Baker v R [2004] HCA 45; - HCA 2004 case summary — Zoe

[19]

"(1) In this section: > > existing life sentence means a sentence of imprisonment for life imposed before or after the commencement of this section, but does not include a sentence for the term of a person's natural life under section 19A of the Crimes Act 1900 or section 33A of the Drug Misuse and Trafficking Act 1985 . > > non-release recommendation, in relation to a person serving an existing life sentence, means a recommendation or observation, or an expression of opinion, by the original sentencing court that (or to the effect that) the person should never be released from imprisonment. > > (2) A person serving an existing life sentence may apply to the Supreme Court for the determination of a minimum term and an additional term for the sentence. > > (3) A person is not eligible to make such an application unless the person has served: > > (a) at least 8 years of the sentence concerned, except where paragraph (b) applies, or > > (b) at least 20 years of the sentence concerned, if the person was the subject of a non-release recommendation. > > (3A) A person who is the subject of a non-release recommendation is not eligible for the determination of a minimum term and an additional term under this section, unless the Supreme Court, when considering the person's application under this section, is satisfied that special reasons exist that justify making the determination. > > (4) The Supreme Court may, on application duly made for the determination of a minimum term and an additional term for a sentence: > > (a) set both: > > (i) a minimum term of imprisonment that the person must serve for the offence for which the sentence was originally imposed, and > > (ii) an additional term during which the person may be released on parole (being either an additional term for a specified period or for the remainder of the person's natural life), or > > (b) decline to determine a minimum term and an additional term. > > (4A) In considering such an application, the Supreme Court is to have regard to all the circumstances surrounding the offence for which the life sentence was imposed, and all offences, wherever committed, of which the person has been convicted at any time (so far as this information is reasonably available to the Supreme Court). > > (5) A minimum term set under this section is to commence on the date on which the original sentence commenced or, if the person was remanded in custody for the offence, the date on which the first such remand commenced. > > (6) If the Supreme Court sets a minimum term and an additional term under this section, the sentence comprising those terms replaces the original sentence of imprisonment for life. > > (7) A minimum term and an additional term set under this section are to be taken to have been set under this Part but are not required to comply with the other provisions of this Part. > > (8) If the Supreme Court declines to determine a minimum term and an additional term, the Court may (when making that decision) direct that the person who made the application: > > (a) never re-apply to the Court under this section, or > > (b) not re-apply to the Court under this section for a specified period. > > (8A) If the Court gives a direction under subsection (8) that a person may never re-apply to the Court under this section, the person is to serve the existing life sentence for the term of the person's natural life. > > (8B) If the Court does not give a direction under subsection (8), the person may not re-apply within the period of 3 years from the date of the Court's decision to decline to determine a minimum term and an additional term. > > (8C) A direction under subsection (8) that a person may never re-apply to the Court under this section or not re-apply for a period exceeding 3 years may be given only if: > > (a) the person was sentenced for the crime of murder, and > > (b) it is a most serious case of murder and it is in the public interest that the determination be made. > > (9) The Supreme Court, in exercising its functions under this section, is to have regard to: > > (a) the knowledge of the original sentencing court that a person sentenced to imprisonment for life was eligible to be released on licence under section 463 of the Crimes Act 1900 and of the practice relating to the issue of such licences, and > > (b) any report on the person made by the Review Council and any other relevant reports prepared after sentence (including, for example, reports on the person's rehabilitation), being in either case reports made available to the Supreme Court, and > > (c) the need to preserve the safety of the community, and > > (d) the age of the person (at the time the person committed the offence and also at the time the Supreme Court deals with the application), > > and may have regard to any other relevant matter. > > (10) The regulations may make provision for or with respect to reports referred to in subsection (9), including provisions relating to the matters to be dealt with in reports and the making of reports available to the Supreme Court. > > (10A) The Supreme Court, in exercising its functions under this section: > > (a) must have regard to and give substantial weight to any relevant recommendations, observations and comments made by the original sentencing court when imposing the sentence concerned, and > > (b) must give consideration to adopting or giving effect to their substance and the intention of the original sentencing court when making them, and > > (c) must, to the extent that it declines to adopt or give effect to those matters, state its reasons for doing so. > > (11) The Supreme Court may make a determination for a minimum term and an additional term for a sentence even though the Court was not the sentencing court, or the Court is not constituted in the same way as it was when the applicant was sentenced. > > (12) An appeal lies to the Court of Criminal Appeal in relation to: > > (a) the determination of a minimum term and an additional term under this section, or > > (b) a decision to decline to make such a determination, or > > (c) a direction that a person may never re-apply for such a determination or not re-apply for a period exceeding 3 years. > > The Criminal Appeal Act 1912 applies to such an appeal in the same way as it applies to an appeal against a sentence. > > (13) The reference in subsection (4A) to an offence of which a person has been convicted: > > (a) includes: > > (i) a finding that an offence has been proved without proceeding to a conviction against the person, or > > (ii) any offence taken into account when sentence was passed against the person, but > > (b) does not include: > > (i) an offence that has been quashed or set aside within the meaning of Part 4 of the Criminal Records Act 1991 , or > > (ii) an offence of a class or description prescribed by the regulations for the purposes of this paragraph."

