Regina v Bronson Mathew Blessington

Baker v The Queen (2004) 210 ALR 1 Kable v The Director of Public Prosecutions (NSW) (1996) 189 CLR 51 CASES CITED : R v Jamieson, Elliott and Blessington (1992) 60 A Crim R 68 R v Veen [2000] NSWSC 656

PARTIES : Regina v Bronson Mathew Blessington

R D Cogswell SC / A Mitchelmore - Crown COUNSEL : J Basten QC / R W Burgess - Applicant

I V Knight - Crown SOLICITORS : S O'Connor - Applicant

• 17 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

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.

20 The 2001 Act also inserted s 154A into the Crimes (Administration of Sentences) Act 1999, as follows: 154A Serious offenders the subject of non-release recommendations (1) Section 143 does not require the Parole Board to give preliminary consideration as to whether or not a serious offender the subject of a non-release recommendation should be released on parole unless an application for that purpose is made to the Parole Board by or on behalf of the offender. (2) An application under this section must be lodged with the Secretary of the Parole Board. (3) After considering the application, the Parole Board may make an order directing the release of the offender on parole if, and only if, the Parole Board: (a) is satisfied (on the basis of a report prepared by the Chief Executive Officer of the Corrections Health Service) that the offender: (i) is in imminent danger of dying, or is incapacitated to the extent that he or she no longer has the physical ability to do harm to any person, and (ii) has demonstrated that he or she does not pose a risk to the community, and (b) is further satisfied that, because of those circumstances, the making of such an order is justified. (4) In this section serious offender the subject of a non-release recommendation means a serious offender: (a) who is serving a sentence for which a determination has been made under clause 4 of Schedule 1 to the Crimes (Sentencing Procedure) Act 1999, and (b) who is the subject of a non-release recommendation within the meaning of that Schedule.

Question 1 - On the assumption that the relevant provisions are valid laws and otherwise have application to the Applicant, has the applicant been, on and from the commencement of the Sentencing Legislation Further Amendment Act 1997 (NSW) on 9 May 1997, a person "the subject of a non-release recommendation" within the meaning of- (a) section 13A(3)(b) of the Sentencing Act 1989, and (b) clause 2(2)(b) of Schedule 1 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ? 21 On their face the words of Newman J clearly constitute a non-release recommendation which by definition both in the Sentencing Act 1989 s 13A(1) and the Crimes (Sentencing Procedure) Act 1989, Schedule 1 cl 1 means a "recommendation or observation or any expression of opinion by the sentencing court that (or to the effect that) the person should never be released from imprisonment". 22 Formerly, the 1989 Act referred to a recommendation by the "original sentencing court" and that phrase clearly encompassed Newman J. The 1999 Act refers to the "sentencing court" which term is itself defined but only to widen the definition to include courts other than the original sentencing court, such as courts on appeal and re-trial. 23 It is true that in relation to this offender, Gleeson CJ speaking for the Court of Criminal Appeal expressed the view (to put it at its highest) that such recommendation should not have been made, but he also pointed out that there was apparently no statutory basis for the making of the recommendation, nor any statutory basis for appealing against it. Consequently, the Court of Criminal Appeal made no order in respect of the recommendation and it remained in force, although it had no binding effect. 24 Questions 1 (a) and (b) should be answered "yes".

Question 2 - If the answer to question 1(a) is yes, and on the assumption the provision had a valid operation in relation to the Applicant, did the replacement of sub-s13A(3) by Schedule 1, item [2] of the Sentencing Legislation Further Amendment Act 1997 apply to the application made by the applicant on 4 December 1996? 25 The Sentencing Legislation Further Amendment Act 1997 No 6 (the 1967 Act) introduced the special category of "non-release recommendation" prisoners and made 3 significant alterations to the legislation in respect of them. Firstly, it provided they were not eligible to make an application unless they had served 20 years of the sentence; secondly, they were not eligible for a determination unless the Court was satisfied "special reasons" existed that justified the making of the application; and thirdly (and this applied to all applicants), the Court in considering the application was to have regard to and give substantial weight to any relevant recommendations etc of the original sentencing court. Other amendments increased from 2 to 3 years the time after which a subsequent application could be made. 26 The transitional provisions inserted in Schedule 2A clause 8(1) provided that the amendments did not apply to an application made under that section which was pending immediately before the day the Bill was introduced into Parliament - that is 8 May 1997. At that time, the applicant had made an application (on 28 November 1996), which was valid when it was made, or "duly made", and so the amendments effected by the 1967 Act did not apply to him. 27 Question 2 should be answered "no". In particular, he did not have to wait 30 years before making his application (he had already made it) and he did not have to satisfy the Court that "special reasons" existed which justified the making of the application.

