Crump v New South Wales

Crump v New South Wales - [2012] HCA 20 - HCA 2012 case summary — Zoe

[19]

The statutory scheme for release on parole which was in place at the time that the plaintiff was first sentenced in 1974 was created by the Parole of Prisoners Act 1966 (NSW)[11]. That Act was repealed and replaced by the Probation and Parole Act 1983 (NSW)[12].
The central purpose of the 1989 Act, as described in the Second Reading Speech in May 1989, was to "restore truth in sentencing."[13] At the time, persons sentenced to life imprisonment were said to be serving, on average, 11 to 12 years imprisonment[14]. In November 1989 a package of complementary amending Acts was passed[15]. Their stated purpose, like that of the 1989 Act, was to "fulfill the Government's commitment to ensuring truth in sentencing."[16] One component of the package, the Crimes (Life Sentences) Amendment Act 1989 (NSW), introduced s 19A into the Crimes Act 1900 (NSW) ("the Crimes Act"). That section provided that a person who committed the crime of murder was liable to penal servitude for life and that "[a] person sentenced to penal servitude for life for the crime of murder is to serve that sentence for the term of the person's natural life."[17] The section was expressed to apply to sentences passed after the commencement of the section for murders committed before or after its commencement[18]. It did not apply to the sentence imposed upon the plaintiff. Nor did it affect the prerogative of mercy[19].
The Sentencing (Life Sentences) Amendment Act 1989 (NSW) was another part of the package. It inserted s 13A into the 1989 Act. That was the section applied by McInerney J in resentencing the plaintiff in 1997. Its stated purpose was to enable prisoners who had been sentenced to life imprisonment before 1989 to be considered for possible release on parole[20]. The new section provided that a person serving an existing life sentence could apply, after having served at least eight years of the sentence, to the Supreme Court for the determination of a minimum term and an additional term for the sentence[21]. The Supreme Court was empowered to set both a minimum term of imprisonment that the person must serve for the offence for which the life sentence was originally imposed and an additional term during which the person might be released on parole[22]. The Court could also decline to do so[23]. In setting a minimum term and an additional term, the Court was required to have regard to any report on the person made by the Serious Offenders Review Board[24] and any other relevant reports prepared after sentence. The Court was also required to have regard to any relevant comments made by the original sentencing judge when imposing the sentence and any other relevant matter[25]. The Court was directed to have regard to 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] and of the practice relating to the issue of such licences"[26]. A minimum term and an additional term, set pursuant to s 13A, replaced the original sentence of imprisonment for life[27]. An appeal lay to the Court of Criminal Appeal in relation to a determination made under the section or a decision to decline to make such a determination[28].
Section 13A reflected similar provisions introduced into Commonwealth law and the laws of other States[29]. It conferred a new jurisdiction on the Supreme Court. The resentencing for which it provided was an exercise of judicial power[30]. The distinction between judicial and executive functions in relation to the sentencing and release of prisoners under the regime established by s 13A was pointed out in the Second Reading Speech[31]:

[29]