[43]

The appellant submitted that the comments of Taylor J when sentencing the appellant were not, however, properly characterizable as a judicial pronouncement or order[235]. Not all judges sitting in the criminal jurisdiction of New South Wales made statements or recommendations of the kind made by Taylor J in this case in 1974. The appellant contended that such statements as were made were not made after giving an offender an opportunity to make a submission that they should not be made. They were recommendations that should not have been made in any circumstances. At a time when only some, as opposed to all judges customarily expressed views as to the full service of a term of life imprisonment, those who did were trespassing upon the territory of the Executive whose role it was to decide whether to release a prisoner before his term was served: but worse, judges so recommending were creating a situation of inequality before the law, by exposing those whose life sentences were the subject of a recommendation to a greater likelihood of continued detention than those whose crimes may have been as grave, or worse, but whose sentences were imposed in the absence of such a statement. Whether, however, such recommendations were made or not, the appellant submits, most prisoners serving sentences of life imprisonment did have an expectation, or some hope at least, of earlier release. I did not take it to be disputed that the last of these propositions was accurate. Nor, however, did either party contend that there was other than a long history of the inclusion in the remarks of many, but not of course all, judges of recommendations with respect to the service of the sentences imposed. As to that I would make this observation. If a person knows or is deemed to know the penalty for his crime, submissions that he or counsel on his behalf may make, may reasonably be expected to be directed towards all aspects of it, including the possibility of commentary by a trial judge. With respect to such callous crimes as these it is almost beyond argument that the appellant's counsel at his trial would have foreseen the possibility that a judge might well make a recommendation about the appellant's actual period of detention in prison.

[46]

"The arbitrariness or non-logical quality of the requirement imposed by subsec 13A(3A), [of] special reasons ... appear[s] from the impossibility of sensibly demonstrating any reason for a re-determination, outside those explicitly or inherently called up in every case, ordinarily, by the other provisions of sec 13A and the nature of a re-determination. It detracts from the judicial nature of the exercise that the intellectual weapons of deduction and application in the process of statutory interpretation and the fitting of a particular set of facts to the construed statute are used on a wild goose chase. The appearance of judicial process dresses up what effectively emerges as a legislated impossibility by which the appellant must fail by default of showing the elusive special reason. The vice of the legislation is its involvement of judges who may exercise the judicial power of the Commonwealth in such a mockery. For these reasons, the Court of Criminal Appeal erred by rejecting the arguments noted at [2002] NSWCCA 184; (2002) 130 A Crim R 417 at 431 [75], [78]. Whether the legislature could simply have disqualified certain persons from making re-determination applications is another question altogether, and purely hypothetical. > > ... > > Underlying the whole of the arbitrariness argument is that subsec 13A(3A) requires special reasons, which ought as a matter of legal process emerge from the nature of some cases by comparison with each other, for cases (as it happens just nine in number) defined simply and solely by their history including a non-release recommendation. That discrimen is illogical because it is manifestly not the case that only the worst cases attracted such judicial comments and it was not the case that all the worst cases attracted such comments. Many judges confined themselves - properly, as it happens - to descriptions and findings of the offence and the offender. In so doing, they often used words of the utmost condemnation, such as to eg [sic] render an appeal against severity extremely difficult on orthodox grounds. But because such judges did not or perhaps would never make non-release recommendations, offenders sentenced by them do not have to show special reasons, let alone wait for twenty (now thirty) years, in a re-determination application. Consideration of the cases ... demonstrates the arbitrariness of the discrimen chosen for para 13A(3)(b) and subsec 13A(3A). Support for the argument is found in the comment by Lord Diplock delivering the advice of the Privy Council in Ong Ah Chuan v Public Prosecutor[236], in relation to arbitrariness in statutory sentencing discrimination imposed on a court against the background of a constitutional guarantee of equality before the law. For these reasons, it was erroneous [for] the Court of Criminal Appeal to regard the arbitrary nature of the impugned provisions as not relevant to their validity[237]. > > The parliamentary debate, as well as the nature of existing life sentences in a system where prisoners could not be forgotten, shows that this legislation was aimed at a known vituperated class, small in number. ... [T]he combination of that legislative history and background and the dubious nature of the special reasons requirement runs [the relevant] provisions foul of the principle illustrated in Liyanage v The Queen[238], discussed in Nicholas v The Queen[239]. It may be that some of their Honours saw significance in the fact that the statute in question in Nicholas, although plainly enacted in the knowledge of known cases, was not in terms speaking of a limited class[240]. In this case, by contrast, there could never have been any addition to the class of prisoners serving existing life sentences against whom there had been a non-release recommendation made when they were originally sentenced. Worse, from the point of view of validity of the law, is the evident parliamentary perception of the closed small class that they represented the remainder of a larger group all members of which as a matter of policy should have suffered the same restrictions as subsec 13(3A) was to impose."

