R v Pyne[2005] QSC 143

SUPREME COURT OF QUEENSLAND

[1] The defendant has been convicted on his own plea of guilty of one count of attempted murder.  The Crown seeks the imposition of an indefinite sentence on him, pursuant to s 163 of the Penalties and Sentences Act 1992.  I am also asked to state a nominal sentence of life imprisonment for the offence. 

The indefinite sentence provisions

[2] Section 163 of the Penalties and Sentences Act provides for imposition of an indefinite sentence on an offender convicted of a violent offence, in lieu of a fixed term of imprisonment.  (Attempted murder is a “violent offence” for these purposes.)  The court must indicate the imprisonment it would otherwise have imposed.  An indefinite sentence cannot be imposed unless the court is satisfied that the Mental Health Act 2000 does not apply (it does not in this case) and “that the offender is a serious danger to the community because of – 

(i) the offender’s antecedents, character, age, health or mental condition;  and

(ii)the severity of the violent offence;  and

(iii)any special circumstances.”

Section 163 goes on to set out the matters to which the court must have regard in determining whether the offender is a serious danger to the community:

“(a)whether the nature of the offence is exceptional;  and

(b)the offender’s antecedents, age and character;  and

(c)any medical, psychiatric, prison or other relevant report in relation to the offender;  and

(d)the risk of serious physical harm to members of the community if an indefinite sentence were not imposed;  and

(e)the need to protect members of the community from the risk mentioned in paragraph (d).”

But the section makes it clear that that list is not exhaustive of the matters to which the court may have regard.  The onus of proof is on the prosecution[1] and the finding that an offender is a serious danger to the community can only be made on the Court’s satisfaction

“(a) by acceptable, cogent evidence;  and

  (b) to a high degree of probability; 

that the evidence is of sufficient weight to justify the finding.”[2]

[3] Mr Richards, for the defendant, submitted on the authority of Chester v The Queen[3] that powers such as those contained in s 163 should be exercised only in “very exceptional cases where the exercise of the power is demonstrably necessary to protect society from physical harm”[4].  Mr Martin SC, for the Crown, did not accept that proposition. I think this debate a sterile one.  The factors to which the High Court points in Chester as distinguishing the exceptional case (satisfaction by “cogent evidence” that the “convicted person is, by reason of his antecedents, character, age, health or mental condition, the nature of the offence or any special circumstances, so likely to commit further crimes of violence (including sexual offences) that he constitutes a constant danger to the community”[5]) are, in any event, built into the Part 10 regime under of the Penalties and Sentences Act, so as to limit the exercise of the power in much the way the High Court has described.

The offence

[4] On 26 April 2001, the defendant was being taken back from court in a prison van and was placed in a compartment with two other inmates.  All were handcuffed. One of those inmates, Riley, revealed that he was detained at the Moreton Correctional Centre (commonly used for protective custody).  Another man in the compartment, Hartley, accused him of being a child molester and spat at him.  The defendant joined in, calling Riley a dirty, rotten child molester, and telling him that he had killed one inmate, and killing another would not worry him.  Hartley hit Riley with his handcuffed hands.  The defendant then hit Riley on the face with his hands and pushed his head back so far that it hit part of the van. He grabbed him by the throat with both hands and started to apply pressure. Riley was able to push his hands away. 

[5] The two men resorted to verbal abuse of Riley before starting to kick his legs.  Then the defendant took Riley by the neck once more, and started to choke him again, applying pressure to the hollow in the middle of his neck, while calling him a child molester.  As they neared the Sir David Longlands Correctional Centre, Hartley pulled at the defendant saying “that’s enough, we’re nearly at the jail”.  According to Riley, once this happened, Hartley and the defendant “both stopped”.  On arrival at Sir David Longlands, he was taken from the van to the jail’s surgery, examined and then returned to Moreton.  Later, according to Riley’s statement, he was “placed into hospital because of the anxiety [he had] suffered.”  The Crown did not suggest anything further by way of ill-effect on him.

[6] The correctional officers operating the vehicle could see the assault, at least to the extent of the kicking, and the defendant’s standing over Riley.  They decided to continue to the jail.  Once there, on releasing Riley from the compartment, they saw that he had red marks on his forehead and round his throat, and some marks or bruises on a shoulder.  According to one of the officers, the defendant and Hartley got out of the van laughing. 

