Crump v R

Court of Criminal Appeal (NSW)|2015-11-04|Before: Meagher JA, Rothman J, Bellew J, McInerney J, Barr J, Wood CJ

The applicant's argument

The applicant filed two written submissions, each of two handwritten pages. He also addressed the Court orally. His first and principal submission is that his involvement in Mr Lamb's murder was not sufficiently serious to warrant a sentence of life imprisonment, or in the language of s 13A(4) of the 1989 Act, an additional term for the remainder of his natural life. For that reason he argues that McInerney J erred and that this Court should re-determine his sentence for that offence. He refers to the sentences imposed on three other offenders convicted of murder in support of his argument that the sentence imposed on him was too high. His second written submission concludes: I believe that the sentence I am doing for the murder of Mr Lamb … would have been substantially shorter than the 41 years 8 months I have already served.

The circumstances of the offending

The applicant and Baker committed a number of very serious offences in northern New South Wales and Queensland in 1973. The following account is taken from the Crown's written submissions to this Court which in turn summarise the Statement of Facts tendered in evidence before McInerney J. A more graphic factual account, taken from what the applicant told the police in signed records of interview, is contained in the judgment of Hunt CJ at CL in Crump v R (Court of Criminal Appeal (NSW), 30 May 1994, unrep) at 1-5.
In October 1973, the applicant stole a car and joined Baker, who he had known for a couple of years, setting up camp to work as casual tractor drivers on a property near Boggabilla. That employment ceased on 2 November 1973 and the following day Baker, accompanied by the applicant, purchased a rifle at Goondiwindi in Queensland. That night, with the intention of stealing money and petrol, they approached Mr Lamb who was asleep in his car on the side of the road at Narrabri. When Mr Lamb awoke to tapping on the car window, Baker fatally shot him in the neck and the two offenders robbed him and fled.
A few days later, on 7 November 1973 the applicant and Baker travelled to the Morse family property on the New South Wales/Queensland border. Baker had performed three weeks of casual work on the property in October 1972. The men watched the Morse family home through binoculars and saw Mr Morse take his children to the school bus before driving his truck away from the property. At that point, the two went in, bound and gagged Mrs Morse, ransacked the house, stealing two rifles amongst other items, carried Mrs Morse to her husband's car and drove to where the stolen car had been hidden. They then transferred petrol from Mr Morse's car before hiding it and driving off with Mrs Morse in the stolen car. At the first stop the offenders removed Mrs Morse from the vehicle, tied her limbs, removed her clothes and each raped her. They again raped Mrs Morse at the next stop which was across the Queensland border. Shortly afterwards the applicant shot Mrs Morse between the eyes while she was seated in front of a tree with her hands tied. Mrs Morse's naked body was then concealed with sticks and rocks in a nearby stream.
On 13 November 1973 the applicant and Baker committed another armed robbery in a house whose owner was also known to the applicant. Their stolen car was then sighted, that sighting was reported and a police chase involving five officers ensued. The applicant initially drove while Baker fired shots at the police but once they had alighted both shot at police intending to kill them so that they could get away. Constable Millward was shot in the head during these exchanges, but survived.
The applicant and Baker were arrested and each was charged with the following offences: Count 1: The murder of Ian James Lamb on 3 November 1973 near Narrabri in the state of New South Wales (ss 18, 19 of the Crimes Act 1900); Count 2: Conspiracy to murder Virginia Gai Morse on 7 November 1973 near Collarenebri and elsewhere in the state of New South Wales (s 26 of the Crimes Act); Count 3: Maliciously wound Constable John William Millward with intent to prevent lawful apprehension on 13 November 1973 at East Maitland (s 33 of the Crimes Act); and Count 4: Maliciously shoot at Senior Constable John Kenneth Snedden and Constable Wayne Martin Hore with intent to prevent their lawful apprehension on 13 November 1973 at Woodville (s 33 of the Crimes Act).
Neither was charged with the murder of Mrs Morse as that offence took place in Queensland.

The trial and sentence proceedings before Taylor J

On 11 June 1974 the applicant and Baker pleaded not guilty to each of these counts and their trial proceeded before Taylor J and a jury. On 20 June 1974 the jury returned verdicts of guilty on all counts against both men. On the same day Taylor J imposed the following sentences on each offender: imprisonment for life on each of the first two counts and imprisonment for a period of 15 years with hard labour on the remaining two counts.

