JUDGMENT
1 HIS HONOUR: On 28 November 1996, the applicant, Bronson Mathew Blessington made an application for re-determination of his life sentence pursuant to s 13A Sentencing Act 1989 as it then stood, and by Notice of Motion filed 19 August 2004 he seeks the separate determination of the questions identified in the annexure to such Notice of Motion.
2 Mr Basten QC and Ms Burgess appeared for the Applicant and the Crown Advocate (Mr R D Cogswell SC) and Ms Mitchelmore appeared for the Crown. The applicant contends inter alia that some of the statutory provisions relied on by the Crown are inconsistent with Chapter III of the Commonwealth Constitution and accordingly notice of the proceedings was given to the Attorney General of each of the States and Territories pursuant to s 78B Judiciary Act 1903 (Cth) and the Crown Advocate and Ms Mitchelmore also appear to intervene on behalf of the Attorney General of New South Wales, but only on the constitutional issues. The other State and Territory Attorneys General indicated that they did not wish to be heard.
3 On 8 September 1988, a group of five "street kids" who had no fixed place of abode including the Applicant, then aged 14, abducted Janine Balding from the car park at Sutherland Railway Station in her own car, sexually assaulted her and then drowned her in a dam near Minchinbury. Some of her jewellery and personal possessions were taken.
4 The Applicant was tried along with Mathew James Elliott and Steven Wayne Jamieson and, following trial by jury, he was convicted of murder, abduction, sexual intercourse without consent, robbery and other charges. Not only was he aged only 14 at the time of the offences but he and his co-offenders were "street kids" accustomed to sleeping on park benches and in empty railway carriages, and psychiatric evidence adduced on the sentencing proceedings indicated that his mental age at the time was even lower, and he was illiterate. The psychiatrist who examined him for the purpose of the sentencing proceedings considered that he had an abnormality of mind from an inherent cause present at the time of the offence, which fitted the criteria for a defence of diminished responsibility, although no such defence had been raised during the course of the trial. Reports from the Department of Youth and Community Services indicated that the applicant had made excellent progress during his period of detention whilst awaiting trial.
5 After sentencing each of the prisoners for the various other offences, Newman J dealt with the murder, and after dealing with Jamieson went on:
"In the case of the two youths, Elliott and Blessington, I find this to be a difficult task, difficult because of their extreme youth, difficult in terms of the principles of law to which I have to apply. To sentence prisoners so young to a long term of imprisonment is, of course, a heavy task. However, the facts surrounding the commission of these crimes are so barbaric that I believe I have no alternative other than to impose upon both young prisoners, even despite their age, a life sentence. So grave is the nature of this case that I recommend that none of the prisoners in the matter should ever be released ." (my underlining)
6 The applicant abandoned his appeal against his conviction and along with Elliott sought leave to appeal against his sentence: R v Jamieson, Elliott and Blessington (1992) 60 A Crim R 68. In dismissing the appeal, Gleeson CJ, with whom Hope AJA and Lee AJ agreed, said that notwithstanding the youth of the appellants, the imposition of a life sentence was well within the range of the trial judge's sentencing discretion, that there was no error of fact or principle in the Remarks on Sentence and the sentences could not be characterised as manifestly excessive. He went on:
"Under the relevant legislation, the appellants will have the right, after the lapse of a certain period of time, to apply to a Judge of this Court to change the indeterminate sentences to determinate sentences. A decision in that regard can then be made in the light of all the relevant factors, including the custodial history of the appellants up until the date of the application.
With respect to the learned sentencing judge however, I have a problem concerning his recommendation that the appellant should never be released. Counsel agreed that this would have no legal effect if and when an application to fix a determinate sentence is made. There does not appear to have been any statutory basis for the making of the "recommendation", nor, for that matter does there seem to be any statutory basis for appealing against it. Even so, I think it appropriate to express the view that, especially where the offender is a young person, and there are so many different possibilities as to what might happen in the future, it is normally not appropriate for a sentencing judge to seek to anticipate decisions that might fall to be made by other persons, and in other proceedings, or under other legislation, over the ensuing decades. For that reason, I should indicate that I do no support the recommendation made by Newman J."
7 The "relevant legislation" to which his Honour was referring was s 13A of the Sentencing Act 1989 (the 1989 Act) which was introduced by the Sentencing (Life Sentences) Amendment Act 1989 which commenced from 12 January 1990 and permitted persons such as the applicant, after serving 8 years of his or her sentence, to apply to the Supreme Court for the determination of a minimum term and an additional term of the sentence.