[7] The defendant was interviewed.  He said that he had wanted to kill Riley because he was a “kid fucker” - he had heard Hartley calling him that - and he had been sexually abused himself.  He had not succeeded because Hartley had pulled him off. He had put his thumbs on the hollow part of Riley’s throat to stop him breathing; he would have had his hands around his throat for “maybe” thirty seconds.

Antecedents

[8] The defendant was born on 16 April 1978.  He is now 27 years of age; he had just turned 23 at the time of the attempted murder.  What emerges from the material is that he came from a difficult background. His parents seem to have been neglectful and given to drug use and violence.  His father was jailed for sexual abuse of one of his sisters.  In about 1990, Family Services obtained a care and protection order in respect of him. He was placed in a series of foster care arrangements.  In 1992, he was sexually assaulted by his male foster parent.  A report from Dr McGuire which was prepared in connection with the defendant’s capacity to act as a witness in 1992 is quoted in Dr Curtis’ report.  It seems there were seven alleged incidents of sodomy between 12 September 1991 and July 1992 while he was in the care of the foster father, who was subsequently convicted and imprisoned. In April 1993 the defendant was placed at Boys Town.

[9] The defendant’s criminal history begins in 1995, when he was 16, with convictions for wilful damage, receiving, attempted unlawful use of a motor vehicle and unlawful use of a motor vehicle.  He was placed on probation.  Information for later offences comes from QP9s (police fact sheets), and must be approached with some caution:  there can be no assurance that the information contained on those documents reflects precisely what was placed before the court on the defendant’s conviction.  Later in 1995, after he had turned 17, the defendant was convicted of two charges of assaulting police, assault occasioning bodily harm and obstructing police.  Those charges arose out of an argument with his mother.  From the QP9 it seems that he was affected by alcohol.  He had struck his mother about the head and face, kneed her in the groin, held a butter knife to her chest and pushed her into the walls of the house.  (According to the QP9, he said later that he had been angry because she had said something unflattering about his girlfriend.)  He was aggressive when the police arrived, striking each of the two officers in the chest region and struggling when they tried to remove him from the house and put him in the police vehicle.  He was sentenced to 12 months imprisonment suspended after three months and placed on three years probation. 

[10] On 13 February 1996, the defendant was convicted of wilful damage and given a fully suspended sentence of four months imprisonment.  On 2 April 1996 he was convicted of unlawful use, break and enter and wilful damage, but those charges dated back to 1994 and 1995, when he was still a child.  He was ordered to be detained for 15 months under the Juvenile Justice Act 1992. 

[11] On 24 June 1997, the defendant was convicted of a series of assaults in the Chinchilla Magistrates Court:  break, enter and steal, two counts of unlawful assault, obstruct police, assault occasioning bodily harm, aggravated assault on a female and aggravated assault of a male child under the age of 14 years.  Some of the assault charges arose again from a family argument, this time with his de facto wife and his sister, at the latter’s home.  He thought that his de facto wife had exhibited some interest in his sister’s husband.  He abused her and demanded that she go outside with him to talk about the matter.  She refused to go with him.  The defendant’s sister had been holding the de facto wife’s six month old baby;  the defendant took him from her and threw him about a metre into his de facto wife’s lap.  The QP9 alleges that the child’s legs and bottom hit the wooden arm rests of the lounge chair on which the de facto wife was sitting.  (Later, the defendant said in an interview that he had taken the baby and thrown him into his de facto’s lap so that they could leave.)  He slapped his de facto wife on the side of the face, pushed his sister in the chest when she told him to get out and bent her right little finger.  His mother intervened.  The defendant said if he went to jail he would get a knife and kill them all. 

[12] A couple of weeks later, the defendant became involved in an altercation with members of the local fire brigade, abusing them generally and pushing one in the chest and demanding a fight.  When another man intervened he shaped up to him.  When police tried to arrest him, he ran away, but was later found at his mother’s house where he had taken a large quantity of her anticonvulsant pills (for epilepsy) and cut his arm.  Those events gave rise to two charges of assault and one of obstructing police for which he was also dealt with on 24 June.  In respect of all of the offences before the court he was sentenced to terms of imprisonment of six months, four months and two months, all to be served cumulatively. 