The application to McInerney J

In April 1997, s 13A of the 1989 Act relevantly provided: (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. … (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.
The Crown opposed the application to determine each of the life sentences. It also sought a direction in relation to the life sentence for the murder of Mr Lamb pursuant to s 13A(8), which with s 13A(8C) then provided: (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: (i) never re-apply to the Court under this section, or (ii) not re-apply to the Court under this section for a specified period. … (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 2 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.
McInerney J rejected the Crown's application for a direction under s 13A(8): Judgment at 25-26. In support of that application the Crown submitted that when considering whether the applicant's involvement in the murder of Mr Lamb was, within the language of s 13A(8C)(b), a "most serious case of murder", the Court could have regard to the totality of the criminality involved in the four offences, including, in relation to the conspiracy to murder, the circumstances of the abduction, rape and killing of Mrs Morse. McInerney J rejected that argument, holding that the language of s 13A(8C) directed attention to the objective seriousness of the applicant's involvement in the offence of murder alone: Judgment at 25.
He accepted the submission made on behalf of the applicant that his involvement in Mr Lamb's murder did not answer the description of "a most serious case of murder", and concluded (Judgment at 26): The question of totality, I am satisfied, is to be considered once I am of the view that a determination should be made, namely that I am not satisfied that Crump's involvement in the murder of Mr Lamb is the most serious type of murder for the purpose of setting an appropriate determinate sentence. I have made it clear that on the authorities I am bound to follow I do not consider it to be so. In those circumstances, I am required to set a minimum and an additional term.
McInerney J then proceeded to the question of the appropriate sentences to be determined for the murder and conspiracy to murder convictions. In relation to the latter, because it was "within the contemplation of Baker and Crump when they formed the conspiracy to murder that they intended to rape and then kill Mrs Morse so that she could not identify them", he held (Judgment at 32) that it was appropriate to take those aggravating circumstances into account when determining an appropriate sentence.
He then considered the applicant's subjective circumstances, criminal history and conduct whilst in gaol, having earlier noted (referring to Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465) (Judgment at 27) that an offender's criminal history could be taken into account provided that it was not given such weight as to lead to the imposition of a penalty which was disproportionate to the gravity of the relevant offence. With respect to the conspiracy offence he also noted that, of the various judges who had considered the applicant's offending, "only Hunt CJ at CL [had] stated a firm view that the conspiracy to murder Mrs Morse is in the worst case category and thus deserves punishment for life" (Judgment at 54).
McInerney J then proceeded to address the question of determining an appropriate sentence for the murder of Mr Lamb (Judgment at 60): In determining an appropriate sentence, I take into account retribution, general and specific deterrence, and rehabilitation. The sentence I have determined is one that in all the circumstances l have concluded is appropriate. It is not possible to accumulate sentences for the various crimes. Section 13A(5) of the Act requires that 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. An appropriate sentence has to be passed to take into account the criminality involved in all the offences. The longest sentence I impose for the murder of Mr Lamb is designed to reflect the overall criminality involved in all the offences. Crump will need constant supervision and guidance for the rest of his life, if and when he is released from gaol. For the murder of Mr Lamb, Crump is sentenced to a minimum term of penal servitude of 30 years commencing on 13 November 1973 and concluding on 12 November 2003. Crump will be eligible for release on parole on 13 November 2003. I set an additional term for the remainder of Crump's natural life. For the conspiracy to murder Mrs Morse, Crump is sentenced to 25 years' penal servitude commencing on 13 November 1973 and concluding on 12 November 1998.

Was there error in determining the applicant's sentence for the murder of Mr Lamb?

