Regina v Baker

Regina v Baker - [2002] NSWCCA 184 - NSWCCA 2002 case summary — Zoe

[9]

Held: per Ipp AJA, Dunford J and Bergin J agreeing (1) It can be inferred from the reasoning of Greg James J that his Honour intended to say the applicant was not eligible for a determination of a minimum and additional term because special reasons did not exist to justify such action. (2) In the legislative context, the term "special reasons" is intended to raise the threshold of satisfaction for the Court in considering whether to make a determination of a minimum and additional term. "Special reasons" connotes reasons "out of the ordinary, unusual and not to be expected." United Mexican States v Cabal (2001) 75 ALJR (at 1673), O'Hare v DPP (2000) NSWSC 430, R v Simpson [2001] NSWCCA 534. (3) It is not desirable to define the full scope of "special reasons". However some examples that may fall under the rubric are: Meritorious service to prison authorities, other prisoners or the broader community by the provision of information leading to the recovery of stolen goods or apprehension of other criminals. Affording to an unusual degree, psychological comfort and assistance to other prisoners. Providing assistance to an unusual degree to prison authorities generally. Any combination of reasons whether inherently "special" or not, could amount to "special reasons". (4) As rehabilitation is considered an aim of incarceration, rehabilitation simpliciter would not ordinarily be regarded as "special". However, a particularly marked or successful rehabilitation, when coupled with other factors may constitute "special reasons". (5) His Honour's interpolation of the adjective "powerful" to describe the "special reasons" needed to warrant a determination under s 13A should be read as an expression of the necessity of "special reasons" to be so persuasive as to warrant the making of a determination. His Honour was using the adjective "powerful" in a sense synonymous with "special". Accordingly his Honour did not err in the test he applied. (6) On the construction of "special reasons" postulated, it is reasonably open for an applicant under s 13A(4) to establish the existence of "special reasons." It follows that the legislation cannot be construed as a device by Parliament to ensure that such class of persons as the appellant would never be released from prison. Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 distinguished. (7) By s 13A(4) read with s 13A(3A) the Court is required to undertake a traditional and familiar judicial exercise, namely, the determination of factors which condition the power of the Court to afford relief to persons falling within a defined category. It therefore cannot be said that the legislation requires the Court to be a tool of the legislature. (8) The requirement of "special reasons" does not usurp judicial power. Legislative provisions that affect or change the weight to be given to relevant factors that the Court is required to assess when making a determination, even if the common law principle of proportionality of sentencing is overridden, are not a priori invalid: R v Moffatt [1998] 2 V.R. 229. (9) The fact that the legislation in question covers a small number of persons does not make it invalid: Polyukhovich v The Commonwealth (1991) 172 CLR 501 Nicholas v The Queen (1989) 193 CLR 173. (10) Inconsistency in the making of non-release recommendations does not negative the fact that such recommendations are an expression of a judicial view based upon the circumstances of a particular case. There is no principle of law that prevents Parliament from identifying such persons by reference to criteria that, while arbitrary, have a real connection with the gravity of their offences. Order Appeal dismissed.

[13]

The appeal and the grounds relied on by the appellant 2 This is an appeal against a decision by Greg James J whereby he declined to make a determination, pursuant to s 13A(4) of the Sentencing Act 1989, of a minimum term and an additional term in respect of a life sentence imposed upon the appellant by Taylor J. 3 On 20 June 1974, the appellant and Kevin Garry Crump were convicted of the murder of Mr Ian James Lamb, conspiracy to murder Mrs Virginia Gai Morse, and two counts of malicious wounding with intent to prevent lawful apprehension. Taylor J sentenced each of the offenders to life imprisonment for the murder, life imprisonment for the conspiracy to murder and 15 years hard labour for each of the two counts of malicious wounding. 4 The sentences for the counts of malicious wounding were concurrent with the life sentences and have expired. The appellant has been in custody since 13 November 1973, when he was arrested. 5 The application to Greg James J for a determination under s 13A(4) related to the life sentence imposed in respect of the murder of Mr Lamb. The appellant advanced three arguments in support of his appeal. Firstly, it was said that, despite the fact that the appellant sought a determination of a minimum term and an additional term under s 13A(4), Greg James J wrongly decided that the appellant was not eligible to make the application and did not proceed to decide whether a determination should be made. Secondly, it was said that, if Greg James J did make a determination under s 13A(4), he erred by applying an inappropriate test for the existence of "special reasons" under s 13A(3A). Thirdly, it was said that the Act which introduced sub-section (3A) in s 13A of the Sentencing Act (that is, the Sentencing Legislation Further Amendment Act 1997 No 6 "the Amending Act") was invalid in so far as it purported to vest functions in the Supreme Court of New South Wales which were incompatible with the exercise of the judicial power of the Commonwealth by that Court.