[13] In November 1998, the defendant was convicted of assault occasioning bodily harm in March of that year and a breach of the Bail Act 1980, for which, respectively, he was sentenced to three months imprisonment and fined.  He punched another man he was with in the face while a second person in his company threatened the complainant with a broomstick.  The assault seems to have occurred after the defendant had been drinking and to have been the result of his belief that the complainant had informed on him. 

[14] On 25 January 1999, the defendant was convicted of possession of a knife in a public place.  On 20 August 1999, he was convicted of attempted armed robbery, unlawful use of a motor vehicle, deprivation of liberty, robbery with actual violence, common assault and wilful damage, all of which occurred in November 1998.  He was charged with two other persons, one of whom was the complainant in the assault referred to in the preceding paragraph.  The transcript of sentence is before me, although the submissions on sentence are not.  I was informed from the bar table that the victim of the deprivation of liberty was a taxi-driver who was made to drive at knife point from Caboolture to Kingaroy and eventually escaped when they stopped for petrol.  The victim was said by the sentencing judge to be ‘clearly traumatised by being in effect a captive of a number of young men including [the defendant] one of which [the defendant] was armed with a knife with which for a period of hours he was threatened whilst he drove west from Woodford’; it appears the threats included that he would be killed.  The attempted armed robbery was described as an inept attempt at holding up a service station which was aborted when one of the participants backed out.  It was evidently put before the sentencing judge that alcohol played a part in the offence; the defendant has said subsequently that he was also affected by amphetamines. He was sentenced to imprisonment for three years and six months with a recommendation after 14 months.

[15] On 26 January 2000, the defendant, with another prisoner, Rodney George Anderson, committed a murder. They strangled an inmate with cable from his television, apparently because they suspected him of informing on one or both of them.  Anderson commenced the attack. When he seemed to be losing control, the defendant stepped in to help. They hit the inmate on the head, choked him with the cord, and put him on the bed where they finished strangling him.  In an interview the defendant said they had agreed to kill the man.  Although the transcript of interview contains a number of indistinct passages, it seems that he also said that he had told Anderson he could not leave the inmate alive, once he had started, because he would inform on him. 

[16] Anderson seems to have exerted considerable influence over the defendant, and they appear to have regarded themselves as in an uncle-nephew relationship. In later accounts (to Drs Rosevear and Reddan), the defendant explained that he met Anderson, who was his stepmother’s brother, when he was eleven; that they had become very close; and that Anderson had sexually abused him in specified ways   from that time.  Anderson was already serving a sentence of life imprisonment for murder at the time of this murder; it was at his request that the defendant had been placed in the same unit as him. 

[17] The defendant pleaded guilty to the murder on 8 November 2000 and was sentenced to life imprisonment, cumulative on his existing sentence.  The sentencing judge commented on his defiant demeanour in the dock.

[18] In October 2001, the defendant was convicted of making a false statement about a birth, and in April 2003, he was convicted of two charges of using a postal service to menace or harass.  All of those charges, notwithstanding the delay in conviction, involved letters written by him in July 2000, while he was on remand on the murder charge.  The charge of false statement arose from an attempt to have his son registered in his name by sending a letter to the relevant authority purportedly signed by his de facto wife and saying that was her wish.  On 17 July the defendant sent a letter to a psychiatrist who had had previous dealings with him but had declined to become involved in assessment of him in relation to the murder charge. The letter threatened to cut her into pieces and eat her and to mutilate her body.  A second letter, sent on the same day, was to the District Court judge who had sentenced the defendant’s foster father for the sexual assaults upon him, to a term of imprisonment he considered unduly lenient.  According to the QP9, the letter threatened to sexually assault the Judge, to rape and kill his children and to eat his flesh.  It is also said to have contained “satanic references”, but these are not detailed and the letter is no longer available.  When interviewed about the threatening letters, the defendant said that he did not regret them because he was angry. 

[19] It appears from some questioning in the police interview in June 2001 dealing with the attempted murder that the defendant may have written another threatening letter around this time. He admitted to having sent a letter to his sister which included a threat to her boyfriend, to kill him and his parents.  No date for the sending of the letter is given in the interview. The defendant, when asked if he remembered when he wrote it, answered “months and months ago”. 

“Special circumstances”

[20] One of the unusual features of the case is a series of letters the defendant wrote while on remand on the present charge. The first of them, addressed to the Commonwealth Director of Public Prosecutions, bears no date, although it refers to the defendant’s next court date as being 6 February 2004. In it, the defendant demanded an indefinite sentence.  He asserted that he was in no way sorry for the murder or the attempted murder. An indefinite sentence would, he said, be “a joke”. He continued, “All I can say is give it your best, I can take your best shot.  It is 0% of interest to me”.