There are two related respects in which the applicant complains about McInerney J's determination of the sentence for his murder conviction. First, he says that an additional term of life was too long having regard to the nature of his involvement in that murder. Secondly, he says that his Honour should not have taken into account the "overall criminality involved" in the four offences when determining that sentence. In other words, he is to be taken to argue that the sentence was not proportionate to the gravity of his involvement in that murder and was made longer to take into account the criminality involved in the other three offences.
In response the Crown submits, citing Spinks v R (Court of Criminal Appeal (NSW), 7 August 1997, unrep), that considerations of totality are relevant to the discretionary decision made in connection with the determination of the additional term. The parties' arguments direct attention to the application of the proportionality and totality principles in relation to the re-determination of a life sentence under s 13A.
The proportionality principle requires that the punishment imposed for a crime be proportional to its seriousness. In Hoare v The Queen [1989] HCA 33; 167 CLR 348 it was said (at 354) that a sentence should "never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances".
The totality principle requires, when multiple offences are involved, that the sentencing judge ensure that the total effective sentence imposed not exceed the overall criminality involved in the offences. In Mill v The Queen [1988] HCA 70; 166 CLR 59 (after referring to the statement of the totality principle in David Arthur Thomas, Principles of Sentencing, (2nd ed 1979, Heinemann Educational) at 56-57), Wilson, Deane, Dawson, Toohey and Gaudron JJ said (at 63) that, having calculated the appropriate sentence for each offence, the sentencing judge could proceed to give effect to that principle "either by making [the] sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed".
In Johnson v The Queen [2004] HCA 15; 78 ALJR 616 it was argued that this statement was inconsistent with the position being as summarised in Pearce v The Queen [1998] HCA 57; 194 CLR 610 at [45] that a "judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality". This was said to exclude the second course described in Mill of lowering each sentence and then aggregating them before determining the overall time to be served.
In rejecting this submission, Gummow, Callinan and Heydon JJ said at [26]: The first matter to be noticed in this regard is that the joint judgment in Pearce recognises the currency of Mill by referring to the principle of totality which it reiterates [citing the passage at [45]]. The joint judgment in Mill expresses a preference for what should be regarded as the orthodox, but not necessarily immutable, practice of fixing a sentence for each offence and aggregating them before taking the next step of determining concurrency. Pearce does not decree that a sentencing judge may never lower each sentence and then aggregate them for determining the time to be served. To do that, is not to do what the joint judgment in Pearce holds to be undesirable, that is, to have regard only to the total effective sentence to be imposed on an offender. The preferable course will usually be the one which both cases commend but neither absolutely commands. Judges of first instance should be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected. … [emphasis in original]
Of particular relevance in the present context is the Court's emphasis on the need for the adoption of an approach that correctly and consistently applies the totality principle, necessarily after taking account of the statutory regime under which the sentencing exercise is to occur. Here that regime (s 13A) enabled the Supreme Court to vary an existing life sentence by fixing a minimum term of imprisonment and an additional term during which the prisoner might be released on parole. Applications for the exercise of that power could be made many years after the life sentence was imposed and in circumstances where other sentences also had been imposed, either before, at the same time as, or after the relevant life sentence, and in respect of conduct that may or may not have been related to the conduct for which the life sentence was imposed.
At the time the application was before McInerney J, s 13A(9) provided that in exercising that function, the Court was "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) any relevant comments made by the original sentencing court when imposing the sentence, 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.
Most significantly, s 13A(5) provided that the minimum term of any re-determined sentence was to commence on the date on which the original sentence commenced or, if the person had been remanded in custody for the offence, on the date on which the first such remand commenced. That provision restricted the ability of the Court when re-determining more than one life sentence, or making a re-determination in circumstances where the offender had been sentenced for other crimes, to consider questions of cumulation and concurrency, not only in order to avoid double punishment in an appropriate overall sentence, but also in order to ensure that the offender was appropriately punished for those other crimes.
These difficulties were confronted by Hunt CJ at CL in R v Purdey (1992) 65 A Crim R 441. There the application under s 13A was made in circumstances where, before the life sentence for murder had been imposed, Purdey had been sentenced for other serious offences committed before the murder. Hunt CJ at CL said at 446-447: In the ordinary course of events, a judge called upon to sentence a prisoner for murder where he has already been sentenced for nine armed robberies and an escape from lawful custody would usually make the sentence for the murder cumulative upon those sentences already imposed, except in relation to those offences which were committed as part of a connected and roughly contemporaneous series of offences. However, before accumulating the sentence for murder upon those already imposed for the other crimes, the judge would be obliged to consider whether the simple addition of two or more sentences which may individually be appropriate has nevertheless produced a total figure which is excessive having regard to the totality of the criminality involved: … Such a cumulative sentence, however, is not permitted when imposing a fresh sentence pursuant to s 13A. … It has always been the law that, where a