Question 3 - If the answer to question 1(a) is yes, and the answer to question 2 is no, did the replacement of sub-s 13A(3) by Schedule 1, item [2] of the Sentencing Legislation Further Amendment Act 1997 apply to the application made by the applicant on 4 December 1996, by reason of the new clause 8(1) inserted into Schedule 2A of the Sentencing Act by the Sentencing Amendment (Transitional) Act 1997, Schedule 1, item [1]? 28 So far as is relevant to this case, the only effect of the Sentencing Amendment (Transitional) Act 1997 No 8 (the Transitional Act) was to amend the transitional provisions in the earlier 1997 Act so as to provide that the amendments to s 13A made by that Act applied in relation to an application made by a person under that section before the date on which the Bill for the earlier Act was introduced into Parliament (8 May 1997) unless the application had been fully dealt with before that date. 29 Quite clearly that meant that, in considering an application by a non-release recommendation prisoner, such person was not eligible for a re-determination unless the Court was satisfied that "special reasons" existed that justified the making of the determination: subs (3A); and the Court was required to have regard to and give substantial weight to any relevant recommendation, etc: subs (10A); It said nothing specifically about the making of an application, but by referring to applications made before the introduction of the earlier Bill, accepted that such applications (or it would seem this application - it was the only one in question) had in fact been made. 30 It follows that as a matter of construction, the clause could not apply to the making of an application, and in particular to when an application could be made. The Transitional Act governed how such pre-1997 applications should be dealt with, but pre-supposed that such applications had been "duly made." The Act could have provided that such applications should be deemed not to have been made, or that they be rendered null and void, or that any non-release recommendation prisoner irrespective of when his application was made should have to serve 20 years before having his application considered, but it did none of these 31 Whereas under the earlier 1997 Act, the requirement for "special reasons" did not apply to this application lodged prior to the 1997 Act, as a result of the Transitional Act, such "special reasons" needed to be shown when the application was heard, but there is nothing which purports to undo what had already been done and completed, namely the making of the application. 32 Section 13(4) both before and after the 1997 amendments conferred jurisdiction on the Supreme Court to determine a minimum and additional term "on application duly made". It is conceded, and in my view correctly conceded, on behalf of the Crown that in the case of this Applicant there was an application "duly made" on 28 November 1996, but it is submitted that such application cased to be "duly made" on the enactment of the Transitional Act, because, so the submission goes, Parliament subsequently removed the right to make the application at the time it had been made. I do not doubt that Parliament could take such a course, but as it would relate to pending litigation, I consider it would require clear and express words to do so, and there are no clear and express words to that effect. The term "duly made" referring to the past tense in its natural sense relates to regularity at the time it was made. The application having been "duly made" s 13(4) conferred on the Court jurisdiction to deal with it, albeit subject to the amendments made by the 1997 Act to subs (3A) and (10A). 33 Question 3 should be answered "no" as to the making of the application, but "yes" as regards the determination of the application.

Question 4 - Prior to the repeal of the Sentencing Act 1989 on 3 April 2000, and assuming the relevant amendments to the Sentencing Act were valid, was the Supreme Court precluded from making a determination pursuant to s 13A(4) in relation to the applicant until he had served 20 years of his life sentence? 34 For the reasons set out in dealing with question 3, this question should be answered "no".

Question 5 - If the answer to question 4 is yes, was the Supreme Court precluded, after 3 April 2000, from making a determination pursuant to clause 4 of Schedule 1 of the Crimes (Sentencing Procedure) Act 1999 in relation to the applicant until he had served 20 years of his life sentence? 35 In view of the answer to question 4, this question strictly does not arise, but it is desirable to say something on it, in case I am in error in my answer to question 4. 36 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 as from 3 April 2000 (the 1999 Act). The former s 13A is now reproduced in Schedule 1 of the later Act. The relevant transitional provisions are contained in Schedule 2 of that Act clause 21(1) and (2). Sub-clause (1) provides that an application under s 13A of the former Act that had been made but not determined before the commencement of the new Act (3 April 2000) is to be determined in accordance with Schedule 1 of the new Act; but sub-clause (2) provides that subcl (1) does not apply to an application referred to in cl 8(1) of Schedule 2A to the 1989 Act i.e. applications made but not fully dealt with before the date on which the Bill for the 1997 Act was introduced into Parliament (8 May 1997). 37 This application duly made in 1996 comes within subcl (b) and is therefore excluded from subcl (a). Accordingly, it is not to be determined in accordance with Schedule 1 of the 1999 Act, but in accordance with s 13A of the 1989 Act, as the repeal of a statute does not affect existing proceedings unless expressly provided: Interpretation Act s 30(1)(e). A similar conclusion was reached by Sully J in R v Veen [2000] NSWSC 656. 38 For the reasons given in relation to question 3, the Court would not be precluded from making a determination under s 13A(4) of the 1989 Act but in making such determination would be required to give effect to the provisions of subss (3A) and (10A) of the section.