[21] The second of the letters, dated 2 March 2004, is directed to the State Director of Public Prosecutions.  It asserts that the defendant had “all intentions of murder” in attacking the inmate in the van;  that he did not care for his rights and hoped he suffered for the rest of his days.  Nor did he care for the rights of the public; “human life means nothing to me at all, I’m very cold blooded with no remorse”. Again he demanded an indefinite sentence.

[22] In a third letter, (undated, but with an April 2004 facsimile reference) to an un-revealed addressee, the defendant demanded a life sentence.  He said that if he were let out of prison he would murder family members and would kidnap young girls and rape and murder them, with their fathers and mothers.  He said that he had raped before in 1995 and he gave the name and address of the alleged victim.  (It does not seem that claim could be substantiated).  He signed himself off, “Killer”.

[23] A month later, however, the defendant seems to have had a change of heart.  He wrote to the Director of Public Prosecutions and the Attorney-General saying that he was sorry and did not want an indefinite sentence.  He said that he had twice made “fake tough guy confessions” to murder.  In both of those letters he retracted his confession to attempted murder, saying that he did not really mean to kill Riley. (That of course is undercut by his plea of guilty to attempted murder.) The other inmate (Hartley) had started it, and he “did my part to be a tough guy so I wouldn’t get picked on back in the blocks.”

Medical and psychological reports and records

[24] The Crown put before me psychologists’ notes from the Arthur Gorrie Correctional Centre, all of which concern the period during which the defendant was on remand for the deprivation of liberty and attempted robbery offences.  In November 1998, he gave an account to a Mr Hardie of his dysfunctional family background and a sense of hatred for his mother which he extended to women in general, particularly those with any power over him, including female correctional officers.  He said that he hoped in the future to settle down and have a family, but on the other hand he might go and kill some people and kill himself. 

[25] On 18 May 1999 the defendant reported to a Mr Konstantinou anxiety attacks, feelings of hyperactivity and having violent thoughts against a Jewish person in his unit with whom he had arguments.  He was, however, able to control those thoughts.  He had other thoughts of hurting women, bashing them or cutting their throats.  He enjoyed watching people being murdered on television.  Mr Konstantinou set out this passage:

“Some of his ‘bad thoughts’ follow:

‘Jews are scum, and they should have their heads kicked in and be burnt to death.  All women are lower than the dirt I walk on.  They are all sluts, the way they talk and carry on (but he doesn’t like hurting their feelings, unless they hurt him first).  I don’t trust women.  I like watching people being murdered.  I like pain, and like dishing it out.  Life is fucked.  Boring.  It is OK to bash people who irritate him;  people should listen to me.  I hate arrogant cunts.’”

[26] On 21 May 1999 the defendant reported having “feelings of biting and eating people” and nightmares of killing people, which he said he enjoyed.  On 24 May he gave Mr Konstantinou a letter in which he claimed to have eaten a piece of flesh cut off his knee.  He did not want to be released unless he got help, but on the other hand he did not want to stay in jail forever because he wanted to be with his family and partner.  On 31 May 1999 he raised the possibility of a sex change. In June 1999, he presented a jail psychologist with a letter which was said to be “gory”, setting out actions he would take if released without psychiatric help. He was given a psychiatric appointment for the following day, but there is no information about what came of it.

[27] The earliest of the formal reports is from Ms Wilson-Evered, a psychologist.  It is dated 19 July 1999, and seems to have been prepared in connection with an application for compensation in respect of the sexual abuse the defendant had suffered.  However, Ms Wilson-Evered had seen the defendant on a previous occasion in 1992, as part of an assessment of his competence as a witness.  Her report deals with his unfortunate early childhood, the damage it had done to his personality, and his limited intellectual capacity.  She notes a prediction by Dr McGuire, the psychiatrist who examined him in 1992, that he “would respond to pressure with the use of bravado”, a view with which she concurred.  She described him as exhibiting “poor impulse control as part of a composite of extremely dysfunctional attitudes and behaviours especially with respect to consideration of others.” 