judge has to impose sentences in relation to a number of offences, it does not matter very much whether he or she accumulates reduced sentences (so as to take the principle of totality into account) or makes longer sentences concurrent - provided of course that each individual sentence remains proportionate to the crime to which it relates. It has never been the law that, when the sentences are made concurrent, the longest of the sentences imposed must be determined without reference to the crimes to which the other concurrent sentences relate. … As the judge resentencing pursuant to s 13A is precluded from making the fresh sentence cumulative upon others which the prisoner was serving when the original life sentence was imposed - or would have been serving when sentenced for the murder in the ordinary course of events - he or she must therefore make the sentence for murder longer to take those other crimes into account, provided that the sentence imposed for the murder remains individually proportionate to the crime for which it is imposed. Again, to hold otherwise would effectively mean that the applicant would not be punished for those other crimes.
On the appeal from that determination Carruthers J (Gleeson CJ and Mahoney JA relevantly agreeing) accepted the correctness of these observations as to the principles to be applied when re-sentencing under s 13A: R v Purdey (1993) 31 NSWLR 668 at 669, 670, 679-680.
In Fenech (Supreme Court (NSW), 4 September 1997, unrep) Barr J applied the same approach in a case where the offender had been sentenced for other serious crimes after the life sentence had been imposed. He said (at 18): I think in view of these authorities that the proper approach in redetermining a life sentence is to take into account subsequent offences and sentences not only for the purpose of ascertaining the applicant's stage of rehabilitation but in order to fashion a redetermined sentence which will ensure that the applicant does not go unpunished or insufficiently punished for offences for which he is sentenced after the life sentence. I think that the principle enunciated by Hunt CJ at CL in R v Purdey … applies to cases like this one just as it applies to life sentences which are imposed on prisoners already serving sentences. And (at 20-21): There seems to be no utility in the approach contended for [that a sentence imposed after the life sentence was imposed should not be taken into account]. No argument of principle has been put forward justifying such a construction by reference to any need, in redetermining a life sentence, to ensure that a prisoner does not go unpunished for sentences which he was serving when the life term was imposed but not for sentences imposed thereafter. It seems to me that the interests of the community in ensuring that prisoners serve proper sentences for their crimes apply as much to sentences which are imposed after a life sentence as to sentences which are current when the life sentence takes effect. I therefore propose to take the subsequently imposed sentences into account in assessing the minimum term of the redetermined sentence. Because the applicant was already serving his life sentence, the Courts sentencing him for those two offences did not fix non-parole periods. They would otherwise have done so. I shall take that into account. I shall also take into account that the applicant would have earned remissions from those non-parole periods. I shall also take into account the principle of totality.
With effect from 9 May 1997, s 13A was amended by the insertion of subs 4A (Sentencing Legislation Further Amendment Act 1997 (NSW)) which provided: 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).
In R v Picknell (Supreme Court (NSW), 10 November 1998, unrep) Wood CJ at CL also applied Purdey in circumstances where the offender had been sentenced for other crimes after the life sentence had been imposed. He observed (at 13): It is proper, in that respect, to take into account any offences of which the applicant has been convicted since the murders, and the sentences imposed in respect of them, not only so far as that might assist in determining the applicant's prospects of rehabilitation, but also in order to fashion a redetermined sentence which is appropriate and takes into account the principle of totality. As cumulative sentences are not permitted, by reason of s 13A(5), any concurrent sentence now imposed for the murders must be extended to take into account the other crimes of which the applicant has been convicted, provided that the redetermined sentences remain proportionate to the crimes for which they are imposed. So much is clear from the amendment to s 13A in 1997 which inserted a subsection (4A) …
The correctness of this approach and its consistency with the application of the totality principle in Pearce was considered by this Court in R v Salameh [1999] NSWCCA 300 and R v Maiden [2000] NSWCCA 519. In Salameh it was said that the sentencing judge (also McInerney J) had erred in taking into account sentences imposed after the life sentence. Wood CJ at CL (Newman J and Foster AJ agreeing) rejected that submission and the consequent argument that the primary judge had not correctly applied the totality principle as described in Mill and Pearce. Citing this Court's decision in Spinks, his Honour noted that it was not in question that the totality principle applied to a determination of minimum and additional terms under s 13A.
Wood CJ at CL continued in Salameh: [32] In accordance with the principle expressed in Mill as explained in Pearce, his Honour was required to consider what was an appropriate sentence for each of the offences and then to apply the totality principle to ensure that the criminality involved in all of them was appropriately but not doubly punished. … [34] The sentencing exercise which his Honour had to take into account was, no doubt, complicated by the fact that the applicant had been sentenced to a series of sentences for offences both preceding and following the offence of murder. [35] By reason of section 13A(5) of the Sentencing Act 1989, it was necessary for his Honour to backdate the murder sentence to the date of the first remand. It was not possible for him to accumulate the sentence upon any of the other sentences. His Honour was, however, bound to take into account the sentences imposed [after the murder sentence], as well as the sentences he had imposed, back in 1987, for offences other than the murder, in order to undertake the exercise required by Pearce, and then to achieve a result which reflected the totality of the criminality. In so doing it was open to him to foreshorten the sentence for the offence of murder so as to achieve a total result that reflected all of the criminality involved, without any element of double punishment.