[15]

Prior to the coming into force of s 19A, a sentence of life imprisonment held the prospect of release on licence pursuant to s 463 of the Crimes Act in its then form. In Kalajzich (1997) 94 A Crim R 41 (at 48) Hunt CJ at CL said that release on licence was "a prospect which almost universally became fact". Nevertheless, such release was not inevitable. 7 In January 1990 the Sentencing Act 1989 was amended by the introduction of s 13A. That section allowed a prisoner serving an "existing life sentence" to apply to the Supreme Court for the determination of a minimum term and an additional term in substitution for the indeterminate life sentence. No distinction was then made between various categories of murder or offender. "Eligibility" to make an application depended solely upon the applicant having served at least eight years of the life sentence. 8 On 9 May 1997 the Amending Act came into force. This Act made significant changes to s 13A. Relevantly, it inserted in sub-s (1) the definition of "non-release recommendation", it replaced the existing sub-ss (3) and (9)(c), it altered sub-ss (8B) and (8C), and inserted sub-ss (3A), (4A), and (10A). In consequence of that amendment, s 13A read: "13A. Existing life sentences (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) …. (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) …. (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) …"

[17]

The facts relating to the offences 10 I shall deal firstly with the murder of Mr Lamb. 11 3 November 1973 Mr Lamb parked his motor vehicle in a fairly isolated locality near a rest area. He fell asleep, curled up on the front seat of the vehicle. The appellant and Crump were short of petrol and money and, finding Mr Lamb asleep, they approached the vehicle with the intention of robbing him. 12 In a signed record of interview the appellant described the course of events that followed: "Q.10 What happened then? A. Well we pulled in at the rest area, behind the car, we sat there for a while thinking it over and to see if any cars were coming on the road had gone. We both got out of the car, I got the rifle, I loaded it and I walked over to the car and I pointed the rifle through the window of the driver's side and I seen a man asleep on the front seat. Kevin looked in the back to see if he was by himself and he was. Q.11 What happened then? A. I knocked on the door with my hands and said, 'Hey you'. The bloke sat up and I pulled the trigger and shot him. It hit him in the voice box". 13 Thereafter the two offenders drove Mr Lamb's body and his motor vehicle to an isolated spot some 10 or 11 miles away and there abandoned the body and the vehicle. 14 I turn now to the conspiracy to murder Mrs Morse. 15 In October 1972, the appellant spent three weeks doing casual work on the property of Mr Brian Morse near Collarenebri. During this period he was brought meals by Mrs Morse and got to know the three Morse children. 16 On 28 October 1973 Crump joined the appellant in employment at Fairfield Station. On 2 November 1973 the employment temporarily ceased. On 3 November 1973 the appellant, accompanied by Crump, purchased a .308 rifle. On that day the appellant shot Mr Lamb with the rifle. 17 On 7 November 1973 the appellant and Crump began surveillance of Mr Morse's farm. They waited until Mr Morse had left the property and then gained entry to the homestead. They overpowered Mrs Morse and bound and gagged her. They ransacked the house and removed two rifles as well as other items. They carried Mrs Morse to her husband's car and drove with her to a vehicle they had stolen. There they bound her and while she was immobilised raped her. They then drove the car until they crossed the Queensland border where they stopped near the Patterson River. There Mrs Morse was again raped by both men. 18 At about this time Mrs Morse began to realise that the two men were likely to kill her. She pleaded with them and referred to her young children in piteous terms. This was to no avail. 19 The circumstances of Mrs Morse's murder were described by the applicant as follows: "She wasn't tied to the tree, her hands were tied in front of her with handkerchiefs, she wasn't crying because I think she was beyond that, she'd been crying most of the time, she was gagged and blindfolded. I aimed at her with the .308 and Kevin had the .22 and it was going to be like a firing squad and Kevin pulled the trigger and she fell to the ground before I could pull the trigger of my gun. If he hadn't of shot her, I would because we both decided to kill her because we done those terrible things to her and she would have been able to identify me because I used to work for her husband I know if she reported me we would be in a lot of trouble and she just had to be shot". 20 Crump shot Mrs Morse in the inside of her right eye because the appellant had told him: "If I shot her there it would probably kill her straight out".

[18]