[28] In connection with the murder charge, Dr Estensen, a psychiatrist, examined the defendant on 8 July 2000 to advise on questions of soundness of mind, diminished responsibility and fitness for trial.  The defendant told him that he had been angry in the weeks prior to the murder because his son’s mother had refused his request to have his name on the child’s birth certificate.  He reported to Dr Estensen that he had been reading a book on serial killers and found the subject sexually arousing.  He had also tried practising black magic, had drawn a pentagram on the floor of his cell and had “called up” the spirit of the murdered man.  He, the defendant, thought that these interests and responses were a reflection of illness; he was disappointed that psychiatrists and psychologists had never considered him sick.  Later in his report Dr Estensen describes the defendant’s thought content revolving around his belief that his thoughts, responses and killing of the other inmate meant he had to be ill.

[29] Dr Estensen took the defendant’s history of a very chaotic and abusive childhood with physical, emotional and sexual abuse.  He had a documented IQ of 80.  (This, it seems likely, came from Ms Wilson-Evered’s 1992 report.)  There were no psychotic symptoms. Dr Estensen concluded that rather than suffering from any psychiatric disorder, the defendant was exhibiting a mixed personality disorder with prominent features of an anti-social personality disorder and a borderline personality disorder.  His onset of anti-social behaviours was early, an indicator of severity and poor prognosis.  He required a “tremendous amount of psychological input” and change, if any, would be slow.

[30] In November 2000, Dr Ian Curtis, psychiatrist, reported on the defendant in connection with the prospective criminal compensation claim.  He took a history of childhood neglect and abuse from the defendant.  He concluded that he was of low borderline intelligence and suffered from borderline personality disorder at a severe level. 

[31] Among the notes from Corrective Services are reports from a nurse, a psychologist and a counsellor dated 5 April 2001.  They indicate that the defendant’s mental status and behaviour at that time were relatively good; the Crown relied on them as showing his unpredictability, since the attempted murder was committed only three weeks later. Those reports reveal that the defendant was being counselled by Dr Wendell Rosevear, a general practitioner, and was also seeing a psychiatrist. There is no information from the latter, but there is a report from Dr Rosevear, dated 23 July 2001.    Dr Rosevear made these observations of the defendant:

“He often feels people don’t take him seriously and he makes threats to try and achieve a sense of safety.  He lost his job in the prison industry section after making threats to the officer for telling him what to do. When teased by other inmates he will often act with indifference or bravado to deflect the threat.  He often acts “macho” to deflect the fact that he suffers gender dysphoria and would actually like to transition to be a woman.”

He noted that in a safe context (presumably when talking to him) the defendant was able to show remorse but in a survival context (presumably the prison) he showed indifference. Amongst the documents tendered by the Crown is one with a notation “letter to Dr Wendell Rosevear” dated 7 December 2001.  In it, the defendant expresses some confusion as to his sexual identity.

[32] In July 2002, Dr Jill Reddan provided a psychiatric report on the defendant to the Mental Health Court, dealing with his soundness of mind and fitness for trial in connection with the attempted murder charge. The defendant told Dr Reddan that he had intermittent thoughts of sex change, but it was not a major preoccupation.  He expressed no concern about the charges against him nor any guilt or remorse about his victims.  Dr Reddan asked him to perform some reading tests which suggested to her that his intellect was in the low/average to average range.  She considered his history and presentation pointed to a personality disorder with predominantly anti-social and some borderline traits.  This probably arose from a combination of genetic influences, temperament and early childhood experiences, later influenced by his own choices.  She noted that his behaviour had of more recent times become much more settled but this was likely to be due to the correctional environment;  his interpersonal attitudes had not altered.

[33] Another report prepared in connection with the Mental Health Court proceedings, from Dr Brian Hazell, a psychologist, sets out a series of supposed delusions elicited from the defendant and suggests that he suffers from schizophrenia – paranoid type.  The report is so inconsistent with every other piece of fact or opinion about the defendant that I attribute no weight to it all, except as a possible example of manipulative account-giving by the defendant.

[34] The next of the psychiatric reports, from Professor Harvey Whiteford, dated 10 December 2003, was also prepared in connection with the Mental Health Court reference. The defendant told Dr Whiteford that he adhered to the contents of a letter sent to the Director of Public Prosecutions before his committal proceedings in August 2003, a point to which  Mr Martin drew my attention. Since it seems unlikely, given its timing, that the letter is one of those before me, and I have no way of knowing what it said, I can make nothing of that. In any event it is clear that whatever the defendant was talking to Dr Whiteford about, it preceded his May 2004 letters of retraction.