8 At the time the applicant committed the offence, a person subject to life imprisonment in New South Wales had an opportunity for release on licence pursuant to s 463 of the Crimes Act 1900 as then in force. Release on Licence, under the old scheme was a prospect which almost universally became fact, although such release was not inevitable.
9 In November 1993, the 1989 Act was amended by the Sentencing (Life Sentences) Amendment Act 1993 which inserted subs (8)-(8B) into s 13A. The effect of this amendment was that in cases where the Court refused to specify a term, it might direct that the offender never re-apply to the Court for such determination or that he not re-apply for a specified period. As noted above, on 28 November 1996, the applicant applied for a re-determination of his life sentence.
10 The Sentencing Legislation Further Amendment Act 1997 No 6 (the 1997 Act) was assented to on 9 May 1996. That Act which commenced on the date of assent amended s 13A by inserting a definition of "non-release recommendation" as follows:
"Non-release recommendation, in relation to 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."
11 It also amended s 13A (3) and (3A) to read as follows:
(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 the 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 persons' application under this section, is satisfied that special reasons exist that justify making the determination.
12 Part 3 of Schedule 2A contained transitional provisions consequent upon the amendments effected by the Act. Clause 8 (1) read as follows:
The amendments made by the amending Act to section 13A do not apply to an application made by any person under that section that was pending immediately before the day on which the Bill for the amending Act was introduced into Parliament. However, they apply to any application made by such a person under section 13A on or after that day.
13 The applicant was therefore not affected by the amendments which would have required him to wait 20 years before making an application because his application was pending immediately before the day on which the Bill for the amending Act was introduced into Parliament. However, on the next sitting day of Parliament, the Sentencing Amendment (Transitional) Act 1997 No 8 (the Transitional Act) was introduced and this Act was assented to on 20 May 1997. It amended clause 8(1) of Schedule 2A of the earlier Act by providing that the amendments made by the Amending Act to s 13A applied in relation to an application made by any person under that section before the date on which the Bill of the Amending Act was introduced into Parliament, as well as in relation to applications made after that date, unless the application had been fully dealt with prior to the date on which the Transitional Act was introduced into Parliament.
14 It is agreed that the present applicant is the only person affected by the Transitional Act in that he is the only person who, having been sentenced to life imprisonment with a non-release recommendation had an application on foot prior to the introduction of the 1997 Act (No 6).
15 The Sentencing Act 1989 was repealed by the Crimes Legislation Amendment (Sentencing) Act 1999 No 94 and replaced by the Crimes (Sentencing Procedure) Act 1999 No 92 (the 1999 Act). Section 44 (5) of that Act, now subs (4), provides that Schedule 1 have effect in relation to existing life sentences and Schedule 1 substantially reproduces the provisions of s 13A of the 1989 Act.
16 The transitional provisions of the 1999 Act are contained in Schedule 2 of that Act, and clause 21 of that Schedule provides that any application under s 13A of the 1989 Act that had been made but not determined before the commencement of the appointed day is to be determined in accordance with Schedule 1 to that Act, but this provision does not apply to an application referred to in clause 8 (1) of Schedule 2A to the 1989 Act as in force immediately before the appointed day which was 3 April 2000.
17 Schedule 1 of the 1989 Act was further amended by the Crimes Legislation Amendment (Existing Life Sentences) Act 2001 No 29 (the 2001 Act) which commenced on 20 July 2001. It inserted in clause 1 of Schedule 1 a definition of "sentencing court" as follows:
"sentencing court, in relation to an offender who has been resentenced as a result of a re-trial or other appeal proceedings, includes both the court by which a penalty was originally imposed for the offence and the court (whether the same court or a different court) by which a penalty was finally imposed for the offence."
18 It also increased from 20 years to 30 years the period of time that must elapse before a non-release recommendation prisoner is eligible to make an application for re-determination, and inserted a new sub clause (3) in clause 4 providing that even if the Court set a non-parole period in respect of non-release recommendation prisoners, it did not have jurisdiction to set a specified term for the sentence; so that in effect they would remain on parole for life.
19 That Act also added clause 39(a) to Schedule 2 of the 1999 Act which provided that the amendments made by the 2001 Act do not affect any proceedings before the Supreme Court on an application under clause 2 of Schedule 1 to the 1999 Act which had been made, but not disposed of, before the commencement of those amendments.