The appellant was standing next to Crump and was aiming his gun at Mrs Morse when Crump shot her. 21 It seems that one of the appellant's motives for killing Mrs Morse was that he had a grievance against Mr Morse. In the proceedings before Sully J the appellant said that he was not "after" Mr Morse anymore and his feelings against Mr Morse had "stopped" when he "started getting professional help along the way". 22 The appellant and Crump were not charged with the murder of Mrs Morse but for the offence of conspiracy to murder her. This was because the murder took place in Queensland, outside the jurisdiction of the New South Wales courts. 23 The two counts of malicious wounding with intent to prevent lawful apprehension arose when the police apprehended the appellant and Crump and the two offenders shot at the police. 24 In regard to the murder of Mr Lamb, the appellant was the instigator, he had the gun (which he had loaded), and he fired the fatal shot. McInerney J, when dealing with an application by Crump to determine minimum and additional terms, said: "On the material before me I am satisfied that Baker was the ring leader in this murder. Further, I am of the opinion that Crump was closely attached to Baker and easily led by him." 25 In subsequent proceedings before Sully J, when the appellant first applied for a determination of minimum and additional terms, the appellant accepted in cross-examination that he was the dominant figure. He was asked to explain why he had caused Mrs Morse to be shot and replied: "A. I was standing behind Kevin Crump at the time. I had already committed a murder and told him it was going to be - I wanted him to shoot her. He was wanting to go back to the police about the first matter and I didn't want him to. Q. He wanted to go in and confess did he? A. Something like that, I don't know. Q. About the Lamb matter? A. Yes. Q. You didn't want him to do that? A. No. Q. So you wanted to put him on an equal basis with you? A. Yes. Q. So you got him to fire the shot? A. Yes. Q. But you were ready to fire one too weren't you? A. The first one with him yes. Q. And he got in first? A. Yes."

[20]

The earlier applications for determinations of minimum and additional terms 28 On 5 March 1990 Crump made an application for a determination of a minimum term and an additional term. On 10 December 1992 Loveday J refused the application. Crump's appeal to the Court of Criminal Appeal was dismissed and special leave to appeal against that decision was refused by the High Court. 29 On 10 May 1993, the appellant applied to Sully J for a similar determination, but it, too, was refused. In the course of his reasons Sully J said: "The two crimes for which the applicant was so convicted and sentenced were as wicked as can be imagined. The first crime involved the cold-blooded and point blank shooting of Mr Lamb. …. The body of the murdered man was left, quite literally, to rot. (W)hat was done to Mrs Morse is as terrible a tale of deliberate inhumanity as can be imagined, even in a society as plagued by violence and depravity as our own. There is, so far as I can see, no credible causal link between anything in the applicant's background and what he did to his two victims. This element of wantonness puts the applicant's conduct at the outer and upper limit of criminal culpability. …(T)he crimes here in question are so extreme that it can be accepted more readily than might be possible in a different type of case, that the 'general moral sense of the community' would accord precisely with the perception of Taylor J, that the applicant's case is one, if ever there was a case, where life imprisonment should mean exactly what it says. I do not think that it could be reasonably said by any Court that was trying to maintain public respect for and public confidence in the administration of criminal justice, that such an approach was disproportionate to the degree of criminality involved." 30 On 23 May 1994 this Court dismissed the appellant's appeal against Sully J's refusal. Gleeson CJ (the other judges of the Court being Smart and Studdert JJ) said: "Having considered the matters referred to in s 13A(9), including what is generally described by the legislation as any other relevant material, and having paid particular attention to evidence as to the appellant's prison history, and possible prospects of rehabilitation, Sully J reached his conclusion, adverse to the applicant, essentially upon the ground of the objective gravity of the crimes committed by the appellant. They were so heinous in their nature that, in his Honour's view, this is a case where life imprisonment should mean exactly what it says. The same view had previously been expressed by other judges who have dealt with the case. The implications of such a conclusion are such that it deserves the most careful consideration by this Court. Having given it such consideration, however, I am unable to conclude that his Honour was in error". 31 On 24 April 1997 McInerney J granted a second application by Crump for a determination of minimum and additional terms. Significantly, this decision was made before s 13A was amended by the Amending Act. His Honour imposed a minimum term of 30 years imprisonment on Crump for the murder of Mr Lamb. The additional term imposed was the remainder of Crump's natural life. For conspiring to murder Mrs Morse, his Honour specified a fixed term of 25 years. The latter expired on 12 November 1998. Crump is eligible for release on parole on 13 November 2003.

[21]