Question 6 - If the answer to question 5 is yes, and assuming the validity of the relevant amendments, did the replacement of the period of 20 years in clause 2(2)(b) of the Crimes (Sentencing Procedure) Act 1999 with a period of 30 years, by item [2] of Schedule 1 of the Crimes Legislation Amendment (Existing Life Sentences) Act 2001 have operation in relation to the applicant? 39 This question also strictly does not arise. If the application is to be determined in accordance with the Sentencing Act 1989, the answer is "no" because there has been no amendment to s 13A(3) increasing from 20 to 30 years the time which a non-release recommendation prisoner must serve before the prisoner can make an application. 40 On the other hand, if the application is to proceed under the 1999 Act, the increase in the period that a non-release recommendation prisoner must serve before making an application would not apply to the applicant for 2 reasons: (a) the application has already been duly made, see the discussion relating to question 3 above, or

(b) Clause 39(a) of Schedule 2 of the 1999 Act provides that the amendments made by the Crimes Legislation Amendment (Existing Life Sentences) Act do not apply to proceedings where an application has been made but not disposed of before the commencement of that Act. 41 On the other hand, if I am in error in my answer to question 3 and the application duly made in 1996 is no longer "duly made" or is a nullity and a fresh application needs to be made under the 1999 Act, the 30 year period would apply.

Question 7 - If any or all of the following amendments had operation in relation to the applicant, was that amendment (or each of them) invalid by reason of inconsistency with Chapter III of the Constitution, because - (a) for the purposes of an exercise of judicial power of the Commonwealth under Ch III of the Constitution, both the determination of guilt of a criminal offence and the imposition of a sentence on a particular offender are exclusively exercises of judicial power; (b) the assertion and exercise by a State Legislature of a power retrospectively to vary the exercise of the sentencing power by a State Supreme Court and by a State Court of Criminal Appeal will tend to impair public confident in that part of the judiciary which is also required to exercise federal judicial power, so as to render such an exercise of State legislative power inconsistent with Ch III of the Constitution; (c) that tendency is exacerbated where the interference by the Legislature operates by giving legal effect to an expression of opinion which, at the time of the expression, had no legal consequence or effect; (d) a consideration relevant to the evaluative judgment required in determining when a State Legislature has acted so as to impair the authority of a Supreme Court in a manner inconsistent with the status of a Supreme Court for the purposes of Ch III of the Constitution, is the fact that the legislative scheme purports to operate uniformly to the disadvantage of both adult offenders and children, and (e) in relation to Schedule 1, item [1] of the Sentencing Amendment (Transitional) Act 1997 the purpose was directed and effect related solely to the punishment of the applicant by variation of the punitive consequences of the sentence imposed by the Supreme Court;