In Maiden it was again submitted that the judge re-determining the sentence (Dunford J) had erred in taking into account that an otherwise appropriate murder sentence had to be backdated and that doing so would, unless that sentence was made longer, leave the offender unpunished for other offences of which he had been convicted and sentenced. Whealy J (Sully and Howie JJ agreeing) rejected that argument, referring to Salameh and emphasising the significance of s 13A(5) in the sentencing exercise under s 13A: [26] In my opinion, it is important to bear in mind that the sentencing process involved in the determination process under s 13A is one in which there are specific statutory requirements and restraints which affect, or are capable of affecting, basic sentencing principles. This extends to principles such as the one referred to at para 45 in Pearce. For example, subs (5) of 13A prevents the Court from making the re-determined minimum term cumulative on sentences already being served by the offender at the time when the original sentence was imposed. Similarly, subs (4A) requires the re-determining Court to have regard to all the circumstances regarding the offence for which the life sentence was imposed, and all offences, wherever committed, of which the person has been convicted at any time. Thirdly, the Court is to have regard to a number of matters set out in subs (9). Considerations of this kind would not normally be part of the sentencing process.
The task facing McInerney J was to re-determine the life sentence fixed for the murder of Mr Lamb in circumstances where there had been concurrent sentences of 15 years imposed for each shooting offence, which by 1997 had been served, and a further concurrent (and re-determined) sentence imposed for the conspiracy to murder Mrs Morse. In considering the appropriate sentences for the murder and conspiracy offences, his Honour noted that whilst he could have regard to the applicant's criminal history, that could not lead to the imposition of sentences that were disproportionate to the gravity of those offences (Judgment at 27).
In determining an appropriate sentence for the conspiracy offence, McInerney J took into account the aggravating circumstances described in [33] above. He held an appropriate sentence for that offence to be 25 years imprisonment (Judgment at 61). In considering the appropriate sentence for the murder of Mr Lamb, his Honour had earlier concluded that the applicant's involvement in that offence did not constitute the "most serious type of murder for the purpose of setting an appropriate determinate sentence" (Judgment at 26).
His Honour then took into account the operation of s 13A(5) which prevented him from making the re-determined sentences wholly or partly cumulative with each other, or with the sentences for the other two crimes (Judgment at 60). That being the position, it was necessary that the re-determined, and necessarily concurrent, appropriate sentence to be imposed for the murder, in the language of Wood CJ at CL in Picknell, be "extended" to ensure that the applicant did not go unpunished or insufficiently punished for the other three offences, and in particular the conspiracy to murder.
At the same time, as McInerney J also noted, it was necessary to ensure that the severity of the overall sentence was not "too much" (per Lord Parker LCJ in Reg v Faulkner (1972) 56 Cr App R 594 at 596) in the context of the applicant's overall culpability. Finally, it was identified as relevant that the applicant would "need constant supervision and guidance for the rest of his life, if and when he [was] released from gaol" (Judgment at 60).
His Honour's statement that the "longest" sentence was designed "to reflect the overall criminality involved in all the offences" is to be understood as taking account of each of these considerations, so as to ensure that the applicant did not go unpunished for the other three offences (the sentences for which had been or were to be served concurrently) and that the overall sentence was just and appropriate.
His Honour did not err in approaching the exercise of re-determination in this way and in this case the considerations to which he referred warranted the determination of a sentence with an additional term for the remainder of the applicant's natural life. As his Honour acknowledged, the applicant's involvement in Mr Lamb's murder cannot be characterised as a most serious or worst case of the offence. However, if an appropriate sentence could have been imposed for the murder and at least part of it ordered to be served cumulatively, it would not have commenced until after the applicant had been appropriately punished for the conspiracy to murder Mrs Morse and the remaining two offences. The minimum term of 30 years and additional term of life imposed for Mr Lamb's murder reflect that outcome.
In his written submissions, the applicant refers to the sentences imposed in R v Hill [2003] NSWCCA 128; R v Valiukas [2009] NSWSC 808 and R v Cousens [2011] NSWSC 1375. None of these decisions involved the re-determination of a life sentence in circumstances where there were other concurrent sentences served, or to be served. The head sentences imposed for those murders ranged between 18 and 30 years. Each obviously depended on the objective circumstances of the relevant crime and took account of the subjective features of each offender. The applicant submits that, although in these cases head sentences in that range were imposed for murders of varying degrees of seriousness, the sentence he has served for the murder of Mr Lamb is "41 years 8 months". That is not so. As the discussion above shows, the time that the applicant has spent in gaol has not been referable only to that offence. The true position, as I have explained and McInerney J said, is that the minimum and additional term "reflect the overall criminality involved in all the offences" (Judgment at 60).
For these reasons, no error of principle is disclosed in McInerney J's re-determination of the applicant's life sentence for Mr Lamb's murder. Nor is the outcome of that exercise manifestly or obviously excessive. The same analysis demonstrates why that is so. For completeness I note that it was not suggested by the applicant that his Honour erred in the finding of any facts that were taken into account in the re-determination exercise.