The ground of appeal that Greg James J decided merely that the appellant was not eligible to make the application and did not decline to make a determination. 32 Before proceeding to examine what Greg James J said in regard to the issues raised by this ground of appeal, I draw attention to the procedure contemplated by s 13A. 33 Section 13A(3) deals with eligibility to make an application for a determination. It provides that a person, who is the subject of a non-release recommendation, is not eligible to make an application for a determination unless that person has served at least 20 years of the sentence concerned. 34 Section 13A(3A) deals with eligibility "for the determination of a minimum term and an additional term". This is a different concept to eligibility to make an application for a determination. 35 By s 13A(3A) a person who is the subject of a non-release recommendation is not eligible for the determination of a minimum and additional term unless the Court "is satisfied that special reasons exist that justify making the determination". 36 It follows therefore that the first step in the process is to determine the eligibility of the applicant to make an application. If the applicant is so eligible, the second step is to determine whether, by virtue of the existence of special reasons, the applicant is eligible for the determination of a minimum and additional term. The third step is to make the determination. 37 Section 13(3A)(8) provides that if the Court declines to determine a minimum and additional term, it may direct that the applicant never re-apply under s 13A or not re-apply for a specified period. It follows that it is only after the Court declines to make a determination that it would consider whether to make a direction under s 13A(8). 38 I now turn to the approach adopted by Greg James J. 39 At the outset it is to be noted that the appellant accepted that the sentencing remarks of Taylor J constituted a non-release recommendation. In the circumstances, by s 13A(3), the appellant was only eligible to make an application for the determination of a minimum term and an additional term if he had served at least 20 years of his sentence. It was common ground, however, that he had indeed served more than 20 years of his sentence. Therefore, there was no question before Greg James J as to whether the appellant was eligible to make an application for a determination. 40 His Honour said (para 69) that it was important "to identify what matters are said to amount to the special reasons which it is submitted justify making the determination". The learned judge then proceeded to identify those reasons and he discussed these in detail. 41 His Honour then said (at para 123): "Having regard to the appropriateness of the sentence that should be passed, now, on this applicant for the crimes he has committed even with the knowledge of the man he now is, applying to the consideration of this application the approach referred to in Cribb (NSWCCA, unreported, 4 November 1994) and the other authorities to which I have referred, but having regard to the statutory criteria as are applicable to an application commenced when this application was, I conclude that, notwithstanding the reasons asserted, the applicant is ineligible for the determination sought". 42 Inasmuch as there was no contest as to whether the appellant was eligible to make an application as provided by s 13A(3), and as the "statutory criteria" to which his Honour referred were the "special reasons" under s 13A(3A), it seems plain that his Honour's conclusion was that the appellant was "not eligible for the determination of a minimum term and an additional term" as provided by s 13A(3A). This is reinforced by the concluding words used by the judge in the passage quoted, namely,: "I conclude that, notwithstanding the [special] reasons asserted, the applicant is ineligible for the determination sought". 43 In the next paragraph of his Honour's judgment he stated: "I see no basis upon which I should give a direction either under subs (8)(a) or (b)".

[24]

The meaning of "special reasons" 50 The Act does not give any definition of the phrase "special reasons" in s 13A(3A). This and similar phrases - such as "special circumstances" or "special grounds" - are not infrequently found in legislation and, generally, courts do not have great difficulty in construing them. There is, however, in this case a particular problem as it is difficult to give real content to the meaning of the phrase. 51 It is first to be noticed that any person serving an existing life sentence may apply to the Court under s 13A for a determination of a minimum and additional term. The criteria referred to in subss (4A), (9) and (10A) apply to all such applications, that is, irrespective of whether or not the application is made by a person who is the subject of a non-release recommendation. 52 In other words, when an applicant is the subject of a non-release recommendation, the Court must take into account the very same factors as have to be considered when the applicant is not the subject of a non-release recommendation. The Court will be required to weigh identical factors in each case. 53 What then is meant by "special reasons"? In the context I have described, it seems to me that the phrase was intended to raise the threshold of satisfaction of the Court in deciding whether to make a determination of a minimum and additional term. Thus, reasons that, in the ordinary course, might persuade a court to make a determination, would be insufficient in the case of those subject to non-release recommendations. For persons in the latter category, the reasons must be "special". In this sense, the reasons must be out of the ordinary, unusual, and not to be expected: cf United Mexican States v Cabal (2001) 75 ALJR 1663 (at 1673), O'Hare v DPP (2000) NSWSC 430, B v Gould and DPP (1993) 67 A Crim R 297 at 300. 54 In R v Simpson [2001] NSWCCA 534 Spigelman CJ said the following about the phrase "special circumstances" in s 44 of the Crimes (Sentencing Procedure) Act 1999. "59. The words 'special circumstances' appear in numerous statutory provisions. They are words of indeterminate reference and will always take their colour from their surroundings. … 60. Statutory words of such generality usually lead courts to refuse to identify in advance a list of matters capable of satisfying the statutory formulation. Whilst certain considerations might not often be sufficiently 'special', so that an exceptional justification is required for them to attain the requisite statutory quality, nevertheless there may always be circumstances in which such a factor is of sufficient strength, either alone or in combination with other factors, to justify a conclusion that 'special circumstances' are made out on the facts of a particular case. It will be comparatively rare for an issue to arise in terms of a proposition that a particular circumstance is incapable, as a matter of law, of ever constituting a 'special circumstance'". 55 I do not think it necessary or desirable to make any further attempt to define the meaning of special reasons. I shall give some examples, however, of reasons that might conceivably be regarded as special. These are not intended to be in any way exhaustive. Particularly, meritorious service to prison authorities or other prisoners or to the broader community might be regarded as giving rise to a special reason. This kind of service might involve the giving of information leading to the recovery of stolen goods, or the apprehension of other criminals. Affording - to an unusual degree - psychological comfort and assistance to other prisoners could also qualify under the rubric. So could providing assistance - to an unusual degree - to prison authorities, generally. Any combination of reasons, whether intrinsically "special" or not, could amount to special reasons. It would often be a matter of degree. 56 As the rehabilitation of a prisoner is a goal of imprisonment, it would not ordinarily be regarded as a special reason. Not every prisoner is rehabilitated, but many are, and the mere fact of rehabilitation would not readily be regarded as "special". On the other hand, the degree of rehabilitation may be so marked, or, rehabilitation, when coupled with other factors, may be so compelling as to give rise to "special reasons". 57 Greg James J, in dealing with the meaning to be attributed to "special reasons", said (at para 68): "It would seem that the special reasons justifying the making of the determination must be such as would warrant not applying a non-release recommendation and accompanying comments that the offender is never to be released. In this case, bearing in mind those recommendations, observations and comments of the trial judge I have set out, the surrounding circumstances and other offences, to justify the determination, the reasons would have to be so powerful and, thus, special that it is not necessary for me to further consider the precise ambit of that term 'special' in this context. I cannot envisage reasons that could have such an effect which would not, in this context, be special".