the amendments in question being those effected by: (i) items [1] and [2] of Schedule 1 of the Sentencing Legislation Further Amendment Act 1997 as it applied in relation to the applicant; (ii) item [1] of Schedule 1 of the Sentencing Amendment (Transitional) Act 1997 as it applied in relation to the applicant; (iii) clause 2(2)(b) of Schedule 1 of the Crimes (Sentencing Procedure) Act 1999 as it appears in relation to the applicant; (iv) item [2] of Schedule 2 of the Crimes Legislation Amendment (Existing Life Sentences) Act 2001, as it applies in relation to the applicant, and (v) the cumulative effect of any one or more of the foregoing provisions, as they apply or applied in relation to the applicant. 42 The submission that the effect of the various amendments is to so impair the functioning of the Supreme Court as a judicial body so as to be inconsistent with its status and functions pursuant to Chapter III of the Commonwealth Constitution is based on the reasoning of the High Court in Kable v The Director of Public Prosecutions (NSW) (1996) 189 CLR 51. 43 A similar challenge was made to the 1997 Act: Baker v The Queen (2004) 210 ALR 1 but that challenge was based on the proposition that the requirement in s 13A for a non-release recommendation applicant to show "special reasons" to justify a determination was devoid of content and therefore illusory. The High Court (Kirby J dissenting) held that the term "special reasons" was not devoid of content and that cases could arise where "special reasons" could be shown. Gleeson CJ at [17] gave as an example of special reasons the case of a juvenile when the non-release recommendation was made, referring specifically, although not by name, to the present applicant. 44 The invalidity of the 1997 Act was also challenged on the basis that it took as the criterion for particular treatment the non-release recommendation made at a time when such recommendations had no binding effect and at the time when only some, but not all, judges were prepared to make them; and it was submitted that such provision was random and arbitrary, but the Court held (at [8], [44], [49]) that Parliament was entitled to choose such criterion as it saw fit, and the selection of such a past criterion did not render the legislation invalid. 45 The applicant in Baker was not concerned with the application of the Transitional Act because he had already served 20 years of his sentence and did not make his application until 1 August 1997, after the passing of both the 1997 Act and the Transitional Act. 46 A point was made that the Transitional Act was passed for the sole purpose of "catching" this applicant who was the only non-release recommendation prisoner who had lodged an application which had not been dealt with prior to the 1997 Act, and it was faintly submitted that this characteristic of the of legislation being directed at a particular person, as was the legislation in Kable, rendered it invalid. But the grounds for the decision in Kable were much more extensive than the fact that it was directed at one person; and in any event, the effect of the Transitional Act if it has the effect contended for by the Crown was not to particularly target the applicant and single him out for special treatment, but to bring him within the general class of all non-release recommendation prisoners so that he was dealt with in the same way as the others. 47 Ultimately, the submissions on this question focussed on the effect of s 154A of the Crimes (Administration of Sentences) Act 1999 inserted by the 2001 Act Schedule 2 cl 2 set out earlier in this judgment, which in effect provides that even if a non-release recommendation prisoner successfully "jumps through all the hoops" of s 13A (3)(b), (4) (4A) and (10A) and succeeds in having a non-parole set, he cannot be released on parole until he is in imminent danger of death, irrespective of his conduct and progress at rehabilitation in the meantime. This provision does not apply to other serious offenders including persons sentenced to life under s 19 Crimes Act 1900, since repealed, who have had their sentences re-determined but were not the subject of a non-release recommendation or offenders subsequently sentenced to lengthy determinate terms, whose offences in both cases may be more heinous than those of persons subject to non-release recommendations. This problem is compounded by the fact that the making of non-release recommendations was arbitrary and of no legal effect when made, a course adopted by some judges, but not by others, and in the former case, often made without hearing evidence on sentence or submissions. 48 It was submitted that the enactment of s 154A rendered re-determination of life sentences for non-release recommendation prisoners a farce and that either the whole concept of non-release recommendation prisoners and special considerations for them in s 13A of the 1989 Act and Sch 1 of the 1999 Act were invalid, or alternatively, s 154A is invalid. In the light of Baker, I fail to see how I can find the provisions in the 1997 Act relating to non-release recommendation prisoners invalid, and the validity of s 154A should not be determined until there is someone who is presently, or soon to be, affected by it. That does not include the applicant at this stage. 49 Question 7 should be answered "No". 50 I have already referred to the fact that when the applicant appealed against his life sentence the Court of Criminal Appeal expressed some misgiving about the making of a never to be released recommendation particularly in the case of a young person such as the present applicant, but noted that there was no statutory basis for making the "recommendation" nor any statutory basis for appealing against it, it being agreed by Counsel that the "recommendation" would have no legal effect if and when an application was made to fix a determinate sentence. 51 At the time, the "recommendation" was not an "order" and consequently not a "sentence" within the meaning of that word as it then stood or now stands in the Criminal Appeal Act 1912 s 2. It may be arguable that as a result of the amendments effected by the 1997 Act which gave legal effect and authority to such a recommendation, such recommendation became retrospectively an "order" and therefore a "sentence". If this is so, it may be that, subject to obtaining leave to appeal out of time, an appeal could now be brought against the "recommendation" pursuant to s 5(1)(c) of that Act. 52 This point was not taken at the hearing, I have heard no submissions on it and I express no concluded view in relation to it. 53 The questions in the annexure to the Notice of Motion should be answered as follows:

(1) (a) and (b) yes (2) No (3) No as to the making of the application but "yes" as regards the determination of the application (4) No (5) Does not arise (6) Does not arise (7) No **********

15/04/2005 - Date of offence and name of victim had to be corrected - Paragraph(s) Para 3 18/04/2005 - Correction in paras 33 and 53. - Paragraph(s) 33 and 53

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