[35] Dr Whiteford’s diagnosis concurred with that of Dr Reddan.  In his view, the defendant met the DSM IV criteria for anti-social personality disorder and also exhibited traits of borderline personality.  He concluded his report with these observations

“Mr Pyne reports having spent the large majority of the last nine years in custody.  As a result he has developed a degree of institutionalisation, which would result in him having particular difficulties managing in the community.  This institutionalisation exacerbates the difficulties arising from his personality disorder.

The treatment of personality disorder has low success rate, no pharmacological or psychotherapeutic intervention will be likely to produce resolution of the disorder.  The manifestations do ameliorate with the passage of time.”

[36] In connection with the application for an indefinite sentence, the Crown has obtained two reports from Dr Frank Varghese, psychiatrist.  Dr Varghese did not have the opportunity of examining the defendant, although his first report, dated 3 September 2004, notes the latter’s preparedness to consent to psychiatric assessment.  Before providing that report, Dr Varghese was furnished with the police brief, the letters from the defendant to the State and Commonwealth Directors of Public Prosecution and the Attorney-General, and Professor Whiteford’s report.  He concluded from that information that there was a “significant disorder of personality of an anti-social type with additional borderline traits”;  it was also possible that there were “histrionic traits”.  Dr Varghese did not think an interview would be likely to lead him to any different diagnostic opinion.  There was not enough data, Dr Varghese said in that report, for him to recommend an indefinite sentence; the major indication for such a sentence was the apparent lack of remorse for the murder and attempted murder. 

[37] Dr Varghese agreed with Professor Whiteford in respect of prognosis but went on to say

“having stated this it also needs to be noted that even with anti-social personality there can be amelioration of the behaviour and so called ‘maturity’ with advancing years.  Thus it is not entirely out of the question that in his mid 40’s and beyond there will be amelioration of behaviour with a capacity to learn from error.”

That view is consistent with the DSM IV (TR) description of the course of anti-social personality disorder:  that it

“may become less evident or remit as the individual grows older, particularly by the fourth decade of life. Although this remission tends to be particularly evident with respect to engaging in criminal behaviour, there is likely to be a decrease in the full spectrum of anti-social behaviours and substance use.”

[38] Dr Varghese recommended that on any parole application the diagnosis, the defendant’s criminal history and an evaluation of his prison behaviour be provided.  It would be particularly important to establish whether there had been any acts of violence or other delinquent behaviour in prison and also whether the defendant had used any rehabilitative measures available.  He also expressed interest in the nature of the assault convictions against the defendant and, in particular, whether the defendant had even been charged with or suspected of any sexual assault.

[39] In preparing his second report, of 19 May 2005, Dr Varghese had available all the material now before the court.  The history of sexual abuse in childhood might, Dr Varghese said, explain the defendant’s significant personality issues;  but there was also reason to think that they went beyond borderline traits and anti-social traits.  There might be an element of gender dysphoria which, of itself, had no connection with dangerousness.  But he thought it of some importance to know whether the “sexual pathology is in some way mixed up with serious sexual perversion involving sexual arousal through violence or murder”.  In connection with this, he noted the reference in Dr Estensen’s report of the defendant’s claiming sexual arousal when reading about serial killers, and the threat to rape and murder in one of the defendant’s letters.  The reports to Mr Konstantinou of enjoying pain and nightmares of killing people and the allusions to biting and eating flesh were all of some significance. 

[40] Dr Varghese again did not express any firm opinion about risk or the need for an indefinite sentence, but he did set out these conclusions:

“In the absence of an interview, and even this may not be useful unless Mr Pyne is willing to talk about his inner fantasy world, it is difficult to know what to make of the material other than to say that it is very disturbing.

The material may indicate that in addition to the severe personality disorder and associated with it there is polymorphous sexual perversion involving sado-masochism, rape fantasies and fantasies of murder and sexual arousal with respect to fantasies of murder.  Thus his letters wherein he threatens murder and rape if he were not given an indefinite sentence may be an indication that he feels overwhelmed by his murderous and sexual fantasies and is genuinely seeking to be incarcerated so as to be prevented from carrying out the acts he fantasizes about. 