[25]

Later, his Honour said (at para 84): "My not granting this application, however, may mean that the applicant would only practically be able to reapply in changed circumstances so powerful in effect, as to have that special character I have referred to as special reasons". 58 The appellant submitted that the test enunciated by Greg James J was too demanding a burden to be placed on him and his Honour committed a fundamental error in this respect. 59 I accept that the adjective, "powerful", is undesirable as it may suggest a standard more difficult to attain than "special". In my view, however, in using the word, "powerful", Greg James J was saying no more than that the special reasons needed to be so persuasive (in the light of the criteria laid down by s 13A) as to warrant the making of a determination. In my view, his Honour was merely attempting to express the notion of the higher standard required by Parliament in the case of persons subject to non-release recommendations. In other words, I consider that his Honour was using the adjective "powerful" in a sense synonymous with "special". 60 On this basis, I do not think that his Honour erred in the test he applied. Moreover, when regard is had to the reasoning of his Honour which led him to the conclusion that he should decline to make a determination, no error is apparent. 61 Mr Zahra SC, senior counsel for the appellant, fairly conceded that in the particular circumstances a decision to decline to make a determination was within his Honour's discretion. For my part, applying the test of "special reasons" in the sense that I have explained it, I would come to precisely the same conclusion as his Honour. 62 I think it appropriate to explain the conclusion set out in the last paragraph. This involves canvassing matters not raised by Mr Zahra in oral argument (although referred to in his written submissions). 63 In the written submissions it was submitted that there were four reasons that constituted special reasons within the meaning of s 13A(3A). These were: "(1) Parity with Crump's position following the determination of his life sentence. (2) The length of time in custody since arrest, together with Mr Baker's youth as at the offence. (3) Rehabilitation and low risk of recidivism. (4) The reduction by the legislature of the maximum penalty for conspiracy to murder (from life to 25 years) since Mr Bakers conviction." 64 In my view there is no relevant parity between the appellant and Crump. I have drawn attention to the evidence that demonstrated that the appellant was the dominant figure in the commission of the offences. The evidence reveals that the degree of criminality on his part was significantly greater than that of Crump and this was the finding of McInerney J. 65 Additionally, the legislation governing applications for determinations of minimum and additional terms were significantly different when Crump made his application to McInerney J. Firstly, there was no requirement as to special reasons. Secondly, McInerney J accepted that, in deciding whether or not to make a determination, he was required only to have regard to the seriousness of the offence of murder and should not take into account the criminality involved in the conspiracy to murder Mrs Morse. 66 In the circumstances I consider that the principles of parity have no application. 67 I now come to "the length of time in custody since arrest, together with Mr Baker's youth as at the offence". The appellant has been in custody since 13 November 1973. At the time of the judgment of Greg James J a period of some 27 ½ years had passed since he was first incarcerated. The appellant was born on 16 January 1948. At the time of the offences he was aged 24 years 10 months. I do not regard these matters as constituting special reasons. They are simply ordinary and inevitable consequences of the fact that the appellant committed the offences at a relatively young age. 68 As regards rehabilitation and the low risk of recidivism, Greg James J found that (at para 122): "[i]t may be accepted, in the light of all that material, that with proper management within the prison community prior to any release, the risk of future dangerousness or recidivism is very low. Indeed, the prospect of rehabilitation is very good". 69 For the reasons I have stated, I do not accept that successful rehabilitation, a very low risk to the safety of the community and a very low risk of re-offending are special reasons. After all, these consequences are the very aims of imprisonment. True it is that in many cases rehabilitation to a marked degree is not achieved and the risk of re-offending remains. Nevertheless, there are many cases where prisoners undergo marked changes of personality and attitude, where the prison system does achieve rehabilitation, and where the risk of re-offending is nil or almost nil. These matters, on their own, or in combination with each other (and without regard to any other significant reason) in my view, do not constitute special reasons. 70 I do not accept that the reduction by the legislature of the maximum penalty for conspiracy to murder (from life to 25 years) since the appellant's conviction constitutes special reasons. The essential criminality of the appellant's conduct in regard to the offence against Mrs Morse remains unaltered. 71 I should also say, that, in my opinion, when the matters relied on by the appellant are taken together they do not amount to special reasons. The combination of these matters cannot be regarded as being out of the ordinary. 72 Accordingly, I would not accept the second argument raised on the appellant's behalf.