Parties

Applicant/Plaintiff:

# Baker

Respondent/Defendant:

R \[2004\] HCA 45;

Legislation Cited (54)

Legislation Further Amendment Act 1997

Protection Act 1994

Law Amendment Act 1883

Appeal Act 1912

(Administration of Sentences) Act 1999

Legislation Amendment (Sentencing) Act 1999

Misuse and Trafficking Act 1985

Records Act 1991

Sentencing Legislation Further Amendment Act 1997

(Sentences) Act 1997

(Serious Offenders Review Board) Amendment Act 1989

(Life Sentences) Amendment Act 1989

(Sentencing Procedure) Act 1999

Legislation Amendment (Existing Life Sentences) Act 2001

Proceeds Confiscation Act 2002

(Amendment) Act 1955

(Homicide) Amendment Act 1982

Acts (Community Welfare) Repeal and Amendment Act 1987

Legislation Further Amendment Act 1997

Protection Act 1994

Law Amendment Act 1883

Appeal Act 1912

(Administration of Sentences) Act 1999

Legislation Amendment (Sentencing) Act 1999

Misuse and Trafficking Act 1985

Records Act 1991

Sentencing Legislation Further Amendment Act 1997

(Sentences) Act 1997

(Serious Offenders Review Board) Amendment Act 1989

(Life Sentences) Amendment Act 1989

(Sentencing Procedure) Act 1999

Legislation Amendment (Existing Life Sentences) Act 2001

Proceeds Confiscation Act 2002

(Amendment) Act 1955

(Homicide) Amendment Act 1982

Acts (Community Welfare) Repeal and Amendment Act 1987

Legislation Further Amendment Act 1997

Law Amendment Act 1883

Sentencing Legislation Further Amendment Act 1997

(Sentences) Act 1997

(Life Sentences) Amendment Act 1989

Proceeds Confiscation Act 2002

(Amendment) Act 1955

Protection Act 1994

Appeal Act 1912

(Administration of Sentences) Act 1999

Legislation Amendment (Sentencing) Act 1999

Misuse and Trafficking Act 1985

Records Act 1991

(Serious Offenders Review Board) Amendment Act 1989

(Sentencing Procedure) Act 1999

Legislation Amendment (Existing Life Sentences) Act 2001

(Homicide) Amendment Act 1982

Acts (Community Welfare) Repeal and Amendment Act 1987

Cases Cited (71)

Baker v R [2004] HCA 45; (2004) 223 CLR 513; (2004) 210 ALR 1; (2004) 78 ALJR 1483 (1 October 2004)

(2004) 223 CLR 513

(2004) 210 ALR 1

(2004) 78 ALJR 1483

(1996) 189 CLR 51

(1998) 193 CLR 173

(1990) 19 NSWLR 112

Baker v R [2004] HCA 45;

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (275 paragraphs)

Parties

Legislation Cited (54)

Cases Cited (71)

Baker v R [2004] HCA 45; (2004) 223 CLR 513; (2004) 210 ALR 1; (2004) 78 ALJR 1483 (1 October 2004)