large”, at least one of whom must be a person with “an appreciation or understanding of the interests of victims of crime” (community members).

58 The Act provides as well for a Serious Offenders Review Council, also comprising judicial, official and community members (s195). The Council’s functions include providing reports and advice to the Parole Authority concerning the release on parole of serious offenders (s197). The Parole Board and the Council are able to, and do, avail themselves of independent expert opinion on issues that call for such assistance.

59 (While I am dealing with this theme I wish to place on record that the community owes a great debt to the persons who have been willing to undertake the arduous responsibilities entailed by membership of the Authority and Council, tasks made all the more difficult by irresponsible and unfair public vilification that accompanies unpopular decisions. It is their difficult duty to fulfil the responsibilities entrusted to them without regard to outside pressure and the risk of abuse and uninformed criticism which now seems to be the daily lot of those bound by law and their consciences to perform public duties without fear or favour, affection or ill-will. Unlike many of their critics, they have no interest to be served in the outcome of their deliberations.)

60 The Act imposes the following general duty on the Parole Authority –

“135(1) The Parole Authority must not make a parole order for an offender unless it is satisfied, on the balance of probabilities, that the release of the offender is appropriate in the public interest.

(2) In deciding whether or not the release of an offender is appropriate in the public interest, the Parole Authority must have regard to the following matters:

(a) the need to protect the safety of the community,

(b) the need to maintain public confidence in the administration of justice,

(c) the nature and circumstances of the offence to which the offender’s sentence relates,

(d) any relevant comments made by the sentencing court,(e) the offender’s criminal history,

(f) the likelihood of the offender being able to adapt to normal lawful community life,

(g) the likely effect on any victim of the offender, and on any such victim’s family, of the offender being released on parole,

(h) any report in relation to the granting of parole to the offender that has been prepared by or on behalf of the Probation and Parole Service, as referred to in section 135A,

(i) any other report in relation to the granting of parole to the offender that has been prepared by or on behalf of the Review Council, the Commissioner or any other authority of the State,

(ia) if the Drug Court has notified the Parole Authority that it has declined to make a compulsory drug treatment order in relation to an offender’s sentence on the ground referred to in section 18D (1) (b) (vi) of the Drug Court Act 1998, the circumstances of that decision to decline to make the order,

(j) such guidelines as are in force under section 185A,

(k) such other matters as the Parole Authority considers relevant.

(3) Except in exceptional circumstances, the Parole Authority must not make a parole order for a serious offender unless the Review Council advises that it is appropriate for the offender to be considered for release on parole.”

This comprehensive list of considerations gives a high priority to the issue of public safety. It is also obvious that the Authority has available to it information that, unless the case is very exceptional indeed, is far greater that that which will be available to any Court involved in sentencing an offender. The constitution of the Authority and the Council also enables it to bring to bear experience and expertise outside the usual experience and expertise of a judge. Moreover, it is able to consider the suitability of an offender for parole at a far more appropriate time for making an informed judgment than at the time of sentence. It should also be noted that a serious offender cannot be given parole unless both the Authority and the Council are agreed that it is appropriate, unless the circumstances are exceptional.

61 In my respectful view, the fact that the Authority and the Council is constituted as I have described and has the duty to consider the matters enumerated above is a very significant consideration in the determination whether, in a case where s61(1) falls to be considered, the circumstances are such that the only way by which the relevant community interest can be met is by imposing a sentence that precludes the Authority and the Council from ever considering whether it is appropriate to release the offender on parole. I accept that there are crimes so heinous that imprisonment for life is the only just sentence and thus, for these crimes, no question of parole arises. However, where for example the crime, though extremely grave, is not of that character, so that protection of the community becomes a significant factor, it might well be appropriate to give to the Authority and the Council the opportunity to exercise their functions at a time when the risk to the community can be more sensibly assessed and those responsible for doing so must bring their independent judgment to information that, in the nature of things, cannot have been before the Court. It is this consideration that I had in mind when referring, at the beginning of this judgment, with the fraught character of predictions of dangerousness after decades of imprisonment.