There is an alternate explanation which could be taken into account.  That is that Mr Pyne is essentially an inadequate personality without a coherent sense of identity (a feature of borderline personality disorder) and he seeks to portray himself as evil and dangerous for grandiose purposes so as to enhance his status in the prison population while also giving himself a perverse sense of identity.  I note that there is apparently a history of him to confessing to having raped somebody which was untrue.”

Dr Varghese went on to say that evaluation over a period of time was warranted, provided the defendant cooperated, and that it would be useful to have his intellectual function tested.  (He seems to have overlooked Ms Wilson-Evered’s IQ assessment.) 

Conclusions

[41] The offence of attempted murder is, obviously enough, one of the more serious in the criminal calendar. But the proportions of this offence were, putting aside the defendant’s antecedents, at the lower end of the spectrum of attempted murder.  The defendant having pleaded guilty, one proceeds on the basis that there was a real intention to kill. Notwithstanding, there must, on the facts, have been an element of desistence.  It is very difficult to believe that if the defendant had any lasting murderous intent, he would have been deterred by Hartley pulling at him or saying that the prison was near.  The absence of physical consequence to Riley - he was not, for example, rendered unconscious - also suggests that any intent to kill was relatively transient and limited in its effect.  It is also of some significance that while entirely unjustified, the attack was not entirely causeless: the defendant saw the victim as a child molester, and his animosity, one can accept, was spurred by his own history.

[42] The offence must be taken very seriously, given its context: it occurred in the custodial setting and was committed by a defendant with a previous conviction for murder. But it does not seem to me one which warrants life imprisonment; and it is not exceptional, nor, of itself, is it of such severity as to indicate that the defendant is a serious danger to the community so as to warrant an indefinite sentence.  It is necessary therefore to look to the wider context of the defendant’s antecedents, the psychiatric and psychological evidence and the letter writing he has engaged in to see whether those factors, taken in combination with the offence, warrant formation of a different view.

[43] This is not a case in which any expert has expressed a clear view as to the level of risk posed by the defendant to the community, but I have found the psychological and psychiatric evidence of considerable assistance.  There is a consistent view, which I accept, that the defendant suffers from a personality disorder with antisocial and borderline personality traits. Dr Varghese’s analysis is a helpful one:  it seems to me a good deal does turn on whether one assesses the defendant’s statements and conduct as indicative of “polymorphous sexual perversion” or, instead, as the product of an inadequate personality seeking “to portray himself as evil and dangerous for grandiose purposes”, in order to give himself status and a sense of identity.

[44] A great deal turns on what significance one attaches to the defendant’s assertions and stated intents in his correspondence and in his claims to various health professionals.  Probably the most concerning of the material is that recording the defendant’s expression to Mr Konstantinou of ideas of hurting and killing people, and the account of the letter in which he claimed to have cut and eaten some of his own flesh.  It is difficult to assess how much of that might be histrionic, and how much is manipulative; there is a clear (and apparently successful) bid for psychiatric attention. But the desire for psychiatric help does itself suggest concern on the part of the defendant himself about his mental processes.

[45] I think it of some significance that the most florid of the claims – about finding serial killers sexually arousing and practicing black magic – emerged in July 2000 when the defendant was being assessed by Dr Estensen to establish whether he was of unsound mind or diminished responsibility at the time the murder was committed.  Those claims seem to have been advanced by the defendant specifically as an argument for his illness.  The letters written to the judge and the psychiatrist were sent a week after the defendant saw Dr Estensen.  It might be rather too speculative to see them as part of an attempt to portray himself as mad, but they are certainly of a piece with his presentation to Dr Estensen. The more bizarre features – Satanism, the threats to eat human flesh – seem to have subsided since Dr Estensen’s firm conclusion that the defendant was not suffering from any abnormality or unsoundness of mind for Mental Health Act purposes.

[46] The letters to the Directors of Public Prosecutions and the Attorney-General which demand an indefinite or life sentence are, I think, redolent of bravado and fit more obviously into the second of Dr Varghese’s identified possibilities.  The letters of retraction are coherent and relatively convincing when they speak of the defendant’s desire to appear “a tough guy so I wouldn’t get picked on back in the blocks”.

[47] There is something of a disjunction between the written and spoken material, which gives rise to Dr Varghese’s concern of a “sexual perversion involving sado-masochism, rape fantasies and fantasies of murder and sexual arousal with respect to fantasies of murder”, and the defendant’s actual criminal history. I do not think much can be made of the offences involving family members. They do not indicate anything but aggressive and objectionable behaviour by a teenager, fuelled by alcohol and drug use, in a dysfunctional family setting. 