[27]

The court as an administrative agent of the legislature 75 The appellant's first argument under this ground was that the challenged legislation makes it impossible for a person subject to a non-release recommendation to obtain ultimate release from prison. It was said: "If the test for 'special reasons' is not [remedial] but in reality is a test which is impossible of practical attainment, then it is submitted that the real purpose behind the legislation is not to ensure that a certain category of persons serving life sentences have some prospect, in a real sense, of having those sentences determined but rather is a mechanism for ensuring precisely the opposite". 76 I accept that if the legislation is a mere charade that does not, in truth, require the judicial function to be performed, the statute will be invalid. This would be the case if "special reasons" could never reasonably be established. In that event, the court would merely act as an administrative arm of the legislature to ensure that a person subject to a non-release recommendation would remain in prison. 77 In my view, however, on the construction of "special reasons" that I have propounded, it is indeed reasonably open for an applicant subject to a non-release recommendation to prove that special reasons justifying a determination under s 13A(4) exist. I do not accept, therefore, that the legislation is a device by Parliament to ensure that persons such as the appellant would never be released from prison. I would not uphold this argument. 78 The appellant argued next that the legislation altered a pre-existing sentencing regime to make it significantly more difficult for a particular category of persons to obtain ultimate release. Again, it was submitted that the true intention of the legislation was to ensure that the appellant (and the others who were subject to non-release recommendations) would never be released from gaol. 79 In essence, this argument is closely allied to the first argument, namely, that based on the proposition that the test for special reasons is impossible of practical attainment. Underlying this contention is the proposition that the procedure required by s 13A(3A) and (4) involves the court being used merely to cloak refusals of s 13A(4) applications with an illusion of due process and probity. 80 The first element of this argument is that some significance flows from the fact that the Amending Act altered a pre-existing sentencing regime. 81 Prior to the Amending Act, the appellant had no accrued right to make an application for a determination. As Studdert J (with whom Gleeson CJ and Smart J agreed) said in the appeal from the judgment of Sully J refusing the appellant's application for a determination of his life sentence (see R v Baker unreported, NSWCCA, 23 May 1994 (at p 9)): "It is true that the majority of the applications made pursuant to s 13A(4) of the Sentencing Act thus far have proved successful. However, obviously each case must be considered on its merits and an applicant for a determinate sentence has no automatic entitlement under the section as indeed s 13A(4(d) recognises: the Court may 'decline to determine a minimum term and an additional term'". 82 No authority has been submitted to the Court that supports the proposition that the State Parliament is not empowered to alter sentencing laws applicable to existing offenders. There is no reason in principle that precludes Parliament from so legislating. In my view, it is irrelevant that, prior to the Amending Act, there was no requirement for special reasons. 83 I turn next to the argument based on difficulty of proof. 84 I do not accept that proof of special reasons is so difficult as to have the practical result that persons subject to non-release recommendations will never be released from prison. I have given examples of factors that could constitute special reasons and I have pointed out that a combination of reasons, even if none is independently "special", may constitute special reasons. I repeat my opinion that it is reasonably open for an applicant subject to a non-release recommendation to prove that special reasons exist, justifying a determination under s 13A(4). 85 In my view, a determination of minimum and additional terms in relation to a person subject to a non-release recommendation involves the making of a decision in accordance with the customary judicial method. By s 13A(4) read with s 13A(3A) the Court is required to undertake a traditional and familiar judicial exercise, namely, the determination of the existence of factors which condition the power of the Court to afford relief to persons falling within a defined category. Having found that the factors exist, the Court is required to exercise a judicial discretion in determining whether relief should be granted. The argument that the legislation requires the court to be a tool of the legislature is far-fetched.

[28]