62 I think, with respect, to disregard the functions of parole and the role of the Authority and the Council in considering the requirements of s61(1) is a fundamental error of principle. They comprise an integral and extremely important part of the legislative regime concerning the sentencing of offenders. The very nature of the exercise of the discretion prescribed in s61(1), positing the potential removal of the possibility of parole, demonstrates that this must be so.

The application of s61(1)

63 A strict interpretation of the legislation would permit the imposition of a very lengthy head sentence that would almost certainly expire after the death of the offender together with a non-parole period of a lesser period. This would have the effect of giving a non-parole period that would remain in effect for the balance of the life of the offender after release on parole, if that were ordered. It seems to be generally accepted that such a sentence is inappropriate since it would have the appearance of an attempt to avoid the application of s61(1). With respect to those who hold this view, I think it is wrong. If the interpretation that I propose be correct, this would not be an appropriate characterisation of such a sentence, since it would only be imposed where the Court was not satisfied that a life sentence without the possibility of parole was the only mode by which the community interest specified in the section could be satisfied. In other words, if the specified community interest could be satisfied by the imposition of a minimum term and a very lengthy non-parole period – even one that would in all likelihood expire after the offender’s death – then to do so is not to avoid s61(1) but, on the contrary, to apply it.

The present case

64 I have already expressed my view about the culpability involved in the murder committed by the applicant. Although at first I was minded to think that too much had been made of her subsequent dealings with Mr Price’s body, I have concluded, on reflection, that so extreme was this conduct and so closely linked in time and place was it with the killing that it must be regarded as an integral part of the killing itself. It demonstrates the extraordinary extent of the applicant’s brutality and, perhaps of greater significance, her lack of what we might recognize as humane feelings, which were, I think, completely buried in unreasoning and irrational hatred for her victim.

65 Even so, I am not sure that I would have imposed a life sentence on the applicant. In the end, it is her state of mind, informed by the psychiatric diagnosis, that would have led me to doubt whether her crime was of such heinousness as to justify a sentence of imprisonment that could only end with her death. I have already pointed to the doubtful reliability of predictions of future dangerousness. In my view the appropriate way to resolve those doubts, if the crime were not so heinous as to mandate a life sentence, is to impose a sentence that permitted consideration to be given in due course to whether the applicant could safely be released on parole. In the circumstances here, in my respectful opinion, the evidence as to future dangerousness was not such as to make it appropriate to remove from the Authority and the Council the opportunity to consider that issue after very lengthy period of imprisonment. In this respect, therefore, a life sentence is not the only way by which this community interest can be satisfied.

66 Accordingly, I would uphold the ground of appeal that it was not open to the learned sentencing judge to find that the applicant was so dangerous that she could never be released.

67 The applicant was born on 24 October 1955. She was therefore something over 44 years of age at the date of the murder. She has been in custody since then. She is now almost 51 years of age. Were I considering the matter afresh, I would have imposed an overall sentence of 45 years with a non-parole period of 33 years. This would have had the effect of enabling the applicant to be considered for release on parole when she was 77 years of age. I think that the Authority and the Council would be well qualified to make an appropriate assessment as to whether she could then be released and, if so, on what conditions.

Conclusion

68 The learned sentencing judge made it clear that, in His Honour’s judgment, the culpability of the applicant was so grave as to require a life sentence, quite apart from any considerations of dangerousness. The mere fact that I would not have imposed such a sentence does not permit the conclusion that his Honour was wrong. For the reasons given by McClellan CJ in CL, it cannot be said (despite the qualifications I mentioned at the outset) that there is any error in the judgment of O’Keefe J in this respect. Again, for the reasons given by McClellan CJ at CL, the other grounds of appeal (with the exception mentioned above) should be rejected.

69 Accordingly, I would dismiss the appeal.

70 LATHAM J: I agree with McClellan CJ at CL.