[48] But the defendant’s offences, it is trite to say, include ones of serious violence – the murder, the attempted murder and the deprivation of liberty involving the taxi driver.  None however is particularly suggestive of sexual gratification and although the offence involving the taxi driver was protracted there is nothing to suggest that there was any element of torture.  Nor is there anything in the defendant’s record which would suggest sexual violence. 

[49] The defendant’s offences are committed in company in a way which is suggestive of a desire to impress others:  Anderson, in the case of the murder, with a good deal of associated bragging to other prisoners.  The attempted murder suggests a bid not to be outdone by Hartley, followed up by the defendant’s boasting in the interview.  Nothing is known of the dynamic between the participants in deprivation of liberty and armed robbery offences; but it is consistent with the other offending that they were committed in the company of peers.

[50] The criminal history does not, on the whole, contain anything to confirm the suspicion of sado-masochism or other sexual perversion which was of concern to Dr Varghese. The defendant’s claims to such fantasies or intentions are not, in my view, particularly compelling as evidence. My clear impression is that there are strong elements of display and bravado in both his offending and his rhetoric. There are aspects of Dr Rosevear’s and Ms Wilson-Evered’s observations of him which would support that view. While neither reported from a psychiatric perspective, their views are useful, particularly because each of them had contact with the defendant extending beyond a single assessment. 

[51] My conclusion is that the defendant is more likely to fall into the second of the categories identified by Dr Varghese; or at any rate, the Crown has not satisfied me that he belongs to the first. That does not mean that he is not a dangerous individual.  On any view he is without empathy or remorse. The desire to maintain his image as a frightening person may of itself lead to further offending. But in assessment of the immediate risk that he thus poses, it is of some significance that there is no suggestion that he has committed any further offence, trivial or serious, in the four years since the attempted murder in 2001. If impulsivity was a feature of his behaviour in the past, as Mr Martin has submitted, its effect, one can reasonably conclude, has diminished somewhat.

[52] In considering the defendant’s future dangerousness to the community if not sentenced to an indefinite sentence, it is clearly of importance to note that on any outcome he will remain in prison until at least September 2017.  He will then be 39. I have in mind a sentence which will require him to spend something over a year longer in prison before eligibility for parole. There is some reason to think that the defendant’s propensity to offend will have diminished as he reaches his forties. One would expect, too, that his need to maintain an image of defiance and dangerousness will lessen over time. But as Dr Varghese has said, conduct in prison will be an important consideration in any application for parole. In light of the length of time which the defendant must spend in prison before eligibility for parole and the fact that he still will not be released at that date if he poses an unacceptable risk in the eyes of the parole board, I do not think that the risk of serious physical harm to members of the community is such as to warrant the conclusion that he is a serious danger.

[53] For the reasons set out above, I am not satisfied that the defendant is a serious danger to the community and I decline to impose an indefinite sentence. As to the sentence which should be imposed, I have said that I do not think that the circumstances of the present offence warrant of themselves a sentence of life imprisonment. There is by way of mitigation the defendant’s youth, his plea of guilty and the fact that but for his admission of intent it is most improbable that the charge could have been sustained.  But for the fact that he is serving a sentence of life imprisonment, I should have thought that offending of these proportions committed by a prisoner with a history of other violent offences would have warranted a sentence of nine years imprisonment with a serious violent offence declaration.  This case carries the difficulty, however, that such a sentence would impose no further effective penalty on the defendant. 

[54] Taking into account the need to impose some actual penalty but also recognising the factors in mitigation and the desirability of avoiding an entirely crushing sentence, I think the appropriate outcome is one which requires the defendant to serve a further 16 months beyond his existing parole date before becoming eligible.  I have in mind to do that by imposing a sentence of 15 years imprisonment with a recommendation, pursuant to s 157(2) of the Penalties and Sentences Act, that he be eligible for parole only after serving 13 and a half years. A recommendation in that form was considered appropriate in a rather similar set of circumstances in R v Collins[6]; but I will discuss the final form of the sentence with counsel. 

[55] I will direct that a copy of Exhibit 2 and of these reasons be provided to Corrective Services for retention on the defendant’s file and consideration on any application for parole.