Usurpation of judicial power 86 The appellant argued next that, by the Amending Act, Parliament was seeking, impermissibly, to dictate how the power of judicial discretion would operate (see Kirby J in Nicholas v The Queen (1998) 193 CLR 173 at 257). This, it was submitted, constituted an impermissible usurpation of judicial power. 87 There can be no question, as I have already stated, that the determination of the existence of special reasons requires the court to make a judgment in the traditional way and then to exercise its discretion. The appellant's real complaint under this head, it seems to me, is that, by the legislation, Parliament has altered the weight to be attached to the relevant factors the court is required to assess when making such a determination. 88 I have expressed the view that special reasons are reasons that are unusual, out of the ordinary and not to be expected. I have concluded that the rehabilitation that often results from long-term incarceration would not, on its own, be regarded as special as this consequence is one of the very goals of imprisonment and is not extraordinary. Thus the requirement of special reasons reduces the value that would otherwise be attributed to rehabilitation and remorse when making a determination under s 13A(4) involving a person subject to a non-release recommendation. At the same time, the special reasons requirement (read with the whole of s13A) has the effect of shoring up the importance to be attached to the gravity of the crime and the views of the original sentencing judge. 89 It follows that, by introducing the requirement of special reasons, Parliament has made legislative provisions that affect the relative importance to be given to particular factors to be taken into account in the sentencing process. 90 The common law recognises the fundamental principle of proportionality in sentencing which "does not permit the increase of a sentence of imprisonment beyond what is proportional to the crime merely for the purpose of extending the protection of society from the recidivism of the offender" (Chester v R (1988) 165 CLR 611 (at 618)). It does not follow, however, that legislation altering this common law rule is invalid. 91 A similar exercise of legislative power takes place when Parliaments legislate for various forms of preventative detention. In such legislation, Parliament overrides the common law principles of proportionality of sentence. Nevertheless, such legislation is recognised as being valid. 92 For example, in R v Moffatt [1998] 2 V.R. 229 Winneke P said (at 234): "It is, of course, one thing to accept that the legislation can be criticised because it invests the court with power to impose a sentence which offends contemporary sentencing standards, and does so in terms which raise difficulties of construction; it is an entirely different thing to conclude that it is beyond the power of the State legislature to invest its courts with such a discretion."

[31]

But the existence of these common law principles does not mean that the legislature may not provide that the courts may impose indefinite sentences in certain circumstances on persons found guilty of offences or even go so far as to require the courts to impose such sentences on such persons. Leaving aside questions of incompatibility of legislation with the Commonwealth Constitution, the power of the State Parliaments to make laws with respect to sentencing offenders is not fettered. It may be that Dicey's precept that Parliament is sovereign is not a sufficient answer to every question concerning the limits of State legislative power, but there is, in my view, no basis for concluding that a State Parliament cannot, by suitably worded legislation, determine what kinds of a sentence may be imposed and, if thought fit, change the principles to be applied by courts in sentencing offenders for crime". 93 The legislation presently under consideration does not intrude into the essential judicial function of exercising, impartially, an objective and independent discretion. The court is not required to exercise power in a manner that is inconsistent with the judicial process: see Kable at 98 per Toohey J. The Act does not compromise the institutional impartiality of the court, nor does it undermine the ordinary safeguards of the judicial process: see Kable at 121 per McHugh J. Nothing that the court is required to do by the legislation would cause any loss of confidence in the judicial process. In my view, the introduction of the requirement of special reasons did not usurp judicial power. The limited number of persons affected by the special reasons requirement 94 It is common ground that the special reasons requirement under s 13A(3A) has application to a very limited number of prisoners, namely, it is said, nine. These are the prisoners subject to non-release recommendations. Mr Zahra argued that, for this reason, the special reasons requirement should be categorised as ad hominem legislation that results in unequal justice. 95 At the outset it is to be noted that the mere fact that legislation is aimed at a small number of persons does not make it invalid. 96 In Polyukhovich v The Commonwealth (War Crimes Act Case) (1991) 172 CLR 501 (at 689) Toohey J said in regard to the War Crimes legislation considered in that case (which applied to a limited number of potential offenders): "It is only if a law purports to operate in such a way as to require a court to act contrary to accepted notions of judicial power that a contravention of Ch III may be involved".

[32]

The legislation was held not to be invalid. 97 In Nicholas v The Queen the legislation under consideration concerned relatively few persons (according to Kirby J, the number was five - see at 250). Nevertheless, the legislation was held not to be invalid. Hayne J in referring to the fact that the legislation applied to only a small group of cases, said (at 277): "First, however, it is to be noted that the legislation deals only with the reception of evidence; it does not deal directly with issues of guilt or innocence of any offence charged against those in whose prosecutions the evidence may be led. Secondly, the mere fact that it may be possible to identify all the persons in relation to whom s 15X applies does not mean that the legislation interferes with the judicial power. Where legislation deals only with events which have happened before the legislation comes into effect, it must always be possible, at least theoretically, to identify all cases to which the legislation may apply; the events have happened and can, in theory, be identified. That has not hitherto been seen as a sufficient reason to conclude that the legislation is invalid … The number of cases affected may be a relevant consideration but I doubt that it is a sure guide to validity and I do not rest my decision only on whether the provisions which are now under consideration affect five or six persons rather than one or two (or five or six rather than 500 or 600). For present purposes it is enough to say that because the legislation does not deal directly with ultimate issues of guilt or innocence but only with whether evidence of only one of several elements of an offence can be received and deals not with a single identified, or identifiable, prosecution but with several prosecutions (albeit prosecutions which I assume can be identified and are relatively few) it does not have the character of a bill of attainder or like impermissible interference in the judicial process." 98 The provisions relating to a determination of minimum and additional terms in relation to persons subject to non-release recommendations, similarly, do not have the character of a bill of attainder or like impermissible interference in the judicial process. 99 The Amending Act does not prejudge issues with respect to particular individuals and require the court to act accordingly (cf the remarks of Mason CJ, Dawson and McHugh JJ in Leeth v Commonwealth (1992) 174 CLR 455 at 469 to 470 when dealing with an argument based on Liyanage v The Queen (1967) 1 AC 259, similar to that advanced by the appellant). The legislation does not require the court to act contrary to accepted notions of judicial power (cf Toohey J in Polyukhovich at 689) and is vastly different to that in Liyanage v The Queen. It does not "legislate ex post facto the detention of particular persons charged with particular offences on a particular occasion" (per Toohey J in Nicholas at 203). It does not bring down "a "legislative judgment" directed against specific individuals; it does not "serve to inflict punishment on specified persons without a judicial trial or to adjudge criminal guilt," and it does not direct the court "not to make a finding concerning rights or duties that an accused person would otherwise be entitled to under the existing law or to change the direction or outcome of pending judicial proceedings" (see the remarks of McHugh J in Nicholas at 221). Nor does it direct the court to disregard facts that are critical in exercising a discretion that is necessary to protect the integrity of the courts and to maintain public confidence in the administration of criminal justice (see the further remarks of McHugh J in Nicholas at 221). In my view it neither infringes the requirements of equal justice nor prevents the independent determination of the matter in issue (see Gaudron J in Nicholas at 212). 100 Accordingly, in my view, the mere fact that the legislation applies only to nine persons does not make it invalid.