Under the 1989 Act, as it stood on 24 April 1997, a prisoner was "eligible for release on parole" only if the prisoner was subject to at least one sentence of imprisonment with a minimum term and had served each such minimum term and was not subject to any other sentence without a minimum term[44]. A prisoner who was eligible for release on parole was "entitled to be released on parole only if a parole order directing the release of the prisoner ha[d] been made"[45].
The statutory scheme for release on parole which was in place when McInerney J made his determination under s 13A, conferred the executive power of release on parole on the Parole Board[46]. That power, when exercised in relation to a prisoner serving a sentence in excess of three years, was subject to a number of conditions set out in s 17 of the 1989 Act. Those conditions required a determination by the Parole Board that the release of the prisoner was appropriate having regard to the principle that the public interest is of primary importance[47] and that the prisoner, if released, would be able to adapt to normal, lawful community life[48]. They required consideration of relevant comments made by the court sentencing the prisoner[49], and of reports required by the regulations[50]. The Parole Board was also required to take account of the antecedents of the prisoner, any special circumstances of the case[51], and any other relevant matters[52]. In respect of "serious offenders" the Parole Board was required, by virtue of the 1996 amendments to the 1989 Act, as explained above, to give preliminary consideration to possible release on parole at least 60 days before the eligibility date, and annually thereafter while the prisoner remained eligible[53]. There was also provision for notice to victims and submissions from victims before the Parole Board made its decision[54]. As appears below, subsequent legislative change considerably narrowed the scope of the Parole Board's power to order the release on parole of serious offenders the subject of a non-release recommendation. The plaintiff fell into that class of offender.
Following the decision of McInerney J, the Sentencing Legislation Further Amendment Act 1997 (NSW) was enacted. That Act amended s 13A so that a person who had been the subject of a non-release recommendation was not eligible to make an application under the section unless the person had served at least 20 years of the sentence concerned[55]. The criteria for such a determination were made more stringent[56]. Those amendments did not affect the plaintiff who already had the benefit of the order made by McInerney J. However, a new section, s 22P, was enacted which affected the power of the Parole Board to release on parole a person whose sentence of imprisonment for life had been the subject of a determination under s 13A(4). It therefore applied to the plaintiff. The Parole Board was required, by s 22P, to "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"[57]. It was also required to give consideration to adopting or giving effect to the substance and intention of the original sentencing court[58]. To the extent that it declined to adopt or give effect to those matters, the Parole Board was required to state its reasons for so doing[59]. Section 22P made access to parole more difficult for the plaintiff. Nevertheless, it left open the possibility that he could eventually be released on parole.
On 3 April 2000, the 1989 Act was repealed[60]. It was replaced by the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the 1999 Act"). At the same time the Administration Act was enacted. The 1999 Act and the Administration Act re-enacted the provisions of various Acts dealing with the sentencing of offenders and the administration of sentences imposed on offenders[61].
Under the 1999 Act an offender who had served at least 20 years of an existing life sentence, and who had been the subject of a non-release recommendation, could apply to the Supreme Court for the determination of a specified term and a non-parole period for that sentence[62]. The Supreme Court making such a determination could set a specified term for the sentence together with a non-parole period for the sentence[63]. A transitional provision had the effect that the determination made by McInerney J, on 24 April 1997, under s 13A of the 1989 Act, was taken to be a determination of a specified term and non-parole period under the 1999 Act[64].
The plaintiff submitted that as at 19 July 2001, the day before the commencement of s 154A of the Administration Act, the continuing effect of the determination by McInerney J was that:

[45]

As appears from the legislative history, there has been a series of changes in the law in New South Wales affecting the powers of executive authorities to release eligible prisoners on parole. The question raised in the present case is whether the enactment of s 154A in its application to the plaintiff had some constitutionally impermissible interaction with or effect upon the judicial decision of McInerney J to fix a minimum term of 30 years in respect of the life sentence imposed on the plaintiff for the murder of Mr Lamb.
Limits upon the power of State legislatures to make laws affecting State courts and their decisions are derived by implication from Ch III of the Constitution as explained in a number of decisions of this Court beginning with Kable v Director of Public Prosecutions (NSW)[74]. State legislatures cannot abolish State Supreme Courts[75] nor impose upon them functions incompatible with their essential characteristics as courts, nor subject them, in their judicial decision making, to direction by the executive[76]. A State legislature cannot authorise the executive to enlist a court of the State to implement decisions of the executive in a manner incompatible with the court's institutional integrity[77]. Nor can a State legislature enact a law conferring upon a judge of a State court a non-judicial function which is substantially incompatible with the functions of the court of which the judge is a member[78]. State legislatures cannot immunise statutory decision-makers from judicial review by the Supreme Court of the State for jurisdictional error[79].
The plaintiff advanced as his major premise the further proposition, set out most succinctly in the Outline of Oral Argument, that State legislatures "do not have the power to enact laws which alter or detract from rights or entitlements created by, as distinct from existing independently of, the judgments or orders of State Supreme Courts in a 'matter'". The criterion of validity of a law, in relation to that limit on legislative power, was said to be whether the law effected "an alteration to the right[s] or entitlements created by the relevant judgment or order - or, to put it another way, the 'effect' of that judgment or order."
The major premise raises some large questions. They include:

[49]

It is not necessary, in order to answer the questions raised on the special case, to decide these large questions. That is because the application of the plaintiff's major premise in this case depends upon an acceptance of his characterisation of s 154A as a law which alters the "effect" of the decision made by McInerney J. That characterisation should be rejected. On any view, s 154A did not alter or vary the sentence imposed by McInerney J in 1997. Even though directed at a small population of prisoners, including the plaintiff and his co‑offender who were named in the Second Reading Speech of the amending legislation, s 154A had no effect upon the legal operation of the resentencing order. The exercise of judicial power by McInerney J was complete when the order was made. In respect of the murder of Mr Lamb, there remained one judicial sentence namely, that which was imposed in April 1997 under s 13A of the 1989 Act. His Honour's decision involved no direction to the Parole Board or its successors. By fixing a minimum term, his Honour enlivened the power of the Parole Board, under the statutory scheme then in place, to consider the plaintiff's release on parole at the expiry of the minimum term.
The plaintiff submitted, that the determination by McInerney J not only enlivened the power of the Parole Board to consider the plaintiff's release on parole in due course, but also gave rise to a duty on the part of the Parole Board to give consideration to his release in accordance with the provisions of the 1989 Act as it stood in April 1997. It may be assumed that that was a statutory consequence of the determination by McInerney J. It was not an element of that determination. Section 154A imposed strict limiting conditions upon the exercise of the executive power to release the plaintiff and other serious offenders the subject of a non-release recommendation. It may be said to have altered a statutory consequence of the sentence. It did not alter its legal effect.
The distinction between the legal effect of a judicial decision and consequences attached by statute to that decision is apposite in the context of sentencing decisions and statutory regimes providing for conditional release by executive authorities. The power of the executive government of a State to order a prisoner's release on licence or parole or in the exercise of the prerogative may be broadened or constrained or even abolished by the legislature of the State. Statutes providing for executive release may be changed from time to time. In 1997, after McInerney J had resentenced the plaintiff, s 22P was inserted into the 1989 Act and, as explained earlier in these reasons, made access to parole more difficult for the plaintiff. As Gleeson CJ said in Baker v The Queen[81], of sentencing and custodial regimes applicable to prisoners already serving sentences[82]:

[85]

In Baker, this Court dismissed a challenge to the validity of the emphasised passages in these provisions. The contention was that s 13A purported to vest in the Supreme Court functions which were incompatible with its exercise of the judicial power of the Commonwealth. However, the Court held that there was nothing repugnant to the notion of judicial power in the legislature taking a past non‑release recommendation as the criterion for the operation of a subsequent curial regime such as that provided by s 13A.
With effect as of 3 April 2000, the 1989 Act was repealed. The regime established by s 13A was substantially re‑enacted in the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Act")[91]. The parole system was retained on the terms now set out in Pt 6 of the Crimes (Administration of Sentences) Act 1999 (NSW) ("the Parole Act"). Section 183 of the Parole Act constituted a Parole Board. Thereafter, the New South Wales State Parole Authority, the second defendant, was constituted by changes made to the Parole Act in 2004[92].
With effect as of 20 July 2001, s 154A was added, not to the Sentencing Act but to the Parole Act, by the Crimes Legislation Amendment (Existing Life Sentences) Act 2001 (NSW). It is the validity of s 154A which is challenged in this proceeding in the original jurisdiction of the Court.
By notice dated 12 September 2003 the Parole Board informed the plaintiff that by reason of s 154A he was not eligible to be released on parole. In his action in the original jurisdiction of this Court, the plaintiff complains that s 154A had the effect of stultifying the benefit or entitlement accorded to the plaintiff by the decision of McInerney J, the benefit or entitlement being that the plaintiff would be eligible for release on parole on 13 November 2003. In the period since 12 September 2003 the plaintiff has not applied to be released on parole.
Section 143 requires the Parole Authority to give preliminary "consideration" within specified periods to whether or not a "serious offender", and the plaintiff is one such, should be released on parole. The chapeau to s 154A reads "Serious offenders the subject of non‑release recommendations". The text of s 154A states:

[98]