Remaining arguments of the applicant

I will deal briefly with the remaining two matters raised by the applicant (see [20] above). As to the first, for the reasons given above, the primary judge correctly took into account the sentence imposed for the conspiracy to murder and the fact that it was to be served concurrently, when re-determining the sentence for Mr Lamb's murder. As to the second, I accept that the comments made by Taylor J when sentencing the applicant would not be relevant to the determination of his proposed appeal. Their lasting significance to the applicant is that they constitute a "non-release recommendation", and that remains the position because of the definition of that expression (s 13A(1)) notwithstanding that McInerney J, when re-determining his life sentence, did not make such a recommendation.

Whether this Court has power, in the event that there was error, to determine a specified term for the life sentence

The absence of such power is raised by the Crown as a separate reason for refusing the application for an extension of the time in which to seek leave to appeal. The argument made by the Crown in support of that submission was brief and, understandably, no response was made to it by the applicant. In view of my conclusion that the proposed appeal does not have reasonable prospects of success, it is unnecessary ultimately to decide this question in order to dispose of the application for leave to appeal. However, whether the applicant's pursuit of the opportunity to appeal is futile because this Court cannot reduce his existing head sentence of life imprisonment remains relevant to his application for an extension of time. For that reason I propose to express my view as to this Court's power in the event that it was satisfied that there had been error on the part of McInerney J.
By cl 21(3) of Sch 2 to the 1999 Act, McInerney J's determination (although made under the 1989 Act) was taken to be a determination under cl 4 of Sch 1 to the later Act. Accordingly the applicant's right of appeal was conferred by cl 8(1)(a) of Sch 1 to the 1999 Act. That right arose upon the 1999 Act's commencement on 3 April 2000 and replaced the right of appeal arising under the 1989 Act in respect of that determination. At the time McInerney J's determination was taken to have been made under cl 4, that clause contained no restriction on the Supreme Court's power to determine applications made by offenders subject to a "non-release recommendation". As is explained in [9] above, that restriction took effect from July 2001.
By cl 8(2) of Sch 1, the Criminal Appeal Act applied to that appeal in the same way that it applied to an appeal against sentence. An appeal against sentence is governed by s 5(1)(c) of the Criminal Appeal Act. The power of this Court to re-sentence (or in this case to re-determine the life sentence) is conferred by s 6(3): On an appeal under section 5(1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal.
The power to intervene and duty to re-sentence is enlivened if this Court forms the opinion referred to in that section: Kentwell v The Queen [2014] HCA 37; 252 CLR 601 at [35]. Whether some other sentence "should have been passed" directs attention to the sentencing exercise undertaken and the statutory regime under which it was affected. In other words, the question whether there was error on the part of the sentencing judge is to be addressed by reference to sentencing law and practice at the time the sentence was imposed. In this case, that law did not include cl 4(3).
Whether a more or less severe sentence "is warranted in law" requires reconsideration of the sentencing discretion "taking into account all relevant statutory requirements and sentencing principles" per Spigelman CJ in Baxter v The Queen [2007] NSWCCA 237; 173 A Crim R 284 at [19], in a passage approved by the plurality in Kentwell at [42].
The issue raised by the Crown's argument is whether in this case the "relevant statutory requirements and sentencing principles" include cl 4(3), which in its terms is directed to the jurisdiction of the Supreme Court in disposing of an "application in relation to an existing life sentence". In that respect it is immediately to be contrasted with Pt 3 of the 1999 Act which lays down the sentencing procedures to be applied by a "court", which by s 3(1) includes the Supreme Court and the Court of Criminal Appeal.
The power conferred on this Court by s 6(3) is to pass "such other sentence", being the sentence that it is of opinion "is warranted in law" and "should have been passed". The use of the present tense in the expression "is warranted in law" indicates that regard must be had to the current law to the extent that it is intended to operate with respect to any re-sentencing exercise undertaken by this Court in the face of error on the part of the sentencing judge. For any law to have such an operation requires a very clear indication that it is intended to do so. As Mason CJ and McHugh J observed in Radenkovic v The Queen [1990] HCA 54; 170 CLR 623 at 632: In the context of an appeal against sentence, when a court of criminal appeal is called upon to resentence because it has quashed the sentence initially imposed, considerations of justice and equity ordinarily require that the convicted person be resentenced according to the law as it stood at the time when he was initially sentenced, particularly when that law was more favourable to him than the law as it existed at the hearing of the appeal. The convicted person had an entitlement when he was sentenced by the sentencing judge to a sentence imposed in conformity with the requirements of the law as it then stood. He should not be denied that entitlement simply because the sentencing judge made a mistake, whether that mistake resulted in a sentence that was too harsh or too lenient. In our view it would require a very clear indication of statutory intention to displace that entitlement.
It is only where Parliament manifests an intention "that a new sentencing regime operate retrospectively, [that] the courts will give effect to that intention": per Spigelman CJ in R v MJR [2002] NSWCCA 129; 54 NSWLR 368 at [26].
Clause 4(3) does not purport to apply to an exercise or re-exercise of the power to make a determination under cl 4(1) by the Court of Criminal Appeal. In its terms it applies only to the determination by the Supreme Court of an application "in relation to an existing life sentence" and must be taken to refer to such an application under cl 2(1) of Sch 1. The language reveals an intention that it operate prospectively in relation to such applications made to the Supreme Court, and not otherwise.
The Crown submitted that cl 4 is merely procedural, and for that reason should be given a retrospective operation. That submission must be rejected. As was observed by McHugh, Gummow, Hayne and Heydon JJ in Baker v The Queen at [32], s 13A both created new rights and conferred jurisdiction on the Supreme Court to alter or vary the order of the sentencing judge. Clause 4(3) qualifies those rights as created, limits the jurisdiction of the Supreme Court to alter or vary the order of the sentencing judge in such cases and does so in a way which is substantially detrimental to the applicant.