[33]

Arbitrary aspects of the non-release recommendation category and the assertion of inequality before the law 101 Mr Zahra submitted that the qualification for the category of those subject to the non-release recommendations was based upon an arbitrary decision by a sentencing judge to describe the offender as not being suitable for future release. He pointed out that this was a categorisation that did not have the force of law; it did not form part of the sentencing process at the time and no appeal lay against it. Further, he submitted that it is apparent from the parliamentary debate on the subject that the impetus behind the Amending Act was the determination by McInerney J of a minimum term and an additional term in regard to the sentence imposed on Crump. Finally, under this head, he argued that the categorisation has not been applied evenly by Supreme Court judges; he submitted that a significant number of offenders sentenced before January 1990, whose criminality equals or exceeds that of the appellant, avoided such a recommendation being made due to the sentencing approach of the judge concerned. 102 I accept that the qualification for the category of those subject to the non-release recommendations is based upon a statement made arbitrarily by a sentencing judge (in the sense that the judge was not bound to make such a statement and the statement, when made, did not have the force of law). It is correct that such a statement did not form part of the sentencing process at the time and no appeal lay against it. I accept that the criteria in question may lead to uneven consequences. I also accept that the decision of McInerney J played a large part in Parliament deciding to enact the Amending Act. It is correct that there has been inconsistency in the making of non-release recommendations. 103 It is to be borne in mind, however, that the persons the subject of non-release recommendations are all persons who committed crimes of the most serious nature and who, at the time of sentencing, constituted a real and serious danger to the safety of the community. They are persons in respect of whom the sentencing judge in each case was moved to make a non-release recommendation. Thus, the definition of the category of persons subject to a non-release recommendation involves an expression of a judicial view, based upon the circumstances of the particular case. 104 In any event, I do not regard the arbitrary nature and other criticisms of the category of persons subject to non-release recommendations as being relevant to the validity of the legislation in question. 105 It cannot be gainsaid that persons subject to non-release recommendations are persons who have committed appalling crimes. There is no principle of law that prevents Parliament from identifying such persons by reference to criteria that, while arbitrary, have a real connection with the gravity of their offences and enacting sentencing laws applicable to them. If Parliament requires the courts to treat persons in such a way that one particular law is to have different consequences for different individuals, that might well constitute unequal treatment before the law. But that is not the case with the challenged legislation. 106 Essentially, the appellant's complaints go to the fairness of the legislation. Ordinarily, that is no concern of the court. Tangentially, questions of fairness may be relevant when the court has to make a value judgment in determining whether legislation impermissibly infringes the judicial power (per Kirby J in Nicholas at 263). That value judgment, however, has to be made in the light of the following criteria, stated by Gaudron J in Nicholas (at 208-209): "In my view, consistency with the essential character of a court and with the nature of judicial power necessitates that a court not be required or authorised to proceed in a manner that does not ensure equality before the law, impartiality and the appearance of impartiality, the right of a party to meet the case made against him or her, the independent determination of the matter in controversy by application of the law to facts determined in accordance with rules and procedures which truly permit the facts to be ascertained and, in the case of criminal proceedings, the determination of guilt or innocence by means of a fair trial according to law. It means, moreover, that a court cannot be required or authorised to proceed in any manner which involves an abuse of process, which would render its proceedings inefficacious, or which brings or tends to bring the administration of justice into disrepute".

At a glance

Court

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Judgment (36 paragraphs)

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Cases Cited (8)