The subsequent controversy which had been quelled by the determination of McInerney J was whether a determination under s 13A of the 1989 Act should be made, and, if so, upon what terms as permitted by that section. The responsibility of the executive branch of the government for the future of the plaintiff remained regulated by the parole system established by the 1989 Act, as amended from time to time.
The plaintiff's case breaks down at the stage of proposition (2). In this, as in other fields of constitutional discourse, regard properly may be had to matters of substance as well as of form and to practical as well as legal effect. The plaintiff sought to do so in developing proposition (2). However, the practical reality which, as Gleeson CJ emphasised in Baker[96], faces sentencing judges (including those in the position of McInerney J) is the prospect of legislative and administrative changes in parole systems. As a matter neither of form nor substance did the sentencing determination by McInerney J create any right or entitlement in the plaintiff to his release on parole. In that regard, the determination itself had no operative effect. Rather it constituted a factum by reference to which the parole system (later including s 154A) operated[97]. In particular, s 154A(3), by using the phrase "if, and only if" to govern pars (a) and (b) of that sub‑section, qualified the jurisdictional facts which had to apply in order to enliven the power of the Parole Authority to make an order directing the release of the plaintiff on parole. Section 154A did not impeach, set aside, alter or vary the sentence under which the plaintiff suffers his deprivation of liberty.
Question 1 in the special case asks whether s 154A is invalid in its purported application to the plaintiff. It should be answered "No". Question 2 asks who should pay the costs of the special case. It should be answered "There should be no order as to costs".
HEYDON J. The background circumstances of this case are set out in the other judgments.
On 20 June 1974, Taylor J, sitting in the Supreme Court of New South Wales, sentenced the plaintiff for various violent crimes against five victims. The sentence relevant to this case is a sentence of life imprisonment for the murder of Mr Lamb. No non-parole period was fixed in respect of that sentence. Thereafter, a legislative change was made permitting the resentencing of the plaintiff. The Sentencing Act 1989 (NSW), s 13A, enabled persons in the plaintiff's position to apply to be resentenced for a minimum term and an additional term. The fixing of the minimum term enabled those persons to apply for parole once the minimum term had expired. The plaintiff made an application of that kind.
On 24 April 1997, McInerney J, sitting in the Supreme Court of New South Wales, resentenced the plaintiff for the murder of Mr Lamb to a minimum term of 30 years' penal servitude and an additional term of the remainder of his natural life. As the legislation regarding parole then stood, that order meant that on 13 November 2003, 30 years after the plaintiff's imprisonment commenced on 13 November 1973, the plaintiff would become eligible for consideration as meriting release on parole.
The plaintiff attacks the validity of s 154A of the Crimes (Administration of Sentences) Act 1999 (NSW), which introduced stringent requirements for the grant of parole, namely that as a precondition he be dying or permanently incapacitated[98]. He attacks it because he claims to believe that on 19 July 2001, the day before that section was introduced, he had some prospects of being released on parole on 13 November 2003 without having to satisfy the s 154A requirements. The plaintiff contended that under s 22C of the Sentencing Amendment (Parole) Act 1996 (NSW) the Parole Authority of New South Wales was obliged, at least 60 days before he became eligible for release on parole, to give preliminary consideration to whether the plaintiff should be so released. The plaintiff also contended that the Parole Authority of New South Wales was obliged to consider that question annually thereafter, so long as the plaintiff remained eligible for parole.
It is highly questionable whether this regime gave the plaintiff bright prospects of release on parole. He went no further than to say that he had "at the very least some prospect, however minimal, of being released". Section 22P(2)(a) and (b) of the Sentencing Act 1989 (NSW)[99] read in the light of Taylor J's remarks on sentence and the brutal conduct which gave rise to those remarks[100] created serious difficulties for the plaintiff.
But however low the plaintiff's prospects of release on parole were before s 154A was enacted, the plaintiff contends that the effect of its enactment was to reduce his prospects of release on parole radically.
The plaintiff argued that McInerney J's order resentencing him created in him a right or entitlement to be considered for parole under s 22C. The plaintiff submitted that the enactment of s 154A detracted from that right or entitlement: it "deprived that judicial act of one of its defining and essential characteristics, namely finality and determination of the issue before the Court". The plaintiff also contended that McInerney J's substantive determination gave the plaintiff a real prospect of release once he became eligible to apply for parole on 13 November 2003. The plaintiff argued that that was "its sole characteristic", and that the determination existed for no other reason. The plaintiff submitted that s 154A deprived McInerney J's order of that essential character. According to the plaintiff, s 154A was a legislative judgment regarding his prospects of release on parole. That legislative judgment affected the finality of McInerney J's decision. Finally, the plaintiff argued that it was beyond the power of the New South Wales legislature to enact a law that detracts from a right or entitlement created by a judicial order, or that alters its effect.
It is unnecessary to decide whether that last submission is correct. Even if it is correct, the crucial question is whether s 154A altered or varied McInerney J's sentence.
The only consequence of the order determining a minimum term was that it created an opportunity for a parole application on 13 November 2003 under the legislative scheme prevailing on 24 April 1997. The question of what a successful parole application might require on or after 13 November 2003 was a question to be answered in the light of whatever the legislation required at the relevant time. Section 154A dealt with parole. It did not deal with McInerney J's sentence. It did not deal with either the minimum term or the additional term.
Section 154A, therefore, did not alter either the rights and entitlements created by McInerney J's order or the effect of the order. The effect of McInerney J's order was that the plaintiff was obliged to undergo penal servitude for life. The plaintiff might have hoped that the statutory regime regarding parole at the time of McInerney J's order would still be in force when the minimum term expired. It was more benign than s 22P(2), and much more benign than s 154A. But he had no right or entitlement that that regime should continue to apply to him. It was open to the legislature to alter the legislation in place when the order was made in relation to criteria for the grant of parole - either by making it easier for persons in the plaintiff's position to gain release on parole, or by making it harder. In 1997, the legislature may have made it harder when it enacted s 22P(2), but the plaintiff did not say this provision was invalid. In 2001, when s 154A was enacted, the legislature made it harder still. McInerney J's order was unaffected by these changes.
This Court explained in Baker v The Queen that the effect of the additional term was to fix a period after "which the prisoner might, by the exercise of statutory authority given a non-judicial body, be released on parole"[101]. The statutes giving the statutory authority referred to can change from time to time. The plaintiff conceded this when his counsel said: "the nature of both criteria and restrictions, criteria for release, restrictions upon release ... can obviously be affected from time to time by legislation postdating [McInerney J's] decision". This Court also said in Elliott v The Queen[102]:

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