Applications for extension of time and leave to appeal

The applicant was required to give notice of his intention to apply for leave to appeal within 28 days of the determination of McInerney J. Section 10(1)(b) of the Criminal Appeal Act permits the Court to extend that time. Such a power exists to ensure that the provisions fixing the time for making an appeal or seeking leave to appeal do not become "instruments of injustice" and enables the Court to extend time where that is necessary to do justice between the parties: per McHugh J in Gallo v Dawson [1990] HCA 30; 64 ALJR 458 at [2]. Ordinarily, it will be necessary to consider the nature of and reasons for any delay, the prospects of the proposed appeal and the significance to the parties of the granting or refusing of the application for an extension of time. This last matter is of particular relevance in this case.
The application for leave to appeal was filed nearly 18 years out of time. In his affidavit in support of the application for an extension of time the applicant says (with minor corrections): The reason I have taken so long to get this appeal in, [is that] I have been trying to get an appeal in since 1997 when I got my redetermination. I asked Will Hutchins [the Principal Legal Officer at Prisoner's Legal Service at Legal Aid NSW] over and over requesting for him to put an appeal in, but he would not. Then on 9 May 2012 I received a letter from him telling [me] to try NSW Legal Aid. I could not get any help from them. I was told about the application for Notice of Application for Leave to Appeal. So over the past two years I have been trying to put it together myself. I do understand what I was told about the paperwork needed for the court so that the prosecutor and court would know why I am trying to appeal. I have even asked Legal Aid here from Dubbo if they could help me put my paperwork together. I was told that they would not [because] no one at Dubbo could help me put it together. So I don't know what else I can do, but what I have with the last application I sent in on 20-4-2015. But ask that it be approved so that I can get something done about my sentence and have some justice done in my matter.
The applicant's affidavit does not indicate what advice or reasons he might have received which would explain the absence of any assistance from the Legal Aid Commission in relation to the making of his present application. In the past he has been able to bring proceedings with the benefit of legal aid or other representation. In 1994 he appealed from the decision of Loveday J and, much later, challenged the validity of s 154A in the High Court in Crump v State of New South Wales. In these circumstances it is difficult to exclude as one explanation for his undoubted delay in making the present application that he was unable to secure the assistance of legal aid because his proposed appeal was assessed as not having good prospects of success. That being the position is consistent with the view that I have formed, albeit after a detailed consideration of the merits of the proposed appeal.
Nevertheless a successful outcome could have real significance for the applicant (if on any re-determination by this Court a specified term was set) in view of the enactment of s 154A which has effectively eliminated the prospect for him of release on parole other than in very limited circumstances (see [16] above). His challenge to that legislation was dismissed on 4 May 2012. From that time the only remaining course presenting the possibility of release during his life-time (in circumstances other than those contemplated by s 154A) was a successful appeal from the determination of McInerney J. The applicant's pursuit of the challenge to s 154A may partly explain his delay in making the present application.
There is undoubtedly a public interest in the avoidance of delay in the bringing of appeals against sentence and in ensuring the outcome of finality in sentencing litigation. However, the circumstances of the present case are exceptional, especially taking into account the enactment of s 154A, its effect on the sentence imposed by McInerney J and the applicant's unsuccessful challenge to that legislation. The applicant delayed a further two years from May 2012 before making his present application for leave. He is now 66 years of age and has spent over 42 years in custody. Notwithstanding my view that his appeal does not have good prospects of success, the interests of justice required that he be given the opportunity to argue his application for leave and have this Court's fairly extensive reasons for rejecting it.
Nonetheless, in the light of those reasons, his application for leave to appeal should be dismissed.

Conclusion

The orders I propose are:
Extend the time for the applicant to apply for leave to appeal up to and including 23 April 2015.
Dismiss the application for leave to appeal from the determination of McInerney J of 24 April 1997.
ROTHMAN J: I agree with Meagher JA.
BELLEW J: I agree with Meagher JA.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 February 2016

Sentencing Act 1989(NSW)

Crimes Legislation Amendment (Existing Life Sentences) Act 2001(NSW)

Sentencing (Life Sentences) Amendment Act 1989(NSW)

Sentencing Legislation Further Amendment Act 1997(NSW)

(Sentencing Legislation Further Amendment Act 1997(NSW)

HEADNOTE [This headnote is not to be read as part of the judgment] On 20 June 1974, the applicant was sentenced, along with his co-offender, Allan Baker, to two terms of life imprisonment in respect of the murder of Ian James Lamb and the conspiracy to murder Virginia Gai Morse. In 1997, the applicant applied to the Supreme Court under s 13A of the Sentencing Act 1989 (NSW) for the determination of a minimum term and an additional term in respect of his existing life sentences. On 24 April 1997, McInerney J sentenced the applicant to a minimum term of 30 years imprisonment for the murder of Mr Lamb and an additional term for the remainder of his natural life. In relation to the conspiracy to murder, a sentence of 25 years imprisonment was determined. The applicant now seeks leave to appeal from the decision of McInerney J in respect only of the minimum and additional terms fixed for the murder of Mr Lamb. The application for leave to appeal was 18 years out of time. The Court considered that an extension of time should be granted to allow the arguments on the application to be made and addressed (see [76]). The application for leave to appeal was assessed by reference to the prospects of success of the proposed grounds of appeal relied on by the applicant. The issues before the Court were: i. whether McInerney J erred in considering the overall criminality involved in the four offences of which the applicant was convicted (including the conspiracy to murder) when determining the applicant's sentence for the murder of Mr Lamb; ii. whether the additional term of life imprisonment fixed by McInerney J for the murder of Mr Lamb was too severe having regard to the nature of the applicant's involvement in the offence; and iii. whether, in the event that error was established in the original determination, the Court has power to re-determine an additional term of less than life imprisonment, notwithstanding Sch 1, cl 4(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The Court (per Meagher JA, Rothman and Bellew JJ agreeing) held, dismissing the application for leave to appeal: In relation to (i) The application of the totality principle by a sentencing judge must take account of the statutory regime under which the sentencing exercise is to occur: [42]. At the time of McInerney J's determination, s 13A(5) provided that the minimum term of any determined sentence was to commence on the date when the original sentence commenced, or the date when the applicant was remanded in custody for the offence: [44]. In those circumstances, the re-determined, and necessarily concurrent, sentence imposed for Mr Lamb's murder was just and appropriate, and ensured that the applicant did not go unpunished or insufficiently punished for the other three offences (the sentences for which had been or were to be served concurrently): [55], [57], [58]. Pearce v The Queen [1998] HCA 57; 194 CLR 610; Johnson v The Queen [2004] HCA 15; 78 ALJR 616 considered. R v Purdey (1992) 65 A Crim R 441; Fenech (Supreme Court (NSW), Barr J, 4 September 1997, unrep); R v Picknell (Supreme Court (NSW), Wood CJ at CL, 10 November 1998, unrep); R v Salameh [1999] NSWCCA 300; R v Maiden [2000] NSWCCA 519 applied. In relation to (ii) The applicant's submission that he has served a term of imprisonment exceeding 41 years for the murder of Mr Lamb should be rejected as the time the applicant has spent in gaol is not referable only to that offence: [59]. In relation to (iii) It was unnecessary for the Court to express a concluded view as to this argument: [62]. The language of Sch 1, cl 4(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) suggests a legislative intention for that provision to operate prospectively in relation to applications made to the Supreme Court under cl 2(1): [70]. It should not be concluded lightly that the clause has a retrospective operation as it qualifies certain rights and is substantially detrimental to the applicant: [71].

Judgment

MEAGHER JA: On 20 June 1974 the applicant was sentenced in the Supreme Court (Taylor J) after a jury returned verdicts of guilty against him and his co-offender, Allan Baker, in respect of four charges. Those charges included the murder of Ian James Lamb and the conspiracy to murder Virginia Gai Morse. In respect of those offences, Taylor J sentenced each of the applicant and Baker to two sentences of life imprisonment.
When those sentences were passed, there was no requirement for the imposition of a minimum or non-parole term of imprisonment. At that time s 463 of the Crimes Act 1900 (NSW) conferred upon the Governor a power to release an offender on licence. The Sentencing Act 1989 (NSW) (the 1989 Act) was introduced to restore "truth in sentencing" (s 3) and "permitted a sentencing court imposing a determinate sentence of imprisonment to fix the minimum term to be served by an offender before being eligible for release on parole and introduced a detailed system for the making of parole orders by the parole authority … in respect of prisoners who had served their minimum term": per Gummow, Hayne, Crennan, Kiefel and Bell JJ in Crump v New South Wales [2012] HCA 20; 247 CLR 1 at [43]. See also the discussion per McHugh, Gummow, Hayne and Heydon JJ in Baker v The Queen [2004] HCA 45; 223 CLR 513 at [27]-[29].
Section 13A of the 1989 Act, which was inserted by the Sentencing (Life Sentences) Amendment Act 1989 (NSW) with effect from 12 January 1990, permitted a person serving an existing life sentence to apply to the Supreme Court for the determination of a minimum term and an additional term for that sentence. As French CJ noted in Crump v New South Wales at [8], the purpose of that section was "to enable prisoners who had been sentenced to life imprisonment before 1989 to be considered for possible release on parole".
The applicant made two applications under s 13A. The first was dismissed by Loveday J in December 1992. An appeal from that decision was also dismissed (Crump v R, Court of Criminal Appeal (NSW), 30 May 1994, unrep). His second application, made to McInerney J in 1997, was upheld. In his judgment delivered on 24 April 1997, McInerney J sentenced the applicant to a minimum term of 30 years imprisonment for the murder of Mr Lamb and an additional term for the remainder of his natural life. In relation to the conspiracy to murder, his Honour determined a sentence of 25 years imprisonment. No additional term was set for the second offence and, as French CJ also noted in Crump v New South Wales at [14], the source of the power to impose that sentence without also imposing an additional term (being either for a specified period or for the remainder of the applicant's natural life: see s 13A(4)) is not apparent. The term of imprisonment for each sentence commenced on 13 November 1973, being the date on which the applicant was first remanded in custody for the offences: s 13A(5).

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